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Computer-based exam discriminated against blind candidate

UPDATED: 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 on 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."

Update: PMI has lost its appeal. In a judgment handed down on 10th May 2007, the Employment Appeal Tribunal upheld the ruling in favour of Sam Latif.

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