Yesterday, the EEOC’s aggressive attempt to litigate issues under the Americans With Disabilities Act faced a resounding defeat in EEOC v. The Picture People, Inc., No. 11-CV-1306 (10th Cir. 2012). The Tenth Circuit affirmed the U.S. District Court for the District of Colorado’s grant of summary judgment to the employer, the Picture People (“TPP”), and dismissed the EEOC’s lawsuit, which asserted that TPP harassed, discharged, and retaliated against a deaf employee in violation of the ADA. We previously blogged on EEOC v. The Picture People, Inc. (here), and why the EEOC’s claims were rejected. EEOC v. The Picture People, Inc. stems from the grant of summary judgment on the basis that Jessica Chrysler, a disabled employee at TPP, could not establish that “she was qualified – with or without accommodation – to perform an essential function of her job[.]” Id. at 2.

The 10th Circuit’s ruling is an important development addressing what, if any, accommodations are reasonably required of employers under the ADA’s new amendments, and another defeat for the EEOC’s strategic enforcement program.

Background Of The Case

In 2007, TPP hired Chrysler understanding that she was deaf and mostly communicated through written notes and body language. TPP hired Chrysler as a “performer,” a job that involved photography, sales, lab work, front desk duties and interacting with customers. After Chrysler took photographs and attempted to sell photo packages on a number of occasions, TPP moved her to work in the photo lab because it found her “written communications awkward, cumbersome, and impractical . . .” Id. at 5. Chrysler repeatedly demanded TPP provide her with an interpreter to assist at meetings, and complained after TPP put her on notice of performance problems because of her disability. After the 2007 holiday season, TPP cut all performers’ hours, including Chrysler’s. In 2008, TPP terminated Chrysler.

One year later, the EEOC filed an action in the District Court, listing a number of allegations including unlawful discrimination and termination in violation of the ADA. In response, TPP argued that Chrysler could not perform the essential function of her job because the ability to speak with customers – mostly children – throughout their visit to the studio was necessary. In support of its position, TPP focused on its description for a performer, which emphasized that strong communication skills was a job qualification. Siding with TPP, the District Court dismissed the EEOC’s case and reasoned that oral communication was an essential function of the job, and that it was not reasonable to require TPP to alter the job description. See EEOC v. The Picture People, Inc., 2011 U.S. Dist. LEXIS 49432 (D. Colo. May 9, 2011).

Basis Of The Tenth Circuit’s Ruling

On appeal, the EEOC’s case again hinged on whether Chrysler could perform her job with reasonable accommodations. To no avail, the EEOC asserted that TPP was required to “allow [Chrysler] to communicate with customers using non-verbal means of communication,” and that she could perform her job duties if TPP provided her with an interpreter at meetings and training sessions. Id. at 10-11. The 10th Circuit refused to displace TPP’s business judgment and opined that “[g]iven that verbal communication is an essential job function, requiring [TPP] to eliminate this function cannot be a ‘reasonable accommodation’ required under the ADA.” Id. at 11. The 10th Circuit also reasoned that providing Chrysler with an interpreter was not a reasonable accommodation because it would not improve her ability to perform her job. Namely, the interpreter would neither “ameliorate her inability to interact verbally with customers — an essential function of the performer job” nor preclude TPP “from scheduling her during a non-peak periods[.]” Id. at 12. Despite a dissent, by a 2 to 1 decision, the 10th Circuit upheld the dismissal of the EEOC’s unlawful discrimination, termination, and retaliation claims.

Implications For Employers

The affirmance of summary judgment in EEOC v. The Picture People, Inc. provides a blueprint for successfully defending against the EEOC’s theories. The 10th Circuit’s ruling also represents a blow to the EEOC in terms of its strategy to base ADA charges on arguments that the employer failed to provide reasonable accommodations.

Originally published on the Workplace Class Action Blog.