My daughter is on break this week, and next week is going to be a little hectic. So, I had a moment to do a blog entry that is quite personal to me, but I think it’s very important for everyone. As everyone knows, I am deaf and function entirely in the hearing world with very powerful and complicated hearing aids in combination with lipreading. I get 100% of my sound from my hearing aids and 50% of my comprehension from lipreading. The best lip readers get 50% of what is on a person’s lips. I also use voice dictation technology. So, I am always going through the reasonable accommodation processes. It becomes a particular issue when I travel for conventions/speaking engagements. Hotel rooms frequently don’t get what they have to do to accommodate a deaf individual that functions in the hearing world. The actual meetings don’t always understand what they need to do to accommodate a deaf or hard of hearing individuals either. So, I thought it would be useful if I listed out some do’s and don’ts of the interactive process. The blog entry is pretty short. Even so, it is divided into categories: general concerns; what not to do with the interactive process; and what to do with the interactive process. The reader is going to want to read the whole thing.
- The interactive process is a title I concept but the ADA scheme, case law, common sense, and preventive law demand applicability of the interactive process to title II and title III situations as well. I should point out that in the title II area, courts have held that the interactive process applies to colleges and universities when it comes to accommodating their students with disabilities.
- Once you are aware of an accommodation request, engage in the interactive process.
- Remember, magic words are not required.
- Whoever blows up the interactive process bears the liability.
- You can obtain a reasonable amount of documentation justifying the accommodation request. However, keep in mind that for situations arising under title II and title III that is NOT the case when it comes to service dogs.
What NOT to Do with the Interactive Process
- Fail to act on a reasonable accommodation request unless it is explicit as magic words are not required.
- Once getting a reasonable accommodation request, immediately call a vendor or other third-party instead of talking to the person making the reasonable accommodation request.
- Make clear to the person with the disability that you don’t want to accommodate them but you have to.
- Make clear that the process will be adversarial and not collaborative.
- Ignore suggestions from the person with the disability as to what works and/or make it clear that you don’t care what works as your organization is primary.
What To Do with the Interactive Process
- Value the individual with a disability making the reasonable accommodation request as an individual.
- Make clear that you are interested in a collaborative and not adversarial process.
- If you get stuck as to what might work, call the Job Accommodation Network.
- Involve the person with a disability in the process immediately and keep him or her posted throughout.
- Remember you will have to make the accommodation unless you can show an undue hardship (title I), undue burden (title II, III), or fundamental alteration (title II, title III, and arguably title I), all of which, as readers of this blog already know, are terms of art and are not easy to show.
- Remember, if effective communication is involved, the rule for title II (preferred communication to be given primary consideration by the governmental entity), and for title III (give-and-take of the interactive process with the place of public accommodation getting final call), of the ADA are different.
- Remember, think of a reasonable accommodation/modification as whatever gets the person with a disability to the same starting line as someone without a disability.