Stephen Oross III was a tenured faculty member at Kutztown University. He worked for the University for over 20 years as a psychology professor. In 2014, Professor Oross suffered a major heart attack and underwent double bypass surgery and the installation of a pacemaker and internal defibrillator.
Due to the COVID-19 pandemic, the University operated online for part of the Spring 2020 semester. During the 2020-2021 academic year, the University allowed faculty and staff to submit requests for flexible work arrangements. Professor Oross requested and was granted a flexible work arrangement, where he taught his full academic load, held office hours, and served on faculty committees, all remotely.
During the Fall 2020 semester, Professor Oross experienced a severe worsening of his heart condition, which resulted in a full-time medical leave of absence for the Spring 2021 semester. During this semester, Professor Oross received a heart transplant.
The University reopened for the 2021-2022 academic year. The Director of HR emailed all employees that they would need to return from their flexible work arrangements for the Fall 2021 semester. Faculty were required to teach in-person and hold office hours in-person. Mask requirements were lifted and the University did not have a vaccine requirement.
As a result of his heart transplant, Professor Oross was required to take immune-suppressing medications and his doctors believed he was at increased risk of severe illness or death from COVID-19.
Professor Oross requested to work remotely for the Fall 2021 semester. His doctor provided a note stating that Professor Oross’ immunosuppressed state and increased rates of COVID-19 infections created a serious concern about teaching in-person and being in close contact with students. Other than working remotely, Professor Oross’ doctor placed no other restrictions on Professor Oross’ ability to return to his job.
The Director of HR denied the request. Other faculty members had requested remote work accommodations for the Fall 2021 semester, but the University denied all of them. The University’s rationale for all requests was that the ability in teach in person is an essential function of the faculty position and converting classes from in-person to online would be a fundamental alteration of the University’s course offering to students, thus creating an undue hardship to the University.
At the same time, the University did not receive any documentation from the Dean or the Department Chair suggesting that providing Professor Oross remote work accommodations would provide any difficulty or added expense. In fact, the University had the existing technology to provide online classes. Professor Oross brought suit against the University alleging disability discrimination under Section 504 of the Rehabilitation Act.
To establish a prima facie case of discrimination, a plaintiff must show (1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job. If the plaintiff is able to meet these burdens, the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer. An undue hardship involves significant difficulty or expense in providing the accommodation.
Here, the Court determined that no union agreement, job description, or course description stated that teaching in-person and conducting office hours in-person were essential functions of a faculty member’s job in general and of Professor Oross’ position in particular. To the contrary, the University published marketing materials that said distance education was critical to the University’s mission. The University had a team dedicated to creating a distance education infrastructure. The University offered approximately 15% of their course offerings online in the Fall semester of 2021. Professor Oross had his certificate in online teaching from the University and had taught various online classes over the last seven years. The University offered no evidence that the quality of a class decreased due to the class being offered online. The Dean and Psychology Department Chair did not object to Professor Oross’ request. The Court therefore concluded that teaching in-person was not an essential function of Professor Oross’ job.
The Court also determined that the University did not provide any evidence of an undue hardship. The University had a framework for providing remote teaching and existing technology allowed Professor Oross to interact with his students in real time without significant difficulty or expense to the University. The Court found that student preferences that classes be in-person do not qualify as an undue burden under the Rehabilitation Act.
Finally, the Court concluded that the University’s policy of denying any request for remote work was problematic. The Court determined that it would not have been a fundamental alteration of the University’s pedagogical model to allow Professor Oross to teach four courses and office hours online for one semester. The Court also determined that the University did not make any effort, let alone a good faith effort to accommodate Professor Oross. As a result, the Court found in favor of Professor Oross.
Oross v. Kutztown Univ. (E.D. Pa. July 25, 2023, No. 21-5032).
Note: Although the Rehabilitation Act only applies to organizations that receive federal funding, the framework for a disability discrimination claim under the Americans with Disabilities Act is largely the same. A couple of important takeaways from this case are that (1) nonprofit employers should be aware that blanket denials for remote work can be legally risky—the interactive process requires a case-by-case analysis; and (2) nonprofit employers should include language in their employment agreements and/or job descriptions that certain positions are required to be in-person in order to help defend against similar claims.