If you operate or administer federally-assisted programs and activities, or if you are a state or local government agency, federal civil rights laws require that you include the foregoing notice on all publications, broadcasts, and other communications. The Rehabilitation Act of 1973 (as amended by the Workforce Innovation and Opportunity Act of 2014), the Americans with Disabilities Act of 1990, and the Americans with Disabilities Act Amendments Act of 2008 contain provisions requiring nondiscrimination on the basis of disability in a federally-assisted program or activities, including workforce development programs and activities and related activities such as unemployment insurance, vocational rehabilitation, Wagner-Peyser activities, Temporary Assistance for Needy Families, training, job referral, selection for apprenticeship programs, job bank activities, and job counseling among others. The idea here is that persons with sensory, manual, or speaking disabilities are entitled to nondiscrimination and an equal opportunity to participate in, and enjoy the benefits of, programs or activities funded by the United States government.

What are some examples of written communications that must include this notice?

The “auxiliary aids and services” notice must be included on a variety of written materials, including:

√ outreach materials
√ recruitment materials
√ orientation packets
√ brochures
√ written advertisements
√ application, registration, and enrollment forms
√ participant and employee manuals and handbooks

Take a look at the written and electronic materials that you distribute to staff, clients, and the public. Make sure these communications contain the “auxiliary aids and services” notice. An easy and inexpensive fix for written communications that do not currently provide the notice is to create computer-generated labels with the notice, and affix these labels to the communications.

What does “auxiliary aids and services” involve?

Auxiliary aids and services encompass a wide variety of tools that you may use to assist in communications with persons with disabilities, including:

√ qualified readers
√ notetakers
√ taped texts
√ audio recordings
√ brailled materials
√ large print materials
√ equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
√ TDD/TTY or telephone relay service. Keep in mind here that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You also must make sure these numbers are operational, and staff is trained in the use of this technology.

√ Qualified sign language interpreters

It is important to remember that any “auxiliary aid or service” must be provided at no charge to the individual with a disability.

What are your obligations to communicate to individuals with disabilities?

You have the obligation to “effectively” communicate with persons who have mobility, hearing, and visual impairments. “Effective” communication means a method of communication that gets the job done. Often, this may be accomplished through use of auxiliary aids and services. And, keep in mind:

√ You must provide persons with disabilities information as to the existence and location of accessible services, activities, and facilities; and

√ You must post the international symbol for accessibility at each primary entrance to an accessible facility. For inaccessible facilities, you must provide signage at the primary entrances, which directs folks to a location where they may obtain information about accessible facilities. See 41 C.F.R. § 101-19.6.

To whom do you have these obligations?

You are obliged to offer “auxiliary aids and services” to a variety of categories of persons with disabilities, including:

√ beneficiaries
√ registrants
√ applicants
√ eligible applicants and eligible registrants
√ participants
√ applicants for employment (for example, you may need to provide accommodation for the interview process, such as a qualified interpreter when the interviewer or the interviewee has a hearing impairment)
√ members of the public

In determining the type of auxiliary aid or service to provide, you must give primary consideration to the request of the individual with a disability. A request for an “auxiliary aid or service” constitutes a request for reasonable accommodation or reasonable modification. Such a request must be reviewed and considered on a case-by-case basis; you cannot impose “blanket” policies or procedures. And, while you may consider “undue hardship” in providing accommodation, the process for considering a reasonable accommodation request is an interactive one and, in the end, you are obliged to provide an accommodation that is “effective.”

Is there an obligation to consider evolving technology?

Yes. For example, in Baughman v. Walt Disney World Co., a 2012 opinion wherein the Ninth Circuit held that it was error for Disney to deny a customer’s request to use a Segway in lieu of a motorized wheelchair. The customer suffered from a disability that made it difficult to walk, or to get up from a sitting position. Disney argued that motorized wheelchairs are allowed in the theme park and, while this technology may cause the customer some pain to get up from a sitting position, it was “reasonable” because it got the job done.

The court disagreed and held, in determining whether an accommodation is “reasonable”, a Respondent must “take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled.” To that end, the court noted:

In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer, and more reliable, our expectations of what is reasonable changed . . .. But technological advances didn’t end with the powered wheelchair. As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of nondisabled guests.

As noted by the court, the U.S. Department of Justice, which administers the ADA, recently amended its regulations at 28 C.F.R. § 36.311, to include the use of Segways. Indeed, a Respondent must permit the use of such a device “unless it can demonstrate that the device can’t be operated ‘in accordance with legitimate safety requirements.’” The court concluded, “New technology presents risks as well as opportunities; we must not allow fear of the former to deprive us of the latter.”

Although the foregoing case addressed the concept of “reasonable accommodation” in public accommodations, the rationale reasonably is applied to the operation of federally-assisted programs and activities.

What are the obligations of private employers?

So far, we have focused on the obligations of entities that administer and/or operate federally-assisted programs and activities as well as the obligations of state and local governments with regard to persons with disabilities. Turning to private employers, the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers of 15 or more employees.

While private employers are not required to have the “auxiliary aids and services” notice on all their communications, these employers are prohibited by federal civil rights laws from discriminating against “qualified individuals with disabilities” with respect to the terms, conditions, and privileges of their employment. Discrimination may occur in a variety of employment practices, such as:

√ hiring and firing
√ job application procedures
√ job assignment
√ training
√ promotions
√ wages
√ benefits (including health insurance)
√ leave

A “qualified individual with a disability” is an individual who: (1) meets the bona fide occupational requirements (i.e., legitimate skill, education, and experience requirements) for the job; and (2) can perform the “essential functions” of the job (otherwise defined as the core duties that are the reason for existence of the job position). The person with a disability must meet these two criteria even without accommodation to be deemed “qualified.” On the other hand, a private employer is prohibited from disqualifying this person on grounds that s/he is unable to perform marginal or incidental job functions.

If a “qualified individual with a disability” requests accommodation, the private employer must consider the accommodation request. Accommodation requests may take the form of:

√ requesting an auxiliary aid or service as described above
√ restructuring a job
√ modifying or adjusting the work environment
√ making existing facilities accessible to, and useable by, persons with disabilities
√ modifying work schedules
√ reassigning a current employee to a vacant position for which the employee is qualified

The purpose of providing reasonable accommodation is to allow the qualified individual with a disability the opportunity to contribute fully in the workplace, and enjoy the benefits and privileges of employment.

A private employer should give consideration to a person’s accommodation request, but the employer is not required to provide accommodation if it would create “undue hardship.” Under hardship is an action that constitutes “significant difficulty or expense” in relation to the size of the employer, the employer’s resources, and the nature of the employer’s operation. This also may involve health and safety concerns; specifically, the individual poses a “direct threat” to self and/or others. Accommodation requests and considerations of undue hardship must be made on a case-by-case basis, and require that the employer and employee engage in an interactive process.

About the author.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.
By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.
In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.
With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.