Many employers and HR professionals are trained and ready to handle requests for accommodation by employees, including understanding the obligation to engage in an interactive process with the employee to find a reasonable accommodation for the employee. However, are they as prepared to handle the request for “special services and ensure effective communication” when “public accommodations and services” are offered to members of the public? A recent case from the Ninth Circuit addressed this obligation and reminded us all that Title I of the ADA (which applies to employment ADA issues) and Title III of the ADA (which applies to “public accommodations and services” to non-employees) are not the same. Specifically, in the case before it, the Court held that there is no interactive process requirement for public accommodations and services under Title III of the ADA. (Tauscher v. Phoenix Board of Realtors, Inc., 931 F.3d 959 (9th Cir. 2019)). As the facts below make clear, the holding means that a business cannot avoid its obligation under the law simply because the disabled customer fails to participate in an interactive process.
Mr. Tauscher is a licensed real estate agent in Arizona. In 2015, he registered for a continuing education (CE) class hosted by the Phoenix Association of Realtors (PAR). Five months before the course, Tauscher, who is profoundly deaf, requested PAR to provide a sign language interpreter for the course. PAR denied the request and suggested several alternatives which Tauscher rejected because they would not work for him. He was given a refund, but later filed suit. The District Court ruled that PAR had met its obligation under the ADA to engage in an interactive process after it offered alternatives which Tauscher rejected and then refused to discuss any other potential measures. Therefore, summary judgment was entered for PAR.
On appeal, the Ninth Circuit panel reversed. First, it is important to understand that under Unlike Title III, the word “accommodation” does not have the same meaning that it does under Title I; it is not an assistance or change to a workplace to help a disabled employee to perform their job. Under Title III, a “public accommodation” is a private entity open to the public, such as libraries, restaurants, day care centers, retail stores, museums, etc., and includes “private entities or agencies that offer certain examinations and courses related to educational or occupational certification.” Such entities must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. The panel acknowledged that PAR was not required by the ADA to provide the specific aid or service requested by plaintiff; nonetheless, it had to offer plaintiff a means of communication about alternatives that might be effective. The panel held that the ADA Title I’s requirement that an employer engage in an interactive process regarding possible accommodations does not apply in the context of public accommodations. Therefore, Tauscher’s failure to engage in further discussion did not relieve PAR of its duty under Title III, as it might have under Title I. It was required to engage further with Tauscher regarding other measures if it insisted that providing an ASL interpreter would be an undue burden.
What this means to you: Every business which offers any kind of service to the public, is going to deal with customers and clients who may request special aids and services so that they may participate. And, the rules governing such requests are different from the process and analysis that managers and HR are more familiar with, the notice of disability by an employee and request for reasonable accommodation. Managers, HR and legal professionals must be reminded and understand that different statutes may impose different obligations on employers, even if what appears to be the same language is used. When employees receive requests for reasonable accommodation from employees, or for special aids and services from members of the public, they must understand their basic obligations and their duty to notify HR and Legal immediately. These skills are the focus of workplace trainings, such as Managing within the Law, which address the special requirements of the ADA.
Help your employer meet its requirements under the law and FEHA regulations by contacting us today at 800-458-2778 and booking Managing Within the Law training for your supervisors and managers.
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.