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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

April 23, 2002

Dear :

This responds to your January 22 and February 4, 2002, letters to the Seattle District Office of the Equal Employment Opportunity Commission (EEOC). As you know, an attorney representing the employer you mention also has written to the EEOC and has sent you a copy of his letter. The Seattle District Office has asked the Office of Legal Counsel to respond to this correspondence.

In your letters, you state that an employer has asked your union to agree to an "accommodation" that would allow an employee who is deaf not "to rotate through all three of the normal duties of a 'vacation relief position' that he would be required to perform under the labor Agreement." You assert that the proposed accommodation might involve bumping more senior employees from the vacation relief position and that some of those employees do not speak English. You further state that the employer "should offer the same accommodation to individual[s] who are just as qualified as the deaf individual," but who are unable to perform one of the position's duties.

Specifically, according to copies of correspondence between you and the employer and a letter from the employer's attorney about this matter, it appears that employees who are deaf have asked to be considered for "premium position relief jobs" that cover tray operator, dolly work, and receiving department positions. One of your letters refers to an "English language component" that, in your view, pertains only to the tray operator position and "is not an essential component of the job." The employer states that employees who are deaf cannot perform the essential functions of the tray operator positions, which you say involve "heavy communication" via radios, telephones, and computers. The employer wants to restructure one of the three vacation relief positions by eliminating the tray operator duties and then wishes to allow employees who are deaf to bid on that position. According to one of the employer's letters, that position "would be offered to deaf employees only if they have the priority to bid that schedule"; the employer would not permit employees who are deaf "to bid ahead of qualified employees with priority." You ask whether the union would discriminate against a deaf employee if it refused to agree to the proposed accommodation and whether the proposed accommodation would discriminate against employees who do not speak English.

As an alternative, you state that the union instead proposed that the employer classify one vacation relief position as an accommodation position, allow the employee with the highest seniority/priority to bid for it, and require the employer to provide an accommodation if "someone with a disability or communication problem" bids for the position. You ask whether this approach would be discriminatory.

As you know, the EEOC enforces Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12111-17, and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e. The determination whether an action or inaction violates the ADA or Title VII requires an individualized inquiry into the particular facts and circumstances of the particular situation. We cannot determine without investigation whether discrimination would occur under the circumstances you describe. We can, however, provide you with technical assistance concerning the requirements of the laws that we enforce. You and the employer should apply these principles to your specific situation.

ADA Standards

Title I of the ADA prohibits covered entities from discriminating against qualified individuals with disabilities in all terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4. A "qualified individual with a disability" is a person with a disability who can perform the essential functions of the position the person holds or desires with or without reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m).

The ADA requires covered entities, including labor organizations, to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.9. A "reasonable accommodation" is a modification or an adjustment that enables a person with a disability to apply for a position, to perform the essential functions of a position, or to enjoy benefits and privileges equal to those enjoyed by other employees. 29 C.F.R. § 1630.2(o)(1). Reasonable accommodation includes job restructuring, acquisition or modification of devices, the provision of qualified interpreters, and reassignment to a vacant position. 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2). A position is "vacant" if it is available when the employee asks for a reasonable accommodation or if the employer knows that it will become available within a reasonable amount of time. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act 39 (Mar. 1, 1999) (copy enclosed). An employer does not have to bump an employee from a job to create a vacancy. Id.

A covered entity does not have to provide a reasonable accommodation that will impose an undue hardship. 42 U.S.C. § 12112(b)(5); 29 C.F.R. §§ 1630.9, .15(d). An "undue hardship" is a significant difficulty or expense in light of the covered entity's resources. 42 U.S.C. § 12111(10); 29 C.F.R. § 1530.2(p).

Application of ADA Standards

As a preliminary matter, it is not clear whether an employee who is deaf can perform the essential functions of the vacation relief positions, as currently structured, with or without reasonable accommodation. For example, it is not clear whether "heavy communication" is an essential function of all vacation relief positions and, if it is, whether an employee who is deaf can perform that function with or without reasonable accommodation. An employee who is deaf often can communicate effectively with other employees through sign language interpreters, text telephones, pencil and paper, e-mail and/or other modifications or adjustments. It is not clear whether it would be an undue hardship to permit an employee who is deaf to communicate through one of these methods rather than aurally over radios. The employer and union may not use deafness as a reason to deny an employee placement in these positions if the employee can perform essential functions with reasonable accommodations that would not result in undue hardship. Therefore, even if a modified vacation relief position is created in the manner proposed by the employer or the union, deaf individuals who are qualified to perform all of the essential functions of the unmodified positions, with or without reasonable accommodation, must be permitted to bid for such positions and may not be limited to the restructured position.

If an employee who is deaf cannot perform the position's essential functions even with reasonable accommodation, then s/he is not qualified for that particular position. The ADA does not require an employer to eliminate an essential function or to create a new position; neither of those actions is a reasonable accommodation. Nothing in the ADA, however, prohibits a union and employer from voluntarily agreeing to restructure a job by removing an essential function to enable an employee who is deaf to qualify for a position. Therefore, the union could agree to the employer's proposal without violating the ADA. Thus, if the employer's proposal would, in fact, require elimination of an essential function, the ADA would permit, but would not require the union to agree to it. On the other hand, if the function that the employer is proposing to eliminate is only marginal, then the union would have to allow elimination of the function as a reasonable accommodation for someone who is deaf and cannot perform it.

The ADA also does not require an employer to provide reasonable accommodation to employees who do not have disabilities. Consequently, under the ADA, the employer would not have to agree to the union's proposal that a vacation relief position be modified to include accommodations for individuals with communication barriers related to limited English speaking skills.

Although you express concern that a more senior employee might be "bumped" from a vacation relief position, the employer's attorney denies that this would happen. The ADA does not require an employer to bump an incumbent from his or her current position to create a vacancy.

Title VII Standards

Title VII prohibits covered entities, including employers and labor organizations, from intentionally discriminating against applicants and employees because of national origin. 42 U.S.C. § 2000e-2. In other words, employers may not base employment decisions on national origin and may not deprive individuals of one national origin group from the terms, conditions or privileges of employment enjoyed by others. However, Title VII does not require accommodation of someone's national origin.

Even if the employer does not intentionally treat people differently on the basis of national origin, Title VII also will be violated if 1) a covered entity uses a neutral requirement that has a significantly disproportionately (disparate) exclusionary impact on members of a national origin group, 2) the requirement is not job related and consistent with business necessity, and 3) the entity has rejected alternatives that would equally meet its business needs with less discriminatory impact. See 42 U.S.C. § 2000e-2(k).

Application of Title VII Standards

Because employers must accommodate individuals with disabilities, modifying a job for such an individual but not for persons of a particular national origin group would not be evidence of national origin discrimination.

For several reasons, it is unclear whether there may be a valid disparate impact claim. It is unclear whether the employer requires that workers holding the vacation relief position have English language facility. It is also unclear whether or not the requirement has a disparate impact in that workforce, based on national origin. If the requirement exists and has such an impact, it will nevertheless be lawful if it is necessary for the safe and efficient operation of the business and the employer's business needs cannot be equally well met in another way.


In short, the ADA clearly requires employers to make a reasonable accommodation for the deaf employee if it can do so without undue hardship while Title VII does not have an accommodation requirement. At the same time, as explained in the preceding paragraph, there are circumstances under which the employer could be subject to Title VII liability and, under those circumstances, the employer should consider the alternatives that would avoid such liability.

The foregoing informal discussion of the issues you have raised does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letters should not be construed as agreement with those matters.


Peggy R. Mastroianni
Associate Legal Counsel


cc: Jeanette M. Leino, Director
Seattle District Office

This page was last modified on April 27, 2007.