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
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
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
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
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
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
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
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
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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Reprinted with author(s) permission. Author(s) retain copyright.