
          FURTHER THOUGHTS ON REASONABLE ACCOMMODATION
                       by Michael Freeman

     From the Editor: I recently received the following letter:

Vancouver, Washington
March 19, 1991

Dear Dr. Jernigan:
     I recently received the March, 1991, issue of the Braille
Monitor, and it is first rate. Every issue of the Monitor is
informative, but this one in particular seems to be packed with
articles giving food for thought. In this connection, I am
enclosing an article written in response to Ted Young's article
on reasonable accommodation. I'm sure it will be controversial,
should you decide to publish it. (My wife, Barbara, doesn't agree
with all of it--a fact which has led to some interesting fireside
discussions.) Anyone who thinks that there is no give and take
and free exchange of ideas in the Federation doesn't know us very
well! In any case, I herewith submit the article and, now that
I've gotten it off my chest, my household will return to such
domestic tranquility as a growing, rambunctious, sixteen-month-
old girl will permit.

                                                       Sincerely,
                                                  Michael Freeman
                                             First Vice President
                   National Federation of the Blind of Washington

     Accompanying this letter was the following article:

     The March, 1991 issue of the Braille Monitor contains a
thought-provoking article by Ted Young, President of the National
Federation of the Blind of Pennsylvania, on the subject of
"reasonable accommodations" for the blind. This is a subject of
prime importance for Federationists for, as the article states, a
discussion of the meaning and implications of "reasonable
accommodations" is fundamentally a discussion of the meaning of
equality. At first glance, Mr. Young's analysis seems plausible.
Upon closer examination, however, I believe it to have
implications for Federation philosophy and action which could
jeopardize some of the rights which the blind have gained over
the past half-century.
     The discussion begins with an admirable summary of the
standards blind people use to judge whether or not they have been
equally treated. Two of these standards are pertinent to the
following analysis. Some blind people hold that in demanding
equal treatment, they have the right to participate in activities
on the same basis and under the same conditions as do the
sighted. This may be called the "equal participation" standard.
Other blind people maintain that asking for equal treatment means
that they have the right to receive equivalent or similar
benefits from activities as do the sighted. This may be called
the "similar benefits" standard. These two standards of equality
have had a venerable history of advocacy in the Federation. Dr.
Jacobus tenBroek's 1944, 1948 and 1952 banquet speeches, for
example, state that one of the major goals of the NFB is
Equality, which I take to mean equality of opportunity to
participate in the activities of society. This notion of equality
is also evident in the oft-repeated Federation tenet that with
training and opportunity, the average blind person can do the
average job in the average place of business on an equal basis
with the sighted. Dr. Jernigan's 1990 banquet speech states this
most succinctly. Legislatively, the "equal participation"
standard is exemplified by the white cane laws in the fifty
states and by the NFB-sponsored amendment (which did not pass
Congress) to include the handicapped under Title VII of the Civil
Rights Act of 1964. It also is evident in the NFB-sponsored
amendment to the Americans with Disabilities Act which provides
that a handicapped person does not have to accept special
accommodations. Yet the notion of equality as meaning equivalence
of benefit also is prominent in Federation thinking. Dr.
tenBroek's "The Pros and Cons of Preferential Treatment" is
illustrative. I contend that it is far easier to apply the "equal
participation" standard than it is to apply the "similar
benefits" standard when trying to ascertain what (if any)
reasonable accommodations are needed for a blind person to
participate on a basis of equality with the sighted in a given
event. Mr. Young's first example illustrates the problem.
     In 1972 or 1973, Mr. Young states, a blind woman visited her
husband in prison. The visit consisted of talking to her husband
over the telephone while being separated from him by a glass
partition. The visit took place under the same conditions as did
visits by others to incarcerated individuals at that institution.
Thus, under the "equal participation" standard, the blind woman
received equal treatment and no accommodation was due her. Mr.
Young argues, however, that the "similar benefits" standard
should apply. He maintains that thousands of nonverbal messages
were exchanged between sighted visitors and the prisoners they
visited; that because the blind woman was deprived of these
exchanges, she did not receive equal treatment and that she
was therefore due some accommodation such as being allowed to sit
across a table from her husband (with appropriate security
arrangements). Mr. Young says that the blind woman could just as
well have stayed home and have spoken with her incarcerated
husband over the telephone. This ignores the benefit she gained
from the fact that her husband could see her (unless he, too, was
blind). This view will seem reasonable to many. Yet consider what
is being implied. If the woman was not being equally treated
because she could not see her husband, those "thousands of
nonverbal messages' must have been an essential part of the
communication. If visual messages are an essential part of
communication, how can we maintain, as we rightly do, that blind
judges and jurors can competently participate in trials involving
physical evidence?  How can we maintain that the blind are
competent (as they certainly are) to handle most situations in
which visual communication is considered essential?  What becomes
of our stand on the ADA in favor of the equal participation
standard rather than the accommodation standard in determining
whether or not discrimination has taken place?  In a lighter
vein, what becomes of the point of view espoused by many
Federationists that they would like to pay for earphones to
listen to in-flight movies just like everybody else and that no
compensation (as, for example, getting the use of these earphones
for free) is due them because they cannot see the movies?  What
becomes of our stand that the blind neither need nor want special
treatment in amusement parks because they cannot visually
anticipate the chills and thrills of the rides? (See "ValleyFair:
An Amusement Park Not So Amusing for the Blind" by Curtis Chong,
the Braille Monitor, March, 1991.) In other words, trying to
evaluate equality in terms of similar or equivalent benefits is a
tricky business and we should think long and hard before we adopt
this standard as a matter of routine in judging when special
accommodations are appropriate. Some people may reasonably ask if
my stand on this matter does not imply that, for example, the
blind should not advocate making historical sites, museums, etc.
accessible by touch whenever possible. It does not, since it
applies only to those situations in which vision is not essential
to the communication in question. In the case of museums,
historical sites, etc., the prime purpose of their existence is
to display things of interest to the public. Since these displays
are predominantly visual in nature, application of the "equal
participation" standard does not provide the blind person with
equal access to such facilities. It is therefore reasonable to
apply the "similar benefit" standard and to advocate making these
facilities accessible by touch.
     Next, Mr. Young discusses situations in which accommodations
are not reasonable. His analysis here is right on-target. He
concludes that accommodations by an employer to allow a blind
person to perform a given job are not reasonable unless the
employer thereby gains significant benefits from the blind
worker's labor or unless the blind worker, by virtue of the
accommodation, can perform the job to the same standards as would
be expected of a sighted person.
     Finally, Mr. Young discusses what he calls "equivalent
accommodations"--accommodations that don't cost the employer a
significant amount of money but which make life for the blind
employee a bit easier. For example, few would quarrel with the
proposition that if a sighted secretary is offered a computer to
make her word-processing easier, it is reasonable for the
employer to provide a blind secretary with a computer adapted for
access by the blind. Yet the first example cited by Mr. Young in
order to illustrate this concept is based upon a false analogy
and therefore leads to a false and, I believe harmful, conclusion
as to what constitutes equivalent accommodation. In the example,
Mr. Young assumes that a blind employee uses a dog guide as his
sole travel aid and that the dog becomes incapacitated. Mr. Young
asks if it might not be reasonable to let the blind employee take
sick leave instead of vacation time while the dog recovers. Mr.
Young, in propounding this notion, notes that many employers
allow their employees to take sick leave when family members are
ill. I most emphatically disagree with this analysis. It seems to
be based upon the false premise that the dog guide is primarily a
family member and not a mobility tool. I use a white cane. If my
cane breaks and I have not had the foresight to purchase extra
canes, my employer does not (and should not) make allowances for
my lack of sense. I am still expected to report to work, and it
is my job to find a way to get there--obtain a temporary ride,
take a cab, travel without a cane, etc. If I can't wangle any of
these alternatives, then I have to take annual leave just like
everybody else whose transportation breaks down. If I am to
expect equal treatment with my sighted colleagues, I should not
expect special treatment or allowances because of my blindness.
To say otherwise would be to say that I couldn't cut it on terms
of equality with my fellow employees. This logic holds true for
all blind individuals, including those who use dog guides. If
their dogs become ill (that is, their mobility tool becomes
unusable), it is up to them to find an alternate means of travel
if they are to remain competitive. We, the blind, whether we use
a cane or dog, can compete on terms of equality with the
sighted--but only if we are prepared to do so.
     Mr. Young's final example of "equivalent accommodation" is a
good one. He posits a situation in which an entry-level job can
be done by a blind person while the next level in the promotion
ladder is a job that cannot be done by a blind person (e.g.,
operating a fork-lift). The third-level job can be performed by a
blind person. How can the blind person obtain a promotion to the
third-level job in a way that is both fair to the blind employee
and to his/her fellow workers?  Mr. Young suggests a scheme
whereby the blind entry-level person be kept in that level a
somewhat longer time than is customary to compensate for the
inability of the blind employee to perform the second-level job.
I would prefer some sort of job-restructuring of the second-level
job to keeping the blind person in the entry-level position
longer than normal. Nevertheless, the situation Mr. Young
describes often occurs, and his solution is a plausible one.
Those who encounter such situations would do well to keep it in
mind.
     The concept of "reasonable accommodation" is controversial.
I suspect that neither Mr. Young nor I will have the last word on
the subject. It merits careful consideration by all of us for, as
was previously noted, it is fundamentally a question of equality.
We cannot ask for integration of the blind into society on a
basis of equality until we decide for ourselves what equality
means.

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