Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.
posted on Monday, June 15, 2009 10:32 AM by Rod Satterwhite

Can You Hear Me Now? -- Voice Recognition as Accommodation

The United States District Court for the Eastern District of Louisiana recently issued a 41-page opinion discussing ADA accommodation requirements, including whether an employer must provide voice recognition software to an employee who suffered from a loss of fine motor skills.

The plaintiff, Maria Picard (“Picard”), was a medical transcriptionist who had carpal tunnel syndrome and a degenerative neuromuscular disease.  While on FMLA leave for carpal tunnel surgery, Picard asked her supervisor for permission to use a particular brand of voice recognition software – Dragon Naturally Speaking – and for permission to either use a quiet room or to work nights and weekends.  Picard asserted that this software would allow her to transcribe without relying on her limited fine motor skills.  After consultation with Human Resources, the Hospital denied her request.  Picard later submitted two letters from physicians which opined that her condition represents a significant handicap in her profession and that she be permitted to use the Dragon software.  The Hospital concluded that at the time, the letters did not indicate a medical necessity, and because she was meeting the productivity requirements, they would not fulfill the request.  Picard later resigned and took a position at a different medical center. 

She sued her former employer, alleging discrimination and retaliation under the ADA.  The Court ultimately held that Picard produced sufficient evidence to raise a jury issue on her failure to accommodate claim based on St. Tammany’s denial of voice recognition software that could minimize painful typing.   

The Hospital initially argued that Picard could not show she is “disabled” under the ADA.  The Court, however, noted that the vast majority of federal courts to consider CMT have treated it as an ADA-covered disability, and held that although an inability to type, standing alone, is insufficient to show that a plaintiff is disabled, here Picard “claims to have great difficulty holding heavy objects, doing household chores, typing, writing, turning pages, tearing pieces of paper, using a stapler, and doing ‘anything with fine motor skills.’”  The Court determined that based on this evidence, a reasonable jury could conclude that Picard was substantially limited in the major life activity of performing manual tasks. 

The Hospital next argued that requiring the purchase of voice recognition software, and the other requests, were not reasonable accommodations.  The Court, however, found that there was “nothing facially unreasonable about [the] request to have a software program installed on her computer and to be permitted to work in quiet conditions.  Those changes are precisely the sort of accommodations that Congress contemplated when it passed the ADA.”  The Hospital argued that it did accommodate Picard in a number of ways including its purchase of Dictaphone ExSpeech software.  However, although Picard briefly used this software, she claimed the most commonly used keystrokes were too painful because of the carpal tunnel surgery.  Additionally, although the Hospital granted Picard a leave of absence for her carpal tunnel surgery, the surgery did not cure her CMT, or otherwise address her typing limitation. 

Two important lessons flow from this case.  First, these types of accommodation-denial claims are likely to increase for employers in light of the newly enacted ADA Amendments Act, which significantly broadened the scope of “who is disabled” under the Act.  Second, it highlights the importance for employers to engage in the interactive process with employees.  Here, it appears the hospital may have assumed that providing one brand of software eliminated their obligation to consider a different one.  A more extensive dialogue with the employee may have revealed why one was better suited to the task than the other.  Based on the opinion, it’s clear that the Court understood and bought into the plaintiff’s argument on that front.

Comments

# re: Can You Hear Me Now? -- Voice Recognition as Accommodation

Tuesday, June 16, 2009 6:15 PM by Darrell Shandrow
Even here in the 21st century, more often than not, many people continue to ignore the needs of people with disabilities or simply do not take us seriously. I'm glad to see that the court found in favor of the plaintiff here because the victory should serve as an object lesson in the consequences that can follow from a failure to listen to us. I think the entire lawsuit and associated hassle could have been avoided entirely had the hospital taken this woman's needs into account in a sincere manner. The lesson, again, is, ding, ding, ding, listen to us!!!