Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/adaeeoc8.ws

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Section 1630.9(d).

The purpose of this provision is to clarify that an employer or
other covered entity may not compel a qualified individual with a
disability to accept an accommodation, where that accommodation
is neither requested nor needed by the individual. However, if a
necessary reasonable accommodation is refused, the individual may
not be considered qualified. For example, an individual with a
visual impairment that restricts his or her field of vision but
who is able to read unaided would not be required to accept a
reader as an accommodation. However, if the individual were not
able to read unaided and reading was an essential function of the
job, the individual would not be qualified for the job if he or
she refused a reasonable accommodation that would enable him or
her to read. See Senate Report at 34; House Labor Report at 65;
House Judiciary Report at 71-72.

Section 1630.10 Qualification  Standards, Tests, and Other
Selection  Criteria

The purpose of this provision is to ensure that individuals with
disabilities are not excluded from job opportunities unless they
are actually unable to do the job. It is to ensure that there is
a fit between job criteria and an applicant's (or employee's)
actual ability to do the job. Accordingly, job criteria that even
unintentionally screen out, or tend to screen out, an individual
with a disability or a class of individuals with disabilities
because of their disability may not be used unless the employer
demonstrates that that criteria, as used by the employer, are
job- related to the position to which they are being applied and
are consistent with business necessity. The concept of "business
necessity" has the same meaning as the concept of "business
necessity" under Section 504 of the Rehabilitation Act of 1973.

Selection criteria that exclude, or tend to exclude, an
individual with a disability or a class of individuals with
disabilities because of their disability but do not concern an
essential function of the job would not be consistent with
business necessity.

The use of selection criteria that are related to an essential
function of the job may be consistent with business necessity.
However, selection criteria that are related to an essential
function of the job may not be used to exclude an individual with
a disability if that individual could satisfy the criteria with
the provision of a reasonable accommodation. Experience under a
similar provision of the regulations implementing Section 504 of
the Rehabilitation Act indicates that challenges to selection
criteria are, in fact, most often resolved by reasonable
accommodation. It is therefore anticipated that challenges to
selection criteria brought under this part will generally be
resolved in a like manner.

This provision is applicable to all types of selection criteria,
including safety requirements, vision or hearing requirements,
walking requirements, lifting requirements, and employment tests.
See Senate Report at 37-39; House Labor Report at 70-72; House
Judiciary Report at 42. As previously noted, however, it is not
the intent of this part to second guess an employer's business
judgment with regard to production standards. (See section
1630.2(n) Essential Functions). Consequently, production
standards will generally not be subject to a challenge under this
provision.

The Uniform Guidelines on Employee Selection Procedures (UGESP)
29 CFR part 1607 do not apply to the Rehabilitation Act and are
similarly inapplicable to this part.

Section 1630.11 Administration of Tests

The intent of this provision is to further emphasize that
individuals with disabilities are not to be excluded from jobs
that they can actually perform merely because a disability
prevents them from taking a test, or negatively influences the
results of a test, that is a prerequisite to the job. Read
together with the reasonable accommodation requirement of section
1630.9, this provision requires that employment tests be
administered to eligible applicants or employees with
disabilities that impair sensory, manual, or speaking skills in
formats that do not require the use of the impaired skill.

The employer or other covered entity is, generally, only required
to provide such reasonable accommodation if it knows, prior to
the administration of the test, that the individual is disabled
and that the disability impairs sensory, manual or speaking
skills. Thus, for example, it would be unlawful to administer a
written employment test to an individual who has informed the
employer, prior to the administration of the test, that he is
disabled with dyslexia and unable to read.  In such a case, as a
reasonable accommodation and in accordance with this provision,
an alternative oral test should be administered to that
individual.  By the same token, a written test may need to be
substituted for an oral test if the applicant taking the test is
an individual with a disability that impairs speaking skills or
impairs the processing of auditory information.

Occasionally, an individual with a disability may not realize,
prior to the administration of a test, that he or she will need
an accommodation to take that particular test. In such a
situation, the individual with a disability, upon becoming aware
of the need for an accommodation, must so inform the employer or
other covered entity.  For example, suppose an individual with a
disabling visual impairment does not request an accommodation for
a written examination because he or she is usually able to take
written tests with the aid of his or her own specially designed
lens. If, when the test is distributed, the individual with a
disability discovers that the lens is insufficient to distinguish
the words of the test because of the unusually low color contrast
between the paper and the ink, the individual would be entitled,
at that point, to request an accommodation. The employer or other
covered entity would, thereupon, have to provide a test with
higher contrast, schedule a retest, or provide any other
effective accommodation unless to do so would impose an undue
hardship.

Other alternative or accessible test modes or formats include the
administration of tests in large print or braille, or via a
reader or sign interpreter. Where it is not possible to test in
an alternative format, the employer may be required, as a
reasonable accommodation, to evaluate the skill to be tested in
another manner (e.g., through an interview, or through education
license, or work experience requirements). An employer may also
be required, as a reasonable accommodation, to allow more time to
complete the test. In addition, the employer's obligation to make
reasonable accommodation extends to ensuring that the test site
is accessible. (See section 1630.9 Not Making Reasonable
Accommodation) See Senate Report at 37-38; House Labor Report at
70-72; House Judiciary Report at 42; see also Stutts v. Freeman,
694 F.2d 666 (11th Cir. 1983); Crane v. Dole, 617 F. Supp. 156
(D.D.C. 1985).

This provision does not require that an employer offer every
applicant his or her choice of test format.  Rather, this
provision only requires that an employer provide, upon advance
request, alternative, accessible tests to individuals with
disabilities that impair sensory, manual, or speaking skills
needed to take the test.

This provision does not apply to employment tests that require
the use of sensory, manual, or speaking skills where the tests
are intended to measure those skills. Thus, an employer could
require that an applicant with dyslexia take a written test for a
particular position if the ability to read is the skill the test
is designed to measure. Similarly, an employer could require that
an applicant complete a test within established time frames if
speed were one of the skills for which the applicant was being
tested. However, the results of such a test could not be used to
exclude an individual with a disability unless the skill was
necessary to perform an essential function of the posit