Issue Briefs

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Following is an article from the EEOC describing accessibility requirements for the federal workforce in terms of hiring and other employment decisions as well as in areas such as required accommodations.


Without accessibility, diversity and inclusion do not actually include individuals with disabilities. Individuals with disabilities need access to accommodations in order to participate fully in the workplace. On June 25, 2021, President Biden signed Executive Order 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce (DEIA).[1] Executive Order 14035 commenced a coordinated, governmentwide effort to ensure that the Federal workforce—as the Nation’s largest employer—serves as a model for diversity, equity, inclusion, and accessibility.

Executive Order 14035, Section 2(e) defined accessibility as:

The design, construction, development, and maintenance of facilities, information and communication technology, programs, and services so that all people, including people with disabilities, can fully and independently use them. Accessibility includes the provision of accommodations and modifications to ensure equal access to employment and participation in activities for people with disabilities, the reduction or elimination of physical and attitudinal barriers to equitable opportunities, a commitment to ensuring that people with disabilities can independently access every outward-facing and internal activity or electronic space, and the pursuit of best practices such as universal design.[2]

Federal agencies shall not discriminate on the basis of disability in regard to the hiring, advancement or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment. The standards used to determine whether a Federal agency discriminated against an individual with a disability shall be the same standards applied under the ADA.[3] Additionally, Federal agencies have a legal obligation under Section 501 of the Rehabilitation Act[4] to provide reasonable accommodations, if requested, for their qualified employees and job applicants with disabilities unless the Agency can show that reasonable accommodation would cause an undue hardship.[5] A reasonable accommodation, such as a change in the work environment or the way in which the work is performed, helps ensure that such Federal employees will be able to perform the essential functions of their positions and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees.[6] Such changes allow employees to, among other things, access its facilities and the tools they need to successfully perform their jobs, and interact with supervisors and co-workers. This article focuses on accommodations that improve access to job facilities, physical spaces, and information technology.[7]

Federal agencies are also required to adopt and implement plans that provides sufficient assurances, procedures, and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities at all levels of Federal employment, including development of reasonable accommodation procedures.[8]

Access to Buildings, Facilities, and Physical Spaces
When addressing issues of accessibility, Federal agencies must consider the applicable provisions of the Rehabilitation Act, as well as other relevant statutory provisions. For example, the Architectural Barriers Act (ABA)[9] requires that individuals with disabilities have “ready access to, and use of” Federal buildings and facilities and all Federally funded buildings intended for use by the public, or as a place of employment.[10] This includes buildings leased by the Federal Government and applies to any alterations made to these facilities. Federal agencies are responsible for ensuring that their facilities comply with ABA requirements.[11]

The ABA is enforced by the U.S. Access Board (the Access Board or Board) which publishes standards for agencies to follow to ensure compliance.[12] These standards specify a wide range of requirements that must be met in Federal buildings and apply to almost all areas inside and outside of Federal facilities. For example, the guidance includes, among other things, requirements for stairways, drinking fountains, kitchen areas, and bathroom facilities, as well as parking spaces and accessible routes to and from Federal buildings.[13] Agencies should ensure that they are familiar with these requirements and consult them when considering a request for accommodation related to building access and/or access to areas of a Federal facility.

The EEOC has long held that agency facilities must be accessible to individuals with disabilities. For example, the EEOC found, in Conner v. Department of the Navy,[14] that the agency violated the Rehabilitation Act when it failed to provide the complainant, who used a wheelchair, access to the restroom in his building. The complainant was unable to open the door to the bathroom and needed assistance to enter. While the agency installed a temporary hook to hold the door open, other employees would disengage the hook. As such, the hook was not an effective accommodation. The EEOC specifically stated that reasonable accommodation, when requested, must make existing facilities readily accessible to and usable by individuals with disabilities.[15]

Accessibility is also required during periods of renovation. In Birchfield v. Department of the Air Force,[16] the complainant requested several accommodations after being relocated to another building which required her to go through four doors and use stairs to access her building while it was undergoing construction. The complainant requested improved handrails and stair treads, as well as automated doors into the bathroom. The EEOC concluded that the agency failed to show that the cost of these modifications would have been an undue hardship.

The ABA applies to outdoor spaces as well as those inside agency facilities. Further, the EEOC has recognized that agencies are required to address requests for reasonable accommodation related to outdoor spaces on agency property when requested by disabled individuals. Specifically, the EEOC found that the denial of an accessible parking space violated the Rehabilitation Act in Malorie D. v. Department of Justice.[17] The agency had previously provided the complainant with a reserved disabled parking space close to her building for nearly four years. However, the agency later withdrew the accommodation and directed the complainant to park in one of four unreserved disabled parking spaces at a parking lot much farther away. After the agency removed the complainant’s designated space, the complainant was required, on multiple occasions, to wait for someone to open the front door, walk a long distance to the other entrance, or attempt to find a parking space in an undesignated space. The EEOC found that the agency violated the Rehabilitation Act by failing to accommodate the complainant’s disability or prove that doing so would cause an undue hardship.

The Access Board has developed a set of recommendations and resources which agencies can use to draft accessibility plans under Executive Order 14035.[18] For example, the Access Board recommends establishing a plan with a specific timeframe and milestones for assessing the accessibility of agency facilities to ensure that the minimum requirements of the ABA are met. The Access Board also recommends that, wherever possible, agencies go beyond the minimum ABA requirements.

Access to Information
Agencies must ensure that their documents and information, both physical and online content, are available to individuals with disabilities. Section 508 of the Rehabilitation Act (Section 508) requires that Federal agencies make all of their electronic and information technology (also referred to as information and communication technology, or ICT) accessible to individuals with disabilities.[19] This includes agency equipment, such as computers, copiers, and printers, as well as agency websites, software, and electronic documents. Individuals with disabilities must have comparable access to ICT as that available to other, nondisabled individuals.[20] Having accessible ICT content benefits Federal agencies by lowering the barriers to access for all users. [21] That means more people can find and use the agency’s data and information.

Section 508 requires agencies to identify the ICT needs of individuals with disabilities.[22] Specifically, agencies must determine how users with disabilities will perform the functions supported by the ICT.[23] In addition, agencies must examine how the ICT will be developed, installed, and maintained to support users with disabilities.[24] By taking these steps, agencies procure and maintain ICT not only for disabled individuals who have requested reasonable accommodation but for all individuals with disabilities. Federal agencies must inform applicants and employees of their rights to accessible ICT under Section 508.[25]

In Executive Guide to Federal IT Accessibility,[26] the General Services Administration (GSA) notes that executive support for accessible ICT is essential to increasing compliance with Federal policy. It also helps agencies deliver a digital customer experience that is accessible to all. The GSA recommends adopting universal design to ensure that products and environments are intended to be usable by all people. This includes creating accessible digital products that incorporate software, websites, and documents. The GSA’s Executive Guide provides comprehensive information on both hardware and software requirements.

Individuals with disabilities can seek reasonable accommodation in cases where an agency’s noncompliance with Section 508 prevents them from performing essential functions of the job.[27] In such cases, the agency’s failure to provide such a reasonable accommodation or alternative means of access to ICT could present a claim within the EEOC’s jurisdiction. In response to a request for reasonable accommodation, an agency must ensure that an employee with a disability has access to the same information that is provided to other similarly situated employees without disabilities, regardless of whether they need it to perform their jobs.[28]

Adaptive software is recognized as a form of reasonable accommodation for individuals with different disabilities. For example, in Ruben T. v. Department of Justice,[29] the EEOC found that the agency violated the Rehabilitation Act when it removed adaptive software from the complainant’s computer. The complainant had dyslexia and using the software improved his performance. While the complainant requested alternative software, the agency delayed providing the accommodation, did not provide any information to support its assertion that there were “security reasons” for the delay, and failed to adequately respond to his request for a list of agency-approved software.

Agencies must also provide disabled individuals with adaptive computer hardware. For example, in Frederick A. v. Department of Defense,[30] the complainant had a vision impairment and requested a larger computer monitor as a reasonable accommodation. The agency was aware of the complainant’s limitations, and the complainant submitted medical documentation detailing his vision impairment. The agency failed to assess what reasonable accommodation was necessary when it failed to engage in the interactive process. As such, the agency violated the Rehabilitation Act.

In addition, the EEOC has held that an agency must ensure that when it provides software in response to a request for reasonable accommodation it ensures that the software is compatible with the agency’s hardware. In Kristopher M. v. Department of the Treasury,[31] the complainant had a paralyzed hand and was provided with a special keyboard that allowed him to conduct one-handed data entry. After seven years, the complainant requested that the agency install Dragon speech recognition software on his computer due to an increased workload. Although the agency granted the complainant’s request, the available agency software failed to work properly with the Dragon software for over two years. As a result of this ineffective accommodation, the complainant sustained a work-related injury when he returned to using the special keyboard. The EEOC found that the efforts the agency made to resolve the complainant’s computer issues with the Dragon software were either unduly delayed or only partially implemented. As a result, the Dragon software was not an effective accommodation. Based on this decision, agencies are advised, as part of the interactive process, to ensure that any software provided is compatible with other software. This will allow the employee to effectively use the equipment. The EEOC noted that the Department of Defense’s Computer/Electronic Accommodations Program (“CAP”)[32] is available as a resource for agencies to use to help identify potential computer-related solutions to assist Federal employees with disabilities.

Providing adaptive computer hardware and software is an ongoing process. Agencies must ensure that they continue to provide new adaptive equipment whenever they make changes to computer systems.[33] Agencies must keep in mind that employees with disabilities are entitled to be continually connected to upgraded systems and have access to the same agency information as nondisabled employees. Agencies should consider being proactive, alerting employees known to have adaptive equipment about upcoming changes to computer systems so that new accommodations can be provided if necessary. Furthermore, agency-sponsored training, whether in-house or off site, must provide similar access to information. For example, Ameican Sign Language interpreters must be provided, if needed, and written material must be available in alternate formats such as large print or Braille.

[1] Executive Order 14035, 86 Fed. Reg. 34.601 (June 30, 2021).

[2] Id.

[3] 29 C.F.R. § 1614.203(b).

[4] https://www.eeoc.gov/statutes/rehabilitation-act-1973

[5] 29 C.F.R. § 1614.203(b). (The standards to be used are the same ones applied in the ADA).

[6] See Appendix to 29 C.F.R. Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630”), at Section 1630.2(o): Reasonable Accommodation.

[7] Additional information regarding reasonable accommodation under the Rehabilitation Act and the ADA can be found at Disability Discrimination and Reasonable Accommodation: Medical Inquiries, Leave and Telework | U.S. Equal Employment Opportunity Commission (eeoc.gov).

[8] 29 C.F.R § 1614.203(d).

[9] 42 U.S.C. §§ 4151-4157 (1968).

[10] Id.

[11] The ABA covers a wide range of buildings and facilities including post offices, national parks, Veterans Affairs hospitals, Social Security Administration offices, Federal court houses and prisons. ABA Standards (enhanced single file version) (access-board.gov).

[12] See U.S. Access Board – Home (access-board.gov). Regulations related to the ABA can be found at 24 C.F.R. Part 40 and appendix A to 41 C.F.R. § 101-19.0.

[13] ABA Standards (enhanced single file version) (access-board.gov).

[14] EEOC Appeal No. 01996212 (Feb. 14, 2002).

[15] See also 29 C.F.R. § 1630.2(o)(iii)(2)(i).

[16] EEOC Appeal No. 0120102071 (Feb. 11, 2011).

[17] EEOC Appeal No. 2019003000 (Sep. 15, 2020).

[18] Recommendations and Resources to Assist Agencies in Identifying and Advancing Priorities for Facility Accessibility (access-board.gov)

[19] 29 U.S.C. § 794d.

[20] Requirements for federal ICT developed by the U.S. Access Board are available at Revised 508 Standards and 255 Guidelines (access-board.gov). Information can also be found at Home | Section508.gov.

[21] Practical Reasons for Digital Accessibility: The benefits of digital accessibility and the risks and drawbacks of inaccessible content | Section508.gov.

[22] Update Agency Accessibility Policies | Section508.gov.

[23] Update Agency Accessibility Policies | Section508.gov.

[24] Update Agency Accessibility Policies | Section508.gov.

[25] 29 C.F.R. § 1614.203(d)(4).

[26] Executive Guide to Federal IT Accessibility | Section508.gov.

[27] See Erica B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2019004664 (June 8, 2021).

[28] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 14 (Oct. 17, 2002).

[29] EEOC Appeal No. 0120171405 (Mar. 22, 2019).

[30] EEOC Appeal No. 2019002604 (Aug. 18, 2020).

[31] EEOC Appeal No. 2019001911 (Mar. 3, 2020).

[32] Computer/Electronic Accommodations Program (cap.mil)

[33] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 14 (Oct. 17, 2002).

 

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