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.