ARLENE KANTER: Okay. I'm going to get started. Welcome to our session at the tenBroek Disability Law Symposium entitled "Remote Accommodations in Work and Post-Secondary Education." Gives me great pleasure to be here. My name is Arlene Kanter. I go by she/her/hers. And I'm joined by a lawyer named Mary Jenae Goodwin-Oquendo who is not only my former student, I'm proud to say, but one of the leading authorities on access to higher education for students with disabilities.
I'm an older woman with graying brown hair, glasses, wearing a blue top seated in front of a Zoom background that is now blurred. I'm a law professor at Syracuse University College of Law and founder and director of our disability law and policy program. And recently the director of our international programs. I have been teaching law for 35 years after running the Bazelon Center for Mental Health Law.
I want to take a minute to thank the National Federation of the Blind, especially Lou Ann Blake and Stacie Dubnow and my copanelist Mary. And I have to say I learn from all of you, and I appreciate what I've learned and to be able to be here with you today.
In March 2020, like many of you, I was forced to leave my office and work from home. We were the lucky ones. We have homes where we could work with high speed internet and where the nature of our work allowed us to work away from the workplace. That's not true for many essential workers who provide medical care, stock our grocery shelves, drive our buses, or fight fires. What I would like to discuss this afternoon is what we have learned about remote work now, three years into the pandemic, that is relevant to the rights of disabled people in this country.
As you see on the slide, this is an outline of my presentation. I'll start with an overview of the rights of disabled workers to work remotely. I just want to confirm that you can see the PowerPoint for those who can see the PowerPoint. Can you confirm, Mindy, that you can see the PowerPoint?
MARY GOODWIN-OQUENDO: I cannot.
ARLENE KANTER: Okay.
MARY GOODWIN-OQUENDO: I see your desktop.
ARLENE KANTER: Okay. Give me just a minute please. Sorry.
Can you see the PowerPoint now, Mindy?
INTERPRETER: (Thumbs up).
ARLENE KANTER: Thank you.
As the outline here states, I'm going to provide an overview of the right of disabled employees to work remotely, identify the benefits of remark work, and cases I have reviewed to see how courts are deciding whether employees have a right to work remotely or not. What I have found is inconsistency in the case law. As I have explained, I will suggest recommendations to the EEOC on how to resolve these to give courts as well as employers more guidance about the importance of remote work as an accommodation.
Following my presentation in about 20 minutes we will hear from Mary Jenae Goodwin-Oquendo who will discuss remote accommodations in postsecondary and professional schools.
In 1990 when the ADA was enacted, it was considered a major legislative accomplishment. Indeed, it has resulted in increasing opportunities for some people with disabilities in the United States. But it's also limited, as discussed in some of the prior panels of this conference. Most of my work focuses on the development of international disability law, and I will report that the ADA has been a model for the U.N. in drafting the Convention on the Rights of People with Disabilities, which was adopted by the U.N. in 2006 and ratified since then by over 180 countries but not the U.S. For the purpose of my discussion today, I want to focus on whether and how the ADA can increase employment opportunities for disabled people. The fact is that even now 30 years after the enactment of the ADA, it has not resulted in a dramatic increase in the rate of employment for people with disabilities. Unfortunately, a disproportionate number of people with disabilities remain unemployed and underemployed. Based on data from the U.S. Bureau of Labor Statistics, I prepared the chart here which shows that between the years 2009-2020, nearly 30% of people with disabilities have been employed each year, in contrast to 70% of people without disabilities.
Disabled people face unemployment not because they are not qualified or because they don't want to work. That's what the research shows. In fact, what keeps people with disabilities from being gainfully employed is not their lack of skills or education, but rather ableism, prejudice and discrimination, particularly by employers who refuse to hire them. Ableism is defined as a, quote, system of beliefs and actions based on the idea that certain abilities or ways of being are superior to others. In the workplace, ableism denies people with disabilities the right to be treated equally and with dignity.
A 2010 study I found revealed that nearly half of the employees with disabilities reported that they had encountered discrimination in the workplace due to their disability and that they were paid less than workers with similar skills, or not hired at all. Ableism is evident throughout Title I of the ADA. In order to prevail under Title I, an employer must establish they are worthy of special treatment because of some problem or medically diagnosed condition they've had since birth or acquired as an adult. Indeed, the ADA's definition of an individual with a disability locates the problem of discrimination within the person who is described as substantially limited in the performance of one or more major life activities. This language in the law conjures up stereotypical images as people with disabilities as broken, weak, unable to function, deserving of pity, not a job. It is counter to the social model of disability about which I have written and which itself can be critiqued, but the social model does place on society the responsibility for removing barriers to inclusion for and participation by people with disabilities. Even once a litigant qualifies for protection under ADA, they must establish that they possess the necessary job qualifications, but even that is not enough. The disabled employee will continue to be viewed as unable to do the job like everyone else unless or until some special accommodations, adjustments, or modifications are made to the, quote, normal working roles and conditions of employment.
Ableism can appear like parentalism, benevolence, and pity. One scholar observed, discrimination against people with disabilities is not something that only unkind people do. In the workplace, ableism may take the form of parentalism. Remember the Murphy case, in which the Supreme Court held that the employer rather than the employee himself should decide if a job poses a particular risk to the health of that employee.
Ableism can also take the form of resistance from coworkers because of what has been termed the politics of resentment. In that case, coworkers may think that people with disabilities are faking it or trying to get away with something. I should add that we see that too among law students and law faculty, not only in other workplaces.
Although some may hold this view, the evidence also shows that overall people with disabilities are among the best employees and that companies that employ disabled workers have better bottom line incomes than those who do not.
In addition to ableism, many people with disabilities face barriers in securing jobs because of other reasons such as lack of accessible transportation or inaccessible workplaces, or employers' refusal to provide accommodations. You remember I'm sure the case of Vande Zane, where the judge found that lowering a sink so an employee who used a wheelchair could prepare her lunch in the lunch room, rather than having to use the bathroom sink, was simply too expensive at the cost of $150. For any defendant, that is hardly an undue hardship. And for the state of Wisconsin, there was a defendant in that case, it was a drop in the bucket. Yet the court found it to be unreasonable.
I've reviewed all of the cases that have involved remote work, and based on this research, I'm found that absence is a common reason for many disabled employees to lose their jobs. Yet studies have also found that employees who work from home are able to return to work at home after an illness more quickly than those who are required to return to the office. Similarly, for employees with chronic diseases that may flare-up periodically and even unpredictably, they may not need a full day off of work if they can arrange their work schedule by working in the evenings or on the weekends at home. Such flexibility is not possible in jobs that require physical presence at a workplace during, quote, normal working hours. Of course I will not suggest that remote work which involves removing people with disabilities from workplaces is a solution to fight workplace ableism and prejudice, not at all. Our sordid history of placing people with disabilities, quote, out of sight and out of mind must never be repeated. But authorizing remote work as an option for those employees with disabilities who request it has benefits for employees, as I would like to now explain.
Over the past two years a number of remote workers has increased exponentially. Even today, more than two years after the pandemic began, nearly half of America's workforce is still working remotely. And after the pandemic ends, the vast majority of workers will continue to work at least 1-2 days at home. Not only will there be more remote work, but many employees and employers want it that way. One recent study found that 80% of workers want to work from home at least some of the time, and it seems clear based on the research that the consensus seems to be coalescing around 3 days in the office and 2 days remote.
Although it is still too early to know if remote work will substantially increase job opportunities for people with disabilities, what I have found so far is that the research is pointing in that direction. For employees working from home allows employees to have more flexibility, hoping to achieve a better work-life balance and greater job satisfaction. It also has savings, commuting, grooming, accessories, lunch out, and other expenses related to working in an office. In one study I found, by telework, employees who worked at home saved 1600 to $6,800 each year. Studies have also shown that remote work results in improved employee performance, morale, and increases in employee recruitment and reduced turnover.
Remote work also has advantages to employers. Overhead. The cost of space is the highest source of expenses for most employers. A study by Harvard Business School found that people at home were working on average 48 minutes per day. Employers liked that. Moreover, this should be an incentive for private employers to hire disabled people since a recent poll revealed that 92% of consumers favor companies that hire disabled people and 87% of consumers prefer doing business with them.
Of course remote work is not an option for all employers, not all employees. It's not possible for all types of jobs. Some employees prefer social interaction in an office, rather than working at home alone. And employers too express concerns about risks to confidentiality of their information. But for some disabled people, remote work offers new employment opportunities, especially for those who have had difficulty finding or keeping jobs due to inaccessible workplaces or difficulties getting to and from work.
So what's the problem here? The problem here is that the vast majority of courts have upheld employers' decisions, denying employee requests to work remotely. For the remainder of my time, therefore, I would like to present my research for my upcoming article in which I argue that given the increasing prevalence of remote work brought about by the pandemic, the ADA should be reinterpreted to specifically allow remote work as an accommodation under Title I.
As I'm sure most of us here today know, the ADA prohibits discrimination against a qualified individual on the basis of disability in all aspects of employment. A qualified individual with a disability is an individual with a physical or mental disability as defined by the law who with or without reasonable accommodations can perform the essential functions of the job. Once an employee asks for an accommodation, the employer has an affirmative obligation to engage in an interactive process to discuss the reasonableness of the accommodation and to provide the accommodation so long as it does not present an undue hardship or pose a direct threat. However, an employer is not obligated to provide or request an accommodation if it would eliminate an essential function of the job. So the question now is, is working on site an essential function of the job? All jobs? Some jobs? How do we decide?
An essential function of the job is defined in the regulations as the fundamental job duties of the employment position the individual with a disability holds or desires. Again, I'm going to repeat it: The fundamental job duties of the employment position the individual with a disability holds or desires. That's an essential function. So if the function is fundamental to the position, it is essential. If it can be waived or is marginal, it is not essential. One and only one of the seven factors in determining whether a function is essential is the employer's judgment. The other six factors include, as I show on the slide, written job descriptions, the amount of time an employee spends performing the function, the consequence of not requiring the employee to perform the function, the current work experience of incumbents in that job, the work experience of past incumbents in that job, and the terms of a collective bargaining agreement.
As this list shows, nowhere does the law or the regulation say that the employer's judgment as to what functions of the job are essential is the most important or controlling factor.
Yet that is exactly what courts have decided.
I recently reviewed all of the ADA remote work cases I could find from every circuit for the past 20 years. About 100 cases. These cases should show that the court is carefully balancing the needs of an employer with the rights of an employee under the ADA, right? That is what I was hoping to find. But that's not the case. Although most courts have rejected a legal presumption against working from home, most courts simply defer to the judgment of the employers who require physical presence as an essential job function. Why? Because that's what the employer said.
On slide 7 and 8 here, I will show you two charts that try to illustrate how these cases have been decided. This first chart entitled the number of circuit court cases for employer/employee by circuit shows that employers and employees between the years 1992-2020, that in all the circuits, the courts here decided most cases for the employer. Except the D.C. circuit which decided cases for the employee. I'm sorry. Except for the second and sixth circuits which decided some cases for the employee. And the sixth circuit in which there was an equal number of cases decided for the employer or employee.
The next slide, slide 8, shows a chart of cases again from 1992-2020 showing that the number of cases brought has increased generally, cases involving remote work requests, but that the number of cases decided for the employee has remained constant. I can go into great detail if you have questions about these cases, and I do discuss them in detail in my law review article. But to summarize, my research shows that the courts differ among themselves as to the decision within the same circuit. What's most striking to me about the developing case law in this area is how little evidence is typically required by the courts to show the employer's, quote, undue hardship. The most common arguments presented by the courts for the employees include the following: That the employee is no longer qualified because of poor attendance record or poor overall work record. Once an employee is no longer qualified, that the employee has no right to request any accommodations, including remote work.
Second common argument was that the employee cannot do the essential functions away from the workplace, that the employer should be able to keep an eye on the employee. But the problem here is that today's computer programs and software have been developed to enable employers to know when an employee is working, at their desk, logged on, regardless of where they're working. And although one may object to the use of surveillance softwares, they have been developed to keep an eye on employees working away from the office. There's one dissenting judge in one case who said, quote, it should no longer be assumed that teamwork even must be done in person.
Some cases though, do cite the need to meet customers and teamwork is a reason to deny a remote work request. And concerns are acute when there is no end date, when the employee is asking to work remotely indefinitely. In those cases courts have been less willing to grant requests for remote work as opposed to when there's a date certain to return to the office. As a result, what we see in these cases is that a majority of the courts condone employers' mistaken reliance on Title I's qualification standard to deny employees their rights to request and receive a modification of a workplace rule requiring physical presence in the workplace. The ADA requires that a qualified employee with a disability has a right to the job so long as they can perform the essential functions of the job, with or without accommodations. So in light of recent technological advances which allow employees to be supervised as needed while maintaining efficiency and productivity while working from home, seems to me that the legal reasoning of these cases rejecting remote work will become less persuasive. In fact, I argue in my article that employers are now hard pressed to deny remote work requests on the grounds they cannot perform the essential job functions. The same employers are the ones who sent their workers home to work during this pandemic after all. Of course remote work is not feasible in every case and appropriate for every situation, but few courts have actually looked behind the words of the employer to determine if the essential functions such as teamwork or personal interaction or supervision could be provided remotely, especially in light of our recent advancements in technology. Instead, the courts have denied these requests without giving the employee a chance to show whether or not they could perform the essential functions of the job remotely. According to my reading, this is the type of adverse employment action against people with disabilities that Title I was designed to prevent. To address the inconsistency, I would offer several recommendations which I'm going to run through quickly here and we can discuss more at the end if you like. First, the EEOC I suggest should include remote work as a reasonable accommodation that can be denied only if the employer can show an undue hardship by clear and convincing evidence, and show that the essential functions of the particular job cannot be performed away from the workplace.
I argue that prior work history, the employee's attendance record at the workplace should not be a determinant regarding whether the employee is able to perform the essential job functions somewhere else; working at home may not present the same obstacles as maintaining and traveling at the workplace.
Second, my second proposal is to consider adding the fundamental alteration defense under Title I. If allowing an employee to work off site would cause an undue hardship or fundamentally alter the nature of the job or the workplace should a court uphold the denial to work remotely. We know the current defense is available under Titles II and III, and I believe it should be expanded to Title I. I argue in my article that although the fundamental alteration defense does not include Title I, the EEOC should nonetheless require this defense. If the nature of the work performed remotely could so fundamentally change that specific job, then the request to work remotely should be denied. But on the other hand, if there would be no fundamental alteration in the nature of the work or the specific tasks involved by performing them remotely, the employee's remote work request should be granted.
Third proposal for the EEOC is that they should add an 8th factor to their list of essential job functions. This new factor would be the employee's judgment. The EEOC should provide an opportunity for the employees to offer their judgment, their evidence, as relevant to the determination of essential job functions. Nowhere in the ADA cases is employee's judgment about where they can best perform their job a factor for consideration. In fact, courts have determined using the statutory interpretation principle that because all the factors of essential functions are within the province of the employer, that the suggestion that the employee's judgment should be considered would be prohibited under the principle that prevents the court from interpreting a list to include things that are not like the other things on the list.
I argue that this is inappropriate.
Fourth, the EEOC should clarify that any workplace policy requiring physical presence is an essential function that may violate Title I. To meet this burden, the employee would be required to show that the prohibition on remote work is not intending to screen out a potential employee with a disability. The only way that an employee could meet that burden would be to show with clear and convincing evidence that a particular employee cannot perform the essential functions of a particular job remotely and that requiring physical presence for this job and this employee is consistent with business necessity and that a policy requiring physical presence would not have a discriminatory impact on employees.
Timely, obviously there's no question that employers should be able to set the rules of their workplaces. So long as those rules are not discriminatory. The EEOC can remind employers that they can always include physical presence at a work site in their job descriptions, but absent such a statement, and absence of including such a statement, the employer's judgment should not be the controlling factor.
In conclusion, when the ADA was originally enacted in 1990 and even by the time it was amended in 2008, technology had not yet advanced to where it is today. Back then we didn't even have smartphones or high speed internet at home. Can you imagine? But today we have Zoom, we have go to meetings that allow us to meet with people across town as easily as it is to Zoom with hundreds throughout the world. We have all sorts of new apps being developed every day that allow us to share calendars and programs and between coworkers. There's even spying software, as I mentioned, that allows employers to remotely access employee's computers while they work from home.
And some employers, like our impressive lunchtime keynote speaker yesterday, director of EEO compliance for the U.S. Department of Health and Human Services, are developing creative ways to keep employees connected within a remote work environment. She was sorry, I heard, that the sing along does not work for her as a team building exercise, but she also reported that no meetings on Monday policy was a big hit. In short, there is more employers can do to support a remote workforce rather than simply denying requests by disabled employees.
There can be no question that the pandemic has taken enormous toll on the nation, on the world, and on disabled people in particular, but it also presents now an unprecedented opportunity to reinvent our workplaces and to embrace advances in technology that would offer greater flexibility for all people, with and without disabilities, regarding where their work can be performed. In fact, some have observed that people with disabilities could be among the quote greatest beneficiaries of this information technology revolution. The EEOC would be wise, in my view, to acknowledge our current public health realities and revise the Title I regulations to provide greater clarity to employees, their employers, as well as the courts, to make it clear that remote work is a reasonable and even a necessary accommodation for some and even future employees with disabilities.
Thank you very much. I am now going to turn to my colleague, Mary Jenae Goodwin-Oquendo, who will talk about remote issues related to postsecondary education.
Mary, shall I bring up your PowerPoint or do you want to do that yourself?
MARY GOODWIN-OQUENDO: It's up to you.
ARLENE KANTER: Go ahead. Why don't you share. I lost it.
MARY GOODWIN-OQUENDO: Okay. One second. I will pull that up. Apologies.
ARLENE KANTER: I have it. No. This is not the most recent one.
MARY GOODWIN-OQUENDO: Okay. I have it. One sec.
ARLENE KANTER: I want to thank everyone who is with us today, and that after Mary's presentation, we will have time for questions, comments, and discussion. If you have questions on your mind now, feel free to go ahead and enter them into the chat, and after the presentation, we'll look for hands as well as comments in the chat. Again, thank you for joining us.
MARY GOODWIN-OQUENDO: One second. Apologies.
ARLENE KANTER: I do have it. Let me know when you want me to advance it.
MARY GOODWIN-OQUENDO: Can everybody see me? Because I can only see you.
SPEAKER: We can see you.
MARY GOODWIN-OQUENDO: Okay. Great. Wonderful.
So thank you so much for having me here today. I'm very excited to discuss the work that I've been doing with regard to remote accommodations for postsecondary and professional school students.
I am Mary Jenae Goodwin-Oquendo. I am in my late 30s age wise. I'm a Black woman with brown hair and shoulder length super curly coily hair. I wear glasses. And I also have several invisible disabilities. I'm a disability civil rights attorney. I am a 2009 graduate of Syracuse University College of Law where I had the privilege of being instructed by the wonderful Arlene Kanter, who just delivered an amazing presentation that aligns very much with what I'm going to discuss right now.
Since 2008 I've worked with my highly esteemed mentor, Jo Anne Simon, and in my practice, we represent individuals with disabilities who require accommodations or have experienced discrimination in colleges, graduate schools, law schools, medical schools, and on high-stakes examinations including the bar exam and various medical boards.
Today I'm going to provide a lot of anecdotal information because unfortunately there isn't very much case law in this area. So I do hope that what I provide to you will be helpful, and I also look forward to perhaps hearing from all of you what you've been dealing with and what you've been seeing in your practice.
Next slide, please.
So in my opinion I believe that remote accommodations fall into two categories: Exclusive and partial/hybrid. Kind of similar to employment, as Arlene discussed, where everyone has different needs and there really isn't a one size fits all. Acquiring these accommodations can be difficult, especially in a world where many postsecondary educators resist technology in the classroom. While, yes, the pandemic has been challenging for many individuals with disabilities, it has also opened the door in showing what's possible. A lot of the changes that were made to accommodate the majority were things that people with disabilities were told couldn't be possible. We just don't know how to do it! It will be too hard! And now we have a pandemic and we see that the possibilities are limitless. It's truly a matter of will and a matter of persuasion.
Next slide, please.
So two helpful things for you to look at are the enforcement regulations by the Department of Justice for the ADA, and then the enforcement regulations from Section 504. I'll first begin with the ADA enforcement regulations, where they describe how to accommodate examinations and courses. Now, I'm not going to focus too much on examinations because within the context of these regulations, they're more so referring to high-stakes testing, from let's say an ACT, a College Board, the LSAT, and so on. But it can be helpful to just look at some of the verbiage because examinations of course also exist for postsecondary schools. So it says here under the examinations section that the examination must be administered so as to best ensure that when the examination is administered to an individual with a disability, it will accurately reflect whatever it is that the test is purported to measure, and that it will not reflect the impact of that person's impairment, the impact of that person's disability. So an example of this, let's say we have a basic reading comprehension test and someone has dyslexia. So for them, they're not fluent, they read slowly. They need more time. If the test is supposed to mention comprehension and not measure speed, granting them extended time would be an appropriate accommodation, right, that's like a basic example of how that's to be applied.
This particular regulation was actually -- I'm really happy that so many members of the public learned about this when there was the big LSAT class action, right? The Department of Justice intervened on behalf of the United States, and then we had this wonderful wide-reaching consent decree that pretty much reinforced what is stated in these regulations. And since then, people have felt empowered and referenced that consent decree when dealing with not just other high-stakes testing companies but also schools, because it really just shows, it provides real world examples of how this is to be applied.
Now, with regard to the courses section of the DOJ regulations, it states that any private entity that offers a course covered by the ADA must make such modifications to that course as are necessary to ensure that the place and manner in which the course is administered is accessible to individuals with disabilities.
So "place and manner." That has changed so much over the past several years. Place is no longer brick and mortar. That's not necessarily the default. So it makes it easier for us to argue for remote accommodations. And manner, again, doesn't mean that it's required for people to come into a physical space and learn there, demonstrate their mastery of the content there, or even take examinations there.
The regulations go on to state further that required modifications may include changes to the length of time permitted for the completion of the course, substitution of specific requirements, or adaptation of the manner in which the course is conducted or course materials are distributed. So again, that absolutely supports remote accommodations, because it's encouraging flexibility with how information is disseminated and also how students are able to take advantage of that. Unlike employment, when you're dealing with education, you have to make sure that the students are able to enjoy the privileges and benefits of enrollment in that program. And that's a component that doesn't exist in the employment sector.
Again, another example, if you look at the regulations, they talk about auxiliary aids, and they limit that primarily to people who have impaired sensory, manual, or speaking skills. But this really applies to anyone. So many people with physical disabilities, psychiatric disabilities, learning disabilities, they also benefit from those same aids and supports, and those can all be used in conjunction with remote learning.
With regard to the Section 504 regulations, the language is similar. I'll read you a brief excerpt here. Modifications shall be made to its academic adjustments -- pardon me, academic requirements necessary to ensure that such requirements do not discriminate on the basis of handicap against a qualified handicapped applicant or student, academic requirements that the recipient can demonstrate are essential to the instruction being pursued by the student or to any licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific course required for the degree requirements, and adaptation of the manner in which specific courses are conducted.
So yes, much of the language here is similar, but what you see that's different is that whole schools are generally afforded great deference when it comes to academic decisions. And that's one thing that we're always fighting against when we request any accommodation. But again, it's more and more difficult for academic institutions to allege that a remote accommodation, be it exclusively or partial, say fundamental alteration or undue hardship when they've done it for a year already for everyone. Not just for a few students but for everyone and they've made a way.
Before we move on to the next slide, I also just want to discuss a few cases that tend to be very helpful for us in our practice when trying to educate a school on how it is that they need to accommodate the student in order to comply with the law. And I'll say that because the majority of our cases are successful without litigating, which is a good thing. But it's also, you know, a bad thing because you have no precedent really. And you really don't know how to apply that to a larger population.
So with regard to deference, one case we always look to is Wong v Regents of the University of California. And there the court states very eloquently that, yes, schools are generally afforded deference, but this deference is not absolute. And you can't hide behind that in order to discriminate against people with disabilities. So that's one case that you should absolutely familiarize yourself with if you want to learn how courts generally view the decisions of the schools. And they also cite a few other good cases there such as Zukle and I think Wind may be cited in that case.
Another case that's helpful for illustration purposes is PGA Tour, Inc. v Martin. For those of you who are unfamiliar with that case, it was with regard to a golf competition, and an individual with physical disabilities wanted to use a golf cart. And they said no because being tired is an element of the game. You would be giving this person an unfair disadvantage if you were to give them the golf cart because they want people to experience fatigue. This case is great because the court said, what you are failing to acknowledge is that this person is already subject to even greater fatigue than other people without disabilities. So granting them this accommodation would not be a fundamental alteration.
The same thing applies to many of the accommodations that I will discuss today with regard to postsecondary and professional schools. A lot of the defenses that we hear are that, you know, that's just not fair to the other students. Everyone would want to take it at home. That's not true! A lot of people do better in person, right? Whereas some people they need a physical copy of an examination. Some people need a more isolated environment. Let's talk about accessing lectures. Not everyone has the ability to simultaneously actively listen to what is being discussed in a lecture and take notes, whereas most people do. That's where lectures are set up the way that they are. So no, it would not be giving that person with those impairments an unfair advantage by allowing them to access recorded lectures or to access streamed lectures or perhaps have them access lectures on their own time where cognitively they're more capable of receiving the material that's being presented.
One other case that I just want to bring to your attention is a case from 2013, Michael R. Caney versus Creighton University. The court said no one knows what accommodations are needed more than the person that has the disability. How are you telling the person who has the impairments what will and will not work for them? So here the court said, okay, a self-serving affidavit is fine, and if it's corroborated with documentation from qualified professionals, be it a physician, a neuropsychologist, psychologist, or another professional, it's sufficient to prove that the accommodations that are requested are necessary.
Next slide, please.
I went over this briefly. Some common arguments that we see against remote accommodations are academic freedom. We don't want to place limitations on our professors. These tend to be the same schools that will issue an accommodations letter and they'll have the student take that, quote/unquote, grant of accommodations and then go to each professor to negotiate the accommodations that are supposedly already approved. I feel this is just one area where schools are able to get away with this, and maybe we need a legislative fix or a regulatory fix or something, but that's something that we see all the time. But really this doesn't impact academic freedom. Again, we see what has happened since March of 2020.
Also, you have some professors say it's an intellectual property issue. If you have a well-constructed syllabus, you're able to place limitations on how students access it. You can just say, this is for you and this class only; don't share it. And it's fine. So again, that is, in my opinion, an attempt to hide behind the deference schools are generally granted in order to support discrimination. Fundamental alteration, undue hardship.
An interesting one is, oh, well, we're not able to grant these accommodations because we are prohibited against doing so by an external governing body. For law schools that are accredited by the ABA, that would be, for example, the Court of Appeals in New York or whatever court or board of examiners governs admission requirements for various jurisdictions. Same thing for medical students. So I just want to read to you briefly an excerpt of the New York State Court of Appeals -- yeah, that's the next slide. I'm sorry. I'll read to you a bit of the language from the order that the New York State Court of Appeals issued in I believe April of 2020 so that pretty much all law students would be able to progress in their legal education without delay due to the pandemic. And there they said that they were waiving the rules for distance education. So if you don't know what that means, nearly all of these credentialing entities set limits on how many credits can be completed remotely. Or that's what they used to do. So in New York, it was 15. 15 credit hours remotely. That was the limit. But they had to waive that completely so that students could take a year or more of remote courses.
We saw the same thing with medical schools. So there, the LCME, which is the Liaison Committee on Medical Education, they issued in March of 2020 guidance to medical schools stating that they had permission to allow students to complete clinical clerkships remotely so that they are not being delayed unnecessarily due to the pandemic. And again, this is what I always tell clients. It's really a matter of will. Because when the motivation is there, look what we can accomplish in just a couple of weeks.
Next slide, please.
So when you are determining whether someone is a good candidate for remote accommodations, you should always take into account how their disabilities impact them. And for the sake of proving your case, always tie it back to major life activities and major bodily functions. So major life activities, look to concentration, look to reading, learning, writing, sitting, standing. That's another thing that people don't really take into consideration. A lot of people with physical conditions, sitting in class for X amount of hours can be very painful. And I speak from personal experience with that. It could often be very, very painful. And then you can't concentrate. So for a person like that, being able to access a course remotely at home, where perhaps maybe you're sitting on a bed or a specialty chair, or maybe you're getting up and standing up but you can do it without disrupting the class. That's why you have to tie it back to major life activities and major bodily functions.
Next slide, please.
Oh. We skipped one.
So here I've created a nonexhaustive list of impairments that may require or benefit from remote accommodations. A lot of this comes from the work that we do. So people with compromised immune systems, especially now, especially now with the pandemic since a lot of the restrictions are being loosened and masks are off and a lot of people are also lifting the vaccine requirement. And a number of people with compromised immune systems, even when all of those things were in effect, they still didn't have the protection that most people had. Remember, the comparison is to most people. So for a situation like this, major bodily function would be the immune system. And perhaps several others depending on what their condition is. People with chronic fatigue and pain. That includes, for example, fibromyalgia, chronic fatigue syndrome.
IBS and IBD, which causes great gastrointestinal discomfort, pain. And pain almost always impacts concentration. Pain almost always increases the likelihood that someone is going to experience cognitive fatigue if they are not able to work through the pain.
PTSD. That is another condition.
Endometriosis. Something that's often ignored. And that's partially due to how women tend to be treated when it comes to disabilities and various impairments. Again, the above list is nonexhaustive, but I provided it so that people can try to think outside of the box.
Next slide, please.
So what types of supporting documentation do you need for this? As I said in the -- I quoted the Creighton University case. There the court emphasized the importance of personal narrative and also having that be corroborated by supporting documentation by a medical professional, whether that is, like I said, neuropsychologist, psychologist, or a physician. What the schools want to see, unfortunately, this is one of those situations where the law doesn't require this but in practice it's what's most effective, they almost always want to see psychometric testing, even if the person has a psychiatric impairment, even if the person has a physical condition, they want objective, well validated measures to back up the functional limitations that the person is saying they're experiencing, or that the clinician is.
It's also helpful for the student to present academic documentation. And it doesn't necessarily have to show a consistent level of impairment, and I think that's one mistake that people make. Well, I'm not going to provide this information because I only recently started needing accommodations or I only recently developed this illness. That's still evidence, right? If you had the condition but you were able to manage, explain what's different now. Were you in an academic environment that was very supportive at the time? Did you not have strictly timed tests? Did you have all of your assigned materials in advance so you were able to complete them on your own time so you didn't have the same pressure that you have now? And other documentation that can be helpful includes documentation from the people who know you best. Your family members, your guidance counselors, mentors, tutors. If you have disclosed this information to them, your employers, it's all very compelling.
Next slide, please.
So again, I just want to emphasize that qualified professionals, despite what a lot of the schools and testing companies might assert, it includes more than just doctors. You can have a licensed clinical social worker, and they can be a qualified professional. And many people don't have access to psychiatrists and psychologists and physicians due to financial limitations. Or even timing limitations. It's difficult to get appointments at times. So, again, while their preference is for doctors, it's definitely better to have them state their experience, have them tie their recommendations to the functional limitations that the person is experiencing, and wherever possible, reference the challenges that the student faced in the past or didn't face in the past and tie it to what they're looking for now.
What do you get from remote accommodations? You get access to lectures, the ability to participate in classroom discussions and presentations, access to examinations, the ability to participate in clinic programs, for example, for both law school and medical school. You get access to clerkships and rotations. You're able to maintain your physical or mental health. Telling people they should just have grit or they should just fight through the pain or fight through the exhaustion, that's discrimination. You have people who are able to timely complete their degree. You would be disgusted if you knew how many people we've encountered whose lives have been placed on hold during the pandemic or since things have started to open up over the past year. And you also are able to be avoid financial and professional costs associated with a reduced course load and medical leaves. So if it is possible for someone to take the full course load that they want to and are entitled to and they can do it remotely, they should not be forced to take a reduced course load just so they can come in person. That is denying them the privileges and benefits that everyone else who doesn't have their disability or a disability is able to enjoy from the school.
I know we're almost at time, but this will be kind of quick here.
ARLENE KANTER: You're okay, Mary.
MARY GOODWIN-OQUENDO: Okay. I want to present you with a couple of case studies that are a mash up of things that I've encountered and walk you through what's helpful.
Case study 1. Let's say we have a student with PTSD, generalized anxiety disorder, and a fear of public speaking is, enrolled in a graduate program. Certain stressors can be triggering. Someone's PTSD can be triggered just by stress alone. It doesn't have to be related to the original trauma.
Additionally, let's say that this person is enrolled in a graduate program and when they do experience stressors and they shut down, they're not able to communicate effectively. They're not able to concentrate. They're not able to take in the information. They need time to regroup. Or they need time to remove themselves from the situation. If someone is going through all of this in person, in a class, it can be disruptive for both them and the other students. For them, if they, let's say for example they have a presentation that they have to give but they're just so anxious and their phobia is getting to them that they freeze and are unable to give the presentation, not because they didn't do the work or because they're unprepared but because of their phobia of being around other people, if the purpose of the presentation is to assess what they've learned and how they comprehended things, then perhaps allowing this student to present remotely, where they are streaming into the class, that can be a form of a remote accommodation.
Additionally, for some students, that may also be enough for them to let's say have a Q&A session with their peers and not feel as if they're being attacked, they're not being triggered.
Another accommodation that can be helpful here with regard to class participation is providing an alternative means of class participation. Who said that class participation has to be limited to what happens in the classroom? What about Blackboard, for example? Or other online forms of communication that might allow someone a bit more time to compose their thoughts so that they can ask thoughtful questions and respond thoroughly and they can show you and their peers that they're actively participating in the learning experience that's taking place?
Let take case study number 2, for example, where a student has a sleep disorder, they have migraines, they have Crohn's disease. These conditions all fall into the episodic category, so you really don't know how they're going to impact you on a given day. And that's not good if you have, let's say, a jam packed academic schedule where you have class every day. You know sometimes you just won't be able to do that. Or if you are able to attend, you will not fully be present, you won't be able to learn and participate. For a student like this, again, remote learning will allow them -- the option of remote learning -- so let's just say we have streaming available in general for whoever wants it, they can use it or they don't have to, but if they're flaring, they can watch the lecture at home and participate at home.
Same thing with recorded lectures. Same thing with the online discussion and the online examinations that I referenced previously.
So those are just a few examples, and we can get into that a bit more during the Q&A, but I do know that I'm a bit over.
So I just want to thank everyone for having me here to discuss what it is that I've been working on with regard to remote accommodations. And I'm curious to know whether any of you are working on this or if you would like to, and what you've seen.
ARLENE KANTER: Thank you, Mary. Fabulous. I continue to learn so much from you.
Okay. Let see. We're happy to answer questions. In the chat, we have a couple requests for more information from us. There was a request, Mary, for cases that you cited, whether those could be made available. And I think we both are interested and happy to send more information. I can send a draft of my article, if you'd like, a version that appeared in the disability law E journal that I edit. The final issue will be coming out this summer. And Mary, if you'd be willing, maybe people could email you to provide some of the cases that you mentioned.
MARY GOODWIN-OQUENDO: Absolutely.
ARLENE KANTER: Any other questions? We would love to hear if you're having experiences with requests for remote access to work or to postsecondary education, how those responses have been received, or any other avenues for legal strategies that we should be discussing this afternoon to help promote greater remote access and flexibility.
I have to say, the sessions today kind of remind me sometimes of my classes at the end of the day, right, is that there's not been a lot of voluntary participation. I don't feel like I can call on people even because it's not my class. So we're happy to wait a couple minutes if there are any questions. Or otherwise, we can move on and get ready for the next tenBroek session.
MARISSA: I was going to ask something about what we've been seeing in schools recently with mask requirements being dropped especially and difficulties getting accommodations for folks for remote learning.
Trying to organize those folks and trying to get something going. I mean, it's just been like one after another. I just feel like it's a huge systemic issue. Is there a game plan? Like where are we at with that? And where do you think we're going?
ARLENE KANTER: Yeah, you know, Marissa, can you give the context? Where are you talking from? Employment, school.
MARISSA: Honestly, it's happening in both at this point, where employers are having folks come in person, dropping mask mandates because obviously the pandemic is over, right? And that is also happening with schools right now, where requiring that folks come in person even though we know that remote learning can occur and they're dropping mask mandates in the middle of the semester. And one of the things that they had said to people previously was, oh, well, you can just take the semester off and that's your reasonable accommodation.
ARLENE KANTER: Right. Are you a law student yourself now?
MARISSA: No. I'm an attorney. I'm a part of NDLSA.
ARLENE KANTER: Yes, the National Disabled Law Student Association. I would make a pitch for your organization. One of the significant accomplishments of the disability law rights movement in recent years is this organization. Disabled law students organizing. So go NDLSA.
In terms of your question, I'll take it, and then, Mary, we can both answer. It's case by case. I don't know about Mary, but I get so many calls, requests, and emails from professors at different universities who are looking to develop legal strategies to protect what I argue is their right to teach remotely, from law students who would like to be able to continue to take classes remotely. And even from employers I've received some inquiries about what they can and cannot or should or should not require.
So this is new terrain for all of us, right? The pandemic has opened up questions that we haven't really asked at this level before, and I think that the disability justice movement generally has an important role to play in pushing kind of people to think beyond kind of old answers and to develop these legal strategies. That's the reason I wrote this law review article frankly was not to write another article but to compile these cases and develop a legal strategy and to have people use these cases in their different circuits so they can win this court, because I think that is possible.
In terms of my role, though, as a law professor, I'm outraged, shocked, but not always surprised I suppose by attitudes of some faculty who just think that they know what's best for law students, and I don't think they do. And as Mary said, we have to listen to the students, the employees with disabilities, to hear from them how those accommodations should work best for them.
So I have more to say, but go ahead, Mary, do you want to jump in?
MARY GOODWIN-OQUENDO: Yes, I completely agree with you. I know we're kind of in a very gray area, right, where people don't really know where things are going to go, so a lot of people are putting their life on hold. Some people aren't going to school because they're worried about things opening up or they're taking a semester off. Or some people are being forced to take a semester or longer off because schools aren't accommodating them.
With regards to masking, I think there was a case out of Virginia which is helpful. It's not great, but it is encouraging because it says that -- do you remember the name of it? I don't remember the name. But I can send it to everyone afterwards. But the court said that it is reasonable for the student with impaired immune system to require the teachers and the students around them to wear masks. But only the teachers and the students that are around them. And the court was also very clear to highlight that this is a case by case inquiry. Which is always the case.
As far as how we can organize and get things done, I think we look at the defenses that a lot of schools are erecting when being asked to provide accommodations. The in New York, during the pandemic, it was allowed for people to take unlimited remote courses. And since that is no longer in effect, they're saying you can't do it. Let's change the rules that the Court of Appeals in New York is going by.
So I think we have to kind of work backwards in a way so that the schools don't have an opportunity to say, well, it's not me; it's them.
I think also the regulations could use a bit of reworking. I think that in 2022 we need more examples and more clarification of what place and manner accessibility means, and that doesn't mean brick and mortar anymore.
And I'm curious just to hear what all of you -- oh, I see you have some comments here.
ARLENE KANTER: Right, yeah, I was going to say there's some interesting -- I don't know, Holly, if you're willing to share your comments with everyone here, but Holly has put in the chat that she's asking people to consider also tort claims. Do you want to chime in? Or should I read your chat?
HOLLY: I'm happy to share. We've had more than one case at university that involved a student who had learning disabilities and had requested accommodation, had been told we absolutely provide accessible materials, no problem, we can do that. And then when he arrived on campus, found out that they couldn't do that or couldn't do it timely. Anyone who has done higher education work knows that timely is so important when the semester is like 3-4 months and it takes you a month to do something, that's a month that the student is behind.
In that case, there's the Department of Education regulation that says schools have to give students accurate information about accommodations. So there's a duty. And if a school does not give a student accurate information, then they have breached that duty. So we were able to make an unfair trade practices claim saying that the school had told the student that they could provide this accommodation, but, in fact, demonstrated that they couldn't. The student had taken out student loans and incurred living expenses, so there were financial aspects of his education that, again, potentially could have been a damages claim to recover from those costs. So we thought that was a novel claim. They thought it was a novel claim. They made a motion to dismiss. And the court said, no, this is absolutely a fair claim. So I encourage folks to consider whether or not -- so North Carolina, we have negligent misrepresentation and then we also have just fraud-based claim that you can make on unfair trade practices. And we were intrigued that the court was willing to entertain it, and it was definitely something that we plan to do again if we have to litigate more cases.
ARLENE KANTER: Fascinating. That's really, really interesting. Thank you so much.
Is there any written materials that you could share with others?
HOLLY: I'm happy to share the motion filings, the complaint, the decision on the motion. Be happy to share it.
ARLENE KANTER: Okay. Holly, do you mind sharing your email in case people are interested?
HOLLY: I will put it in the chat.
ARLENE KANTER: Could we also just say it out loud for everyone?
HOLLY: It is [email protected].
ARLENE KANTER: Thank you very much.
HOLLY: And Marissa asked a question about the regulation. So the Department of Education regulation that establishes the duty is a federal regulation, and then the claim that we brought was under our state law unfair trade practices.
ARLENE KANTER: Right. Terrific. Thank you.
MARY GOODWIN-OQUENDO: I see here we also have a comment raising an issue here about the remote proctoring. We dealt with that when bar exams were moved online. And as you indicated here -- let me just -- Lauren, would you like to explain further or would you like for me to read what you wrote?
LAUREN: Sure. I'm with Disability Rights Florida and I do a lot of postsecondary cases. And I've had two situations where since the pandemic, college students have not been able to access the honor lock software system because of their disabilities, and that system is very sensitive to cheating. It flags any sort of, you know, unusual movement or eye movement or physical movement. And so in those cases, we were able to get the schools to provide live proctoring online, but we met a lot of resistance. But yeah, just to flag that as an issue, because you know, it's kind of an unusual issue. I don't know if you guys have seen it in your practice. I was just wondering. Because one of the cases actually we took to OCR and they were very interested in it. But then we ended up settling it through mediation. But just wanted to share that with everyone.
MARY GOODWIN-OQUENDO: Thank you so much for sharing that. You know, like I said, I have encountered that primarily with regard to the bar exam. But I've seen the flip side. And this is another example of accommodations not being one size fits all. So for those of you who don't know, the New York State Board of Law Examiners decided to administer the UBE online for people with accommodations who needed breaks, they tried to make it very cookie cutter so that people would take breaks at designated times, ignoring that there are people with a number of impairments that need breaks as needed or stop/start breaks. And they said you have to come in to a physical locate. And who wants to do that during a pandemic that we knew nothing about? Or they would have to have a live proctor. The live proctor, again, was not appropriate for all people because some people had let's say different psychiatric conditions where having a live person look at you the entire time was actually more limiting than not being able to take breaks.
So again, I just think that flexibility should always be encouraged with these things. I'm happy to hear of course that you were able to achieve the results that your clients needed to access their examinations.
With regard to OCR, I typically in the past have referred clients to OCR sometimes. Sometimes it opens the door to discussion with the school, and it's also an opportunity to maybe get what you want without litigation if you do early complaint resolution, which is OCR's version of mediation. Of course the school has to consent to it.
But since the pandemic, certain cases I've seen get radio silence. Which is disheartening. And I'm curious as to whether anyone else is experiencing that as well.
Oh, yes, Holly. You experienced it as well. You know, for students, many of whom already have limited financial means, you know, what do you do in a situation like that? A lot of them they try to go to protection and advocacy organizations, and they are completely overwhelmed with everything that's going on, and then they can't afford a private practice attorney.
So I don't know. Maybe we can use these few minutes that we have here to have like a mini brain trust of sorts to see what action items can we come up with so that these issues are addressed. Like what do we need to do as a collective to get this going?
ARLENE KANTER: One thing that's come up, and the consensus is it's not a strategy, would be to try to amend, for example, the ADA. And I think there is a lot of interest in not opening up the ADA for fear that it could go in different directions that may not benefit anyone with a disability. So I am not proposing that the ADA be amended but rather the EEOC regulations be changed. So that's something to think about. I think regulations are important and valuable and often a powerful tool if they're strong enough. And so we may want to think of, as I proposed for the Title I side, revising the regulations but also look at some of the DOE rules. There are some really good people right now in the Department of Education, in Justice, I mean, really strong disability advocates throughout the government. And that is one thing to think about is whether any of the regulations could enhance opportunities that we're describing today. That's the kind of legal response.
And then there's the political response. I think for example the creation of the National Disabled Law Student Association, other disability rights organizations, P&As involving themselves in state legislative changes. I think organizing is always -- I mean, that's how I was trained. Organizing is always a strategy, and I think around disability issues there's a lot of support and resistance.
I was going to ask, I mean, I'm used to calling on people, so I apologize, if John B is still here. He and I have been chatting in the chat about some of the cases mentioned today, and I'm happy to send him that information. But John comes to us from Maryland Department of Disabilities, and I'm just wondering from the state's point of view, is there any initiatives that you would want to share to kind of open up these possibilities of remote access to work or education?
And if you don't want to be called on, as I say to my students, you don't have to either.
JOHN B: No, that's fine. Thank you for giving me the opportunity to express what I've thought. I come away with a couple, well, three things really. One, I agree with both of you that this is sort of unchartered territory and we're learning how to handle these different issues. For an employer as large as the state where you're dealing with over 100,000 total employees, I'm wondering, I think we're still in the process, not my department but the state as a whole, through our coordinating HR entity, in the process of really defining how to handle reasonable accommodations within this context. And one of the things that strikes me is that I think we're going to need to give serious thought when we start writing our job descriptions which are called MS-22s in the state. Or maybe even updating them to do a thorough analysis of whether or not it is an essential function of the position for the person to be in the office, and if so, how much. And to really think about that more than we have had to in the past because one of the things that struck me, Arlene, when you were talking is that most employers would be hard pressed to say that it is an essential function. So how do you handle that in the context of a large public sector employer where there's also some optics involved as well, right, because people want their taxpayer-funded offices to be open for business, and a person to be behind a deck, and for us to be responsive. So how do we balance that with handling reasonable accommodation requests fairly for people.
And then you throw on top of that how the pandemic and then the variant and whether or not there will be future variants can exacerbate some existing conditions that people have.
So it's challenging and interesting at the same time, and those are kind of the thoughts that I had. And I think like you said, I think we're all -- it's sort of case by case and we're all still working through it. It will be interesting to see like for example when there is an actual case that maybe comes before a judge and they have to rule as to whether or not an employer has made a proper determination as to whether or not that person needs to be in the office or not and how much. And then maybe we'll get some, as Mary said, we'll have maybe some precedent that we can start to look at and act upon.
Yeah. Those were my thoughts. And really I don't have any answers or a clear path for these, but I think, you know, discussions like this help us think through the issues. And then the important thing I think is to realize that it really is case by case and you have to look at it. But I think for employers, especially large ones, one thing that they can proactively do is that job description analysis and really make sure that they're on solid ground if they're saying a position that the person needs to be in the office 5 days a week and why.
ARLENE KANTER: Yeah. Thank you. I appreciate this comment. As I said in my EEOC suggestion, the last suggestion, is that the EEOC should remind people that job descriptions need to be addressed seriously. Put it that way. But on the other side -- and that's why I was so surprised looking at all these case where's courts didn't say, look, the job description said. Job descriptions were not at issue in vast majority of the cases. And so, yes, that is something that employers can do. But on the other hand, it's also tricky in my mind, because there has to be an inquiry by a court as to whether what's said in the job description is, in fact, provable or contextual. Because an employer can say that it's required, but it's up to the court I think as I argued to look behind those words and they hadn't been doing that before to see really how valuable and important that in-person presence is and how necessary it is and whether it has to be done by that person during those hours.
And if not, then I think that we run into the prohibition under Title I against screening or tending to screen out people with disabilities because if we just say that in-person work is required, then it is automatically excluding people who may not be able to meet that in-person requirement, and I think that is violating Title I's prohibition on tending to screen out.
So it's a fine line. I'm with that you it's new territory for all of us, but I do want the EEOC to take a bolder stand in helping to define the rules and have courts follow it and not give employers kind of the free ride which I really have found looking at all of these cases.
So I'm glad you have the job, John, maybe instead of me. And I know it's no easy task so I appreciate you joining us today and raising these issues.
JOHN B: Sure. Thank you.
MARY GOODWIN-OQUENDO: I'm glad you brought up essential functions. I'm teaching a disability civil rights course, and with employment, one activity I have my students do is I give them a job without showing them the printed essential functions, like the alleged essential functions, and I say what do you think the essential functions of this job are. And then I have them look at what the employer is asserting and to the extent that they're saying well we're requiring someone to be present in the office X amount of time, well, why? Especially when we see that a lot of people are more productive at home than they are in the office to begin with.
ARLENE KANTER: I'm just noticing that we're over time. So there's another session coming up at 5:00 from the conference, and then that's it, a closing remarks. And I just want to say how much I've enjoyed doing this with my colleague Mary, and having all of you here today. And also a big shoutout of thanks to the National Federation of the Blind who does this terrific symposium every year. And I tell my students it's one of the most important things they can do to educate themselves about disability law, in addition to taking my class.
So thank you all so much. Let's keep in to