This is Part 2 of a two-part article. Read Part 1, The Manager’s Practical Guide to Handling an Employee Newly Diagnosed With a Disability here.
What are accommodations?
An “accommodations request” is as simple as an individual communicating the following type of request through ANY channel. The request doesn’t have to be written, though in writing is easier to prove the request was made if there is a dispute later.
“I need X to do Y because Z”
Where X is the requested accommodation;
Y is the task being accommodated
and Z is the reason related to a health condition or disability.
The word “accommodation” does not need to be included in the request. In fact, “accommodation” is a very US-centric term. Other countries use different terms, including modifications and adjustments.
Accommodations that individuals with disabilities can request usually fall into one of the four following categories:
- Software (Includes but is not limited to things like screen readers, Dragon, automatic captioning)
- Hardware (Includes but is not limited to things like special keyboards, Braille notetakers, reading pens, and pretty much anything related to ergonomics)
- Processes, work environment, or schedule modifications
- Services (such as CART, sign language interpretation, note takers, etc.)
Who gets accommodations requests?
Accommodation requests frequently occur in the following environments:
- Employers — accommodations requests usually (but not always) start with an individual’s manager. Larger companies sometimes have a formal channel for submitting accommodations requests to HR, but it’s always a good idea to give your manager a heads up that you are making a request.
- Public Forums and Conferences — Accommodation requests might go to a general inquiries bucket because the registrant doesn’t have the names or roles of people who provide accommodations for public forums or conferences. Sometimes they go to a third party company managing the conference, not the people putting on the conference themselves.
- Public Facilities (Movie Theaters, Concert Halls, Museums, Stores, Medical Clinics, etc.) — Accommodations requests typically go to the public facility’s operations manager. When chains of facilities are involved, sometimes the facility receiving the request needs to involve HQ approval and make sure accommodations are being handled consistently across all locations.
What happens when you are asked for an accommodation, and you don’t respond or decide not to do it without engaging with the requestor.
- Employer decided to fire employees instead of providing accommodations— Oceanic Time Warner Cable, 800K EEOC settlement.
- Sorry, we want to force you to go on leave rather than give you an accommodation — Lockheed Martin 115K EEOC settlement.
- Presuming someone is not qualified for a job because of vision loss — Red Roof Inn, Active EEOC lawsuit.
- Unfortunately, we do not have the ability to provide an ASL interpreter for our events — She Should Run, facing DC’s Office of Human Rights complaint plus bad publicity.
- You need an ASL interpreter? You have been eliminated from consideration for the role. — Conduent $77.5K EEOC settlement. Anyone surprised that a company that failed to provide an accessible website that they contractually committed to has issues with accommodations for candidates with disabilities?
These are just five of hundreds, if not thousands of EEOC complaints, settlements, and private lawsuits filed every year over failure to treat disabled employees fairly or equally.
Who is the federal agency that enforces accommodations requests?
For US employers, it is the Equal Employment Opportunity Commission.
There are two things the EEOC really hates:
- when employers “refuse to engage in the interactive process,” which is legal-ese for “actually have a conversation with the person with a disability and talk about what they need and why.”
- when an employer illegally retaliates against the employee for making the request.
Many EEOC disability settlement agreements involve #1, #2, or both types of illegal behavior claims. Retaliation claims, which have been increasing over the past few years, is the #1 reason why people with disabilities want to keep their disabilities hidden as much as possible. Too many people with disabilities know someone who was specifically targeted for retaliation immediately after requesting an accommodation.
What about the states?
Many states have agencies that also protect employees from discrimination based on their disability status. In California, the state agency is DFEH.
Who is exempt from providing reasonable accommodations in the US?
The only allowable exceptions (and they are all very narrow for different reasons) are:
1. Employers with less than 15 employees
Employers with fifteen or more employees have a duty to provide reasonable accommodations such as assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. If you have less than 15 employees, you are exempt from the requirement to provide reasonable accommodations. But you are not exempt from:
a. Retaliation claims for the request having being made;
b. Bad publicity that results from the organization denying the request;
c. Lower employee productivity and morale.
2. When providing a reasonable accommodation would cause a safety issue
This is also a very, very narrow exception. Most reasonable accommodations don’t cause safety issues. A couple of examples might include:
a. Requesting to opt out of fire drill training because of noise sensitivity, and;
b. Requesting to be exempt from drug testing programs because the employee uses marijuana under a doctor’s supervision.
3. When the employee still would not be able to perform the primary tasks of their job even with the accommodations in place.
The “employee still would not be able to perform the tasks” exception primarily applies to employees who have become disabled during the term of their employment. Otherwise, why would they have been hired in the first place? The EEOC wants to see that the organization tried to find an open position for the employee with a disability that they could do with accommodations before they are terminated. This is a very narrow exception.
4. When providing a reasonable accommodation would pose an undue hardship
This is the exception that organizations who are trying to get out of providing a reasonable accommodation usually opt for. However, it is also exceptionally narrow, and most organizations that claim undue hardship really don’t qualify for it.
The undue hardship exception which is defined as an “action requiring significant difficulty or expense” is very very hard to argue successfully from the employers perspective. Basically, the employer has to prove that the cost of the reasonable accommodation would push the employer towards bankruptcy. The EEOC does not look at individual departmental budgets, they look at overall organizational finances. If your organisation is making a profit or paying dividends, it is almost impossible to prove an undue hardship.
Will you always get the requested accommodation?
TL;DR: No, employees do not necessarily get the exact accommodation they are requesting. If you’ve asked for a Cadillac solution, and your disability can be accommodated with a Yugo, the employer is only required to give you the Yugo.
Example: The coffee cans in the breakrooms where I work were kept on 6 foot high shelves that I could not reach for my wheelchair. If I requested that all the kitchens be remodeled, that is a “cadillac” request. If the employer changes instructions to the kitchen staff to keep everything that employees need to reach between 15 and 48 inches, that is the Yugo solution and solves the problem for the wheelchair using employee.
Example: The EEOC does NOT mandate accessibility for employee-facing software. But employers are obligated to remove barriers when requested by employees, and software accessibility is one way of making sure that happens for everyone. The organization may, for example, provide a screen-reading using employee with a custom JAWS script to work around a software accessibility problem. However, if you are a company that prides yourself on being diverse, yet you continue to purchase tools that are not accessible to employees with disabilities, that is the antithesis of being inclusive.
- The key is for the employer to engage in the interactive process with the employee.
- Talk to them about what they need and why.
- Then either give it to them or propose an alternative.
- Refusing to engage with the employee is a one way ticket to paying out money in settlement costs if the employee files a complaint.
Why do organizations say “no” to reasonable accommodation requests?
My belief is that this lack of organizational interest in their employees well-being goes back to the long-discredited trope of viewing disability through the lens of charity. If organizations actually cared about all people with disabilities, they would give their internal tools and processes as much (if not more) attention as those that are public facing.
- More often that not, organizational response to reasonable accommodations requests is reactive, not proactive.
- Frequently, too much focus is placed on granting the accommodation creating precedent, i.e., “if I grant this accommodation for this person, I’m going to get swamped with similar requests and have to grant them too.”
- Finally, those employees with disabilities that are perceived as a legal threat (i.e. the proverbial “squeaky wheel”) get more attention.
Executives, consciously or not, view employees with disabilities as non-threatening from the legal perspective — quite possibly in part because of an outmoded belief that people with disabilities should be grateful for having a job at all. This belief plus fear of retaliation are two main reasons that employees with hidden disabilities (which is 70 % of all disabilities) go to great lengths to avoid even anonymous disclosure of their disability in the workplace, to avoid active discrimination. “Passing” as non-disabled hurts both the employee and the employer in very well documented ways — lack of full engagement and higher levels of anxiety being ones most commonly cited.
- The person who knows what accommodation will work the best is … you guessed it … the person requesting the accommodation.
- Train everyone in your organization that when they get a request from an employee for an accommodation, it needs to be taken seriously.
- Engage in the interactive process with the employee.
- Come to an agreement on what will be done and who owns what action items.
- FOLLOW UP — find out if the accommodation is working, fine tune if necessary.
- And, the one that most frequently gets forgotten, celebrate. You’ve helped an employee be more engaged. You’ve supported them, and helped them be more productive. And most importantly, you’ve taken a step to convincing that employee that it is OK to be authentic with their disability at work.