§309 Contains a Fundamental Alteration Defense

I hope everyone had a happy Passover and a happy Easter. For those who are Roman Catholic, my condolences on the passing of the Pope.

Today’s blog entry concerns §309 of the ADA. It asks the question of whether fundamental alteration applies in §309 cases. The case of the day is Albert v. Association of Certified Anti-Money Laundering Specialists, LLC, here, a published decision from the 11^th Circuit decided on March 14, 2025. It is actually the second time this case came up before the 11^th Circuit Court of Appeals. The first time it came up before the 11^th Circuit, the 11^th Circuit remanded it back down because the lower court did not focus on §309. After it went back down, it comes back up with the issue of whether fundamental alteration applies to §309. As usual, the blog entry is divided into categories and they are: relevant law and key facts; court’s reasoning that §309 contains a fundamental alteration element; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories. This is one of my shorter blog entries, so you will probably wind up reading the whole thing.

I

Relevant Law and Key Facts

42 U.S.C. §12189 (§309 of the ADA), provide that. ”any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”

Plaintiff worked as a bank compliance officer when he decided he wanted to become a money-laundering examiner, which requires passing a certification exam. The certification exam is the most prestigious and highly recognized anti-money laundering exam recognized by employers and law enforcement. The exam is designed to be administered in a closed book format. Plaintiff has anxiety and learning disorders. Among the reasonable accommodation requests he asked for, included taking the exam by open book. As mentioned above, when the trial court first looked at the matter, it didn’t look at §309 at all. So, the 11^th Circuit remanded it for the trial court to consider the case from the §309 perspective. On remand, the trial court concluded that an open book exam was not a reasonable request, and plaintiff appealed.

II

Court’s Reasoning That §309 Contains a Fundamental Alteration Element

1. Proving a §309 violation means showing three things: 1) plaintiff is disabled; 2) the requests for accommodation are reasonable; and 3) those requests have been denied. The only issue before the court was whether the accommodation request was a reasonable one. There was no dispute about the other two prongs.
2. 309 (42 U.S.C. §12189), here, requires an exam provider to either: 1) ensure that a test is accessible to persons with disabilities; or 2) to offer alternative accessible arrangements for disabled individuals.
3. Whatever §309 may or may not require, it does not require a test provider to offer an accommodation that fundamentally alters the nature of the exam.
4. 309 applies to a test provider’s examination or courses and by its terms requires the provider to offer such (emphasis in opinion), examinations or courses in an accessible way. Utilization of the word “such,” assumes that both before and after the requested accommodation, the exam is the same exam (emphasis in opinion). In other words, the alternative accessible arrangement cannot alter the exam’s essential nature.
5. While §309 requires an exam provider to offer alternative accessible arrangements to people with disabilities, that obligation doesn’t extend to accommodations that the provider can show fundamentally alters its exam. For example, no one thinks that §309 requires a flight school to modify it flying test by allowing a blind applicant to use autopilot because the ability to see is an essential ingredient of what a flight examination measures, and §309 does not require the provider to accommodate away an essential aspect of the exam.
6. In a footnote, the court notes that the Fair Housing Act also contains a fundamental alteration defense. Further, 42 U.S.C. §12182(b)(2)(A)(ii) of the ADA also contains the fundamental alteration defense in explicit terms. It makes sense that §309 would also have that defense even if it is not explicitly contained in §309.
7. The anti-money laundering exam was purposefully not designed to be an open book test because such a form of the test would essentially test the candidate’s ability to look up information as opposed to testing their knowledge of the examination content.
8. Since taking the exam in an open book format would eliminate one of the aims of the exam, it would change the fundamental nature of the exam and therefore, the accommodation request was not reasonable.

III

Thoughts/Takeaways

1. While this is a §309 case and not a more traditional ADA access case, it has wide implications for entities engaged in testing, especially colleges and universities.
2. My daughter is in her third year of undergraduate studies, and she reports that as a result of technology and people having gone remote learning during the pandemic, the number of professors insisting on closed book exams is very small. With technology, it is simply too easy to be able to use technology when taking closed book exams. In fact, many of her peers have not taken a closed book exam in years, and when presented with having to do so, fail miserably. Yet, they are learning the material in the class and certainly are able to demonstrate what they have learned. There are also ways that open book tests can be configured so that it doesn’t turn into looking up information rather than demonstrating the knowledge a person has.
3. The case does tell us what prima facie case for proving up a §309 claim is.
4. A person with a disability can always make a reasonable accommodation request, but the request has to be a reasonable one, i.e. one that does not result in a fundamental alteration of what is involved.
5. For figuring out what are the essential eligibility requirements of a class or course, I highly recommend looking at this blog entry.
6. 42 U.S.C. §12189 is not just about exams but courses as well. This particular statutory provision is being used successfully to challenge the inaccessibility of web-based CLE providers to individuals with disabilities. For example, web-based CLE providers that do not provide captioning have faced discrimination suits under this provision, which have led to settlements (I was a plaintiff in such a case).
7. The decision is published.
8. §309 while in title III, applies to anyone offering exams related to licensure. So, Title II entities offering exams related to licensure are covered by §309.
9. I disagree with the court that the ability to see is an essential ingredient of what a flight examination measures. I have simply seen too many employers confuse essential functions of the job with major life activities. It is the ability to fly a plane safely that the examination measures not the ability to see. Of course, how you can fly a plane safely without seeing is beyond me, but that doesn’t mean the essential element is sight. The essential element is flying the plane safely and being able to demonstrate that. The analogy that I have often used is that being an umpire does not require the ability to see the game as an essential function, rather it requires the ability to call the game accurately. Of course, you can’t do one without the other, but that does not mean the concepts are the same thing. In short, it is the function that matters and not the tasks.