Ask The Lawyer By: Daniel A. Gwinn, Esq.
WORKER WANTS CLOSED CAPTIONING ON TRAINING VIDEOS, DOES EMPLOYER HAVE TO PROVIDE IT?
QUESTION: I’m a professional worker with a slight disability – I am hard of hearing. Most of the time, as I interact with people one-on-one, it is not an issue, but I have a lot of trouble with anything recorded – audio or video. My employer recently recommended me for an advanced training program, which could lead to a promotion, and a big wage boost. The trouble is, the training materials are all available via a podcast – and I cannot understand what is being said. I asked if there is a captioned version available, but I was told no. I should just try to figure it out as best I can. Not only is watching 20 hours of incomprehensible material a waste of time, but I am sure I would fail the test that concludes the training. Isn’t my employer supposed to provide closed captioning for me, if I need it?
ANSWER: Under both the Americans with Disabilities Act and Michigan’s Persons with Disabilities Civil Rights Act, an employer is required to make reasonable accommodations that will permit a person with a disability to fulfill the essential functions of his or her job, and is forbidden from discriminating against a person with a disability in any aspect of employment, including hiring, firing, pay, job assignments, promotions, etc.
By denying you an opportunity to participate in a meaningful way in a training program which could lead to promotion, etc., your employer is violating the law. Your employer must find a way to provide you the training you need in a way that enables you to obtain the full benefit of the information.
That said, your employer is not required to provide a closed-captioned version of the training materials if another, less expensive option exists. Under Michigan law, the cost of providing the captioning is a factor in determining whether your request is reasonable and will not impose an undue hardship on your employer. A very small firm – three employees or less – cannot be required to spend more than one times the state average weekly wage, while a firm with 25 or more employees can be asked to spend 2.5 times the state average weekly wage on equipment or devices that will enable a disabled person to fully participate in the workplace. The federal law has no such limits, but does not require an employer to bear an unreasonable expense, especially where a less burdensome option is available. And, high-quality captioning is not cheap, costing upwards of $20.00 per minute.
Lawsuits against businesses that have failed to provide captioning on required video and audio files for their deaf or hard-of-hearing workers have survived legal challenges in the Courts (a case against FedEx is ongoing). However, lawsuits take time – sometimes years – with no guarantee of victory, or of a large payout.
Have you asked your employer if the materials – and the test – are available in a hard copy? If not, explore this avenue before you turn to litigation. If your employer refuses to meet you halfway, you may wish to consult an attorney.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law