Thank you and good afternoon to everybody on this July date. We have many people joining us from across the country and I would like to welcome you, those that are new and those that have been with us before to the regularly scheduled session for July. For the 2002-2003 distance learning series. This is a collaborative and cooperative program with all of the 10 regional disability and business technical assistance centers across the country. On a monthly basis we provide a session for 90 minutes on a variety of topics around the ADA. Here in July we are celebrating the 13th anniversary of the passage of the ADA and the signing on July 26th and as part of that, each year for the past several years we have had an update during this period of time where we have invited representatives from the federal agencies who do the primary enforcement of the ADA to join us and talk to us a little bit about what has been happening and what is going on. Let me first just cover how the format for today''s session will go. To let you know, we do have the session real-time captioned. We are using streaming text on the internet. If you are interested in accessing this mode, you can go online to our website at www.adagreatlakes.org and follow the links for the real-time captioning. This is once you log on you will be connected and be able to follow along using that method. Those of you that are online or not online but would wish to go back to the session after it is over, we will and do have an archive of all of our sessions. We have a text transcript which is posted several days after the session once we edit it as well as a digital recording of the session which you can access using media or real player technologies. Those are on our site. If you have not visited our archives and looked at previous sessions, I welcome you to do that as well as they are all there and available and can be used as reference further down the line. Next month our session for August will be addressing Access to Arts venues. Our speaker is Betty Siegel with the Kennedy center who has been very involved in access to the arts. This year for that session we will be focusing on ticketing policies and different types of accommodations in those venues, so I welcome you. If you want more information on that session, again, please visit our website at www.adagreatlakes.org or contact your local disability and business technical assistance center at 800-949-4232 and they will be able to give you more information. We will be having our speakers address you both-all today and we will be hearing from the Department of Justice as well as the Equal Employment Opportunity Commission. At the conclusion of their remarks, we will then be turning it over to a question and answer period and the operator will be giving you instructions on how you may be able to ask questions. You are also able to send questions to us by e-mail if you wish. You can send those questions at firstname.lastname@example.org and we will introduce those questions at the question and answer period if you don''t have a chance to get in with a voice question. We make every attempt to address all questions as possible. As we start today, I would first begin by introducing John Wodatch, who is the chief of the civil rights division of the U.S. Department of Justice. John has been working with the federal government probably longer than he would like to admit, but it has been since 1969, so anyone who is doing calculations, you might be able to tell how old he might be. He has been specifically with the Department of Justice since 1980, so he has been through many different changes that have taken place and different programs that have been implemented to protect the rights of people with disabilities. He has been working with the disability business technical assistance centers since our existence in 1991 and we worked very effectively with him over that period of time to make sure we had access to correct information for our technical assistance and training efforts across the country and beyond in our territories. And he has been a willing participant in many of our programs and many of you have been with us before with the sessions. Without further ado or any further comments, John, I will turn it over to you and you can begin by letting us all know what has been happening and what is the current status with the ADA and the issues with the Department of Justice.
Thank you very much Robin, thank you for this opportunity to be with people from across the country this afternoon. Good afternoon, everyone. I appreciate the work that the DBTAC''s have done over the history of the ADA in providing good information to people who want to comply and it is a pleasure to be part of it again. What I thought I would do is just sort of hit some of the highlights of things that are going on in Washington with our enforcement of the ADA. Some things I have talked to you about before that are just long-term issues I will sort of update you on. One of the things that is having an impact on us is that we are losing our boss at the end of this week, the head of the civil rights division, Ralph Boyd, is returning to private practice. The president has nominated a person named Alex Acosta to be the new head of the civil rights division. Actually he has his hearing this Friday before the senate judiciary committee. Alex is presently a member-a commissioner with the national labor relations board and was in the civil rights division before, so we expect that there will be continuity in our approach to enforcing the ADA when the period of however long it takes for him to go through the confirmation process. When we have a new boss, there are always some changes in emphasis or policies, so you will just have to keep an eye out for what those may be as time goes on. I guess I will begin by talking about the constitutionality challenges to Title II of the ADA. I have talked to you about this before and I think the message I have tried to leave with people is that there is a lot of activity in the courts on this issue. You just have to watch this for further decisions and further action. It is time to repeat myself so there is a lot of activity. I guess its still watch this space. Until we have a decision by the Supreme Court, there will continue to be a lot of court action. For those of you who are new to this issue, it really stems from a Supreme court decision in the Garett case that applied to Title I of the ADA, the employment provisions of the ADA. That case held Title I unconstitutional in the following sense, a limited sense: an individual with a disability cannot sue a state in private litigation for monetary damages, according to this decision, because states have sovereign immunity under the 11th amendment. The people with disabilities can still sue for injunctive relief against the state if they name a state official and this doesn''t affect state and local governments. A person can still sue local governments. It is only injunctive relief, not money damages. What has been happening is that States in just about every ADA case involving a state government have been raising the same defenses that prevailed in the Garrett case and we have been very involved in this litigation. For those of who may not know, the nation is divided into a series of 12 appellate courts, circuit Courts, and almost all of them have cases dealing with this issue. Five of them have held the ADA, Title II of the ADA unconstitutional in the same sense as the Garrett court did. For those of you, the 4th circuit, the 5th circuit, 7th circuit, 8th circuit and 10th circuits have all held the ADA unconstitutional in that regard. Four other circuit courts have held that the ADA is an appropriate exercise of constitutional authority by congress and thus effectively waived state sovereign immunity to suit by private citizens for money damages. These circuit courts are the 1st and 2nd on the east coast, the 9th on the west coast and the 6th which is in the center of the country. Ohio and other states. But they have done it under slightly different conditions. One of these circuit courts said, all right, the ADA is unconstitutional if what we are talking about is unconstitutional behavior. In that case they were talking about cruel and unusual punishment, which is a constitutional provision in a prison system, and they held that to allow a suit for monetary damages. The 2nd circuit said if the suit involves intentional discrimination, if there was animus involved, then you can have a lawsuit for money damages. And the 6th circuit really looked to the due process clause of the constitution and said if due process is involved, the cases they dealt with, one we will talk about in a minute, lane versus Tennessee, dealt with the inaccessibility of a county Courthouse and there by denying a person due process to the-a wheelchair user access to those Courts, that is covered. The 9th circuit has said that it didn''t have any limiting factor, just said that Title II of the ADA is constitutional. We are still waiting for decisions, continuing decisions in several of these Courts. The 1st, 3rd 4th, 9th and 11th. It continues to be something that occupies a lot of our time. We thought that the Supreme court might decide this case in the last term. They had a case, some of you may have known this, called medical board of California versus heyson. The allegation was the state medical board in California had improperly denied the application for a medical license of a charging party because of his mental illness and he sought damages and to have his license ordered back to him. The 9th circuit held that the ADA was constitutional. The state appealed. Advocates in the state of California put a lot of pressure on the governor, the attorney general and the state medical licensing board and they withdrew their appeal. And so it was off the agenda of the Supreme Court. We had filed a brief in that case. If you are interested in that it is on the department''s website if you want to see what our position has been in some of these cases. Now, the Supreme court just recently granted cert to another case, the case I mentioned from Tennessee. It is called Tennessee versus lane. In that case the 6th circuit upheld the constitutionality of the ADA. There are two plaintiffs involved. One was a wheelchair user who was charged with two misdemeanor offenses and literally had to crawl up on hands and knees two flights of stairs to get to the Courtroom. The other plaintiff is a certified court reporter who alleged that inaccessible Courthouses impaired her ability to practice her profession and serve clients. The 6th circuit agreed that they could proceed under the ADA. The state has appealed. There is a move afoot by disability rights advocates to have Tennessee reverse itself and withdraw the appeal. In the same way that happened in California, but it is likely if it gets to the Supreme court that this will be the deciding case that will determine how the Supreme court rules on this issue. I just want to reassure you that we at the department of justice continue to believe that the ADA is constitutionally appropriate legislation to remedy history of pervasive discrimination against people with disabilities in this country. And Bush administration has been resolute in defending the ADA in every place in the courts where it has been challenged. We believe we have a strong case to make to the court about the constitutionality of Title II. We believe that when congress enacted this law, they gathered extensive evidence of unconstitutional discrimination by states, made specific findings about state sponsored discrimination in areas such as education, voting, public services and institutionalization. But I should point out to you that until recently, just about every case that went up on this issue has lost. The Supreme court really is redefining our federal system of government. Now, the one change in this was the family medical leave act case which is obviously a different statute, raises the same issues. The Supreme court did uphold that as appropriate legislation and that was the first time they had reversed the recent trend. So we have some hope that we can attempt to have Title II prevail in terms of constitutionality, but I guess the bottom line is this is occupying a lot of our time and just watch this space. Another Supreme court action involved a case coming out of the 9th circuit and if you have been reading your newspapers you may have read about it. It is called the city of Sacramento versus Barden. They decided city sidewalks are covered under Title II of the ADA. Not just the curb ramps going from the-to the sidewalk, but the sidewalk, the system of sidewalks itself. The city of Sacramento appealed. A number of cities around the country and the national league of cities and the U.S. conference of mayors joined in supporting Sacramento''s appeal saying that this would cost huge amounts of money, would break the bank, they shouldn''t have to do this. The Supreme Court asked for our views. We told them in a brief that we didn''t think it was appropriate for them to take this case, no. 1, because sidewalks are covered. It is a basic-I mean if a city is providing sidewalks it is a program or activity of the city. That there wasn''t a conflict among circuits so there wasn''t a reason to take the case and if they are concerned about administrative burden that say would be better left to the district courts to figure out on the basis of evidence and in any event there is an undue burdens limitation on the program accessibility requirements of Title II of the ADA. The Supreme court has denied cert so the case is not going to the Supreme Court, which means the holding of the 9th circuit stands. And simultaneously with the appeal being denied, the city of Sacramento and disability rights advocates in California worked out a settlement of that particular case. So for the time being, that case is-that case is gone and I think that issue is really laid to rest. Okay. A couple of other things going on. If you recall, we had a lawsuit that we had brought against sfx entertainment, which is the nation''s largest concert promoter. They have over a hundred concert venues nationwide. They had a policy prohibiting individuals with diabetes from keeping their diabetic supplies and food with them at concerts. And in our view, this forced people who had diabetes and who really required immediate access to their medical equipment and to insulin, really forced to choose between not going to the concert or taking unreasonable health risks. We brought suit and I am pleased to report to you that we have just recently entered into an agreement, which was done in the form of a consent decree that we have filed with the Court. Under this agreement, they will implement a policy that allows guests with diabetes to bring into the concert and keep with them medical supplies, whether it is syringes, insulin, lance sets or other equipment used to measure their glucose level. It also allows people with diabetes to bring food in when it is necessary for them for diabetic purposes. We also added the issue of epi pen. Those people with severe allergies to maybe peanut butter, bee stings, other things and have to have with them at all times an epipen that is covered by this agreement. We also got some damages of $20,000 for a couple of the complainants and an agreement that they will not discriminate in any fashion against people who need to bring in diabetes-related food or medical supplies into a concert. So we were very pleased with the result of that. There are a number of lawsuits we have recently brought. I will just sort of hit the highlights of what they are. They may be interesting to you because we brought them or the issues may be and there is a range of issues that are coming across our desk. In Massachusetts, we sued the state and the trial courts in Bristol County, Massachusetts, because of the continued existence of significant architectural barriers that denied program accessibility to people with disabilities. A series of building buildings, the Courtrooms and offices are located up a flight of stairs in a building with no elevators, no ramps. The state nor the county has done nothing since the ADA was enacted 13 years ago to take any structural changes or even to provide alternative accessible ways to have the courts be accessible. In Brooklyn, New York, we recently sued a hospital called parkway hospital for refusing to supply qualified sign language interpreters to a patient and the patient''s family. And for making the family serve as interpreters. We continue to get a lot of complaints of this nature. In Tennessee we recently sued a private provider of fixed route transportation called the Betty bus shuttle company. It operates between Memphis and Little Rock airport. We sued them because of their failure to provide wheelchair accessible vans. The company has purchased at least six large vans, 16 or more passenger vans since 1990 and none of them are lift equipped. Also while I am dealing with Tennessee, in Memphis we have sued the owner and operator of a series of 50 McDonald''s restaurants for failure to remove existing barriers, which included the lack of proper curb ramps, accessible entrances and accessible parking spaces. We get a lot of complaints against a variety of entities in terms of barriers. It tends to fall in this category. Usually our cases settle before we get to file a lawsuit. In this case it did not. In Arizona, we intervened in a case against a sports medicine practice in the phoenix area that refused to provide medical services, including orthopedic surgery, to someone who had identified as HIV positive. Another area we get complaints on. In Camden, New Jersey, we recently sued the owner of a large restaurant because of the failure to remove architectural barriers in its parking lot and restrooms. So that is sort of a look at the recent litigation we have been bringing. To switch topics a little bit, one of our responsibilities also is to certify state and local building codes when someone comes to us and asks us to look at that to see if their code meets or exceeds the ADA''s accessibility requirements. We encourage states to do this because it would allow builders, designers and others in the state to know that if they are actually following their local code or state code, whatever has been viewed by us as being equivalent to the ADA, that they can follow that and know they are compliant with the ADA. There are four states right now that have certification. They are Washington, Texas, Maine and Florida. Just this past month we have notified the state of Maryland of our decision, our preliminary decision that their code meets or exceeds the new construction and alterations requirements for Title III. What happens next is we will hold public hearings and have public comment in the state of Maryland and after examining the comment proceed to, if all goes well, proceed to have Maryland join these other states as having a code that is certified. We are also-we also have requests, just so you know, from California, Indiana, New Jersey and north Carolina that are under review here and we are attempting to encourage other states to join in. And have their codes certified. On yet another topic, one of our obligations is to provide information and technical assistance to entities so that they can comply voluntarily with the ADA. If you are not familiar with our website, which is www.ada.gov, I lot of-all of our materials are there. You can also get a CD-ROM from us free of charge with them on it. We have a new document that I want to call your attention to called accessibility of state and local government websites. If you are a state or local government out there and you have a website that you use to provide information or services to people with disabilities, it provides practical guidance and tips on how to make the website accessible so people with disabilities will be able to use it. I want to leave some time for questions and answers, but let me just give you a couple-we spend a lot of our time getting complaints and entering into really voluntary agreements with entities. I just want to give you an idea of some of the issues that are raised in them. If you are interested in these, when we are done with them, the settlement agreements are often put up on our website and you can go to them to see what is being done by these entities. A county sheriff office in Ohio refused to provide a sign language interpreter for adult education and other courses that were being provided in the prison system there. It is a violation obviously and they entered into an agreement to provide qualified interpreters and other appropriate auxiliary aids. We get a lot of complaints since we are the department of justice about police departments, sign language interpreters with police departments, barriers in jails. The Cheatham county jail in Ashland, Tennessee, is an example. We had a complaint from a wheelchair user that was in jail that it was not accessible. After our review and agreement, they agreed to provide accessible parking, handrails for the entrance ramp, accessible public toilet rooms, accessible drinking fountain and accessible inmates cell and shower. Inmate telephones mounted at accessible height, text telephones for inmates who are deaf or hard of hearing. This is a fairly typical kind of agreement that we have. If I saw any trend in the kinds of complaints we are getting, we are getting a lot of service complaints which I have to admit, surprises me because I thought even 13 years ago we wouldn''t be dealing much with that issue. But we do tend to get a lot of them. But sometimes they are a little different. I will give you an example. We had one from a hotel. A person used a service animal for hearing and balance and person was offered a smoking room because the hotel''s policy barred animals from the non-smoking rooms. Well, this denied a person with a disability the same range of choice without really any reason that is defendable under the ADA so they have changed their policy and agreed to accommodate the guests with the disability and provide some compensatory damages. Cab companies, we get a lot of complaints about. We had one, an individual who is deaf and had a service animal and was denied taxi service because the animal didn''t have a blaze orange leash or collar. We educated the company that, you know, although many animals do have some kind of identification, there is no requirement that they be identified or certified in a particular manner. They just have to be trained to provide individual services, so that was a violation that has been rectified. And one another-complaint was providing an additional fee to transport a service animal. That was a violation because you can''t have a surcharge. I will give you one more before we turn this over. Just to show you that there are a lot of different issues. We had a complaint against a military institute, a private military high school for boys. A student had to withdraw because of severe food allergies and asthma. They would not permit the use of the student to self medicate or do self medication when appropriate through the use of an epipen. They have changed that policy. We had a lot of issues with day care. Changed that policy, established a training program for its staff on ADA and procedures to be followed in the event that they are dealing with students with severe allergies and paid $5,000 in damages to the complainant. Let me close by saying that we remain very committed to implementing the ADA fully. That president Bush has made clear to us that his new freedom initiative, which is his statement of disability policy to the government, includes a statement that we should vigorously implement the ADA. We do that across the board, whether we are talking about investigating complaints, certifying state codes, providing information so that people will comply voluntarily. As the ADA turns 13, we are still confronted with a variety of complaints. Unfortunately more complaints than we can handle. We are working very diligently to try and educate people about the ADA and work toward the goal of having the lofty goals of the ADA become a reality for everyone across the country. With that, I will turn that back to you, Robin.
Well, thank you, John. Per usual, you are a wealth of information and I know it is kind of like the energizer bunny, once we wind you up, you could keep on going and going and going, but we will change or switch gears a little bit here. I will introduce to the phone for everyone our next speaker. We are very pleased to have with us today, Sharon Rennert. Sharon may be known to many of you, at least by name and you may have heard her sessions or reviewed some of the transcripts of the sessions that she is done with us in the past. She has been a staunch supporter of our efforts to try to get information out to the public both through these programs as well as conferences and such. Sharon is a senior attorney and she is currently serving as acting head of the ADA division of the equal employment opportunity commission. She is going to join us today in speaking to us a little bit about what has happening within EEOC and Sharon has many, many, many years also of experience within federal government and with the equal employment opportunity commission and I am sure she would cringe if we actually talked about how many years that might be, but I know that I have worked with Sharon as part of the DBTAC, the disability and business technical assistance center relationship since 1991. I know that she has been involved even before that so she has a long history and is very actively involved in these issues. Sharon, I will turn over the phone to you at this point so that you can address the participants.
Thank you, Robin. Hello to everyone out there. I am going to take it-all I will say, Robin, about how long I have been doing this is it is not as long as John. But still quite a while. I guess I am going to agree with John about I think I am going to be repeating myself to many of you who have participated in these audio conferences in the past. In the sense that in the employment arena, a lot of what we are dealing with during the past year and I think for the next few years to come are not necessarily going to be new issues. A lot of what we are dealing with, some of these things for better, for worse, are issues we have been dealing with ever since the ADA went into effect or issues that have been percolating through the courts and that we need to keep revisiting. And while that sometimes feels a bit discouraging, I also think that because we are dealing with some of these very fundamental issues, the definition of disability, what it means to be qualified to provide reasonable accommodation to applicants and employees, the more knowledge we all gain, the more comfort we have with these concepts, what they mean. Even though they are being challenged and questioned at times, nonetheless that certainly amongst employers that I talked to across this country, with each passing year more comfort about this, more sort of knowledge about at least some of the fundamentals and more kind of understanding of the role that they have to play in terms of ensuring the rights of people with disabilities in the work force. In terms of the court system like John starting with the top Court, the Supreme Court, after the previous year where we had three major ADA employment cases, it is almost a relief that we didn''t have quite that same level of activity because that really is pretty overwhelming. So it have gives EEOC an opportunity and the lower courts an opportunity to kind of digest what the Supreme court has pronounced. I think that it is not unusual that there becomes a lot of activity around testing what the Supreme court said. The three major cases from a year ago, the Chevron case dealing with direct threats itself, Toyota versus Williams dealing with the definition of disabilities specifically about being substantially limited in performing manual activities and then the U.S. Air versus Barnett case about reassignment when there is a seniority system that would conflict with making the reassignment. The lower courts have really started in the past year to look at those decisions and to apply them and to make sort of further interpretations based on them. I think of the three cases, the one that has received the most judicial attention has been the Toyota case, the definition of disability case. And I think that definition of disability still continues to be a much-debated issue. I think it comes up more in the employment arena than in some of the areas that John was discussing. This tends to be an area where employers, if there is going to be a case, be it before the EEOC or in the Courts, the first issue that is going to be raised is whether the individual meets the definition of disability before we ever get to the merits of the case as to whether there was discrimination. So a lot of focus is right there. And I think the Williams case, the sort of bad news in a way, is that a lot of courts are taking that decision which really focused just on one major life activity, performing manual task, and kind of expanding the concepts that the Supreme court discussed in one context, performing manual tasks, and trying to be extend it to other major life activities. EEOC has been very active either directly in cases that we are bringing or in filing amicus briefs, friend of the court briefs where we are not directly representing a party, but we want to put our opinions before the court about what we think the Supreme court was focused on and to really keep that as narrowly focused as we can. So a lot of activity both in the courts and at EEOC have really focused on really limiting how that definition of disability is being applied. I think that we haven''t seen quite as much activity in terms of the direct threat to self case, the reassignment case in the sense of the courts doing a lot of interpretation there, but I think that is yet to come. I think it is inevitable. So we are sort of, you know, looking back, looking forward. Many of you may know the Supreme court has indicated it will be taking-it has taken an employment case for the next term, which will begin in October. This case involves Raytheon versus Hernandez and it comes out of California, out of the 9th circuit. That is a very popular circuit for the Supreme court to take its cases. That case dealt with someone who was illegally using drugs. There is no dispute about that. And the employer fired him on the basis of his illegal use of drugs. And about two years, I believe, after the termination this individual reapplied to the employer, wanted to be rehired and the employer''s claim was that, well, because we fired you for cause, for misconduct, in this case the misconduct being coming into the workplace under the influence of illegal drugs, we aren''t going to rehire you. We do not hire-rehire people who were fired for misconduct. That is the subject of the lawsuit that Mr. Hernandez brought. He wasn''t challenging his termination, but saying that the company could not hold it against him, in effect it was holding his disability against him when it refused to consider for him-to consider him for rehire. The company said we are not holding Mr. Hernandez to any standard different than we hold any other employee fired for misconduct. Someone who stole from us, somebody with very poor performance, whatever it may be that they define as misconduct, all those people would be refused rehire, and so too Mr. Hernandez. The Supreme court has taken this case and the government has submitted a brief on behalf of the company, the employer, Raytheon. And the government is really asking the Supreme court to keep a very narrow focus on this case, really looking at the specific issues that nobody challenging Raytheon''s right to have terminated him originally, that really it is an extension of the original discipline. That the discipline, if you will, is sort of two prongs. The first prong was being fired. The second prong is permanent ineligibility for rehire. So the government''s position in this case is to keep a very narrow view of what the legal issues are here. So we are all going to have to wait and see what the court does with that and whether this will be the only ADA employment case next term or whether the courts will be taking any others. In terms of EEOCs activities in the Courts, we have continued to do what we have tried to do almost from the beginning and that is to try to take different kinds of cases, addressing different kinds of issues. So that we have cases involving all kinds of disabilities. We really try to have both physical and mental disabilities. I think the mental disabilities continue to be very challenging inasmuch as really collecting the kind of evidence that would support a finding of disability. With the mental disabilities, many times it is a bit more nebulous trying to say, well, what is a major life activity and what evidence shows that a person is substantially limited. To a certain extent it can be considered a little easier or a little more clear sometimes in the physical disability arena to deal with something like walking and sitting and standing, et cetera. But when you get into thinking and concentration and interacting with other people, courts have great difficulty in getting a handle on that and in having a great difficulty are very much inclined to end up ruling there is no disability. So these are cases that we especially sort of keep an eye out for and see if we can''t help to develop as strong a case as possible to show just how substantially limiting certain mental disabilities are. Reasonable accommodation continues to be a huge, huge issue. All kinds of issues get raised with reasonable accommodation. Was there a request, obviously the nature of the reasonable accommodation, in what ways that will assist the person, the varieties of reasonable accommodation. I found John''s comment interesting about service animals because we have noted an increase in inquiry, not necessarily complaints coming in, but certainly in terms of questions coming in to us involving service animals. So I don''t know if something has been going on the last year or two, but a lot of it coming in. A lot of times these questions involve co-workers who may have allergies, say, to service animals. And if it is a confined space and you really can''t move somebody, you know, what happens when there is allergies. A lot of it does go, as John was talking about, to issues around sort of verifying that this truly is a service animal. Certainly we have got a lot of employer education, people tend to think of service animals primarily or solely are for people who are blind or have visual disabilities. In terms of the range of assistance that service animals can provide. But many employers are not familiar with that. Frankly those of us at EEOC sometimes are not familiar either. Sometimes we get questions where it is not clear that this is especially-a specially trained animal as opposed to a pet. Sometimes even we had questions about the breed of dogs used as service animals came up after somebody claimed-it was a woman who was deaf, she needed not one, but two rottweilers for her service animals. And EEOC does what we train employers to do. We don''t make decisions off the top of our head. We called various training organizations, organizations that train service animals, to inquire about whether rottweilers would be used and whether there would be one or two. And just so you know, we were told, no, rottweilers are not used. They do not have apparently the right personality profile and it is self-defeating to have two service animals we were told. You would only have one. But again, we go through the same process we encourage everybody else to. So certainly as an example as a form of reasonable accommodation, we have had a lot of inquiries over the past year there, but the whole range of accommodation. Modifying workplace policies continues to be a focus for us because that continues to be one of the least understood forms of accommodation. Employers are very reluctant to make exceptions to their policies. In other contexts, other civil rights contexts then that they are supposed to even-handedly apply their policies, so there is something that sort of goes against the grain for them to be told that, no, you have to potentially make an exception. So we get into a lot of issues around that. In talking about litigation, one of the things I wanted to raise is recent American bar association study that came out that I know many of you will be familiar with. The ADA over the past several years has issued an annual study looking at the ADA decisions coming out of the Courts. As you may well be aware, really from the beginning what this study was showing has been the employers overwhelmingly were winning the cases, the employment cases in the Courts. And their most recent study does nothing to change that. The statistics, I think, were that employers prevailed 94% of the time in the Courts. In terms of the EEOC administrative process, employers prevailed 78% of the time. That has pretty much held steady through the several years that the ADA has been conducting this study. And that causes a lot of concern and frustration, I know, for people with disabilities and for groups that represent people with disabilities. I think a lot of employers sometimes come away with this with maybe a false sense of security. One of the things that I think is important to note about this study is how they are defining what it means to win. For an employer to win in the courts means that either they get a decision on the merits of the case or they win because the case is dismissed under something called summary judgment, meaning that there is no trial, that a judge signs-finds that the facts are not in dispute and that the law is so clear, the judge without a trial can make a ruling. And if the employer succeeds in getting the case dismissed under summary judgment, that is a win. For the individual with the disability, however, if the employer-the Courts, excuse me, says, no, we need a trial. I am not going to dismiss this case through summary judgment, either because the judge finds there is a factual dispute, the law is not clear, so we need to go ahead to trial. That is not considered a win for the individual with a disability. That is in essence a nothing according to the ADA. A win for the individual has to be a decision on the merits. Well, I think that becomes a little distorting then about what is really happening in the courts because when a court is refusing to dismiss a case and saying we have to go to trial, I read many of those summary judgment decisions and those can be really huge victories for the specific person with the disability, but for people with disabilities in general. What courts are saying about, no, the evidence here that is showing that there is a disability or there is enough evidence that we really need a trial to decide once and for all if it is a disability or whether the person is qualified or reasonable accommodation issues or direct threat issues, what have you. There is a lot in there that is very supportive to the person with the disability and in point of fact, a lot of times what happens at that moment where the court is refusing to dismiss a case is that it settles, that there will never be a trial. That a lot of employers sort of seeing the handwriting on the wall say, no, we will go ahead and we will settle the case now. So this is a case that is not ever going to get picked up in the ADA study as a win for the person. And I think in that sense it is distorted, both in terms of what really can be a victory for the individual but also a victory for people with disabilities in general. As I say, there can be very important judicial pronouncements that come out of a Court''s refusal to dismiss a case and these pronouncements are read by lawyers, both lawyers who may represent people with disabilities in the future, it gives them a lot of guidance, what kind of evidence they need to gather to have a successful case. Employers use it in ways to try and avoid having problems. Getting a better feel for what is it an employer has to do with the workplace so that it is not discriminating. So these are subtle ripple effects, I think, but nonetheless I think they are important. So I think you have to bear that in mind when we hear about these kinds of studies and how they are defining wins and losses because there is still no question employers are succeeding in the majority of cases, but I am not sure that 94% figure is giving an accurate picture of what is going on out there in the world. Very quickly, because I want to get to your questions in terms of just making sure that all of you know about a couple of documents from EEOC, earlier this year we issued guidance on telework, telecommuting as a form of reasonable accommodation. This continues to be an area of focus. The courts are paying more attention. Unfortunately, most cases that the courts have looked at have ruled in the particular situation that they don''t find telework to be a reasonable accommodation for the person. But that is one of the reasons EEOC thought we ought to put out guidance just devoted to telework, that it is confirming the position that we do think it is a form of reasonable accommodation. We sort of walk through some of the steps of what the interactive process should look like when telework is the accommodation being explored, what kinds of issues need to be discussed in terms of getting work done, how work will be transmitted back to the main office, oversight, evaluating, monitoring a worker, the supervision kinds of issues, so you want to make sure that you have seen that. And the other thing is that we revised our guidance on reasonable accommodation to address the Supreme court decision I mentioned earlier. Most of our guidance on reasonable accommodation remains unchanged from the way it was initially published in 1999, but if you haven''t seen the revised version which was published last October, then you definitely want to go on our website and make sure that is what you are using. Our website is simply www.eeoc.gov. You can find both the telework fact sheet and the revisions to the reasonable accommodation guidance. With that, Robin, why don''t I turn it back to you so you can turn it over to all the participants.
Great. Thank you very much, Sharon. Again, you have given a very thorough recap of what has been happening and what is going on. So at this time we will ask Paula to come back and give instructions to callers about how they might be able to ask a question of either Sharon or David-I mean, I am sorry, of John. We would just ask that you indicate when you come online who you would like to direct your question to. So why don''t we go ahead. Go ahead, Kevin.
Hi. I have two quick questions. One each for Sharon and-or John and Sharon respectively. Can you hear me?
Sure. Go ahead.
Okay, thank you. John, my question to you is you alluded to a document, regulations over websites of Title II agencies that are covered under Title II. I''d like to know if that is available on your new CD-ROM and if so how can I get one of your new CD-ROMs. For Sharon, I was wondering has EEOC participated in or heard about a company I believe it was Polaroid dismissing several of its employees with disabilities because of the high cost of their health care coverage?
I will take the easy part of that question.
I thought you would.
We did that TA document after we updated our CD-ROM, so the only way you can get that document is from our website. Or we can send it out to you if you want if you just call our information line, we will be happy to send it to you. It is www.ada.gov.
Okay. Can I order your CD-ROM the same way, sir?
You sure can.
Okay, thank you, John.
Just as a follow-up to that, also the DBTACs have these documents as well as copies of the CD-ROM that they can make available to you so you can also contact them as well.
In terms of my portion of the question, EEOC by status cannot talk about the cases that are filed for administrative process. There is sort of a right to privacy, so to speak, so in terms of whether we have got specific cases, I can''t talk about that. But what I can say is that certainly EEOC monitors if there are general stories, articles about practices about particular companies. One thing that EEOC can do is that if nobody comes to us or someone has not yet come to us to file a charge, a complaint of discrimination, commissioners can initiate a charge, but we have to have that before we can go in to do an investigation. So if we start gathering sufficient information that something is suspect and, therefore, warrants a commissioner to file a charge so we can do an investigation, that is another way that we can begin to find out what is going on.
Just as a follow-up on that, many people may be familiar of this particular case with Polaroid has been going on, been talked about quite a bit. Many of the disability list serves because of an article that and yesterday on the 14th in the wall street journal titled firms fire disabled workers to save health care costs and that article has got many different references and things to it. Individuals who might want more information because there is many different studies and things that have been done in relation to that, there is an article that appears on accessible society''s website and that website is www.accessiblesociety.org. You can read that article which will refer you to the various studies and things that have looked at this issue of employers and things firing or getting rid of employees with disabilities or on long-term care and things of that nature. So there is a lot right now being said about this particular issue in the press and that is where I think a lot of the questions may be coming from.
Next question, please.
This question-well, two of them for John Wodatch. One is we are about to adopt the 2003 international building code. I am finding parts of chapter 11 and appendix E in that that I think are in some ways more stringent than what justice has approved for ADA. I am wondering when they will approve those other parts. The second question is we recently had a little dispute in pueblo that the Department of Justice is looking at. Is that under agreement or disagreement or do you happen to know?
Okay. On the first issue, it is true that the 2003 issue of the building code has gone further than where the ADA standards for accessible design, which is our standard for what makes a new building accessible or what you are required to do when you are doing alteration. We have been working together with the access board to change our regulations to update them, so our standards will be in concert with the board''s and we hope in concert with the private standards as they are being developed. You asked me the hardest question I can be asked on this, which is when are you going to do it. All I can say is we are actively working on it with the access board and with other federal agencies. What we face right now in the regulatory process is a very large series of hoops that we have to go through, including doing a regulatory impact analysis, which is an analysis of the costs of each of the changes and trying to analyze them. We are in the process of doing that. I would certainly hope that within the next year we would be out on the street with amended regulations. We will go through a process, though, of putting them up for comment and also-and so getting comment before they become final. We are also likely to ask some-to go beyond just what the board has done and ask some questions about some of the sort of difficult ADA issues that have come up over the past several years and that may call out for either changes to our existing regulations or new regulations. That is sort of-I can''t give you a real date. Every date I have even given myself has proven to be wrong, but I certainly hope by next year we will be able to do that. On the pueblo, Colorado, issue, I don''t think I am able to answer that because I don''t believe it is concluded. And so all I can say is that we are working on it.
That is fine.
Thank you. We have-before we go to the next question, we have an online question, John, which I will pose to you. An individual asking you to comment on acceptable policies, practices and procedures for ticketing and access to public events such as collegiate sports. Let go go through the question. So, for example, can venues ask for documentation of disability before making an accommodation, especially with regard to hidden disabilities.
I never say that but I have a feeling it is going to be harder after this.
How many seats should be for companion seating. Can venues require reasonable notice from an individual in order to make an accommodation? And, for example, in some venues they may be altered to become accessible seating but may take a day or more to install such seating. Or depending on the area of the country it may take several days to locate a sign language interpreter who is available and willing to travel to the event. Advance notice is needed in order to provide accommodations. And then are venues required to hold accessible seats up to the time of an event or can they be released for sale to the general public in advance of an event or as other held tickets would be. They gave, for an example, some general seating may be held from sale in order to accommodate requests for season tickets but those tickets are released for sale as individual tickets shortly before an event like after a certain date. Can the tickets be held back from general sale in order to accommodate individuals with disabilities and what would be guidance, three days, 24 hours, etc.,
When I said we were going to ask questions in a regulation, a lot of them involve ticketing policy because we have a lot of complaints about that. We have said some things and there are a variety of problems. There is no one-what makes this hard is there is no one answer for every kind of venue because different-I mean a college may have different ticketing policies from ticketmaster, from a major league sporting team. However, there are certain things that hold true across the board. Certainly you cannot ask for identification as a person with a disability for someone seeking an accessible seat. You can say these seats are for people with disabilities, are you a person with a disability. If they say yes, that ends the inquiry. The companion seating, the regulation requires that you have a fixed companion seat for every wheelchair seat but that does not mean that you are limited to selling one for one. For example, you have to remember that the roots of the ADA, it is an equal opportunity statute. So if you have a family of four that is coming to your event and they want to sit together and you would sell them four tickets. So if you have a family of four and, say, the father is in a wheelchair, it doesn''t mean that the father and one child have to sit in one section and mother and another child have to sit in another. We have never said that in regulatory form. I assume we will in the future. I think it makes common sense. The difficulty becomes with, say, my office goes out and there are two wheelchair users and 25 others. Does that mean you use up all of the wheelchair seating? Our answer to that would be no, because obviously you want to save the wheelchair seating for people who need to do it. I would certainly recommend as a policy that you allow up to three or four companion seats for every wheelchair seat that you would sell. I sigh that-say that seeing the studies that have been done that most wheelchair seating is not used and so it should not have a deleterious effect on other wheelchair users who may be seeking seating. With all these things I would urge caution and try to have a policy that fits the needs of the community you are serving. You asked about reasonable notice. Certainly for things like sign language interpreters, reasonable notice is going to be there. You can''t produce that kind of accommodation instantly. What a lot of theaters will do, will identify certain performances that are going to be sign language interpreted. I know in the Washington, D.C. area, most of the theaters here will pick a performance or a series of performances that are going to be captioned or have a sign language interpreter. If you go through that route, I would suggest working with your local community, with deaf groups in your community so that they are aware of which performances they are and so the choice of that makes sense and will bring out new customers for you. However, for accessible seating, you should-having advance notice for accessible seating is a little more problematic because it should be there. The requirement is that you have available accessible seating and it shouldn''t be something that takes days to provide. And finally, whether you can hold tickets, in the cases we have done, we have said if you are not selling out, then the seats you sell last will be your accessible seats in each price range. So that a person coming up, a wheelchair user coming up an hour before the baseball game or the performance will have the same opportunity to buy a seat as anyone else. It is the same policy we have for hotels, that the rooms that they rent last are the accessible rooms unless they are renting them to someone who needs them. Now if it is an event where you sellout, we suggest holding back for a period of days, three days, seven days, whatever fits, depending upon the nature of the sellout some of the accessible seats as well to take care of a number of problems, some of which may be secondary market resale if that is allowed for the tickets. I think you can see ticketing policy can be a fairly complicated thing, but it is-I hope some of that sounds like common sense in terms of trying to give people with disabilities an equal opportunity to participate in whatever events you are showing as well as in terms of not having to reveal very personal information about themselves just to go to a play or a sporting event.
Just as a follow-up to that action John, this particular question was asked in the context of a collegiate sport so it is a little different than a performance where you may have multiple performances, but let us say you have a football game or basketball game or hockey or whatever your sport may be. The issue of advance notice like for an interpreter obviously that is-you are only going to play the University of Villanova once so you are going to do advance notice per session because it is not like the performance where you may have 25 performances scheduled.
You also have to determine whether you need to have a sign language interpreter. There may be other ways to provide-I mean at a football game, if you are having an interpreter for the announcements on the loudspeaker, there are often ways to provide that information that are less costly.
Like the captioning?
Captioning is one or having the scoreboard provide all the information that the announcer provides. There are ways of doing that because the ADA obligation is to provide effective communication.
So the communication is being provided to the public, just making sure that it is effective.
It is effective for the person deaf or hard of hearing. Now it is a play or a lecture or something where there is a lot of content, it may be the sign language interpreter is the only viable alternative.
Thank you very much. That was kind of a loaded question there. Let us go back and get some questions from our participants online-I mean on the telephone. Go ahead.
Hi. We wanted to know if the EEOC has any-I guess what it might call promising practices of a reasonable accommodation policy and/or procedure that an employer could use? And I am not necessarily referring to the guidelines, the EEOC guidelines, but maybe a policy or procedure that it would offer as a good guide?
This is a question that we have been asked a lot and it is one that we have been very cautious about trying to say here is an exemplary procedure for providing reasonable accommodation. The reason for our hesitancy is because there are so many elements to it and so many different ways that you could achieve it. It is pretty hard to say, well, here is something that we would consider successful or best practice. The closest we came is when EEOC itself drafted its own internal reasonable accommodation procedures. This was something that all federal agencies were required to do to have written procedures on how they would handle requests for reasonable accommodation. I know there are still some federal agencies that have not gotten around to it but EEOC was one of the very first. We were a leader here. And we did put online our reasonable accommodation procedures. Not to say that it is the only way, even the best way, but it certainly was one way. And I think it was fairly comprehensive. You know, we tried to really use our own experience, think about the various things that come up, you know, specifying who should be getting requests. Suppose somebody is on vacation or otherwise away, what happens. Time lines very critical, time lines so these things are not just sitting there. Who should be making certain decisions, especially around the issue of disability? Do you want your front line managers and supervisors? So that is the only thing I really can refer you to is EEOC''s own internal reasonable accommodation procedures. Now, recently somebody contacted me and -said EEOC had taken it off its website so I don''t want to send you on a wild goose chase. What I''d like to do with Robin''s permission is make sure they are up there and maybe use Robin as the conduit that she could put an announcement up about how you can find EEOC''s procedures.
We can put those up with the transcript of this document of this conference call. We can link them to all the documents that you have referred to today.
Okay. Then I will make sure, Robin, to get that to you.
Go ahead, Marsha.
Hello. We are calling you from Cincinnati with a question from Tom Frike. Can you hear me okay?
Sure, go ahead.
This involves private religious institutions that are either remodeling or doing new construction. Mr. Fricke wants to know if people have to adhere to a local building code or are they exempt from local codes just as there is some exemption in the ada? We are talking about churches, et cetera.
I understand. You are going to love this answer. The real answer is it depends. They certainly have no ada obligation to make themselves accessible. There are localities that apply, their local building codes to churches and other religious organizations and they do that-and they may not even do it across the board, they may do it for certain safety features, and so churches aren''t necessarily just exempt from their local building codes, but you''d have to look at your local building code and see if it all applies to them or just applies piecemeal.
Thank you very much.
And just as a follow-up to that, we are aware that the Ohio building code does apply to religious entities for alterations and new construction. I do not know, though, very specifically about whether the local Cincinnati code would.
We are talking about northern Kentucky also.
Okay. I am not sure, but for Kentucky you could contact the disability business technical assistance center that area may be able to give you additional information about Kentucky. But I know for a fact that Ohio''s does, the state building code does.
Okay, next question, please.
Yes. Here in Urbana, Illinois, we are having a problem with the city sidewalks. We went to the local city council meeting and unfortunately we were defeated there. They want to put brick down or reinstall brick sidewalks. Where do we go next please.
Well, I tell you I live in a city and a neighborhood where they took out all of our sidewalks and put in brick sidewalks so I am not perhaps the most powerful person to address this issue. I can tell you that the ADA standards at this point do not-either ours or the board''s apply specifically to this situation. The requirement is it has to be stable, firm and slip resistant. I think we all know the difficulty that bricks provide. I live on capitol hill and at one point the mayor wanted to make it look quaint so we all have brick sidewalks. And they have become a nuisance for many people. But there is no law involved with the ADA-at the ADA-at the federal level that would say that that is a violation at this point. So the case you are going to have to make is either coming out of a local law or to try to make the case that there are other surfaces that can still provide a good look and will be-will not have the maintenance problems and provide the accessibility problems as well as other problems that bricks do. But you are not going to find any help in the federal law on that issue.
Okay. What about just a follow-up quick question. What about the fact that is it up to the homeowner to maintain, such as removing weeds.
Removing excessive growth, et cetera?
This is again a matter of local law. We did a lot of research on this actually about snow and who is whose responsibility it was to remove snow, especially from curb ramps. There are a surprising number of jurisdictions that will say that it is the obligation of the homeowner to clear the sidewalk and to clear the curb ramps. Where they don''t do that it is certainly the city''s obligation to do that within-you know, within certain reasonable bounds, but it is a city obligation in terms of maintenance of accessible features. In some locations, the city has put that obligation on the homeowners.
Okay. Thank you.
Hi. I had a question about, I notice a lot of restaurants, they always have the cut-outs for a person in a wheelchair to get up to the door but they never really have the automatic door buttons on the door. Lots of times that causes a problem for me especially because I use a power wheelchair and I have very short a.m. and I am not able to pull the doors open. I was just wondering, you know, is there any way I could try to make it to where more of the local restaurants would put handicapped accessible door buttons on.
The ADA standards do not require accessible door buttons, and so it is not a violation of the law for them not to have them. I think at the time we did those standards back in 1990, they were very expensive and weren''t there and they weren''t as common and easy to do as they are now. They are still not required, although a lot of people have them. Some local jurisdictions even require them for certain types of facilities. I think all you can do is try to make the pitch to your local government or to the local restaurants themselves in terms of what they gained because they gained-you know, those kinds of push buttons have a mush wider use than-I mean it is significant for you and maybe makes a big difference whether you can independently access their facility, but it is a help to many other people as well. I think we are also looking at, at the federal level, whether we should be changing that standard and requiring them for at least certain types of facilities.
Just for clarification, when you were talking about accessible buttons you are talking about an electric door?
Just so we are clear on that. Okay, next question, please.
Yes, I was wondering if there is a plan by the EEOC to develop a form similar to the one with the Department of Labor, the certification of health care provider. It would really be helpful, especially to avoid preparing correspondence addressed to health care providers to designate a condition as a disability affecting a major life activity.
There are no plans to do this for the reason that when we have seen many forms that have been developed, we are very concerned that they can be overly inclusive and under inclusive. In other words, that oftentimes when it is a form what ends up happening is by rote people will just ask every question, many of which are irrelevant in a given circumstance. Often it includes questions that would be illegal. While it may be lawful to find out if it is a disability, these are questions that are not going to the definition of a disability as defined by the ADA or that are not addressing the specific issues that are coming up. Oftentimes questions that ought to be there are not there. So EEOC has looked into this and has tried to see, you know, what we could potentially come up with, but has always ended up at the point to say in a way we find them more dangerous than helpful because, as I said, it is our experience that these become almost like a cookie cutter. And for better, for worse, the definition of disability under ADA doesn''t really allow for that cookie cutter approach. We would all like that. It really doesn''t work. The best we have been able to offer people is sort of broad guidelines taken from, you know, various guidance''s we have done about what issues are relevant in a particular circumstance. Obviously that requires some knowledge of the ada to know what would be relevant, what would not be. And that is more work. We appreciate that that is true. But we have had employers where we have had to find violations because unwittingly they have gone off on tangents. They may not have meant to but they started going and asking all kinds of questions they were not really allowed to and they got themselves into trouble, so we don''t want to kind of contribute to that problem.
Next question. Go ahead.
This is Bob Thompson speaking for John white. We had a concert held at our university football facility and they charged extra prices or higher price for the handicapped facility seats because it had better viewing. John, can they do that?
Not really. What the ADA requires is that people who need wheelchair seating locations have the same choice of viewing locations and prices as other people. Now, what happens and especially in a lot of older facilities, they may not have them in all viewing locations. What we have required and you can look at some of our agreements on this is that if they don''t, they have to prorate the ticket prices so that they are proportional to the seats that are available to everyone else. In other words, just having the accessible seats in the most expensive seats is not an option under the ADA.
Well, John, can I ask you another question?
How about if you wanted to purchase let us say a cheap seat but couldn''t get that?
Well, the way we have worked it out is we did this with radio city music hall and with others, if they have-they take the number of wheelchair seats they have and they divide them into price ranges and it is sort of first come and first serve. As long as they have the cheap seats available and they have sold them to wheelchair users already, then it is sort of you are just facing first-you know, you weren''t first come, first serve. If they don''t have them available at all, that is a violation. They have to change that. Now, what happens is, what happens at radio city music hall, you may pay the cheap price and end up with a seat that is in a better location. But what we say is the fact that the theater doesn''t offer the right range of seats should not fall on the person with disability, it should be-that is something that the theater operator has to take.
Thank you, John.
Thank you. We are at the close of our time now. It is nearly the end of the session and I know I am sure we have many more people who have questions that they would like to ask. This is always our difficulty in this situation because typically we do find when we have individuals of your caliber on the line that people want access to the information that you are able to provide them. We do thank both of you for your time, both Sharon and John today. For taking time out of your busy schedules to join us and address some of the very critical issues that many of us are dealing with on a day in and day out basis at all levels at the local, state and national level so we really do appreciate your time. I want to thank everyone who has joined us today on the call for asking your questions and for having an interest in ongoing commitment to the various issues here. I do invite you, there are resources to the various documents that are available from the equal employment opportunity commission and the department of justice on our website. We did create on the registration page some links to the various updates that DOJ puts out on their status report on a quarterly basis as well as a link to the site for the EEOC statistics on enforcement as well as their guidance documents that are available online. For those of you just as a clue who might be trying to find that document that Sharon referred to related to telecommuting, it is not on their documents page. You actually need-it is a little bit more hidden on their website. My recommendation for you would be to just put in their search engine the terminology telecommuting from home and you will get that document. It will come up. But it is not on the guidance page of enforcement documents and such so it is a little harder to come across. There are also many other good documents on the EEOC website. Primarily for small business and other things that you might find of use and value. Also you can contact through our regional disability business technical assistance centers and they can provide you with direct links to these documents or actually hard copies of those documents. As part of the transcript that we create today, we will make sure that we do create some links to the documents and the websites that were referenced by both John and Sharon so you can use that as an archive to access that information as well if you lose it along the way and need to come back to it. Hopefully that will be valuable to everybody. I do thank everyone once again. Once I thank our speakers. Our next session is scheduled for august 19th. This session''s schedule is titled "Accessibility of the Performing Arts, Assuring Access for Everyone", Betty Siegel will be the speaker and if you are interested in joining us, please contact your regional DBTAC about registering and you can contact them either by telephone, 800-949-4232 or visit one of their websites. If you don''t know the website of your regional center, you can go to www.adata.org and locate which center might serve your region if you have not connected with them directly already. Again, I want to thank our speakers and those that participated and everyone have a great day.