by Chris Danielsen
From the Editor: Chris Danielsen is the director of public relations for the National Federation of the Blind. Previously he worked in private practice as an attorney, so we have just the right person to understand the complexity of the law and to communicate it to those of us who know only that we do not wish to break it. As with so many cases involving the rights of blind people, the issue here focuses on provisions in the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act passed in 1990. At issue was the tug of war between the concept of reasonable accommodation and undue hardship, both articulated in law and regulation, but each requiring better definition as provided in ever-evolving case law. Here is what Chris says:
On February 26, 2016, after some four days of deliberation following a nearly three-week trial, a jury in a federal district courtroom in Greenbelt, Maryland, reached a momentous verdict. The verdict was, of course, important to Yasmin Reyazuddin, the blind woman whose case against her employer was being considered by the jury. But the case made a broader statement about the importance of accessibility and technology. The jury ruled expressly and unequivocally that Ms. Reyazuddin's employer, Maryland's Montgomery County, had failed to provide her with a reasonable accommodation, as required by the Rehabilitation Act of 1973, and discriminated against her by not transferring her to a new telephone call center because it failed to make workplace technology accessible.
The road to this great day was a long one; the case was originally filed in the spring of 2011 and was the culmination of years of frustration for Ms. Reyazuddin, a longtime member of the National Federation of the Blind of Maryland. It took five more years for the case to work its way to trial, in part because Montgomery County at one point got it thrown out of court, and that decision had to be appealed. Fortunately, the appeal was successful, and a jury finally heard the case. What follows is a summary of the case gleaned from the complaint that was filed, with the assistance of the National Federation of the Blind, on Yasmin Reyazuddin's behalf; this writer's own observation of appellate arguments in the case; Yasmin's trial testimony; information from her attorneys; NFB of Maryland press releases and articles about the case; and press reports. The NFB hired the law firm of Brown, Goldstein & Levy, which has handled many cases on our behalf, to represent Yasmin. Her trial team was led by Joe Espo, with assistance from Tim Elder, a blind NFB member now practicing in California; and Dan Goldstein, who is very familiar to Monitor readers and national convention attendees.
From 2000 to 2008, Yasmin, a native of India with multiple undergraduate degrees who speaks Urdu and Hindi as well as English, worked successfully for Montgomery County, first as a contract employee and then, beginning in late 2002, as a full-time merit employee. At the time that the events giving rise to her lawsuit began, she was working as an information and referral specialist in the call center of the county's Department of Health and Human Services. In around May of 2008, Yasmin learned that the county would be consolidating that call center with others into a new Montgomery County 3-1-1 call center, referred to throughout the case as the MC-3-1-1 center. 3-1-1 is the number that many counties and municipalities use to provide non-emergency information and services to their residents, just as 9-1-1 is used to provide emergency services. As an employee of one of the call centers to be consolidated, Yasmin expected to be transferred to the MC-3-1-1 call center. She was concerned, however, about whether she would be able to use the technology in the new call center. She had been using JAWS (Job Access With Speech) to access the computer programs with which she needed to interact in order to provide accurate information to callers, keep records of calls, and perform other tasks necessary for resolving the concerns of callers. She immediately inquired of her supervisor whether the software for the new call center would be accessible and was told that her concerns would be addressed. She also began to research accessible solutions herself, forwarding the information she found to her supervisor. As the months wore on with no specific information about what was coming, she escalated her inquiries to the county's Americans with Disabilities Act compliance officer, the staff liaison for the Montgomery County Commission on People with Disabilities, and other county officials. She also met with Leslie Hamm, the manager of the new call center. She received no specific information other than some vague assurances that her concerns would be addressed.
Montgomery County ultimately procured a sophisticated software system from the Oracle Corporation called Seibel Customer Relationship Management (CRM). Yasmin was still unable to get any information about accessibility, but she was also still scheduled to be transferred to the new call center until as late as October of 2009; in fact, she was told that she would be among the earliest group of call center employees to be transferred and required to attend an orientation meeting at the new facility.
On November 9 of 2009, Yasmin left work for a three-week vacation to India. She returned around Thanksgiving and, on the Friday following the holiday, called Leslie Hamm to find out whether she should report to the MC-3-1-1 call center or to her old office at Health and Human Services. She was told to report to HHS because the county could not yet accommodate her in the new call center. When she returned to her old office on Monday morning, the heat wasn't turned on, and there was no one else in the office. She spoke to Leslie Hamm and others about the heating problem immediately, but she remained alone, answering the phone, in an unheated office for ten days. At that time, she was moved to a new office space, with heat and where she was no longer isolated. In discussions with county officials about the situation, she was told that they were "working on accessibility." She also continued to receive calls from county residents as normal until February 4, when the calls suddenly stopped due to the "soft launch" of the new call center, and she was left with no work to do. Although she was still being paid, Yasmin was understandably upset by this development; as she testified in court, "I wanted to work. I wanted to earn my pay, and I wanted to be useful."
A couple of days after the MC-3-1-1 call center became operational, Yasmin asked to be allowed to manage referrals to the county food bank, and that request was granted. But those calls, at best, filled only three or four hours of her workday, according to her testimony. She was later assigned to take calls for the intake of adults needing protective services, but that did not increase her workload substantially.
At the 2010 convention of the National Federation of the Blind, Yasmin observed a representative of Oracle, who was also blind, using JAWS to access a version of the software being used in the MC-3-1-1 Call Center, and she conveyed what she learned to county officials. Despite this, she was told on October 1 of 2010 by Ricky Wright, a human resources official, in front of other coworkers, that she would never be transferred to MC-3-1-1, that she would need to look for other county jobs, and that she should forward her resumé to Mr. Wright so that she could be considered for other positions. Mr. Wright told Yasmin that it would be an undue hardship for the county to reconfigure the MC-3-1-1 call center software so that it would be accessible to her, and this was the primary defense that Montgomery County put forward in response to her lawsuit.
"I was devastated, frustrated," Yasmin told the court about her reaction to the news she received from Ricky Wright. "I felt like I had been left behind. In other words, the county had abandoned me." Yasmin never received another position with the county, and for about three years her official job title was changed from "information referral specialist" to "support staff," a designation which indicated a lower skill level and pay grade, although her pay was not cut. She testified that the change in her job title made her feel "humiliated."
Since early 2010 Yasmin's primary job has been to handle referrals to the county food bank, known as Manna. Initially customer service representatives in the MC-3-1-1 call center would transfer Manna calls to her, but eventually the referrals were simply emailed copies of an intake form filled out by MC-3-1-1 employees. Yasmin testified that the information taken by call center employees could have simply been emailed directly to Manna instead of through her. In other words, her duties were "make-work," and as a result she felt that she was "not useful."
All of these events, taking place over about two and a half years, led to the filing of Yasmin's lawsuit in April of 2011. The lawsuit alleged that Montgomery County violated Section 504 of the Rehabilitation Act of 1973 by "procuring and configuring computer database software that is inaccessible to Plaintiff and other blind individuals; failing to modify computer database software so that it is accessible to Plaintiff and other blind individuals; denying Plaintiff access to the programs and activities of the County that are made available to similarly situated non-disabled individuals; and failing to provide Plaintiff full-time work opportunities appropriate to her skill and experiences." The complaint asked the court to order Montgomery County to modify the software and to reinstate Yasmin as an information specialist in the MC-3-1-1 call center, as well as paying her compensatory damages and attorney's fees.
Importantly, Yasmin's case rested not just on the county's refusal to install accessible workplace software, but also its failure to give her meaningful work to do. The county apparently believed that, as long as it did not fire Yasmin or cut her pay, it was not discriminating against her. Yasmin and her attorneys took a different position. As Joe Espo, Yasmin's lead attorney, told the Maryland Daily Record just after the jury verdict: "Giving someone a paycheck is not a reasonable accommodation. It’s not just a paycheck—it’s the opportunity to do meaningful work and have the same advancement and promotional opportunities as others in similar positions do. It’s very hard to demonstrate competence and achievement and to present yourself for advancement if what you’re doing is a bunch of make-work and supervisors don’t want you around. It’s hard to excel at doing nothing.”
As mentioned earlier, Montgomery County's primary defense was that accommodating Yasmin in the MC-3-1-1 Call Center represented an undue hardship. (The county's lawyers also tried, without success, to cast doubt on Yasmin's skills and competence.) According to trial evidence, the cost to modify the software would have been between $125,000 and $190,000. To put that figure in perspective, the county spent $11 million to set up the call center. Nonetheless, the trial judge ruled earlier in the case that the county had proven its defense as a matter of law. That decision was appealed, and the United States Court of Appeals for the Fourth Circuit reversed the ruling, saying that the question of undue hardship must be presented to a jury. On appeal, the county at one point attempted to argue that the relevant number to use in judging the undue hardship question was not the budget for the call center or the county's total budget, but its budget for reasonable accommodations. That argument was rejected; the court pointed out that, if this were the case, the county could simply avoid its obligation to workers with disabilities by setting its reasonable accommodation budget at zero.
When the case did go to trial, the jury was unpersuaded by the undue hardship defense. The jury further ruled that the county had failed to reasonably accommodate Yasmin, either in the MC-3-1-1 Call Center or outside of it, and that its failure to transfer her to the call center was an adverse employment action against her. The only disappointing aspect of the jury's verdict was that it failed to award noneconomic damages for the emotional distress that Yasmin experienced. Economic damages were not at issue, since Yasmin's pay was not affected.
As this article goes to press, the trial judge has ordered the parties in the case to engage in additional discovery, which is the legal term for the process of acquiring evidence. More changes in technology have occurred since the case was filed, and so additional evidence is needed on what the county will need to do in order to accommodate Yasmin. Once that evidence is obtained, Yasmin's attorneys will ask the court to order the county to make the necessary modifications to the MC-3-1-1 call center so that Yasmin can finally work there. This is logically the correct remedy, but it remains to be seen whether the court will grant such a request. Hopefully Yasmin will finally get the job that she should have had seven years ago.Often it seems that the public does not understand the concept of accessibility or how the failure to incorporate it into the workplace affects not only the employment prospects of the blind or others with disabilities, but our basic dignity and status as first-class citizens as well. But Yasmin and her attorneys successfully conveyed that understanding to a Montgomery County jury, and that verdict must now be honored in some way by the court. Yasmin's case is another example of the importance of fighting discrimination when we encounter it, both as individuals and as members of the National Federation of the Blind.