Are employers required to assure that televisions in private residences where they employ staff to care for clients are closed captioned for any deaf or hard of hearing staff to be able to enjoy watching television the same as the hearing staff do? Would this fall under the category of “reasonable accommodations”, even if the televisions are the property of the clients, and not the employer? Who is responsible for assuring that the televisions are closed captioned? What should be done for a deaf employee who is assigned to a residence where the television is not closed captioned?
I work as a Supported Living Assistant for a Community Living Services program, providing care for developmentally disabled adults in their homes. The specific program that I work with cares for individuals under the Medicaid Waiver Program – clients whom without this program would be living in institutions, nursing homes, or other types of residential facilities. These clients require 24/7 round-the-clock care to assure their safety and welfare.
I work the third shift overnight, from 10:00 pm until the clients leave for their day programs in the morning, which can be any time between 7:00 am and 9:00 am. In another words, I am working anywhere from 9 hours to 11 hours during my shift.
However, during most of this time the clients are actually sleeping and there is not all that much to do… maybe some cleaning, laundry, cooking meals that can be made in advance, etc. but for most of this time the staff basically sits around and watches television (we are not allowed to sleep while on the job).
Here’s the problem… one of the houses where I work two or three nights a week has a television that does NOT have captioning available. Thus, my ability to enjoy TV while I’m working at that residence is rather limited.
I need to clarify that the residences are the clients own homes… they do not belong to the agency where I work. Some of the clients own their homes (or they are owned by their families/legal guardians); others rent their homes from landlords or apartment management companies. The clients are responsible for paying their own living expenses, which mainly comes out of their Social Security checks, and sometimes also out of their paychecks if they are working and earning a (limited) salary.
In addition, the furniture in the residences belongs to the clients… and this includes the televisions. While most of the clients do have televisions with closed captioning, this one home is the exception to the rule. It’s an old television that has been fixed up and put in the home… actually it is there mainly for the staff to use, because the clients in the home don’t really watch television all that much. Staff are permitted to watch the TV, and they often do so, especially after the clients have gone to bed, which they usually do around 8:30 at night (the clients have to be up early in the morning to take their medications and get ready for their day program).
My question is this… if the hearing staff have access to the television and can enjoy it, does this mean that the Deaf staff (meaning myself) must have equal access to the television? And if this is the case, does that mean the television needs to be closed captioned in order for me to have “Equal Communication Access?”
My employer is saying that “it’s not our problem, you just have to find something else to do, like read a book or bring some knitting or whatever.” Their argument is that since they don’t own the television, they are not responsible to assure that it’s captioned.
My argument in response is that if the other employees working in this home have the right to watch and enjoy the television, where is my right to be able to do the same? My point is that whether or not I do watch the television or choose to do something else, should the television still be captioned so I have that same equal access, or am I simply “shit out of luck” and have to find something else to occupy my time while I’m working at that residence?
So I would like to ask my readership…
What do you think?
How do you think this problem should be solved?
If in fact the television should be closed captioned, who is responsible for providing such access? Is it the employer’s responsibility to find an old captioning machine or whatever, the client’s responsibility, or the deaf employee’s responsibility?
Should a deaf employee be required to work in a residence where “reasonable accommodations” such as closed captioned television is not available? Can the employer still demand that I work in this residence and “find an alternative” to watching television? Should the employer remove me from working in this residence and only schedule me to work in residences where closed captioned television is available?
I’m really curious to get your feedback, because this has been bothering me for the past week and I’m struggling to determine the best way to handle this issue.
Thanks!
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Wow, that’s a sticky issue. If the TV were provided by the employer, then the issue would be more clear cut and access should be provided.
Why not try and find an old captioning machine somewhere and bring it in if the owner of the TV agrees? I’m sure it would not be too hard to find an old machine since so many people are getting rid of the old TVs and ditching the machines.
Hi Ocean–
As a former Client Advocate for a deaf services agency, my gut response would say that legally there’s not likely anything you could do to have them resolve it. I agree that you should be able to enjoy the TV as much as a hearing person assigned to that plce would have been, but it’d be a tough case to have ADA backing you up. Loophole. Not that I’m definitely right-even we client advocates had to do research and sometimes we’d call the Department of Justice’s ADA hotline to ask them.
Do you have a laptop? Does the home have internet? If yes, there are captioned shows online. Or perhaps you can get one of those $99 mini-dvd players and watch movies on the device, skipping the tv altogether.
While I’m not the right person to answer this–I don’t watch TV and I hear–I have two opposing perspectives. The first is that this is a private house and you couldn’t ask the person to get better furniture if the couch made your back problem worse. Not pleasant, but a fact of life–it’s not just about deaf employees. I have allergies and am expected to work in houses with cats and dogs, and in yards with wasps and bees, all of which I am allergic to.
The other perspective is cost. DeafMom has a good point–can you get a cheap portable, with closed captioning? Again, I don’t know anything about this–cost or bulk–but is it something you can live with?
SHOULD you have to live with it? Here’s where it gets tough. I think every person should make an effort to accommodate the person helping them to the best of their financial and decency, which varies greatly. Now, all that is no help at all, is it?
Hi,
The NAD’s legal center takes all kinds of questions just like this one (which is a very good one). Check out their “reasonable accommodations” URL at:
http://www.nad.org/reasonableaccommodations
The attorneys’ contact info can be found at:
http://www.nad.org/staff
I am not saying they WILL give you legal advice — as they are certainly always swamped with work — but they probably will at least respond to your email.
Like DeafMom says, this is a sticky issue. I’m not sure exactly where ADA would stand on this one.
A few things I do want to clarify, as an individual who works in a program similar to the one Ocean is describing here…
Ocean is not hired by the clients directly… she is an employee of the agency. As such, the agency establishes the schedule and determines which residences the staff will work at on any given shift, and with which clients. Staff have little say in this matter – they are expected to work the shift they are scheduled for, with the client(s) they are scheduled with.
Now, if Ocean was working in the group homes sector of the program, in which the agency owns the group home and the property within, then yes… as the employer, the agency would be responsible for providing a closed captioned television as part of its requirement to provide reasonable accommodations for deaf and hard of hearing staff.
The question is… to what extent does the same responsibility apply when staff are assigned to work in private homes? Then it becomes trickier, and I do not know what the answer to this question is.
QuinnCreative makes a good point…is it realistic to expect that the owners of the residence must make their home accessible for persons with disabilities? Probably not. Thus most likely the clients are under no obligation to have to purchase a closed captioned television simply because there is a deaf staff person working in the home.
But on the other hand… is it appropriate for the employer to be scheduling a deaf or hard of hearing person in need of such accommodations to work in a home where closed captioning does not exist?
That is the big question here… and I think it’s a valid one.
Let’s look at it this way… using QuinnCreative’s example of allergies, would it be appropriate for her to request that she not be assigned to work in homes where cats and dogs exist? (I doubt there is much one can do about the wasps and bees!) Would the employer be obligated to honor her request?
What about the person who is perfectly capable of doing the essential duties of the job (cooking, cleaning, bathing, dressing, giving meds, etc.) but who due to a physical disability has difficultly navigating stairs? Would the employer be required to assign this individual to work in residences that are one floor, or do not require having to go up and down stairs?
Correct me if I am wrong, but I would think (and hope!) that the law would indeed state that the agency has a legal obligation to accomodate this employee by only scheduling her/him to work in such residences.
Soooo… can the same philosophy be applied to Ocean’s case? We can’t mandate that the client go out and purchase a closed captioned television just because she’s working in their home (although as QuinnCreative says, it would be nice if they did!) However, the ADA clearly states that the expense of “reasonable accommodation” is the responsibility of the employer, not the employee. In my humble opinion, if any money has to be shelled out to allow Ocean to watch captioned television in this home, it should be spent by the employer, not by Ocean herself. She shouldn’t have to bear the burden of paying for her own disability (although sadly that often becomes the case).
I’m not a lawyer and I don’t know the specifics of the ADA law, but it would seem to me that Ocean has grounds for requesting that she be scheduled only to work in those homes where closed captioned television is in fact available for her use, if such television watching is made available to the other hearing employees.
That’s my two cents worth on the subject!
I would think that your employer is right on this one. Reasonable accommodations must be made in order for you to be able to do your job. Sorry, but watching TV is not part of your job. Suppose the house had no TV at all. Would you request that your employer purchase a TV to help you pass the time? It’s unfortunate that the TV doesn’t display captions, but I think you’ll just have to find some other way to occupy yourself during the down times.
no closed caption then turn sound off !
I have to challenge Me’s comment above. Title I of the ADA clearly states that not only is an employer required to provide reasonable accommodations to enable an employee to perform an essential function of a job, but also to allow the employee to enjoy equal benefits and privileges of employment.
Watching TV may not be part of Ocean’s job, but it is a benefit and privilege that is available to other employees working in this residence, therefore that same equal privilege should be granted to Ocean as well. Deaf employees should be able to have access to the whole range of facilities, services, and amenities that are available to other employees.
I don’t see Ocean asking for special favors here… such as requesting that the employer has to provide a TV for her downtime. What I see her asking is for the same equal privilege to watch television that is afforded to her hearing counterparts.
I think that’s perfectly reasonable.
And as for Rod Kerber… what does turning the sound off have to do with watching closed captioning? As a deaf person, I often watch television with the sound off…and the captions on! You seem to be under the impression that watching television with the sound off is the equivalent to watching it with captioning. I can assure you, this is not the case. Perhaps you should try watching the television without sound but with no captions… and see how much you are able to understand.
Hmmm…I think as long as the TV belongs to the client the company will say they are not responsible because the TV are private property so there is no requirement to accomodate. This is a hard situation….
That’s gotta be a really old TV! All sets since 1993 that are over 13″ must have captioning technology within the set.
I think I’m going to have to go with the majority here– since it is a client’s private home and private set, you’re probably out of luck. Morally, you should have equal access to captioning; legally, I’m not sure you have a leg to stand on.
It sucks, I know. 😦
That is an interesting case to think about: a property not owned by the employer and sending an employee to the workplace that happens at a client’s home. It is putting my mind between a rock and a hard place.
This is what I would want to conclude:
So when an employer arranges an employee to get paid to be in an area where assisting the clients take place on a daily basis, it would be the employer’s responsibility to provide the device since there is no equal access which is a breach of ADA principles.
But in reality:
Let’s take another case to compare with Ocean’s case. Deaf has been pooled under physical disability so in that case, it can apply to wheelchair users, the visual-challenged, etc. Actually, the public does not understand and recognize that the Deaf is mostly known as a cultural-linguistic-minority group but unfortunately without this respect, the Deaf has been lumped under disability only. The Deaf have been perceived as either a disability or a cultural-linguistic society depending on individuals who have the understanding. There are no other “physical disabled” people developing a language of their own. That’s where the problem is since the Deaf has not been recognized as a cultural-linguistic minority group but a group of people who have disability only.
The bottom line is that ADA sucks. It does not cover well for the Deaf since there is a label for them to be disabled only as there is nowhere mentioning that the Deaf is cultural-linguist minority that uses ASL.
We should be comparing Ocean’s case to those who speak different languages. Let’s say a Spanish speaking worker who isn’t able to understand English well and works with some of the non-Spanish speaking clients who happen to have a TV that has no Spanish channel (no cable) and that the English speaking employees enjoy watching it during the graveyard shift. What rights would that employee have? I do not know much about this but this matter can be brought up to EEO but again this is not considered important enough to bring it up.
Currently, the formulation of multicultural language policies has been developed but our current law, ADA, does not classify the Deaf as a cultural-linguistic minority group and that this is treated as a language-base discrimination. Perhaps we need to develop ALMA (American with Linguistic Minority Act).
“Without hesitation, federal courts have banned intentional discrimination against individuals on the basis of language when it is clearly a form of national-origin discrimination (prohibited under the Civil Rights Act of 1964.) Judges have been reluctant, however, to order bilingual assistance to ensure equal access to government for broad classes of non-English speakers.”
http://ourworld.compuserve.com/homepages/JWCrawford/LLPT4.htm
So looks like there is a parallel of weakness between disability and language-minority that the law does not completely guarantee equal access. To get a lawyer involved requires money and red tape also to get the CC device installed would take forever not to mention putting up with stress.
My solution? Just talk it out with the employer and see what they have to offer such as getting the device or a replacement. I would also justify that some clients would be able to hear the tv that the volume should be low or turned off. Captions will make it more available as an option instead of relying on volume alone that may disturb the clients’ sleep.
If they still shrug off your request, get the device (I have one if you need it) and install it and stand tall. If you are reassigned, take it with you and you will not have to deal with this crap in the future.
Hello, Ocean! I’ve visted your blog several times recently, but this is the first opportunity I’ve taken to send you a comment. I’m quite new to paganism, and I just wanted you to know how much I appreciate all of the information and insights you share with the world on your blog, so I’ve nominated you for an award. If you visit my blog at http://pagandawn.wordpress.com, you’ll see all the details. Thanks again for all you do!
Blessings,
Sabrina
Well, since you asked my opinion…
They don’t pay you to watch tv.
What if I come over to your house to fix your computer. I will be doing some things that may take a while, and involve me waiting for things to complete. I get $50-$75/hour, on-site.
You might offer to have the tv on while I worked, so that I wouldn’t be bored. But say the sound on your TV is broken.
If the sound on your TV is broken, you shouldn’t have to fix your TV for me so that I can listen while I wait. You might, out of your kindess, but you shouldn’t have to, right?
What would you think of me if I insisted that you fix the TV so I could listen while I worked, and while you paid me?
You asked for opinions. This is just mine.
Hey Mum x)
Thought I’d drop by and check out the old blog, since I just started one up again.. must check out the pretty layout I have up.. you just might like it.. Other then the fact I know you’ll say the font is too small =P
My opinion on this, is that since it is not the employers building, property, machines.. etc. etc. there isn’t much that they can do. Knowing the possibility the people who do own such should accommodate with such needs, but since they don’t I guess it would either live without or ask about x) I totally just typed that so I could rhyme it, hahaha. If the t.v. doesn’t have such, well.. that is a hard one, but you think that they would anyways due to the fact so the t.v. sound wouldn’t even be on so they wouldn’t wake up the sleeping angels =P *cough*
Including the person above me, if the employer, owner, people say that the workers are allowed to watch the t.v. because they work an overnight shift or not, isn’t that pretty much telling them so? And if its there, they are supplying it, wouldn’t they have to fix it and accommodate? Kind of like… a babysitter? Isn’t it all the same thing =P
I’m a strong believer in asking =D
Anyways, I just felt like typing this for the fun of it, but yesss.. miss you much mum and hope your doing fine!
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