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A candidate requests certain accommodations for the job interview, for instance to perform interaction with the interviewer in written. (Speaking is not an essential requirement for the job in question; the candidate can hear and speak, but it's a significant extra effort for them and thus constitutes an undue disadvantage).
What are possible legal repercussions for the company if one of the interviewers ignores these requests and keeps on speaking to the candidate?

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  • your question begs the question by assuming that holding an interview without speech is "reasonable." That is a question for the courts, and certainly isb't a given.
    – Tiger Guy
    Apr 11, 2022 at 14:56
  • @TigerGuy you wouldn't ask a mute guy to talk, would you?
    – Asterea
    Apr 22, 2022 at 22:10
  • I would ask a mute person for advice on how to conduct the interview.
    – Tiger Guy
    Apr 24, 2022 at 22:31

2 Answers 2

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Note that while a person can request a specific accommodation, an employer or potential employer is not required to grant the specific accommodation requested. Some other accommodation which (the employer claims) will meet the expressed need can be offered instead. Also no accommodation need be offered if it would impose an "undue burden" on the employer.

The normal expectation is that there will be a back-and forth until the employee (or applicant) and the employer agree on an appropriate accommodation. Where there is agreement but the agreement is then violated, the normal first response is to make such adjustments as will restore the agreed accommodation. Only if that fails will a legal complaint be heard. There is no automatic penalty for violation of an accommodation agreement, it will depend on the facts ass assessed by the Commission and perhaps later by a court. Possible penalties can include an order to employ or reinstate a complainant, back pay, costs and legal fees, and money damages, which can be up to $75,000 per violation, as the court deems just.

The relevant law is 42 U.S. Code § 12112. This provides (in relevant part):

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

The section goes on to define “discriminate against a qualified individual on the basis of disability” as including any of several acts, including:

(b) (5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

...

(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

42 U.S. Code § 12111 defines "Reasonable accommodation" and undue hardship” as follows:

(9) Reasonable accommodation The term “reasonable accommodation” may include—
(9) (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(9) (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

(10) Undue hardship

(10) (A) In general

The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(10) (B) Factors to be considered In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include—
(10) (B) (i) the nature and cost of the accommodation needed under this chapter;
(10) (B) (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(10) (B) (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(10) (B) (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Under 42 U.S. Code § 2000e–5 and subsequent sections informal measures are normally first attempted to remedy any violation. If those fail, remadies can include injunctions against continued discrimination, awards of back pay (not relevant when the person was never an employee) orders to employ a person, awards of costs and legal fees, and other damages. No specific remedy is automatic, there is wide discretion.

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  • "Some other accommodation which (the employer claims) will meet the expressed need can be offered instead." - what if the HR manager simply ignored the request?
    – Asterea
    Apr 8, 2022 at 21:19
  • Then a complaint could be brought before the commission or a court. Issues in such a case would include: whether the applicant had a disability as defined by the act; whether an accommodation was needed under the act and th facts; whether the requested accommodation was reasonable; and if some other reasonable accommodation was available that would have allowed the applicant to participate in a nondiscriminatory manner. Depending on the findings on these issues, an injunction might issue and/or money damages be assessed. If HR responded with reasons for denying a RA, the case might be harder Apr 8, 2022 at 21:26
  • Ok. What would be possible alternative accommodations for the example in question, for instance? I'm still struggling to understand how all this works in general.
    – Asterea
    Apr 8, 2022 at 21:43
  • @Asterea I don't know enough about the kind of disability in nthe example to suggest what an alternative accommodation might be. There might be no effective accommodation in that case. But a person who asked for an ergonomic chair might be offered more frequent work breaks instead; a person who wanted a larger computer monitor might be offered magnifying glasses; one who wanted alterations to a building for wheelchair access might be offered an office an a newer adjoining building. It is always case-specific, and sometimes the offer is not acceptable. [...] Apr 8, 2022 at 22:21
  • @Asterea [...] The law encourages a free-form dialog in which employer and employee consider what accommodation will let the employee work on a non-discriminatory basis without overly burdening the employer. Each party is supposed to be open to considering alternatives, and neither is given a veto over the ultimate solution. If they cannot agree, a formal case may be brought, usually by the employee. Normally a case is brought before the Commission, and only if that does not work is an actual court case brought. Apr 8, 2022 at 22:26
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An employer must make reasonable accommodations even during the interview phase. If they do not, they can be subject to legal sanctions, if the court finds that there refusal to accommodate was unreasonable, meaning that the accommodation did not impose an undue burden on them (for example the request is too difficult or expensive). The penalty can be up to $75,000 for a single violation, is it is found that there was a violation.

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