Legal Requirements for Hiring People with a Visual Impairment on Such A Site

National Technical Assistance Center

 Mississippi State University


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Legal Requirements of Hiring a Person with a Visual Impairment

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability such as blindness or visual impairment. The ADA also outlaws discrimination against individuals with visual disabilities in State and local government services, public accommodations, transportation and telecommunications. The ADA prohibits job discrimination. This part of the law is enforced by the U.S. Equal Employment Opportunity Commission and State and local civil rights enforcement agencies that work with the Commission.

Job discrimination against people with disabilities is illegal if practiced by:

  • private employers,
  • state and local governments,
  • employment agencies,
  • labor organizations and
  • labor-management committees.

The part of the ADA enforced by the EEOC outlaws job discrimination by all employers, including State and local government employers, with 15 or more employees. Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, since January 26, 1992.

What Employment Practices are Covered?

The ADA makes it unlawful to discriminate in all employment practices such as:

  • recruitment
  • interviewing
  • pay
  • hiring
  • firing
  • promotion
  • job assignments
  • training
  • leave
  • lay-off
  • benefits
  • all other employment related activities.

The ADA prohibits an employer from retaliating against an applicant or employee for asserting his or her rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the applicant's family, business, social or other relationship or association with another individual with a disability.

Essential Functions of a Job

As an employer, you must know the "essential functions or duties of a job" that an employee must be able to carry out—with or without reasonable accommodation—in order to be protected from job discrimination violations by the ADA. As the employer you cannot refuse to hire anyone because their disability prevents them from performing duties that are not essential to the job.

Most jobs are made up of more than one function. Very few people go to work and do the exact same thing, all day, every day. Essential functions are those job duties and skills which are necessary to be able to do in order to perform the job. In other words, without them the job could not be done.

This means two things:

  1. The individual must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses.
  2. The individual must be able to perform the essential functions of the job with or without reasonable accommodation.

How Are Essential Functions Determined?

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining.
Take the position of a receptionist for a blind or visually impaired person.

Essential job functions might include:

  • Answering the telephone and assisting callers.
  • Recording messages for department personnel.
  • Greeting clients and customers.

There might also be Marginal Job Functions which might include:

  • Serving coffee to clients and customers.
  • Escorting clients to staff offices.

For this receptionist position, an applicant would need to be able to perform the essential job functions (duties) of this position with reasonable accommodation. The marginal or non-essential job functions are those that could be redesigned or reassigned to other employees, if necessary.

Whether or not a particular duty is considered marginal will depend on:

  1. The importance of the duty to your company's operation;
  2. Its frequency;
  3. If there are sufficient staff to reassign the marginal duty to other employees;
  4. If the marginal duty can be redesigned or performed in another way.

In other words, if the duty is viewed as important to your company's operation, the duty is performed with frequency, there isn't sufficient staff to reassign the marginal duty, and the duty can't be redesigned or performed in another way, the duty would be considered an essential function of the position.

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

  • providing adaptive or modifying equipment or devices,
  • job restructuring,
  • part-time or modified work schedules or job sharing,
  • reassignment to a vacant position,
  • adjusting or modifying examinations, training materials, or policies,
  • providing readers and interpreters,
  • making the workplace readily accessible to and usable by an individual who is blind or severely visually impaired;
  • modified lighting according to the individual employee: lights may be brighter or the environment may need multiple light sources.

An employer is required to provide a reasonable accommodation to a qualified applicant or employee who is blind or visually impaired unless the employer can show that the accommodation would be an undue hardship -- that is, that it would require significant difficulty or expense. Often applicants with vision loss have worked with the state vocational rehabilitation agency that serves individuals who are blind or visually impaired. The state agency often has already supplied the applicants with specialized equipment such as computer with speech output or large print enhancement, so that cost to the employee or employer may be little to none. The state agency will work with the applicant and the employer to establish what adaptive equipment is needed for the position and what can be provided.