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agonyaunt2021-11-05 11:03 am
minoanmiss) wrote in agonyaunt2021-11-05 11:03 am
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Ask a Manager: When is no accommodation is reasonable for a disability?
When is no accommodation is reasonable for a disability?
I’m curious when it is acceptable to say no accommodation is reasonable and an applicant can be rejected because they can’t do the job due to their disability. I’m not asking for ways to get around reasonable accommodations. I’m looking for input on situations where a person truly cannot be accommodated.
A few examples, all of which are real examples I may run into: (1) Can a warehouse job that requires driving a forklift, moving around heavy boxes, placing them in shelves that are eight stories tall, and picking things off the shelves exclude people who are blind? In a wheelchair? I can’t see how these can be accommodated in this situation. (2) Can a retail job that requires replenishing inventory from the back room to the sales floor accommodate a blind applicant? Wheelchair? If it requires color coordinating the stock, can someone who’s colorblind be accommodated? (3) What about a home design company that requires knowledgeable color coordination and working with pictures provided from the client, and likely design software that requires visually laying out options? Perhaps there are reasonable accommodations I’m not seeing?
I can’t speak to what specific accommodations might be available in those situations since I don’t know all the adaptive technology that might be possible, but the Job Accommodation Network is a wealth of suggestions for accommodations for different disabilities. However, what the Americans with Disabilities Act prohibits is discriminating against workers who can perform the essential functions of the job with or without reasonable accommodations — so if there’s not a reasonable accommodation that will allow the person to perform the work, the law doesn’t require an employer to hire them anyway. So the law wouldn’t require you to hire, say, a blind applicant to drive a bus. (The law also has an exception for accommodations that would pose “undue hardship” to the employers, which is usually — although not always — about cost.)
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The discussion has a fortunate plurality of people pointing out that one should talk to the disabled applicant about what their plan is because they are a person with a brain and likely have one, and an unfortunate plurality of people who really need that and other lessons.
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But yes: a. doubting LW's commitment to Sparkle Motion, and b. how's about asking the employee?
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I mean, my sister did have that level of cognitive disability, and she got her associates degre. She got it with an enormous amount of help from family, because we didn't even know the school had to support her, though honestly community colleges can be much better about that shit than 4-year-colleges because they don't have as much of an attitude problem. Which actually gets back to Alison's point
and Minoanmiss's
because the person or their support network probably have a decent sense of what it would take to help them thrive and succeed.
I'm not saying that I haven't encountered people whose notion of "reasonable accommodation" was not "let me do want I want and don't hold me accountable" because of course I have. (I have never encountered it in anyone my age or older, because we didn't grow up getting any accommodations at all--which is obviously terrible--and I don't know a single disabled gen Xer who thinks we'll ever get anything we don't request formally in triplicate, with purple-tinted ditto paper.)
But it's amazing how creative people aren't, sometimes, when assessing what others' abilities are. I had to verbally slap down a colleague who jokingly said that of course our archivist job descriptions needed to include seeing and hearing -- which, no! You need neither of those to be an archivist, wtf! Most jobs that require "must lift 50 lbs" don't need it as long as others in the department can. And in schools, I've seen teachers act like providing audiobooks is pandering, an accommodation you make for kids who really need it but which is clearly inadequate to print-based literacy. As if the real difficult aspect of literacy is teaching letter-decoding, feh.
Coming up with what accommodations are reasonable can help employers and teachers really refine what the requirements genuinely are. What are your real teaching objectives? What makes a great employee?
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(as a side point--as you know but for the benefit of others here--education and employment have different laws with different purposes. in employment, the idea is making sure not to discriminate against those who can do the work. in education, the laws are also about a guaranteed right to an education whether you can perform up to an external standard or not. a little different framework in post-secondary, so in college there ends up being a mix of public accommodation stuff from the ADA and educational legal frameworks which have the other intent.)
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Question: why no alternate work?
[Context: I dropped out of my bachelor's program because every foreign language class I have ever take (four languages across 8 years) has left me actively suicidal, including debilitating panic attacks when I randomly heard music or conversation in the languages I was taking. This happened even when I was doing well in the class. I never figured out the why behind it, but I would have been happy to complete literally any other related coursework in history or cultural studies. No one ever gave me a reason beyond "we just can't"]
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A visually-impaired student can, of course, write a descriptive essay in which they use other senses beside sight, so "describe a scene, but use senses other than sight" is a reasonable accommodation. A visually-impaired student, or a student who cannot exercise fine motor control, drawing a photo-realistic sketch is not really possible, so "draw a scene in which you do not use sight" (or "draw a photo-realistic scene" when you cannot see is not really possible), so there's not really a reasonable accommodation there. We often have the same accommodation with regards to religious accommodations: a person who cannot, for religious reasons, draw a nude, is not really possible, so there's a reasonable accommodation possible. In one, there's a reasonable accommodation possible. In another, there's really not.
Does that make sense?
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"We often have the same accommodation
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Interestingly, the topic of "alternative assignments" at that time was not so much (or perhaps not just) restrictions based on "academic freedom," which was itself mostly about accommodating/overriding "religious objections" to progressive content (having to read a story in which gay people exist, for example, and yes, that's snarky, because yes, I absolutely got that comment on my lit evals). It moved on to triggers, which never got resolved to my satisfaction (where I was actually the odd person out saying, "look, I can at least tell them there's a graphic rape scene," although I have since kind of waffled on telling them how to skip it, because if that works on a rape scene in The Gunslinger, it works a lot less well on the gay sex scene of "Brokeback Mountain," and I have come to share my colleagues' somewhat-cynical-but-sadly-accurate concern that students are more likely to ask to be allowed to "skip" the latter than the former). It was on disability accommodations when I arrived and is still on them today.
Christ, I'm wordy today. No pun intended.
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It does make some sense, but the reasonable accommodation seems obvious to me--allow them to take a different course to fulfill the "realism drawing" requirement for graduation and eliminate realism drawing as a prerequisite for other classes they need to graduate. Or if it's one assignment out of x for the course, excuse them from the assignment and grade them on x-1 assignments.
The religious accomodations to life drawing in fine arts remind me of a woman who graduated a couple of years before I started undergrad.
She fought for a religious accomodations to use the Koran in its original Arabic for her comparative religions classes, because she in her personal faith considered reading the Koran in translation sacrilegious. The professor did not read/understand Arabic and resisted the accommodation because it would be more work to modify assignments just for her, and because it would make grading more difficult if she cited the original Arabic version of the text.
When I had that professor, they spoke of her as if she had asked for the most monumentally unfair thing ever.
How easy would it be to have two life drawing sessions, one with a nude subject and one with an underwear-wearing subject? Or even the same session with two models and a screen? A fine artist who is never going to render genitalia in their career doesn't need to learn that skill.
(Two sessions is more expensive. Paying another model is more expensive.) Something I read on a parenting subreddit that the algorithm served me up stuck with me--it is not necessarily for the reasonable accommodation to be the cheapest accommodation.
A different professor I had, with the benefit of tenure and access to the department's discretionary budget, had a straight up policy of:
"write your papers in the language you're most fluent in, let me know ahead of time what language I need a grader for, and I'll handle the rest form there."
Yet another Russian novel of a response
How easy would it be to have two life drawing sessions, one with a nude subject and one with an underwear-wearing subject?
As you said, money is the object, but I have to say that, having worked in higher ed for 30 years and taught at a community college for 20, I am a little more sympathetic to those concerns. My college operated in the red for years, in no small part because the state that is supposed to be providing us with 1/3 of our budget gave us nothing for years, and is still not giving us anything like that 1/3. We've had retirement "incentives," layoffs, department consolidations that has left my department, Humanities, which literally encompasses a quarter of the required courses in degree-granting programs and at least several in certificate programs, with a part time chair and a student worker we share with the whole of Liberal Arts and Sciences in place of an admin assistant. Some of this is spectacularly bad reorganizing that favored high-level admin over the people who are actually ground support for faculty, but a lot of it is just money. And if a second session in which a model is paid and classroom space is provided and a professor supplies what's probably unpaid time (and see above re: five classes; time spent on that session is time I'm not grading or prepping or doing something as radical as spending time with my kid) doesn't sound like a lot, it's one of a thousand paper cuts we have to find a way to manage.
(Note: I don't really know enough about art to thoroughly defend the Life Drawing requirement except to say that (1) the issue is seldom so much "genitalia" as it is "lack of clothing that violates that person's religious restrictions, up to and including little more than face and hands," at which point it becomes about (2) human anatomy. There is only so much degree customization possible. Believe me, I would have loved to not take a course in American Romanticism, or the graduate-level Chaucer course, or for that matter, the calculus course I had to take freshman year. And we are, in fact, under considerable pressure not to require courses that are considered "superfluous" (which is to say, not directly connected not just to the student's major, but to the specific job they want. And we've tried to accommodate that through certificate programs, but for degrees...either you believe in the value of a liberal arts education or you don't, and if you don't, well, that's a much more fundamental divide.)
So, back to that "what my job actually entails" thing. I'm guessing that the professor who accepted papers in any language was a content course teacher rather than a skills course (history rather than writing), but even then, oh my sweet virgin Mary. It's...laudable that they were able to do that, although I note that you mention "discretionary budget," and I am forced to wonder if that money covered just the translators or the professor's time and labor as well. And then I am forced to laugh until I cry, because I can't get "discretionary" money to fix the broken drawer in my desk, and I have both tenure and a spot pretty high on the seniority ladder. We are hemorrhaging side benefits like tuition waivers and reductions for ourselves or kids while being asked to do more and more administrative tasks - and to be clear, it's not that I think I'm "above" those tasks. It's that they take time.
Which brings me to an overall point: I have told many students, in a variety of roles, that I have to balance what I can do for one student against what I can do for all of them. I once had five students asking for override admission into a full course (that every one of them needed to graduate and every one of them had left until their final semester) when I literally did not have enough computers or desks or room for more than one them in the classroom (and that assumed none of the computers stopped working, a laughably optimistic assumption at the time). And I told them, flat-out, that since I could not accommodate all of them (not that I am usually inclined to take on extra unpaid labor in situations that are caused by students not paying attention to requirements rather than, say, the military not coming through with GI Bill funding in time), I could not accommodate any of them. Two continued to argue with me, and I finally asked them if they thought I should let them (singular) into the class, but not the others who needed it just as much and for the same reasons they did.
They both said yes.
As a teacher, as (for a while) a low-level admin, and as (thank God no longer) the person who determined course placement in borderline cases, I am/was presented over and over with things that sound perfectly reasonable for one person. Sure, it probably would have taken me 20-30 minutes for me to call a student's high school teacher to discuss their performance in writing classes. But if even ten other students asks for that, I'm performing a lot of work for a job I got paid like $100 a month for and did more as a service than anything else. And I would have no justification for turning those students down once I did so for one.
All of this tl;dr comes down to: there are so, so many reasons why I could/cannot give a student ENG102 completion credit because she took an extra "writing intensive" hour for content courses at another school, or accept a student missing one (of three) classes every week for job requirements, or let another not so much adjust the assigned topic of a given essay as change it entirely. I try, dear God, I try to be as flexible as possible. But for me, at least, the situation like what you describe with the Koran you describe above wouldn't just be about what I could do "just for her." There are certainly situations in which I will be flexible, and others in which I will not (get me started on "I didn't do this existing assignment, so give me extra credit" sometime). But even just for her, finding a translator who doesn't have the same restrictions, ensuring that said person's translations accurately reflected both the original text and the writer's understanding of it (something I'm not entirely sure how I'd do if she couldn't experience the text in translation) and factoring all of that into a grade would...not be a trivial endeavor. And no, I wouldn't get funding for the translator. Maybe I should, but there's those thousand paper cuts again. But I also have to consider what I can and am willing to do for any other student requesting a commensurate accommodation. I mean, I sometimes get requests from students (sometimes with learning disabilities, sometimes not) to be allowed make a speech instead of writing. Besides the course being called "College Writing," listening to a speech and finding a way to comment would take considerably more time (and is actually something I would struggle with cognitively).
Okay, the "l" got a little more "t" there. Sorry. I'm avoiding grading. I have a lot of it.
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I mentioned before that the religious objection I run into most often (being a writing and occasional lit teacher) involves homosexuality. Sometimes sex in general, and in one memorable evaluation, swearing, but both as a teacher and a program director, the complaint I dealt with most commonly was, "This work is about/contains LGBTQ+ people. Reading it violates my religious principles."
Now, I have had many responses to that, ranging from, "You do realize that the other novel we read contains about 30 murders, including the wholesale slaughter of a small town?" to "The list of works we would be reading was made available several days before the course began. There was time for you to drop for a refund or another course." But I'm genuinely curious: how would you recommend handling a situation like that? I'm not being facetious or setting you up for another doctoral dissertation. I just really want to know: what sort of accommodation, if any, should be made for that student?
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It went fine for us until we had an interviewee cock their head and answer, "I dunno, what's a reasonable accommodation for this job?" and we had no idea what to answer.
In this particular situation, we would probably have had to remove certain job duties for this person. Which probably would have worked fine, we could have just shifted things around. But in order to figure that out we would have had to know details of their capabilities, which we weren't supposed to ask about in the interview. And as the interviewer I was not empowered to make decisions about job duties, and also had no idea what I was supposed to, or allowed to, say in the interview other than the required question. They decided to withdraw on their own - which I hope wasn't down to our reaction, but I don't know. If they hadn't we would have had to go to the manager, who would probably have gone to HR, who would probably have kicked it right back to us because they are terrible with questions like that.
I suspect the closest to a universal answer is that if there is no way for them to do the job as stated in the job description without fundamentally changing the nature of the job, then from a legal standpoint you can say there is no reasonable accommodation. But nearly all job descriptions at my level include "other duties as assigned" so that's useless, and there are a lot of people working here who are excused from certain duties for disability reasons. So it actually comes down to, is there an accommodation the applicant is willing to self-advocate for and/or that the employer is willing to offer, 'reasonable' or not?
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the thing is, there are often a lot more possibilities than people who don't have the disability realize. I remember reading a discussion of whether Deaf people can be EMTs -- the EMT who was asked at first thought, "no way" but asked a friend who told them about a Deaf EMT the friend worked with, who sensed vibration instead of sound when using a stethoscope. It turned out there's an organization for Deaf EMTs.
(Also it sounds like they threw you in the deep end with responsibility but no power. That sounds extremely annoying.)
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It is! But it's also not that uncommon for the person interviewing to not really have the training and/or power to know what to do here.
I think the point of asking the required question is that someone like the EMT will answer "yes", because they know they can do the job with reasonable accommodation, and then you're done, no more questions needed. And that works well a lot of the time!
Especially for jobs where the person is coming in with a fair amount of training/certification or experience, and presumably does have a pretty good understanding of what's required and how they can do it. If the applicant says yes, I can do the job with reasonable accommodations, this question shouldn't really come up for most people - and in that situation, the applicant has enough on the line that they are probably not going to say "yes" if they know they can't do the job. And if they're someone who has a lot of training, experience, and reputation, but isn't sure about accommodation because the disability is new, they would likely at least have a good understanding of job requirements, and the employer would likely have more motivation to accommodate them whether reasonable or not.
But the jobs I was dealing with were very part-time, non-career jobs that didn't really ask for any particular qualifications other than ability to do the job. And I've noticed that Alison tends to treat all hiring/job-hunting related questions as if it's for white-collar or other specialized jobs where people are building careers; often it's a very different situation for, like, part-time warehouse workers or a sales clerk at the mall. It sounds like LW is probably hiring more for those kinds of jobs, given the examples. Someone applying to be part-time night stocker at the Stop n' Shop as their first position since they became disabled probably doesn't have a particularly good understanding of what accommodations they will need or what the store can be expected to provide.
So I guess the question under this question is: to what extent is it the employer's responsibility to figure this out if the applicants don't know? Is it the applicant's job to come in knowing exactly what accommodations they need and if they're reasonable? If the applicant says, "I could do the job with these alterations, is that reasonable?" or "this is what I can do, could that be accommodated?", what next?
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https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada
https://askjan.org/a-to-z.cfm
https://odr.dc.gov/book/manual-accommodating-employees-disabilities/types-reasonable-accommodation
https://askearn.org/page/reasonable-accommodations
One of the reasons I was doubtful about this question is that it started out at the position that accomodations are/can be impossible. I think starting out at "this will be impossible unless proven otherwise" will end up being a self-fulfilling prophecy, you know?
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I mean obviously you can't be a programmer who is physically unable to type...
...is a comment I've had to respond to so many times in the last 20 years.
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ianal
I think employers also don't realize that in the US an enormous amount of the onus is on the employee to suggest accommodations. The employer's only on the hook legally if they're unreasonable in response.
So if the job requires driving a forklift and picking things off the shelves, and the blind employee says "I can do this if you pay for this mobile device and app, this special conversion of the forklift that costs $1000, these noise cancelling headphones, and let me have extra time," then the employer probably is on the hook to do those things. And if the employee says "I have no idea how to make this work and I can't see but let me at that forklift!" then the employer has no obligation to solve the problem.
Re: ianal
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Her color combinations on cakes were always really popular. She'd put together things that she thought sounded fun, and they disappeared faster than the conventional ones.
The most difficult challenge we had was figuring out how to duplicate Eeyore in frosting, but it came out really well!
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2) are you a professional cake dedorator? OH WOW!
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The one baking triumph that I remember was an algebra triumph, where I asked Dad what he wanted for his birthday and he said the (seasonal) orange-pineapple muffins. Their season was Summer. Dad's birthday is in the dank dark days of February in Alaska. I figured that they would sell like hotcakes, because everyone would be hoping for a hint of spring. We had the pineapple and a small amount of the orange paste left in the bottom of the bucket. Definitely not enough for even a half-batch.
Apparently algebra is a superpower, because I got permission to give it a try if I worked out the quantities. Which I did, and they were perfect. Dad got his birthday muffins, and the batch sold out very quickly.
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Good job on the muffins! I am all for algebra solving baking problems!