to the public and no qualifications of any candidate are assessed at the time when someone signs up for a period employment test the  matter has a blanket policy that it will not provide an a s l interpreter for any position for its pre employment test and to speak english and be understood in english and we posit that there has to be an independent assessment just as the e r c interpretive guidance accommodation and the reason for this is because what would happen would be absurd results such as a sensually someone could put in there any position that there is a speaking english and understand english requirements and refuse an a s l interpreter to a candidate for an interview and force them to try to communicate without an s l interpreter and actually test whether they can be understood and understand english through the interview process and if they can't they could ut it wasn't until an ad hoc determination in a deposition where one of the witnesses said that he was not he didn't have the requisite contribute to it but yes the i did not think it was disputed that he is unable to communicate in english and i'm just asking whether in fact you're claiming that he is able to communicate in english  english for very limited well and i think that the record into what the issue is here which is you can't discriminate against a person who's qualified for the job they have a job qualification the ability to communicate in english now then i recognise that section one thousand two hundred and eleven to be seven explains that you can't give tests the focus on a disability rather than a qualification but the question for us may be whether someone who is unable to satisfy the communication in english requirement can complain about  to be seven failure i'm trying to figure out whether your client is agreeing that he can't communicate in english but nevertheless thinks he can sue for  eleven point two b seven failure or whether he's saying he can communicate in english and therefore is qualified for the job and therefore has a right to complain about  williams is able to communicate and so you say he's qualified for the job he's qualified for the job with reasonable accommodation all right i understand your answer i'll deal with it thank you ok can i follow up on the qualification for the the job part of it  understanding that his twenty years as a locksmith different certain capabilities he was responding to a notice of employment for a stock worker assistance dock worker that called for three different categories of background and experience in that realm and you know we don't know what this test actually examined or what might be an adequate equivalent but i trust you to know your position that if he was qualified in insofar as he could communicate in english to gradually was questioning he responded to this notice of a job and the qualifications were very clear say it required just four years of stock experience but he thought well you know maybe there is still a chance that they will interpreter for every aspect of if if the test is open to everybody and they do not look at the qualifications of the people that apply are taking the exam and making the determination as to their qualifications at the time th test is presented then yes they would be entitled to have accommodations for the exam but if they were to look on the qualifications before the exam is administered and says look you clearly don't have the experience here for blind applicants that they will provide readers and braille and other aspects and and so but for some reason they will not provide trippers because they believe that american sign language  pre employment screening or test or interview that's open to everybody without any qualification determination at the time they should be accommodated if they're qualified to take the test and here mr williams no one told mr williams he's not qualified to take the test he in fact took the test and and it wasn't until this litigation where they said oh well making an ad hoc determination  languages and the reason they're in a lot of areas profession is because of their disability and their background growing up immersed in american sign language to accommodate and and that it is the actually employers burden to show that it would be an undue burden to provide the reasonable accommodation that is and they haven't shown that in this case and therefore we believe that we would be entitled to prevail under the new york city i'm right nonetheless there are significant questions the facts recluses summary judgment making his eyeball determination that housekeeping assistant may or may not qualify as relevant experience the question of fact that we need to explore more at a trial because based on their own testimony and depositions themselves there actually is no unequivocal he's not qualified for this position and independently assessed mr williams and his need for an accommodation at the at the testing stage and to determine whether his request for accommodation were reasonable or not or not which  sir it has has held that whether an accommodation is reasonable or not is often a fact laden question and that should preclude summary judgment and so that's why we believe that we should be remanded because  the legal question that if you can you can openly discriminate in the testing and interview process as long as after the lawsuits filed you can make a justification well you weren't qualified anyway for that position so we were justified it would almost create a affirmative defense to someone claiming discrimination at the interview or testing stage to say later on well yes we said you know we know just people need not apply but we're justified because we can later show that you would have met the qualifications anyway and so that's what we're trying to overturn here which is the legal error that we believe that judge freeman made but just schofield in the land of case  that there were significant questions the facts putting summary judgment on the legal issues where she would independently analyze the job application and bus company and i appear for and a bus company happily in this appeal i will address the plaintiff appellant point momentarily but st we would submit that the disability discrimination claim was properly dismissed by the district court because they correctly held that plaintiff could not make out a prime efficient case of disability discrimination because it because it was not qualified for the job position or required element to make out a prime aphasia case under the a the new york state human rights law and the city human rights law the law in this court is clear about a plank of having to show that he or she is qualified for the job at issue and that if the control is controlling precedent here not record the discovery that was just discussed overwhelmingly supports the finding that lincoln's past work experience did not meet the required qualifications and as the judge pointed out the notice of examination clearly and unambiguously list three scenarios where a candidate would qualify for the job and session and that is to have a stock of the stand or stop work or position in either an industrial manufacturing  wholesaling business setting which specifically stocks railroad parts automotive machine aircraft marine production parts and involve plumbing hardware or sheet metal supplies and tools or or two years of that understanding is the record shows that the test was open to anyone of the public who wanted to take it and it was only after that point that the m t a would evaluate whether the person was qualified for the assistant stock work or job we don't have a copy of the test in the record we don't know exactly what that covered and you know if that's the case and there's a rd category allowed for an if someone if someone were to fail the exam someone i'm sorry if someone were to pass someone who was not that someone who didn't request any reason why a combination they would were to pass the test but then after it's assessed that they don't meet the qualifications they were they would not be offered the job they would not need that much i put my point just so if you don't provide an a s l interpreter at the test taking stage don't you risk excluding the dea talking about this individual talking about generally it's the sequence of your process right that that would be qualified that would be a different scenario analysis because that you were talking about a person an presented himself as a deaf person which one could reasonably understand that it is a person who cannot discern the tory messages and he and the record shows that he also said to us when he presented himself that he needed an a s l for people talking and now one of the witnesses friend gave us jennifer garcia told him oh the only oral parts of the exam will be provided in written form and he and mr williams and mit accepted that also the english requirement while it may screen people who language is not english whose native language is not english it was established that it regulation coming from the department of state wide and mr to sort services other wise known as the cast and appellant never disputed that fact and in fact the district court follow the case law saying that if it's a government regulation that screams out a certain population that that is not discriminatory per se and the english requirement was never raised in the  papers like i said it's undisputed that mr williams st language was not english and is but it's also undisputed that m t a bus and dear to that regulation all the jobs that m t a bus as well as the sister agencies have to a dear to be ca of locksmith and housekeeping assistant do not match any of those qualifications that is undisputed that at no time did he work as a stock worker is understood at that he never worked and you know in transportation setting the machine aircraft automotive to to decide in this case while it is correct that the new york city human rights law does its mission is to provide broader protections than under the aviator the state human rights law but as the district court correctly held and we agree with that decision and the th ree law still have in common the element of showing that a natural can or a or a plaintive shows that he or she is qualified for the job in question and while that's one of the differences between the city law and the state and eighty counterparts if that instead of the the employee or the applicant having the burden to show that he or she was qualified it is the employer's burden and here we would submit that we meet that burden again overwhelmingly it's undisputed that even plaintiffs as he understood the qualifications testified that he did not think he was qualified for the position and just wanted to get his foot in the door and ok let me just let me ask judge said that the absence of the word qualified or otherwise qualified in subsection seven of twelve would want to suggest that a different standard is applied for a job applicant is she just wrong  that that is correct and i believe that the standard that she followed was a two prong standard when it comes to examinations one whether the applicant can show that he or she is qualified for the job  that it in other words they can perform the essential functions of the job and the nd prong whether the test in itself was developed and its purpose is to test english literacy or a certain kind of grade  d in that case i don't recall well i recall that at the trial it was found that it though the exam was developed to test english literacy which here is the main purpose of the exam was not that but also there was found that it was found that the freelander was not qualified for the job position i think you have one minute left thank you i hope that answers your question your honor thank you if there aren't any other questions i will continue to address my opponent's issues he mentions that there is an obligation for employers to provide pre employment receive accommodation for the pre employment process and keep us never disputes that and in fact we did place it doesn't mention this but we did offer  the written instructions were which were the only oral parts of the of the exam and plaintiff accepted so as i said he presented itself as not being able to hear quote unquote people talking and we provided a reason accommodation that was different and he accepted also addressing the argument that empty bus has a blanket policy of never providing assistance a s l interpreted that's not just the case the discovery showed that we m t a bus analyzes every reasonable accommodation request on a case by case scenario but the ultimate authority is again the department  breve and finally if there are no remaining questions given given these facts and for the reasons for the reasons just stated we would submit that the district court's decision should be a your honour's will look at the appendix one hundred and thirty seven this is the thirty this is a thirty six deposition of rock robert zander and there's a question is it the position of the cast that you will not test an american sign language we will not test in languages other than english why is that your position because of the requirement i believe from the civil service law that the civil service and its understanding be understood and in english so  decaf level of these kids at these are mistreated requirements that apply across the board to hiring in york city and the agencies don't have much flexibility in how they implement that if i mistaken understanding be that applicants be able to read and speak in english just as i understand and be understood in english and so that he did accomplish with reasonable accommodation for a deaf person and also the language requirement the past multiple choice choice test are very different than the day to day language requirements of assistance dockworker there was another case in which someone sued under the thing provisions to be a static station worker for the city of new york and they still claim that they would not provide a sign language interpreter for sanitation worker an exam and we all you  know and so it doesn't matter what the position is or how much english is required the skills necessary to take the exam as your honor as are different than the every day day to day jobs which is why each one should be independently considered and accommodated accordingly depending on the situation city and right on the guidance all say that you must evaluate this process independently and especially in a case where it's open to everybody because otherwise people are go lee excluded just like mr williams and mr fernando from getting a fair shot just like everybody else to show their knowledge and skills and to be clear there is  testimony in this case that this test is not measuring english literacy which we cite in our brief so there's no there's they can't even argue that well this test is a test  literate in english with you could read and understand english doesn't  assume that the test was problematic in the way you win decay can your client complain about that if he cannot write basic things down like categorizing where certain boxes are you have the ability to do that and has the nothing less ability to do those types of minimal writing but if they were going to do  exactly what the duties of an assistant stock stock worker would be and how much they would require the use of english or you know calling out to people you know moving materials and forklifts and so on i have really i don't know where in the record you're pointing to for that description your understanding about that on the occasionally would be to write down the category of work i did i missed something on the requires an understanding and an ability to be understood in english this is not a class action right or not or even or even an individual's challenge by your client