JOB AID: Evaluating Requests for Reasonable Accommodation

This article concerns how PBEM staff should consider and evaluate Americans with Disabilities Act (ADA) Title II requests for reasonable accommodation to any PBEM policy, practice, procedure. If a PBEM employee receives an ADA complaint (as opposed to a request for accommodation), the complainant should contact 311.

Background

If you need help on a request that goes beyond this article, contact the Office of Equity and Human Rights for guidance.

Under Title II of the Americans with Disabilities Act, a "reasonable accommodation" requires public entities and public accommodations to make reasonable modifications to policies, practices, or procedures to avoid discrimination. PBEM staff should treat this standard as a minimum effort, however, and strive to provide accommodations both expediently and at all opportunities possible. Evaluating a request for accommodation should be considered a top priority. Moreover, once resolved, a request should prompt a further look at any associated policies and procedures to ensure that inclusion is sufficiently built into them.

The following guidance is cribbed from a guide for 311 operators distributed on September 10, 2023. The original document is linked HERE.

Requests PBEM may field for reasonable accommodation may include, but are not limited to:

• Public presentations or other outreach events;
• Training events;
• ECC or other facility tours;
• Website modifications;
• Printed materials composition and formatting.

Relevant resources addressing access and functional needs may include:

• The Additional Needs page of PublicAlerts.org
• The persons with disabilities tag on the NET Tumblr

Since a requestor’s status as a qualified person with a disability is beyond the scope of this article, that issue is not discussed here. This article is designed to help you understand what is involved in the accommodation process and how to resolve requests for accommodation.  

Granting Requested Accommodations

Covered companions

As a preliminary matter, it is important to remember that companions of people participating in activities, programs, and services offered by the City of Portland have the same rights under Title II as do participants in the activities, programs, and services. Typically covered companions are parents, guardians, or spouses. But a companion is any family member, friend, associate, or in some cases a caregiver, with whom it would be appropriate to communicate with about the participation of another in the activities, programs, and services offered by Portland.  

Effective communication

When we talk about granting requested accommodations, we mean effectively communicating with people with disabilities. Simply put, effective communication under Title II requires communication between Portland and people with disabilities must be as effective as is communication between Portland and people without disabilities. This means people with disabilities must be able to communicate with, receive information from, and convey information to the City of Portland. In many instances, ensuring effective communication means providing a person with a disability an auxiliary aid or service.

Auxiliary aids or services

An auxiliary aid or service is the providing of a device or a service that enables effective communication between a person with a disability and the City of Portland. Examples of auxiliary aids and services include: 

• Exchanging notes
• Sign language interpreting
• Captions
• Audio Description
• Accessible electronic content
• Assistance completing forms
• Reading someone information

Portland can never charge a person with a disability for the provision of an aid or service.  

Requesting auxiliary aids or services

Portland must provide people with disabilities the opportunity to request auxiliary aids or services and be prepared to provide most requested auxiliary aids and services in a timely manner. The following list items do not apply equally to everyone reading this document. They have been provided here to reflect the different audiences using this material.

• Suggest people with disabilities request an aid or service at least 72 hours prior to an event.
• Whether the request was made 72 hours prior to an event or an hour prior to the event, every effort must be made to provide the requested aid or service.
• A requested aid or service can only be denied for three reasons:
  • An equally effective method of communication is provided
  • Providing the requested aid or service would result in a fundamental alteration of the activity, program, or service
  • Providing the requested aid or service would result in undue administrative and financial burdens
• Denials of a requested aid or service must be made by a department head and written justifications must be provided to the person making the request.
• Even if a requested aid or service is appropriately denied, Portland must provide an equally effective method of communication if one is available.

The next two subsections will help you understand when denying a requested aid or service is appropriate; however, you must always remember that under Title II the circumstances where Portland can legally refuse to provide a requested aid or service are extremely rare. So, you must make every effort to provide the requested aid or service or an equally effective method of communication. Since Portland is required to give “primary consideration” to the requested aid or service, what could constitute an equally effective method of communication is not very relevant. Instead, we need to focus on determining whether a requested aid or service would fundamentally alter the nature of the activity, program, or service, or if providing the requested aid or service would result in undue administrative and financial burdens.  

Fundamental alterations

A fundamental alteration is so significant that it alters the essential nature of the activity, program, or service. Examples of fundamental alterations include: 

• Stopping or slowing down a live performance to describe the action
• Raising the lights in a normally dark scene
• Completing paperwork that is not regularly part of the activity, program, or service

There are few situations where granting a requested aid or service would result in a fundamental alteration.

Undue burdens

• In order to deny a requested aid or service, providing it must result in both administrative and financial burdens.
• Administrative burdens typically result in insufficient staffing resources to provide the requested aid or service.
• Undue financial burdens result when the cost of providing the requested aid or service is extreme when compared with the entire City budget.
• Again, we are not talking about the budget for your program or your bureau, the cost comparison is made against the entire City budget.
• The situations where Portland could deny a requested aid or service based on administrative and financial burdens are extremely rare.

Qualified service providers

The Department of Justice guidance as to what constitutes a person being qualified to provide an aid or service says: someone who is able to interpret effectively, accurately, and impartially, both receptively and expressively. Receptive communication refers to the ability to understand what the person with a disability is saying. Expressively refers to having the skill needed to convey the information back to the person with a disability using any specialized vocabulary.

Companions as interpreters

While the Department of Justice guidance refers to situations where accompanying adults or minor children as interpreters could be appropriate, the guidance applies to all situations where a person is providing assistance. Examples of additional situations where the rules covering using companions to provide an aid or service include but are not limited to:

• Reading information 
• Completing a form 
• Explaining information

Portland can rely on a companion to provide an aid or service in only two situations:

• In an emergency involving an imminent threat to the safety or welfare of an individual or the public, an accompanying adult or minor child can provide an aid or service when someone qualified to provide the aid or service is not available. 
• In situations not involving an imminent threat to the safety and welfare of an individual or the public, an accompanying adult can be used if the person requesting the aid or service requests it, the accompanying adult agrees, and using the accompanying adult to provide the aid or service is appropriate under the circumstances.

When a situation does not involve an imminent threat, a minor child can never be used to provide an aid or service.

When the situation does not involve imminent threat, an accompanying adult cannot be used to provide an aid or service even if requested by the person needing the aid or service when there is reason to doubt the impartiality or effectiveness of the person who would provide the aid or service. Examples of where it would be inappropriate to use an accompanying adult to provide an aid or service include but are not limited to:

• When the person providing the aid or service has a personal stake in the outcome
• The person would be communicating bad news
• The communication involves health, safety, financial, or legal information

Steps for Address a Requested Aid or Service

The tips in this section assume a familiarity with the previous sections of this document.

Ensure members of the public are notified about their right to request an aid or service, by providing one of the City’s meaningful access statements in all public communications.

• Familiarize yourself with our guide on vendors that provide service related to accessibility. The vendors list can be found on the ADA Resources Page.
• Establish relationships with vendors, like sign language interpreters, you are likely to regularly use.
• Provide some aids and services automatically.
  • Caption public meetings and events. Portland has a policy requiring the captioning of video content.
  • Audio describe video content.
  • Ensure all electronic meeting agendas and emails are accessible.
  • Provide large print copies of handouts.
• If you feel like a requested aid or service would result in a fundamental alteration and/or undue burdens, contact Jonathan Simeone.
• If a requested aid or service must be denied, ensure written justifications are provided.
• If a requested aid or service is denied, provide an equally effective method of communication, if available.
• Provide a person, like a sign language interpreter, providing an aid or service materials related to the event or meeting ahead of time.