Job Accommodation Network

A private employer, state or local government entity or public accommodation may need to consider hiring a sign language interpreter for someone who is deaf or hard of hearing to ensure that effective communication takes place under the Americans with Disabilities Act (ADA) or similar civil rights legislation. Under the ADA there is a requirement to provide effective communication in employment situations, in situations where public services are rendered by government agencies and when goods and services are provided by public accommodations. The ADA does not specifically state that an interpreter must be offered as the method of providing effective communication however, it is important to assess when an interpreter is the appropriate choice for accommodation.

The following guidance may be useful in deciding whether to have an interpreter present to assist with providing effective communication. JAN publications are provided for informational purposes and should not be considered legal advice. Opinions expressed within the material do not necessarily represent the opinions of JAN staff. If legal advice is required, please contact the appropriate government enforcement agency or seek the services of an attorney or legal professional.

ADA Title I, Employment

Title I of the ADA applies to private employers who employ 15 or more employees and is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). http://www.eeoc.gov

Under Title I, a sign language interpreter may be provided on an as-needed basis as an accommodation. An interpreter might be provided by a private employer to enable a person who is deaf or heard of hearing to benefit from an equal employment opportunity. As with any accommodation, an interpreter need only be provided as long as the accommodation does not impose an undue hardship upon the employer. In the ADA Technical Assistance Manual for Title I, Chapter 3.9, the EEOC defines undue hardship as, "an action that requires 'significant difficulty or expense' in relation to the size of the employer, the resources available, and the nature of the operation."

Typical Questions

Is an employer required to provide an interpreter as a job accommodation in accordance with the ADA or similar civil rights legislation?

According to the EEOC, an employer may be required to provide a qualified interpreter as an accommodation unless doing so would present an undue hardship. See the ADA Technical Assistance Manual for Title I, Chapter 3.10.9, http://www.jan.wvu.edu/links/ADAtam1.html.

An employer has the obligation to provide an accommodation that will enable the individual to perform the job effectively or benefit from an equal employment opportunity. In addressing what type of accommodation is needed, an employer should determine the communication needs of the individual in relation to the specific job tasks to be performed. Effective communication might be provided through alternative methods, such as through written notes, computer assisted note taking, real time captioning, or a communication device.

An employer should consider the length and complexity of the type of communication required. If communication is complex in nature, such as informing a new or current employee about a health benefits plan or discussing disciplinary actions, it would be in both the employee's and the employer's best interests to have a qualified interpreter present. In situations where miscommunication can lead to serious consequences, it is imperative that effective communication occur. For daily conversation, however, it may not be necessary to have an interpreter present. Text communication such as through written notes, e-mail or instant messaging (IM) may be sufficient to provide effective communication.

In situations where an individual's primary communication occurs through using American Sign Language (ASL), another form of sign language or an oral interpreter, it may be necessary to provide an interpreter. Some individuals who are deaf may not know English as their primary language. A language barrier may be an issue in this case. Consider the situation much like one where an individual may speak Spanish or French as their primary language. When a language barrier results, written notes may not be an effective accommodation because the individual may not be able to read and write English.

If an applicant requests an interpreter for an interview, is an employer required to pay for the cost of the accommodation?

If providing a qualified interpreter is a reasonable accommodation, then yes, the employer is responsible for the cost of providing such an accommodation. According to the EEOC, employers are primarily responsible for the cost of accommodations unless it will pose an undue hardship upon the employer to pay for the accommodation. Employers can seek assistance with paying for accommodations from entities like state Vocational Rehabilitation Services when appropriate.

When an interpreter is requested by an applicant, an employer should consider providing an interpreter for the application and interview phases of employment. Effective communication during application and interview is essential to a successful interview. Providing an interpreter will increase the likelihood that communication will flow in a smooth and comfortable manner. An employer does have the right to decide which effective accommodation will be provided. If it is determined that an interpreter would not be considered a reasonable accommodation, the employer can choose to provide an alternative way of communicating as long as the alternative method is effective.

Is an employer obligated to provide an interpreter for an employee to attend training or conferences under the ADA?

According to the ADA Technical Assistance Manual for Title I, Chapter 7.6, "Employees with disabilities must be provided equal opportunities to participate in training to improve job performance and provide opportunity for advancement. Training opportunities cannot be denied because of the need to make a reasonable accommodation, unless the accommodation would be an undue hardship." An employer may have the obligation to provide an interpreter as a reasonable accommodation for an employee to attend training or conferences.

If an employer contracts with an outside agency for training, such as a vocational school for example, the employer should make advance arrangements with the training entity to determine who will provide the interpreter. When the training is required or offered by the employer, the employer should take the initiative in arranging for the accommodation. In some circumstances an employer and a training entity will both have an obligation to pay for the cost of an accommodation. A vocational school, for example, may be considered a place or public accommodation having ADA Title III obligations to provide effective communication.

For more information regarding the obligation to provide accommodations during training situations, see Question #15, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act http://www.eeoc.gov/policy/docs/accommodation.html.

ADA Title II, State and Local Government Programs and Services

Title II applies to any programs, activities or services operated by a state or local government (public entities) and is enforced by the US Department of Justice. http://www.usdoj.gov/crt/ada/enforce.htm#anchor218282

Typical Questions

Are all facilities and programs operated by public entities required to be accessible?

Title II public entities have a requirement to ensure programs and services are accessible to individuals with disabilities. Essentially, all programs and services are to be readily accessible and usable by individuals with disabilities. However, not all facilities are required to be accessible. This requirement is known as 'program accessibility'. For example, it is not required that each tax office be accessible to individuals with disabilities as long as the programs and services offered by the tax department can be readily accessed and used.

Is a public entity required to provide the requested auxiliary aid or service (accommodation) of choice?

According to the ADA Technical Assistance Manual for Title II, 7.1100 (http://www.usdoj.gov/crt/ada/taman2.html), public entities are required to give the individual the opportunity to express their desired accommodation and to give primary consideration to the choice expressed. A public entity does have the right to provide an alternative effective means of communicating if an equally effective means of accommodating is available or if the primary choice of the individual would pose an undue burden on the public entity. An undue burden may result if the public entity can demonstrate that providing the accommodation would cause, "a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens." (II-5.1000 http://www.usdoj.gov/crt/ada/taman2.html)

Can an individual with a disability be charged for the cost of an accommodation?

A public entity may not charge or place a surcharge on an individual with the disability for the cost of providing an accommodation. (II-3.5400 http://www.usdoj.gov/crt/ada/taman2.html)

Under Title II of the ADA, must an interpreter be provided as an accommodation?

Effective communication is required but not specifically an interpreter. An interpreter can be a method of providing effective communication or equal access under the ADA. There may be other methods of effective communication that could be considered as an alternative. It is necessary to assess the length and complexity of the communication as well as the individual's communication skills in order to determine if an interpreter is the more effective method of communication. See the following excerpts for further clarification.

If an interpreter is provided, must the interpreter be certified?

The ADA Technical Assistance Manual for Title II makes clear that a qualified interpreter must be provided, not necessarily a certified interpreter. Section 7.1200 describes qualified interpreter, "… When an interpreter is required, therefore, the public entity should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary." (II-7.1200 http://www.usdoj.gov/crt/ada/taman2.html)

ADA Title III, Public Accommodations

Title III applies to private entities known as public accommodations. For example, places of lodging, restaurants, medical facilities, retail establishments, banks, educational institutions, recreational facilities, licensing entities, etc. Title III is enforced by the U.S. Department of Justice.
http://www.usdoj.gov/crt/ada/enforce.htm#anchor218282

Typical Questions

Are public accommodations required to provide interpreters for people who are deaf or hard of hearing? For example, is a physician required to provide an interpreter for a patient who is deaf?

Public accommodations are required to provide auxiliary aids and services when necessary to allow equal access to goods and services for individuals with disabilities unless doing so would pose an undue burden or alteration in services. Public accommodations have an obligation to provide effective communication. The decision to provide an interpreter will be based upon the length and complexity of the communication taking place as well as the communication skills of the individual. Title III, Chapter 4 states that, "In order to provide equal access, a public accommodation is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved." (III-4.3200 http://www.usdoj.gov/crt/ada/taman3.html)

Are public accommodations required to pay for the cost of providing an interpreter as an accommodation under the ADA?

Under the ADA, if a request has been made for a public accommodation to provide an interpreter as an accommodation, the public accommodation is required to determine if an interpreter can be provided. If the public accommodation makes the decision to provide the interpreter, then the public accommodation is responsible for the costs associated with providing the interpreter as the accommodation. According to the US Department of Justice (DOJ), an individual with a disability cannot expect a public accommodation to pay for the cost of an interpreter when the individual supplies their own interpreter. For example, when an individual goes to a physician for an appointment and brings an interpreter but does not request one as an accommodation in advance, the individual is responsible for the cost of the interpreting services. Public accommodations cannot place a surcharge on individuals with disabilities to cover the cost of providing accommodations.
Resources

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