Core Accessibility Concerns for Human Resources
On September 3, 2019, Maryann Murad and the National Federation of the Blind (NFB) filed a lawsuit against Amazon.com for Employment discrimination. If accessibility is a relatively new topic for you, this might seem like yet another example of the current pattern of ADA troll lawsuits that have been getting a ton of attention lately. But, while the NFB has been a plaintiff or co-plaintiff in a number of accessibility lawsuits (http://karlgroves.github.io/a11y-lawsuits/lawsuits.html), they are not trolls. ADA trolls often file lawsuits out of the blue, based on spurious evidence and are willing to go away (settle) for small sums of money. None of this is the case for the NFB. The NFB always tries to resolve their complaint through appropriate channels before filing suit.
In this specific instance, Ms. Murad tried to apply for a position with Amazon and found the online assessment platform to be inaccessible:
When she brought the problem to Amazon’s attention, a representative of the company confirmed that the site was inaccessible and said that Ms. Murad should apply for another “appropriate” job. Subsequent efforts by the National Federation of the Blind to work with Amazon to resolve the issue were unsuccessful.
This case is interesting to me, because I’ve long felt that Human Resources related accessibility is an area that is far less active than other industries. Education, retail, food services, and banking have all seen a massive increase in lawsuits in the last few years, but employment/ HR is comparatively less active:
- In 2011, Yasmin Reyazuddin & NFB sued Montgomery County Maryland due to a requirement for her role that she use an inaccessible system built by Oracle.
- In 2013, the Michael Leiterman & NFB sued Department of Homeland Security’s Customs and Border Protection division (CBP) due to inaccessible internal software required to do his job.
- In 2013, the [NFB reached an agreement with Monster.com regarding accessibility] (https://archive.nfb.org/monstercom-first-industry-make-website-accessible-blind-users 4.In 2013 TRE Legal filed a class action suit against Marriott Hotels due to a requirement that managers use an inaccessible system built by Oracle.
There are other legal actions that we’re familiar with at Federal Government Agencies, but even adding those to the above list still it doesn’t add up to the ADA troll lawsuits filed in any given week.
Experienced HR professionals already know the importance of non-discrimination in the workplace. With respect to discrimination against persons with disabilities, Federal Regulations (the ADA) were put into place in 1991. In addition, we saw new regulations in 2016 that implemented the changes from the ADA Amendments act. Among the most important changes for employers was a modification to the definition of “disability” and an acknowledgement that disability. In short:
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.
In the case of Amazon - and indeed all the cases listed above - they’re accused of falling afoul of Title 1, Section 12112(b) which describes the various possible manners in which a person with a disability can be discriminated against.
While the humans involved in recruiting, hiring, and managing of people may not be actively conspiring to discriminate, you may nonetheless be at risk of a lawsuit or complaint if your company uses inaccessible IT systems. This includes job applications, recruiting/ placement software (RMS) online training, internal service desks, HRIS systems, and systems required for the employee’s job.
How to mitigate your risk
Human Resources and compliance personnel should be mindful of the potential risk, in general, of the accessibility of your organization’s IT systems.
Existing systems need to be accessible
Just because you don’t happen to have any employees with disabilities now, that doesn’t mean you won’t in the future. And your disabled employee in the future might be someone already on the job. For instance, one of the most common causes of blindness is diabetes, and millions of people in the United States have diabetes and don’t even know it. Current employees could become disabled at any moment due to illness or injury.
Recruiting process need to be accessible
Human Resources personnel should ensure that all web and software systems in place for ATS & recruiting is accessible. This means that applicants can get to the job postings, view all requirements, fill out applications, and submit resumes. If you currently have systems in place for these purposes and they’re inaccessible, you need to establish an alternate process and explicitly document that process and describe it within all job postings that are out there now and in the future. This alternate process should be temporary in nature. You should pressure the vendor of those products to improve their accessibility.
The same goes for all HR software, such as HRIS, Performance Management, Employee Engagement, and onboarding.
If an employee touches it (including Human Resources staff), it needs to be accessible and, the more employees that touch it, the more risk exposure you’re likely to face. Employees with disabilities expect to access and make use of all the same systems their coworkers can. Employees who cannot manage their schedule, participate in performance reviews, or manage their own benefits have a legitimate reason to complain. In the latter case, it may also cause HIPPA problems if an employee needs to access health insurance information and needs help to do so.
Finally, don’t forget training
These days, there are several training platforms available in the marketplace and they are often fraught with accessibility challenges. If training is required for an employee to be considered for advancement or compensation, it is critical that the systems delivering the training and assessments be accessible. If your training software is not accessible, you need to ensure that employees who need training can get the materials outside of the training platform and that they can take any required testing outside of the platform as well.