Trainings & Events
2008 Accessible Technology On-line Seminar Series
2008 Legal Issues Webinar
ADA Audio Conference
National Center on Accessibility Coordinator Training
Eighth Annual Multiple Perspectives on Access, Inclusion & Disability: Looking Back & Thinking Ahead
National ADA Symposium & EXPO
News from the Federal Agencies
Access Board
The U.S. Access Board announced that a series of videos on sidewalk accessibility could now be viewed on the Access Board website. Accessible Sidewalks is a four-part video developed by the Board to illustrate issues and considerations in the design of sidewalks. The series covers access for pedestrians with mobility impairments, including those who use wheelchairs, and pedestrians who are blind or have low vision. The videos are open captioned and incorporate running descriptive audio. View the Videos at http://www.access-board.gov/news/sidewalk-videos.htm
The U.S. Access Board examined airport terminal accessibility as part of an ongoing program to explore access issues in order to improve compliance and to promote effective design during its November meeting. The Board reported that a recent consumer survey indicated that 80% of travelers with disabilities experience issues with access at airports. The Board looked at accessibility issues around self service kiosks, security checkpoints and screening procedures, providing access to audible information and jet ramps. The Board plans to examine other access issues at airports, including parking, passenger drop-offs, ticket areas and counters, and baggage claim areas. Read more about Airport Access at http://www.access-board.gov/news/airport-meeting.htm
The U.S. Access Board announced that President Bush appointed three new members to the Board. The new members are John Gunnar Box of Corona, CA, Ronald J. Gardner of Salt Lake City, UT, and Neil K. Melick of West Palm Beach, FL. The President also reappointed three current members, Douglas Anderson, Wheaton, IL, James R. Harding II, Tallahassee, FL, and Gary L. Talbot Foxboro, MA. Read more about the Board Appointments at http://www.access-board.gov/news/members07.htm
Department of Justice
The U.S. Department of Justice has file suit against the City of Colorado Springs police department alleging retaliation against Lance Lazoff. The suit alleges that the department failed to promote Lazoff to sergeant in retaliation for his association and assistance to his wife who successfully pursued a class action lawsuit against the department under the Americans with Disabilities Act. Read More about the Lawsuit at http://www.usdoj.gov/opa/pr/2007/December/07_crt_985.html
The U.S. Department of Justice has posted to its web site, Enforcing the ADA, A Status Report. The new Status Report covers activities of the Justice Department from July-September 2007. The report includes information about Justice Department litigation, settlement agreements, mediation efforts and new technical assistance materials. Read More about the Report at http://www.ada.gov/statrpt.htm#Anchor-49575
Great Lakes In Focus
Job Descriptions and Identifying Essential Functions under the ADA
The Americans with Disabilities Act (ADA) does not require covered employers to have written job descriptions for positions with in their organization. However, effectively written job descriptions can assist employers during the recruitment, interviewing and reasonable accommodation processes. Job descriptions are written statements that describe the duties, responsibilities, required qualifications, and reporting relationships of a job.
The ADA prohibits covered employers from discriminating against qualified individuals with disabilities in all aspects of the employment process. An employer can hire, fire or promote the most qualified individual that he/she chooses. The ADA prohibits that employer from making that decision on the basis of disability.
Employers can avoid discriminating against individuals with disabilities during recruitment, on applications and during interviews by having job descriptions that clearly define the essential functions and duties of a position. Job descriptions can also assist an employer during the reasonable accommodation process. Employers are never required to eliminate an essential function as a reasonable accommodation but understanding the essential functions will assist an employer in identifying alternative ways the function may be performed.
In order to write effective job descriptions an employer must identify the essential functions of the position. The Equal Employment Opportunity Commission’s guidances and technical assistance materials on the ADA provide information on how to accurately identify the essential functions of a position.
It is the employer that determines the essential functions of a position. It is the employer’s judgment on the purpose of the position. Factors to consider when determining the essential functions of a position are:
- The position exists to perform the function.
- There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
- A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.
- Whether employees in the position actually are required to perform the function
- Whether removing that function would fundamentally change the job
In identifying an essential function an employer should focus on the purpose of the function and the result to be accomplished. Although it may be essential that a function be performed, it may not be essential that it be performed in a particular way. A job description should focus on the outcome desired rather than the process by which the function is done.
For example, a job that requires objects to be moved from one place to another should be stated as "the ability to lift 50 pound cartons to a height of 3-4 feet and load them into trucks, rather than the ability to manually lift and load 50 pound cartons".
Elements of a job description include job title, job summary, essential functions, nonessential functions, and job specifications (i.e.Education, Physical Demands, Mental Demands, and Working Conditions).
The below resources provide additional information
In Focus Suggested Resources
The below information comes from the Equal Employment Opportunity Commission’s Title I Technical Assistance Manual. You will find additional examples and suggestions on how to best identify essential functions.
(TITLE I) OF THE AMERICANS WITH DISABILITIES ACT Technical Assistance Manual
2.3(a) Identifying the Essential Functions of a Job
Sometimes it is necessary to identify the essential functions of a job in order to know whether an individual with a disability is "qualified" to do the job. The regulations provide guidance on identifying the essential functions of the job. The first consideration is whether employees in the position actually are required to perform the function.
For example: A job announcement or job description for a secretary or receptionist may state that typing is a function of the job. If, in fact, the employer has never or seldom required an employee in that position to type, this could not be considered an essential function.
If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job.
The regulations list several reasons why a function could be considered essential:
1. The position exists to perform the function.
- A person is hired to proofread documents. The ability to proofread accurately is an essential function, because this is the reason that this position exists.
- A company advertises a position for a "floating" supervisor to substitute when regular supervisors on the day, night, and graveyard shifts are absent. The only reason this position exists is to have someone who can work on any of the three shifts in place of an absent supervisor. Therefore, the ability to work at any time of day is an essential function of the job.
2. There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
This may be a factor because there are only a few other employees, or because of fluctuating demands of a business operation.
For example: It may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks. Or, a company with a large workforce may have periods of very heavy labor-intensive activity alternating with less active periods. The heavy work flow during peak periods may make performance of each function essential, and limit an employer's flexibility to reassign a particular function.
3. A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.
For example, A company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in the Japanese language. Fluent communication in the Japanese language is an essential function of the job.
The regulation also lists several types of evidence to be considered in determining whether a function is essential. This list is not all-inclusive, and factors not on the list may be equally important as evidence. Evidence to be considered includes:
a. The employer's judgment
An employer's judgment as to which functions are essential is important evidence. However, the legislative history of the ADA indicates that Congress did not intend that this should be the only evidence, or that it should be the prevailing evidence. Rather, the employer's judgment is a factor to be considered along with other relevant evidence.
However, the consideration of various kinds of evidence to determine which functions are essential does not mean that an employer will be second-guessed on production standards, setting the quality or quantity of work that must be performed by a person holding a job, or be required to set lower standards for the job.
For example: If an employer requires its typists to be able to accurately type 75 words per minute, the employer is not required to show that such speed and accuracy are "essential" to a job or that less accuracy or speed would not be adequate. Similarly, if a hotel requires its housekeepers to thoroughly clean 16 rooms per day, it does not have to justify this standard as "essential." However, in each case, if a person with a disability is disqualified by such a standard, the employer should be prepared to show that it does in fact require employees to perform at this level, that these are not merely paper requirements and that the standard was not established for a discriminatory reason.
b. A written job description prepared before advertising or interviewing applicants for a job
The ADA does not require an employer to develop or maintain job descriptions. A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence.
A written job description may state that an employee performs a certain essential function. The job description will be evidence that the function is essential, but if individuals currently performing the job do not in fact perform this function, or perform it very infrequently, a review of the actual work performed will be more relevant evidence than the job description.
If an employer uses written job descriptions, the ADA does not require that they be limited to a description of essential functions or that "essential functions" be identified. However, if an employer wishes to use a job description as evidence of essential functions, it should in some way identify those functions that the employer believes to be important in accomplishing the purpose of the job.
If an employer uses written job descriptions, they should be reviewed to be sure that they accurately reflect the actual functions of the current job. Job descriptions written years ago frequently are inaccurate.
For example: A written job description may state that an employee reads temperature and pressure gauges and adjusts machine controls to reflect these readings. The job description will be evidence that these functions are essential. However, if this job description is not up-to-date, and in fact temperature and pressure are now determined automatically, the machine is controlled by a computer and the current employee does not perform the stated functions or does so very infrequently, a review of actual work performed will be more relevant evidence of what the job requires.
In identifying an essential function to determine if an individual with a disability is qualified, the employer should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed. An individual with a disability may be qualified to perform the function if an accommodation would enable this person to perform the job in a different way, and the accommodation does not impose an undue hardship. Although it may be essential that a function be performed, frequently it is not essential that it be performed in a particular way.
For example: In a job requiring use of a computer, the essential function is the ability to access, input, and retrieve information from the computer. It is not "essential" that a person in this job enter information manually, or visually read the information on the computer screen. Adaptive devices or computer software can enable a person without arms or a person with impaired vision to perform the essential functions of the job.
Similarly, an essential function of a job on a loading dock may be to move heavy packages from the dock to a storage room, rather than to lift and carry packages from the dock to the storage room.
(See also discussion of Job Analysis and Essential Functions of a Job, below).
If the employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job; a job description prepared after an alleged discriminatory action will not be considered as evidence.
c. The amount of time spent performing the function
For example: If an employee spends most of the time or a majority of the time operating one machine, this would be evidence that operating this machine was an essential function.
d. The consequences of not requiring a person in this job to perform a function
Sometimes a function that is performed infrequently may be essential because there will be serious consequences if it is not performed.
- An airline pilot spends only a few minutes of a flight landing a plane, but landing the plane is an essential function because of the very serious consequences if the pilot could not perform this function.
- A firefighter may only occasionally have to carry a heavy person from a burning building, but being able to perform this function would be essential to the firefighter's job.
- A clerical worker may spend only a few minutes a day answering the telephones, but this could be an essential function if no one else is available to answer the phones at that time, and business calls would go unanswered.
e. The terms of a collective bargaining agreement
Where a collective bargaining agreement lists duties to be performed in particular jobs, the terms of the agreement may provide evidence of essential functions. However, like a position description, the agreement would be considered along with other evidence, such as the actual duties performed by people in these jobs.
f. Work experience of people who have performed a job in the past and work experience of people who currently perform similar jobs
The work experience of previous employees in a job and the experience of current employees in similar jobs provide pragmatic evidence of actual duties performed. The employer should consult such employees and observe their work operations to identify essential job functions, since the tasks actually performed provide significant evidence of these functions.
g. Other relevant factors
The nature of the work operation and the employer's organizational structure may be factors in determining whether a function is essential.
For example:
- A particular manufacturing facility receives large orders for its product intermittently. These orders must be filled under very tight deadlines. To meet these deadlines, it is necessary that each production worker be able to perform a variety of different tasks with different requirements. All of these tasks are essential functions for a production worker at that facility. However, another facility that receives orders on a continuous basis finds it most efficient to organize an assembly line process, in which each production worker repeatedly performs one major task. At this facility, this single task may be the only essential function of the production worker's job.
- An employer may structure production operations to be carried out by a "team" of workers. Each worker performs a different function, but every worker is required, on a rotating basis, to perform each different function. In this situation, all the functions may be considered to be essential for the job, rather than the function that any one worker performs at a particular time.
Job Accommodation Network
Job Applicants and the Americans with Disabilities Act
ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT
The Workplace Rehabilitation Engineering and Research Center (RERC)
The Docket
The U.S. Supreme Court has dismissed and cancelled oral arguments in a case involving the issue of reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA). The Court had agreed late last year to hear the case, Huber v. Wal-Mart. The case was dismissed because the parties had reached a settlement agreement.
Huber had requested to be reassigned to a vacant position as a reasonable accommodation because she was no longer able to perform her current position. Wal-Mart placed a more qualified individual in the vacant position stating that the reasonable accommodation obligations of the ADA only required that Huber be considered for the position if she was qualified. Since Wal-Mart had a more qualified individual for the position they argued that they were not required to place Huber in the position as a reasonable accommodation.
There currently is a split in the federal circuit courts on the issue of reassignment. The ADA states that reasonable accommodation may include reassignment to a vacant position for which the employee is qualified. The 7th and 8th Circuits rulings on the issue state reassignment as a reasonable accommodation is not a right. The 10th Circuit and the Equal Employment Opportunity Commission hold that the qualified disabled employee should automatically be awarded the vacant position, regardless of whether other, better qualified applicants are available.
From the ADA Expert
Question: My brother was stopped by our City's police department for a traffic violation yesterday. He is deaf and communicates best using a sign language interpreter. What are the obligations' of the police in this situation under the ADA? What would have been the obligation's of the police had they arrested my brother?
Answer: The Great Lakes Center provides informal technical guidance, training and material on the Americans with Disabilities Act (ADA). This Question and Answer is informal guidance and does not constitute a legal determination of an individuals or entities right's or responsibilities under the ADA.
The ADA prohibits covered entities from discriminating on the basis of disability against qualified individuals with disabilities. State and local government entities are required by Title II of the ADA to insure that all programs, services and activities are accessible to and usable by individuals with disabilities. As a part of local government a City police department is covered by the requirements of Title II of the ADA.
Police departments have an obligation to insure that individuals with disabilities have the same level of access to information that individuals with out disabilities have. That includes both written information as well as orally communicated information. The ADA requires the provision of auxiliary aids and services in order to insure that effective communication is achieved with individuals with disabilities.
Examples of auxiliary aids and services for individuals that are deaf and hearing impaired include a qualified interpreter, closed or open captioning, writing notes, using a TTY or TDD, or using a computer terminal. This is not an exhaustive list of auxiliary aids and services for individuals that are deaf and hearing impaired. Which auxiliary aid or service is needed to achieve effective communication will depend on several factors. This would include the complexity of the information being communicated as well as the duration of the communication.
Covered entities should consult with an individual when possible in order to determine what will be necessary to provide effective communication. In the situation where your brother was stopped for a minor traffic violation it is possible that effective communication could be achieved by writing notes back and forth. The duration and the complexity of such an exchange of information may allow effective communication with out the use of a qualified interpreter.
However, if your brother had been arrested and taken to the police station for questioning it is likely that due to the length and complexity of the questioning and questions that a qualified interpreter would be needed. Additionally, if individuals detained by the police have an opportunity to make a call then the police would be required to have a way for a deaf or hearing impaired individual to make a call. This likely would require the use of a TTY or TDD.
In situations where a family member or friend is present the police can't require that the family member or friend serve as the interpreter. It may be difficult for a family member or friend to serve as an effective interpreter due to the relationship with the individual. There may be situations where the friend or family member could serve as interpreter, for instance if an individual is asking for directions from a police officer but the police can't require the family member or friend to serve as interpreter.
The determination on what auxiliary aid or service will be provided ultimately is made by the covered entity. What is provided however must provide effective communication. Entities are also not required to provide any auxiliary aid or service that would result in undue burden or that would fundamentally alter the nature of the program or service being provided.
If you have questions about the ADA you may contact the DBTAC: Great Lakes ADA Center by calling 800-949-4232 (V/TTY) or by visiting the Contact form on the Center's web site.
Suggested Resource
Communicating with People Who are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers
Model Policy for Law Enforcement on Communicating with People Who are Deaf or Hard Of Hearing
