Panic Street Lawyer: Reasonableness, Vintage 2013

Sunday, 03 March 2013 06:00 AM Written by  Jay Hornack

20130304wap jlawrenceoscarsA 150Last week’s PSL posed questions regarding three of the Best Picture nominees at the 2013 Academy Awards, including “Silver Linings Playbook.” Although SLP did not win that Oscar (“Argo” did), Jennifer Lawrence did win the Actress in a Leading Role Oscar for her portrayal of Tiffany in that movie.

As Ms. Lawrence was walking up the Dolby Theater stairs to accept her award, I was on Twitter reading (and sending) tweets. Unfortunately, Jennifer tripped and fell on her way to the stage. Fortunately, the people I follow were kind in their reactions (Ms. Lawrence received a standing ovation from the crowd inside the theater).

One tweet last Sunday night caught my attention:

“@attipscast Jennifer Lawrence probably wouldn’t have taken a tumble if they had a ramp instead of stairs. #UniversalDesign #TheOscars”

Upon further online review, “attipscast” is the abbreviated podcast name for “Assistive Technology: Tools In Public Schools” hosted by West Virginian Christopher Bugaj.

20130304 universaldesignsummit5 150What is this “universal design” that Mr. Bugaj says could have saved Ms. Lawrence from embarrassment at the Dolby Theater? Here is a definition that I found at the website for the Fifth Universal Design Summit (May 6-8, 2013 in St. Louis):

“Universal Design is inclusive, attractive and never obvious; it integrates features that improve function and usability for everyone. Universal Design is a superior approach to design and construction that can be achieved in homes, products, and communities.”

We have all experienced how wide bricks-and-mortar store aisles and closed-captioned television at noisy establishments benefit all, regardless of age, ability, or status in life.

The concept of universal design has received attention recently in tours of wineries. I found one blogger online who lauded the accessible bathrooms at a vineyard house in Oregon, while another author wrote about “excellent” accessible Russian River wineries.

Universal design is a broad “best practices” concept, in contrast to minimum legal accessibility standards set forth in the Americans with Disabilities Act. Places of public accommodation (such as the Dolby Theater) must make reasonable modifications in its policies, practices, and procedures under the ADA in order to afford goods, services, and facilities to individuals with disabilities. Places of employment (such as United Airlines) must likewise make reasonable accommodations under the ADA to known limitations of otherwise qualified applicants or employees with disabilities.

20130304 adausdoj 150U.S. Supreme Court precedent places the initial ADA burden on the customer of a public accommodation or the employee of an employer to prove that the requested modification or accommodation “seems reasonable on its face, i.e. ordinarily or in the run of cases” (US Airways v. Barnett, 2002). But reasonableness is not static.

For example, the Seventh Circuit U.S. Court of Appeals rejected a state of Wisconsin program assistant’s claim that failure to provide her with a home desktop computer, when a flare-up of her disability forced her to stay out of the office, was illegal discrimination. Chief Judge Richard Posner, in a decision written in 1995, held that “[n]o jury … could be permitted to stretch the concept of ‘reasonable accommodation’ so far” as to allow this employee “to work, by [herself], without supervision, at home.” But Judge Posner did make this one concession:

“This will no doubt change as communications technology advances, but is the situation today.”

And that brings us to Yahoo.

20130304wap marissamayer 150Yahoo CEO Marissa Mayer. Peter Kramer/NBC/NBC NewsWireAs was widely reported this week, Yahoo will be abolishing its work-at-home policy and ordered everyone to work in the office effective June 1, 2013. This policy change is in stark contrast with government and nonprofit statistics (and Judge Posner’s earlier prediction): 24% of employed Americans report working from home at least some hours each week and 63% percent of employers said in 2012 that they allowed employees to work remotely, up from 34% in 2005.

Most of the criticism of Yahoo’s policy change has been from the standpoint of the harm such workplace inflexibility will cause to working women. But another issue is the effect this change might have upon disabled workers.

The one labor and employment law blog which addressed this issue stated that Yahoo’s new no-telecommuting rule “may be a recipe for disaster” unless the company “has a reasonable-accommodation policy that will trump its new edict.” The blog concludes with a link to a U.S. Equal Employment Opportunity Commission “work at home” fact sheet, written by the agency in 2005.

20130304wap yahoohq 150Yahoo headquarters in Sunnyvale, Calif. Paul Sakuma/Associated PressBut is Yahoo an isolated reversal case or part of a trend in the other direction? The original New York Times article (run in the Post-Gazette) quotes chief executives who have criticisms of telecommuting and mentions specific companies (Bank of America, Zappos) which now have rules against working remotely. If enough other companies change course and eliminate work-at-home program, does such an accommodation become no longer “reasonable” under the ADA?

Personally, opponents of telecommuting are going to need to present a much stronger case to convince me that working at home, despite a beautiful label on the outside, is nothing more than corked wine on the inside.

(Top image: Jennifer Lawrence stumbles as she walks on stage during the Oscars at the Dolby Theatre on Feb. 24, 2013. Chris Pizzello/Invision/AP)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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