Pillsbury Winthrop Shaw Pittman

The ADA and private professional certification

By Jerald Jacobs, Julia Judish, Dawn Crowell Murphy and Chris Leuchten

Title III of the Americans with Disabilities Act (ADA), as amended, mandates that private entities offering examinations or courses related to certain applications, licensing, certification or credentialing ensure that such exams and courses are accessible to individuals with disabilities or offer alternative accessible arrangements. Those involved with any aspect of credentialing examinations should pay careful attention to what aids or accommodations must be offered by law.

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. 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. 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 centres that hold the examinations aren’t the only entities regulated by Title III; organisations that help develop and administer the tests also must provide necessary modifications…

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