Thank you very much, and everyone, welcome to the ADA Distance Learning Session. We are kicking off our 2003-2004 session and series this month in October and hopefully all of you have had a chance or an opportunity to review the menu of choices that will be coming in the next 12 months. I think we have a number of exciting topics and speakers who will be working with us on a variety of topics related to the ADA. If you have not had an opportunity to review the schedule and look at those programs and listings, you can do that on our website at www.adagreatlakes.org. This is a collaborative effort of the 10 regional ADA and Accessible IT Centers, also known as the Disability and Business Technical Assistance Centers. You can always contact your center for more information at 800-949-4232. I would like to thank everyone for the many participants who are on today, some of you returning from previous years and previous sessions. We have two very exciting speakers today on a topic that has been increasingly come to our attention, both through our training efforts, as well as things on our, our website or through our e-mail or through just calls to our center for technical assistance. This will be a 90-minute session. We will be entertaining information from our speakers for the first portion and then all of you will have an opportunity to ask additional questions and get more clarification on this particular topic today. First I would like to start by introducing our speakers and then I will turn it over to them. Just as a point of information for those of you that are, desire to connect and utilize our streaming text on the Internet, you can do so through our website and you can do that at www.adagreatlakes.org and from there follow the links to the session, which starts and will give you how to sign in and actually get on to the event. Okay. Our first speaker is Susanne Bruyere: Bruyére. She is the Director of the Program on Employment and Disability at Cornell University in the School of Industrial and Labor Relations Extension Division. She is currently the Project Director and a Principal Investigator of numerous research efforts. Three of them are funded by the U.S. Department of Education, National Institute on Disability Rehabilitation and Research, which is the same funding source that funds the Disability and Business Technical Assistance Centers. One of those projects is the Rehabilitation Research and Training Center for economic research on employment policy for persons with disabilities, which is a four-year research and demonstration project in collaboration with the private sectors through the Society for Human Resource Management, the Washington Business Group on Health and the Luan Group to address ways to improve the employment practices covered under the ADA. She was also involved with the Mary E. Switzer Distinguished Research Fellowship to conduct a comparative study of employer practices under the ADA and the Disability Discrimination Act in Britain. A similar study was done for the equal employment and human resource practices of people with disabilities funded by Cornell University by the Presidential Task Force on the employment of adults with disabilities here in the U.S. She has been a Principal Investigator on that study as well. Her background is a Doctorate degree Rehab Counseling Psychology from the University of Wisconsin, Madison and a fellow of the American Psychological Association and many other numerous positions and things that she has held, so very highly qualified and has done a great deal of research in this area. Susanne Bruyere: will give you some additional links to some of the materials and things that she has been involved with and some of the projects that are available both on her presentation slides, as well the research section, if you are interested in getting more information on some of these other projects. Our second speaker comes to us today, is Peggy Mastroianni, who is Associate Legal Counsel for the Equal Employment Opportunity Commission with the U.S. Government. She is responsible for developing the Commission''s guidance under Title VII of the Civil Rights Act of 1964, AIDS Discrimination and Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. Peggy has worked extensively with the DBTAC''s on many different training programs and has been an invaluable resource. Her most recent policy documents under her direction address national origin discrimination, discrimination based on genetic information, which I think we are all familiar with some recent legislation in congress related to some of these issues and the application of EEO laws to the contingent work force. She has directed the development of ADA guidance on reasonable accommodation, disability-related injuries and medical examinations, workers'' compensation, psychiatric conditions and the meaning of the term "disability" and "qualified" under the ADA. She has also been a contributing editor, author to the employment discrimination law in BNA 1996 and sexual harassment in employment law, which is BNA 1992, and served on the board of directors of the Women''s Bar Association, District of Columbia. Peggy has got connections to Cornell as a graduate from Cornell University, also Harvard University Graduate School of Education and the Fort Hamm University Law School. She was also recently elected a fellow of the College of Labor and Employment Lawyers. So both of our speakers, I think you can tell from their biographical information, they have a great deal of experience and have a lot to bring to this session today. So without further ado, I''m going to turn it over to our speakers who will provide us some information in the next several minutes and then we will open it up for questions. So at this time, I will turn it over to Susanne Bruyere and Peggy.
Thank you, Robin. Peggy and I are both in Washington D.C. I have left centrally-isolated Ithaca, New York and I am down in Washington and we are in the EEOC building where we are addressing you from the same table here so it has been-it is kind of nice for us to be together to make this presentation, and I will start and provide some background about a study that we have been doing at Cornell that relates to the topic today and then we will turn this over to Peggy to give us the big picture of what the climate is in terms of thinking about the discrimination in the area of IT and Disability and set us up for some good dialogue, we hope, that will be the latter half of this session. I''m going to refer to the handouts that I''ve given to Robin for this session and I will walk you through. These are numbered in the upper right-hand corner so you can kind of keep a sense of where I am in this set of materials.
This is Peggy and I look forward to interacting with you and hearing what Susanne Bruyere has to say. I hope this will be a real productive session.
Thank you, Peggy. All right. Let us start with the presentation overview. This is of the section that I will be contributing, and the areas I''m going to talk a bit about is, first of all, why we have an interest in this topic, both the DBTAC''s right now have a real commitment to the issue of information technology access and why Robin is interested in bringing this into the series. Cornell from its research and EEOC from seeing what is coming in from the field right now, we all think this is a topic to be reckoned with and why we are spending time on this today. With that, we are going to talk a bit about the two Cornell studies that relate to this, specifically targeting human resource practices and information technology. One, which is a review of selected E-recruiting websites in the private sector and the other, a recent survey of human resource practitioners on accessible information technology. And then I will begin a brief discussion on its implications for those of you with interest in this area and provide you with some of the resources that Robin referenced. On Page 3, I list what is a very preliminary thought about why an interest in this topic and the human resource process. For those of you who are employers out there, it is just a reminder that a minimum of one in six and sometimes we say one in five, or more, are people in the United States have a disability, and even more poignant right now is for employers, I think, is that it is an aging work force, and with that aging fork force will come increasing visual and hearing disabilities, which certainly will be impacted by the use of information technology in the workplace. Even, even with this, there is an issue, however, and why we think this topic on the disability end is important, and that is although over half of the U.S. households now own computers. People with disabilities are half as likely to have Internet access as those without. So there is a potential for disparity from the get-go and why we think their needs to be serious attention to this topic. The place we are going to focus our attention today is in the workplace, though specifically. And specifically, I''m going to talk about human resource practices and its potential impact in the use, with the use of information technology on people with disabilities. And I''m focusing on this because we''ve been doing, conducting research in collaboration with the Disability and Business Technical Assistance Centers on human resource practices and accommodation and compliance with the employment provisions of the ADA. In the last year we focused on some significant changes we''ve seen occurring in the workplace, and that is the intensive use of internet and information technologies in the workplace, especially in the use of the human resource processes, as well as in work tasks. So we see the Internet access becoming much more common and businesses becoming much more network-intensive. We are concerned because web applications as this research has shown can pose barriers for people, particularly with vision and hearing also with dexterity related disabilities. And to date we are seeing that most websites are not designed to be accessible to people with disabilities. The studies that we''ve done and I''m going to talk about two, one was a survey of existing e-recruiting website, and then the other, as I mentioned, was an HR survey. The first one that I will talk about, the e-recruiting website review, our sample was ten of the most highly traffic job boards, such as monster.com and others that I know, I''m sure you are familiar with. We have seen so many people go to these sites both employers and employees go to these sites. We also looked at 31 corporate e-recruits sites that we selected by using Cambria Consultant''s list of the 14 best e-recruiting sites from 2000 and also selecting 17 top fortune 500 companies. I''m on page 6 right now, to list here the places that we made this review. And that was specifically targeted to e-recruitment pages, the corporate home page from which you would find the e-recruitment page, the job search page, the sign-up or registration page to make an employment application or to look for potential employee applicants and a resume builder page. On page 7 I''m giving you the information here about the two-evaluation method that we use. The first is one I''m sure many of you are familiar with, and that is we used the accessibility evaluation software, Bobby version 3.0, specifically use the priority 1 level assessment. But we also wanted to look more closely at some of these sites. And in the second process we did a simulation of using screen reader and keyboard navigation to take a look at specific features of the site. And we went through on our subset of those 41 sites: the home page, the career page, the job search page, job application and resume builder, using this hand review approach. At beginning of these results are presented on pages 8 and 9. And there are more extensive reports on these. I would be happy to give anyone who is interested the longer reports. But just to give you a favor, I will share some of these results with you. The first page, page 8 represents our findings from the bobby scrutiny, and the bobby review showed that none of the sites on the ten job boards that we reviewed passed the bobby priority 1. And in the resume, only two of those ten sites had resume builders, and nor did they pass monster there. The corporate recruiting site did a little bit better, of the 31 we looked at, a quarter passed bobby''s priority 1 on the home page, 10% on sign-up page and 17% on the job search page. Only 1 of the 11 sites that had the resume builder of 31 actually passed the bobby priority 1. So as you get deeper into some of these sites, try to use some of the tools, they don''t stand up under that kind of accessibility scrutiny. We got little more information on accessibility, going to this simulated process by hand. And we did a subset, as I mentioned, on nine of the job boards. And of those, only a third of them we were navigable throughout the entire search and application process using this simulated approach. And of the 12 sites that we looked at on the corporate e-recruitment sites from the major company, fortune 500 companies we looked at, a quarter were navigable throughout the entire search and application process. Although, there are some pieces of these sites that are accessible. There are still a majority of these sites, people cannot access, using screen reading equipment. Some of the common accessibility issues represented on page 10 here that we found that are also easy fixes, the critical submit image buttons were missing alternative texts. So people might make it throughout whole resume process and not be able to submit the resume, which is pretty tragic for such a critical part of that process. And links to resources and to other pages were missing, also, alternative text, as were image maps. And there were often auto submit combo boxes that precluded accessibility access as well. Our conclusion on page 11 are that the majority of recruiting websites, and they are becoming more in use all the time. The ones that we evaluated were not accessible. However, many of the issues can be easily corrected through the simple use of alternative of text tags for buttons and links. So it became even more imperative to us that projects such as, an effort such as what the DBTAC''s are doing now are important ones. Information, getting information out to employers and to Human Resources Professionals about these easy fixes so they get translated to web designers, it is absolutely imperative. I''m going move on here, so that we can save our questions until the last half. And I will talk about the second piece of our research that again confirms to us the importance of this topic, and of getting information out there. We surveyed four years ago over 800 society for human resource management members and went back to the same pool again four years later to ask them about their information technology accommodation experience. We reached over half of this group. We successfully surveyed 433 of these HR Representatives, and the results I''m going share with you now is from that pool of respondents. A quarter of these, just to show you, I think to confirm the representative ness across different-sized organization, a quarter were from very large companies of 5,000 employees or more. And 2 in 5 of them, 42% of them were from smaller organizations of under 500 employees. So we had a good mix across the size spectrum. Also across industry, 41% were from service industry, 21% from manufacturing and 13% from finance and insurance. And we wanted that blend to see if different industries had different experiences with IT Access issues. One of the first questions that we asked on page 14 was employee computer use. We were trying to discern whether we were correct that the workplace is becoming very information technology and internet-use intensive and indeed these issues are worthy of our consideration. And indeed, we found that is the case. More than 80% of employees in finance, high-tech and telecommunications and insurance industries use computers more than half the workday. But it is just not those industries. We found that about two-thirds of employees in service and public administration use computers more than half the workday. And 40% of industries such as transportation, utilities and manufacturing also use computers more than half the workday. So there are very few places today, workplaces that aren''t greatly impacted by Internet use and IT Access issue, as we can tell from this feedback. Some of the other questions we asked now knowing that these workplaces are so computer intensive were their use of online technology for human resources processes and their perception of the information technology, as a barrier, as well as their familiar with assistive technologies that could remediate these problems. For the first part of this, the use of online technology for human resources processes, as we had guessed, many of these company, 44% or a total of almost 90% use it either a great deal or some for online job postings. So almost all of these employers, nine out of ten employers use the Internet for recruitment of new employees and new job applicants. At least some of the time and some cases a great deal. Less use it, but there is still quite a significant group, about 82% use online benefits information disseminiation, a quarter of those use it a great deal. So again, for benefits administration people could be greatly disadvantaged in the workplace if they can''t access that. As benefits self-service is also an area, although a little less than online information dissemination. But still 57% of our respondents of 433 respondents, their companies use online benefits self-service type of information online. Last used online, employee training, particularly intensively, only 4% said they use it a great deal, but total, 63% said that they use online technology for employee training at least to some extent. So even there, for professional development, there could be some preclusion or problem for people with disabilities. We also asked-and this is illustrated on page 16 in the chart there-their perceptions of information technology as a barrier to people with different disabilities. And indeed, although the majority of them, 86%, saw this as not a barrier at all for people who are wheelchair user, they indeed do see the information technology as a barrier for people with visual impairments, approximately two in five reported that. One in five reported it as a significant barrier for people with fine motor limitations and 14% perceived people with cognitive or learning disabilities perceived this as being a barrier to them. 7% saw it as a significant barrier for a person who is deaf. So particularly for people who are visually impaired or those with fine motor limitations, they find that this is a most significant issue. Even so, they do recognize that this presents some problems or barrier. They are not as familiar as we would like them to be with potential assistive technology that directly relates to areas that they saw as problems. Although there is some experience, which is encouraging, we found that almost half, 46% had some exposure, some familiar with screen magazine and about a third with speech recognition software and about a quarter with video captioning. Less than had experience, only 21%, with brail displays or 16% with screen readers. And the least familiarity was guidelines for web design, 13%, which is a critical area for all of these processes. These HR processes that we spoke about, Robin had asked us to cultivate a list of resources on this topic, which we will share with you at the end. But we also asked our informants, our human resource professionals in this survey their familiarity with some of these resources. And I''m afraid the specific ones for web accessibility, they didn''t fare very well. Although they encouragingly, two out of five were familiar with disability-specific organizations and one in five with the job accommodation network. Far fewer had familiarity with vendors of accessible computer software, the direct hit we want on this top, 16%, and even far fewer than that with the World Wide Web Consortium or the Clearing house for information technology accessibility, which actually office us standards and guidelines on IT accessibility. And this becomes more poignant and more understandable, at the same time as we look at, on page 19, the figure that gives you an idea of the exposure that our informants have had in their respective workplaces to date with different kinds of accommodations that relate to information technology and the computer. Almost half have had experience with workstation alterations. And 2/5 of them with screen magnifiers had some familiarity, about a third with computer input devices like special mouse and keyboards, one in five with voice recognition. Far fewer had experience with large screen readers or brail display types of equipment. So these are certainly areas with more exposure, more information dissemination would greatly be helpful. One of our great concerns is the website accessibility issue and we asked people if they had, in their company''s, made any effort to force screening accessibility. One in ten said that their HR sites had been evaluated. 40% reported that they had not and the rest were not certain. So we would like to see many more sites being evaluated and more people aware that it is a concern and that it had been attended to. A part of this could be that people just really don''t have the knowledge, neither the HR professionals themselves or certainly the web designers in these companies. So we asked also about training, slide number 21. Only 15% of our respondents reported that any employees had been trained in Internet accessibility for person was disability, but better then double that had training on computer accessibility. So in response to the need, they are stepping up to the plate. So hopefully we can get them to do that on the other issues as well. We asked them what they perceived as being helpful organizational resources. And 84% of our respondents said the employee with the disability, him or herself, and that is consistent with the ethic in the ADA, that encourages the employer to interact directly with the individual to meet the accommodation requests. So that was great news to us. Other resources that our employer goes to and we see as useful is that about 2/3''s disability management and computer network staff are seen as helpful resource. In line with that inquiry, our figure number 23, we also asked our informants what would be helpful to them in removing technology barriers. And I think it is useful information to employers out there, many of them are internal resources but also resources you could certainly bring into your HR Professionals. More than 70% of our informants said that such resources as specific expertise or Technical Assistance within the organization would be helpful. Trained technical staff within the organization would be helpful, a set of uniform guidelines to help them making web-based processes accessible, computer training for potentials pwhros disabilities, and web-based resources on Internet or computer accessibility. They also found as helpful all of these things they saw as useful tool, but the ones I just mentioned were even more so. But telephone or expert e-mail consultation on IT access, print information on the same, and training purchasing or procure empty specialists in Internet accessible disabilities or people with disabilities were seen as helpful. On page 24, our conclusion certainly are and I would hope that you folks out there are coming to the same conclusion that the magnitude of computer use and computer-related skills required throughout the labor force is extraordinary. It is intensive and it is growing all the time. Therefore, we need to raise awareness about IT access issues for people with disabilities. And also it highlights the importance of computer training for potential employees with disabilities. Both prior to their seeking an application, but also as a part of their staff development opportunities, once employed with the organization. The implication for us, on page 25, is that IT access is an issue across the employment spectrum for person was disabilities. It is not just getting the job; it is keeping the job. So we all need to be mindful that have across the employment process. And the HR practitioner is a key workplace contact for intervention to inform this process better. And information services on web design considerations and accommodations are needed both in the workplace and for HR Professionals to access those that are available out there in the broader community, and that knowledge of these key resource imperative. And in line with that I have provided for you on the next three slides some additional resources. The first one being the Disability and Business Technical Assistance Center, also known as the Disability and Information Technology Assistance Centers that Robin represents, as well as the EEOC, and Peggy will give you more about the resources they can provide in just a moment. Also listed here, the section 508, the website access that provides standards and the Worldwide Web Consortium website which provides standards. A partner to Robin''s project is Access IT at the University of Washington. And we have provided you with their web address, as well as contact information at Cornell University. On the next page, page 27, I have listed the full reports that these studies have come from and provided you with my contact information. So please feel free to follow up after this, if we can provide you any further information on these studies. Now, with that, I''m going turn this over to Peggy to help us make this all real in the EEOC''s framework of current considering.
Well, I don''t know if it is going be real, but I will tell you that there are some legal issues that are raised by Susanne''s comments. We will talk about how we look at this whole IT accessibility area from the perspective of enforcing the Americans with Disabilities Act. And I guess what I''m going begin with is not with accessibility, but with some preliminaries. I think probably many of you know from speaking to the people who walk into the DBTAC centers, there are many of you listening, if you yourselves have disabilities or work with people with disabilities, you know that coverage under the Americans with Disabilities Act is a big deal, at least in the Federal Courts. And it is sometimes hard to show that you have a disability. And of course, that is always the first thing that you need to show If you then want to claim protection from discrimination, but if you then also want to get a reasonable accommodation, for example in the IT area. Now, if you are from the state of California, coverage is not a problem, because the law in that state is very broad. That is true in New Jersey and in a number of other places. But I''m just talking ADA now. But one of the high-tech problems that comes up in connection with even getting coverage under the Americans with Disabilities Act is the question of whether someone who is severely limited in the use after keyboard or a computer, can be covered under the ADA because of that limitation. I think you know the definition of disability is a physical or mental impairment that substantially limits a major life activity. And we have seen one case actually we''ve seen couple of cases that might be relevant here. But one case directly on point involving use of a keyboard, but before I get to that, let me talk a little bit about the Supreme Court''s decision last term in Toyota versus Williams, which is very relevant to this. In the Toyota versus William''s case, as some of you may know, an auto production worker sought a reasonable accommodation and didn''t get it and brought her case to court. Then of course the first question was, did she have a disability under the ADA? And the Supreme Court said she had not shown that she had a disability. She claimed she was substantially limited in major life difficult of doing manual tasks. And the court said the task that she was substantially limited in were too exotic to really meet this definition. And in order to show that you are substantially limited in doing manual tasks, you have to show that you are substantially limited in activities of central importance to most people''s daily lives, for example bathing, brushing your teeth, and doing household work. Well, then she got a chance to prove her case under that standard in the courts below. What is interesting here, to me, is the legal question of whether a severe limitation on keyboarding, for instance, is that a limitation on a task that is of central importance to most people''s daily lives and just looking at Susanne''s figures on page 14 on the degree of computer use, I think that was just at work, and we all know how much people use computers at home. It seems to me that somebody is going to come along and make a good argument that someone who is really limited in keyboarding is limited in a task of central importance to most people''s daily lives. And I would like to see that case because I think that is right. In other words, it is not just bathing and brushing your teeth that are of central importance to most people''s daily lives. I think you could argue that keyboarding, which again, it is very interesting in that it spills over from your work life to your home life. And I think it would be interesting to see that case. And again, I would remind you of Susanne''s really interesting figures, 80% of people, of employees in finance, high-tech, telecommunication and insurance use their computers more than half the day. 60% of people in service and public administration, 40% in transportation, utilities and manufacturing. The other sort of coverage issue I just want to address is the correlation between disability and age that we are seeing now. And there is also the whole IT connection here is very important as well. The census tells us that the percentage of older people in the population is increasing all the time. And it is going to be very high, by 2010, but it is just going up, up, up, up. What are the reasons for this? Well, one of the reasons is that many people don''t feel they can retire as early as they might have thought they would retire, say, 20 years ago. So you have more and more older people in the population, and the older people you have the more disabilities you have because the census also tells us that a higher percentage of older people have substantially limiting conditions. What we are seeing at EEOC is that the percentage of age discrimination charges that we get that allege disability is rising and the flip is also true. Susanne, who really knows statistics, understands why there are two different statistics. I sort of do. Anyway, also the flip, I said that the percentage of ADA charges, alleging age discriminations is also rising. So in both place west see more after correlation. So this is some background on sort of coverage issues and jurisdictional issues. Now, let me talk a little bit about the actual issue of inaccessible, you know, accessibility problems in the IT area. Under Title I of the ADA, we deal with accessibility problems under the rubric of an employer''s duty to provide reasonable accommodation. And as you know, under Title I of the ADA private, state and local employer, they are all covered and they all have the duty of providing reasonable accommodation to someone with a disability, unless it poses an undue hardship. It is request-driven, so somebody has to ask for something before any kind of legal duty arises. This is different from some of the other requirements of the ADA building accessibility, for example. Most buildings that are built after 1993, they have to be accessible, so nobody has to request. They just have to be accessible. This request-driven approach to accessibility is also very different from a new initiative of the federal government under 508 of the rehab built act, which doesn''t bait for somebody to make a request for accessible IT, but instead, says, requires the federal government to think about accessibility when it is purchasing hardware and software. So it is a totally different approach. It is preventative. If you catch the problem there, then people are not going to have to request it. But back to Title I of the ADA, I said it is request-driven, also there is an interactive process. Once somebody requests an accommodation, it is the individual with the disability who knows best what he or she needs. And the types of reasonable accommodation that may be required under Title I of the ADA are all the things in Susanne''s study, screen readers, brail printer, speech recognition software, video captioning, etc. We hope that, as a result of the new requirement that the federal buy accessible hardware and software under 508 of the rehab act, that there lab trickle-down effect in that there is going to be more accessible equipment at a more affordable price. That is because the federal government is such a large employer. If the federal government says we are only going to buy accessible, that has got to have some kind of trickle-down effect. So when you start look for accessible equipment, it should be getting easier for you. Okay. Another more than area for it, though, is training as a reasonable accommodation. And what I''m thinking of here is computer-related training, obviously, more training, better training, and different training. Training for individuals with disabilities on how to use computer, on how to use new applications, training when there is an upgrade. Susanne has material on page 23, she points out how this kind of training is considered, the respondents to her study considered this kind of training to be very helpful. We''ve also started seeing a few court cases involving training in the IT context. And they are both very interesting and quite different. One of them, the name of the case is Jackanin versus Mount Sinai Hospital, and this is a case from the southern district of New York, a decision in the year 2003. The plaintiff in this case, Mr. Jackanin was blind and he worked at a computer help desk. He alleged that he was not offered the computer training that his sighted co-workers got because he had adaptive equipment, which was limited in certain ways; and therefore, he alleged that he didn''t get the kind of training that he needed to advance in his job. So the problem wasn''t that he didn''t have a job. The problem was that he wasn''t going to be going anywhere in his career if he didn''t have the right kind of training. And the court held that the case could go to trial, and that a jury could find that he had not received equal training opportunities. I think this is an important training case. Another one involved Vollmert versus Wisconsin, Department of Transportation. This is a 7th circuit case from 1999. Here, the plaintiff was learning disabled. And he had difficulty with a new computer system. In other words, he was trained, but the training didn''t work. And because he had difficulty with the new computer system, he kind of lost control of his job. And I''m well aware of what that could be like. If you don''t know where your files on your computer and you are just a dead duck! So just imagine, you never quite get to understand the new system, so you don''t know where anything is. And this person was ultimately transferred to a less-desirable job. There, the court held that the employer may have failed to accommodate her when it did not give her proper training. So I think these are important cases. The courts are saying, you really need to pay attention. The last thing I want to address-and this is an area as well that Susanne has been talk about. It is not the treatment of employees, but recruitment of employees, the whole process of hiring people. At EEOC, we are aware now that inaccessible e-recruiting is preventing people with disabilities from apply being for open positions or even being aware that there are open positions. And I guess the worst-case kind of scenario is where you have e-recruiting, it is inaccessible, and it is the exclusive way of recruiting. So that is when you never even find out a job is open, if, say, you have a vision disability. Now, this problem of e-recruiting, of inaccessible e-recruiting, it really can''t be efficiently addressed under Title I of the ADA as a reasonable accommodation problem because Title I, as I said before, it goes person by person. You know, the person has to request, and if they request, then they may be entitled to a reasonable accommodation. So if you try to tackle the problem of inaccessible e-recruiting, person by person, you know, you would be doing it forever. The employer, each time, would have to respond to someone who requests a reasonable accommodation, and it would be person by person. So again, I''m pointing out to you, under Title I of the ADA, there is no anticipated reasonable accommodation required, as posed to the housing requirements, the building requirements or section 508 of the Rehab Act. So what can people legally to challenge some of these inaccessible recruiting sites? Keeping in mind, the real goal here is system change. You want to make sites generally accessible. And I think there is a possible legal theory that you could use here. I don''t know that anybody has ever used it and here, I''m just speaking for myself, I''m not speaking for the commission. It is interesting, to me, that there is a provision in the ADA that may apply here. If you look at section 102-a of the ADA, it provides that employers cannot discriminate in job application procedures. Well, we know that. And then in the more detailed prohibition, and this section 102-b-3-a, It says that employers are prohibited from utilizing methods of administration-what is that? Is an e-recruiting site, a method of administration. I''m asking, "from utilizing methods of administration that have the effect of discriminating on the basis of disability," is this a good fit? I don''t know. I know that there is a great interest in this area. My understanding is, for instance, that the national federation of the blind is exceedingly concerned about these inaccessible websites. I don''t know when the first enterprising lawyer is going to come along and look at this. But you know, it is a possible legal theory. And that is all that I have.
Well, great. I think both Susanne and Peggy have given us some thoughts and have raised some issues here during their time that many of you will probably ponder even further beyond this particular session. And hopefully the resources that Susanne has provided as far as some of the studies that have been done will give you some insight. At this point, we will facilitate the question-and-answer period. We do encourage you to take this opportunity to ask questions of both of our speakers related to this topic and hopefully get some clarification of something they may have said or something you would like to have additional information on.
Good morning or afternoon, depending on where you are. That is right. I''m the Alaska affiliate of the Northwest ADA-IT Center. How do you think this relates? Wasn''t it the Southwest airlines court determination that it was open for business online? Would this be a possible Title III?
Public accommodations? I think it could possibly be a Title III, absolutely. I''m sorry, I wasn''t talk become Title III because of course I always think about our own title here. But sure, an inaccessible accommodation, that is another legal theory, sure. You know, sometimes people like to pursue things under Title I because of the relief they can get, and it is more extensive. So that is another thing to sort of keep in mind.
Well Susanne, we have had questions that have come to our office in regards to things such as the major recruitment avenues that people are using, such as monster.com and some of those, very common sites that are not directly attached to an employer. Or even some of the newspapers offer some of the classified ad programs and things of that nature. When you were looking at the practices used bit many employers around their recruiting practices and the use of some of these electronic mean, was there any differentiate between the things that they most on their website versus those that they may use that are external to them?
What we have seen, Robin, is even smaller employers are moving very rapidly to this online, e-recruiting process. And they may not have their own site, but broker that services with a provider who creates a frame that makes it look like their own site is utilized. And of course, there are similar issues. If the provider that they are contracting with is not aware of Internet access or IT access considerations, then they are purchasing an inaccessible service. But size of the employer doesn''t seem to be an impediment at this point because advertising is so expensive in the conventional, traditional way; many, many more employers are looking at this as a cost-effective way of getting information about available jobs out there. So just as Peggy mentioned, it is problem all up and down the employment size spectrum, whether the employer has the means to create their own e-recruiting website or whether they purchased this service from a vendor of e-recruiting services. Does that answer your question, Robin?
Yeah. It is like, just where do you start with the employer, you know, or with some of the other programs and firms that offer the services.
I think, you know, we hope to tackle it in both ways. We are certainly reaches out to those employers whose sites we have reviewed, but we are also working with the companies that provide this service. And we are starting with the one, for instance, the one that works with Cornell itself. We think if we can get to those companies that impact so many employers, that certainly is a good place to start the information campaign.
Yeah, that makes sense, covering from both ends, for sure.
I work for the Department of Human Services. And in regards to the question that came from Alaska, I happened to think, I would imagine it is not unlike any other state agency, providing information just as a general basis on the Internet. You brought up Title III, about accessibility to that information. I''m just posing this, it just came to me. The agencies themselves, because of the information on the Internet, would be subject to Title III?
Yeah, you are covered under Title II of the ADA, which covers all the activities of state and local governments.
My question was, because information is out there on the Internet itself, then we would be subject to that as well, right?
My understanding of Title III is that it does not address the activities of state and local governments. I may be wrong, but my sense is that your Title II is the avenue for challenging the inaccessibility of any program that you are involved in.
I think maybe it is a clarification of your question, program, in that, when you talk about Title III, are you referring to that, because you may utilize the programs and services that might be on the internet, that you, as a state and local government, would have some liability there?
Oh, well thank you. I''m sorry, I didn''t quite catch that. I think, I mean, clearly, you cannot do by contract anything you can''t do yourself. From appear enforcement perspective; it might be possible to challenge something like this, where you would sort of go after the Internet entity under Title III and the state government under Title II.
And I think that we can also tell you that the Department of Justice, about two months ago now, in the summer, had issued a fact sheet on their interpretation or their policy related to application of accessibility of websites to Title II entities. And that, you might find that useful, if you have not reviewed it yet. It is available on the U.S. Department of Justice''s website, www.ada.gov.
What is the name that have document again?
Yes. I will come back and be able to give you that. Next question, please.
I would like to know how Cornell has used their Johnson School of Business in their research, since they probably have a great influence on hiring just because they graduated from Johnson. And have they had any disabled students in that program who found problems in applications and hiring that the rest of the class, the people in the class did not? The second question has to do with what to do when you run into these barriers. Since no one has tested Peggy''s theory that you might be able to make a point about the wording of the ADA there, what is the suggestion that we do? Just file a complaint can DOJ?
Let me answer the second question first. When you run into these barriers, you should file a complaint, actually, depending on the circumstances. I mean, if you are dealing just with a company website, you should be filing with us, with the EEOC. And we are very interested in getting these complaints. If you are not dealing with a company website but something like Monster.com, your recourse is with the Justice Department. The other thing you should do, depending on their disability, is getting some help from their organizations. For instance, as I said before, I know the National Federation of the Blind is very interested in this issue. Is it someone who is blind who is having these problems and if so, they should definitely contact their chapter. And Susanne, I''m giving you the Cornell question. [Laughter].
Well, I''m happy to know that you know about the Business School at Cornell. You sound very well informed about that. We have not solicited; we haven''t polled students at the Johnson school about this issue. However, that is a very interesting idea. And at a minimum, I would like to certainly get some of those folks some of the information that we are giving our own human resource students. And the School of Industrial and Labor Relations, where I am housed, we have a strong contingent of human resource students. We certainly try to give this information to them. We have worked extensionively with our own university''s online recruiting system, and with our own HR professionals within the university. But we have not tackled the Johnson school. I will certainly put that on my to-do list within Cornell.
Okay. Any other question, please. At this is our point I will give the information Peggy had asked about earlier, the exact title, the Department of Justice released is "Accessibility of local government websites to people with disabilities." It is a position that they have taken related to how state and local government activity, as they are branching out and doing more and more of that business throughout internet, that there is a responsibility that they need to maintain or ensure. Okay. Well, just as a follow-up-I know this is a topic where it is always tough to know about and people may not even know that they have or would have a question. But going back into the HR arena, where you have someone already employed, or at least you''ve made an offer of employment, then you directed me to your website in regards to completing my process, where I maybe have some forms to fill out and additional information that I have to do. Could it and would it be the ability of the entity to say, okay, well, we have this online system that we have employees using for this. However, because it is not accessible, you know, we are going provide as an alternative that we have to have a staff person sit side by side with you, and fill it out with you, in lieu of making our information directly accessible. Would that be deemed an accommodation that an entity could offer in lieu of creating access to their electronic system, if it was an internal system?
It really depends. It really depends on whether that alternative is equal to what you get if you apply online. Are there as many options and do you have as much flexibility? Can do you all the things that you can do, if you are applying online? An accommodation has to be effective. It has to work. So this alternative would have to be as effective as the online alternative. Certainly if there were any that people who apply in that manner, that somehow their applications are treated differently, I mean, that would be evidence that it is not an effective accommodation.
And what if I was already employed? So they have hired me, so that barrier of discrimination has potentially been made, as far as the hurdle and the hiring process, but yet, I still have this process to complete or my ongoing job going interface with my employer. For instance, even in my own institution, we have moved now to our paychecks and everything, our stubs for our paycheck, they are now online. No longer do you get a paper copy or any other kind of format or copy. That is the example I''m using.
Again, the legal theory sheer that you are entitled to a reasonable accommodation, not only to apply for a job, not only to do your job, but also to enjoy the same terms and conditions of your job, equal terms and conditions of your job. And all personnel stuff, HR stuff is the term and condition of your job. So your entitlement to reasonable accommodation there is clear. Again, whether somebody reading something to you is sufficient, a sufficient alternative, depends on whether, I mean, what, do you have a call up every single time? How long does it take them to get there? I think, you know, we would ask a lot of questions about that. And my guess is that, unless you have somebody from HR sitting right next to you all the time, it is likely not enough tf an effective accommodation. That is my guess. But again, I would say it is case by case.
So as employers move more and more of their functions on to the internet application, they really do need to give that consideration to-even if they were to offer some kind of other option-that it will be equivalent of that option?
Yes. That is what we do in the federal government. That is what we are required to do.
And Susanne, in the evidents and the work that you did, look at this whole issue of electronics and such, in the arena of training, particularly, we have had questions come in from employers through our training activities and such, where they are using more media and technology to train new employees as well as provide ongoing professional development for employees, where they may be using CD-ROM based curriculums or new information being provided to employees, not so much because they think of dollars and other issue, you know, the traditional classroom-type training but that independent self-paced type of study. Did you find anything in regards to the degree of which accessibility is being included or not included in the development and design of any of those programs and barriers?
Not as much in our inquiry from these HR professionals that was one of the mediums they reported, using less, although, they certainly do use it, it wasn''t as intensive as some of the other human resources processes. But in the review of the literature that we did that precede the our study to try to understand the lay of the land, there was just a ton of confirmation that employers are increasingly using online instruction because they developed training packages that they would like to have people be able to do on their own, at their own pace, and that this medium is only going to grow. So it really does need to be addressed.
And a typical example, there is more and more of this training, because it is cheap. And we have a huge amount of it again within the federal government. Recently I was involved in a situation where everybody made sure that the online training was, itself, accessible. But then there were training materials that were not. So you have to think of all of this, the whole package.
Yeah, that is a good point. So you get so bent out of shape by making sure that your online evidents or your CD-ROM or whatever is accessible, but then you have your handouts or other types of formats that can''t be accessed. It is the entire process versus just a piece here and a piece there. Any additional questions that have come through in the time that we have been dialoguing here?
How are software and Internet development stack against the bobby test? I''m not familiar with that. Can you please expand on what the bobby test is, and how we might be able to test our software on the Internet?
It is an online tool. And I would be happy to give you more information. Put want to e-mail me, I can send you the link to that. It is an automated tool that you can do online yourself, run your website through. If you want to e-mail me at my-my initials email@example.com, and I will be happy to send the link for that.
I can give that information right now, here. There are different programs. The bobby is one that is often cited because, you know, like anything else, we all call a tissue Kleenex because it was the first one there and everybody knew it. Bobby was originally developed by casts, an entity involved in accessible information technology for a long period of time. Bobby has since been sold to a private entity called Watchfire. But they still do provide a service on the Internet, where one can enter a URL and have that page tested against the guidelines. And you can select the worldwide web consortium''s accessibility guide lines or also the section 508 guideline, the federal government''s guide lines. But the website for that would be http://bobby.watchfire.com/bobby.html and that will get you to the site, and from there, there are various options that they provide you. You will see more and more websites now that will have some form or symbol of accessibility designated on them. It has been more available on government and non-profit organizations that use some kind of designation to denote to somebody that the site has at least met the minimum standards. But any of these checkers not a one-stop shopping concept. You can''t get everything, and you are not going have everything perfectly accessible. But it does direct you to the appropriate guidelines and standards to review. I would just caution not to rely solely on that method.
I wanted to get your opinion on some other technology that is being used in application process and what your opinions are with regards to this technology potentially flagging or requiring people with disabilities to disclose during the application process. And it is the information type kiosk or the kiosk that some retailers now use, where people will go into the particular location to fill out an online application, which may require someone with a learning disability to need to ask for assistance. Individuals, perhaps in the past, could submit an application or mail in a resume and not have to have a potential employer look at their credentials. Now, they have to disclose a hidden disability or an obvious disability. What are your thoughts on that?
That is very interesting. So what is happening here is that, I mean, you always have a problem in the application process that people have to, certain people have to reveal that they have a disability. I mean, interview is on the second floor and there are step, then the person with a mobility disability has to reveal it. And there are lots of situations where people come in for interview, and their disability is obvious or they may have issues with telephones, etc. But what you are suggesting here is that this all gets moved up to, before they even send in their application. At least, someone who is blind or deaf or who uses a wheelchair, for the very start of the process, they don''t have to reveal anything, they can just send in the application. Now as at the outset. This is an interest impact of all of this, that frankly, I haven''t thought about before. Is it a violation purely on that base, probably not? And it is also certainly true that these people are entitled to reasonable accommodation in the application process, and that employer cannot use this as an excuse to ask them all about their disability. You know, those questions not permitted. But I thank you for just pointing out the effect of this to me, and it is something that I need to think about.
Great, thank you. Yeah, I mean, there is always going to be new technologies and things out there and different methods that employers are using.
okay. At this point, we are nearing the end of our session, so I think we are at the point where we can ask both of our speakers if there is any final words or any additional comments that you would want to leave our participants with today, before we conclude the session. So Susanne, do you have anything you specifically would like to say at this point?
Actually, a reciprocal request to our listeners out there to let us know what kinds of issues surfacing, so that we can learn from the field and refine our understanding of the issues so that we can be more helpful in formulating standards and perhaps even have legal backing behind these issues. So the more you let us know what concrete the problems are, the better. I would just welcome any further dialogue with any of you out there on these issues. And we would certainly be happy to provide whatever resource we have.
I would second that and the EEOC''s website is www.eeoc.gov. And on that website, you can, it is very clear how you can contact any one of our offices. The offices closest to you, if you think you''ve been discriminated against in the application process, please come us.
Well, thank you, both of you, very much, for your time and your information that you have provided to everyone today. I think everyone on the call probably took away something, either new information or affirm the information about what they thought and knew. And as I said earlier, it is constantly changing in this realm. So I would like to thank everyone also for joining us today on the call and showing interest in this particular topic. If there are questions and things that you did not get answered today or further follow-up that you would like, both of our speakers have made themselves available to potentially contact, as well as you can contact your Regional Disability and Business Technical Assistance center at 800-949-4232. I would like to invite everyone to our session for next month, which we will be held on November 18th, 2003, we are going to take a little diversion from employment and issues that we talk beside today, and we will be talking about issues of accessibility in trails in the outdoor environment. The session is called, "Over the hills and through the woods" and it will be featuring Gary Robb, executive director, and Jennifer Skuluski, director of marketing and special products at the National Center on Disability at the Indiana University. So please visit our website or contact your regional representative for further information on how you can register and get connected for that particular session. Again, I want to thank one and all and let you know that transcript and the audio recording of this particular session will appear on our website under our transcript section in the next week or so, following its editing and getting it ready for your review. And the materials from today''s session will also be available on that website at that time, once it is posted. Again, I want to thank our speakers and thank one and all for joining us, and hope everyone has a great day. Thank you very much.