April 20, 2015

US Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 20507

Re: National Federation of the Blind’s comments on timeline for retrospective review

To Whom It May Concern:

This letter serves as the National Federation of the Blind’s response to the Equal Employment Opportunity Commission (EEOC)’s recent status report, or timeline for retrospective regulatory review, of activities to review, modify, streamline, expand or repeal significant existing regulations through 2023. These activities are being conducted pursuant to Executive Order 13563, which directed federal agencies to develop preliminary plans for periodically reviewing significant regulations, and we thank EEOC for seeking public input as it implements this charge.  

Technology has revolutionized the way our society functions, particularly in the employment context, a conversion that could open up countless opportunities for those previously excluded from mainstream employment. Instead, employment-related technology is, more often than not, designed to be inaccessible to people with disabilities. The blind encounter inaccessible technology during all phases of employment, beginning at the initial stages of searching for employment opportunities on inaccessible websites that require filling out inaccessible online job applications. Those able to overcome these barriers encounter inaccessible pre-employment tests on inaccessible platforms. The lucky few able to secure a job then confront inaccessible workplace software that prevents them from being able to succeed in accordance with their capabilities or, perhaps, from being able to perform job functions – not because of their disabilities, but because the software is inaccessible. The most damaging consequence of this digital divide is that, in essence, the ability to use work-related technology becomes an essential eligibility requirement, systemically screening out people with disabilities from employment opportunities.

In nearly every instance the inaccessibility of the software or website is the result of design or procurement choices and not the limits of technology or of the disability. The print world is inherently inaccessible to those with some disabilities; the only way to make printed text available to a blind person is to convert it into audio or Braille, but the digital world is capable of being accessible to people with many different types of needs as long as consideration is given for those users during the design phase.

However, those possibilities are being missed, and current EEOC regulations do not sufficiently address the need for accessible technology even though the discrimination mentioned above and described in detail below stands in stark contrast to the language and spirit of the Americans with Disabilities Act; EEOC must use the retrospective regulatory review as a vehicle to rectify these oversights.

Inaccessible technology violates principles of Title I

Title I of the Americans with Disabilities Act (ADA) prohibits a covered entity from discriminating against a qualified individual on the basis of a disability. A “qualified individual with a disability” is someone who meets the essential eligibility requirements for the job with or without reasonable modifications, removal of communication barriers, and provision of auxiliary aids or services,[1] and the kinds of discrimination prohibited include that in regards to recruitment, advertising, and job application procedures, hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination…and job assignments.[2] Despite the clear prohibition of discrimination during recruitment and the application process, far too many job vacancy sites and job applications are inaccessible, making it near impossible for blind people to independently seek out job announcements or engage in the initial steps of application without calling and identifying as a person with a disability.  Any person that has access needs will be barred from getting their foot in the door.

Similarly, Title I includes guidelines for selection procedures which are used as a basis for making employment decisions, specifically to determine qualifications or abilities to perform the job.[3] Yet many pre-employment tests are inaccessible, making it near impossible to measure whether or not a person is qualified without consideration of limitations caused by inaccessibility. It is important to note that these limitations are not caused by  a disability, but by access barriers found in technology. This context actually creates limitations for people with disabilities, a self-fulfilling prophecy caused by the very technology that should have leveled the playing field.

Title I regulations clarify that it is unlawful for a covered entity to use standards, tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, unless the standard, test, or selection criteria is shown to be job related and is consistent with business necessity.[4] And as long as on-the-job software is inaccessible and the trend persists in countless industries, classes of individuals with access needs will fail to be promoted or even be terminated. Once back on the job market, the cycle of exclusion begins again. Again, the most harmful consequence of this situation is that the ability to use work-related technology regardless of access needs becomes, erroneously, an eligibility requirement or part of the selection criteria, systemically screening out people with disabilities from employment opportunities.

Inaccessibility in the initial stages of employment

Blind people encounter barriers to equal employment opportunities as soon as they begin looking for a job. In 2013, we, along with the Massachusetts Attorney General’s office, noticed that the popular job search site www.monster.com was not accessible, and ultimately reached an agreement with Monster Worldwide Inc. to make the first accessible job search website.[5] For the first accessible job search website to appear in 2013, nearly five years after robust technical criteria known as the W3C’s Web Content Accessibility Guidelines (WCAG 2.0) was released giving direction for web developers for making accessible content, shows just how behind these companies are.

A study done at Towson University found that 90 percent of federal agency homepages had some violation of accessibility guidelines[6], a statistic that illustrates the severity of recruitment barriers considering that the federal government hires more people with disabilities than any other industry and purports itself to be a model EEO employer. Likewise, many blind people report that www.usajobs.gov is inaccessible, and during a recent Twitter chat with EEOC, NFB asked the Commission’s representative if something was being done to rectify the problem. The representative responded, saying EEOC was working to make USAjobs more usable, but did not make a commitment regarding accessibility. 

Even if a person with a disability is able to overcome hurdles to finding job vacancies, most will experience discrimination when filling out online applications. Any person that uses screen access software, like a blind person, or any person that cannot use a mouse, like a person with a dexterity problem, will be hard pressed to find an online job application that has been uploaded as an accessible PDF or coded using HTML5 to include proper labels. Some hiring management systems like Taleo are working to address these barriers, but nonetheless release iterations that are not usable to people with disabilities. The Taleo Scheduling Center user guide for Taleo Enterprise Edition 7.5 SP11 openly says that the default browser configuration does not support accessibility options, including 508 accessibility.[7]

A job applicant seeking employment in higher education recently reported to us that Interview Exchange, another popular hiring management system used in the higher education industry, is inaccessible. This individual was unable to apply for any jobs, including at his alma mater, because all the colleges to which he sought to apply used this inaccessible online application system.  Despite these identified barriers, Interview Exchange is still marketed as a hiring tool and deployed by many educational institutions. The more companies that embrace this technology for their screening procedures, the more people with disabilities will be wedged out of opportunities.                                       

Inaccessibility in the screening process

Job application procedures often extend into a screening process, which can include a pre-employment test to measure whether or not an applicant meets eligibility requirements and can perform essential job skills. Entities are prohibited from using screening procedures that limit an applicant in a way that adversely affects their opportunities, using employment tests that tend to screen out an individual with a disability, or failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure; rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).”[8]

Yet far too many employers are utilizing employment tests that are delivered in an electronic or digital platform that is not compatible with screen access software. This lack of interoperability is what makes the test inaccessible, a status that could be rectified if the developer or employer relied on nationally accepted accessibility standards like the aforementioned WCAG during the development or procurement of the test. Unfortunately, regulations do not instruct covered entities to follow any standards so it is not common practice.

Instead, inaccessible tests are deployed and the employer then provides an auxiliary aid like a human reader. Many blind people are used to synthesized text-to-speech that is controlled by the user; many human readers have never actually read for a blind person, and might not read at the desired speed or be good at taking directions, so this scenario is not likely to measure the applicant’s ability to perform essential job functions. Rather, it will measure how comfortable the applicant is using a human reader, and if they are not comfortable, the results will reflect that limitation. The practice of using tests that are limiting to blind people and has results that reflect those limitations rather than the skills, aptitude, or whatever other factor that the test purports to measure is prohibited by the ADA, but express prohibition of inaccessible tests cannot be found in current regulations.

EEOC must add this express prohibition and technical standards for accessibility to apply during the screening process, but the timeline for retrospective regulatory review states that UGESP will not be “reviewed” until 2021, and it does not project specific updates. The landscape for technology and trends in selection processes may be significantly different six years into the future, with multiple iterations of technological development throughout the interim. EEOC must examine the UGESP regulations sooner.

Current EGESP guidance[9] restates the ADA’s prohibition of employment tests that tend to screen out an individual with a disability or a class of individuals with disabilities unless the test is shown to be job-related and consistent with business necessity,[10] but it does not say that covered entities cannot make interaction with inaccessible technology a business necessity. The guidance also lists types of employment tests and selection procedures, acknowledging that many can be administered online, but the guidance does not require conformance with national accessibility standards. The guidance does remind employers of the obligation to provide reasonable accommodation on pre-employment tests, but the example provided is about denial of accommodations in a print-world scenario, with suggested accommodations of a reader or an audiotape. Neither of these examples would be sufficient in the digital world.

The guidance also says that if a selection procedure screens out a protected group, as an inaccessible employment test surely will do, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The example given is not specific to accessibility, and it does not solve the underlying problem. There is no “separate-but-equal” alternative in the digital world; print world accommodations cannot supplant out of the box accessibility. Even if equivalent alternatives existed, what criteria would the employer use for determining that the test was accessible?  

Like the guidance, EEOC regulations for screening processes have numerous rules on validity, but fail to mention accessibility at all. The regulations acknowledge that the Federal government recognized the importance of a uniform set of principles on the use of tests and other selection procedures, and incorporated a single set of principles to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting discriminatory employment practices. The UGESP are designed to provide a framework for determining the proper use of tests and other selection procedures, and users are encouraged to use selection procedures which are valid. EEOC should update the regulations using the same approach that was taken with validity to require the use of selection procedures which are accessible.

The regulations require that selection procedures be administered and scored under standardized conditions, users are provided a reasonable opportunity for retesting[11], and when a selection procedure is used that has not been validated, the applicant can take an alternate selection procedures to eliminate adverse impact.[12] The guidelines explicitly state that “such alternative procedures should eliminate the adverse impact in the total selection process, should be lawful and should be as job related as possible,” and when addressing informal or unscored procedures, the regulations set forth circumstances to minimize and eliminate adverse impact. Inaccessibility has significant adverse impact, as it excludes an entire population from being able to independently and successfully perform on an employment that is meant to measure certain job-related functions and skills without limitations because of disability. For the same reasons that validity is addressed in detail, accessibility requirements must be included in the regulations.

Inaccessibility on-the-job

If a person with a disability is able to overcome access barriers when searching for a job, applying for a job, and taking pre-employment tests, they are part of the minority of people with disabilities that have been able to secure competitive, integrated employment. Once they start participating in the workplace, they are required to interact with additional technology, some of which is integral to the functions of the job. When that technology is inaccessible, which the majority of it is, the covered entity can make the necessary modifications to ensure that the person with a disability has some level of equal access (which, as previously described, is difficult to do without knowledge and interoperability). Instead, the employer often resorts to terminating the person, or failing to promote him or her, because the employer has created conditions that prevent him or her from performing essential job functions. This trend will culminate in the systemic screening out of people with disabilities from employment opportunities.

EEOC has several opportunities to reverse this trend. The timeline anticipates review of Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by EEOC and in Accessibility of Commission Electronic and Information Technology[13] regulations this year, a reasonable projection considering the Access Board’s recent publication of a Notice of Proposed Rulemaking to update the guidelines that serve as a guide for federal agencies in their commission of material under Section 508 of the Rehabilitation Act. We hear from countless blind employees of the federal government that their agency is noncompliant with 508, that the IT team does not communicate with the accessibility team, that the interagency culture focuses on retrofitting inaccessible technology with accommodations rather than on true 508 compliance that ensures mainstream access, and that the self-policing nature of 508 makes it near impossible to hold the agency accountable. As EEOC begins updating regulations that governs this enforcement, please consider how the regulations can change agency’s approach to 508, from one that focuses on ad-hoc accommodations to one with mainstream accessibility as a central piece of federal culture.

Having said that, federal culture is not the only place where this change is needed. Inaccessible technology has proliferated in almost every industry, locking blind people out and forcing others that have built successful careers to leave their jobs. For example, actions by the Center for Medicare and Medicaid Services to incentivize health care providers to transition from paper-based medical records to electronic health record (EHR) technology through a reimbursement program is pushing blind health care workers out of the industry. The Office of the National Coordinator for Health Information Technology (ONC) publishes Health IT Certification Criteria to assist developers of EHR technology in making technology that aligns to the goals of that incentive program. Last year, ONC proposed a 2015 edition of the certification criteria that was supposed to incorporate changes designed to foster innovation and open new market opportunities. While those criteria increase the accessibility requirements of functions performed by the patient, the criteria did not require functions performed by the provider to be accessible. Thus, the criteria issued by the federal government to stimulate the market overlooked the importance of accessibility to health care workers with disabilities. What a missed opportunity!

EEOC must not make the same mistake, but the most recent action taken by the agency is troubling. For the current rulemaking on Federal Sector Equal Employment Opportunity, EEOC recently having issued an Advanced Notice of Proposed Rulemaking (AMPRM) seeking public input on additional issues associated with the Federal sector EEO process since the regulations were last updated in 2012. The ANPRM mostly covers complaint processes, but nowhere in the notice is there mention of accessibility. While accessibility requirements, 508-compliance, and the obligation to provide accommodations still apply even during hearings and other complaint procedures, there must be a focus on ensuring that all materials are available in an accessible format and all digital or electronic technology used during a hearing is accessible.     

We urge EEOC to conduct these activities with a heightened awareness of how accessibility can and should be considered during rulemakings, and the review should be done with a lens that looks at accessibility more globally. This includes unexpected regulations, where accessibility does not seem relevant but it nonetheless is. According to the timeline, EEOC plans to review regulations implementing the Privacy Act this year, including a list of its systems of records and guidance to members of the public who wish to exercise any of the rights established by the Act with regard to records maintained by EEOC.[14] It is imperative that EEOC consider the accessibility of those records, ensuring that blind employees tasked with record keeping and blind members of the public seeking to access those records, can actually do so. Similarly, as EEOC reviews the Recordkeeping and Reporting Requirements Under Title VII, the ADA, and GINA[15], we urge the inclusion of accessibility standards for those requirements as well.

We hope these comments accurately stress the damaging affects inaccessible technology has on people with disabilities in the employment context, particularly the ultimate outcome of the ability to use inaccessible technology becoming an essential eligibility requirement, systemically screening out people with disabilities from opportunities. We understand that this is a significant problem, and that the retrospective regulatory review is a substantial task; again, we thank EEOC for giving us the opportunity to provide input. As the oldest and largest organization of blind people in the United States, we hope EEOC will see us as a resource during this process, including any implementation of the proposed updates included in these comments, and we look forward to working together. Thank you for your consideration. Please do not hesitate to follow up with questions.

 

Sincerely,

John G. Paré Jr.

Executive Director for Advocacy and Policy

National Federation of the Blind