Thank you very much Operator. I would like to welcome everyone to the July session of the 2004-2005 ADA audio conference series, which is a collaborative effort of the ten regional Disability Business Technical Assistance Centers - DBTAC. You can contact your regional center by calling 1-800-949-4232, with future questions regarding upcoming audio sessions as well as questions regarding the Americans with Disabilities Act. Today''s session is currently being real timed captioned. You can access the captioning by going to the Great Lakes website by visiting www.adagreatLakes.org under the news section; you will see a link for the Real-time captioning. You can follow that link to log into the real time captioning. All of the audio conference sessions are archived. An audio archive is available on the Great Lakes website adagreatlakes.org approximately 7-10 days following the session, now you will find an audio archive as well as the text from the session. We are very pleased with the turn-out for this session, the July session in the audio series is always the most popular one. And today is no exception. It is a session where we have over 400 sites participating with us, and we are very pleased that we know we have a couple of thousand individuals participating in this session, so for those of you who are new to it, welcome, and for those of you that have are regulars with us, welcome back. For those of you that are regulars, you will be familiar with today''s speakers two of the favorites that we, two of the favorites speakers that work with us on the audio series. Today''s session is entitled the "ADA Update, 15 Years Later." Today as I said, we are pleased to have two excellent speakers with us from the U.S. Department of Justice, we had the chief of the disability rights section John Wodatch, and from U.S. Equal Employment Opportunity Commission, we have senior attorney advisor in the ADA division, Sharon Rennert. Both Sharon and John are two individuals who pry - provide great support for what we do here at the 10 ADA centers, and we certainly appreciate their assistance with the audio conference series as well as other assistance and support that they provide to the ten regional ADA centers. Today''s format is going to follow this: We will get updates from both Sharon and John, regarding their agencies, and policy initiatives, enforcement initiatives that their agencies are undertaking, and give us an update on what is taking place with their agencies in the past year and give us a vision of what, what might be taking place in the, you know, approximately the next 15 years with the ADA, but following their updates, we will then go out to the audience and have a question and answer period for you to ask your questions. So without further adieu, I would like to welcome John and both Sharon to the audio conference today. Welcome to both of you and we will begin, Sharon will lead us off and provide us with an update from the EEOC so go ahead Sharon.
Thank you, Peter, and good afternoon to everyone that I will trust is out there. I don''t know how good my crystal ball is when Pete says I am to look ahead for the next 15 years, but I may start with looking at the present and maybe looking back a bit, and try to suggest what we may look forward to. Maybe just in the next year or two, if not the next 15. One of the things I think that in a way is significant to me and the EEOC at the 15th anniversary of the ADA is that in a way, it is another year, and that the ADA has taken its place alongside the other major civil rights laws, and that we have had a tremendous amount of effort during the past 15 years, be it policy initiative from the federal agencies, various administrative enforcement efforts, litigation obviously, and so that it is, it is in a way becoming a bit more routine, and I don''t mean that in a bad way, and I don''t mean to suggest that there isn''t still a lot of new developments and things that we need to address and challenges ahead, but that for employers and employment agencies, and individuals with disabilities and rehabilitation organizations, and for many people who have to deal with the ADA, if not on a daily basis, on a routine basis, that it is just another part of complying with the federal anti-discrimination laws, it doesn''t sort of stand out quite the same way, and I think that is actually a good thing. Looking first of all at EEOC and what we are doing, we are basically continuing our efforts, it is sort of a multi pronged approach to addressing ADA, and let me start with some developments concerning our mediation program, which I hope most people now are familiar with. We launched it a few years ago. That in addition to our administrative enforcement process, we have a mediation program that is offered to many employers and people who are coming to EEOC to file charges as a quicker, more informal way to settle disputes, and ADA has always fit really beautifully in the mediation program, because mediation is all about two parties talking to each other, and if you think about it, that mirrors very closely the reasonable accommodation interactive process, and so not surprisingly, certainly lots of charges involving claims around reasonable accommodation make prime candidates for our mediation program. Recently, EEOC published two documents in collaboration with the Department of Justice and the National Council on Disability discussing how to make mediation programs involving employment issues more accessible to persons with disabilities, so not just focusing on EEOC''s mediation program, but there are literally thousands of mediation programs out there, mediators be it employer''s own mediation programs, or private ones, so how to insure accessibility for people with disabilities. Those documents can be found on the EEOC website. I will reference (excuse me)the website a number of times, it is www.eeoc.gov. We also recently produced a short film on the EEOC mediation program entitled "Ten Reasons Why You Should Mediate". The film is probably geared primarily to employers, but we have discovered that many other people, including people with disabilities, have found it really useful to better understanding of the mediation program, and why it may be a better alternative than just pursuing the charge process. So for those people who might like to get a free copy of the film, and it is open captioned, by the way, and comes on a CD, you need to contact Jennifer Kaplan, Jennifer Kaplan here at the EEOC and you reach her by either dialing either, (202)663-7084, or you can e-mail her at firstname.lastname@example.org. We also continue to publish more technical assistance documents fact sheets, and we have come out with two recently, or two in the past recent months. One is a guide for restaurants, and other food service employers, and we produced this fact sheet in collaboration with the food and drug administration. The second document was on the ADA''s application to individuals with intellectual disabilities, mental retardation. Again, both of those fact sheets can be found on our website. We will very soon, in fact I hope next week, be coming out with the latest fact sheet in our series focusing on different disabilities, and how the ADA applies to them, and some unique issues that can come up with certain disabilities. This particular fact sheet will focus on cancer, again, in a question and answer format. We are hoping to have it on our website next Tuesday, July 26th. But in case we don''t make it on that date, it should be out in the next couple of weeks, so do check our website for that. Also, wanted to update you on a special project that we launched last year; working with state governments. You know, as we sort of recognize many different types of employers, not least of which should be state governments, and their roles as employers, and in light of the 2001 Supreme Court decision in the University of Alabama versus Garret in which the Supreme Court ruled that state employers, while they had to comply with the ADA employment provisions, individuals with disabilities could not sue state employers for monetary relief. EEOC however can take charges, continue to investigate and settle charges against state employers, and if necessary, we can refer cases for litigation to the Department of Justice, but with all of the focus on the Garrett decision, there was a lot of confusion that came out of it, people wanting to make sure are state employers still covered under the ADA employment provision. The answer is yes. But EEOC decided last year to launch a state project as a cooperative effort to help states improve their compliance with the ADA''s employment provisions, as well as to highlight their best practices, and many innovations that they developed to increase employment opportunities for people with disabilities. The states that are participating with us include Florida, New Hampshire, Kansas, Washington, Vermont, Maryland, Missouri, New Mexico, Utah, and North Carolina. We published an interim report last year, but planned to publish a final report on these states'' best practices this October, so again, something else to watch for on our website. In addition to all of this kind of technical assistance, educational efforts, obviously continuing to process the charges that are filed, of course, we also use our litigation authority to further help clarify the ADA, and to help increase compliance with it. Certainly, I think much has been accomplished, not only through EEOC''s litigation, but private litigation as well. But the fact is that also we may be about to celebrate the 15th Anniversary of the ADA. There are still many blatant forms of discrimination out there, and before you can really get into all of the more nuanced forms of discrimination, I think you really have to confront the more blatant forms, and oftentimes, employers, and more specifically really the supervisors, the managers who are making those front line decisions, many still don''t even recognize that what they are doing constitutes discrimination. Now when these cases come to us, they start at charges, and we account to, attempt to settle them. If we can''t, however, these cases involving blatant forms of discrimination are prime candidates for our litigation program. And to kind of illustrate, let me just review a few fairly recent cases with you, and note that really what each case has in common is an employer''s failure to do an individualized assessment based on objective information about a person''s ability to do a job, either with or without reasonable accommodation. Where all of these employers went wrong is they really just focused on disability as if that alone gave them the information to judge a person''s qualifications, and this really, I think, is one of the guiding principles, if you will, of how EEOC chooses which cases to litigate, since we cannot litigate all cases before us. That the lack of individualized assessment, because we think this is one of the key principals of the ADA is the individualized assessment of each person''s disability, qualifications, ability to do the job, so just to give a couple of examples, we recently won an $8 million verdict, a jury verdict, out in Colorado against Echo Star Communications. This was a case in which of employer failed to provide a reasonable accommodation, which would have been an assistive technology to read information on a computer screen, that this accommodation if it had been provided would have been enabled a blind applicant to be qualified to be a customer service representative. Also recently, a jury down in Louisiana returned a $1.2 million verdict against DuPont that the jury found that the company had illegally terminated an employee wrongly believing she was unable to evacuate safely in the event of an emergency, and the jury there really focused on the fact that no other employee was held up to this so-called evacuation standard, sort of judged on their ability to evacuate. It ignored company results of evacuation drills where this woman did evacuate safely, it ignored the results of a very grueling physical ability test that it required the employee to take and which she passed and instead all they focused on that indeed she did have a disability and as a result, she walked slower than most people, and that was all that the company focused on. I will point out that these verdicts, these 1.2 million, the 8 million, multi million dollar verdicts have been lowered in compliance with the ADA''s caps on damages, but I do think they are illustrative of how a jury reacts to this kind of lack of an individualized assessment. Sometimes, EEOC is able to settle lawsuits before we go to trial, and that happened in a case against Northwest Airlines involving blanket exclusions, people with epilepsy, and diabetes from certain positions, again, no individualized assessment. Similarly we were able to get Amtrak to eliminate a blanket exclusion against people with monocular vision, so just to emphasize that and I think that is really a direction for EEOC in its litigation about individualized assessment individualized assessment. But looking at it a bit more generally though where we are at the 15th anniversary, and this may sound rather trite, but I think that you can acknowledge that we have had progress, and in fact in some cases significant progress, but that we have many challenges ahead. There is no question there has been legal disappointments. In my view, probably the single greatest disappointment in terms of litigation was the Supreme Court decision in Sutton versus United Airlines, involving the role of mitigating measures in assessing whether a person has a disability. Clearly, that decision did have an impact on limiting the protections afforded to people with certain disabilities- but I think you have to put Sutton into perspective. And first, most employers will not spend the time that the Supreme Court suggested that they could spend, trying to figure out if a person is using a mitigating measure, and if so, whether that person remains substantially limited. I think most employers I have talked to and worked with, they find it too involved, too risky, not worth it. Similarly, employers just don''t spend time figuring out if people fall under the record of definition, instead most employers as a practical matter, as they deal with these situations in their workplaces, just assume that many medical conditions are ADA disabilities - and they move on, to discussing other issues -whether you are qualified, whether reasonable accommodation is an issue, direct threat etc. The real impact of Sutton and the focus on mitigating measures is really in the charge process, or at litigation. And I think even here, it is important to note in the litigation I think we are seeing a turn-around, in the first couple of years after Sutton, there was no question that a lot of people were losing cases, especially people with things like epilepsy and insulin dependent diabetes, but the analysis was very minimal, and quite frankly, simplistic, but if you take a look at more recent litigation involving the same kind of medical conditions, plaintiffs have learned what kind of detail, what kind of information they need to show that yes, I use a mitigating measure, but I am still substantially limited in a major life activity. And the courts have a better understanding of the in-depth analysis required and as a consequence, these cases are coming out differently, people with disabilities are winning these cases, or at least are getting to argue the merits of these cases. So I think that even something as unfortunate as the Sutton decision, we are still seeing progress here. Let me just as my last issue to raise here, I think a surprise to many people in the first 15 years has been that the single biggest ADA employment issue in the courts has really nothing to do with employment. It had everything to do with the definition of disability, and I think that surprised a lot of us. In a way, it is a reversal of what you find actually going on in the workplaces, where I find far less focus on the definition of disability and far more focus on truly the employment issues. But I think that in the courts, we are starting to see a shift, we are starting to see courts move on to take up issues that employers have long grappled with. Whether what are essential functions, how down they are essential? What does it mean to be qualified? What does it mean that a qualification standard screens out a person based on disability in is that standard consistent with business necessity in what about direct threat questions? And in fact, in just the past couple of months, we have had two recent decisions involving the issues of medical examinations and medical inquiries. When may employers engage in such exams and ask such questions? In the past 13 years, we have really had very little litigation on these issues, and suddenly, in just a few months, a couple of significant cases have come up, both of which really emphasizing-the rules on you cannot do medical exams and ask questions until the post offer stage, and really grappling with what is a real job offer, and looking at the employer has to make sure all the non-medical components are done pre-offer, or they better have a good reason, a good justification for saying something non-medical has to be done post offer, but really, kind of looking at that, what issue of what constitutes a real job offer? Similarly, in another case, they looked at the Minnesota Multiphasic Personality Inventory, I think many of us have taken that over the years, the MMPI, and a court determined that is a medical examination and subject to the ADA''s rules here. So I think that we are starting to see a shift in the focus in the courts to many more of the employment provisions of the ADA, and I think that is one of the things sticking to what Peter asked, what do I think in the next 15 years? We will see more of that and not just at this single big focus on the definition of disability. So that is my contribution, Peter, and I am happy to turn it over to John.
Thank you very much, Sharon. We will look forward to the new materials coming out of the EEOC, and the contact information to get the video. We will add that to the resources posted to the Great Lakes site following the session, and now we will turn it over to John, who will let us know what is going on at the Department of Justice.
Thank you very much, Peter, and Sharon, it is always a delight to listen to your views on ADA issues as well as your updates on what is going on at the EEOC. I am delighted to be with everyone again this year. I thought I would go through some of the issues that are current at the department right now, and then maybe get a little bit to some of Peter''s questions about the 15th anniversary. If you recall last year, I talked to you about the constitutionality of Title II of the ADA, the part of the ADA that applies to state and local governments. You remember a year ago, the Supreme Court held in Tennessee versus Lane that private individuals may sue states for money damages and cases that they bring, but they ruled about that in a case involving access to the courts under Title II. And the court limited its ruling in that case to court access. What I said at the time is because of court''s ruling was limited, we thought that their litigation on whether sovereign immunity barred private persons from suing state governments in cases other than court issues would continue to dominate a lot of litigation, and that has proven quite true. Since the Lane decision, we at the justice department have been involved, filing briefs in 15 cases, there have been 10 decisions at the circuit court level, at the appellate level 8 of those decisions have gone on the grounds of constitutionality, it''s an interesting split. The Department, I think you have all realized, continues to argue in the federal courts that Congress had the authority to act to remedy, and deter violations of rights under the ADA, and that the ADA is in fact constitutional legislation. We have prevailed in that view in four decisions, one in the 1st Circuit, involving access to courts, one in the 9th Circuit, involving access to prisons, and parallel cases which I will talk about a little bit more in a second on higher education in the 4th and the 11th Circuits. We have lost on the issue of prisons in the 3rd Circuit, and in the 11th Circuit, and we have lost on the issue of parking placards, and unnecessary institutionalization in the 8th Circuit. Two decisions that have just come down of some note, one in the 4th and 11th Circuits, both ruled in favor of our position upholding the constitutionality of private Title II suits, one was right here in the Washington DC area, a case involving George Mason University. And that case, the court ruled that a George Mason university law student with what they call intractable migraines syndrome could continue her lawsuit for injunctive relief and damages. George Mason, which is part of the Virginia public system of higher education, in that case was alleged to have failed to accommodate her disability in the administration of constitutional law exam and retaliated against her after her complaint. In the 11th circuit in the case involving Florida International University, the court upheld the constitutionality of the ADA, allowing a suit to go forward there, and in that case, dealing with the university''s failure to provide sign language interpreters, note takers and other auxiliary aids and services for students. On the other side of the coin, 8th Circuit recently held in a case called Bill M versus Nebraska Department of Health and Human Services Finance and Support, that it was unconstitutional for a group of citizens with developmental disabilities to continue with their claim that they were facing unnecessary institutionalization because of the failure to provide services in the most integrated setting appropriate. Now, these cases are ongoing, but I think there may be some relief in sight because the Supreme Court is back in the picture again, and I suppose this is the big news on the constitutional front. The Supreme Court has decided to take another ADA case on the issue of Title II. It''s the case of from the 11th circuit, its called Goodman versus Ray. You will be hearing a lot about it, briefs are due in the next couple of weeks, and it will be argued in the fall term. It will be interesting it will be one of the first cases on the constitutionality with a new Supreme Court justice. And for those of you who haven''t been following the news of the day, the president is going to announce tonight at 9:00 PM who his choice for the seat being vacated by Sandra Day O''Connor will be. But we had asked the Supreme Court to review this case, because we had - there was a conflict between the 9th Circuit and the 11th Circuit over the issue of state prisons, and this is a case involving prisoners. The particular, in this particular case, the petitioner asserted that, the petitioner is a plaintiff who has paraplegia, who uses a wheelchair, and the allegation in the case that his cell, which is 12 by 3 feet, was too small for him to maneuver his wheelchair, making it impossible for him to have access to his bed, to toilet facilities, and to shower without assistance, and that assistance was often denied. There are claims in the case that prisons barriers prevented him from using the prison library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs. The 11th circuit held that the ADA was unconstitutional in this case. There is a 9th circuit case that held the ADA was constitutional in the prison context, and therefore, there''s a conflict between the circuits which is the reason the Supreme Court took this case. So I guess my guidance to you here is to keep, you will be reading a lot about this in the newspapers, briefs will be file, there will be arguments in the fall. I don''t believe a court date has been set for argument on that, but we will continue to press our argument that the ADA is constitutionally appropriate legislation. Now, also at the Supreme Court front, there was an ADA decision this term at the Supreme Court with a case called Spector versus Norwegian Cruise Line, and there the Supreme Court held, I am happy to announce, foreign flagged cruise ships that operate in the internal waters of the United States is covered by Title III of the ADA, so a ship cruise ship coming into our waters, even if it is foreign flagged, and just about every one of the major cruise ships is a foreign flag vessel, is covered. Now, the decision did say that there''s an exception to the coverage and that''s where specific requirement of the law, ADA, would interfere with the ship''s internal affairs or operations in particular cases. The one area that, the only area that the Supreme Court talked about that might be such a case, might be barrier removal issues, but they noted that this determination would have to be made on case by case basis, and that the ADA standard of only requiring barrier removal and readily achievable if the matter is readily achievable, may keep the statute from running afoul of interfering with the internal affairs of the ship. I guess what this really means is that there will probably be some more litigation, some more policy developments in this area. For those of you interested in the case itself, the plaintiffs were people with mobility disabilities, and their companions. And they were alleging that the cruise ship which left from Houston, Texas discriminated against them by imposing a surcharge for an accessible cabin, by failing to remove architectural barriers to ship facilities including public restrooms, restaurants, swimming pools and by failing to make reasonable modifications and policies to allow people with disabilities to be briefed and involved in the ship''s emergency evacuation procedures. It puts, there was a split in the circuit on the circuit courts on this issue. I think it puts to rest that cruise ships are in fact specifically covered by the ADA, but it does leave open the question, especially for barrier removal issues, and for, I suppose for the design of ships, how the ADA is going to apply. Keep in mind that the Access board, the independent federal agency that creates minimum guidelines for water accessible facilities are in the process right now of developing guidance on what makes a cruise ship accessible. Okay, let us move on to some litigation that the department has been doing we recently filed a lawsuit, joined a lawsuit in the City of Detroit challenging the inaccessibility of Detroit''s'' public transportation system. Our complaint alleged that the City of Detroit failed to maintain and repair the wheelchair lifts of the city''s fixed route bus system, thereby denying individuals with disabilities the opportunity to benefit from public transportation. We alleged, in our complaint, we describe situations of individuals who use wheelchairs were forced to wait often 30 minutes or more while buses, many buses with inoperable lifts passed by, leaving them stranded as they attempted to get to work, to church, medical appointments, including people who missed dialysis appointments, grocery shopping, and numerous other essential destinations. We pointed out in our complaint that Detroit has approximately 120 buses with lifts that had not been working for more than 6 months, and that the city did not intend to make the needed repairs on those. The case has been stayed while we are in mediation with the city of Detroit. I am very hopeful that we will be able to work out an agreement with, with the transit leaders in the city, and bring about accessible bus system there. We are also continuing a lawsuit against the city of Philadelphia involving an individual who is HIV positive who alleged that the city EMT workers in the city discriminated against him. In this particular situation, the plaintiff began experiencing severe chest pains, his partner called 911. The emergency medical staff arrived on the scene, and after being informed that the complainant was HIV positive, the allegation is they refused to provide the pre-hospital care that would have been reasonable under the circumstances, refused to touch him, left the home without providing assistance to him, and there''s also evidence of verbal harassment, and insults coming his way. we are seeking the court in this case to get injunctive relief dealing with the fire department to keep them from discriminating in the future, to develop appropriate procedures and training for EMT staff and to get an award of compensatory damages for the plaintiff. That case is continuing. A couple of cases I just mentioned that just recently got filed, one involving a referral from the EEOC involving the board of supervisors of Burn Township in Pennsylvania. The complaint we filed alleges that Burn Township violated Title I by discriminating against a - 27 year veteran of the township''s of the townships road crew who had a stroke. The Township didn''t permit him to come to work unless he had a full release from his physician, citing a provision in their collective bargaining agreement in which they said superseded the ADA. Eventually the Township terminated him rather than provide a reasonable accommodation that would have enabled him to return to work. We were unable, as was the EEOC, to settle that particular case since so we are proceeding with litigation on that issue. And in the Title III area, we have recently filed a complaint in the western district of Pennsylvania against Denunzio''s restaurant, alleging that they violated Title III for failing to remove physical barriers to access, including the main entrance to the restaurant. And on a litigation note, but one that you know sometimes we file lawsuits and resolve them at the same time, and the department, and you all may, even those of you not in New York may know about the Apollo Theater, because it''s on TV a lot, its a historic theater in Harlem, and we filed a lawsuit and a consent decree that at the same time that resolve the lawsuit. We were challenging barriers to access at the theater, the agreement requires the Apollo to install permanent wheelchair seating locations, and companion seats in the orchestra and to renovate its front and rear entrances to provide accessible routes into the facility, and to eliminate a wide variety of barriers by making changes to bathrooms, elevators, water fountains, signage and telephones. Okay, enough of litigation. We have a couple of, couple healthcare issues that I thought might be of interest to you. One is you have heard us do before, and once is new. New one involves 2 settlement agreements that we have entered into involving the provision of healthcare to wheelchair users. You can find both of these on our website, one is called Exodus Women''s Center in Lakeland, FL, the issue there was, involved the refusal of staff at the center to assist a woman onto the examination table, told Her the she would need to bring someone with her to assist her, that the medical staff would not do that. Under the agreement, the center has agreed to purchase an adjustable height examination table for each of two, one for each of two offices, and to engage in modification of policies so that they would provide assistance to patients to help them in these situations, to conduct ADA training for their medical and administrative staff and also to pay a small amount of monetary damages to the complainant. We have a similar agreement again in California against someone named Dr. -- keep in mind that an individual doctor''s office is a public accommodation under Title III of the ADA. This similar issue involving lack of an accessible exam table. In this case the doctor''s office agreed to purchase an adjustable height examination table, adopt an ADA non-discrimination policy, have training for her staff, and insure that when they are scheduling appointments that people would know they provide special assistance and modify policies and provide auxiliary aids and services. There will be more, we have gotten an increasing number of complaints on that issue, and have been stepped up our, are looking at the issue of the lack of the lack of healthcare because of inaccessible equipment. On the other side of the equation, we have a number of new agreements dealing with the lack of sign language interpreters for deaf and hard of hearing persons, and the difficulties that that creates in the provision of healthcare, I won''t go through these in detail. If you are interested, we have them on our website. There are a couple in the Chicago area for our friends here today from Chicago, one involving Midwest orthopedics, which is a multi physician group practice, one involving Norwegian American hospital, which is an acute care hospital, and is a very detailed agreement, for those in the Washington DC area, we have one with Greater Southeast Community Hospital, again, it''s a very comprehensive agreement that was a particularly egregious fact situation and for those of you in Minnesota, there''s one involving Fairview Health Services that was done by our U.S. Attorney''s office in Minnesota, and those are on our website if you want to see those in more detail. Let me just do a couple of things before we turn it over to questions. I think that all of those who know me know I could talk to fill any amount of space and I will try to avoid that- the, you may be aware that we are in the process of doing a rule making on adopting revised ADA accessibility guidelines, we put out an advanced notice of proposal making sometime ago, the comment period just ended in May. I just wanted to give you an update on that. we received 958 comments, if you are interested in this issue, they are available on line, so you can go and see what the comments that we have received are. They are at www.anprm, I am sorry, adaanprm.org. Let me repeat that adaanprm dot org. If you are interested in looking at the comments. If you wanted to comment and didn''t, don''t despair, we are, the next process is for us to review these comments, develop a proposed rule making and put it out for comments. It''s likely that will take us some time into next year, because we also have to do a fairly detailed cost benefit analysis, and so you will have a chance to, next year to provide comments to us again, but they will remain in the public domain. Let me conclude with a little preview, about the 15th anniversary of the ADA, which is next week. We at the department are going to have an event on Monday, I am just going to give you a preview. I am tipping our hat a little bit here, there two things that we are going to be announcing. One, I think, I hope those who have listened to us before, know what Project Civic Access is. It''s our project to work with towns and communities around the country, and to help them become accessible to citizens with disabilities, and looking at a wide range of services from not just the town hall, but the city''s parks, curb ramps, places of voting, we have had an emergency shelter, domestic violence shelters to our inquiries, some of these agreements can run to four to 500 pages, because they deal with removal of specific barriers, almost coat hook by coat hook if you will in some of these circumstances. We are going to announce the signing of another 20 or so communities some of these communities are fairly large, because our goal this year, and we have met it, is to sign agreements and bring about increased access for over 1 million people with disabilities, and we have achieved that goal and will be announcing it and of the bringing in some towns and cities that we have been working with. The other new thing that will be happening on Monday, if you watch or website on Monday, and our website is ada.gov. We will be unveiling a new on line web based course called "Reaching Out to Customers with Disabilities." It really is, we hope it''s an easy to use document, it contains many illustrations, it really is, it''s ten short lessons, and its how the ADA applies to business, we have designed it particularly with small business in mind, so that people, businesses, small business owners, people who work in small businesses can go and have an understanding of how the ADA applies to them, cost effective ways to make themselves accessible, and ways to reach the reach millions of customers with disabilities that are out there. One last thing I should point out, since I spoke to you last, the head of our agency has moved on. Alex Acosta has taken a position in the department as the acting U.S. attorney in Miami, and so we are in an interim period, we have an acting assistant attorney general. Brad --, and the President has announced his intention to submit the nomination of Juan Kim who is an existing deputy in the Civil Rights Division as his replacement and so we are in, in the middle of a change of leadership, but because these are people who have been in the division and because we are, we are under the guidance of President Bush and his New Freedom Initiative, one of the provisions of which is to have a vigorous program of enforcing the ADA, I think our activities will remain very much the same, both right now under our interim acting head and if the Senate wisely confirms Juan Kim as our new the head of our new office, then we will continue on there. I probably prattled on much too long Peter, why don''t we open this up to some questions.
Absolutely. Thank you John, I appreciate the - DOJ definitely has a lot going on. And we appreciate the update on that. Operator if you could come back and provide the sites with information on how they can ask a question I would appreciate that.
As we, before we get to our callers from sites, we appreciate it if you would keep your questions to one. Just a large number of sites we have participating today, if we have an opportunity, we will go back through and give sites a chance to ask a second question. If you are using a speaker phone, please, the speaker get as close to the microphone as possible and if at all possible please pick up the handset so everyone can hear your question. Operator can we have our first question please?
Thank you very much. Hey John. How are you?
I am fine.
Great. I don''t know if this apropos or not, but I know that working at the CIL here in Memphis that you all have given what shall we say a laundry list to our city officials to get their act cleaned up as far as some of the many access issues we have regarding you know wheelchair access and all that. Can you comment any at all on that?
I guess, I can say watch this space coming on Monday, but I can tell that the way we approach project civic access is we send out a team that does an investigation, we come up with a really fairly detailed, you are right laundry list of what we would say are fixes that we think the city can do. We then begin a series of negotiations with the city, and I have to admit, that the cities have been cooperative with us. And are working out a plan to do what they can do. Sometimes over 4 years, five years, depending upon their budget situation, and I think you will be pleasantly surprised to see what the cities are going agreeing to complete that laundry list over the next several years.
We appreciate everything you are doing. But just as a brief comment, we have adversarially trying to work with our city officials for the past you know 15 years since the inception of the ADA and it seems like they turned a deaf here to us, but hopefully, that situation will change.
Absolutely. And keep your eyes on the DOJ website next week for the announcement of the next round of projects civic access settlements. Operator may we have the next question please?
Hi. Thanks. Thank you, John. I really appreciate that update. I provide technical assistance on a daily basis to all kind of folks, but it''s very hard to try and tell a person with a disability, you know, that you are the enforcement of the ADA, because it''s complaint-driven, so I want you to file a complaint with the U.S. Department of Justice. But then they call me back 3, maybe 6 months later, and they say we don''t know what''s going on. So it''s very difficult for me to refer someone to justice and I just - is there cases where I should not refer them? Like there was a case against Fred Myer, its blatant that they have these debit card machines way out of reach, and that case was, it took a year to find out that the case would not be taken by justice. So -
Let me address a couple of things with that. We - the problem we have is we have many more complaints than we can do -, and so there are legitimate complaints that we receive that we are not able to move forward on. Like EEOC we have a very active mediation program, and of course, not every complaint is suitable for mediation, but literally thousands of them have been sent to the mediation program and we will attempt to do that. I can also tell you that we have made some improvements in our mail handling system in the past two months, and some of the delays that have occurred just in terms of getting to the complaints are being addressed. We have had to move resources around, to have more people just deal with the mail. I will be frank with you, we really to do get thousands of complaints from prisoners, and we have to wade through those a great deal of them are legitimate complaints of discrimination, certainly, what we try to do with people is to let them know that we have a mediation program, we can do some complaints, but also to try and have them use state agencies or local resources if they are available, especially for more localized kinds of complaints. When I am out speaking with people with disabilities, there''s a great deal of distress that we are not able to take as many complaints but we really can only take only a fraction of the complaints that come in even recognizing that they are legitimate ADA violations
Yeah I guess it becomes a numbers game at some point where you just can''t handle all the complaints that come in. Operator may we have our next question please?
Hi Sharon. Hi John. I wanted to know if there were a recent charges or complaints that EEOC or DOJ regarding chemical sensitivity and the implications if any of the 10 million dollar verdict with regard to the radio personality in the Midwest injured by chemicals, and then the issue of discrimination revolving around perfumes. Thank you.
Sharon, you want me to go first?
I think we have not had a large number of new complaints dealing with multiple chemical sensitivity - We obviously take some of those. I think Mary, who has dealt with us in the past on these issues, knows they are difficult for us to advance in terms of insuring that we have proof in individual cases, but oftentimes, the kind of accommodations that are needed, especially in the courtroom settings, or other settings to enable people who have extreme sensitivity to the chemical environment, whether it be carpeting, or perfume, there are ways to deal with that that are easy to accomplish, but it''s still an area where I think our record is spotty and where we are at the beginning of this matter - I have to admit, I am not familiar with the judgment that you are talking about in the Midwest involving a radio personality though.
I don''t know if Sharon is or not.
No. Like you John. I am not familiar. In terms of EEOC, I don''t think that we have had any particular increase in the past few months, year, like John was saying, in terms of cases of multiple chemical sensitivity. I don''t have exact numbers. This has always been percentage wise a relatively small amount of our ADA case load. In terms of the employment issues, EEOC has taken the position that as a legal matter, employers are not required to ban the use of perfumes, either using could cologne, perfumes, perfumes that can be found in shampoos and soaps, many other things that we think is going beyond what the ADA would require. Chemicals involved in say cleaning agents is a different story, and there employers may well have to see about using a different kind of chemical, or you know if not throughout a building, looking around where the person may work. These are very difficult cases. Depending on the number of chemicals involved, the sensitivity, what the person does, what may be feasible to be done in terms of kinds of accommodations here. So individuals themselves in terms of dealing with kind of on multiple levels, if you will, about, number one, you know trying to see if you can gain certainly some cooperation as part of the problem tends to be the perfumes that may be showing up in people''s use of shampoos and soaps, etcetera. But then really brain storming over what other things an employer may be able to do, in terms of relocating where somebody works, and better controlling the immediate environment. It may be about working at home if that is feasible, and in many jobs, that just won''t be. It can be though, if someone is working on site, can we use things like phones and computers so that if somebody cannot join others in meetings doesn''t mean you can''t participate, but you just may have to do it through phones, through computers other ways of trying to get to have the person with the disability still involved.
Thank you. I wanted to let both of you know, there is access board project that has just finished, www.indoorenvironmentalquality.org that I think will add data to sort of what do we do in these circumstances. But thank you both for your response.
Thanks for the question. Can we have our next question please Operator?
Hi this is Janet -- I am calling from the City of Charleston, we are having a big issue right at the moment trying to deal with truncated domes and putting projects out to bid such as resurfacing an entire main street of the city that won''t go into place for a good while, however, when we put it out to bid, we can''t very well eliminate the truncated dome''s concept. What is going on with trunk truncated domes?
Okay I know Sharon that is a question for me, not you.
Thanks for clarifying.
And for those of you who don''t follow truncated domes or they are sometimes known as detectable warnings. The Federal government has taken an approach over the past several years for a while there they were required then the requirement was removed for awhile. The requirement is now back in place. Because the exception from the requirements has expired, so in order to follow federal regulations of both the Department of Transportation and the Department of Justice, you should put out for a bid, the issue of trunk indicated domes. The reason there is some difficulty about this is the access board and the federal agencies are still examining the issue about not only how, whether they should be used in what location should they be used and what type, and so the best that you can do at this point is to follow the requirement that is in the federal regulations at this point, and include that in your bid because I think you have to follow the law, in terms of the bid when you are putting your bid out. I know this has been a difficult issue for those who don''t under this issue, there was some debate about the feasibility of these truncated domes, and whether they were really successful. They are there to alert people with vision impairments, that they are coming to a public right of way, or street, some wheelchair users have complained that they created a hazard especially for fragile persons who used wheelchairs, but the truncated domes are now in the regulation and so you should follow that.
Thanks for the question. Our Next question please?
Good afternoon. We have a technical question. If you are constructing a new building that is two stories, can you provide equivalent services on the first floor to eliminate the need for an elevator?
Okay. That is - I don''t want to be like a law school exam, but are we talking about a public building?
No. The reason I asked about the public building, for those of you who don''t know, if it is a Title III entity, there is an elevator exception for buildings that have fewer than 3 stories, or that have fewer than 3000 square feet per floor. But the Title II regulations do not have an elevator exception, so public buildings that are two stories are required to have access to both floors. Now, if it is only a two story building, there may be other ways other than an elevator, although a ramp in that situation isn''t, - can be very difficult. But there is no exception to that confusion may exist in existing buildings, one way to make programs accessible is to reallocate services that are on the second floor to the first floor. That is an appropriate ADA response to buildings that are in existence, but the one thing the one thing the ADA did was take a very strong stance in the area of new construction, and said that is where the ADA requirements would be their most stringent, and therefore an elevator would be required, or some accessible change of level device would be required for those types of buildings.
Alright. Thank you for the question. The exemption for Title III entities doesn''t apply to the professional offices of health care providers and public transportation facilities.
Thank you Peter. That is right.
Next question, please?
Go ahead with your question.
One of the first questions was regarding the surveys that were done of different cities, etcetera, and I am wondering whether or not you have a template or questionnaire on the structure that you used to do the assessment?
That is an interesting question. Yes, we do, and to date, we haven''t made those public, but one of the things that we are planning to do next year under Project Civic Access, -- and this program is in the design stage is we are going to come up with a checklist that we are going to put out sort of how we have approached this, so that, and we are going to, if we get the funding for this, offer training at various places around the country, so that towns and disability advocates in towns can take what we are doing and duplicate it, because although we are, you know, I am proud of what we have done under Project Civic Access, there are a small number of us here and there are many towns, 80,000 towns in this United States, and it would be nice to provide that kind of template so it may be 6 months from now before we end up doing that, but we will be doing that, and will be trying to do that in a format that will be usable by people across the country.
Okay. That would be helpful, because, well, I am located in the small town of Springfield, not so small town Springfield, Illinois, and I am aware that for instance with our city hall structure, we have obliviously the different departments that most cities would find and public works would do one thing but then you would have another department that needs to look at issues from another way. To the degree that the instrument is somewhat maybe segmented, or usable by various departments, that would be helpful.
Thanks for the question and comment. Next question please?
This is the Birmingham Independent Living Center, our question regards responsibility about transportation. If there are more people waiting for a fixed route bus who use mobility devices, than others, where does the responsibility lie? Should it be at a free Para transit situation, for instance? If so, should it be at a charge?
Could you state that again? Are saying that there are more wheelchair users at the bus stop than the bus can accommodate? Is that the issue?
I believe that is what the question was getting at. What the requirement for the transit provider would be. Would it be to send out a Para transit vehicle to pick up these individuals or would they have to wait for the next accessible vehicle to come along that route.
I guess that depends if the riders that we are talking about are not people who are eligible for Para transit service, then, main line transit system is the entity that is supposed to serve them. If there are more people than can be served by a bus and it is like a one time occurrence, I think the bus driver, these buses are supposed to be equipped under the DOT regulations with radio, and other devices so they can call and have other buses sent. If it is a recurrent problem, then it becomes an issue of changing the bus lines so that the demand for wheelchair users can be met to the same extent as being met for non-wheelchair users. It sounds like there are a lot of factors that may be at play, but it doesn''t just heavy usage of a main line bus situation does not trigger eligibility for Para transit under the DOT regulations.
I would encourage that questioner to follow up with the regional ADA center to get additional information for that question. Next question please?
Go ahead with your question.
Yes. I have a question concerning employment. I have been with the company for 12 years, and I was out on medical leave for a year, the doctors released me to go back to work. My only accommodation that I had had for 12 years was a medically necessary schedule because I am paraplegic in a wheelchair, and so it was program they were able to accommodate me for 12 years, but when the doctor released me to go back to work, management said they could no longer accommodate me that they would have, I would have to have open availability, and the doctor says I can''t do that that, that it has to remain the same way, because it could be very detrimental to my health, and I am wondering, they let me go because of it, and I am just wondering, after 12 years of employment what my recourse could be.
If they have already terminated you, then your recourse is to file a complaint, what we call a charge of discrimination with the EEOC, and I don''t know exactly when the termination occurred, but you have generally 180 days in some jurisdictions, as much as 300 days, but I always tell people, if you even are mildly thinking about filing a charge, you should do it as soon as possible, both because I don''t want people to get closed out because they have missed the filing deadline, and also, because kind of what John was saying in answer to an earlier question, we, too, literally get thousands of these charges, and that we are just unable to take each one as they come in the door, so there is going to be a certain lag time for us to begin processing a charge. But in terms of if a charge was filed clearly from what you are saying, there are going to be questions about why, when you were ready to return after your one year leave of absence the previous accommodation of the schedule the company claiming they no longer can do it- the obvious question is why. And whether or not that would meet ADA standards, in terms of being an undue hardship, to continue an accommodation that apparently as you are saying was working just fine prior to your leave of absence so if you haven''t filed a charge, and you want to see about getting you know the EEOC involved, then you should do so as soon as possible. The best way to do it is to dial our toll free number, 1-800-669-4000.
Okay. The termination--they gave me an extended leave, because my doctor released me, both of them go back to work before my year''s medical leave was up, but when I went back to I talked to my employer, which is Wal-Mart, he said that he would give me an extended 30 day personal leave to make up my mind....
Well, I think the problem with these kinds of audio conferences is very hard to get into people''s individual situations, so I think the best thing is to hand it over to EEOC, and we certainly had a lot of contact with Wal-Mart over the years, and then we would be happy to pursue this for you.
Right and I would encourage you to contact your regional ADA center if you have additional questions regarding your specific situation.
The termination was April 19th
Next question please?
Then you are in time, but I would go and file as soon as possible.
Okay. Thank you very much.
You are welcome.
Hi Mark .
Its great to hear your voice. I wanted to just ask you three very quick questions that might assist people in filing better complaints with the office. First if you could share what the role of the U.S. Attorney is in their community? What TA materials are up-coming being planned? And what you consider the top five priorities for the section to be in terms of enforcement so people can give you more of what you are looking for.
For those of you who don''t Mark who is now in Southern Florida for a long time was an attorney in my office here at the Department of Justice in the Disability Rights Section. And it is nice to hear his voice. We have a program at the Department of Justice because we have, we are just centralized in Washington, there are U.S. Attorneys, in 94 - 95 offices around the country, a number of them are participating in our ADA enforcement program, and so it has expanded the resources that we have to handle complaints and to do litigation. And so it is possible depending on what part of the country that you are in, that the U.S. Attorney''s office may be able to work with you on a complaint, or on a matter of reaching out to working an issue in your area. If you are unsure whether your, your neck of the woods has the U.S. attorney that is participating, you can get touch with our office by sending your complaint here, and or by calling the ADA information line, and we will get that information to you. That number, the ADA information line number is 1-800-514-0301. The technical assistance materials that Mark mentioned, if you are unfamiliar with them, we have a large number of materials on our website which is ada.gov, when I mentioned that we are going to have an on line course for small business, its gonna be on that website. That is the most major new technical assistance publication that will be up soon, we are working on one, one that might be near to Mark''s heart, on domestic violence shelters, and accessibility issues involving them. We are working on that now, it may be up by the anniversary or may be sometime after that, but that will probably be a document we are working on, we are also working on one involving medical equipment at doctor''s offices and hospitals, and the provision of medical equipment for wheel wheelchair users and other people with disabilities. And Mark, you had a third point?
Top five priorities.
Top five priorities. Well, you know, it is, I think transportation issues have been recently one of our top priorities, as has been working with towns and local governments on Project Civic Access, insuring access to healthcare, has been a top priority. Reaching out to the business community to get them to see people with disabilities as customers, as opposed to just a legal liability under project, under our ADA Business Connection has been another project. But I say those with a bit of hesitation, because we are in an interim period. We will have new political leadership in the coming month or so, and my experience in the federal government is when we go through that dynamic, we often end up with a revised set of priorities, so I think we should watch this space. We also have a fairly new attorney general, Attorney General Gonzales, and I think that will take some time to work out some changes in our priorities. Keep in mind that we also as we see the nature of complaints that are coming in, we sort of shift our priorities, in recent years, we have seen it, we have seen an increase in the number of complaints received by people who use service animals and are denied access to restaurants or hotels, or taxi cabs, so we are increasing the number of complaints in those areas that we handle.
I just would like to let folks know that I am in the CIL in Broward County in Ft. Lauderdale. And that the TA materials at the DOJ still remain the best out there and I recommend people use that site a lot.
Excellent. Thanks for the question and comment. May we have our next question please?
Hi there. This is Kirby --, I work with Debbie here . The question has to do with service animals. I am glad you started that up. On the DOJ website, there is a technical assistance on service animals as it applies to Title III entities, does that same technical assistance apply to Title II entities and also to facilities of the Federal government?
Did you think you are going to get through the session without a service animal question John?
No, no I knew better than that. I think the answer to that is yes, that the provisions dealing with service animals apply both to the public and private sector, and to the Federal government, the reason we have guidance on private providers is that we get a lot of complaints dealing with what I said, hotels and restaurants, and taxi cabs, we don''t get the same number of complaints dealing with public entities. The one exception to that would be hospitals, and there are some public hospitals that we have gotten complaints about allowing service, people with service animals into the hospitals, and for that, I would recommend that people go to the Centers for Disease Control, the CDC, has some expert guidance on the approach that hospitals should be using to allow persons who use service animals into hospitals. You would be surprised, it is a very expansive basically the sort of rule of thumb is anywhere that the general public is allowed to go, a service animal would also be allowed to go, and that it is a hospital''s obligation to determine those few areas that, like an intensive care unit, or burns unit where the general public isn''t allowed someone with a service animal would not be allowed in there. But other than that, it is really quite expansive.
Thank you. Can I just follow up with a quickie that the - does it apply to service animals in training.
Actually, the ADA because of the way statute is written, does not apply to animals in training, and so the extent to which enterprises, public or private, allow service animals in training is not a matter of Federal mandate, but we certainly encourage enterprises to allow that to happen.
Thanks for your question. In some states, they do cover animals in training under state law, which allows access. Next question please?
Thank you very much. I have a question about the 2003-DOJ memorandum that concluded that inaccessible voter verifiable paper records comply with both HAVA and ADA. The memorandum has justified legislation all over the country, requiring states to include these inaccessible records in their voting machines. There are numerous problems with the memorandum, problems related to both HAVA and ADA. Most notably to me, the fact that the author uses the program access position of Title II rather than the effective communication position to argue his point. Is there any plan to issue a new opinion?
Not surprising, there are people have the same impression that you do about that. And there has, I think, the American Association of Persons with Disabilities has I think along with NAPAS have asked that that position be reevaluated. The first part of the position came from the office of legal council which is a different office than mine. And that request has been forwarded to them, and I believe they are looking at that. It is, there have been people who have raised the issue, especially as to the verified paper trail.
So there will be a new opinion issued?
It is certainly being looked at. There will be a response to that. Whether - yes
And the response from DOJ?
Next question please?
Sorry, no question.
Let us go to our next site.
Go ahead with your question.
This is reasonable accommodation question, although it involves an animal, not a service animal. We are a state agency, we serve people with physical and mental disabilities. We have a residential facility, which is a four week evaluation for our clients and we have a client who has a dog, not a service dog, not a trained dog, but a dog that she wants to bring to the facility for this four week evaluation for support. She wants, she needs the dog at night is what she is saying. And our concern because it is not a service animal or trained animal is the liability and the safety for our other clients, and we are willing to certainly make any other type of reasonable accommodation, but she saying it is a 504 ADA issue, because of the reasonable accommodation issue.
This is an employee or someone that is coming into to be evaluated in your facility?
It is a client, not an employee.
It is a client. So it is not an employment issue.
So I guess it goes to John.
You said things that are somewhat contradictory to me, it sounds like if this person needs the dog because of her disability, it sounds more like it being a service animal, but it may not be a service animal. If we are not talking about a service animal that is providing services to a person with a disability that that person needs to accommodate the disability, and it is trained, if it doesn''t meet those requirements, you don''t have an obligation under the ADA to allow participation of the animal in the program. If it is just a pet.
It is a pet, and she admits that it is a pet. But it provides -
There is no legal obligation to do it, although there is no impediment for your choice to do that if you choose to, but that becomes not an ADA issue.
Yes. It is not a reasonable accommodation?
See if we can get another question in here before the bottom of the hour.
Go ahead with you question Kim? No Kim. Can we go to our next question please?
This is Lauria, my voice got deeper, actually this is Grant --, and I am affiliated with the DBTAC affiliate in Alabama. I want a status of the Project Civic Access for Birmingham. I understand they came to Birmingham to look at Birmingham, and I want to know what the status of that is.
I can''t say exactly, but lets see if I can just say if you watch or website on Monday, or your local paper on Tuesday, you will have a lot of good news.
Something to look forward to next week. Thank you very much for your question. Anyone still in line to ask a question I would encourage you to contact your regional ADA and I.T. Center at 1-800-949-4232 to have you have questions addressed and answered. As always with these types of sessions, there is more questions than time allows, and time goes quickly there is so much information out there. I would like to thank both Sharon and John for providing their time this afternoon on this very warm, humid day throughout the country. So we appreciate them. Just a reminder, looking forward to the document coming out, possibly next week from the EEOC, the Q and A on Cancer, remember to visit check the EEOC website, at www.EEOC.gov check and visit back there often, and in the fall, sometimes later this year, another document on best employment practices with, with regards to the state, with regards to states that the EEOC has been working with. The Department of Justice, as John was talking about with a couple of specific examples look for those Project Civic Access settlement agreements to be on the Access Board website, along with the other, court cases that John referenced during his update, visit the Department of Justice ADA home page at www.ada.gov. As always these sessions are audio archived, as well as a text transcript will be posted to the Great Lakes website in about ten days from now, so you can visit there, and you will be able can get the resources that were provided for the session, and you can visit that Great Lakes website. For information about the Americans with Disabilities Act, and upcoming audio conference sessions, again I encourage you to contact your regional ADA center by calling 1-800-949-4232, you can get additional information about the August session which is taking place August 16th, and something that John mentioned two different times, access to medical equipment in the couple of the cases that the DOJ was pursuing, and also potential future technical assistance material, the session in August is entitled "Just Hop Up to It." Access to medical equipment where are we? And we will have representatives from the RERC on medical equipment, so a nice transition into next week''s session. So hopefully, everyone will get out and participate in the 15th, ADA 15th anniversary celebrations, taking place in your local communities. And once again, I want to thank John and Sharon for this time this afternoon, and hope everyone is in a cool place for the remainder of the afternoon. Thank you very much.