This letter has been published as it was written and signed. As a result it has not been edited by The Sun to conform with Sun Style. This is a letter from Cornell University Chapter of the American Association of University Professors to Cornell University President Martha Pollack. The letter is written by Professor Risa Lieberwitz, the President of the Cornell University Chapter of the AAUP and a Professor of Labor and Employment Law in the School of Industrial & Labor Relations. The letter expresses the Cornell AAUP Chapter’s deep concerns about the Cornell Administration’s recent policies related to teaching and learning this semester. These concerns include the Cornell Administration’s failure to consult with the Faculty Senate; failure to meet its ethical obligation to provide safe work environments that respond to faculty, staff and student needs with care and respect; and failure to meet even minimum legal requirements on health-related accommodations. The letter also makes recommendations about these issues.
Dear President Pollack:
This letter from the Cornell University Chapter of the AAUP expresses our deep concerns about the Cornell Administration’s policy announcements on August 11 and 13, 2021, limiting accommodations regarding in-person teaching in Fall semester 2021. We also make recommendations for changes that should be made to these policies and the process for policy-making on issues of such great import to faculty, staff, and students.
On August 11, 2021, Provost Kotlikoff and Vice Provost Nishii announced a new policy severely restricting health-related accommodations for faculty and instructional staff, stating:
[T]he university will not approve requests, including those premised on the need for a disability accommodation, to substitute remote teaching for normal in-person instruction.
On August 13, following widespread condemnation of this policy by faculty and in the press, Provost Kotlikoff confirmed that this policy will stand, but announced an additional policy:
Individual academic and administrative units at Cornell may, at Deans’ and unit leaders’ discretion, choose to offer additional options for faculty and staff with extraordinary circumstances that prevent them from teaching and working in person this fall. Those options may include a reduction in work hours, a temporary reallocation of teaching duties, and/or short term or partial remote instruction.
The Cornell Administration’s policy announcements came as a shock to the Cornell community, given the rigid and inhumane nature of the University policy, the unclear and partial nature of the policy on deans’ discretion, and the Administration’s failure to consult with governance bodies, including the Faculty Senate.
Even after Cornell’s shift to “COVID-19 Alert Level Yellow” on August 27, Provost Kotlikoff’s email to the faculty did not reverse the University policy of refusing to approve requests for remote teaching for the Fall semester 2021. While stating that “in some instances” faculty have been “allow[ed]…to teach remotely when doing so best serves both faculty and student interests,” Provost Kotlikoff did not present this as a change in the University policy announced on August 11. Nor did Provost Kotlikoff explain the standards for such decisions, including whether remote teaching could be approved for the full semester. Nor did Provost Kotlikoff’s email provide evidence that adequate measures have been taken to ensure safety in overcrowded classrooms where no social distancing is possible.
The Cornell Administration has stated repeatedly that it appreciates the faculty and staff dedication to their work during the pandemic and that employees’ welfare is central to Cornell’s decision-making. These statements ring hollow with the University’s current response to faculty, staff, and student health related needs. Cornell’s policies violate its ethical obligation to provide safe and healthy work environments that respond to faculty, staff, and student needs with care and respect. Not only do the policies fall far below such ethical standards, these new policies fail to meet even the minimum legal requirements to provide reasonable accommodations under the federal Americans With Disabilities Act and the New York State Human Rights Law.
We call on the Cornell Administration to take the following actions:
• Reverse the University policy of refusing to approve requests for remote teaching as a reasonable accommodation for individuals with disabilities.1
• Adopt University policy that provides a broad and flexible approach for accommodating faculty, staff, and student health-related concerns during the ongoing conditions of the Covid-19 pandemic.
• Engage in good faith, full, and open consultation with the Faculty Senate and other governance bodies to develop policies that reasonably accommodate faculty, student, and staff needs for a safe and healthy teaching and learning environment.
Through good faith consultation with the Faculty Senate and other governance bodies, the policy-making process will include the expertise and experience of faculty, staff, and students. The governance process can consider the realities of in-person instruction during the uncertainties and dangers of the pandemic, including the Covid-19 Delta variant and the increased risk of infection that may be associated with waning vaccine immunity. Under non-pandemic conditions, most faculty would prefer teaching in person, given the benefits of interacting with students in the classroom. However, these benefits of in-person instruction are compromised with all instructors and students wearing masks, which will interfere with their ability to speak and be understood. Faculty and students also face the problem of classrooms that are too small for the enrollment and for maintaining social distancing. Under these conditions of the ongoing pandemic, instructors and/or students with increased health risks for themselves or their families should be provided with reasonable accommodations, including the choice of remote teaching.
The following discussion provides greater detail on these points:
1. Cornell violated its duty to consult with the Faculty Senate about issues of concern to teaching, pedagogy, and faculty health and safety.
Under the Cornell University By-laws, Art. XIII, sec. 2, the Faculty Senate has the right to consider “questions of educational policy which concern more than one college, school or separate academic unit, or are general in nature.” Yet, the Cornell Administration failed to consult with the Faculty Senate about important issues of teaching, health, and safety in reopening the campus in Fall 2021. The Administration’s unilateral adoption of its policies announced on August 11 and 13 has caused a high level of confusion, stress, and anxiety for faculty, staff and students who were stunned by the new policies and were left fearing for their health and welfare.
Had the Cornell Administration respected shared governance by consulting with the Faculty Senate, the Cornell faculty would have shared their expertise and experience on issues of pedagogy, disability and other health-related social, ethical and legal issues. Drawing on the collective knowledge of the faculty
would surely have led to policy-making that responds more fairly and accurately to the needs and concerns of faculty, staff, and students, all of whom are essential to maintaining the institutional strength and integrity of Cornell.
A recent example of successful consultation on these issues comes from Northern Illinois University, where the faculty union and the University administration reached agreement on policies that provide choices for teaching in person and remotely. As one expert on higher education has noted, collective
bargaining and shared governance can be used to “successfully transition to remote work and establish emergency contingency plans…. A collaborative approach through bargaining and labor-management discussions on reopening issues is the best means for protecting administrators, faculty, staff and students and avoiding litigation under federal and state health and safety laws — particularly in light of the existence of the virus variant and changing federal and state guidance.”2
Consultation through shared governance at Cornell would enable the Administration and the Faculty Senate to develop policies that respond to the needs and concerns of the faculty, staff, and students for safe teaching and learning environments. The Administration should consult, as well, with other governance bodies, including the University Assembly, the Employee Assembly, and the Graduate and Professional Student Assembly.
2. Cornell’s policies violate its ethical obligations to respond with care and respect to faculty, staff, and student health-related needs for a safe working environment.
The Cornell Administration’s current policies violate Cornell’s ethical obligations, which should set a higher standard than compliance with minimum legal requirements. Cornell has an ethical obligation to provide a safe working environment for all faculty, staff, and students, and to respect their individual choices about whether it is most appropriate to work on-campus and/or remotely. An ethical response by Cornell would extend to health concerns of faculty, staff, and students and their families, as well as the cascading effects of the conditions during the pandemic, such as difficulties finding childcare if schools are closed temporarily. In his email of August 13, Provost Kotlikoff stated, “Cornell cares deeply about our faculty and staff, who have demonstrated tremendous resiliency throughout the COVID-19 pandemic.” The care and effort given by faculty and staff to maintain the high quality of education at Cornell should be reciprocated by Cornell’s care and effort toward faculty and staff with health care and related needs for themselves and their families.
Provost Kotlikoff’s August 13th message also stated, “We remain steadfastly committed to offering a wide range of individualized accommodations as we resume in-person operations this fall…. The university has a long history of working closely and compassionately with faculty and staff seeking workplace accommodations for disability, personal, and family reasons.” This message came only after the negative response by faculty and staff and the negative press coverage regarding Cornell’s August 11 announcement. Further, the August 13 message left in place the August 11 announcement of University policy rejecting any requests for remote teaching, and provided only a few examples of deans’ discretion to be exercised in “extraordinary circumstances.” These policies ignore the reality that the entire community continues to face “extraordinary circumstances” of the known and as yet unknown conditions of the ongoing pandemic, which requires Cornell to respond to faculty, staff, and students at the highest level of care and ethical concern.
3. Cornell’s policies violate its legal obligations under the federal Americans With Disabilities Act and the NY State Human Rights Law to provide reasonable accommodations that enable individuals with a disability to carry out the essential functions of their job.
Not only do Cornell’s policies fall far below ethical standards, but they also fail to meet even the minimum legal requirements under federal and state law. The federal Americans With Disabilities Act3 (ADA) and the New York State Human Rights Law (NYSHRL)4require employers to provide reasonable accommodations that enable individuals with a disability to carry out the essential functions of their job.
Cornell’s policies violate its legal obligations under the ADA and the NYSHRL. Under the new Cornell policy, announced on August 11, the University will not even consider faculty requests to teach remotely, including requests based on an individual’s disability. Nor does the Cornell Administration meet statutory requirements with Provost Kotlikoff’s August 13th announcement that college/school deans have some discretion to grant temporary, short-term, or partial accommodations in “extraordinary circumstances.”
The Cornell Administration seeks to justify these policies by asserting that “normal in-person teaching” is an essential job duty, which cannot be fulfilled through remote teaching. There are multiple legal problems with this reasoning:
• Under the federal Americans With Disabilities Act and the NY State Human Rights Law, individuals with disabilities have the right to reasonable accommodations to carry out the essential functions of their job.
Faculty members’ essential job functions include teaching, which can be carried out in various ways. As the past three semesters have shown, Cornell does not consider in-person teaching to be essential, as Cornell moved to remote teaching as a reasonable accommodation that would enable instruction to continue. In Spring semester 2020, all faculty were required to teach remotely; in Fall 2020 and Spring 2021, faculty chose whether to teach in person or to teach remotely. With this approach, Cornell recognized that the essential function of teaching could be carried out either in person or through remote teaching. Further, Cornell charged full tuition for remote instruction, later denying, as a defendant in litigation, that it ever promised in-person instruction. Espejo v. Cornell University, 2021 U.S. Dist. LEXIS 39227, at 9 (N.D. NY Mar. 3, 2021).
The use of the term “normal” to describe job duties has been identified as an ableist description that views individuals with disabilities as being “abnormal.” Even apart from this concern, Cornell’s description of the Fall semester 2021 as returning to “normal in-person instruction” is not accurate. Under non-pandemic conditions, most faculty would prefer teaching in person, given the benefits of interacting with students in the classroom. However, these benefits are compromised under current in-person instruction. All instructors and students will be required to wear masks, which will interfere with everyone’s ability to speak, to be heard, to communicate through facial expressions, and even to recognize each other. Given these realities, for instructors and/or students with disabilities, remote teaching through Zoom could provide a reasonable accommodation that creates a safe and accessible teaching and learning environment. Health conditions where remote classes could be a reasonable accommodation include conditions related to hearing, autoimmune conditions, and mental health conditions exacerbated by the pandemic. Cornell’s stated commitment to “follow the science” also requires reasonable accommodations, as we learn more about the dangers of the Covid-19 Delta variant and the increased health risks of infection that may be associated with waning vaccine immunity.
• Under the federal Americans With Disabilities Act and the NY State Human Rights Law, employers should engage in a good faith interactive dialogue with an individual with a disability who requests a reasonable accommodation.
Regulations by the federal Equal Employment Opportunity Commission (EEOC) and judicial decisions emphasize the importance of an interactive process between an employer and employee to explore the reasonable accommodations that may be available for an individual with a disability to perform the essential functions of their job. “Under the…ADA, an employee’s notification that she has a disability and request for an accommodation triggers an ‘interactive process’—a ‘flexible give-and-take between employer and employee so that together they can determine what accommodation would enable the employee to continue working’…. Both parties are supposed to engage in this interactive process in good faith.” 5
The Cornell Administration violated this ADA obligation by instituting an a priori University policy that no instructor will be permitted to teach remotely, regardless of the instructor’s medical condition. Cornell’s rigidity is the opposite of the good faith interactive dialogue contemplated by the law. Further, the Cornell Administration’s wholesale rejection of remote teaching as a reasonable accommodation is completely at odds with Cornell’s practice during the pandemic of requiring remote instruction or giving faculty the choice to engage in remote teaching to fulfill the essential function of teaching.
One of the benefits of the good faith interactive process is that employers and employees can work together find reasonable accommodations that respond to the individual employee’s needs. In the uncertainties of this ongoing pandemic, employees may need to request accommodations as conditions change. As President Pollack has stated, “The most predictable thing about this pandemic is its unpredictability.” However, Cornell’s a priori rejection of accommodations such as remote teaching removes the flexibility needed to respond appropriately to employee needs in uncertain times.
Provost Kotlikoff’s announcement on the evening of August 13 does not meet the legal requirements of the ADA or the NYSHRL. The August 13 announcement does not change the University policy of refusing to grant an accommodation of remote teaching for any medical condition. Provost Kotlikoff’s statement that deans have “some discretion” to provide short-term or partial accommodations for “extraordinary cases” appears to open the door to some accommodations. However, this also opens the door to ad hoc and potentially arbitrary decision making by deans, given the lack of consistent definitions, standards, or evaluation process to be used by deans across colleges and schools. The only certainty seems to be that each college or school dean will use different standards and processes, leading to a lack of legally compliant or equitable decisions.
• Under the federal Americans With Disabilities Act and the NY State Human Rights Law, employers must provide reasonable accommodations unless they would be an undue hardship for the employer.
An employer is not legally obligated to provide a reasonable accommodation that would cause an “undue hardship” to the employer. However, an employer may not simply make general assertions of undue hardship. Rather, employers – including Cornell – must make an individualized assessment and rely on evidence that a specific reasonable accommodation would cause significant difficulty or expense.6
The EEOC states, “An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship.” The experience of remote teaching since Spring 2020 shows that there is no evidence of undue hardship to Cornell, financial or otherwise. The technology for remote teaching is already in place and faculty have adapted to teaching courses on Zoom. That Cornell would prefer that all teaching is done in person is not evidence of undue hardship in providing reasonable accommodations to faculty who can fulfill their teaching duties through remote teaching.
Thank you for your consideration of our concerns and recommendations. We urge the Cornell Administration to take immediate actions to rectify the serious problems created by the unilateral adoption of policies limiting accommodations regarding in-person teaching. As we have recommended, these actions include reversing the University policy of refusing to approve requests for remote teaching as a reasonable accommodation for individuals with disabilities; adopting a broad and flexible approach to accommodations that respond to faculty, staff, and student health-related concerns; and engaging in good faith, full, and open consultation with the Faculty Senate and other governance bodies to develop policies for in-person and remote teaching that respond to faculty, student, and staff needs for a safe and healthy teaching and learning environment.
We look forward to your reply.
With best regards,
Risa Lieberwitz,
President, Cornell University Chapter of the American Association of University Professors (AAUP)
1 We note that this rigid policy stands in contrast with other universities’ policies, including Stanford University, University of Pennsylvania, Duke University, UC Berkeley, University of Chicago, and Georgetown University.
2 Colleen Flaherty, “When to Go Remote,” Inside Higher Ed (Aug. 20, 2021) (quoting William Herbert, Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York) https://www.insidehighered.com/news/2021/08/20/faculty-and administration-decide-when-go-remote
3 42 U.S.C. §§12101-12213.
4 N.Y. Exec. Law § 296(1)-(22).
5 Matos v. Devos, 317 F. Supp. 3d 489, 496-97 (D. D.C. 2018), quoting, Ward v. McDonald, 762 F.3d 24, 32, 412 U.S. App. D.C. 24 (D.C. Cir. 2014). See also, 29 C.F.R. § 1630.2(o)(3).
6 EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue hardship-under-ada#N_113; See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996).
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