Employment Law Daily Hospital can't prove undue hardship or direct threat defenses in deaf nurse’s disability claims
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Tuesday, January 26, 2016

Hospital can't prove undue hardship or direct threat defenses in deaf nurse’s disability claims

By Kathleen Kapusta, J.D. Johns Hopkins Hospital (JHH), which rescinded a job offer to a deaf nurse based on the purported $120,000 cost of providing her with an American Sign Language (ASL) interpreter, could not prevail on its undue hardship defense by asserting that the department’s “threshold is zero for interpreter costs,” while failing to account for its $1.7 billion budget, found a federal district court in Maryland, observing that another hospital was able to provide her with her requested accommodation. The nurse was also entitled to summary judgment on JHH’s direct threat defense, which the court found was based on post-hoc rationalizations and thus was suggestive of pretext (Searls v. Johns Hopkins Hospital, January 21, 2016, Blake, C.). Upon her graduation from Johns Hopkins School of Nursing, the nurse was offered a job in the same unit where she performed two clinical rotations. Although she could read lips, she understood better through sign language and during her clinical placements at JHH, the school provided her with a full-time ASL interpreter. Offer rescinded. When she accepted the offer, the nurse requested a full-time ASL interpreter as an accommodation. After much discussion between the nurse manager, JHH’s ADA Compliance Specialist, an ADA/Accessibilty Consultant, and others, the job offer was rescinded based on the undue hardship of paying a full-time ASL interpreter’s salary of $120,000. Several months later, the nurse began working at another hospital that provided her with a full-time interpreter. During the time her request was being evaluated, no one asked her how she would work with an interpreter, including during an emergency situation or when an alarm sounded, or proposed any alternative accommodation. She subsequently sued, claiming that JHH violated the ADA and the Rehab Act by rescinding her job offer even though she was a qualified individual who, with the accommodation of an ASL interpreter, was fully able to perform the essential job functions of a nurse. Reasonable accommodation. At issue in her reasonable accommodation claim was whether, as JHH contended, hiring a full-time interpreter would have reallocated essential job functions. JHH’s job description of the position at issue listed as essential job functions communicating with patients, family members, and other hospital personnel, and monitoring and responding to alarms. Even with the assistance of an interpreter, the court found that she would perform a significant portion of the essential functions of communicating and responding to alarms herself as she would decide which questions to ask, speak for herself in talking to patients and other professionals, and act in response to alarms. As to whether her inability to hear affected her ability to communicate and respond to alarms such that she would be unable to perform these essential job functions within the meaning of the ADA, the court again noted that with the aid of an interpreter, she could perform a substantial portion of these functions, and most importantly, those portions requiring nursing judgment. Thus, her inability to hear did not detrimentally affect the purpose of employing her as a nurse. Therefore, her accommodation request would not have reallocated the essential job functions. Undue hardship. And while JHH asserted that providing her with an interpreter would have caused an undue hardship on its operations, the court noted that despite the relevance of its overall budget, it focused exclusively on the resources and operations of the unit where she would be working and the Department of Medicine and ignored the question of how providing an interpreter costing at most $120,000, or 0.007 percent of JHH’s 2012 operational budget of $1.7 billion could impose an undue hardship on the hospital. Observing that JHH essentially argued that it had no money in its budget for reasonable accommodations, the court pointed out that the employer’s budget for reasonable accommodations is an irrelevant factor in assessing undue hardship because allowing an employer to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue to the employer that allegedly failed to accommodate an employee with a disability. Moreover, said the court, even assuming the salary of a full-time ASL interpreter would be twice that of a nurse, that by itself did not establish undue hardship. Not only does the EEOC’s interpretive guidance on its ADA regulations explain that “[s]imply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice,” the court found it particularly relevant that the hospital that hired the nurse has been able to accommodate deaf nurses. Thus, she was entitled to summary judgment on this defense. Direct threat. In arguing that employing the nurse would have imposed a direct threat, JHH contended that some alarms were only auditory and “[i]t would have been a significant patient safety risk to rely on an interpreter, without any nursing training, to engage in nursing judgment by determining which alarm was sounding and to rely on the interpreter’s judgment to determine when a patient emergency was occurring, requiring nursing assistance.” However, because JHH did not raise patient safety concerns until after the nurse sued, because the issue of patient safety was absent from contemporaneous communications concerning the reason for denying her an ASL interpreter, and because the only explanation JHH gave to her for revoking her job offer was the cost of providing a full-time interpreter, it did meet its burden on its direct threat defense. The defense also failed because there was no individualized assessment. Rather, said the court, JHH relied on stereotypes or generalizations about deafness. Noting deposition testimony from the nurse manager, who stated that she was concerned about the nurse’s ability to function safely based on whether she would be able to hear alarms, the court pointed out that she admitted she never observed the nurse fail to respond to an alarm. Nor did JHH dispute that no one ever raised the patient safety concerns with the nurse or asked how she planned to work with an interpreter to respond to alarms.

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