Negotiation Principles for Reasonable Accommodation
JOB Employer's Bulletin / 1993
In parts one and two of our series on the Americans With Disabilities Act of 1990 (ADA), JOB spoke of some of the issues involved in the hiring process and their solutions. Now let's take a look at the next step—negotiating reasonable accommodations. The following examples are from actual events that occurred in the last three months.
Based on her credentials and personality, a Midwestern college chose Ms. Mary Doe from among several candidates for a 25-30 hour per week job as a counselor for students. The interviewer from the counseling department learned during the interview that Ms. Doe is legally blind. After the contract was offered, the departmental chairman directed his number two person on the counseling staff to find out what they might do and must do to provide reasonable accommodation. Because the job is part-time, and because this college is suffering budget cuts and freezes, they are a little worried that a need will exist that they cannot supply. In spite of their "can-do" attitude, underlying all is some fear that they might run afoul of the ADA. The researcher called JOB to ask for answers to their practical questions on the needs of legally blind colleagues. He stated:
The job entails reading files on students, direct counseling with students on schedules, resolving schedule conflicts or difficulties with professors or other college personnel, researching and making referrals to college and community resources for emotional or other problems, and writing any reports required for the files.
Here is part of the information JOB covered with this researcher:
You must be wondering how Ms. Doe is going to handle the reading required for most of these tasks. Alternative techniques do exist. We'll look at this specific issue as a way to cover the principles involved in working out reasonable accommodations for an employee who has a handicap.
NEGOTIATION PRINCIPLE #1: BEGIN EARLY
We suggest you begin your negotiation very soon after your company makes an offer of employment to the job candidate. Ask the candidate for advice on accommodations requested, preferred, or critical in order to perform the job on a competitive basis with other employees.
Specifically which accommodations are needed always depends on the individual. Generally it is useful, and less expensive, to confer with a new employee with a handicap before she arrives on the job. Some accommodations take a little time to set up.
It is important to note that the majority of those who are legally blind either do not read print or do not read print materials fast enough to be competent and competitive in an office situation unless they use alternative techniques. However, some persons who are legally blind do read print, especially if their central vision is unaffected. Others can read print some of the time, but not all of the time.
If Ms. Doe cannot read print directly, the most common and most inexpensive method of accommodation to the print needs of this job would be to use a sighted person as a reader. Using this method, Ms. Doe would likely batch her print reading needs as much as possible. She might set aside the first hour of each morning as "reader time." Ms. Doe would direct her reader to pull and read to her the files of students coming in for appointments that day or week.
Should this be the preferred accommodation, Ms. Doe will likely search for volunteer readers from the literate community around the college. As you might provide a list of apartments or real estate firms to help a newly hired professor get settled quickly, you might provide her with a list of names and phone numbers for local persons who are recent college staff retirees or perhaps of local organizations that many educated retires belong to. It would be her responsibility to interview and decide on how many and whom to "hire." (Just as your list of apartments would be intended as a help, not as an order.)
Depending on her favorite form of accommodation, Ms. Doe may take notes in large print, in Braille, or on tape as the reader speaks. If she has a computer with a large print program or with voice output, she may enter her notes in that system. Student records that are already in a computer system will most likely be directly accessible once her adaptations have been added. (JOB offers free expert consultants on computer adaptations. See JOB Employer's Bulletin / 1992 for more on funding computer aids.)
VOLUNTEER READERS or PAID READERS?
This job is part-time, and therefore the department may decide it would be, in the language of the ADA, "an undue hardship" to supplement Ms. Doe's salary with money for paid readers. Should her position become a full-time position, providing a stipend to pay all or part of her reader costs would be in line with the ADA.
A systems engineer, recently hired by a telecommunications firm in California, is totally blind. He graduated from Stanford University last spring with a master's degree in electrical engineering. Here, he recaps his job interview in a speech made to an audience of legally blind job seekers at a JOB seminar:
I explained that I thought to do good engineering work I would like to work with readers ten hours a week and pay them $7.50 an hour. This would be $3,250 a year. I would be willing to pay it out of my salary or they [the employer] could supply the funds in addition to my salary. He said he would take that into consideration and wrote it into the offer letter I received several weeks later.
Generally, whether paid or volunteer, it works best if readers are treated as part-time workers under the supervision of the person who is legally blind. As a staff counselor, Ms. Doe will be responsible for retrieving all necessary data and maintaining the confidentiality of student records. This holds true whether she reads files directly or trains and supervises readers who work at her direction.
If your department decides to provide a stipend to pay for some reader service, would your accounting department require that Ms. Doe submit periodic requests for reimbursement? We suggest if requested to do so by management, Ms. Doe could maintain a log of reader hours similar to a mileage log for travel reimbursements.
NEGOTIATION PRINCIPLE #2: ASK THE ONE INVOLVED FOR RECOMMENDATIONS
During the interview it was determined that Ms. Doe is a competent person. Generally you can expect that she has dealt with her disability for several years and will have a good idea of the accommodations that can best help her to perform the job according to your departmental standards. Should she propose an accommodation that you consider too expensive for the circumstances, make a counter-proposal. We suggest you go to Principle #3.
NEGOTIATION PRINCIPLE #3: DON'T PANIC, also known as, ENCOURAGE FLEXIBILITY
For "instant" reader needs—such as a student who needs an emergency appointment when Ms. Doe's reader is not available, or for a quick review of written phone messages—you could offer to Ms. Doe your permission to use on a short-time basis, any available person in the department's secretarial pool. You agree to add this duty to the job description for each secretary and you provide the leadership that encourages (and, if necessary, requires) the secretaries to treat her reader requests as no different than other urgent requests they receive from other staff persons.
Should you feel Ms. Doe is taking unreasonable advantage of the situation, you have a right to discuss it and require a change in behavior just as you would do should a sighted staff member overstep staff privileges of access to the secretarial pool.
Occasionally for quick reading needs, fellow counselors may act as her reader, especially if Ms. Doe has shown willingness to assist them when they need a favor. This is similar to any staff member asking another for help in order to build on the other's insight, knowledge, or skills. Such give-and-take is seldom going to work if it is "legislated" but will be affected by the attitude displayed by the department heads. Will you set an example of willingness to share your skills with her and will you request a variety of assistance from her? This might be anything normally asked of fellow staff members from refilling the paper in the copy machine to covering a speaking engagement at the student union.
NEGOTIATION PRINCIPLE #4: GIVE "LINE ITEM VETO POWER" TO THE EMPLOYEE.
As the employer, you set the standards for the level of performance you expect from your employees. In all fairness, the employee who is legally blind must be expected to produce results in line with your usual standards.
According to the ADA, that employee has the right to use reasonable accommodations to reach your goals. If Ms. Doe's colleagues are expected to work with a minimum of 45 students per week, then she must meet that same requirement. In all fairness, you as the employer should have veto power, and do, on the cost of accommodations. Again, in fairness, the person with a disability should have veto power over the specific accommodations offered. Here's one example...
You probably believe that you need a car in order to be able to get to work or to fulfill the needs of your position. Would you say the following to a friend? "Here's my credit card. All cars have four wheels and will get me where I'm going; therefore, go buy one for me."
Operating on the belief that anyone can read aloud and therefore you should chose another person's reader, is similar to asking another to buy your tool, the car. You might get a tool to fit your needs; but perhaps not. When accommodations, including those which were provided with the best of intentions, create problems for the person with the disability, they are not reasonable.