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August 23, 2023
Throughout the COVID-19 pandemic, employers faced an increased number of requests from employees to accommodate disabilities. Some of the decisions stemming from those requests are being litigated and – like the case discussed below – are particularly instructive now, as more and more companies are requiring employees to return to working at the office.
In a recent decision of the United States District Court for the Eastern District of Pennsylvania, the court reminds us that the law requires employers to individually assess an employee’s request to accommodate a disability. See Oross v. Kutztown Univ., No. 21-5032 (E.D.Pa. Jul 25, 2023).
The Professor and the Heart Transplant
Oross, an associate professor of Kutztown University, underwent a heart transplant on February 24, 2021, rendering him particularly vulnerable to contracting COVID-19 in the months following the transplant. He asked the University if he could teach and hold office hours remotely during the Fall 2021 semester.
The University denied his request. The University relied on its determination that teaching in-person was an essential function of the position, and Oross’s inability to teach in-person meant that he was not qualified for the position. The University further determined that converting classes from an in-person to an online format would fundamentally alter the University’s course offering to students and, thus, create an undue hardship. It further noted that, based on these same determinations, it had not granted any other faculty members’ request for remote teaching accommodations.
Oross sued, claiming that the University discriminated against him based on his disability, failed to accommodate him, and interfered with his rights.
In-Person Teaching Is Not an Essential Function of Oross’s Job.
Although a determination of whether a duty is an essential function of a job normally is a question for a jury, the court found that no factual issues existed for a jury to resolve and, thus, made a determination on the issue as a matter of law.
The court relied on several undisputed facts to determine that in-person teaching was not an essential function of Oross’s job. Specifically, the court noted that neither the union agreement, Oross’s job description, nor the course descriptions identified in-person teaching as essential. Furthermore, the University’s marketing materials state that distance learning is a “critical component to the University’s mission to lead itself into the future” and note that it has a dedicated team of instructional designers, media producers, and technical support staff that collaborates with faculty to ensure that the online experience reflects the rigorous education for which the University is known. The court further noted that, for the Spring semester 2021, nearly 68% of the University’s courses were offered online only, and nearly 26% were offered in a hybrid format; for the Fall 2021, 15% of the University’s courses were online and 7% were partially online. Lastly, the court noted that Oross obtained his certificate in online teaching from the University and, since 2015, has taught 22 classes in an online format.
The totality of these circumstances demonstrated to the court that in-person teaching and office hours were not essential functions of Oross’s job.
The University Can Accommodate Oross’s Request for Remote Teaching and Office Hours Without Undue Hardship.
The court held that the University would not suffer an undue hardship if it accommodated Oross’s request for remote teaching and office hours for the Fall 2021 semester. The University had a framework for remote teaching and offered online courses, some of which Oross taught, in the Fall 2020 and Spring 2021. Even if students preferred an in-person teaching format, the court held that such preferences do not qualify as undue hardship.
The University’s Reasons for Denying Oross’s Request Were Pretext for Discrimination.
The court held that the uncontroverted evidence in the case established that the University’s stated reasons for denying Oross’s accommodation were pretextual. The court cited the University’s ADA (Americans with Disabilities Act) Employee Policy, which requires that all accommodation requests be analyzed on an individual basis and, if a qualifying disability exists, a reasonable accommodation, if available, should be provided. Yet the University adopted an inflexible policy that would not permit remote teaching to any high-risk faculty member for the Fall 2021 Semester no matter what the individual’s circumstances were.
The University further used a “full-time, full-duty” requirement that it interpreted as meaning that all teaching and office hours had to be in-person, though it never previously applied or even defined the requirement.
In sum, the University’s “recently-devised, inflexible, and unsubstantiated policy that any request to change the course modality from in-person to remote would be considered a substantial alteration to the course offerings and would represent an undue hardship to the University and its students” was pretext for disability discrimination.
Employer Takeaways
No bright line rules exist when evaluating an accommodation request. You have to be flexible and assess each individual’s circumstances before making any decisions.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
