DOJ Continues ADA Celebration Recognizing a Win in Education With Service Animals
The Department of Justice (DOJ) released its latest tribute to its year-long celebration of the 30th anniversary of the Americans with Disabilities Act (ADA). Throughout this year, the Division is publishing blog posts highlighting the impact that its recent ADA enforcement efforts have made in people’s everyday lives.
This blog spotlights education. Education has the potential to serve as a great equalizer in our society, and this is no less true for individuals with disabilities. When enacting the ADA in 1990, DOJ argues that Congress expressly identified education as one area where discrimination against individuals with disabilities remained persistent. Since then, the Justice Department believes it has played a significant role to ensure that individuals with disabilities have equal educational opportunities.
In a recent case, the Department reports that it reached an agreement with the Gates Chili Central School District in Rochester, New York, to resolve a lawsuit brought by the United States following investigation of a complaint filed by Heather Burroughs, the mother of D.P., a child with disabilities. The complaint alleged that the school district refused to permit D.P. to use her service animal at school unless her mother provided a separate, full-time dog handler. The school district required a separate handler despite D.P.’s demonstrated ability to control and handle her dog with minimal assistance and the dog’s extensive training to serve and respond directly to the student. Ultimately, Burroughs felt forced to move her family to a different school district where her daughter was appropriately recognized as her service dog’s handler.
Algorithmic And AI Assessment Tools — A New Frontier In Disability Discrimination
The use of software algorithms to assist in organizational decision-making and their potential negative impact on minority populations will be an increasingly important area for humankind to resolve as we embrace our AI future.
These critical issues were brought into even sharper focus earlier this month with the publication of a new report by the Center For Democracy & Technology entitled “Algorithm Hiring Tools: Innovative Recruitment or Expedited Disability Discrimination?”
Looking beyond just the employment sphere, a dedicated panel discussion at last week’s Sight Tech Global conference explored other important areas for people with disabilities impacted by algorithmic decision-making, such as the administration of welfare benefits, education and the criminal justice system.
The key messages emerging from both the panel discussion and the report convey a unanimously stark warning.
Disability rights risk being eroded as they become entangled within wider society’s drive to achieve greater efficiency through the automation of processes that once required careful human deliberation.
This is dangerous for disabled people due to an inescapable tension between the way algorithmic tools work and the lived experience of many people with disabilities.
By their very nature, algorithms rely on large data sets that are used to model the normative, standardized behavior of majority populations.
The lived experience of disabled people naturally sits on the margins of “Big data.” It also remains intrinsically difficult to reflect disabled people’s experiences through population-level modeling due to the individualized nature of medical conditions and prevailing socio-economic factors.
Jutta Treviranus is Director of the Inclusive Design Research Centre and contributed to a panel discussion at Sight Tech Global entitled “AI, Fairness and Bias: What technologists and advocates need to do to ensure that AI helps instead of harms people with disabilities.”
“Artificial intelligence amplifies, automates and accelerates whatever has happened before, said Treviranus at the virtual conference.
“It’s using data from the past to optimize what was optimal in the past. The terrible flaw with artificial intelligence is that it does not deal with diversity or the complexity of the unexpected very well,” she continued.
“Disability is a perfect challenge to artificial intelligence because, if you’re living with a disability, your entire life is much more complex, much more entangled and your experiences are always diverse.”
Algorithm-driven hiring tools in recruitment
The use of algorithm-based assessment tools in recruitment is a particularly thorny pain point for the disability community. Estimates suggest the employment rate for people with disabilities in the U.S. stands at around 37%, compared to 79% for the general population.
Algorithm-hiring tools may involve several different exercises and components. These may include candidates recording videos for the assessment of facial and vocal cues, resume checking software to identify red flags such as long gaps between periods of employment and gamified tests to evaluate reaction speed and learning styles.
Algorithm-driven software is also marketed as being able to identify less tangible, but, potentially, desirable characteristics in candidates such as optimism, enthusiasm, personal stability, sociability and assertiveness.
Of course, straight-out platform inaccessibility is the immediate concern that springs to mind when considering interactions with disabled candidates.
It is entirely valid to wonder how a candidate with a vision impairment might access a gamified test involving graphics and images, how a candidate with motor disabilities might move a mouse to answer multiple-choice questions, or how an individual on the autism spectrum might react to an exercise in reading facial expressions from static photos.
Indeed, the Americans with Disabilities Act specifically prohibits the screening out of candidates with disabilities through inaccessible hiring processes or ones that do not measure attributes directly related to the job in question.
Employers may themselves think they are helping disabled candidates by removing traditional human bias and outsourcing the assessment to an apparently “neutral” AI.
This, however, is to set aside the fact that the tools have most likely been designed by able-bodied, white males in the first place.
Furthermore, approval criteria are often modeled off the pre-determined positive traits of an organization’s currently successful employees.
If the workforce lacks diversity, this is simply reflected back into the algorithm-based testing tool.
By developing an over-reliance on these tools without understanding the pitfalls, employers run the very real risk of sleepwalking into the promotion of discriminatory practices at an industrial scale.
Addressing this point specifically, the report’s authors note, “In the end, the individualized analysis to which candidates are legally entitled under the ADA may be fundamentally in tension with the mass-scale approach to hiring embodied in many algorithm-based tools.”
“Employers must think seriously about not only the legal risks they may face from deploying such a tool, but the ethical, moral, and reputational risks that their use of poorly-conceived hiring tools will compound exclusion in the workforce and in broader society.”
During the Sight Tech Global panel discussion, Lydia X. Z. Brown, a Policy Counsel for the Center For Democracy & Technology’s Privacy and Data Project, was asked whether algorithm-driven assessment tools really do represent a truly modern form of disability discrimination.
“Algorithm discrimination highlights existing ableism, exacerbates and sharpens existing ableism and only shows different ways for ableism that already existed to manifest,” responded Brown.
She later continued, “When we talk about ableism in that way, it helps us understand that algorithmic discrimination doesn’t create something new, it builds on the ableism and other forms of oppression that already existed throughout society.”
Yet, it is the scale and pace at which automation can further seed and embed discrimination that must be of greatest concern.
Building a more inclusive AI future
The CDT report does make some recommendations around the creation of more accessible hiring practices.
The key leap for organizations is to first develop an understanding of the inherent limitations of these tools for assessing individuals with varied and complex disabilities.
Once this reality-check takes hold at a leadership level, organizations can begin to proactively initiate policies to offset the issues.
This may start with a deep-dive into what these tests are actually measuring. Are positive but vague qualities such as “optimism” and “high self-esteem,” as elicited by a snapshot test, truly essential for the position advertised?
Through understanding and appropriately discharging their legal responsibilities, employers should seek to educate and inform all candidates on the specific details of what algorithmic tests involve.
It is only by communicating these details that candidates will be able to make an informed choice around accessibility.
For candidates who proceed with the test, organizations should be energetic in their data collection on accessibility issues.
For candidates, who fear an algorithm may unfairly screen them out, a suite of alternative testing models should readily be made available without any implied stigma.
Finally, it should be incumbent on software vendors to keep accessibility at the forefront of the initial design process.
This can be further bolstered by more stringent regulation in this area but the most useful measure vendors might adopt right now is to co-design alongside disabled people and take account of their feedback.
The simple truth is that AI isn’t just the future. It’s here already and its presence is reaching out exponentially into every facet of human existence.
The destination may be set but there is still time to modify the journey and, through best-practice, take the more direct shortcuts to inclusion, rather than the long road of having to learn from mistakes that risk leaving people behind.
What Can Employers Do About Employees Who Refuse a Vaccine?
After a seemingless endless wait, news of COVID vaccine distribution has business owners, government offices and school district administrators faced with a legal question they could not have foreseen at the beginning of 2020. Can we require employees to get a vaccine? The short answer is yes, but there are some exceptions to note, and potential pitfalls to avoid in dealing with employees who refuse a vaccine.
An employer can require employees get a vaccine, subject to religious exemptions (Title VII), and disability exemptions (ADA). At-will employees, who do not fit within Title VII or disability exemptions, can be fired for refusing to get a vaccine. The EEOC provides some guidance for employers to properly address exempt employees. Addressing the issue of flu shots, the EEOC has said:
An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him/her from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employees sincerely held belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250. An updated review of the EEOC’s stance on vaccines, specific to COVID, indicates that employers should “encourage” rather than “mandate” a vaccine. Of course, the use of the word “encourage” would apply to those employees who are refusing a vaccine based upon religious beliefs or practices – and not due to a disability or pre-existing medical condition.
Recently, the Centers for Disease Control (CDC) issued guidance recommending vaccination for critical industries, including health care. The CDC likely preferred to avoid using the word mandate or require, simply because vaccines are not yet available in the U.S., and the “enforcement” responsibility of a vaccine mandate would lie with employers. See “Roadmap to Implementing Pandemic Influenza Vaccination of Critical Workforce,” U.S. Department of Health and Human Services Centers for Disease Control. https://www.cdc.gov/flu/pandemic-resources/pdf/roadmap_panflu.pdf
In the healthcare industry, mandating vaccines is nothing new. For decades, hospitals, nursing homes and other healthcare provider employers have mandated flu shots for employees. These sorts of vaccine mandates have been challenged in Federal Court, and upheld as valid. Recently, the Eighth Circuit in Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018), upheld a healthcare system’s requirement that its employees immunize against rubella as a condition of employment.
The takeaway for employers is simply this: it is entirely permissible, and encouraged, to mandate a COVID vaccine for employees. Any employee who refuses can be fired unless the employee fits within an ADA exemption which the employer can reasonably accommodate, or the employee can provide proof of a belief, practice or religious observance that serves to excuse the refusal. This proof of a belief or practice must go beyond a generalized belief or unsubstantiated opinion that the vaccine will be harmful or will not be effective.
Does refusing a vaccine protect an employer from Workers’ Comp liability?
The short answer to this question is – likely, yes. But employers must bear in mind that Workers’ Comp in PA is a bit tricky when it comes to liability waivers. The Workers’ Comp Act does not allow an employer and employee to agree to terms of a claim waiver associated with any injury that occurs in the workplace. But an employer does have a valid basis for denial of an employee’s Workers’ Comp claim if/when the employer has proof that the employee’s injury occurred as a result of “violation of a positive work order.” If an employer directs an employee to do something, or not do something – i.e., operate a specific piece of machinery, perform a physical task that is beyond the scope of duties, etc. – and the employee is injured while performing that specific task – in “violation of the order” – the employee’s Workers’ Comp claim will be denied, and the denial will more than likely be upheld by a Workers’ Comp Judge. There are dozens of appellate opinions (long before COVID) that support this principle; the application of the principle for a COVID claim will be the same.
“Positive work orders,” for PA employers, can be in writing or verbal. For situations involving a COVID vaccine, we recommend the employer require the vaccine (barring ADA/religious exemption as explained above), and communicate the requirement clearly to the workforce. This is the first critical step in issuing the positive work order. If the vaccine is required by the employer, and an employee refuses the vaccine (is permitted to continue working) and gets COVID – and tries to blame a workplace exposure – the employee’s WC claim for COVID would be denied, and the denial upheld by a Judge. In order to add an extra layer of protection, for the work order – the “vaccine requirement” can be restated by an employer representative – something simple such as, “You understand that refusing this vaccine makes you much more susceptible to contracting COVID, and if you contract COVID after refusing the vaccine, and file a claim for recovery of Workers’ Comp benefits, the claim will be denied.”
If the employer wishes to have a written record of the refusal, a simple statement, for the employee to sign, would be sufficient to protect the employer from Workers’ Comp liability. We recommend something such as: I understand my employer’s requirement for all employees to get a COVID vaccine. I further understand that my refusal to get a COVID vaccine substantially increases the risk and likelihood that I may contract COVID. I understand that my refusal to get a COVID vaccine, as required by my employer, will result in a denial of Workers’ Compensation Benefits associated with contracting COVID, and any claim related thereto.
Final note: outside the limitations of Workers’ Comp, it is important to note that any employer who allows a non-vaccinated employee to come to work, will have liability exposure for the spread of COVID to customers/visitors and vendors/contractors who may have contact with the employee and can prove the contact/exposure resulted in contracting the virus.
Captioning and sign language help brands reach the Deaf community
The coronavirus outbreak has created unprecedented challenges for deaf and hard-of-hearing people in the US. Not only have social distancing protocols and stay-at-home orders proved isolating, but mask mandates have made speech reading difficult and stymied communication in American Sign Language (ASL), a visual language that relies on signing with hands and on facial expressions to convey tone, meaning, and nuance. As a result, many of the country’s 48 million adults with hearing difficulties cannot access potentially lifesaving information.
In some instances, the Deaf community has literally had to fight for access. While ASL interpreters are now common at most state and local COVID-19 briefings, the National Association of the Deaf (NAD) and five deaf consumers recently won a lawsuit that forced the White House to use an interpreter during presidential briefings related to the coronavirus. The omission of interpreters, they argued, violated federal law by making it difficult for non-English speakers to fully understand the information being presented.
“COVID-19 updates occur on a daily, if not hourly, basis. For Deaf people who use American Sign Language as their primary language, these updates are often inaccessible,” said Craig Radford, vice president of strategy and business development at Communication Service for the Deaf (CSD), an organization that provides technology, resources, and services for the deaf and hard of hearing. Since the crisis began, his organization’s COVID-19 hotline—which enables callers to communicate directly via video with representatives in ASL—has had regular requests for information and assistance.