court has to decide this mcfarland is is blind she's visually impaired but for practical purposes she's blind she applied for a position with the city and county of denver i she wanted to work in a three one one call center and that's a job that would have involved the use of computers so she was invited by the city to come and take a computer skills test that involves three parts a typing test outlook test in terms testing she requested the accommodation of jaws draws a screen reading software that is used by people who are blind and visually impaired essentially reach to them which displayed on the computer screen and provides them with a set of additional keyword commands to navigate through the computer the city responded to ms mcfarlane's request for accommodation by saying that they could give her a human reader for the typing portion of the test and that they would check on the availability of jaws for the other two person test the outlook test of the internet explorer test mr mcfarlane made a number of attempts to follow up with the city before the testing those are work it out that morning there's mcfarlane to committed to house and had the impression that mr doris thought that she's going to be able to see the computer screen and she told mr doris to test proctor again you know i can't see the computer screen so she proceeded to read to her the various questions on all three of the tests the typing the outlook and the internet explorer the problem was that especially on the outlook te over thirty of those questions involve how things look on the computer monitor news macfarland are already told the city twice that she couldn't see the computer monitor so when she navigates through a computer and interacts with considered the basic questions on the test and with regard to the internet explorer test as i understand her testimony she stated that it didn't there was no difference for purposes of the question she me with whether she had jobs where she had her human reader because it was the nature of the questions i was referring to internet five because she was used to internet and not had nothing to do she missed the questions she missed because of the difference between software programs and not because they didn't have jobs that's correct she testified that as to those basic questions on the internet explorer test that she messed up that the human reader was affected to let her know what those questions were and for her to select among the answers and as you say didn't she tell anyone that i'm not informational only she didn't know that only eight of the questions on twenty four on the internet explorer test actually created this hurdle for her to progress in the testing process all she knew is she was given over one hundred questions and over thirty of those involved how things looked on the computer screen and she had been asked over thirty questions about how things look on the computer screen for over an hour before she got to the internet explorer exam so it's almost and i'm not saying the city intended it this way for men but was almost a hazing process it's almost as if the panel today were to ask me a third of the questions that you present were about chinese characters and i don't know chinese or didn't create or hurdle to advance to the next stage of the hiring process but they could be considered so they were an important chinese and the case had nothing to do with chinese there would be no reason for you to ask me questions about chinese characters and if i told you twice you know i don't read chinese and you persisted in asking those at some point your honor out of deference and out of our desire to move the process to hell i might just knuckle down and try to do the best i could and that's essentially what ms mcfarlane did here she has told the city twice i don't see a computer screen i can't see a computer screen yet they persisted in asking her questions about how things looked on the computer screen and she just she did her breast the bigger reader so when he described the screen for they  require her to say this isn't working i'm used to another way of having the screen describe the jaws program works for me or not if you're not the equivalent if you have to say something like well correct and that's right she she told the city when she wrenches testing that she couldn't see the computer screen and on the morning of the testing she said again i can see the computer screen and then the city asked her questions about how she would navigate a computer using a graphical user interface which he never uses and wouldn't have used in the job for which he applied but she didn't stop and say you know what this reader isn't working because i can't that one question first are those questions that were problematic for her were those the ones that were relevant to determine whether she passed the stage the questions were fired on the out question the the questions that were most problematic about what things look like what icons she will click on what red color maps are those were on the outlook tells which was informational was the reader work on the problem was she was already over an hour in the process and stressed and exhausted by the time she got there and then there was a problem with different versions of internet explorer anyway to her well she was not able to have the clues that a visual person might have as to what version they were in she simply assumed that the keyboard command she was used to using in internet explorer would work in this setting she never got any feedback during the test that she was missing these questions she simply wasn't alerted to the virtue issue and again is not being critical i know their budget issues involved but the test was in two thousand and twelve in are going to explore a switch she was used to using a come out in two thousand and nine internet explorer five was being used on the test and it was i don't want to cases that have resolved this interactive process breakdown issue on summary judgment have involved situations where a current employee walked off the job before the  accommodations were were put in place and given a fair trial or situations where an employee failed to provide medical records that were crushed by the employer those are situations where the employer really has honor this is the first case that i've ever encountered or seen reported where the interactive process is grafted onto the most effective manner to ensure fair testing with the grafted on the dis disability rights yes i can tell has nothing to do jobs or reader it's the nature of the question and my question to you is what are the elements of such a claim do you have to show that the employer disability s otherwise it doesn't if there's a way for to evaluate whether a test is most effective process and here the employer to a new employer also has to know what the questions are on the test and this is the only players on test so the employer would have known that banks wouldn't all these questions about the graphical user interface so if the employer knows of the disability and those are the questions on the test and the that's also subject to the requirement of having an interactive process and so they had the opportunity to say no interactive process is not required for the most effective way i apologize i misunderstood your question  at both the standard and of course required to look at the failure to accommodate issue and that there are that those two things are one and one in the same and in fact that would be one of the point that one make which just makes you which is that this whole tortured reading of the test and we have to come up with a whole new legal standard none of that is the case because in fact we have c f r that interpret this statute twenty nine c f r part sixteen thirty its own independent test do you look at it separately from the reasonable accommodation issue the answer to that's not what this is that it adds that you look at that test in conjunction with the reasonable conjunction with a reasonable accommodation you can't just look at it as is it just the most effective way to give a tester so what do we select the best have we also given it such that it shows what her skills are basically running we need to put an applicant in the same standing if you will when you give them the same opportunity that we give someone who doesn't have a disability and that's exactly what we've done here you don't like i don't use i don't believe you look at the seven in a vacuum section sixteen thirty nine this provision requires that employment test be administered to eligible applicants or employees with disabilities that impair sensory manual or speaking skills in format isn't working for me and then the employer would have an obligation to accommodate that's exactly right your honor and that's what should have happened here and did not wait there as i hear their argument if i'm understanding it correctly is that it's not that dation and what i think they're saying is then the burden is you on the employer to look at their tax and make sure that there aren't obvious problems with the task that would trigger a person who can't see i think that's the argument they're making but that argument is not supported anywhere your honor that we have that an employer would have then a new separate duty to go look at the test and figure out what works best for that specific applicant it's an later and so therefore once you know you have why an applicant you need to look at your test and say well this person at the call center is never going to look at the screen so these questions can only be testing her disability that's her go to the to do the job and that's my question maybe that's true she needs to be able to take that to and to be able to use a computer in order to qualify for this job she's got to be able to show that she can meet outlook and that she can use internet explorer that she speaks chinese o c i ok and this is the factual in the outlook questions on the test so in fact it is testing things that she doesn't need to know because if she's blind she's going to be doing this job a different way from the way sighted people are doing that's exactly right i thought what he said was that there are elements of the test on outlook that ask you about the appearance of a screen but if the blind person was working at the call questions relating to the parents of the screen it's in question that a blind person would not have to deal with at the job and which are very difficult for a blind person so you're not setting ability or testing disability there was you were very clear on and i think i think the factual difference between your understanding of the argument my understanding of what he argued is that i believe what he argued is that even if   i'm sorry if i'm not answering your question your honor would so if she were in the calls that she would have to go with the screen look what she would not have a different system for dealing with people calling y yes through the yes and the allegation is that the program would do that for her but yes she would need to know she would need to use outlook and explore just as a sighted person was but she doesn't have  she was answering for explorer eight and you were using it or according to her yes your honor ok yes and the question she missed because she didn't she couldn't see a computer screen were on the one where i'm having a little more trouble about what is required if every time is it that every time someone who says i need an accommodation whether it be that they have a hearing issue or a vision issue or that you look back to section five and the reasonable accommodation portion and i think that's why you read them together that's why the the language of the c f r says you read them together so that if an employer has a  and someone comes in in the missing an arm or a leg or their death their client then can figure out what weasel accommodation will be necessary to ensure that they can best complete that they can complete that you know the three versus what we have here entitled why and so based on that i do believe that you read them together and in fact that's what the ninth circuit that an anchor and he was going to give you a minute if you think mean thing or like to use a sign for his answer really any critter questions that you have but i think there are two points that i would like to respond to one is that the five the seven create separate duties one is a duty reasonably an operator computer if she were hired in the same way a sighted person what she would never have to know about screen colors or she would have to know about fonts of cetera and that's because the job that's because of jaws which not only read screens but it that became apparent when the test result were produced during discovery during the lawsuit so you're telling me that it was not until after the lawsuit was f