The ADA and Private Professional Certification

For an individual to be considered disabled under the ADA, it must be shown that the individual has an impairment that substantially limits one or more of the individual’s major life activities, without regard to mitigating measures such as medicine.¹ If a disabled individual seeks to take an examination offered by a private entity regulated under Title III of the ADA, the Department of Justice (DOJ) regulations require the test be administered so as to “best ensure” that the examination results accurately reflect the individual's aptitude or achievement level, rather than the individual's disability.² Courts have interpreted this “best ensure” standard in a broad, plaintiff-friendly manner.

Operators of testing facilities must provide physical spaces that meet ADA accessibility standards. In addition, they may also be required to provide test-taker-specific modifications such as private rooms, individual readers, or specific software for those who have a hearing or visual impairment. The test centers that hold the examinations aren’t the only entities regulated by Title III; organizations that help develop and administer the tests also must provide necessary modifications.

The Standard for “Disability” According to the ADA

The examination section of the ADA is designed to ensure that “individuals with bona fide disabilities receive accommodations, and that those without disabilities do not receive accommodations” which could provide them with an unfair advantage on the exam.³ Therefore, the first step of a claim under Title III requires that a plaintiff establish that he or she is disabled within the meaning of the ADA.⁴

“Disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities.”⁵ In 2008, Congress amended the ADA and broadened the definition of “disability” by providing that the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication.”⁶ Therefore, courts have held that applicants cannot be required to take prescribed medication while being evaluated for accommodations.⁷

The ADA does not include an exhaustive list of conditions that automatically qualify as disabilities, so each plaintiff has a factual burden to meet, based on the effect that the impairment has had on them. Cases suggest some plaintiffs with certain ailments—such as dyslexia—may meet their burden while others with the same ailment may not.⁸ However, the amended version of the ADA appears designed to tilt the scales in favor of the individual seeking accommodation. Entities that decline requested accommodations based on their own belief that the requestor’s impairment is not significant enough to qualify as a disability face the prospect of defending expensive litigation to determine whether the factual evidence in fact supports their position. The costs of refusing a requested accommodation on the mistaken basis that the requestor is not covered by the ADA can be substantial, and can include not only any damages awarded to the plaintiff, but also responsibility for both parties’ attorneys’ fees.

Title III Requirements for Private Entities Offering Exams

Title III of the ADA requires private entities that offer examinations “related to applications, licensing, certification, or credentialing for ... professional, or trade purposes” to “offer such examinations ... in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” (42 U.S.C. § 12189) (emphasis added).

Any private entity offering examinations covered by Title III of the ADA must comply with the following regulatory requirements of 28 C.F.R. § 36.309:

• The exam must be administered in accessible facilities or alternative accessible arrangements must be made. § 36.309(b)(1)(iii).
• Exams must be offered to the disabled as often and at equally convenient locations as for other test-takers. § 36.309(b)(1)(ii).
• A private entity must administer an ADA-covered examination to “best ensure” that its results reflect “the individual's aptitude or achievement level or whatever other factor the examination purports to measure,” rather than reflecting the individual's disability. § 36.309(b)(1)(i).
• Those offering such an examination must provide “appropriate auxiliary aids” for those with disabilities. § 36.309(b)(3).
• Auxiliary aids or modifications deemed appropriate based on the above standard are required unless the modification would “fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden.” § 36.309(b)(3).
• Modifications to a test can include additional time or an alteration in “the manner in which the examination is given.” § 36.309(b)(2).
• Documentation requested to show proof of disability must be “reasonable.” § 36.309(b)(1)(iv).
• When considering a request for accommodation, the testing entity must weigh documentation of past accommodations. § 36.309(b)(1)(v).

Download: The ADA and Private Professional Certification

1. Individuals who have a record of a disability or are “regarded as” disabled are also protected from discrimination under the ADA.
2. 28 C.F.R. § 36.309(b)(1)(i).
3. Powell v. Nat’l Board of Med. Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004).
4. Roberts v. Royal Atlantic Corp., 542 F.3d 363 (2d Cir. 2008).
5. 42 U.S.C. § 12102(1)(A).
6. 42 U.S.C. § 12102(4)(E)(i)(I).
7. Dept. of Fair Employment and Housing v. Law School Admission Council Inc., 896 F.Supp.2d 849 (N.D. Ca. 2012).
8. Compare, e.g., Price v. Nat’l Board of Med. Examiners, 966 F.Supp 419 (S.D.W. Va. 1997) (granting summary judgment for the defendant) with Singh v. George Washington Univ. Sch. of Med. & Health Sciences, 508 F.3d 1097 (D.C. Cir. 2007) (vacating summary judgment against dyslexic plaintiff).