The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities, but an increase in enforcement activity indicates there is still work to do.
In 2016, Miami University of Ohio ended litigation with the Department of Justice (DOJ) over the accessibility of its student-facing products. The agreement included signature DOJ requirements, such as meeting web accessibility guidelines, procuring accessible web technology, and mandating the University “meet with every student who has a disability for which he or she requires assistive technologies or curricular materials in alternative formats, and their instructors, every semester to develop an accessibility plan.”
The case itself is not unique given the scope of the DOJ’s enforcement mandate. The complaint was originally filed by one student and later supplemented by the National Federation of the Blind, which the DOJ followed. But Federal enforcement agencies regularly intervene in such complaints to ensure comprehensive relief for affected persons. What is spectacular is the pace and magnitude in which these complaints are being filed.
Enforcement activity in the US
In 2020, Automatic Data Processing, Inc. (ADP), was sued by Lighthouse for the Blind and Visually Impaired of San Francisco (Lighthouse-SF) for failing to make its software accessible to assistive technology used by Lighthouse-SF employees. Lighthouse-SF alleged that ADP ignored requests to accommodate assistive technology used by its employees, such as screen readers and screen magnification software, and “provided only hollow assurances and failed to resolve them.”
In the fall of 2020, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against HonorHealth, a local non-profit healthcare organization in Scottsdale, Arizona, for failing “to provide reasonable accommodations to employees with disabilities.” The EEOC’s press release on the lawsuit also alleged that HonorHealth “fired employees or forced them to quit because of their disabilities or because they needed accommodations” and that employees were denied reasonable accommodations to their work environment.
In February 2021 the United States Court of Appeals for the First Circuit upheld $500,000 of a $650,000 award for damages against Ameriport, LLC and Ocean Properties, Ltd., in a case from 2014 in which the plaintiff alleged the company refused to install a push-button automatic door opener as an accommodation. An accommodation that may have cost as little as $1,000.00.
Under Title I of the ADA, a reasonable accommodation is a modification or adjustment to a job, work environment, or hiring process, which enable a person with a disability to have equal opportunity to apply, obtain, and perform a job to the same extent as those without disabilities. Title II and III of the ADA also require public entities and places of public accommodation to make reasonable modifications to policies, practices, or procedures to avoid discrimination.
This means that reasonable accommodation impacts the employer-employee relationship as well as the entity’s relationship with its customers and community. The process in which these considerations must be made are different, but the principle is the same; persons with disabilities cannot be excluded from participation in a program, service, or activity based on their disability.
In the last decade, the availability and affordability of accommodations once considered cost-prohibitive have made denying requests difficult to defend. In general, accommodations and modifications must be considered, and primary consideration must be given to the person requesting the accommodation unless the organization can demonstrate undue burden, which is increasingly difficult to do.
Reasonable accommodation enforcement activities show no signs of abatement by agencies such as the EEOC and DOJ. While in 2019 companies continued to struggle to grasp and implement successful inclusion and accessibility strategies that are more commonly expected; in 2020 COVID-19 and remote work tested and exhausted real and imagined constraints further.
Expect this type of enforcement activity to continue.
Steps you can take now
Organizations should be proactive and identify what the requirements are regarding reasonable accommodation by utilizing resources such as the Department of Justice’s ADA website, www.ada.gov, and the EEOC’s database of resources, www.eeoc.gov. Understanding the resources and ensuring staff understands how to utilize the tools available to them is critical.
Understand your obligations and the types of accommodations that can be made
Ensure your organization is aware of its requirements regarding reasonable accommodations. In regards to employment, organizations can start with ensuring their employment program, job postings, and hiring processes, are accessible and compliant. The EEOC has provided a list of accommodation types an employer may need to provide in connection with the work environment, including but not limited to:
- Modifying facilities for accessibilities
- Restructuring jobs or reassigning non-essential functions
- Part-time or modified work schedules
- Acquiring or modifying equipment and assistive technology
- Changing tests, training materials, or policies
- Providing qualified readers or interpreters, and
- Reassignment to a vacant position
Understanding what is an undue hardship and a "reasonable accommodation" is also important. According to the EEOC, an accommodation is "reasonable" if it appears to be "feasible" or "plausible." The accommodation must also be effective and enable the employee to perform the essential functions of their job or have an equal opportunity to apply for and be considered for employment. Learn more: When Do Reasonable Accommodations for Employees with Disabilities Become Undue Hardships?
Designate staff to ensure compliance
Organizational leadership should also identify persons within the organization to be responsible for the organization’s accommodation requirements and provide support and access to continuing education and training on the topic to ensure compliance. Without an established accommodation program and dedicated staff to ensure continued management of the process, accommodation requests may be ignored or never considered.
Organizational leadership should also strongly consider developing an accessibility charter that clearly defines their commitment to accessibility and the roles and responsibilities of those assigned to oversee accessibility. Finally, officially adopting organizational guidelines, such as the Web Content Accessibility Guidelines or other technology standards such as accessible kiosks standards, will also improve compliance and create standardized processes for identifying accessible solutions for employees and customers.