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WORKPLACE ACCOMODATIONS AND ADA TITLE I: POLICY AND THE METRICS OF "REASONABLE"

Presenter(s)
Lynzee Head, M.S.
RERC on Workplace Accommodations
490 10th Street
Atlanta, GA 30318, USA
4043854075
Email: lynzee.head@gcatt.gatech.edu

Paul M.A. Baker, Ph.D.
RERC on Workplace Accommodations
490 10th Street
Atlanta, GA 30318, USA
4048940073
Email: paul.baker@gcatt.gatech.edu

1.0 INTRODUCTION
Approximately 49.7 million Americans have some form of disability (US Bureau of the Census, 2000), complicating their search for employment. The Americans with Disabilities Act (ADA) of 1990, protects people with disabilities by prohibiting discrimination in employment (Title I), public services (Title II), public accommodations (Title III) and telecommunications (Title IV). However, terms used in the ADA such as "reasonable accommodation," "undue hardship" and even "disability" are not clearly defined and have made understanding and complying with the law difficult, and may reduce its effectiveness.ii Title I requires an employer to provide "reasonable accommodation" to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would impose an undue hardship on the employer. Given that the ADA vaguely defines "undue hardship" and "reasonable accommodation" and does not give specific guidelines as to how to determine either, employer-provided workplace accommodations has become a complicated subject matter. This paper discusses implementation issues related to "reasonable accommodations" under Title I of the ADA and suggests several potential policy responses.

2.0 THE NATURE AND COST OF REASONABLE ACCOMMODATIONS
While the ADA itself does not define "reasonable accommodation," the Code of Federal Regulations (CFR) states, "an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." (29 CFR pt. 1630 app. § 1630.2(o) (1997). The ADA provides examples of reasonable accommodations which could include job restructuring, part-time or modified work schedules, modification of training or examination materials, and making existing facilities accessible (ADA, 1990). Stein (2004) notes that "very few empirical studies and almost no legal scholarship exist regarding what constitutes a reasonable ADA accommodation." To be eligible for a workplace accommodation, an individual must meet the ADA's definition of a "qualified person with a disability," make the disability known to the employer, and request an accommodation. Once such a request has been made, it is up to the employer to choose the accommodation, "as long as it is effective and the employee has had a good faith opportunity to participate in the process." (Blanck, 1997).

A range of workplace accommodations exist, and each individual with a disability requires different outcomes depending on the job and the nature of their disability. Five categories of accommodations include: process; technology; location; structural/environmental; and education/training. Process accommodations are modifications to existing workplace policies, such as allowing more frequent breaks, or allowing food at the desk area. Technology accommodations include assistive technology to accommodate an employee, such as screen reading software. Location accommodations might allow work from another location, such as an employee's home. Structural/environmental accommodations are modifications to the actual workplace such as ramps, accessible desks, and proper lighting. Education/training accommodations provide additional knowledge about how to accomplish the tasks of a job.

Some critics of the ADA say that the reasonable accommodations requirement places financial burdens and administrative costs on the operations of businesses, and that large businesses in particular suffer financially from the Title 1 requirement (Bruyere, 2003 and Cleveland et al. 1997). However, in his study of Sears Roebuck, Inc., Blanck (1996) found that nearly all of the 500 accommodations made by the company were cost-free or required only a modest cost. A 1999 Job Accommodation Network (JAN) survey reported that since 1992, 71% of workplace accommodations have cost $500 or less with 20% of those costing nothing (JAN, 2004).

McFarlin, Song, and Songtag (1991) concluded that employers tend to believe that the general cost of accommodating a worker is prohibitive. Roessler and Sumner (1997) surveyed human resource representatives and found that they were favorably disposed to a variety of accommodations, but also concerned about the costs of accommodations, the interference of accommodations with typical work schedules and worker productivity. While these beliefs appear widespread, the reality according to Blanck (1996) is that workplace accommodations can be made relatively inexpensively by changes to practice as much as by physical modification to the work environment.

Coworkers are also important stakeholders especially when an accommodation can influence their work. They can influence successful implementation because many accommodations require cooperation from the entire workgroup (Collela, 2001). Cleveland et al. (1997), cite at least four major factors that contribute to the workplace community's reaction(s) to accommodations for people with disabilities: (1) the rationale provided for the accommodation, (2) the nature of the accommodation, (3) the initiator of the accommodation (organization, employee, or joint-effort), and (4) the characteristics of the employee being accommodated.

Thus it seems that while workplace accommodations can be made at no, or a minimal cost to the employer, there are added complexities. Employers could be accommodating employees with disabilities that are the most productive and have a disability (or disabilities) that are easy and inexpensive to accommodate (Blanck et al., 2003). The individuals with disabilities who remain unemployed are those who might be less productive and/or more costly to employ. Therefore, the nature of a person's disability could very well influence whether or not a person is hired and might (in part) explain the low costs of workplace accommodations reported by employers (Chirikos, 1999).

3.0 THE CALCULUS OF UNDUE HARDSHIP

Cost is not the only factor determining undue hardship, but in many respects is the most important (Gostin and Beyer, 1993). Operationalizing cost, at least as it involves workplace accommodations, is complex, because it depends on the entirety of the circumstances and must be assessed on an individual basis. Undue hardship is determined based on net cost to the employer and there is no monetary limitation in the ADA or the regulations on the reasonable accommodation requirement. General regulatory guidelines guide determination of whether an employer can afford an accommodation. In some cases, a small employer can avoid a costly accommodation that a larger employer (with greater resources) may be required to make (Lee, 1996). If an employer determines that a proposed accommodation will cause undue hardship, but a second type of accommodation will be essentially as effective and will not cause an undue hardship, then the employer can provide the second accommodation, or another reasonable alternative.

Employer concerns about the provision of workplace accommodations, tend to be based on misunderstandings about the ADA, and associated requirements, rather than on concrete data. Lee (1996) states that in examining pertinent cases that there is no evidence the ADA is "burdening employers with either costly or disruptive accommodations." Few courts have addressed the question of whether an accommodation is too costly,iii but a number have analyzed an employer's claim that an accommodation was excessively difficult. A number of cases have been brought to trial with the employer claiming that the costs of the requested accommodation outweighed the benefits provided to the employer by the person requesting accommodation. The primary objection seems to revolve not so much around cost as to potential inconvenience or disruption to comfortable workplace practice.

4.0 DEVLOPING POLICY TO ADDRESS "REASONBLE"

The few empirical studies that have been conducted to measure the actual cost of accommodating workers with disabilities generally suggest that the majority of accommodation costs are minimal if not cost free (Stein 2000, 2004; Blanck, 1996, JAN, 2004). This suggests an important policy approach, facilitating increased efforts to catalogue the range and metrics of accommodation. Potential accommodations vary in their cost, applicability, type of accommodation, and extent relative to the general workplace environment. The complexities of matching appropriate accommodation to the needs of employees with disabilities, represents an opportunity for targeted outreach and educational efforts to help employers realize that workplace accommodations are not necessarily costly or inexpensive. Finally, exploration of the cultural and social components of the workplace offers the potential for mitigating some of the non-economic costs of workplace accommodations. This might be achieved through additional qualitative research to help evaluate appropriate workplace accommodations needed on a case-by-case basis, and work with the employee (or potential employee) to develop an effective and affordable solution.

REFERENCES

Blanck, P.D., L. Schur, D. Kruse, S. Schwochau, and C. Song (2003). "Calibrating the Impact of the ADA's Employment Provisions." Stanford Law and Policy Review. Vol. 14, No. 2: 267-290. Blanck, P.D. (1996). Communicating the Americans with Disabilities Act. "Transcending Compliance: 1996 Follow-up Report on Sears, Roebuck and Company." Washington, D.C.: The Annenberg Washington Program in Communications Policy Studies of Northwestern University

Blanck, P.D. (1997) "The Economics of the Employment Provisions of the Americans with Disabilities Act: Part 1 - Workplace Accommodations." DePaul Law Review. Vol. 46, No. 4: 877-914.

Boyd and Greene, LLC (2004). ADA Compliance Library: Undue Hardship. Accessed July 2004.

Chirikos, T.N. (1999) "Will the Costs of Accommodating Workers with Disabilities Remain Low?" Behavioral Sciences and the Law. Vol. 17: 93-106.

Cleveland, J.N., J.L. Barnes-Farrell, and J.M. Ratz (1997). "Accommodation in the Workplace." Human Resources Management Review. Vol. 7, No. 1: 77-107.

Code of Federal Regulations. 29 CFR pt. 1630 app. § 1630.2(o) (1997).

Colella, A. (2001) "Coworker Ditributive Fairness Judgements of the Workplace Accommodation of Employees with Disabilities." The Academy of Management Review. Vol. 26, Issue 1: 100-116.

DeLeire (2003). "The Americans with Disabilities Act and the Employment of People with Disabilities." In D.C. Stapleton and R.V. Burkhauser (Eds.) The Decline in Employment of People with Disabilities (pp. 259-275). Gostin, L. and H. Beyer (1993). Implementing the Americans with Disabilities Act: Rights and Responsibilities of all Americans. Baltimore, MD. Paul H. Brooks. Job Accommodation Network (2004). Low Cost Accommodation Solutions. Accessed July 2004. [http://www.jan.wvu.edu/media/LowCostSolutions.html]

Lee, B. A. (1996) "Legal Requirements and Employer Responses to Accommodating Employees with Disabilities." Human Resource Management Review. Vol. 6, No. 4: 231-251. McFarlin, D.B., J. Song, and M. Sonntag (1991). "Integrating the Disabled into the Work Force: A Survey of Fortune 500 Company Attitudes and Practices." Employee Responsibilities and Rights Journal. Vol. 4: 107-123.

Roessler, R.T. and G. Sumner (1997). "Employer Opinions about Accommodating Employees with Chronic Illness." Journal of Applied Rehabilitation Counseling. Vol. 28: 29-34.

Schwochau, S. and P. Blanck (2004). "The Economics of the Americans with Disabilities Act, Part III: Does the ADA Disable the Disabled?" Berkley Journal of Employment and Labor Law. Vol. 21, No. 27: 271-313.

Stein, M.A. (2003) "The Law and Economics of Disability Accommodations." Duke Law Journal. Vol. 53, No. 79: 81-191.

United States Census Bureau. (2003). Disability Status 2000: Census 2000 Brief.

i This is a publication of the RERC on Workplace Accommodations which is supported by Grant H133E020720 of the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education. The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the U.S. Department of Education.

ii See DeLeire (2003); Schwochau and Blanck (2004).

iii Exceptions according to Boyd and Greene (2004 include Nelson v. Thornburgh (1984) 732 F.2d 146, and EEOC v. Amego, Inc. 110 F.3d 135 (1997).

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