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Monday, October 3, 2011

Tests and Testing Accommodations Under the Americans with Disabilities Act

Emily C. Barbour
Legislative Attorney

Tests and examinations are widely used to decide whether a person is qualified to take up a particular occupation, advance professionally, or attend a certain educational institution. These tests can pose unique challenges to individuals with disabilities. Under the Americans with Disabilities Act (ADA), an entity that offers an exam without providing accommodations to examinees with disabilities may be liable for disability-based discrimination.

The ADA applies to both public and private educational and employment-related testing, and Section 309 of the ADA requires persons offering certain examinations to do so “in a place and manner accessible to persons with disabilities.” The Department of Justice (DOJ) is responsible for implementing this provision, and a series of federal court decisions have held that the DOJ’s current interpretation of Section 309 is entitled to judicial deference. Under the DOJ regulations, private testing entities must provide individuals with disabilities with accommodations that “best ensure” that the test accurately assesses the individual's aptitude “or whatever other factor the examination purports to measure.” Factors that may be relevant to this analysis include the accommodations’ capacity to help the plaintiff overcome the limitations created by her disability, their utility given the requirements and rigorousness of the particular exam at issue, and current technology.

However, not every test-taker with a disability is entitled to accommodations under the ADA. The ADA’s protections only apply to test-takers who establish that their impairments fall within the ADA’s definition of a “disability.” In the past, courts had narrowly interpreted the term “disability.” In the field of educational and professional testing, this often meant that people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders could not establish that they had a “disability” for the purposes of the ADA if they had developed methods of coping with their impairments.

Concerned that narrow judicial interpretations of the term “disability” prevented individuals with disabilities from receiving necessary accommodations under the ADA, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, in 2008. The primary purpose of the ADAAA was to ensure that the courts and executive agencies adopted a more expansive interpretation of “disability.” The ADAAA is widely viewed as shifting the focus in an ADA case from whether the plaintiff is entitled to the ADA’s protection to whether the defendant has complied with the ADA. For example, the ADAAA prevents courts from taking into account a test-taker’s coping mechanisms when determining whether that test-taker is entitled to the ADA’s protections. Accordingly, people with learning disabilities, attention deficit disorders, other health impairments, and cognitive disorders are more likely now to qualify for testing accommodations.

This report discusses recent federal court cases determining who is entitled to testing accommodations under the ADA and whether a particular testing accommodation is ADAcompliant. It emphasizes areas where the ADAAA has affected the analysis or outcome in a case. It also identifies new legal questions being raised in federal court about standardized tests and individuals with disabilities. Although the ADA does not require defendants to provide accommodations when doing so would impose an undue hardship, this report does not discuss the “undue burden” defense at length. It also does not discuss testing accommodations required under the Individuals with Disabilities Education Act (IDEA).

Date of Report: September 2
0, 2011
Number of Pages:
Order Number: R
Price: $29.95

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