[vicsireland] Re: Computer-based examdiscriminated against
- From: "tonysweeney" <tonysweeney1@xxxxxxxxxxx>
- To: "vics" <vicsireland@xxxxxxxxxxxxx>
- Date: Sun, 28 Jan 2007 18:51:53 -0000
Out-law.com (United Kingdom)
Wednesday, January 24, 2007
Computer-based exam discriminated against blind candidate
A qualifications body discriminated against a blind systems manager when it
failed to make its computer-based exam accessible to her. The tribunal
ruling
is the first to find a US company with no presence in the UK liable under
the UK's Disability Discrimination Act.
Sam Latif, 30, works as an IT Project Manager with Proctor & Gamble in the
UK. In September 2004, she decided to study for a Project Management
Professional
(PMP) qualification, the most widely-recognised certification in project
management in the world.
The PMP is managed by the Project Management Institute (PMI), a
not-for-profit corporation based in the US. A textbook from PMI, its Project
Management
Body of Knowledge, known as the PMBOK Guide, is recommended reading for
candidates before they sit PMI's four-hour multiple-choice examination.
At work Latif uses software called JAWS to convert text on her computer to
speech, letting her read documents and browse the web. When she applied to
PMI
with a view to obtaining the PMP qualification there were more than a
million copies of the PMBOK Guide in print. But Latif could not get an
electronic
copy that she could read with her JAWS software. A PDF version was sent to
her but Latif said she could not even open it. She later received a Word
version
that she could open but within which she struggled to navigate. In the end
she paid a student to work six hours a week for her, reading parts of the
book
aloud that Latif would type up herself.
For the exam itself Latif requested the services of a reader who could
explain diagrams and provide back-up in the event of technical problems; a
copy of
the exam paper in an unprotected Word format that she could read on her own
laptop with JAWS; and additional time.
PMI agreed to provide extra time and a reader but refused Latif's request to
use her own computer. "We do not permit people to take electronic devices in
the testing centre as these may corrupt the good function of computers and
because the PMP exam is delivered under strict security measures. We offer
the
PMP exam on the computer based or paper based form," explained PMI in an
email to Latif. In reply, Latif suggested installing her JAWS software on
the
exam centre's computer. That request was also refused.
Latif sat the exam at a third party test centre in Edinburgh with the
assistance of a reader, using what the Tribunal described as a process of
reading/repetition/note-taking/transcription
of answers, over a total of eight hours.
She described the exam experience to OUT-LAW. "It brought back memories of
when I was at school and when I'd first lost my sight," she said. "I've
never
really felt comfortable [with] other people reading to me; I've never felt
comfortable having to ask people again and again if I didn't understand
something.
And because I'd been working and studying for more than 10 years using
computers and audio speech, to actually go backwards 12 years in time and
depend
on another person to read the exam, I just found it really painful and quite
upsetting."
Four of the exam questions involved diagrams. "The reader would take my
finger and try and invisibly draw the diagram and I would try and remember
the way
it was laid out and try to keep all the information in my head," said Latif.
"I found that quite hard because I like working with tactile diagrams - I
work with them all the time." Tactile diagrams, where an image is raised on
the page, were not available for the exam.
Latif added, "technically it was possible and very simple to sit the exam in
a way that was more accommodating to my needs but because of some peoples'
attitudes I wasn't able to do it and I had to do it in this way that made me
feel dependant and disadvantaged. I was kind of upset and cross and quite
scared because I wasn't sure how it would actually turn out in the end."
She passed the exam, but by that time Latif had already begun proceedings
against PMI under the Disability Discrimination Act (DDA) of 1995. The
Disability
Rights Commission (DRC) supported her case.
The DDA is best known for banning discrimination by employers (in Part 2 of
the DDA) and by providers of services (in Part 3). But Part 2 also bans
discrimination
by qualifications bodies and requires reasonable adjustments in exam
arrangements.
Ruling on jurisdiction
At a pre-hearing review, PMI argued that it was outside the Tribunal's
jurisdiction because it was an American corporation. In its employment
provisions,
the legislation makes clear that the DDA "applies only in relation to
employment at an establishment in Great Britain." Its provisions on
qualifications
bodies are silent on jurisdiction. The Tribunal reasoned that it must be
assumed that these provisions would be limited to persons falling within
Great
Britain. Latif said the acts concerned took place in Great Britain; PMI said
they took place in Pennsylvania. Pre-hearing Tribunal Chairwoman Jessica
Hill said PMI's argument would only be relevant if Latif was also outside
Great Britain. "But the claimant is within the jurisdiction in that she
worked
in England and the exam which caused difficulties took place in Scotland,"
she wrote.
"In my view, the fact that the respondent was in a position to make
arrangements within Great Britain for the Claimant to pursue a course and
potentially
receive a qualification from them in Great Britain, meant that they became
persons who moved within the jurisdiction of the legislations," she
continued.
"The place where the claimant suffered the alleged less favourable
treatment was within the jurisdiction of Great Britain and as such her
complaints are
ones that can be heard by the Tribunal."
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer with Pinsent
Masons, said this ruling could be significant in other cases, notably cases
of web accessibility. "A blind person in the UK could argue a right to sue
a US company in a UK court for discrimination if the US company has a
website
that is not accessible to him and he can show that that US company has taken
orders from other UK consumers," he said. "The Tribunal's reasoning could
be influential on a court, though it won't be binding."
We put this to Sarfraz Khan, Senior Legal Officer at the DRC, who worked
with Latif on her case. "It might have a bearing," he agreed. "There is a
possibility
that the judgment might usefully inform a court considering a Part 3 web
access case as to whether jurisdiction can be made out where that provider
is
ordinarily based outside of Great Britain but is providing access to goods
and services within Great Britain through a website," he said.
Pointing out that he was expressing his own opinion, not the official view
of the DRC, he continued: "This is a similar situation to Sam Latif's case
in
that she was accessing an internationally-recognised qualification provided
by an overseas company, albeit through means that involved some delivery in
the UK. Likewise people ordering goods within Great Britain are likely to
have them delivered by whatever means might be used by the company who are
selling
those products via the website but the website itself may not be accessible
and in those circumstances a court might determine that they are liable."
He added that question marks remain. "I'm sure it needs further legal
argument in a particular case before we're any the wiser as to whether that
does or
does not amount to something that the DDA captures in terms of its
coverage," he said.
Ruling on the exam arrangements
The Employment Tribunal at Reading reasoned that the test centre
commissioned by PMI could have loaded the exam onto one of its own
stand-alone computers
with JAWS installed and the questions in Word format, without risk of
cheating. The test centre was already licensed to use Microsoft Word and
JAWS could
have been installed by Latif using a token and later uninstalled. Given that
Latif runs JAWS so that it reads text 60% faster than a human voice, Latif
would then have been able to complete the exam in significantly less time
than the eight hours that it took with a reader.
Latif had not suggested this approach herself; but the Tribunal referred to
the DRC's Code of Practice which makes clear that there is no onus on a
disabled
person to suggest what adjustments should be made: it is for the
organisation to consider whether any reasonable adjustments can be made to
overcome the
disadvantage.
To whom the duty is owed
The three-member Tribunal also noted that "a Qualifications Body should
consider, as part of a proper assessment, the circumstances of the
individual disabled
person, rather than treating him or her as part of a more general class
(e.g. 'The Blind')."
(This contrasts with the Part 3 duty on a provider of services, such as a
shop or a website, where another DRC Code of Practice says the duty to make
reasonable
adjustments "is a duty owed to disabled people at large." That Code goes on
to say that it is "not simply a duty that is weighed up in relation to each
individual disabled person who wants access to a service provider's
services.")
The DDA does not require book publishers to make their books accessible and
the Tribunal implied that the PMBOK Guide was exempt for being a book, not a
"provision, criterion or practice or arrangement for the purposes of
determining upon whom to confer a professional or trade qualification." So
there was
no requirement for PMI to make its PMBOK Guide accessible.
But the exam arrangements were covered by the legislation. "It is clear
from the evidence that [PMI] thought that once it had put forward
adjustments that
it considered appropriate, that was an end of the matter; and no further
suggestions would be considered," wrote Tirbunal Chairman Richard
Barrowclough.
"What is lacking in that approach is any degree of flexibility, of being
prepared to listen to the claimant's views and wishes, or to look into or
consider
alternatives, once a view had been taken."
The Tribunal was convinced that Latif could have taken the exam much faster
with JAWS. An added advantage would have been the note-taking facility of a
computer, rather than "the more laborious verbal instructions to the
Reader/Recorder actually employed in the exam."
Barrowclough concluded: ".the respondent has not established that it took
all such steps as were reasonable in order to prevent the claimant being put
at
a substantial disadvantage by their practice of exam questions being read by
candidates in a Test Centre, and thereafter recording their answers."
On 19th October 2006, PMI was ordered to pay compensation of £3,000 for
injury to Latif's feelings. On hearing the result, Latif said she felt
relieved.
"This whole trauma had been going on for many years now," she said. "It all
started a long time before I decided to take legal proceedings. I'd been
experiencing
so much frustration from the outset. I felt every request I made for a
reasonable adjustment was not given the right consideration and the people I
was
in contact with seemed as if they didn't have responsibility or experience
to help me."
The appeal
PMI has appealed the ruling to the Employment Appeals Tribunal. According to
Khan at the DRC, PMI is appealing on two grounds. First, it argues that it
made reasonable adjustments by providing a reader and extra time and
therefore discharged the duty. Second, it is making a technical legal
argument about
how the burden of proof provisions work in a reasonable adjustments claim.
Asked if he was surprised that they were not appealing on jurisdiction, Khan
said: "It was slightly surprising that that wasn't taken further in order to
get a more definitive ruling perhaps, if that was necessary, from the
Employment
Appeal Tribunal. But they may well have - and this is conjecture on my
part - they may well have thought that the ruling was pretty definitive and
further
clarification from the EAT wasn't necessary."
See:
The pre-hearing review on jurisdiction as a 5-page / 254KB PDF
The pre-hearing review on jurisdiction as a 7-page / 42KB Word Doc
The judgment as a 32-page / 583KB Word Doc
The judgment as a 26-page / 2.9MB PDF
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