What is a Responsible Employer Now Supposed to Do to Make the Needed Daily “Line-Drawing” Decisions: Yes or No on the Latest Accommodation Request?
So, employers are now left to wonder: “substantial” compared to what? Revenues? Profits? Impacts on co-workers, customers and shareholders? All of the above? The cost of the accommodation to that division, group or Team which is hosting the accommodation? Or is the accommodation cost compared to the revenues or profits of the entire company (as the Groff decision seems to state)?
And what does “substantial” mean, anyway, and is it the same in every context of those who feel the impact? Is a penny a share loss to shareholders of a large publicly owned company not “substantial” even though the cost of the accommodation to the company could be several hundreds of thousands of dollars? NOTE: the USDOL Job Accommodation Network reported a 2020 survey of companies reporting that most workplace disability (not religious) accommodations in the United States cost less than $500. This issue of the precise definition of “undue hardship” thus affects only the small percentage of accommodation requests which carry a much larger price tag than $500 or impact co-workers, investors and/or customers.
Example: If your company shows a profit of $161 Billion (as Saudi Aramco did in 2022: I know, hard to imagine!), is an accommodation costing 1% of that company’s profits ($1,610,000,000 = One Billion Six Hundred Million dollars) “substantial” enough to allow Saudi Aramco to deny the accommodation, or must it be more, or could it be less? And as one considers whether the accommodation cost is “substantial,” and how to determine that, do you measure against the drop in the company’s profits, the drop in the Shareholder value per corporate share of ownership, or the impact on gas prices to consumers nationwide (worldwide?). Or do all of those considerations get rolled into a “bouillabaisse” soup and cause you to consider subjectively, holistically, altogether? (By the way, I think that is what the SCOTUS is advising companies covered by Title VII.)
What if a company’s union members convene a vote and declare that any impact on their “seniority” “rights” guaranteed in their union contract is “substantial?” If we throw that fact into the broth, how much weight should the company accord that union vote in the bouillabaisse of “cost considerations” to the company? 1%? 50%? 51%?
Is the final analysis of what is “substantial,” “objective,” or “subjective”? And, how much deference, if any, does the company get if it undertakes a careful and full analysis, and then denies the accommodation?
Is there any “safe harbor” for a company that acts in good faith? Or is the going forward reality that company’s act at their peril with every accommodation decision they deny being second-guessed, eventually perhaps by a jury deciding whether the increased costs to the company of the requested accommodation were NOT “substantial”?
[We are reminded of the mock trials the American Bar Association hosted with a federal judge, first in New Orleans and then in San Francisco, shortly after President George H.W. Bush (the father) signed the Americans with Disabilities Act (“ADA”) into law in 1990. Title I (Employment) was becoming legally effective two years later in April 1992 so the Employment Law Bar thought in 1991 it was a good time to see what an ADA trial might look like.
Despite criticism from the Plaintiffs’ Bar participants that the facts of the coming Mock trials were too favorable to companies and the Plaintiffs’ Bar stood little chance of winning the requested accommodation at the Mock trials, the trials nonetheless went forward. The Bar used “double-blind juries” in each location. (In a double-blind jury, used for trial demonstration purposes, each jury does not see, hear or participate in the deliberations of the second jury. While they hear the case together, the two juries deliberate separately so those observing the deliberations may obtain a broader sense of how jurors react to the facts and law presented to the juries: two for the price of one).
The facts of these Mock trials (as best as I can now remember them) generally involved a $60,000/per year salaried outside traveling salesperson (this is 1991 money) with a nationwide territory to which he had to fly on airplanes or reach via trains several days each week. The company for which he worked was a large corporation with thousands of employees nationwide and made tens of millions of dollars per year in profits for its Shareholders. The stipulated facts were that the salesperson unfortunately became a paraplegic following an automobile accident unrelated to his work. The salesperson could no longer dress or bathe himself, and he needed full-time caretakers to manage his everyday affairs and assist with his business duties. As I distantly recall, those additional costs for full-time 24×7 caretakers were pegged at about $160,000/year in 1991 money. The salesman’s accommodation request also sought corporate payment of the costs of the caretakers, the costs of two First Class airplane tickets (before the accident the salesman flew Coach Class) for the 100+ airplane trips per year crisscrossing the country, special ground transportation vehicle cost reimbursements, two hotel rooms the salesman and his caretaker would occupy in each city they visited on business, and three meal costs per day for the salesman and his caretaker while they traveled across the country to allow the salesman to continue to sell the company’s products. The total annual accommodation cost was estimated to be in excess of $500,000.
To create the issues the employment lawyers in the audience watching the Mock Trials wished to observe the jury deliberate, the make-believe employer testified that it had denied the accommodation request as an “undue hardship” as it imposed more than a “de minimis” cost on the employer. (The employer borrowed the Hardison definition under Title VII and argued that Congress had in mind the same legal standard when it drafted and passed the ADA as to the “reasonable accommodation” Congress had earlier required using the same accommodation language under Title VII).
Note: The very prominent federal District Court (trial) Judge presiding over the San Francisco trial charged the two juries and then dismissed them, as planned, to repair to their respective nearby ballrooms to undertake the needed publicly observed deliberations and to thereafter deliver a verdict. However, after he had dismissed both juries and no juror could hear him, the Judge then told the assembled employment lawyers observing the Mock trial that if he were then sitting on his federal bench in an actual trial of this matter, he would have ruled from the bench in favor of the company. The Judge explained that in real life he would have dismissed the case in its entirety, before the jury ever retired to deliberate, because he would have ruled that the accommodation sought was inherently unreasonable. However, the Judge went on to explain, that he had nonetheless charged the juries to allow this demonstration Mock trial to proceed so it could fulfill its purpose to allow employment lawyers to see how juries thought about ADA accommodation cases. (Those in the audience were able to watch one or the other of the juries deliberate as each jury did so on a stage in the nearby hotel ballrooms.)
The first jury in San Francisco granted the accommodation request in full. They had no naysayers on the jury, and it seemed pretty obvious very quickly to them that this economically well-to-do company should put this salesperson back where he was before his unfortunate accident. The second jury did the salesperson one-better: it granted his accommodation request in all respects save one: Rather, this second jury ordered that the employer must supply the salesperson with a private corporate jet to carry him and his caretaker to the salesmen’s nationwide sales destinations. (You just can’t make this stuff up.)
While it is little remembered today, it was from these mock trials, by the way, that the cry first went out nationwide from employment defense lawyers that wealthy companies could basically not reject costly accommodation requests as an “undue hardship.” And remember, this was after these Mock trials were heard…USING THE HARDISON “de minimis” LEGAL STANDARD. NOTE: The Mock trial judge explained to the jurors what law to apply (charged the jury) to the facts they found from listening to the testimony of the witnesses. In so doing, the Judge charged the jury to use the Hardison legal standard of “undue hardship” to render its verdict.
Now that the SCOTUS has last week ruled that the “de minimis” cost increase standard is not enough and that employers must deny only accommodations seeking a ”substantial cost increase,” you can just imagine what the advice will soon be of defense lawyers in future accommodation cases when advising companies which show a profit or which do not have fellow employees complaining about taking the weight shift from a disabled co-worker!
Punchline: Thirty-one years after the federal judiciary hostilely greeted the arrival of the ADA (this was true generally, as to most ADA legal issues which arose and across the country, and not just in San Francisco), the federal bench has now accomplished a full “about-face.” The federal courts (generally) are increasingly embracing and furthering the accommodations of employees the courts expect of employers. Companies and defense counsel need to internalize the ramifications of the changed federal judiciary reaction to Title VII accommodation requests, but also as to ADA accommodation requests.
Note: ADA complaints were the most numerous of the many types of claims filed in the federal District (trial) Courts in 2022. Indeed, ADA complaints comprised almost 24% of the federal trial court dockets last year.