Greetings, everyone. My name is Robin Jones and I am the Director of the Great Lakes ADA and Accessible IT Center. This program today is brought to you by the network of ADA and Accessible IT Centers across the country, or otherwise known as Disability and Business Technical Assistance Centers. This is one of a series of 12 sessions held, each on a monthly basis, across the year on various topics under the ADA. Today''s session is one of our most popular sessions with individuals as it gives us an opportunity to meet and greet and talk to representatives of the federal agencies. In this case we are hearing from the Department of Justice as well as the Equal Opportunity Employment Commission. We have people joining us today in many different modes and methods. We have individuals using telephones, individuals using streaming audio on the internet and as well as those using real-time captioning. The structure for today''s program will be such that we will have a period of time where we will hear from each of our speakers. We will then enter into a question-and-answer period. The operator will give you instructions regarding the answering period. We will not due to the volume of people participating and the time we have available, we will not be able to deal directly with individual issues you might be having in your own communities and such. I would direct you to contact your regional centers with further assistance with those matters. And that can be done by calling them at 800-949-4232 which is both voice and TTY. If you don''t know who your center is and would also like to visit their web site, as many of us have question-and-answer options on our web pages, you can go to www.adata.org. So as we start today, I just want to remind people that we will be doing some question-and-answer. So hold your questions, prepare them, write them down, jot them down, so that when we get into the question-and-answer period, you are ready to do that. I am going to start today with John Wodatch, from the Department of Justice. He is the Chief of the Civil Rights Division of the Department of Justice and has joined us many times in this program and is probably a familiar name for those of you that have been with our program over the years or months. He has been involved in federal government for a very long time. He probably doesn''t want to admit exactly how long. It has been since 1969. Not dating you too much there, John. He had been specifically with the Department of Justice since 1980, quite a long stint with the Department of Justice. The department has gone through many different changes, and so has John as the process has gone about. And he has been actively involved in the efforts to protect the rights of people with disabilities. And he has been instrumental in the very kickoff at the beginning of the ADA itself. And the efforts of Department of Justice has been involved in. He has worked closely with the Disability and Business Technical Assistance Centers, as his staff has, since we were first established back in 1991. And is someone that we turn to often for information. And we always can rely on him for his honesty and his forthrightness in regards to our questions and our issues and concerns. We look forward to his presentation today. We will then, following John''s presentation, hear from Sharon Rennert, who is with the Equal Employment Opportunity Commission. Again, should be a familiar name that individuals have heard. Because Sharon has joined us for many of these sessions addressing many different aspects of the employment provisions under the Americans with Disabilities Act. She is a senior attorney in the ADA division of the Equal Employment Opportunity Commission, and has been actively involved in the development of many of the technical assistance documents that EEOC has put forth and has been doing a great deal of training across the country, both with EEOC investigators and attorneys, as well as the public. And has been a participant in many conferences and meetings that the Disability Business Technical Assistance Centers have had as well. So I think we will all get a lot out of her presentation as well. But I will start today with John. So I am going to go ahead and turn it over to you, John. And it is all yours.
Thank you very much, Robin, for the kind induction. Good afternoon to everyone. We are calling you from steamy Washington, D.C., where we are about to hit 100 degrees I believe. But what I would like to do in the 15 or 20 minutes or so for this part of the presentation is, just go over some of the activities that the department has been doing recently under the Americans with Disabilities Act. Just to give you a flavor of the kind of enforcement actions that have been going on and the kind of changes to our society. I think looking at the ADA as a 16 years later, I think we are making tremendous progress across the country, but it really is piece meal progress. You know, it is sort of institution by institution, ramp by ramp, curb cut by curb cut, almost. But I feel encouraged by the steady progress that we as a nation are making. And also I think, I hope that the long-term effects of that is, more and more people with disabilities are integrated into everyday American life. So the attitudinal discrimination that is the most difficult with, will be broken down as integration occurs over time. I will begin by doing an update on the constitutionality issues. We have discussed this in the past. There continues to be steady stream of litigation on the issue of whether Title II of the ADA, which is a part of the ADA that applies to public entities, whether it is state governments or local governments. The U.S. Supreme Court has re-looked at our principles of federalism. And the issue has come up, if you haven''t dealt with this before, under the 11th Amendment of the Constitution, it says that states are immune from lawsuits by their citizens for monetary damages, basically, unless two things happen. Unless Congress specifically says in a statute that the states can be sued, and if there is a constitutional underpinning. There has been a long, now a long history of jurisprudence dealing with the ADA. If you recall back in May of 2004, the Supreme Court dealt with the issue of Title II in the Tennessee versus Lang case, and held in that case that, individuals with disabilities could bring suits for monetary damages against the state when the case was about access to the courts. So the Supreme Court in Lang decision didn''t say Title II was totally constitutional and it didn''t say it was unconstitutional. It began a really an issue-by-issue sort of approach to looking at the constitutionality of the Title II. As a result there has been a great deal of litigation in the lower courts on a variety of different issues. This term in the Supreme Court, one of those made it to the Supreme Court, and it was a case I hope you all know. There was a decision in January of this year. The case is called the United States versus Georgia. It was a case dealing with prisons and people with disabilities. The prisoner in that case was a person who has paraplegia and uses a wheelchair. His allegation was that his cell was too small for him to maneuver his wheelchair, making it impossible for him to have access to his bed, to his toilet, and to the shower without assistance. And he alleged that the assistance was often in fact, usually denied. He also claimed that there were other architectural barriers in the prison that prevented him from using the library, attending religious services and participating in the wide range of programs and services for prisoners including counseling, education, vocational training. The Supreme Court took this case as a follow-up to the Tennessee versus Lang case. And this year, in a unanimous decision written by Justice Scalia, held that this prisoner could bring a suit for monetary damages against the state to the extent that, the Title II claim is based on conduct that actually violates the Constitution. And clearly, in this case there was an allegation and the Supreme Court went along with it, that this kind of allegation, if proven true, was the kind of cruel and unusual punishment that would be forbidden by the 8th Amendment to the Constitution. Keep again in mind, this was a fairly narrow decision. It left open the question about conduct that doesn''t violate the Constitution, even in the prison context. And so although it was a positive decision, it was unanimous, it was fairly narrow. And so the courts are continuing after the U.S. versus Georgia decision to look at this issue. And so I guess all I can say is it is a very much a live issue. There was a recent decision on July 7 of this year, coming out of the state of Missouri. The case has been going on for quite a long time in the 8th circuit called Clinger versus the Director of the Department of Revenue. This case, we have talked about it in the past if you don''t remember, was about the $2 surcharge for parking placards. In the state of Missouri and many other states, they have a dual program. If you are a wheelchair user and drive a car, or a family member and the family includes a wheelchair user and the vehicle is used to transport that person, you can get special license plates that are the same price as other license plates and enable you to park in any of the accessible parking places in the state. However, they had an additional program in Missouri for parking placard, but you had to pay a $2 surcharge. The 8th circuit earlier held this $2 surcharge was a violation of the ADA, but didn''t address the issue of whether the money could be refunded. The 8th circuit looked at this case again after the Supreme Court''s decision and they determined the $2 surcharge did not rise to a violation of the 14th amendment. They said it was too trivial to amount to impairment of any fundamental right and held that the plaintiffs in that case were not entitled to monetary damages. That is a negative decision in terms of the ability, private parties seeking monetary damages in the case of parking placards, although the 8th circuit didn''t change their view it still was a violation for the state to have that kind of surcharge. There are a variety of other cases that are ongoing, constitutionality. There is another one in Missouri dealing with voting. There is cases on state licensing programs. Mostly these cases are all being reconsidered in light of the decision of the Supreme Court and the Georgia case. And all I can say is I will continue to report to you and tell you that we spend a great deal of our time on these constitutional cases. Because just about any case where a state is being sued for monetary relief, the state raises the issue, or the state entities raise the issue of unconstitutionality of Title II. While we are at the Supreme Court, there was another ADA decision at the Supreme Court this year. I will mention it briefly. Specter versus Norwegian cruise line. There the issue, the Supreme Court decided that a foreign flag cruise ship operating in the internal waters of the United States is in fact covered by Title III. There was a split in the circuits about that. We have always held at Justice, that of course cruise ships are basically floating public accommodations and are covered by Title III. The issue comes because these are foreign flagged vessels. They are owned and operated really by foreign corporations. But the Supreme Court held in fact they are covered by Title III but there was a caveat. The caveat is except where specific requirements of the law would interfere with the ship''s internal affairs or operations. What the Supreme Court sort of made clear, when you are talking about imposing a surcharge for an accessible cabin, those kinds of issues would clearly be the kinds of discrimination covered by Title III. Where there is some doubt about how this will apply is where Title III would require the ships to remove architectural barriers. The Supreme Court basically said we would have to look at this on a case-by-case basis. They noted there might be a possibility of causing inappropriate interference with the ship''s internal affairs if it would lead to permanent and significant modification of a ship''s physical structure. Particularly if that dealt with the ship having to comply with other international treaties and laws. We will be following up on this. We have received in our office several hundred complaints dealing with cruise ships. And we are actively exploring this issue as we speak. A couple of other settlements that have occurred, we don''t often venture into the world of transportation. But we recently had a case dealing with the city of Detroit and their fixed route bus systems. We intervened in ongoing litigation that alleged that the city of Detroit was using buses with inoperable wheelchair lifts and that they failed to have maintenance and repair programs that would allow the buses have working lifts. As a result people waited for long periods of time until they were able to board a bus with a functioning lift. In some cases, missed employment opportunities, missed doctor''s appointments. We investigated and found that, in our view, that in fact was the case. Joined the lawsuit. And ended up with a settlement agreement, a consent decree in the court, that required specific requirements for the city of Detroit to make sure that its bus system was, in fact, operating in an accessible fashion for persons using the bus system. If you are interested in looking at this or any of the things I am talking about, I suggest that you go to our web site, ada.gov. A lot of these agreements are there. A couple of things I would like to mention that have happened in the past week, including this one which is happening today. Those of you who are in the craft world may know what Jo Ann stores are. There are 840 of them across the country. We have signed an agreement with them today that will make their spaces and elements in all 840 stores accessible. We have looked at the access routes to the stores. Parking, to the extent they control parking. The width and size of aisles, merchandise display areas, the height of checkout counters and fabric cutting areas. They have agreed to hire an ADA consultant. Survey all of the stores according to a form we have approved for them. And survey 25% of their stores each year over the next four years. And make changes as a result of those over those four years, and make changes as a result of those over the four years. In addition in that case, there were, we had some complainants, two each are receiving $2,000 in compensatory damages. And $55,000 in civil penalties to the government. I am trying to give you quickly a couple different areas. Let me move to baseball, since this is the summer, and it is one of America''s pastimes. We had a complaint of pony baseball coming out of the state of Hawaii. A student who was deaf, baseball player who was deaf, who is father was interpreting from the dugout, was, because of Pony League rules, not allowed to interpret. This is an ongoing matter. But we have reached an agreement with the Pony League. There was a tournament over the 4th of July. The Bronco tournament. We reached an agreement with the Pony League to allow sign language interpreters in the dugout and anywhere the coaches went on the field. Now, in this particular case, the child''s father wanted to be the interpreter and was allowed to be the interpreter. We are continuing in negotiations with Pony League to make this a permanent arrangement for all Pony League baseball. And also to point out, it is, in fact, their obligation to provide sign language interpreters where they are needed. Students can use parents or family members. But if they choose not to, it is the obligation of the league to provide that, unless it would be an undue burden. In this case, it was not an undue burden. But I think it is an important sort of different aspect. Two other agreements I will mention very quickly that we announced both Friday and today, the one on Friday was with a local hospital here in the Washington, D.C. area. The Lower Regional Hospital. We had a series of complaints that they were not providing effective communication to persons who are deaf and hard of hearing. And therefore we are denying them access to health care services. There we have sued them and simultaneously filed a decent decree in Maryland. And the interesting thing is, if you look at our web site, you will see we have a lot of complaints dealing with hospitals and interpreters. What is different about this one, this is one of the first ones we have dealt with. It deals with the issue of video interpreting services, which is a new thing. For those of you who aren''t aware, it is really using video phones as interpreting services. And we were concerned that it would be done in a way that would be, would provide effective communications. In our view they have to be carefully monitored in hospital settings. Because patients with certain medical conditions may not be able to use their a.m.. They have to be positioned appropriately to the screen to perform sign language. There are also issues of the nature of high quality clear delay-free full motion video and audio, including a dedicated high speed Internet connection to make it work. So that agreement spells out those kinds of specific performance criteria. The last thing I will mention is an agreement we reached yesterday with the University of Chicago. And this agreement really spells out, it applies to the entire university there and deals with making their buildings and facilities in which their programs and services and amenities are offered, accessible. It, again, has a planning part of it. It will go on over the next four years of making facilities accessible, including making 3% of the dorm rooms accessible. And making other parts of dorms accessible, so that visibility is an issue for people with disability. It includes making the transportation services at the university, including late-night van service meet the requirements of the ADA. Including information on their web site. Correcting a variety of violations that we found of new construction standards as well as providing assistive listening systems and devices in lecture halls, meeting rooms and assembly areas. It is not up on our web site yet. It will be by the end of the week. Both that one and the Lower one I ask you to take a look at, because I think they are the state of the art. I can tell you that we are also engaged in negotiations with several other private universities and use and believe that this should be a template that we will follow in ensuring that private higher education institutions take the next steps to making sure that their systems are really fully accessible to people who have disabilities. With that, I probably have meandered on long enough. Let me turn this over to Sharon Rennert at EEOC.
Thank you, John, and thank you, Robin. And hello to everyone out there. If is my pleasure to be with you all, to discuss what the EEOC has been up to since we last talked in July, a year ago. And some sense of where we are with the ADA employment provisions, 16 years after their enactment. As I hope most people are aware, the EEOC continues to publish fact sheets on various ADA employment-related topics. During the past year, we issued three new ones, all of which are on our web site, which is simply eeoc.gov. We did one fact sheet on the association provision of the ADA. How the ADA extends protection to people who have a relationship with someone with a disability. It could be a family member, a roommate. We also did a fact sheet on blankness and vision impairments. And we discussed how the ADA definitions of disability could cover or maybe not cover in certain instances blindness and vision impairments. Reasonable accommodation issues. Issues about being qualified. Direct threat. And the third new document we issued most recently, unreasonable accommodation for attorneys with disabilities. This is kind of taking us in a new direction, and you can probably expect additional fact sheets looking at particular kinds of professions or workers and the reasonable accommodations that may be needed by people with different disabilities in these different professions and types of work. This last fact sheet, attorneys with accommodations actually came about because EEOC, along with the American bar association, sponsored a conference on attorneys with disabilities and issues about their entry and access into the legal profession. And issues affecting them. And I think one of the things that EEOC is trying to do is to show a spotlight on various types of work or types of professions or types of industries as a way of highlighting, first of all, the many qualified individuals with disabilities in those particular areas. But some of the issues, they come up again. So some of the concerns that may be particular to certain kind of jobs or professions and to start more discussions on them. Hopefully to address concerns, to lay many of them to rest. And so that is another tact the EEOC is trying to take, is to team up with various professional associations or trade associations, to talk about workers with disabilities. The EEOC also this past year completed its study of several state governments to identify best practices that are being used to recruit, retain and promote qualified individuals with disabilities. A lot of attention is paid to the private factor. But certainly state governments can be an important source of work for people with many kinds of disabilities. And, again, a lot of states are trying to do creative things, be very proactive in reaching out to the disability community. At the same time the commission was looking at state governments, we were not ignoring federal government, another major employer. The commission recently held a meeting to discuss the federal government''s track record in terms of promoting, hiring, recruiting, people with disabilities. In terms of the EEOC''s ADA enforcement effort, looking first at litigation, since the enforcement began on the ADA, the EEOC has filed 625 ADA lawsuits. That have garnered over $35 million. In the last fiscal year for which we have records, the fiscal year 2005 which ended last October, EEOC filed 49 lawsuits, just in that single year. Over 625 lawsuits. Now, one of the things I did, because when you get to the anniversary of the ADA, it causes all of us to kind of look back, where we are, where we hoped we would be. And I know that in terms of the employment provisions, especially around definition of disability, there is disappointment. The definition of disability has been narrowed a bit in terms of judicial interpretation. And that it is harder for plaintiffs to show disability. And it discourages a lot of people. So what I particularly wanted to look at was EEOC''s litigation since 1999. And 1999 was significant to me, because that is the year the Supreme Court issued the Sutton decision. The mitigating measures decision. Which is probably the single decision that had the greatest impact on the definition of disability. And in making it more difficult for plaintiffs to show disability. And since 1999, the EEOC has filed roughly half of the lawsuits, the total number of lawsuits. 311. So we certainly didn''t kind of stop enforcing. Or we didn''t kind of run out of cases. And indeed, in terms of just those 311 lawsuits, we collected over $27 million on behalf of the people we were representing. And I think that is one sign that the ADA is still out there and enforceable. It is getting enforced. And it is viable. There are strong cases. It may be a little harder to show disability. But it is not impossible to do that. If we turn to our charge enforcement, that is the administrative process. EEOC has had over 219,000 charges filed. Since the beginning of our enforcement efforts. And those 219,000 charges have resulted in $574 million for charging parties. And, again, looking at the period beginning in 1999, after the Sutton decision, we took in, just during those last six or seven years, 111,000 charges. Again, it hasn''t made a dent in the number of charges coming in. And those 111,000 charges in that same period, we collected $345 million on behalf of our charging parties. So all of this is just simply to say that the ADA is out there. It is not toothless. I think it is still very much we can and are enforcing in it. For the last part of my comments, what I would like to do is sort of turn to some developments in the courts and a sense of where we are going. And here, I am always a bit leery of trying to say, here in 2006 are the trends I see. These are things I feel comfortable looking in the past two or three years. And I do see a trend in the way the courts are interpreting the ADA, how they understand it. And how they are applying it. First of all, one of the developments I see, I think we are seeing certain areas of the ADA that the law is being settled. We are not seeing splits in how courts interpret. That basically the courts, and often I am glad to see are in agreement with EEOC, have really settled on particular interpretations. For example, no employer has to provide reasonable accommodation to an employee who has a relationship with someone with a disability. The reasonable accommodation is only when an employee has a disability or an applicant. But not because an employee has a relationship with someone. And I think the courts pretty much settled that. And I think the good news, when you get an issue settled, it gives certainty to employers, to people with disabilities. There is nothing to sort of question anymore. And I think that is a good thing. I think it is also pretty much settled in the courts that employers are expected to show good faith participation in a meaningful, interactive process, in response for request for reasonable accommodation. If courts do not find good faith participation in a meaningful way, then, first of all, most courts are very leery about throwing the case out. Generally at that point, courts are going to proceed to trial as long as there is some evidence that there would have been a reasonable accommodation that could have been provided. So for employers, the interactive process is something they really need to do. There is just no good reason not to do it. In fact, it is putting an employer in a very risky position, if they are challenged. And I think the courts have been fairly uniform about this. So, again, in terms of area of law that is settled. I think that courts are paying more attention to the details in ADA case. I am sure that the regular listeners to these programs have, time and again, heard from me and from other people, how the ADA requires an individualized assessment that it is case by case. And that the facts are so incredibly important to the outcome. Change one fact, and you change the outcome. And one of the things over the past couple of years is how many more courts are really getting into the nitty-gritty of any given situation. I think that the courts, and that means the advocates and the attorneys are also figuring out how important it is to really lay out this case. How many facts are relevant to make any kind of an ADA determination. Just to give you an example, a fairly recent case out of the 2nd circuit, the court, in this case, Graves versus Finch Prune, acknowledged it was a close call. The courts said we think it is a close call how this one goes. Nonetheless, the court found that the employer had cut off the interactive process. Again, how key the interactive process is. They found the employer cut off the interactive process by forcing the employee to retire just as he was requesting unpaid leave for rehabilitation. The court rejected the employer''s argument that the employee had failed to make a request for accommodation. And even if he had made a request, the employer tried to argue the request was for indefinite leave. As most of us know, indefinite leave is not recognized as a form of accommodation. The court looked at the evidence. Again, they went really very carefully through the chronology of who said what to whom on what date. And they found that indeed the employee had made a request for unpaid leave, and they said the minute he did that, it triggered the interactive process. They also said his request for leave was ambiguous. It wasn''t clear how much time he was looking for, when he would leave, when he would come back. The court said, yes, it is ambiguous. They said the response by the employer to the ambiguity should not have been to interpret the ambiguity in the employer''s favor. But rather to engage in an interactive process and ask for clarification. And I think this is a wonderful case in terms of the idea of how important it is to look at the specific facts of how these facts add up to showing what the ADA requires in terms of triggering the interactive process, in terms of employer''s, what it means to engage in a meaningful way in the interactive process. And the idea that there will be ambiguity when people talk to each other. But rather than guess at what people are saying, you ask them point blank. You know, what are you saying? What are you trying to say? What do you mean? When would your leave start? When would you come back? So I think it is a good indication that courts are closely scrutinizing the cases. That is good for the ADA, however it comes out, whether the employer wins or the employee wins. I think that we are getting more clarity and more towards what the ADA was meant to do. I think in the earlier cases where there was a more surface interpretation, it seems as though the intent behind some of these key provisions was being lost. And I think with this closer scrutiny, we are getting back to what Congress intended. We also see this emphasis on an individualized assessment coming up in direct threat cases. Again, another part of the ADA where Congress always intended it would be an individualized assessment, very important to understand a particular person''s situation. And how when a court really gives that level of scrutiny, again, it is not so much predicting who is going to win, the employee or the employer. But how important the details are. And we have a good example out of the 7th circuit, two cases both involving diabetes. And where the evidence showed, and the court really got a lot of evidence that a particular employee''s diabetes was uncontrolled. And he was working in an environment that could be quite dangerous if he started to have difficulty. They ruled he was a direct threat. In another case, they showed somebody with diabetes, they really controlled it. When things otherwise appeared a bit dangerous, the very fact the court could go through the person''s history, that they had controlled it well, led the court to conclude no direct threat here. A couple of other things to pick up on. Disability. I still think this is an area that is a challenge for plaintiffs in the court. It is probably the single biggest area that has proven to be a challenge. But in the past couple of years, I think the pendulum has swung back a little bit. In terms of courts more often finding disability. And again, I think some of that is that plaintiff and representatives, including EEOC have really paid more attention to what kind of case to mount. And as we get more cases coming out favorably, saying here is how you can show different conditions do amount to a disability, that is laying out a road map for others who follow. Here is what you are going to have to show a court if you want to show that you have a disability. And, again, I think we are seeing cases that even two or three years ago, most likely would have been dismissed. But now courts are saying, you know what, I think we need to go to trial. They are finding there are genuine issues of fact here. And that they are concluding that these are factual issues and are more appropriately decided in a trial by a jury, whether someone is substantially limited in performing a major life activity. So that is something for people working on ADA in any capacity to pay note to. We have even seen in the past year or so, the regarded as definition making a comeback. Of all the three definitions of disability, regarded as is probably the one where plaintiffs had the least success. And yet, over the past couple of years, there has been significant regarded as cases in which courts found in favor of the plaintiff in the first, second, fifth, sixth, tenth and eleventh circuits. For those that follow courts, some of those, like the fifth circuit, is notably considered conservative courts. It is making a comeback. The last point, before we open it up to your questions, and I think this is a healthy development for the ADA. We are getting into some new issues that have not really been litigated. I think quite naturally, major issues that would be litigated in the beginning years of the ADA, like the definition of disability, like reasonable accommodation, that is going to continue. But people are now able to start moving into a second generation of issues. As an example, we have had a couple of significant cases in the past year or so on the ADA provisions on disability-related inquiries and medical examinations. Still not a lot of litigation in that area, but I think it is significant that suddenly people are starting to say, well, wait a minute. We have some questions about what it means. When is it a job offer, so that now we move into the post-offer period and now we conduct a medical exam. Or, as in one case, a decision that the Minnesota Multiphase Personality Inventory, what most of us know as the MMPI, is a medical examination. And those kinds of questions just weren''t coming up a decade ago. Because I think there were bigger fish to fry with the ADA employment provision. So all of this means that it is still an exciting area. A lot of things developing. And probably why we will all be here again a year from now. With that, let me turn it back to Robin and your questions.
Great. We will ask the operator to come on and give instructions to people. Thanks very much, both John and Sharon. I know you have a wealth of information and probably could have gone on and on with all of the things that have happened in the past year. As Sharon and John both said, that is a positive thing that there continues to be a lot of activity around the ADA. And while there is some negative, I think we have to give a lot of kudos to the positive as well. Lance, do you want to go ahead and we will start to take questions.
Can you hear me?
Yes, we can.
Okay. The question is for Sharon. You talked a little bit about how the courts had established reasonable accommodation not being provided to an employee, the relationship situation. Can you give me some examples of that?
In terms of the kind of accommodations that the ADA would not require, if I am the parent of a child with a disability or I have a spouse with a disability and I am requesting leave as a reasonable accommodation because I need to get them to medical treatment or be with them while they are recuperating, I am not entitled to that under the ADA. Because I don''t personally have the disability. Only an employee or applicant. Otherwise, in terms of a relationship or association, an employer can''t refuse to hire me solely on the basis I have a disabled child or spouse. And the employer assumes I might not be as diligent in my work or as dedicated. That is the kind of discrimination that the ADA outlaws. But it does not give a nondisabled employee a right to reasonable accommodations that might be needed in terms of their disabled spouse or disabled family member.
I am sorry. I was asking if there were specific cases that you could cite that established that?
Oh, I am terribly sorry. In terms of yes, I can give you a couple of cases. One would be, I just closed the thing. One would be Overly versus Covenant Transportation, sixth circuit this year. Another Larimer versus IBM Corporation, a 7th circuit case from 2004.
Thank you very much.
Next question, please. Lance, can we take the next question, please?
Go ahead. Try to take your phone off mute if it might be on mute.
Can you hear me?
Yes, I can now.
This question is for John. When will the new ADA guidelines be adopted?
Good question. Let me give a backdrop in case anyone doesn''t understand. The access board is the entity in the government that is responsible for the doing ADA guidelines. And under the statute, we have a responsibility for making sure that the ADA standards that we put in our regulations are consistent with them. The access board concluded about a 10-year process of updating the existing ADA guidelines a year and a half ago. We have put out an NPRM last year to say that we are going to adopt them. We are in the process, we got 900 comments on those. We are analyzing the comments. We have really completed that part. The hard part for us, we are required to do a cost benefit analysis of the ADA accessibility guidelines and their impact on both new construction and existing facilities. We are in the process of doing that. We envision the NPRM seeing the public at the beginning of the year, the beginning of the new year. 2007. There will be an extended comment period at that time. We will do public hearings. As a result of the comments we receive from those, we will go to a final rule sometime thereafter. So the next date you will see from us will be the beginning of next year. There will be an NPRM.
Great. I guess that is a long and short answer to a question. And still, it depends.
It is. It depends. There are a lot of variables that could make it go longer or shorter. There is some statutory time periods in there. OMB has 90 to 120 days to review a rule. Congress also has the ability to review a rule before it is final.
Great. Just what we want, somebody else messing with them. Okay. Next question, please.
Yes. The question is under Title III, public accommodations. Is it the sole responsibility of the person needing accommodation to contact, for instance, a town hall for a local meeting to ask for an interpreter or large print materials? Or is it an automatic thing the town is supposed to do or any public entity of that nature.
The obligation of the town, certainly under Title II of the ADA is to provide effective communication, whether it is materials in Braille or having a sign language interpreter. But they don''t have to have one in place for every meeting. Because the undue burden is a limitation on the ADA. The town can put out a notice saying, okay, we are having our town meeting two weeks from Thursday. If you need, if you are going to attend and you need to have sign language interpretation, let us know 24 hours in advance of that. That would be an appropriate way for a town to handle that. They don''t have to have an interpreter available at every single one of their meetings. They can establish this process where they set up a process so someone can request it.
So then when they are doing so, it would behoove them to use all of these mechanisms such as media ...
That is right. And it has to really be an effective process. People have to know where they go to make the request and how they do it. And it is however they let - the various ways they let the people in their town know that.
Thank you. The next question, please.
This is for John. It is a two-part question. When is the Department of Justice going to start corresponding with blind and visually-impaired people upon request in alternate formats? And the second part is, what is being done to effectively monitor and enforce civic access settlements, especially on those who have dedicated funds for barrier removal within the existing schedule?
Okay. Both good questions. We have an obligation to respond to people in alternate formats now. There is an undue burden defense to that. So if someone needs to get information from us in a letter or whatever, in Braille, in large print or whatever, we have an obligation to do it now. If we are not, let me, you can send me an Email about that. I will be happy to give you, Robin is my Email address somewhere for these people?
No, it is not currently.
john.l.wodatch@usdoj.gov?
Right, let me know that that hasn''t happened. On the monitoring of project city access agreements, we have now 146 agreements. We do monitoring of them in two ways. We get materials from them, including pictures of changes they are making according to the schedules they are doing them. And we also send people on site on a periodic basis. It varies from locale to locale. In some circumstances, we know if they have not been able to make changes according to the schedule and have actually renegotiated a couple based on problems. But that is the exception rather than the rule. If you know of a particular situation, that you think is not being done appropriately, we appreciate hearing that, and we will follow up.
Let me just provide clarification for people who may not have caught that email. It is John.L.Wodatch@usdoj.gov. That will be in the transcript as well later. Thanks very much. Next question, please.
Hi, can you hear me?
Yes, we can.
I am one of the technical assistant specialists here in Portland, Oregon. And many times a day we get a question on service animals, the definition of service animals. And specifically regarding psychiatric disabilities. And we had a question with the DOJ, if there is going to be any additional guidance, redefining service animals to include psychiatric disabilities.
Okay. The answer to your question is, we will raise the issue in our proposed rule making that is going to come out at the beginning of next year. One of the issues is whether someone who uses a service animal as an emotional support, animals should be covered by the ADA. We have interpreted our regulation to say that a service animal has to be individually trained to perform a service with someone, which would include service animals for some people with psychiatric conditions. But we have not determined to include what are known as emotional support animals. We have been praised and criticized for that. We are going to ask for public comment on that particular issue.
So stay tuned for more animal information?
Right. But right now, our interpretation is that service animals have to be individually trained. And if you can show that an animal is individually trained to carry out services for someone, an example of that might be seizure alert dogs. hat is covered under our interpretation of the ADA. We have not included what are usually called emotional support animals to be covered. Which is a different position than HUD has taken under the Fair Housing Act. And there are slightly different procedures under the Air Carrier Access Act.
You have to look at each one and how it addresses these things. You can''t lump everything as being an ADA-related issue, for sure. Next question, please. Hello, my name is Tom. I am Executive Director with the ARC here in Cincinnati. Approximately a year ago, just a little under a year ago, we were looking to move our ARC office. We were at the end of our lease and looking for alternative places to relocate the ARC. When we did that, we identified an office that would be ideal for us. We were shown the office. They agreed that they were going to get us some information to make modifications of the floor plan and so on. Then we heard nothing back. After a couple of weeks, we had our real estate broker we were dealing with contact the potential new landlord. And we were notified that they had decided they didn''t want to lease to us because they felt they would incur too much liability having all of those people with wheelchairs in their parking lot. We responded first by attempting to do education and so on. And it was clear they were not going to lease to us. We contacted Ohio P&A, Ohio''s legal rights service. They represented us in filing a discrimination action in the Ohio Civil Rights Commission. That proceeded forward as a case until about a month ago when Ohio legal rights service was informed by the Ohio Attorney General''s office that OCRC did not have any jurisdiction regarding commercial leasing. In fact, no one had jurisdiction regarding commercial leasing. And quite frankly, any landlord could choose to lease to anyone with a disability or not in Ohio. There is no protection in law regarding that, in terms of commercial space. It did not constitute a public accommodation. Do any of you have any suggestions in terms of recourse we might have?
I certainly do. This is John. We had a similar case. If you go to our web site and look up U.S. versus Kaufman realty, which is a similar kind of fact situation in New York City. An enterprise that was, that had clients who were people with disabilities were seeking to move into a building. Negotiations were going along just fine, until some of the other tenants basically complained to the landlord, to the lessor. The lessor told the disability organization they could move into that space if they used it for administrative offices and not for serving clients. That was an important piece of information. Because it enabled us to prove, which is the hardest thing to do in these cases, the reason why someone is not doing the commercial lease is that it is because of their fear of serving people with disabilities. In that case, we got involved. We ended up suing the entity. By the time we had worked it all out, they had gone to other quarters. But we did get them monetary damages and injunctive relief so the person didn''t do it again. In our view, Title III of the ADA applies to this. We have had a couple of cases over the years on this. Would you give me your name again? Tom.
Tom Eamoe. I am Executive Director of the ARC. Hamilton County.
We will be in touch with you.
Thanks very much.
Good. Next question, please.
Our next question comes from the line of Beth. Please proceed.
Hi, my name is Brand. I just have a couple of questions. I suffered nerve damage in my foot. And I have to have monthly surgical treatments. The last month treatment, the doctor ordered that I should be just working four days, ten hours. As a reasonable accommodation. My managers or HR has not responded. Is there any laws saying ...
This is Sharon. And let me, as John did for a previous caller. I think the thing to do with a specific situation, I am more than happy to follow up with you. Contact me directly. And you can do that, the easiest way, my email. Sharon.Rennert@eeoc.gov. So please email me and we will go into exactly what has gone on and what you might do about it.
Thank you very much.
You are welcome.
Thank you. Next question, please.
Go ahead. You may need to unmute your phone. Okay. We will move on. Next question, please. Lance, can we have the next question, please?
We have a little bit of silence while we are waiting. Sorry about that. I don''t know if it is a technical difficulty or not. Let me go ahead, John and ask you a question regarding the Internet. It is a question we continue to get a lot of issues and such about. This goes to you too, Sharon. A lot of our issues cross a multitude of issues. The ADA as it was written and conceptualized obviously did not include or really look at the Internet. There are a variety of different factors, including how we were using the Internet for communication back in the times when this was all being developed and written. I know there has been some sprinkling of cases. There is obviously the letter from the Department of Justice talking about Title III entities and their responsibilities. And DOJ has put out the facts sheets related to Title II entities and their web sites and such. But this is continuing, the way that we are conducting business anymore, whether it be in the HR world with employers and their hiring practices being mostly an e-commerce type of a situation where you are applying for your job online. You are managing your application online. Once you are hired, most of your HR functions are done online, at least with larger employers. With most companies we have the opportunity to purchase online where we get Internet deals you can''t get in the store or over the phone. Is there any more being developed by either the EEOC or Department of Justice as it would relate to either case law, settlement agreements or any kind of guidance as it relates to the applicability of the Internet?
I will start out and Sharon may have other things to add. We are looking to develop a parallel document, a technical assistance document like the one we have for public entities for Title III entities. But I think it remains our position that we look, even though the Internet wasn''t discussed when the ADA was being enacted, we look at the way the ADA is written. And put the public sector under Title II and private businesses under Title III, if they are engaging in business over the Internet providing services, giving deals that you can only get on the Internet. Certainly there are things that are covered in our view by Title III of the ADA or by Title II of the ADA. I have to be honest and note, there have been court decisions that have gone the other way. They do that because of the use of the word "place" in public accommodation and statute and regulations. I think there is some difficulty there. We will be trying to make this a lot clearer in our NPRM, when that comes out. And dealing with it. I think you are correct. I think it is particularly important where there are special activities or things that can only be done over the Internet, ensuring that it is accessible. In our view, there is guidance out there. The Access Board has done standards under section 508 about what makes a web site accessible. And I think the good news here is that it is not a onerous or difficult thing, especially when you are designing a web site, to make sure it is accessible. There are things that have to be done. There are other private entities that provide guidance on this. I certainly think it is a feature of our modern life that should be and is covered by the ADA. If has been part of some of our agreements, the civic access agreements all deal with web accessibility of local governments. We have dealt with it on some of the private sector issues as well.
From the employment perspective, to answer your question, Robin, at this point in time, there are no plans for the EEOC to issue a particular fact sheet or guidance, specifically addressing computer accessibility issues. But the EEOC has said that employers must make sure, if they are using computers, the Internet, to advertise, to recruit, that they must make sure that overall their hiring process is accessible. And as John pointed out, in this day and age, it is not difficult for employers to make sure that their systems are accessible. But what we hear, and I am by no means a computer expert, that you could have people who have older equipment. A system might be "accessible" from the employer''s side. And someone with a disability who may have older equipment might for some reason still have problems accessing it. I think it is important for folks with disabilities that are running into problems to immediately notify an employer of the problems. That the bottom line is, you want access when you are trying to apply. You can get the application. That you can get whatever materials you need. That an employer must respond quickly to those so that a person is not denied an opportunity to compete for a job. That is first and foremost. And secondarily, what the employer can do to make sure its computer systems are as accessible as possible. Both for applicants and for their employees. Similar issues can come up, that employees need to get the emails going around. The way that employers rely on computers, as opposed to sending out old fashioned written memos and the like.
I think one of the things that is key, the questions and issues we have dealt with, there are some employers that set up kiosks in their stores or places of employment, for where you go and apply. It is more of an intranet, versus an Internet access issue. It is not something I could go out on my own computer at home. I actually have to go into a place and they have set up a kiosk. Instead of writing out the paper and pencil application, I am being directed to the kiosk to apply for the job.
Again, from our perspective that a lot of people might find that an inconvenient thing to come down to the store to actually apply in that way. So in and of itself, I don''t see a violation under the ADA. The kiosk needs to be accessible. If I am using a wheelchair and the computer is over my head, because they are expecting people can stand there. That is a problem. Again, if that intranet system is not fully accessible. So I think employers need to be very careful and think through these kinds of things to make sure they are not unwittingly leaving out a lot of folks with disabilities.
I think it is the accessibility. Not just wheelchair accessibility. For example, having them equipped so they can be used by somebody who might need a screen reader. Things of that nature. We are not finding they are looking at those issues, or even appropriately responding to somebody who may need to do a paper and pencil instead of computer access because of the type of disability or impairment they might have. Especially with the big box store, some of the larger, it is very difficult. The local office doesn''t deal with it. They have the kiosk there. It is maybe a regional HR manager or someone of that nature that is making those decisions. The local folks don''t know how to respond to the person who comes in that can''t use the system.
I think that the individual with a disability obviously needs to be calling it to people''s attention, including the EEOC, if people are running into these problems. I absolutely hear you that oftentimes you have got the IT, the information technology people and some vice presidents all gung ho to be as technologically savvy and current as can be. You don''t have folks who know the ADA around to say, wait a minute. Let us look at the implications. Bringing it to the employer''s attention, as well as the EEOC. If people are being rebuffed, they are not having applications taken. People are shrugging their shoulders and saying, it is not my department. I can''t help you. People should immediately contact the EEOC.
Thanks. Lance, have we got the technology fixed?
Yes. My question is concerning the developed outdoor recreation guidelines. Where is that in the adoption proceedings? Outdoor recreation.
The outdoor recreation guidelines, I am blanking on whether those are part of the ones we have ...
No, they are not.
They are at the Access Board. And I don''t know. Robin, do you know what the status of those are?
Yeah. They are still in the review process. They have not been put out.
I wasn''t sure if they had been put out. The access board, before they issue a regulation, will often put it up on their web site. People can comment on it.
It is on their web site. But it has not moved any further. And it has not gone into the notice of proposed rule making process or anything yet. So the draft guidelines, there is some information available on the access board web site, which is the www.access-board.gov. But it is moving along slowly. There are a lot of issues that have yet to be negotiated with some of the various stakeholders in this that have not yet been worked out. So it has kind of lagged behind some of the other regulations coming out, or guidelines coming out from the access board and continues to be an issue. I would recommend that you go on their web site and, if you want to know specifically what is happening or what is going on, you can send an email directly from their web site. And they will respond back to you to give you the latest update. But I know they have not published anything or put anything out in their monthly access current to provide further update on that for a while.
Thanks, Robin.
Next question, please.
Hello. This is Debbie from the Disability and Communication Access Board in Hawaii. And I was just curious if there is any activity with DOJ and EEOC as employers in working with homeland security and private employers on emergency evacuation of employees with disabilities. I was just at a conference in Washington, D.C. where we were discussing emergency preparedness and planning. And so I was curious if there is any activity happening with that.
This is Sharon. And the EEOC has been involved with a number of federal agencies, including the Department of Homeland Security, including the Department of Labor and their Office of Disability Employment Policy. In terms of evacuation methods. In fact, shortly after September 11, we issued a guidance available on our web site about what actions employers can take in terms of safety and employer''s ability to ask questions to make sure they can do appropriate planning. So that in the event of any kind of an emergency, they know who to account for, and how to provide any assistance, appropriate assistance that may be necessary. The EEOC has not put out additional documents besides that one. But a number of federal agencies are putting together things. And there have been any number, pointing out, of conferences and symposium to make sure that in terms of workplaces, that employers are taking into account the needs of people with disabilities. Clearly for many employers, I would also include visitors with disabilities. So I think there has been and continues to be, and we are not done yet. But there continues to be quite a focus on this topic.
Let me just add, Debbie, nice to hear you voice. The hour before this phone conference, I was in a meeting with officials from the Department of Homeland Security. We are spending actually a lot of our time developing what we hope will be useful technical assistance materials. But our focus isn''t the employment situation. It is really the responsibilities of state and local governments as well as private entities like the Red Cross and other organizations that are engaged in providing, or will be engaged in providing having a role in emergency planning and preparedness. We are very concerned about notification procedures for emergencies, appropriate planning for shelters, whether it is sheltering a place or evacuations or temporary housing, the whole range of issues. And I think the conference you are referring to that was held by the Department of Health and Human Services identified a lot of the areas. There is a great deal of work being done, not just in Washington, but in the states and local governments. And I think we are all very much aware of what some of the problems are and trying to come up with solutions for them. But it is very much, I think it is very actively being pursued. And I think over the course of the next several months there will be some documents that will be developed to assist in state and local officials, private entities, engaged in this, to try to address the specific issues that people with disabilities face in emergency situations.
Right. Okay. Thank you very much to you both.
Next question, please.
I am wondering if there is any guidelines focused around ATMs and/or credit card checkouts, like at a grocery store?
Point of sale, is what you are talking about?
Yes.
The revised ADAAG standards the Access Board has put out, there are standards for ATM machines. But those are the only ones dealing with that. I think we are aware of the growing concern about what are called point of sale machines. Whether you are using a credit or a debit card. Or you may be using some electronic form of government payment as well. When checking out at grocery stores, at big box stores, whether it is Target, Wal-Mart and those sort of things. We are very much engaged in looking at the issue from two perspectives. There is the issue of someone, a wheelchair user being able to have adequate reach-range issues to them, which is covered to some extent by existing standards. But there are also the issues, electronic issues and whether a person who is blind or has low vision is able to use them privately and independently. And we are at this point looking into the issue of whether the technology is there to allow a person who is blind or has low vision to use them. In the same fashion other people use them. But I know a number of states are looking at this issue as well. Some of the Attorney General offices. We are working with them to try to come up with guidance for retailers on this issue.
Thank you.
Yes, I know it is one of the things the Access Board has on there. They talked about they are doing a lot more research and such. There is not a lot of standardization currently about some of these things. I think that is an issue as well. Okay. Next question, please.
Good afternoon. I was inquiring with EEOC whether you have any plans to issue any guidance on employer''s responsibility to recruit through their web sites in an accessible manner?
As I noted earlier, there are no plans right now. It doesn''t mean there might not be in the future to do specific guidance or document on accessible web sites. And EEOC, through other means, including technical assistance, in our various trainings, forums like this, are trying to get the word out to employers to make sure that their web sites are accessible. But even more important, that overall, even if there are some glitches in the accessibility of particular computers, that the information has got to be made available to applicants, employees, that applicants have got to have a fair shot at getting information, at applying for a job in a timely way. We would hope that it would be, if employers are using computers, that they make them accessible. But as Robin was pointing out earlier, that employers can''t just simply shrug off the problems in their systems. They have got to make sure immediately that people have equal access to apply for jobs and then secondarily go back and look at their systems and make appropriate adjustments.
And this includes kiosks?
It would. Anyway that an employer is choosing to do its hiring is going to come under the ADA employment provision. So these kiosks, if that is the method, or even just one of the methods that is being used, then employers need to make sure that folks with disabilities can use them.
Are you saying you issued a technical assistance letter?
I don''t know that we have a specific one on the kiosks. If you want to get a letter from us, please feel free through my email address to send a letter. And we will be happy to respond to it.
Okay. We are at the bottom of the hour here. So we do need to wrap it up. I know there are probably additional people out there who have questions. And we have left them hanging. Unfortunately, that is the nature of the beast in these types of programs where we have a limited time. You all have been given John and Sharon''s email addresses through this program earlier. So I hope they are ready for what they might receive. I always respect your willingness to give that out. Also, please be aware that your regional ADA and Accessible IT center, otherwise known as Disability and Business Technical Assistance Center can assist you with some of your questions as well. Again, they can be contacted by telephone at 800-949-4232. That is both voice and TTY. If you don''t know where your center is located, go online at www.adata.org. And there is a clickable map on there and you can find all of the details about the center that serves your area. The transcript of the session as well as the recording will be available in approximately ten business days on ADA-audio.org web site. I invite you to come back to that for further information or to review the information that was provided today by our speakers. I also invite you to consider joining us next month for our session. It will be a session provided by Andrew Houtenville, Cornell University, the Center for Disability Statistics. It is a little bit of a different type of a session. But we have had a lot of requests for information about how do you look at statistics related to people with disabilities who are employed, people with disabilities who are in various situations. How do you read those statistics? What do they mean? One of the most often cited statistics, there is 70% unemployment rate. That is not 100% accurate. If you took everybody with a disability, versus how we look at statistics for people in a general population which is really only those seeking work. There are a lot of those kinds of things we will be talking about next month and trying to dispel the myths around statistics and giving people more resources, if they are looking for them and to understand the statistics about disabilities. So join us for that session. Again, that is next month on the 17th of August. Same time. More information is available on the web site, www.ADA-audio.org. So I invite you back. Thank you very much for your time and patience today. And let us all celebrate and recognize that we have an anniversary on the 26th of the July, the 16th anniversary of the ADA. There are many activities going on in your communities and such around that. I hope everyone has a great celebration. So thank you very much. And take care, everyone.