Visual Disabilities as seen by the EEOC
Under the Sutton rule, a disability is not an ADA disability if through mitigating measures the impairment arising from the condition is no longer a substantial impairment. For example, the limited vision arising from the nearsightedness, is corrected with eyeglasses. This year the EEOC issued a "Q & A" about blindness and vision impairments in the workplace. They serve to managers that the ADA pilot light is always “on”. In the context of mitigating measures, the examples the Commission poses often add more mystery than clarity.
Example 1: "An individual with a vision impairment wears eyeglasses, but they improve his poor vision only slightly. Even with eyeglasses, he cannot drive and needs strong magnification to read standard-sized print. This individual is substantially limited in seeing."
We get the inability to drive as a reliable indicator, but what does "strong magnification" mean? What does "only slightly" mean?
Example 2: "As part of the hiring process for a manufacturing position, an employer requires a physical exam, including a vision test. An applicant with monocular vision fails the vision test, which requires a minimum of 20/40 vision in the better eye with correction, and no less than 20/100 vision in the weaker eye. The physician who conducted the physical examination recommends to [HR] that the applicant not be hired, indicating in a notation on the application: ‘Failed vision test; essentially blind in one eye and lacks depth perception; recommend against hiring for any manufacturing work.’ [Deferring to the doctor], [HR] withdraws its offer of employment to the applicant, never assessing whether she can in fact perform the essential functions of the job. If the doctor's statement that the applicant should not be hired for ‘any manufacturing work’ meant that the applicant was unsuitable for manufacturing work generally and not just for a particular job in the employer's plant, the employer will have regarded the applicant as substantially limited in working in a class of jobs."
Our question: In considering ADA accommodation the Seventh Circuit Court of Appeals looks for “interactive dialogue” between the employee and the employer. This EEOC scenario implies that the employer would be in trouble because it deferred to the physical examination, even as to positions in the plant that are not manufacturing positions that the applicant did not seek--much less seek accommodation to occupy. We do not believe an employer has a duty to go beyond manufacturing positions in this fact pattern.
Example 4: "A receptionist, with a known degenerative eye condition, has not been answering all the calls that come in to the office in her usual friendly manner. The employer may counsel the receptionist about how she answers the phone, but may not ask her questions about her eye condition unless there is evidence that this may be the reason for her changed demeanor."
Question: Can an employer ever ask an employee with a disability about that disability (or its effects) when performance suffers? It is always safer to confine the dialogue to performance, but is the EEOC saying a gag rule is always in effect?
Example 5: "An employer provides a total of three weeks of leave (sick and annual leave) per employee each year. An employee with a degenerative eye condition has, over time, lost most of her vision and has decided to start using a guide dog. Training the guide dog will require her to attend a six-week residential program. Although the six weeks of leave that are needed exceed the amount of leave provided to each employee, the employer must provide additional unpaid leave as a reasonable accommodation, absent undue hardship. The same rule would apply if the employee needs time off for treatment related to a visual disability."
Comment: If such an absence is conducive to advance scheduling, it is a predicted absence, and the employer is in a weaker position to argue undue hardship. Nevertheless, the EEOC ignores the big picture. If this employee is in a key position, who is supposed to handle the duties in the employee’s absence?
"An employer holds a retirement party for a long-time employee. The event includes a dinner and various presentations by the employee's co-workers and company management. A formal program is printed for the event, and an employee with a visual disability requests a copy of the program in large print. The employer must provide this accommodation, absent undue hardship."
Question: Was this party a matter of mandatory attendance? Printing a program in large print with today’s word processing technology is no big deal. But what if the party is on an upper floor of a building with no elevator? Must the employer invest in an elevator to accommodate the employee with a physical disability?
Things to remember about EEOC guidances:
1) The courts never go as far as the EEOC does in imposing duties on employers, and
2) It is much more difficult to prove the existence of an ADA disability in court than at the EEOC.