Alright! Good afternoon and welcome to the ADA Audio Conference. The ADA Audio Conference Series is a project of the ADA National Network, which is funded by the National Institute on Disability and Rehabilitation Research which is now part of the U.S. Department of Health and Human Services. You may contact your regional ADA Center by calling (800) 949-4232 and you can always find information about the ADA Audio Conference by visiting www.ada-audio.org. We are very pleased to be able to bring today's session to you and we are pleased that Howard Rosenblum, the Chief Executive Officer for the National Association for the Deaf, is joining us as the speaker. So I would first like to welcome Howard and I will turn the session over to Howard at this time. Go ahead, Howard.
Alright, thank you, Peter, and thank you to the [inaudible] invited me to this presentation. I’m excited to see everyone online and hopefully I can answer everyone's questions or concerns that you might have today. I’ll be presenting for about an hour and then the last 30 minutes we’ll open up to questions and answers. I look forward to the questions at the end.
So we’ll start with Employment Rights for the Deaf and Hard of Hearing. A little bit about myself. I graduated from the University of Arizona with a BA in Computer Engineering. Then I went to IIT/Chicago-Kent College of Law for my JD. I have been working 22 years in the legal field focusing mostly on disability rights and special education. I worked initially for a small private firm in Chicago. I worked there for ten years. And then another ten years with Equipped for Equality, which is the protection and advocacy organization in Chicago. The last four years, I did in Maryland and became the Chief Executive Officer for the National Association for the Deaf. It has been a quite interesting transition to the NAD. I am still involved in the legal field with policy issues and many other things as well. With that, I hope to give you an idea of my background and experience so you know where I am coming from when I talk about employment rates. With my position at the NAD, we represent the needs and right of 48 million deaf and hard of hearing people.
So today on the webinar I want to cover several things. First, I want to talk about the demographics meaning who are deaf and hard-of-hearing people that are out there looking for employment, want work or are currently employed and need their rights protected. Then we’ll have a discussion about job descriptions and essential functions. And that should be structured and framed so that you ensure you are not violating the rights of deaf and hard-of-hearing people who are looking for work or looking for promotions. Then we will talk about the interview and the application process and how to ensure that that process goes smoothly and meets the needs of the deaf or hard-of-hearing person. And then we will talk about the most difficult and challenging part, which is on the job accommodations. It is not so much difficult, but most of the questions that the NAD receives from employers fits into that category. How do we accommodate deaf and hard-of-hearing people who are working for us? So we will focus on telephone communication because it seems that that is the most common question. We will also talk about the provision of communication access through interpreters and other ways of providing communication access. And then we will talk about the best practices—or finally we will discuss what we see from the NAD as best practices for hiring, promotion and retention of deaf and hard-of-hearing employees.
Now for the demographics. As I said earlier, we have 48 million deaf and hard-of-hearing people in the United States. Now, that ranges from those who are profoundly or completely deaf, to those who have a small hearing loss in one ear. So the rage or spectrum is pretty large. There’s people who are born deaf to people who, you know, lose their hearing at the age of a hundred. The spectrum is pretty wide. When people—people can lose their hearing through genetics, through illnesses—a lot of veterans are coming back from war, from their tours and there is a lot of them coming back with a hearing loss. So it does cover a lot of people. Most of the hearing loss we see now are due to working in a construction/noise induced construction field, music industry, or maybe sitting in their car and listening to music at high volume. So the range is, like I said, pretty wide.
Now different people rely on different technology. I myself don't use anything. There is other people who can benefit from the use of a hearing aid. Some people can't benefit from hearing aids and they go ahead and get Cochlear Implants. When you see a person with a hearing aid or a Cochlear implant that does not mean they cannot hear you. There’s some people with the aid of a Cochlear implant or hearing aid can hear, just like anyone else. However, more often than not, with a hearing aid or Cochlear implant they can hear but they cannot comprehend or follow a conversation a hundred percent. If they are in a one-on-one situation, they can hear better than a noisy environment. A large meeting is hard to follow or even a noisy environment if you are speaking one-on-one it is difficult to hear. So when you approach each person who has a hearing aid or Cochlear implant or doesn't use anything because of hearing loss, often times they can’t be without technology or without interpreters or applications. Just one on one is fine. They just need you to speak slower, clearer, and that’s it.
There are other people, of course, who need communication access in various ways including American Sign Language. Most people in the U.S. and Canada who are deaf use sign language. It’s a language of its own. It is not a signed version of English. It has its own morphology, grammar, syntax of itself and often times you need to hire a professional interpreter to be able to translate from that language to English. There are some people who sign in a more English fashion, meaning that the words they sign go in an English word order. So those are the main forms of signing; American Sign Language or signed English. There’s also people that can hear but not enough and they depend on lip-reading to help them get more context from what they hear. And often times those people can also speak. Some can speak very clear, some people speak with what may sound like an accent. And then there is another form of communication called cued speech. Cued speech is a different type of communication system where you use hand symbols near the mouth to break down each word to its specific phonies to help the person better follow the conversation. And of course, you also have written communication. Today with computers easily available and easier to communicate, iPhones or mobile devices.
In addition to all of that, there is also the cultural prospective. There’s somebody who may, grow—grew up being culturally deaf, who may have different approaches to everyday life situations. So that’s something you might want to keep in mind when you run into a person who uses American Sign Language. You might notice that they might do things a little different than normal because they are coming from a different culture. So you will have to be sensitive to those type of needs when dealing with a person from that community. And that can help you bridge the cultural divide.
Move on to the next slide. Now, relate to what I just talked about deaf and hard of hearing, different hearing levels and different communication modes—all of that’s going to impact how they perform their job. When you are talking about—when you’re writing a job description, the job description should always focus on the function of the job, both essential and marginal. I have seen corporations advertise, saying that you have to hear and see and be able to move. That’s not really a function. That’s an assumption of what a person needs to do to function and often times it’s a wrong assumption. And can hurt in a legal sense. It might not be protected under the law if you described it that way. Instead, you need to focus on what do you need them to do to perform the job. For example, someone might say the essential function of an accountant would be to be able to perform mathematical functions, know accounting software, understand accounting principles, and be able to perform processes for banking, checks—writing checks. That would be a description for an accountant. A less enlightened company might say, “You need to be to be able to see the computer to work on the accounting software, you need to talk on the phone to communicate with the bank”—those are not the essential functions of an accountant. It might be more appropriate to say, “You need to be able to communicate with the bank. You must be able to follow software and perform the job.” There are many ways to do those things without being able to see or hear. So that’s something to keep in mind. Stereotypes—
I’m sorry, this is Peter. Just to interrupt you for one second. We are getting some background noise. Not sure if it is, if we’re getting static or paper shuffling. I’m not sure what exactly, what it is. We’re getting a little feedback. I think it’s coming from your end.
Alright let me see if I can eliminate that. Is this better?
N—yup. Cannot hear it at all now. Thanks, Howard.
My apologies. So stereotypes can get in the way of being able to hire the right people for the job. People in general think that deaf people can't do many things. The fact is that deaf people can pretty much do anything. There is around 400 or more, currently 400 deaf attorneys into the U.S. There is over a 100 deaf and hard of hearing medical professionals. There is a whole host of CPA's, professors who are deaf. Actors, Chemists, and Engineers. There is many deaf and hard of hearing people working at Google and IBM. So the stereotypes tend to focus on what a deaf person can't do. And that mentality needs to be taken away. The focus should be on what they need to do to be able to perform the job and be left at that.
Now I understand a lot of people think that most jobs today require the ability to use the phone. And that’s—I mean, that doesn't mean a deaf person couldn't do the job. Currently, there is new technology available that makes it a lot easier for deaf and hard-of-hearing people to use the phone. So even if there wasn't technology to assist in that situation, there are ways to reassign jobs so that marginal functions could be reassigned so that a person could focus on the essential functions of the job. So you need to be able to accommodate the person by giving them an appropriate accommodation or focusing on the essential parts of the job. In a couple slides I will be talking about the different types of technology so let me hold off on the technology.
So every time you hire a person, there is always people waiting to get a job. There are people that are good at certain things, other people are better at different things. Often times, you can figure out how to maximize efficiency in the office by figure out who is better suited for certain tasks and reassigning duties. There are some people who have pleasant telephone demeanor, pleasant personality, if that person is willing they could assume more telephone duties while another person who may be hearing or deaf may not be suited for working on the phone. It doesn't mean you take all of their responsibility and give it to another person but you just, you know, figure out how it can be done equitably. That is one way to run a business. Often times, it is better to maximize productivity by using the best of each person's skill. Same is true for deaf and hard of hearing.
Now in terms of the interview and application process, under the American's Disability Act and the Rehab Act of 1973, for those who receive any federal funding, employers are prohibited from asking if a person has a disability or if they have a hearing problem, prior to offering them a job. However, you could ask if the person has an obvious disability, either through the interview or application process—they might say in the application that they are deaf, or they work for a deaf organization, of course they could be hearing still even if they work for a deaf organization, or if they went to Gallaudet University, you could assume that they are deaf. With that information or you see that person wearing a hearing aid or Cochlear implant or using sign language or they might as for an interpreter—you can ask only how they can perform essential functions of the job with or without accommodations.
You can ask them what kind of accommodations they need to perform the essential functions of the job. Keep in mind that the law is clear. If you find out a person is deaf and refuse to accept their application or refuse to proceed with the interview or stop the interview upon finding out that person is deaf, it is illegal and there has been several cases. One case that the NAD was involved with was Germano vs. International Profit Ass’n. In that case, the company took a call from Mr. Germano, realized that it was a relay call from a deaf person and at that point they informed him, “We are not going to be considering you for this position.” Prior to that, through e-mail, they said they were going to go forth with the interview, but once they found out the applicant needed relay, they decided to stop the interview and not interview them at all. The case went to the 7th Circuit Appeals Court to talk about the admissibility of any of the relay information to be submitted for evidence. The court said that it was admissible. So any company who accepts applicants regardless of their hearing status, they need to have the opportunity to go in and interview and they may have to provide communication access such as interpreters for the interview.
There is another case, the EEOC v. Service Temps and in that case with the support of—sorry—the EEOC in the northern district of Texas and it was upheld by the fifth circuit court of appeals in 2012. In that case, with the support of. Sorry. The EEOC in the northern district of Texas, in 2008, and it was upheld by the 5th Circuit of Courts of Appeals in 2012. In that case, it was a temp agency that would not allow deaf people to be part of their list of temps because they assumed that deaf people could not perform the duties of the job that the list was for. That was found to be a violation of the ADA. Clearly you cannot make an assumption during an interview or application process of the ability or inability of deaf or hard of hearing people.
On the job accommodations: People often times ask me about telephone communications and how can deaf or hard of hearing people do this. As I mentioned earlier, you can reassign some of the telephone duties when there is no other way. Of course now, there is a lot of people who use e-mail, Facebook, Twitter, and other messaging services to communicate. But even if that person must use the telephone, there is often times, deaf or hard of hearing people who all they need is amplification. Or on accommodation to their hearing aid or Cochlear implant and they’ll need a certain phone that is compatible with their Cochlear implants or hearing aid. And you might have to switch out the handset to be accommodated to them. Some people have a loop or a tele coil and if that feature is available on their hearing aid or Cochlear implant, they can use the spine using that equipment. It’s kind of like amplification. All amplification does is make the sound louder. But there are compatibility issues because if it isn't—no matter how loud the phone is, a hearing aid or Cochlear implant might not sync with the phone. So you might have to have an application plus the appropriate type of phone to accommodate or it should be compatible with the hearing aid or Cochlear Implant.
There are also other types of phones also like video phones. Video phones are something that has come about within the last ten years. They make it possible for deaf and hard of hearing people to see each other on the phone through the internet. There are certain standards for video phones to be able to be compatible with each other to make a call. In 2014, the NAD prevailed, in a case against the Internal Revenue Service so that—I know I will be audited this year, for sure, unfortunately. However, I digress. In that case—in that case, Lowen vs. IRS, we brought a suit against the IRS through the EEO process, to change the IRS' telephone system. The IRS did provide definite employees with vehicles however, they claim that because of confidential information, they wanted to establish video phones that had built-in security measures that would prevent hacking or you know, wiretapping, to get into the system. So during the case it was found that the IRS had deemed the same type of risks that are possible through regular telephone communications however deemed those acceptable risks. But did not deem the video phone as an acceptable risk. So we prevailed. Now the IRS is in the process of revamping their video phone services for all of their deaf employees. So I want everyone to be aware there is existing video phones out there provided for deaf and hard of hearing employees at their workplace. Many of those video phones are available at low or no cost along with the relay system.
The relay system is basically like a bridge. It was established through a system of funding by telephone tax. Everyone pays a few cents on their phone line. That money goes into a fund that funds the relay system. So employers are not paying anything out of pocket for the rely system. How the relay system works is the person using the device that is not compatible with the conventional telephone will need a relay operator to facilitate the conversation between whatever one technology is to the typical telephone. Back in the day it, started with TTY. Most people don't use TTYs anymore but they are still out there. TTYs are analogue technology.
You can use a TTY still to contact an operator at a special telephone number. That operator has TTY phone as well as a regular voice line. So the person who’s using a TTY, the deaf person, would be typing their message on the TTY to the operator, the operator will see that message and will re-voice that message to the person who’s on the voice line. And then when the person on the voice line responds, the operator at that point will listen and type or retype what that person said so that the deaf person can read the message. As I said that was the first form of relay and it is still in operation today.
The second version is IP relay, internet protocol relay which is the same concept except for instead of a TTY you would use a computer or a smart phone to text on an instant messaging type platform. You would be texting to an operator through the internet and the operator would do the same thing; would read what the deaf person typed, voice to the regular phone user, phone user speaks back, type it back to the deaf user. That type of relay is a little different from regular relay because with the TTY relay, there was a special number you had to call. With IP relay both sides, whether deaf or hard of hearing, can call each other directly just by dialing that regular person's telephone number. So I could call the hearing person’s voice number directly and they could call me directly and there would be no special number that I have to dial to get ahold of them. So it would seem as a regular call but instead of speaking directly to the person you’d be speaking to an operator.
The next type of relay call is caption relay. That system is a little bit different. A person who has a caption telephone would call you directly, regular voice user; you would hear that person speaking. When you responded to them, the deaf person or hard-of-hearing person will have to ability to hear you as well. So it’s just like any other phone call the only difference is that there is a third party on the line who is listening in on the call and they are typing or producing captions on the deaf person's telephone system. So the deaf person can read what is being said as well as listening to what they’re saying. There is a bit of a time delay for the captionist. So sometimes you will hear a bit of silence after you are done saying what you have to say for them to catch up.
Last but not least we have what we call VRS which is Video Relay System. As I explained earlier, for video phones, deaf people can use them to see and sign with each other on a video phone. With VRS, what happens is the person who needs the video phone can call an operator, the operator also has a video phone, and is a sign language interpreter, like the one that is voicing for me today. His name is Tony, by the way. So the operator would sign with the deaf person on the video phone and then whatever the deaf person signs, the operator would voice that to the regular phone user. And when the person using the conventional phone replies back the interpreter/operator will sign what’s being said back to the deaf person. And again, with VRS, there is no need to call a special number. You would just call each other's telephone number directly and the technology exist and it is great where you can call any deaf person and it will automatically connect to an interpreter because that deaf person's telephone number is in a database where it knows to be routed to the relay operator and vice versa. If a deaf person calls a telephone number that is not in the video phone database it will automatically go to an interpreter who will communicate to you.
Another option to use to communicate telephone access for the office is to hire a Sign Language interpreter to be on site to interpret telephone calls when needed. If you have many deaf people working within one office it might make sense to hire a sign language interpreter to be on site for the multiple needs of the deaf employees. If they all need to make telephone calls, the interpreter could be scheduled or they could use Video Relay Services. Sometimes people prefer in-person interpreters for the sensitivity of the call or if it is a job requiring security clearance, you might also need a person who has security clearance to be part of the call. That is everything for the telephone section and I know you might have questions but we have some time at the end where we can cover that.
Now, we just talked about interpreting for telephone calls, now let's talk about interpreting on the job as a whole. Interpreters should be qualified and that’s what is written in the law. According to the EEOC's own Q & A document, it says that, “A qualified interpreter is one who, whether or not is certified, can effectively interpret as to allow an employee with a hearing impairment access to the same information and the same opportunity to participate as other employees.” Now it says, “…whether or not certified…”—that’s true in most legal languages. Certification often gives you an idea of whether the interpreter meets minimum qualifications. Of course it is not required. You do need to ensure the interpreter you hire is effective. In DOJ's—in their language for Title II and Title III, it says to be effective and to be qualified, they must be effective, accurate and impartial. What that often means is that the person cannot be related; can't be a child/parent/partner/spouse. It should be somebody who is completely neutral. Also somebody who can convey accurate information. And effective, to me and many deaf and hard of hearing people, means that they can make the deaf person and the hearing people all understand each other. If they cannot understand each other then it’s not effective. And it also says the same information and the same opportunities, so it’s not just limited to on-the-job duties, but everything within be—the experience of working in the company. And we’ll talk about that a bit more later as well. There have been several lawsuits against various companies for failing to provide interpreters. Examples include EEOC vs Wal-Mart in Arizona in 2010. Wal-Mart hired deaf people, but didn't bother to provide communication access. So the EEOC said not only do you need to hire but you have to be able to communicate with your employees. Same thing happened with EEOC vs Federal Express. That happened in 2004. Again, they were sued in 2014. I guess some companies never learn their lesson.
Now again to make sure the interpreter is qualified, they have to be able to match the communication mode of the deaf person if they sign American Sign Language, if they sign Signed English, if they lip-read, if they use cued speech—the interpreter has to match their needs and more importantly the interpreter must be familiar with the vocabulary, the jargon of what’s being discussed within the company. If you can imagine an interpreter who, you know, might be savvy with medical interpreting, gets called out to work at Google and they are talking about Java or Androids or Unix or whatever it may be, the interpreter may be at a loss, might not be able to function in that type of environment. Or vice versa, an interpreter who works at Google every day is called to go to court, are they familiar with legal language? Do they know the terms or not? They might not. So you need to make sure the interpreter is qualified for the job you are asking them to do.
That’s why often times companies who have inadequate and also deaf employees will hire a staff interpreter rather than contracting interpreter on an as-needed bases. If you contract an interpreter as an on-needed bases, you might not get the same interpreter every time. If you hire a staff interpreter, they’ll be familiar with the company jargon, the language of the employees at the company. So that’s another consideration, another cost-benefit analysis you might have to do. If you only have one deaf employee, you may or may not have to hire a staff interpreter. There are some situations where it might be beneficial to have a staff interpreter. You could have the interpreter often have different functions instead of just interpreting, depending on what the agreement is with the interpreter.
Another option for many companies, and depending on the situation is you can use what is called VRI, Video Remote Interpreting. There’s also Video Remote Captioning and as a matter of fact, we are seeing evidence of that right now. If any of you are clicking on the closed caption icon you can see the video—or the remote captioning that we’re using. There is technology in the office where you can see the interpreter or the captionist. You have to have access to sound, too, so that the interpreter or the captionist can hear what is going on in the workplace and if they can hear, then they can caption or sign via video. The interpreter needs to be able to see the deaf person. So if the deaf person wants to sign something the interpreter can voice back to them. That’s another form of technology that could make it possible. If you don't have an interpreter now and it’s hard to get an interpreter at the last-minute, you can use Video Remote Interpreting to provide effective communication spontaneously. If you need a five minute meeting with your employee you can get the interpreter online or captionist. You can get a captionist as well.
Now, the last one on the slide. Relay calls, or conferences—teleconferences. If you have many people calling in to a teleconference, now for both interpreters and captionist to make those type of calls possible, you might need to use a caption—if they are using a caption phone there is going to be a delay or if there is VRS calling into a conference call you can have an interpreter, but—and Video Relay Services for telecommunications purposes is free, the company doesn't have to pay anything for that. And captioning on a cap-telephone, there’s a way to and it’s also free. But remote captioning has a cost involved, like what we have now is not free. But it’s a great service to have. So I want to put out the different options and resources you can use.
Oftentimes people think that every day functions of the job—you know, the phones, the meetings—you have to make sure you make an accommodation for that. You cannot forget the other benefits and services of the job as well. For example, if you provide information to your staff via the internet or video, you have to make sure it is accessible. If a person can't hear clearly, you need to make sure the videos are captioned. It is not terribly expensive to caption a video nowadays. And you can do that internally. There is technology that’s available out there. If you provide insurance and benefits you need to make sure that deaf and hard of hearing people who need access to that information to communicate with internal HR or to vendors that come in that provide options that an interpreter has provided so they have access to the information and can make an educated choice. Or if you hire an insurance person to come in and talk to your employees, you have to talk to them about providing an interpreter for the employers as well. If the company decides to provide training—if the company decides to provide training to their staff, you have to see if that training is accessible with an interpreter or captioning. Those are things you have to also consider.
Sometimes employers can negotiate with companies that provide the training in terms of who is going to bear the responsibility of the interpreter or if they are providing a training video, they make sure their video is captioned. And that‘s again for the whole experience at the workplace. If there’s any staff meetings, anything that is available to any employee and the deaf person wants to participate, you need to ensure it is accessible for them. Often times I see companies think, if we have a formal meeting or a training or an insurance presentation, of course we will provide communication access. However for the Christmas party, nah, we shouldn’t do that because it is more of a social function. However, the Christmas or the holiday party or the outing to a baseball game, you still have communication. There’s still dialogue that happens. In a social situation, that’s where you talk about work or that is where you do networking to be able to move up the ladder and you need to ensure the deaf employee has access even at social events. You need to make sure everyone within the company has an equal chance, an equal opportunity for promotion or opportunity within the company. That is why communication access must be there.
Now you might be thinking, I am going to need an interpreter or captionist every single day, 40 hours a week, but that’s not necessarily the case. As a matter of fact, with today's technology, most people communicate through e-mail or texting. There is so many different ways to communicate nowadays that even within a company most people can communicate through instant messaging. If you use G-mail there is G-chat you can communicate through. I’ll look at a chat feature. If you still use AOL, there is AIM. So there’s a lot of options you can use internally. Now if you do have an in-person meeting, you might need an interpreter for that. If it’s one-on-one, probably not, unless you are not able to communicate effectively and then you have to negotiate how you can communicate. Telephone conferences are affordable, cheap, or free options.
We have about five minutes left to wrap up. Best Practices. I hope everyone is still awake at this point. Four things I want to cover really quick when you are focused or looking at staff training to educate people internally about hiring and working with deaf or hard of hearing people, you might need to bring in people who are knowledgeable about that culture or the deaf and hard-of-hearing community or different ways to improve the workplace for everyone. It’s not just for the deaf and hard-of-hearing person. It would be great if you had HR staff who might be deaf or hard of hearing themselves or might know or understand the deaf community. It’s often a good way to reach out and get people from the community and bring them into your workforce. You need to always remember when you are talking to a deaf person who is applying for a job or is already working within the company, make it an interactive process. Ask them questions. Most deaf and hard of hearing people are not shy. If you ask them, “What’s the best way for us to accommodate you?” they will tell you. It doesn't mean you have to give them everything under the sun. But you can negotiate the best way to be on the same level to be able to do their job. And deaf and hard-of-hearing people will work hard for your company. So it’s important to be interactive and find out the best way to meet their needs. If you don't know what the technology is or the best way to do something is, you know, a lot of that stuff has been done. You don't have to reinvent the wheel. Contact the appropriate resources like the NAD here. We can provide that information. Jan Job Accommodation Network is another place—J A N. They have a lot of resources there. Or you can contact HLAA—the Hearing Loss Association of America. Or your local deaf community resource center and there’s a lot of them out there. They can provide you information on where to find resources or accommodations for low-cost or free.
And last but not least, the NAD strongly recommends and the EEOC agrees and makes this recommendation that every company should centralize funding and coordination of accommodations. Too often, we see companies, big and small, who will setup a budget for each division within the company. And each division has control to do what they want with their budget. So there is a tough learning curve for each division and each company to figure out that type of situation on how to accommodate a deaf or hard-of-hearing person or how to hire, how to find funding to cover the cost. If you give it to each division and each division has to figure out their own way of doing this, they might think well if I hire a deaf person I am going to have to take from my budget to meet the expectations. So there is a disincentive built-in. If there is centralization in each headquarters of each company, then each division can hire the best qualified person. They don't have to think about budgetary considerations. They don’t have to have a contract with an interpreter or figure out how to get captioning services in there. If there is one entity within the company that takes care of all of that for everyone, figures out the cost, all of the accommodations—if there’s only one person then the divisions just have to worry about hiring the right person. They don't have to think about the disability, they don’t have to think about the accommodations; just hiring the right person for the job. And that is especially true now with the federal requirement for private contractors with the federal government. If you lose contract with the government, you have to file a federal law for hiring. The department of labor has set standards so if you want to keep those kind of contracts, they need to consider having a centralized coordination of accommodations. I think that’s it for my presentation. I hope there’s questions out there. And I hope everyone is still awake.
Yes, Howard, I am sure they are. Thank you for all of that fantastic information. I am going to ask Malory to rejoin us and give participants on the telephone instructions on how they can ask questions and I’ll remind folks in the webinar room how they can ask questions. So Malory, please.
Ladies and gentlemen, if you have a question at this time, please press star and then the one key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. And again, that is star 1 for questions.
Alright, and again for those of you in the webinar room, you can click on the chat room or control M. For assistive technology users, we will put the focus in the chatroom area. When you submit your questions, you will not see it but the moderators and Howard will be able to see your question. Those connecting by mobile device submit it directly into the chat area on your mobile device or you can submit your questions to firstname.lastname@example.org.
Howard, we did get a few questions in advance and we did get some questions while you were presenting. So let me go with this first question. And this one—the individual wants to know, can an employer require an employee that is deaf to communicate via computer rather than providing an in-person interpreter?
I think the key answer to that question is it depends on what is effective. If computer services give you the same level of communication that you would have with someone else, then that might be possible. If it’s a struggle due to technology or inability to understand or if you are using the interpreter on the video, the quality of the interpreter on the video. But there is no right—no one right answer versus interpreter in-person or computer. I think you’d have to think of some situations, it might be cheaper to have a person in-person than on a computer. If it is an hour meeting, it would be much cheaper to have an interpreter come in. If it is a five minute meeting, a computer would probably be cheaper. So I think it goes back to cost and effectiveness. If the deaf person says, “I’m having a hard time understanding you through the computer or the bandwidth was too slow or the speed was too slow, or it was a choppy picture, then that may not be effective. Either upgrade the technology so the deaf person may be better able to understand that than in person.
All right, excellent. Thank you, Howard. And I have another two questions that are sort of similar but I am going to give them to you separately.
This questioner wants to know if you can talk about whose obligation it is to provide captioning for a webinar program that an employer may be using as an in-service and the presenters are using uncaptioned video for the session. So who has the responsibility where an employer is using an outside webinar program for an in-service for its employees?
HOWARD: The answer is you have to split the baby. The employer is ultimately responsible for making sure that any program or services provided to the employee is accessible. But the employer could tell the outside provider that I am not going to provide anything that is not accessible to all of my employees. So you could negotiate between the employer and the outside provider and maybe you split the cost or the employer says either you give me accessible access or I am not going to use you anymore. It’s the employer, though, that makes the determination of how to ensure all the information is accessible to their employees.
And Howard, I’m going to follow up with another question and this is one that I have gotten this from time to time over the Technical Assistance line at the ADA center. This is an employer sending an employee that is deaf to a conference as part of that employee's job duties and in that instance, again, what are the employer's responsibilities for addressing the employee's communication needs while attending that conference as part of their job?
Again, it’s a dual obligations. Both the employer is responsible to make sure that wherever they are sending their employee that they have access. So the employer could be liable. However, the provider of the training is also obligated under Title III, the
Private Provider of Services, which is under Title III of the ADA, they are required to provide an interpreter anyways. So I have seen situations where both the employer and the conference or the training provider have split the cost. I have also seen situations where the employer pays for everything. I have also seen situations where the provider of services pays for everything. So again, I think it goes back to what is the agreement between the employer and the provider of the training.
All right. Excellent. Thank you, Howard. And Malory, at this time, I want to check if we have questions on the telephone.
I’m showing no further—I’m showing no questions in the queue at this time.
Okay. Excellent, and you want to—a quick reminder of how phone participants can ask questions.
For questions, it is star and then the number one key.
All right. And again, for those in the webinar room, you can submit questions in the chat area.
Howard, I have another question for you submitted in advance and for my own edification. As you were going through and explaining the different options for communicating via telephone and then in your next slide, you went to ways to communicate as part of performing essential job functions. If you could explain a little more in-depth the difference between VRS, Video Relay Services, and VRI, Video Remote Interpreting, and where the use of VRS is appropriate and the use of VRI would be appropriate, if that makes sense to you.
Sure. So the basic way to understand the difference between VRS and VRI is VRS, Video Relay Services, is for telephone use only. While VRI, Video Remote Interpreting, can be used in any area other than the phone. So let's say a deaf person wants to call into a conference call or just to make a telephone call in general to call his boss, to call another employee. They can use VRS and again it’s at no cost to the person who’s making the call. Now, if you have an in-person meeting and the deaf person is there and you might not have had time to get an in-person interpreter, you can bring a computer in with the technology and have a remote interpreter. It’s like having an interpreter in the room with you who can hear everything and signs everything that is being said and voices everything being signed by the deaf person. So that is a possibility. Now, that’s a private service so that’s something you have to pay for and you are not able to use VRS because VRS will not provide calls for people in the same room. The FCC has established rules for VRS. It’s limited to only telephone calls. And you can’t get around the rules by having in-person calls for somebody who is in the same room. That’s a violation of the FCC's rules and the FCC will fine everyone. Now, if they are not in the same room, they can use VRS to communicate. If you are in the same room and they need to communicate, VRI would be appropriate. Does that make sense?
Yeah, absolutely. And thanks for making that clarification where sometimes folks may in advertently or intentionally use Video Relay Services incorrectly or in violation of FCC requirements.
All right. Going to another question submitted in the webinar room. Someone wanted to know if Video Relay Services that provide equal access to automated telephone systems. Someone using Video Relay Services and calling an employer for instance to find out about employment opportunities and that employer has an automated telephone system, can that be accessed using Video Relay Services?
I believe so. It depends on the nature of the automated telephone system. If there is time limits on certain choices that a person has to make along the way, it could be a challenge for some relay service operators because the information has to be relayed. VRS is more real-time than TTY. TTY, there’s a significant delay in TTY relay. So if a person is calling through relay and has enough time to push the button to move along in the system then that’s just fine. What often happens is a person who’s using the relay will call in, get the information, and miss the time frame to push the button, and have to redial to get back the same phone treatment. So if you have several steps along the way, then you have a Groundhog's Day experience. Like Bill Murray, where you feel like you are reliving the whole thing over and over again because you have to dial in, get that information, but miss the time length, call back in, get to the next step and by the time you get that information, it has hung up on you and your finally in the third or fourth incarnation before you finally get through to where you need to go. So you made several calls before you got through.
So, again, it goes back to what the automated phone system looks like. Is there—is that an easy way for people to navigate if they need additional time? And that’s not just for deaf people, too. There is people who have varying disabilities or just people who aren’t able to respond as quickly as they need to. Is that system accessible to everyone that needs the extra time? I think that would be the question.
All right. That makes sense. Thank you, Howard. Malory, do we have any questions on the telephone at this time?
Again, ladies and gentlemen, if you do have a question, please press star and the 1 on your touch-tone telephone.
Alright well we have plenty of questions being submitted in the webinar room, Howard, to keep us—to keep us occupied. Or keep you occupied rather. This questioner wants to know about any possible resources for an employer, small, non-profit, that has an employee that is deaf and wants to meet the communication needs of that employee. Any resources—financial resources or avenues for a small, non-profit that you’re aware of?
Tough question. I wish there was a money tree so we could just shake it and get what we need. Um... I guess it depends on what you’re looking for. If you’re looking for telephone communication that is affordable or free, there is a lot of information to get that type of technology to meet your needs. Now, if you’re talking about money to pay for the captioning service or pay for the interpreting services, there are some resources out there, there’s not a lot, because the expectation today is for each employer to build that cost into their budget. So that is a challenge, that’s why we often suggest using technology whenever possible to save a cost. However, now [inaudible] of the deaf and hard of hearing employee. So if you want to contact me off line, we can talk about options. And my contact information is up on the slide right now.
Excellent, and Howard, staying in that same sort of theme, but switching over to the other side from the perspective of someone who is deaf. This questioner wants to know about any legal resources that may be available to someone who is deaf regarding ADA issues that they are—that they are facing.
There’s lots of resources for legal information. Of course, you can always contact the National Association for the Deaf. You can also contact Great Lakes or any of the other sister ADA centers. You can look at JAN—their website. Look for jobs—job accommodation center—network and they have a lot of information about deaf people's needs and how to accommodate the workplace. That’s a few, of many resources out there. If you can't find the information you are looking for specifically, we can help either answer or refer you to the right resource.
Right, and we don't want to forget your former employer, Howard, and their affiliates across the country, of course the protection and advocacy services across the country as a resource as well.
Right. NRN—NDRN, the National Disability Rights Network—they have a website and you can go to their website at ndrn.org and look for your state. If you are looking for Illinois, for example, which is—used to be my home state, you will find Equipped for Equality listed in there. They are the protector for that state. There is a lot of P and A’s, Protection and Advocacy organizations out there and they can be resources for you, too, for deaf and hard of hearing or any person with a disability looking for workplace information.
All right. This questioner is a little more specific. They want to know if an applicant does not have or disclose that they have a disability or the individual does not have a visible disability, is it legal for an employer to, during the interview, provide the applicant with a list of essential job functions and ask that employee how they’re going to perform those various job functions?
Yes, it is appropriate for an employer to ask every job applicant if they can meet the essential job functions and that’s it. As long as you approach every applicant the same way. Now, if you suspect the person has a disability, you cannot just ask them. You have to have a standard. You can say, “Can you perform the job? Can you perform the essential functions and marginal functions?”—you can ask if they can perform marginal and essential functions of the job. Technically, you are not supposed to ask in a way to fish for disability information. You are supposed to ask the same question to everyone and ask if they can. Any question that is intended to solicit information regarding disability is illegal.
And that is the key thing you mentioned there, Howard. As long as the employer is consistent in asking all applicant those questions and not just applicants they may suspect have a disability.
All right. And someone wanted—another question submitted here. They wanted clarification on when an employer, I guess this is both from the application portion of the employment process as well as on the job, but when can an employer, you know, make inquiry of an applicant or employee with a known hearing disability? So when can the employer, you know, ask questions, of the applicant who has a known hearing disability or of the employee who’s already on the job, can an employer make any type of inquiry?
You can, if it’s obvious or disclosed, from the outset. Do you need any accommodations to perform essential job functions? You can’t go much deeper than that. After the job offer has been made, you can have a medical inquiry, put it has to be related to the job function. You have to make sure that your questions are meant to make sure that person is qualified and able to perform the job and that’s it. You can’t go off and say, “Hey, I’m curious, how much hearing loss do you have?” or you know anything to satisfy your own curiosity. If you have specific questions like, “Can you talk on the phone or do you need something different to communicate on the phone?” Those types of things are fine after the job offer has been made.
All right. Great, Howard. And can you, again this is sort of for my own edification on some questions we occasionally get over the technical assistance line and the issue of direct threat which we know under Title I of the ADA, an employer can raise the issue of someone being a direct threat to one's self or the direct threat to the health and safety of others. And a lot of times employers automatically assume, you know, based on where the workplace is, i.e. a large work house that an employee that is deaf may be a direct threat. Can you talk about that and best practices or common sense accommodations that eliminate any direct threat issues?
Absolutely. We have gotten inquiries of that as well. For example, in a warehouse where there are moving pieces of equipment like forklifts, an accommodation, and really this is for everyone for safety purposes, is to have a floor plan where the path of the moving equipment must be followed. So that people who are deaf or hearing know where they can walk safely. If you feel there is a need to let people know there is an emergency or that we are in a specific operation mode, you can give everyone, not just deaf people, everyone an emergency alert system that will vibrate. Because often times, if you're in a wear warehouse, it could be noisy and hearing people won't hear things as well. So it’s best to have a vibrating alert system so that they can, you know, maybe it’s a text message system where you can look and see where the threat is. The best practice is to ensure—
[Audio went out]
Testing, one two three. Testing one two three. Alright, you can continue, Howard. We have the captioning and sound back in the webinar room. Thank you.
Okay. Sure. I want to finish that point up by saying that it is best practice to make sure everyone is safe. You know, people could be missing things because they are distracted or because it’s a noisy environment. So you want something that’ll alert everyone, not just the deaf people, but something everyone can benefit from.
And Howard, like many other points you made today, that’s an excellent point. When employers do things that may be in accommodation for an employer with a disability, they have benefits for all employees and in this instance, which you were just explaining, you know, provides safety for all employees not just employees with a hearing disability.
We have unfortunately reached the bottom of the hour and for those of you that did not get your questions asked, Howard's contact information is available. You may also contact your regional ADA Center by calling 800-949-4232. I want to mention that Howard's full bio is available on the Audio Conference website, ada-audio.org. You can read all about Howard.
I want to thank Howard on behalf of the ADA National Network. Howard, thank you very much for your time and putting together your presentation and spending the past 90 minutes with us and sharing all this very valuable information. I want to thank all of you for joining us because we wouldn’t be able to get these wonderful speakers if we didn't have participants. I want to remind you that the next ADA Audio Conference will take place on March the 17th and that will be an overview of the Workforce Opportunities and Investment Act, implications for persons with disabilities. You can find information about that upcoming session, and registration information by visiting www.ada-audio.org or you may contact us by calling 877-232-1990. Again, today's session has been recorded, the audio archive will be available within 48 hours ada-audio.org and an edited transcript will be available in approximately three weeks’ time at the same website. So again, a big thank you to Howard Rosenblum for presenting today. And thank you for all of you presenting. Thanks, Howard.
And you can disconnect from the webinar—from the audio conference at this time. If you are in the webinar room, simply close your internet browser. And those of you on the telephone can hang up. Thank you and good day.
Ladies and gentlemen, thank you for participating in today’s conference. This concludes this program and you can all disconnect. Everyone have a great day.