Vol. 8, No. 1 Winter 2000	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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AT in the Workplace: Accommodations for Workers in Accordance with the ADA

by Laura M. Lassor

Disabilities Law Program, Community Legal Aid Society, Inc.

The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination in job application procedures, hiring, advancement or discharge, compensation, job training, and other terms, conditions, and privileges of employment. Otherwise qualified individuals with disabilities 1 are entitled to reasonable accommodations for known physical or mental limitations. The following example, based on the facts of Hoffman v. Fidelity Brokerage Services, Inc., 959 F. Supp. 452 (S.D. OH 1997), begins to illustrate the meaning of employer responsibilities under the ADA.

Patricia Hoffman is legally blind. She is able to read out of her right eye only by wearing magnifying eyeglasses and holding the material she is reading few inches from her glasses. She has worked as a service representative with the IRS for two years, using a "VISTA" computer magnification device which enlarges text and graphics up to sixteen times the original size. Hoffman contacts Fidelity about a position in its customer service department. She passes a screening interview conducted by telephone. She then submits a formal application.

At what point should the applicant reveal her need for an accommodation?

It is the responsibility of employees or job applicants to propose the appropriate accommodation-including the use of assistive technology-to allow for participation in job application procedures, training, and job performance activities. Employers should protect the privacy of applicants and employees by following the ADA regulations for dealing with medical information: "information regarding the medical condition or history of any employee shall be collected and maintained on separate forms and be treated as a confidential medical record." Once an employee requests a certain accommodation, she may have to accept an alternative accommodation proposed by her employer. If the employee "rejects a reasonable accommodation that is necessary to enable the individual to perform the essential functions of the position the individual will not be considered a qualified individual with a disability."

Can the employer ask the applicant about her disability during a job interview?

The federal regulations specifically authorize an employer to make certain pre-employment inquiries with regard to a disabled applicant.

A[n employer] may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.

The employer may make such requests of an applicant whose known disability may interfere with or prevent the performance of a job-related function, whether or not the employer routinely makes such a request of all applicants. The federal regulations state that in order to determine the appropriate reasonable accommodation, it may be necessary for the employer "to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."

Hoffman informs the interviewer that she is legally blind and that she would need modifications to her computer in order to perform the customer service job. Fidelity consults SpecialLink, a non-profit group specializing in assistive technology. SpecialLink recommends VISTA; however, a security function on the computer does not allow VISTA to function with Fidelity's in-house software.

What counts as a "reasonable accommodation"?

The ADA states that the term "reasonable accommodation" may include-

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

In general, a "reasonable accommodation" is an accommodation that does not impose an "undue hardship" on the employer. An employer who does not want to implement an AT device or other accommodation may argue that the accommodation is too expensive or too difficult to administer. Alternatively, an employer may argue that the accommodation is too disruptive to the performance of the business, or that it would fundamentally change the nature or operation of the business. If proved, these defenses could relieve the employer's obligation to provide the requested accommodation. The employee or job applicant has the burden of showing that the accommodation is objectively reasonable. If she does so, the burden of persuasion is on the employer to show that an accommodation would pose an undue hardship. An employer who is unwilling to implement the accommodation proposed by the employee or job applicant could also claim that the employee or job applicant would be unqualified to perform the "essential functions" of the job, even with the proposed accommodation. In this case, the employee must prove that she would in fact be qualified with the proposed accommodation.

Fidelity corrects the security problem and installs VISTA. Hoffman visits the Fidelity facility to assist with identifying potential accommodations. Hoffman is observed as she sits at a work station, and she is asked to scroll through typical screens on Fidelity's software, using VISTA. When asked to read information from the screen, Hoffman makes errors in identifying words and numbers. Fidelity decides that Hoffman is unable to perform the essential functions of the job because she is too slow and too inaccurate.

What are the "essential functions" of a job?

The federal regulations define "essential functions" as the fundamental job duties of the employment position. Whether a particular function is essential is a factual determination which must be made on a case-by-case basis. A court would consider the employer's judgment as to which functions are essential, written job descriptions prepared before advertising or interviewing applicants for the job, the amount of time spent on the job performing the function, and the consequences of not requiring an employee to perform the function. A court may not "second guess" an employer's business judgment, nor may it require employers to lower production standards.

If the job-related function is not essential, the employer may not exclude the applicant because of her inability to perform that function. Rather, the employer must either provide an accommodation that will enable the applicant to perform the function or transfer the function to another position.

Conclusion

Disabled employees and job applicants should engage in an open discussion with employers and prospective employers about their capabilities as well as their need for modifications. The disabled individual should be highly involved in identifying reasonable workplace accommodations. Employees and job applicants should share their knowledge about available assistive technology and help dispel employer fears about the expense of many kinds of accommodations. Individuals with disabilities should also keep in mind that Community Legal Aid Society's Disabilities Law Program is available to help them obtain appropriate assistive technology.

Footnotes

1 A qualified individual with a disability means "an individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position."

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