By Kristina Launey and John W. Egan

Seyfarth Synopsis: Recent guidance from the EEOC on federal agencies’ disability accommodation obligations contain insights for private employers as well.

The EEOC recently published an article, Providing an Accessible Workplace, which while directed at federal agencies also includes important guidance for private employers as well.  As the nation’s largest employer, the federal government must, under President Biden’s June 2021 Executive Order 14035, develop strategic plans for enhancing diversity, equity, inclusion and accessibility in the federal workforce. Building on this, the EEOC guidance provides an overview, as well as specific caselaw discussion, of federal employers’ obligations to accommodate a range of employee disabilities.

The EEOC’s article is based upon disability access laws with which federal agencies must comply to ensure individuals with disabilities are able to participate fully in the workplace, including Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, which do not necessarily apply to a private employers. However, the accommodation principles discussed in the article apply with equal force to private employers under Title I of the ADA.  Private employers (as with their public counterparts) must, upon notice of a need for accommodation, engage in the interactive process to consider and respond appropriately to employee needs with respect to physical facilities, as well as information and communication technologies (ICT).  While the law requires an individualized, fact-sensitive approach to requests for accommodation, employers need to engage in an interactive dialogue with employees, be prompt and responsive, and explore potential accommodations that would allow employees to perform their essential job functions without imposing an undue burden or hardship on the employer. 

With respect to accommodations that may involve the accessibility of ICT, potential employer obligations/pitfalls the EEOC discussed include:

  • Software-Related Accommodations.  The EEOC offers the example of Ruben T. v. Department of Justice, where software installed on the computer of an employee with dyslexia improved his performance, but was removed by the employer.  The EEOC found that the agency’s removal violated the Rehabilitation Act, particularly where it delayed in providing an accommodation, cited as a justification “security reasons” without more, and did not adequately respond to the employee’s request for a list of agency-approved software;
  • Hardware-Related Accommodations.  In Frederick A. v. Department of Defense, an employee with low vision requested a larger computer monitor as a reasonable accommodation and submitted medical documentation in support. The EEOC found the agency violated the law because it did not engage in the interactive process or assess what reasonable accommodation was necessary to enable the employee to perform the essential functions of their job; and
  • Systems Compatibility.  The EEOC found in Kristopher M. v. Department of the Treasury that even though the agency agreed to install Dragon speech recognition software to supplement the use of a special keyboard to aid an employee with a paralyzed hand, the accommodation was not effective. This was because Dragon was not compatible with the agency’s software for over two years, as the agency’s efforts to address those issues were either delayed or only partially implemented.

These examples underscore the importance of engaging in the interactive process to determine what accommodations employees may need to perform the essential functions of their jobs.  Those accommodations may be in the form of modifications to physical facilities, even to address temporary interruptions in access during renovations or remodeling.  They also may take the form of adaptive or assistive technologies, which may present compatibility problems with existing systems that employers need to solve for the accommodation to be effective. 

Also to note, private and public employers have an obligation under Title I to ensure that accommodations are effective on an ongoing basis.  Even if an accommodation is effective at first (which not all the above accommodations were), the working environment (physical, digital or otherwise) may change, necessitating a reevaluation of the accommodation, or the employee’s disability or related accommodation needs may change. The EEOC recommends that employers consider being proactive by alerting employees known to have adaptive equipment or assistive technology about upcoming changes so that new accommodations can be provided if necessary.