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Job applicant’s failure to communicate about testing difficulties dooms reasonable accommodation claim

By Kathleen Kapusta, J.D.

Because a blind job applicant failed to communicate with her prospective employer regarding the difficulties presented by its required computer testing, she interrupted the ADA’s interactive process, a federal magistrate judge in Colorado stated in finding the applicant was precluded from claiming the employer failed to provide a reasonable accommodation. “To hold otherwise,” wrote the magistrate, “would allow per se liability against an employer each time the initial accommodation provided is ultimately unsuccessful, or ineffective, in enabling the employee to perform the requisite job functions. The ADA’s interactive process does not contemplate such liability and the court declines to permit it here.” (McFarland v. City and County of Denver, September 5, 2017).

As a result of macular degeneration, the applicant had lost all but “some peripheral vision.” She applied for a call center job as a customer service agent. After passing the initial requirements, she was invited to participate in the next stage of the hiring process—computer testing related to the ability to use Internet Explorer (IE) and Microsoft Outlook—and told to contact the city if she needed an accommodation. The Outlook test was “informational only,” meaning that a specific score was not required to pass but the hiring manager could consider the score in making a decision. For the IE test, an applicant was required to answer at least five of the eight basic questions correctly.

Accommodation request. The applicant contacted the city’s HR specialist to request Job Access With Speech (JAWS), a type of speaking software that reads audibly the text displayed on the computer monitor and reads the label or tags of computer icons. In response, the specialist told the applicant that the employer could accommodate her by reading to her and she was awaiting information on securing the software. When she arrived for the test, the employee was provided with a reader and given extra time to complete the testing. She took the Outlook test first and although she had problems with the reader as an accommodation, and was very tired by the end, she did not say anything. She then took the IE test, answering only three of the eight basic questions correctly. She used IE-8 at home and was unaware that the test utilized IE-5. She never contacted anyone with the employer regarding the difficulties posed to blind applicants or inquired as to whether it would change the test format. She did, however, contact the EEOC regarding filing a complaint against the employer based on the computer tests.

When the employee learned she did not pass the IE-5 test, she sued the employer under the ADA, contending that its computer tests tended to disqualify her because she was blind, rather than assessing her ability to perform with reasonable accommodations.

Outlook test. Addressing her claim as it related to the Outlook test, the court found the employee’s testimony describing the test and her difficulties in taking it with a reader established a fact question as to whether a reader was an effective and, therefore, reasonable accommodation under the ADA. However, the court pointed out, because the test was informational only, it did not have any bearing on the city’s decision not to advance her further in the hiring process. Moreover, she passed this portion of the testing. Even assuming the test had screened her out, the court found her claim would likely not proceed based on her failure to participate in the interactive process of determining a reasonable accommodation.

IE test. As to the IE test, the applicant conceded a reader was a sufficient accommodation relative to her request for speaking software because she could answer the questions with specific keystrokes on the keyboard and did not need to be able to see anything in that regard. She argued, however, that she should have been provided a completely alternate assessment procedure because the test, as given, was not a fair test for a blind applicant.

If the applicant had answered two more basic-level questions correctly on the test, she would have moved forward in the hiring process. While she argued that her responses to three of the questions would have been correct under IE-8, and that she was unaware when she took the test that it was based upon IE-5 because she was “not able to see any visual cues to the differences in the versions of Internet Explorer,” her failure to communicate with the employer in any way regarding the difficulties she experienced was fatal to her claim.

Breakdown in process. Finding that the applicant, not the employer, was responsible for the breakdown in the interactive process, the court, presuming without deciding that an alternative assessment procedure for the IE-5 test was necessary, pointed out that she never communicated this necessity to the employer. Prior to filing the EEOC charge and subsequent lawsuit, she never requested an alternative assessment procedure for the IE-5 test or, more significantly, never told anyone associated with the employer about her concerns regarding the test or that the reason she missed three of the four questions was because she did not realize what IE version the test utilized and was unable to see the differences.

And while the applicant relied on the Tenth Circuit’s decision in EEOC v C.R. England, Inc., to argue that she “satisfied her obligations in the interactive process by notifying the City that she was blind, requesting a reasonable accommodation, and suggesting JAWS as the accommodation,” this assertion wrongly implied that an employer must provide the accommodation requested by the employee. C.R. England did not support her assertion that an employee’s ADA obligations are complete upon requesting an accommodation. Rather, in that decision, the Tenth Circuit noted that an employee’s initial request for an accommodation triggers an employer’s duty to participate in the interactive process between the parties to determine a reasonable accommodation. The interactive process requires “give-and-take,” observed the court, noting that as soon as the applicant requested a reasonable accommodation, the city engaged in the process and provided an accommodation. But due to the applicant’s utter lack of communication with it, the parties never progressed further into the interactive process.