EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Rehabilitation Act: Reasonable Accommodation
April 15, 2013
Internal Revenue Service
1111 Constitutional Avenue, N.W.,
Washington, D.C. 20224
Re: 78 FR 10263, Notice on ADA Accommodations Request Packet
Dear Ms. Lawrence:
The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the Internal Revenue Service’s (the IRS) request for comments on the information collection titled ADA Accommodations Request Packet (the Packet), published in the Federal Register on February 13, 2013.(1) The Packet is used to collect information from an applicant with a disability who may need a reasonable accommodation to take the IRS’s Special Enrollment Examination (the Exam).(2)
The EEOC offers these comments as the federal agency responsible for enforcing the federal equal employment opportunity laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information. The laws enforced by the EEOC also prohibit retaliation for filing a discrimination complaint, participating in a discrimination proceeding, or otherwise opposing discrimination.(3)
As discussed below, the Commission recommends that the IRS direct its contractor, Thomson Prometric (Thomson), the testing entity that administers the Exam and processes the accommodation requests for the Exam, to review the procedures outlined in the Packet to ensure that they are consistent with the requirements of Section 501 of the Rehabilitation Act of 1973, as amended (the Rehabilitation Act).(4)
The Rehabilitation Act’s Requirements
The Rehabilitation Act prohibits federal agencies from discriminating against applicants or employees on the basis of disability. It also requires federal agencies to provide reasonable accommodation to qualified applicants or employees with disabilities, unless to do so would cause an undue hardship.(5) In general, an accommodation is a change in the work environment or in the way things are customarily done that would enable an individual with a disability to enjoy equal employment opportunities. The accommodation is “reasonable” if it “seems reasonable on its face,” i.e., if it appears to be “feasible” or “plausible.”(6) The accommodation also must be effective in meeting the needs of the individual. For job applicants, for example, this means that the accommodation enables the applicant to have an equal opportunity to participate in the application process to be considered for a job.
After receiving a request for a reasonable accommodation from an applicant or employee, the Rehabilitation Act requires that an agency engage in an informal process (the interactive process) to clarify what the individual needs and identify the appropriate reasonable accommodation.(7) During this process, the agency may ask the individual relevant questions that will enable it to make an informed decision about the request.(8) This includes asking what type of accommodation is needed.(9)
As part of the interactive process, an agency may also require that the documentation about an individual’s disability and its functional limitations come from an appropriate health care or rehabilitation professional.(10) The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes.(11) Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.(12)
An agency does not have to provide a reasonable accommodation that would impose an “undue hardship” on the operation of the agency.(13) However, generalized conclusions will not suffice to support a claim of undue hardship.(14) Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.(15)
Recommended Changes Consistent with the Rehabilitation Act’s Requirements
Thomson uses the Packet to collect information from an applicant with a disability about whether he needs a reasonable accommodation to take the Exam.(16) To complete the Packet, an applicant must submit a Professional Evaluation Form. The form asks the professional to verify that he has formally diagnosed the applicant’s disability or worked with the applicant in dealing with the disability. The form also asks the professional to recommend an appropriate accommodation for the applicant. The form notes, however, that “while a reader or scribe is a reasonable accommodation, providing a written paper exam for a computer-based test or a computer-based test for a written paper exam is a VERY difficult request to honor and is generally not considered reasonable.”
As noted above, after receiving a request for a reasonable accommodation, the Rehabilitation Act requires that an agency engage in an informal, interactive process to clarify what kind of accommodation the individual needs. This may include asking the individual, or an appropriate professional, relevant questions about the proposed accommodation. Thomson’s Candidate Accommodation Request Form and its Professional Evaluation Form ask both the applicant and the professional to identify the precise accommodation that would enable the applicant to take the Exam. However, it is unclear whether this ends the inquiry, i.e., whether Thomson will work with the applicant and/or the professional after denying the requested accommodation to try to identify an equally effective accommodation. Therefore, we recommend that the IRS direct Thomson to include language in the Packet that states that it will contact the applicant and/or the professional if it denies the requested accommodation, so it can try to identify an appropriate alternative accommodation.(17)
The Rehabilitation Act does not prohibit Thomson from requiring that an appropriate professional provide documentation about an individual’s disability and its functional limitations. However, we have concerns that it may construe the term “appropriate professional” too narrowly. We understand the term to be quite broad with respect to, for example, persons with psychiatric disabilities—including not only psychiatrists, but also psychologists, psychiatric nurses, licensed social workers, and primary care physicians, among other relevant professionals.(18) Therefore, we recommend that the IRS direct Thomson to broadly construe the term “appropriate professional” when processing the accommodation requests.
Finally, we have concerns about Thomson’s apparent reluctance to change the format of the Exam as a reasonable accommodation. While the form does not explicitly state that Thomson will never honor such a request, it does indicate that this request “is generally not considered reasonable” because it “is a VERY difficult request to honor.”
We believe that changing the format of the Exam is “reasonable” in the sense that it is “feasible” or “plausible.”(19) But to the extent that Thomson is asserting that changing the Exam format would be too difficult or expensive, i.e., that it would impose an undue hardship, it must make this determination by considering various factors, which may include, for example, the nature and cost of the accommodation, Thomson’s overall financial resources, and the impact of the accommodation on Thomson’s operation.(20) Therefore, the Commission recommends that the IRS direct Thomson to conduct an individualized assessment, if it receives a request to change the Exam format as an accommodation, to determine whether providing this accommodation would in fact cause significant difficulty or expense.
Thank you for the opportunity to provide these comments. Should you wish to discuss any of the issues raised in this letter in further detail, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Tanisha Wilburn at (202) 663-4909.
Peggy R. Mastroianni
(1) 78 Fed. Reg. 10,263.
(3) See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.
(4) According to the Packet, the IRS does not directly administer the Exam or provide the accommodations for applicants to take the Exam; instead, it hired a third-party contractor, Thomson Prometric, to do so. Nonetheless, because Thomson is acting on behalf of the IRS, the agency has a responsibility to ensure that the company is administering the Exam, and providing reasonable accommodations, consistent with the Rehabilitation Act’s requirements.
(5) 29 U.S.C. § 791 et seq.See also 29 U.S.C. § 791(g) (applying the standards under Title I of the Americans with Disabilities Act of 1990 to the Rehabilitation Act). For more information on federal agencies’ responsibilities in providing reasonable accommodations to qualified applicants and employees, refer to U.S. Emp’t Opportunity Comm’n, EEOC Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (2000), http://www.eeoc.gov/policy/docs/accommodation_procedures.html. For general information about reasonable accommodation and undue hardship under the ADA, refer to U.S. Emp’t Opportunity Comm’n, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), http://www.eeoc.gov/policy/docs/accommodation.html (hereinafter Reasonable Accommodation and Undue Hardship Guidance).
(6) US Airways, Inc. v. Barnett, 535 U.S. 391, 401-402 (2002).
(7) See 29 C.F.R. pt. 1630 app. § 1630.9 (stating that “[t]he appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with the disability”). See also Reasonable Accommodation and Undue Hardship Guidance, supra note 5.
(8) See 29 C.F.R. pt. 1630 app. § 1630.9 (stating that the interactive process can involve “[c]onsult[ing] with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation”).
(10) See Reasonable Accommodation and Undue Hardship Guidance, supra note 5, at Question 6.
(13) See 42 U.S.C. § 12112(b)(5)(A) (stating that it is a form of discrimination to fail to provide a reasonable accommodation “unless such covered entity can demonstrate that the accommodations would impose undue hardship. . . .”); see also 29 C.F.R. § 1630.15(d); 29 C.F.R. pt. 1630 app. § 1630.15(d).
(14) See 29 C.F.R. pt. 1630 app. § 1630.15(d).
(15) Id. See also 29 C.F.R. § 1630.2(p).
(16) See 78 Fed. Reg. 10,263.
(17) The Packet currently states: “Please contact us to answer any questions or concerns . . . [about] what type of accommodation would work best for you or to simply walk you through the request process.” But, even with this language, it is unclear whether Thomson will attempt to identify a different accommodation if it denies the applicant’s initial request.
(18) See U.S. Emp’t Opportunity Comm’n, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, at Question 14 (1997), http://www.eeoc.gov/policy/docs/psych.html.
(19) See Barnett, 535 U.S. at 401-402 (concluding that an accommodation is considered “reasonable” if it is “feasible” or “plausible”). See also 29 C.F.R. § 1630.11 (stating that selecting and administering an employment test, “in the most effective manner,” for an applicant or employee who has a disability “that impairs sensory, manual or speaking skills,” is considered a reasonable accommodation); 29 C.F.R. pt. 1630 app. § 1630.11 (stating, for example, that “it would be unlawful to administer a written employment test to an individual who has informed the employer, prior to the administration of the test, that he is disabled with dyslexia and unable to read”).
(20) See 42 U.S.C. § 12111(10)(B). See also 29 C.F.R. § 1630.2(p)(2); 29 C.F.R. pt. 1630 app. § 1630.2(p).
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