2000 Conference Proceedings

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ASSISTIVE TECHNOLOGY IN EMPLOYMENT

Taymour Ravandi, Staff Attorney
PROTECTION & ADVOCACY, INC.
100 Howe Avenue, Suite 235N
Sacramento, California 95825
Phone: (800)776-5746

The right to assistive technology in employment is tied to the right to reasonable accommodation.

The laws that prohibit discrimination on the basis of disability require employers to make modifications and adjustments to the work environment to enable qualified individuals with disabilities to enjoy equal employment opportunities. Such modifications and adjustments are called reasonable accommodations which may include acquisition of new devices and technologies, or modification of existing ones to enable an employee with a disability to perform his or her job.

There are six main federal and state laws that protect people with disabilities from discrimination in employment. These are:

The Americans with Disabilities Act (ADA), 42 U.S.C. Section 12000 and following; Sections 501, 503 and 504 of the Rehabilitation Act, 29 U.S.C. Section 791, 793, and 794; The California Fair Employment and Housing Act (FEHA), Cal. Govt. Code Section 12900 and following; and The California Government Code Section 11135. For the most part, all federal and state laws conform to the protections and the requirements of the ADA. In this presentation, we will concentrate on the ADA.

1. What is the ADA?

The Americans with Disabilities Act (ADA) is a federal law that makes discrimination based on disability illegal. It gives civil rights protection to people with disabilities and prohibits discrimination in employment as well as public accommodations and public services.

The ADA has several titles that are like chapters in a book. Titles I and II of the ADA prohibit discrimination in employment. Title I covers private employers, employment agencies, and labor unions with 15 or more employees. Title II covers pubic entities which include state and local government agencies regardless of the number of people they employ. The legal standards of Title I apply equally to Title II. Therefore, we will cite mainly Title I provisions in this chapter.

The procedural rules are, however, different under each title. See Question 35 for information on filing your ADA complaints.

There are certain entities that are exempt from the ADA. They are the Federal Government, United States, Indian tribes, and private membership clubs. 42 U.S.C. Section 12111(5)(B). The ADA does not impose affirmative action requirements on covered entities.

2. Who is protected by the ADA?

The ADA protects "qualified individuals with a disability." 42 U.S.C. Section 12102(2), 29 C.F.R. Section 1630.2(g). This means that you must:

Be qualified to perform the "essential functions of the job" (in other words, with or without a reasonable accommodation). You must have the minimum requirements necessary to perform the job such as the necessary education, experience, or licenses; and Have a disability that is a physical or mental impairment that substantially limits one or more major life activities (such as working, learning, performing manual tasks, walking, seeing, hearing, speaking, breathing, and caring for yourself); or Have a record of such an impairment (such as a condition in remission); or Be regarded as having such an impairment. For instance, if your impairment does not limit your ability to do your job, but your employer treats you as if it does, then you are regarded as having an impairment. The ADA also protects anyone discriminated against because he or she is associated with or related to someone who has a disability.

The definition of a disability does not include transvestitism, sexual behavior disorders, or current illegal drug use.

3. What is a "reasonable accommodation"?

Under Title I of the ADA, "reasonable accommodation" includes modifications or adjustments that enable employees with disabilities to perform the essential functions of their job. 42 U.S.C. Section 1211(9). Some examples of possible accommodations include providing assistive technology, a wheelchair accessible work site, a sign language interpreter, materials in alternative formats, allowing an employee to take time off from work for doctor appointments or visits to a therapist, allowing an employee a flexible work schedule so that the employee may work more hours on "good days" and fewer hours when necessary, restructuring the job description to eliminate non-essential functions, or simply educating and reshaping co-worker attitudes.

Job reassignment to a vacant or soon-to-be vacant position is another possible reasonable accommodation. You must be qualified for the other job and a promotion is never considered a reasonable accommodation. Further, an employer need not have another job to accommodate you.

The ADA does not require employers to hire a set number of people with disabilities. It only requires that employers give qualified people with disabilities employment opportunities equal to those given employees without disabilities. 42 U.S.C. Section 12101. You must be able to perform the essential functions of your job, either with or without reasonable accommodation to be protected under the ADA. 42 U.S.C. Section 12111(8). Employers are not required to hire or keep a person who cannot perform the essential functions of a job even with a reasonable accommodation.

4. How do I ask for a reasonable accommodation?

You need to tell your employer:

that you have a disability, how your disability interferes with your ability to do your job functions, and what accommodations you need in order to do your job functions. You may make your request orally or in writing; however, if your employer does not respond in a reasonable amount of time to an oral request, you should then make a written request.

A sample reasonable accommodation letter is included at the end of this chapter. You should ask your employer to give you a response within a specific amount of time because you will need to take further action if your request is denied.

5. I need an assistive device to do my job. May I ask my employer to provide it?

Yes. The ADA says that one of the ways your employer may accommodate you is by providing new equipment or modifying existing office equipment. 28 C.F.R. Section 1630.2(O)(2)(ii). If you need a special device to be effective in your work, you may request it as an accommodation. Like other forms of accommodation, your request for equipment must be reasonable. The equipment you want should be consistent with the nature and the operations of the business you are working for and it should be affordable in light of the resources of the business. 28 C.F.R. Sections 1630.2(p) and 1630.15(d).

6. Where and when can I file an ADA complaint?

For violations of Title I of the ADA (private employers) you may file a complaint with the EEOC. Their telephone number is (800) 669-4000. A complaint must be filed with the EEOC within 300 days of the discrimination. If the EEOC issues a right-to-sue letter (a letter saying you may file in court), you have 90 days to sue in U.S. Federal District Court. You must receive a right-to-sue letter from the EEOC before filing an action under Title I in court.

For violations of Title II of the ADA (public employers), under a work-sharing agreement with the EEOC, the Department of Justice (DOJ) is primarily responsible for investigating employment discrimination complaints against most employers covered by Title II. The telephone number of the DOJ is (800) 514-0301. Complaints must be filed with the DOJ within 180 days of the discrimination. Courts have held that it is not necessary to obtain a right-to-sue letter from the DOJ before filing a Title II action in court. Such lawsuits should be filed within one year of the discrimination. Those courts have stated that while legal standards of Title I apply to a Title II employment discrimination claim, the procedural requirements of Title I do not.

In California, you may also file an ADA complaint with the DFEH. The EEOC or the DFEH will let you know which agency will investigate your complaint.

7. I filed a complaint with the DFEH (or EEOC). What can I expect to happen? How long will it take for them to help me?

DFEH

Once a complaint is filed with the DFEH, a consultant decides whether the DFEH will accept the complaint or decline to accept it. If a complaint is accepted, a formal complaint is written and sent to you, the complainant, for signature, within one week. When you have signed the complaint and returned it to DFEH, they will serve it on the respondent(s) (your employer). The employer has 21 days to produce a written response to the complaint. When the response is received by DFEH, the consultant decides if there was cause for the complaint, that is, if your employer discriminated against you. DFEH makes this determination under both the state law which is the Fair Employment and Housing Act (FEHA) as well as he ADA. If DFEH finds cause, it will ask the employer if they are interested in settling the matter through the process of conciliation. If the employer does not want to settle, DFEH will file an administrative complaint on your behalf under the FEHA. The administrative complaint is called an "accusation," and is filed with the Fair Empoyment and Housing Commission (FEHC). Once the administrative process begins, you may no longer file a formal complaint in court under the EHA. But, if within 150 days of filing a complaint with the DFEH, an accusation is not issued, or if DFEH earlier determines that an accusation will not be issued, DFEH will notify you that they may request a right-to-sue notice and sue in court within one year of the date the right-to-sue letter is mailed. If you win at your hearing with the FEHC, the employer may have to compensate you for back and future pay, pain and suffering and even emotional distress.

EEOC

After filing a complaint with the EEOC, the employer charged with violating the ADA should receive written notification of the charge within 10 days after it is filed. The EEOC will investigate charges of discrimination. If the EEOC believes that the employer has discriminated against the complainant, it will try to resolve the charge through conciliation and obtain full relief for the aggrieved individual. If conciliation fails, the EEOC will file suit or issue a "right to sue" letter to the person who filed the charge, so that the individual may institute an action in court.


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