Credentialing organizations have an obligation under the Americans with Disabilities Act (“ADA”) to “offer such examinations … in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” Certification organizations that fail to meet this obligation can face substantial legal liability, including not only any damages awarded to the plaintiff, but also responsibility for both parties’ attorneys’ fees. On the other hand, providing testing accommodations to candidates who are not entitled to them undermines the integrity and validity of exam results. Identifying correctly whether a testing accommodation request must be granted requires an individualized inquiry, careful documentation, and an understanding of the law.
When a candidate requests a testing accommodation, a credentialing organization should undertake a four-part evaluation of the request:
- Has the candidate provided documentation of a disability that requires an accommodation?
- Are the requested accommodations needed to best ensure that the exam is accessible to the candidate and that the candidate’s performance is fairly measured?
- Would the requested accommodation impose an undue burden on the testing organization?
- Would providing the requested accommodation fundamentally alter the nature of the examination?
Establishing the Nature of the Disability
To qualify for protection under the ADA, an individual must have an impairment that substantially limits one or more of the individual’s major life activities, without regard to mitigating measures such as medicine. A diagnosis alone is not sufficient for protection under the ADA, unless the impairment substantially limits the person’s ability to perform major life activities as compared to most people in the general population. As one court termed it, a test candidate seeking accommodations must demonstrate that “the problems he faces are so different in magnitude from those facing the majority of people coping with work and academic life that he can be appropriately characterized as substantially limited by his” impairment.
Candidates who can document that they meet the standard of a substantially limiting impairment are entitled to have the certification exam administered in an accessible place and manner. Candidates who have mobility impairments, for example, must be offered the opportunity to take the examination in wheelchair accessible testing centers.
If the requested accommodation is not made available to all test-takers, the testing organization can and should ask for documentation that verifies the nature of the candidate’s impairment and the nature of the accommodation needed to address that impairment, such as by asking for certification or a supporting letter from the candidate’s health care provider. ADA regulations mandate that documentation requests must be “reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested.” Thus, candidates do not need to submit voluminous medical records, but testing organizations also do not have to rely on a candidate’s unsupported assertion of a disability. In addition, the regulations call for testing organizations to “give[e] considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations,” as well as past accommodations provided in an educational setting.
The “Best Ensures” Standard
If the individual’s disability arises from a “sensory, manual, or speaking skills” impairment, the certification exam must be selected and administered in a way that “best ensures” that the examination results “accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure).” Any form of the examination that is specially designed for candidates with those impairments – such as a Braille version of an examination – must be offered at equally convenient locations, as often, and in as timely a manner as are other examinations.
The “best ensures” standard sets a high bar. In a 2011 case, Bonnette v. D.C. Court of Appeals, the court held that a legally blind law school graduate was entitled to be provided a computer equipped with an accessible screen-reading program to use during her bar exam, as she had requested. The arrangement was expensive. The court rejected, however, the defendants’ proposed less expensive alternative of hiring someone to read the bar exam questions to the plaintiff. The court explained: “The fact that Bonnette could take the [exam] using a human reader does not mean that this accommodation would best ensure that her score reflected her achievement level rather than her visual impairment; Bonnette is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that might be good enough for her to pass.”
With advances in available technology, new and different assistive aids may need to be offered. As one court has observed, “assistive technology is not frozen in time: as technology advances, testing accommodations should advance as well,” and assistive aids should “keep pace with the rapidly changing technology of the times.”
Undue Burden Defense
In Bonnette, the costliness of the proposed accommodation did not trouble the court in light of the defendant’s multi-million dollar operating budget, even though the cost of providing the specially equipped laptop exceeded the candidate’s exam fee. Depending on the size of the organization and the nature of the requested accommodation or assistive aid, an undue burden defense may at times be successful. Offering that defense, however, may embroil a certification organization in litigation that ultimately incurs far more expense that the organization would bear by granting the request – and there are no guarantees that a court will necessarily agree with the defendant organization’s assessment of the burden.
Fundamental Alteration Defense
Certification and testing organizations may also decline a request for an accommodation if granting the request “would fundamentally alter the nature of” the certification program. For example, in the 2013 case Rawdin v. American Board of Pediatrics, a federal district court granted judgment to the defendant on an ADA claim brought by a physician with a memory impairment caused by treatment for a brain tumor. After six unsuccessful attempts to pass the multiple-choice Board exam, the physician brought suit seeking a court order that the Board provide him with an alternative testing option, including an “open book” exam, an essay format, and advance notice of the subjects on exam. In its decision, the district court held that, even if the plaintiff had a disability, he was “not entitled to the accommodations he seeks.” The court accepted the Board’s argument that advance knowledge of test topics and “open book” accommodations would not allow the Board to “adequately, reliably, and validly test [the plaintiff’s] knowledge” and would “alter and lower the standard for certification.”
Interestingly, the court of appeals affirmed the district court’s decision, but on different grounds. The physician had identified his impairment as difficulty in recalling information out of context. The appeals court held that the Board had met its burden to show that the exam “best ensured” that its results reflected physician’s aptitude rather than his disability based on undisputed evidence in the record that every multiple-choice question was contextual and presented the examinee with a clinical vignette or scenario.
Ultimately, evaluating testing accommodation requests requires an individualized assessment of the candidate’s impairment and the nature of the requested accommodation, as well as thorough documentation to support the organization’s decision. If a certification organization is uncertain about how to respond to a candidate’s request, consultation with legal counsel may avoid more significant legal problems down the line.