Are call recording apps a reasonable accommodation under the ADA?

Question

People who have Traumatic Brain Injuries (TMI) often suffer short- and long-term memory loss. A psychiatrist can test and give their professional opinion in a report, which carries a lot of weight with Social Security Disability approval. Using a recording app is a common solution for TMI victims to compensate for their severe memory problems.

A (such as AT&T or Verizon) business calls a customer living in a one-party state. The caller states the usual "this call may be recorded", and proceeds to have a lengthy conversation with the customer. The subject matter needs more discussion so the conversation must continue, however, the customer discloses that they are also recording the call.

The business caller says because the customer is recording the call, they have to hang up now. The customer states the recording is legal in their state, and is a legal accommodation under the ADA for brain-disabled people with severe brain injuries, the customer has official documentation to prove it, and if they hang up they will be in violation of the ADA and may be charged with a crime. The caller says it's company policy and hangs up. The customer has been deprived of doing verbal business with the company.

1. Is the call recording actually a legally-defensible accommodation under the ADA?
2. Does this have any legal force, such as to force the company to continue doing business over the phone when the customer discloses they are recording the call?
3. Did the caller (by hearing about the disability disability and ADA citation) discriminating under the ADA and/or commit a crime by still ending the call before the matter was resolved?
4. Is the company (by policy) discriminating under the ADA and/or committing a crime by still instructing employee calls to end all calls when told the customer is recording the call?
5. Based on your answer/opinion, how should the customer proceed?

Answer 1

Is the call recording actually a legally-defensible accommodation under the ADA?

It would be a matter for the court/jury to determine, but the company doesn't have much to stand on; by recording on their end, they are implicitly acknowledging that recording the call does not cause significant harm. Moreover, an employee of a company has much less of an expectation of privacy than a customer does.

Does this have any legal force, such as to force the company to continue doing business over the phone when the customer discloses they are recording the call?

The ADA simply says that a company can be sued for not giving reasonable accommodation. It does not, strictly speaking, "force" the company to do anything; any company that is willing to risk being sued can refuse to give the accommodation. However, if someone did file suit, they could ask the judge to issue an injunction requiring the company to give the accommodation, and if the judge grants the request, then the court can apply sanctions if the company doesn't comply.

Did the caller (by hearing about the disability disability and ADA citation) [discriminate] under the ADA

If the company applies this policy to everyone, then they aren't treating this customer differently, so they aren't engaging in direct discrimination, but the policy does have a disparate impact, so it is very likely to be found to be discrimination.

and/or commit a crime by still ending the call before the matter was resolved?

ADA is purely a matter of civil law. Violating the law is not a crime. Although if a plaintiff were able to get an injunction as discussed above, violating that injunction could result in criminal penalties.

Is the company (by policy) discriminating under the ADA and/or committing a crime by still instructing employee calls to end all calls when told the customer is recording the call?

The answer to this is largely the same as above, although it might be viable defense that they didn't intend for the policy to bar compliance with ADA requests.

Based on your answer/opinion, how should the customer proceed?

If both the customer and the company are in a one-party states, the customer can simply not disclose that they are recording. If the customer is in a one-party state, and the caller is calling from a two-party state, it's a bit murkier, but I would expect courts to consider the caller to have waived their claims under two-party consent rules if they knew, or reasonably should have known, that the customer was in a one-party state.

If the customer has already disclosed, their options are to call back and hope they get another representative and not disclose to the new one, lie to the current one and say they've turned off the recorder (somewhat dangerous, depending on what exactly the law is in their state), or pursue legal action.