Pop quiz, restauranteurs –
You hire a new part-time dishwasher. He’s deaf. To help him understand orientation training, he asks you for either a closed-caption video or an American Sign Language Interpreter. Do you have to give him either one?
This is the issue The Cheesecake Factory has been litigating for the past two years.
In 2016, The Cheesecake Factory was sued by the Equal Employment Opportunity Commission (EEOC) for failing to provide an effective accommodation under the Americans with Disabilities Act (ADA). According to the lawsuit, the company denied Oleg Ivanov’s repeated requests for orientation training with either closed-captioned video or an interpreter and instead relied on passing written notes to communicate with him at his interview, orientation, and meetings.
The EEOC further alleged that Ivanov did not receive adequate training on the company’s online scheduling system and timekeeping process (due to lack of accommodation for being deaf), leaving him at a disadvantage in tracking his work hours. The Cheesecake Factory fired Ivanov alleging attendance issues. Ivanov sued for failing to provide an effective accommodation and for firing him for issues stemming from his disability.
The Americans with Disabilities Act requires employers to provide reasonable accommodation to a qualified employee or job applicant with a disability unless doing so would cause significant difficulty or expense. It’s also illegal to punish an employee with a disability for requesting a reasonable accommodation.
The extent of protection for a person with a disability under the law is often misunderstood. Employers aren’t required to rewrite the requirements of the job in order to hire a person with a disability. The law only protects qualified individuals who can perform the essential functions of the job, with or without a reasonable accommodation. In other words, an employer cannot discriminate against a person with a disability if they can do the job with a slight change or adjustment that doesn’t impose an undue hardship on the employer.
An accommodation becomes an undue hardship if it imposes more than a minimal burden on a business. Because "burden" is largely fact-specific, there’s no real hard and fast rule as to what particular accommodations create a hardship for an employer. Courts consider a host of factors, including cost, efficiency and safety in light of the employer’s size, financial resources and the needs of the business.
An employer doesn’t have to provide the exact accommodation the employee wants. If more than one accommodation works, the employer may choose which one to provide.
The End Game
The Cheesecake Factory entered into a consent decree to settle the case, meaning that there was no court ruling as to whether or not it violated the law by failing to provide Ivanov with the closed-caption video or interpreter. As part of the settlement though, The Cheesecake Factory did agree to provide closed-captioning for the training and orientation videos in the future, leading to the conclusion that such action likely was a reasonable accommodation.
When faced with a disability accommodation request, restaurant owners should be mindful that they cannot refuse to provide an accommodation simply because it involves some cost. Employers should work closely with the individual making the request to determine a mutually agreeable solution that effectively levels the playing field for the employee without causing excessive hardship to the business.