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Reasonable Accommodation Includes Electronic Accessibility

by Kate Bischoff
Zelle LLP

Computers, mobile devices, and the Internet are integral parts of today’s workplace. Employees email, log into various systems and programs, complete employer forms, and manage their time online. Job seekers research employers and submit job applications online. For the 56.7 million Americans with disabilities, these simple tasks may be impossible unless electronic systems are accessible.

When employees are required to be online, whether to perform their usual duties, download a paystub, or change their benefits enrollment, the Americans with Disabilities Act requires the employer to make reasonable accommodations to ensure that their tools and systems are accessible. This requirement of reasonable accommodation extends to recruiting and hiring, and protects applicants as well as employees. Images without descriptions, “click here” buttons, and certain color schemes are among the barriers that can prevent individuals with disabilities from accessing and using a website or mobile app, even if they use adaptive technology like screen readers.

To address accessibility concerns, employers need to focus on website accessibility standards. The Web Accessibility Initiative has developed a set of standards that, when implemented, allow most individuals with disabilities to use the Internet and mobile apps with the assistance of screen readers and other adaptive technology. These standards are recognized by the U.S. Department of Justice when the agency enforces Title III of the ADA in the ecommerce industry. They are likely to be recognized by the EEOC and other employment law enforcement agencies as well. When the standards (technically referred to as WCAG 2.0) are integrated into websites and systems, individuals with disabilities are much more likely to be able to access the tools necessary to apply for or successfully perform a job.

These website accessibility standards are not easy to understand. They were created for website and software developers, and it takes expertise to review and implement them. It’s not likely that employers will have sufficient expertise in-house, but HR professionals and corporate counsel can and should discuss accessibility standards when choosing vendors and website developers. Compliance with accessibility requirements is ultimately the responsibility of the employer, but can be a requirement imposed on every vendor or website developer from which the employer makes purchases.

Here are the most common circumstances that can cause an employer to fall short of meeting its legal obligation to make its systems accessible:

1. Online applications. Requiring that applicants complete application forms on an inaccessible website can keep individuals with disabilities out of the workplace. Employers want diverse workforces, and federal contractors have 7 percent utilization goals for individuals with disabilities as a part of their affirmative action plans. If an online application cannot be completed by individuals with disabilities, employers and prospective employees miss out.

2. Employee “self service.” Employees may need to change their address or phone number in company records, report time or activities, elect benefits or make benefit changes, or check a paystub. Employers are increasingly turning to self-service style programs that let employees do these tasks themselves rather than relying on human resources staff. If the self-service system is not accessible, employees will have to forego the task or seek assistance, and may not know where or how to get help.

3. Job duties. Many jobs require the use of multiple systems every day. If the systems and tools employees work with are not accessible (or cannot be made accessible through the use of adaptive technology), individuals with disabilities may be prevented from meeting the employer’s standards of performance. If that results in reduced pay, discipline, or termination, the employee may utilize the ADA and comparable state laws to make legal claims against the employer.

In February, Corporate Counsel called website accessibility the “next class action threat.” When individuals with disabilities are kept out of ecommerce or the workplace by inaccessible websites and electronic tools, class action and individual litigation can result. Employers’ best defense to this threat of litigation and liability is prevention through careful attention to accessibility.

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