Another Employee Accessibility Lawsuit: What HR Staff Need To Know

By April 2nd, 2013

Most organizations are familiar with the concept that public facing web sites and applications need to be accessible. But it can't stop there—accessibility is a requirement for internal systems as well. Here's some helpful thoughts on how to approach internal web properties and applications.

Last week we saw news of another lawsuit brought by an employee due to the lack of accessibility in an internal system. According to the National Federation of the Blind, Michael Leiterman, an attorney with the Department of Homeland Security’s Customs and Border Protection division (CBP), has filed a lawsuit in the United States District Court for the District of Columbia (Case 1:13-cv-00394). The story continues to say that the basis of his discrimination claim is that CBP has continued to procure and deploy inaccessible software and technology, adversely affecting Mr. Leiterman’s ability to perform his job severely enough to result in the denial of a routine promotion. This story shares a number of similarities with the recent class action lawsuit against Marriott (PDF), filed by the Legal Aid Society – Employment Law Center (LAS-ELC) and TRE Legal. In that lawsuit, Marriott employee Ali Faraj claims that he has been excluded from advancement to a management position with Marriott based on the hotel chain’s requirement that managers use a Sales Force Automation software program by the Oracle Corporation called Siebel CRM.

These are not the first instances where an employee has sued for workplace discrimination due to inaccessible ICT systems. While most publicity surrounding accessibility lawsuits tends to be oriented around publicly facing websites such as Southwest Airlines, Wells Fargo, and Netflix, there have been a number of notable lawsuits by employees such as those against Montgomery County, MD and the State of Texas.

Given the ubiquitous nature of the computer in the modern workplace, ADA compliance is concerned with far more than the physical access to facilities. Requirements for equivalent access also now include accessibility of the employee’s computer system, the software applications necessary to do their work, and any internal use systems like intranets, training, and Employee Self Service systems. Due to the importance of these systems in the workplace, it is critical to ensure all users have the ability to use them.

What should we do if we get a complaint?

Take the employee’s concerns seriously. As mentioned on SHRM’s We Know Next Blog, employees often refrain from disclosing disabilities and often only do so when they have an unavoidable need to disclose this information. An inability to do their job is definitely one of those times. This is because your employee wants to work and wants to be able to do so in the same way as the rest of the employees. Because employees with disabilities rarely complain about lack of accommodation in the workplace, it’s all the more reason to take such complaints very seriously and to find a solution quickly.

Include the employee in all relevant discussions of the system’s accessibility issues. Ask them to clearly detail their challenges with the system so that you may include this when working with your IT department or software vendor to address the problem.

Verify your IT department or vendor’s claims regarding the level of effort, cost, and timeline to make the system accessible. Developers, designers and managers who are unfamiliar with accessibility will often significantly over-estimate the level of effort to make the necessary improvements because it is truly unfamiliar territory.

Determine a mutually acceptable plan for bringing the system into a more accessible state. The plan should include goals with concrete milestones that all parties can be involved in developing, and all goals should be reinforced with measures of success that compel staff to follow through with them.

Resist attempting claims of Undue Hardship. Many companies, having heard of ADA exemptions due to Undue Hardship, decide that any expensive remediation or replacement effort will exempt them from having to comply. Guidance from the EEOC states clearly that “Generalized conclusions will not suffice to support a claim of undue hardship”. Claims of Undue Hardship must be supported with real data demonstrating a truly burdensome level of difficulty or expense. A number of factors come into play when making such claims and, for the most part, Undue Hardship is quite rare when it comes to ICT accessibility.

Keep in mind that the legal responsibility for compliance resides with the employer. Ultimately, you as the employer are accountable for ensuring that the software that you buy or develop for your employees is accessible. However, there are measures that you can take to impress upon vendors the need for accessible software. While you can’t legally require a vendor to fix a product for free, you can certainly inform them that the current state of their system puts you at risk for an ADA lawsuit, which will compel you to consider other vendors when deciding whether to renew your license or not.

Don’t wait—start now!

Title I of the Americans with Disabilities act tells us that an employer shall not discriminate against a qualified individual with a disability.

Take a look in the mirror. Look at your job application procedures, hiring, advancement and discharge of employees, workers’ compensation, job training, and other terms, conditions, and privileges of employment. Any ICT products and services used by employees in these and other areas must be accessible. If these systems aren’t currently accessible, we always recommend being proactive to work towards bringing those systems up to snuff. This allows you and your company to budget for this expense on an internal time line; having that time line dictated to you by judges and lawyers is always more costly and disruptive to business goals.

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