Defining Reasonable Accommodation in Corporate Testing
By Dr. Eric F. Grosse, Ed.D

Introduction
Under the ADA, qualified individuals with disabilities must be given equal opportunity in all aspects of employment. The law prohibits employers with 15 or more employees, labor unions, and employment agencies from discriminating against qualified individuals with disabilities. Prohibited discrimination includes failure to provide reasonable accommodation to persons with disabilities when doing so would not pose undue hardship.

Reasonable accommodation is defined as:

• a change in the job application and selection process
• a change in the work environment, or
• a change in the manner in which the work is performed
  that enables a qualified person with a disability to enjoy equal employment opportunities.

Under this Act, qualified individuals with disabilities must be provided reasonable accommodation so they can perform the essential job functions, as long as this does not create undue hardship to the employer. Undue hardship is defined as significant difficulty or additional expense and is determined based on a number of factors. Some factors that are considered are:

• the nature and net cost of the accommodation
• the financial resources of the facility
• the number employed at the facility
• the effect on resources and operations
• the overall financial resources of the entire organization, and
• the fiscal relationship of the facility with the organization.

An accommodation that is possible for a large organization may pose an undue hardship for a small organization.

ADA and Corporate Testing/Assessment
The ADA has major implications for corporate testing and assessment practices. In general, it is the responsibility of the individual with a disability to inform you that an accommodation is needed. However, you may ask for advance notice of accommodations required, for the hiring process only, so that you may adjust your testing program or facilities appropriately. When the need for accommodation is not obvious, you may request reasonable documentation of the applicant's disability and functional limitations for which he or she needs an accommodation. Reasonable accommodation may involve making the test site accessible, or using an alternative assessment procedure.

Administering employment tests to individuals with disabilities that require those individuals to use their impaired abilities is prohibited unless the tests are intended to measure one of these abilities. For example, under the ADA, when a test screens out one or more individuals with a disability, its use must be shown to be job-related for the position in question and justified by business necessity. One possible alternative procedure, if available, would be to use a form of the test that does not require use of the impaired ability. Another possibility is to use a procedure that compensates for the impaired ability, if appropriate. For example, allowing extra time to complete certain types of employment tests for someone with dyslexia or other learning disability, or providing a test with larger print or supplying a reader to a visually impaired individual where appropriate, would be considered reasonable accommodation.

Accommodation in the assessment process may involve ensuring physical accessibility to the test site, modifying test equipment or tests, or providing qualified assistance. Giving extra time on certain kinds of tests to test takers with dyslexia or other learning disability, and administering a larger print version of a test to a person who is visually impaired are examples of reasonable accommodation. Note, however, that providing a reader for a reading comprehension test, or extra time for a speeded test could invalidate the test results.

What is NOT CONSIDERED Reasonable Accommodation
There are several modifications or adjustments that are not considered forms of reasonable accommodation. An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards—whether qualitative or quantitative—that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.

An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job. Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

The term "reasonable accommodation" is a term of art that Congress defined only through examples of changes or modifications to be made, or items to be provided, to a qualified individual with a disability. The statutory definition of "reasonable accommodation" does not include any quantitative, financial, or other limitations regarding the extent of the obligation to make changes to a job or work environment. Remember: the only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" on the employer.

The Standards for Educational and Psychological Testing
The Standards for Educational and Psychological Testing move away from language about types of validity to lines of validity evidence. The particular areas of evidence to be developed are in:

• test content
• response/scoring processes used
• the internal structure of test
• the relationship of the test to other commonly used assessment tools

Commercial test developers owe test administrators enough information to make judgments about the appropriateness of their interpretation of test scores for their intended use(s), particularly with respect to:

• population(s) for which test is appropriate
• constructs used
• uses/interpretations that are NOT intended or recommended
• content descriptions, domains, criticality
• qualifications of experts/judges/raters who were used
• rating/scoring procedures used
• population/situation variables involved in the validation processes
• quality of criteria
• statistical adjustments made
• relationship of local situation to meta-analytic variables used
• validation samples described in relevant and sufficient detail
• processes/procedures described in adequate detail
• criteria adequately described
• statistical evidence and descriptions of any adjustments made

Commercial test developers owe examinees a reasonable assurance that tests will not be used improperly. Specific elements include:

• use of content/constructs that are appropriate to recommended and/or intended use(s)
• adequate warning has been provided to administrators against uses NOT recommended or intended
• accuracy in criterion validation, when performed
• investigation of unintended/unexpected outcomes, such as differential item functioning (DIF)

Test administrators owe examinees:

• an assurance that they followed test developers' guidelines on proper usage of the test
• an assurance that they are constantly validating new uses of a test

Reliability that developers owe test administrators:

• proper statistical adjustments have been made to reliability estimates FOR ALL TESTED SUBGROUPS
• a proper estimate has been made of the "local" reliability of a "locally" scored test FOR ALL TESTED SUBGROUPS
• a proper estimate of the replicability of "categorical" classifications (e.g., pass/fail) has been made FOR ALL TESTED SUBGROUPS

Obligations to Ensure Reasonable Testing Accommodations
Obligations under Standards:

• if scores differ among subgroups, obtain validity evidence FOR EACH SUBGROUP
• only use a test for a subgroup if it has been previously determined valid for that subgroup
• conduct periodic sensitivity reviews by appropriately credentialed professionals
• conduct differential item functioning (DIF) studies FOR ALL TESTED SUBGROUPS when feasible
• check that subgroup differences are not based on content irrelevancies or under-representation of critical constructs
• ensure equitable treatment of all subgroups during testing

Testing Individuals with Disabilities (Chapter 10 of the Standards)
General guidelines:

• modify the test to eliminate items that test construct-irrelevant differences in on-the-job performance
• however, the modification should not change the construct
• the modification should not put "regular" test-takers at a disadvantage
• take steps to ensure that score differences are based on the construct being tested, not on the disability
• have available subject matter experts with knowledge/expertise on the particular test/disability interaction
• pilot the test with the particular disabled subgroup
• document any modifications AND THEIR EFFECTS
• set time limits based on empirical data ONLY
• validate a pilot test on disabled test takers with same or similar disabilities
• use only modifications that are appropriate to the situation at hand
• alert all users to relevant changes ONLY
• Provide all test takers with the same descriptive information about the test in advance, so that they will have ample opportunity to request needed accommodations
• If an accommodation cannot be made without invalidating the test, alternative assessment strategies, such as a review of past job experience, a review of school records, or a brief job tryout, must be considered

Disability Modifications That Appear to Have No Adverse Impact

1. Altering the medium used to present test instructions (e.g., for visual impairments, use Braille or larger print; for hearing impairment, use ASL or writing).
2. Modifying the response format (e.g., allow use of preferred communication modality: for example, those with a severe language deficit can point to their response; for manual disabilities, tape recorder, computer keyboard or Braillewriter are appropriate).

Disability Modifications That Appear to Have Some Adverse Impact

1. Modifying test timing (permitting breaks during test, extending the required time, extending testing over several days).
2. Modifying test setting (individualized testing, making location wheelchair accessible, providing tables and chairs, alter lighting conditions)

Disability Modifications That Appear to Have Major Adverse Impact

1. Using only portions of the test (e.g., waiving oral test for hearing-disabled; providing substitute tests or alternate mode of assessment).

For additional information:
Each organization should develop a written policy on conducting testing and assessment of individuals with disabilities. This will help ensure compliance with the provisions of the ADA. If you need assistance in complying with the ADA, there are several resources:

• The Job Accommodation Network: (800) 526-7234
• Industry-Labor Council on Employment and Disability: (516) 747-6323
• The American Foundation for the Blind: (202) 408-0200, (800) 232-5463
• The President's Committee on Employment of People with Disabilities: (202) 376-6200
• Disability and Business Technical Assistance Centers: (800) 949-4232

References

American Educational Research Association, American Psychological Association, and the National Council on Measurement in Education. 1999. The Standards for Educational and Psychological Testing. Washington DC: American Psychological Association.

Bruyère, S.M., and J. O'Keeffe (eds.). 1994. Implications of the Americans with Disabilities Act for Psychology. Washington, DC: American Psychological Association.

Bureau of National Affairs. 1990. The Americans with Disabilities Act: A Practical and Legal Guide to Impact, Enforcement, and Compliance. Washington, DC: Author.

Equal Employment Opportunity Commission. 1992. A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act. Washington, DC: U.S. Government Printing Office.

Equal Employment Opportunity Commission. 1992. EEOC Technical Assistance Manual on Employment Provisions of the Americans with Disabilities Act; ADA Enforcement Guidance: Preemployment Disability Related Questions and Medical Examinations.

Equal Employment Opportunity Commission and U.S. Department of Justice. 1991. Americans with Disabilities Act Handbook. Washington, DC: Author.

U.S. Department of Justice. 1991. The Americans with Disabilities Act: Questions and Answers. Washington, DC: Civil Rights Division, U.S. Department of Justice.

U.S. Department of Labor. 1999. Testing and Assessment: An Employer's Guide to Good Practices. Washington DC: Employment and Training Administration, U.S. Department of Labor.

An Example
Test Accommodations on the New York State Bar Examination
It is the policy of the New York State Board of Law Examiners to provide accommodations in testing conditions to applicants with disabilities during the administration of the bar examination, to the extent such accommodations are reasonable, consistent with the nature and purpose of the examination, and necessitated by the applicant's disability. The Board's objective is to provide effective and necessary accommodations to qualified applicants as defined under the Americans with Disabilities Act, without substantially altering the nature of the examination process. Each applicant's request for test accommodations is evaluated on a case-by-case basis. Applicants should carefully read Board Rule 6000.4 which covers the requirements and procedures for requesting test accommodations, the review process by the Board, and the procedures for filing an appeal in the event your request for test accommodations is denied.

The Americans with Disabilities Act of 1990 (ADA)
The ADA and accompanying regulations define a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities. The ADA requires the Board to provide reasonable and necessary test accommodations to disabled persons. The purpose of supporting documentation is to validate that an individual is covered under the ADA as a disabled individual. Determining whether an individual is disabled under the ADA requires a three step inquiry: (1) does the individual suffer from a physical or mental impairment; (2) is a major life activity implicated; and (3) does the specified impairment substantially limit that major life activity as compared to most people. [see, Bragdon v. Abbott, 524 US 624 (1998)] Unless you establish that your disability substantially impairs a major life activity, you will not be entitled to test accommodations on the bar examination.

The Purpose of Test Accommodations
The purpose of test accommodations is to provide equal access to the bar examination. Test Accommodations means an adjustment or modification of the standard testing conditions that alleviates the impact of the applicant's functional limitation on the examination process without fundamentally altering the nature of the examination; imposing an undue administrative or financial burden on the Board; compromising the security, validity or reliability of the examination; or providing an unfair advantage to the applicant with the disability. While presumably the use of accommodations on the bar examination will enable the individual to better demonstrate their knowledge mastery, test accommodations are not a guarantee of improved performance, test completion or a passing score.

Requesting a Change in Test Center or Seat Location
The Request for Test Accommodations Form is to be completed by only those individuals with documented disabilities. The form is not intended for those individuals who wish to change the test center or the seat location where they will be assigned. If you need to be assigned to a different test center, or need to be seated near a restroom or in the front or rear of the test center, you should send a written request to the Board asking for an administrative seat location change setting forth the reasons for the change. The Board will attempt to accommodate such administrative changes based on availability.

How to Request Test Accomodations on the New York State Bar Examiniation

1. You should carefully read all of the instructions that accompany the Request for Test Acommodations Form as they outline and provide details about the steps that must be followed in order for the Board to properly consider and act on your request for test accommodations.
2. You should carefully read the Documentation Guidelines that pertain to your type of disability. Share them with your professional for use in preparing a comprehensive written report.
3. New Request—If this is your first request for test accommodations on the New York State bar examination or if a previous request was denied in its entirety, you must submit a completed Request for Test Accommodations Form together with all required supporting documentation.
4. Re-Applicant—If you received test accommodations for a prior administration of the New York State bar examination you must submit a completed Re-Applicant Request for Test Accommodations Form and if necessary, an updated report from your professional.
5. Send your completed Request for Test Accommodations Form or Re-Applicant Request for Test Accommodations Form together with all required documentation to:

New York State Board of Law Examiners
Office of Test Accommodations
1 Executive Centre Drive—Suite 202
Albany, NY 12203

6. Filing Deadline—Your completed Request for Test Accommodations Form together with all required supporting documentation must be postmarked no later than 90 days prior to the first date of the bar examination, which is the same deadline for filing your application to take the New York State bar examination. Requests for Test Accommodations and supporting documentation that are postmarked after the deadline will not be considered.
7. The applicable forms and documentation guidelines are contained in the publication Instructions for Requesting Test Accommodations and Guidelines for the Documentation of Disabilities.