The speaker for this session inadvertently provided incorrect information regarding the time an individual has to file a federal law suit after receiving a right to sue letter from the Equal Employment Opportunity Commission (EEOC). The speaker incorrectly stated that an individual has 30 days to file a law suit. An individual has 90 days in which to file a federal law suit and not 30 days as the speaker had stated.
Good day ladies and gentlemen, and welcome to the Everything you need to know about the enforcement of the ADA but were afraid to ask conference call. At this time, all participants are in a listen only mode. Later we will conduct a Questions and Answers session and instructions will follow at that time. If anyone should requires assistance during the conference, please press star then zero on your touch tone telephone. As a reminder this conference call is being recorded. I would now like to introduce your host for todays conference Mrs. Jackie. Jackie, you may begin.
Hi, welcome to the 2008-2009 ADA Audio Conference Series. The Audio Conference Series is a collaborative effort of the national network of regional ADA centers also known as DBTACs Disability and Business Technical Assistance Centers. You may locate the center that serves your state by visiting www.adata.org or by calling 1-800-949-4232. The centers are funded by the U.S. Department of Education National Institute on Disability Research and Rehabilitation (NIDRR). Today''s session is being recorded and the recording along with a text transcript will be available in 10 to 14 business days at the Audio Conference website www.ada-audio.org. In addition to participants on the telephone, we also have people using audio streaming through their computers and individuals using real-time text captioning. My name is Jacquie Brennan and today''s session is titled. Everything you need to know about the enforcement of the ADA but were afraid to ask. And todays speaker is Aaron McCullough. Aaron is a serious professional with a sense of humor. He is the youngest of 4 children and he still resents never getting to pick what television shows he wanted to watch growing up in a one television household. Aaron is a proud Texan transplant, but retains the love of the Ozarks region where he grew up. He is an attorney and a consultant focusing on civil rights law. Aaron is also an experienced lecturer on civil rights compliance with a five-year record of never boring a participant to sleep, but you know that was before today, so we will see how this goes. He is building his own law practice and consulting with a number of governmental entities and architectural firms and other law firms. Aaron is going to talk a little bit and then we are going to break for questions and then he will talk some more and we will break for more questions. So we will have sort of two questions periods during his presentations. So with that Aaron, I am going to turn it over to you.
Hello, we obviously are having some technical difficulties and we have lost our speaker momentarily. So we are trying to regain contact with our speaker and also with Jackie. I am not exactly sure.
Okay, he is calling back in.
Apparently his line had dropped off, so he is going to be calling back in just a momentarily. While we are waiting for Aaron to rejoin us, just a quick reminder to folks about the some of the upcoming sessions we have going on in December. We will be getting an update from the U.S. Access Board on their rule making for Section 255 under the Telecommunications Act and Section 508 under the Rehabilitation Act. Those regulations have been updated so we will get a status report from the Access Board. And then beginning in January we have an exciting 4-part employment session that we will embark on beginning with the January session which will focus on telecommuting as a reasonable accommodation under the ADA.
Well, Peter, I am back and I am sorry folks. I am assuming that you did not hear anything that I said after that.
No, they did not hear anything.
After that beautiful introduction by Jacquie, I often make the excuse for myself that I went to law school and not math school and apparently I did not go to phone school either. So, I will apologize folks for wasting a few minutes of your time but I know that, I trust that Peter gave you some additional information about future telecast. Let me reiterate what I said, when I was speaking to a dead phone for a few minutes. Again, I want to thank the DBTACs for bringing me here. I also want to assure you that we are going to give you every opportunity to ask your question. I really like this type of training and my first opportunity to do a training on enforcing your rights was actually driven by a group of advocates affiliated with the center for independent living here in Texas. They had a very aggressive self-advocacy training cadre that they were bringing up in the community. That group had directly requested a specific type of training and that was to be exposed to a legal perspective on the nuts and bolts of enforcing the Americans with Disabilities Act. So, this was truly drawn from the community and that group I believe has went on to be one of the more effective group of advocates and self-advocates in the state of Texas. Achieving a great deal of improvement and accessibility in their communities. And building good relationships with the school district, the city, the county, the transportation authority and the various cross ability organizations. So, this is something I really enjoy to do and I will try to expect express my enjoyment over the phone and make up for my gaffe of speaking again into a dead phone. So, going back to the original purpose, undoubtedly, the Americans with Disabilities Act has a reputation for being hyper-technical. Undoubtedly, the Americans with Disabilities Act has failed to achieve everything that a person with the disability and advocates for people with disabilities would wish that it had in the 18 years that it has been in existence. But, undoubtedly, the Americans with Disabilities Act has caused a huge amount of improvement and some basic accessibility. There is a long way to go. And part of that is to embolden the community of people with disabilities to pursue their own rights. I am going to give you a little bit of a civics lesson that I think it is kind of important to place this in context. Think of it like this, in the 20th century, we had a sweep of civil rights regulations that increased the coverage of the constitution across groups that have previously not been protected under the constitution. Women were accorded the right to vote, with the passage of the Civil Rights Act, people of color or other national origin, and people despite their gender were protected against certain discrimination but what was missing? Again, we had the sweep of the civil-rights act, you know basically in the second half of the 20th century, were there any number of groups, power minorities if you will that were not covered by the sweep of that law but a key group of people with disabilities. And so, shortly thereafter, shortly after the passage of the 1964 Civil Rights Act, you had a culture of folks who were experienced in civil right advocacy, had an expectation of expanding protection of the Constitution but nevertheless were not covered. So you ended up with the same type of advocacy that I think drove the Civil Rights Act for those advocates of people with disabilities and those advocates with disabilities to get the passage of the Rehabilitation Act in the 70s. The Rehabilitation Act is most of you probably know, again covers the behavior of the federal government and those people who receive direct federal financing to provide access to programs and services and of course facilities funded by federal money. But this again left out a huge amount of protection, basically the gap that the Americans with Disabilities Act filled in. The ADA and again I am sure most of you know this, the ADA is an omnibus civil rights act. It is sought to achieve all the gap filling left by the Rehabilitation Act. The Americans with Disabilities Act is a huge law that draws from this deep history of civil rights legislation and regulation to again protect people with disabilities from discrimination. Without getting too technical, again this covers people with regards to employment, with regards to access to state and local governmental entities and we will talk about what those are in the program and services offered by those state and local government entities as well as access to private sector businesses and commercial facilities that are open to the public. As well as a few other niceties such as providing access to telecommunications and protection against retaliation. So, this was a bold law that was passed. And the expectancy of the people with disabilities was that this was going to fix everything. And I think the promise of that has not been delivered. And part of that is because again there has been a great deal of litigation. I think particularly in the early and mid 90''s. If it was not for criminal appeals before the Supreme Court, or Native American land grant issues or Bureau Land Management lawsuits, the biggest and most common issues in front of the Supreme Court was the Americans with Disabilities Act. And that to a certain extent, to be expected because again we have a new set of law that purports to do a whole lot of things and move toward a sea change in a way that people with disabilities are able to access the world around them. Okay, so again more specifically, the Americans with Disabilities Act protects people in accessing their community and in accessing employment and accessing transportation but how is it enforced? I think what gets buried in the most obvious part of the Americans with Disabilities Act is the fact that it is a civil rights law. All too often in the minds of let say city planners, even in the minds of some advocates, this is what I have heard referred to as a wheelchair ordinance or a Braille sign ordinance. They tend to think of these things as a local or building code related. The build-in environment aspect of the Americans with Disabilities Act and that accessibility guidelines that flowed from that law that were these regulations created are obviously the most obvious change that has occurred. Most new construction, at least that construction that is well funded, at least try to comply somewhat with the Americans with Disabilities Act. A significant amount of remodeling at least makes that effort to comply with the Americans with Disabilities Act. And we will discuss perhaps later why they may fail. But again, what is getting lost in the mix is that this is a civil rights act. And a civil rights act is only enforced two ways. A civil rights act is enforced through complaint to appropriate federal or state agency, or through private lawsuits brought by covered individuals against entities that are covered under the law. And so while there may have been a great deal of initial concern, on the part of lets say county governments and school districts to assess their ready level of accessibility early in the process, and there may actually have been some action toward making their programs and services for example accessible. And there may have been a great deal of concern in the small business community on what they needed to do and so you saw some patchwork approach to making existing facilities accessible and again I think a more successful bid of compliance with regards to newly constructed facility. But again, that is the affirmative compliance. These are the folks, the agencies that decided to comply. And those that fall short, those that delay, those that ignore for whatever reason, their obligation to comply, all too often are not going to comply unless, one, they get complaint against, and they receive a notice of that complaint from again the appropriate federal agencies in some cases state agencies, or two, they are sued by again a person with a disability. So and I cannot emphasize this enough. But I do empathize with the fact that that seems to be a complicated process. Well, that is why we are here to discuss. Now I want you to come up with a lot of really good questions, but I am going to kind of thumbnail, well I am definitely going to thumbnail for you the mechanism of compliance. We are going to start with the discussion of employment, what Title I of the American with Disabilities Act is and we are going to talk about Title II just a little bit over there and we are going to break for questions after that. Then we are going to talk about accessing the program and services and facilities of state and local government entities and accessing those places of public accommodation and commercial facilities where those private businesses and facilities open to the public, after that and break for another round of questions. I think that is how that is going to work. So, let me get into the meat of the discussion. I am sure many of you if not most of you know that the Americans with Disabilities Act is broken up into titles and we have already referenced those. Think of them as chapters in the book that is the Americans with Disabilities Act. And each one covers a discrete portion of that omnibus civil rights act. Title I provides the vast majority of the employment protection information under the Americans with Disabilities Act. There are some complications under Title II and we will talk a little about that. Title I or the employment provisions of the ADA, first of all, cover people in the application process for employment. Cover them in the interview process of employment and hiring during of the course of their employment and enjoying the benefits of their employment. So at all stages of employment, Title I has some input. Well, who is covered by the Title I? What type of employers are covered? Well, the vast majority of private employers are covered under Title I of the Americans with Disabilities Act. As well as the vast majority of public employers at the state and local government level. Federal employers'' for the most part are not covered under Title I, they are covered under the Rehabilitation Act. There are discrete parts of the government including the Congress which are covered under the Americans with Disabilities Act Title I. Now, Native Americans, employers that are clearly lets say part of a tribal own businesses, on a Native American reservations are not covered and private employers, that have less than 15 employees, private employers rather that have less than 15 employees are not covered in the Act, under Title I of the Americans with Disabilities Act, under most circumstances. And I get asked this all the time, where does this number come from? The 15 or fewer employers, or 15 or more employer number is drawn out of Title VII of the 1964 Civil Rights Act. It is drawn from previous legislation and regulatory laws that basically established that employers that are this small, may not be able to muster the kind of professional human resources services that would be required to comply with this law. It is also about to a certain amount of logic about how most small businesses start and prosper and grow into larger businesses. The vast majority of small businesses are generally staffed by families. And to a certain extent, again, I think this somewhat arbitrary number was placed at that point to respect how most small businesses start. Now again, I said under most circumstances, it is 15 or more employers in the public sector to be covered under the Americans with Disabilities Act Title I. There are some exceptions. First of all, you may have a stand alone state statute where you live that mirrors the ADA, in fact may actually borrow the language or incorporate by reference the Americans with Disabilities Act Title One. However there may be amendments and in fact in any number of states, there are, where they cover smaller private employers. For example, Arkansas has a basically parallel set of civil rights protection for people with disabilities and employment in the private sector but instead of a cut off of 15 they have a cut off of 6. In addition, you may have state compacts with the federal government where you have a similar set of laws but in fact, excuse me I am losing my voice, but in fact, the number has been reduced. I believe New Mexico is part at 6 or 8. I cannot speak to all the states. But they may have, you may have a state with an agreement with the EEOC were they have parallel jurisdiction. However they have agreed to cover, or they have adopted that set of protection that mirror the ADA but again extend the coverage to a smaller employers set. Okay, and we can talk more in detail about that if you have questions specifically. Like I said, in addition to the provisions under Title I, there are some protection for employers, employees under Title II of the Americans with Disabilities Act. And we will go into detail about what Title II is but again Title II provides access to the program and services of state or local government entities. State or local government entities are defined under the Americans with Disabilities Act are basically any state or local governments authority, anyone acting under the authority of the state or local government entity. So it is not the federal government, it is not a tribal government, but it can be anything from your legislature to the governor''s office to your county judges, to your city alderman, all the way down to the programs and services offered by the parks commission, all the way to animal control. Again, essentially any program or service that is offered by less than the federal government but it is an elected or appointed governmental body or program offered by them. So it is a pretty broad set of protection. There has been some any number of situation where you have smaller governments, for example, I will use I believe Hereford, Texas. Hereford, Texas is a small Texas town that has a mayor, a constable, a couple of city clerk''s, some part-time janitorial staff, as well as some contract labor that is truly independent contractors and would probably fail the EEOC test for employees. They have far fewer than the 15 employees necessary to become vulnerable under Title I of the Americans with Disabilities Act. However, the Title II of the Americans with Disabilities Act has covered those employees of the public entities even when there are fewer than 15 under certain circumstances. However, this is an issue of controversy. In fact, we have what we call a circuit split in the Court of Appeals. We have decisions holding in the 2nd, 4th, 5th, 9th and 11th Circuits that have dealt with these issues. And there is a certain amount of split. Even in the 9th Circuit, there is what we would call an inter-circuit split. There is a difference of interpretation on whether or not Congress intended to have this cover employees. There may be an opportunity so we encourage even those folks who were working for a small state agency or small city organization who have been, nevertheless been discriminated against on the basis of their disability to endeavor to protect their rights. And in fact, they may be within a circuit that has not made a decision or a circuit that has made a decision and again support their rights under the Title II of the Americans with Disabilities Act. That is all pretty hyper-technical and I want to get to the meat of it. I mentioned earlier that there are only two ways that the Americans with Disabilities Act are enforced and that is through complaint federal agencies and through private lawsuits. Title I is a little more complicated than the other titles with regard to filing a complaint and filing a lawsuit. The relevant federal agency under most circumstances for filing your complaint of employment discrimination is the Equal Employment Opportunity Commission or what you may know as the EEOC. There are regional field offices across the country where you can file a complaint if you have been discriminated against on the basis of disability. And I have to say this, the second prong of enforcement is of course private lawsuits. Under Title I only you have to file with the EEOC under most circumstances in order to get to the point where you can file a lawsuit in federal court. Now, this isn''t just a mere formality. You have to do what they say, what they call exhausting your administrative remedies. Now, in no way is the EEOC capable of entertaining, investigating, and making a determination on every complaint of discrimination that comes in front of them. So often, the EEOC will direct a complainant to the fact that they can hire a private attorney. Now, they are not going to necessarily make referrals to private attorneys although that has been known to happen. But you, but under those set of circumstances, often if someone has engaged the services of an attorney, you still have to file the complaint. And again, I am going to kind of walk you through this. I am going to walk you through the complaint process and then I am going to talk to you a little bit about the litigation. You have been discriminated against as an employee, you are pretty clear that you are covered under the Americans with Disabilities Act as a person with a disability. The definition of disability is an entirely different lecture. But let''s assume you are clearly covered under the Americans with Disabilities Act. Your employer has more than 15 employees, you have documented the nature of the disability discrimination, you have some evidence on your side, you started to collect and print the emails where relevant, you kept your documentation any letters that you have been sent. You have to gather up all that information. You have begin to create paper trail and you need to file your complaint in a timely manner with the EEOC. Under most circumstances, your deadline for filing the complaint with the EEOC is 180 days or approximately 6 months. Under again most circumstances, if you file your complaint, 9 months or a year later, you have lost your opportunity to file a complaint with the EEOC unless you can convince them why you did not timely filed. And most circumstances they are not going to entertain the nature of the complaint. So again, think of that as a hard deadline in most jurisdictions. However again, in some states, in some localities where there are agreements with these local collateral jurisdiction agencies, you may have an opportunity to extend that to as long as 300 days for example. So you want to make sure that you file it timely. I am going to encourage you that your evidence is going to tend to disappear but if for whatever reason you have been eclipsed from doing so or you have not felt emboldened to do so or you found new evidence suggesting that your dismissal was for example based on disability animus, you might want to check and ensure that you do not have that extra time. But under most circumstances, if you know you have been discriminated against, you want to get in and file your complaint as soon as possible. Now, I mentioned that you can also hire an attorney and file a complaint or rather file a lawsuit in federal court. You need to do so also in a timely manner. Now, sometimes when you hire an attorney, they will file the complaint for you and ask for what they call a right to sue letter. What is euphemistically known as a right to sue letter and it just becomes a formality to file the case with the EEOC and they will fairly quickly issue a right to sue letter to you and your attorney can act on that. Under certain circumstances, you may file a complaint, the EEOC may investigate or may not be able to investigate to be honest and after a period of time, as long as in some cases 200, 300 days or more they may issue a right to sue letter. Understand that you have deadlines then. Under most circumstances, once you have been issued a right to sue letter, you have to file your lawsuit within 90 days in federal court. And I will entertain some questions about that a little bit later. But you need to kind of keep in mind those 2 deadlines. 180 days from the date of the discrimination under the employment provisions, under most circumstances to file your complaint. Once you filed your complaint, how whatever avenue you are going through, once you receive that right to sue letter you have 90 days under most circumstances again to follow lawsuit. So, let''s talk a little bit about the complaint process. The EEOC for the most part, is staffed by investigators and employee attorneys. Employee law attorneys. Who I think are some of the finest and to be honest most dedicated civil-rights attorneys on the planet. However, they are way outnumbered by the amount the number of complaints and way understaffed under certain circumstances. And I will provide for example, think about all the pending EEOC complaints and the Gulf Coast region during the Katrina, Rita hurricane disaster. And then think about the amount of people that got displaced, federal courts that got shutdown, federal agencies that got shutdown, federal attorneys and investigators relocated, as well as those complainants relocated to other parts of the country. And for the most part, those expanded Gulf Coast EEOC agencies try to absorb that. And I am sure this has occurred in Florida and California, other places where there tends to be long-term and devastating national disasters. That tended to push to be honest, the ability for those offices to receive and honestly investigate cases out the door. Now, undoubtedly they did their best and they did pursue any number of cases, but all too often, they merely issued after a cursory investigation the right to sue letter and drop that on a vast majority of people who may already been displaced. So I want to encourage you again to you know, to definitely file a complaint with the EEOC if you feel that you have been discriminated against. At very least if you feel that you have been discriminated against and you cannot afford the services of an attorney and you cannot get an attorney to agree to take you on a contingency fee basis. You want to consider filing the complaint regardless. We are going to talk a little bit about the complaint process, but I want to talk to you about why you should file a complaint. If you don''t file a complaint, you will not get any justice on the basis of your disability discrimination claim. Again, the only way that this is enforced is through your lawsuit and through your complaints. The EEOC on their website eeoc.gov, have made it abundantly clear how to contact your local EEOC office. Your local Disability and Business Technical Assistance Center or your regional ADA Center can certainly provide you with some information on how to contact them. All of the regional ADA Centers websites have information on filing a complaint of employment discrimination and it is a very specific information that can walk you through the process and provide you with some guidance and what you have to do. But I think it is important that you understand why you need to file a complaint and that is because there is no other way to get the justice that you know that many of you may seek after getting discriminated against. Okay, do we have any questions regarding employment provisions of the ADA and enforcing those rights, Jacquie?
Operator, can you come back on the line and explain how questions are asked?
Sure. Ladies and gentlemen, at this time, if you have a question, please press the 1 key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. Again, at this time if you have a question, please press the number 1 key on your touch tone telephone. One moment for our first question. And our first question, your line is now open.
Okay. Does the ACLU or the Legal Aid Society act as attorneys for the disabled? If any of these file lawsuits or can they?
I am going to restate the question to make sure that I got this right. I think the question was, do any of the Legal Aid Society''s act as attorneys with regards to workplace discrimination cases? And it is actually really good question because you ran right into a point that I fail to make. Under most circumstances, your local legal aid organizations will probably not entertain civil-rights issues. Increasingly they are focusing more on access to health care, protection of women against violent spouses and boyfriends, immigration issues, and housing issues. However, in every state of the Union and even in our territories we have organizations called Protection and Advocacy organizations. In the state of Texas, it is Advocacy Incorporated, in other states it is going to be similarly named. There is a National Association of Protection and Advocacy called NAPAS that can provide a listing for you and I do believe that is napas.org. that can provide you with access to your information about your local protection and advocacy. And I will explain shortly what Protection and Advocacy organizations are. They are organizations that are funded to protect the rights of people with disabilities with regards to a lot of laws including the Americans with Disabilities Act. And again, these are some of the most dedicated and finest civil rights attorney that I know. Jacquie used to be one. However, you got to look at certain realities. You can certainly contact them and see whether they would be interested in entertaining a complaint and taking a case. But do not be surprised if they cannot do so because they just basically don''t have the resources. I think the state of Texas has fewer than 10 attorneys for a state with over 20 million people in it. You know arguably you know certain percentages of those I think Texas claims about 13% disability rate, who are disabled, they cannot respond to the sheer number of complains that they get. And again they have obligation to protect the rights of people under various, usually various grants including those issues dealing with for example schools or concerns at time as well as developmental disabilities, the right of institutionalized persons. And so I think that they are an enormously effective resource. Not only because they might take your complaint but any number of them do network with some private attorneys who are a little more flexible perhaps and their willingness to take cases of this type. But I am going to tell you with regards to Title I of the Americans with Disabilities Act, you are going to find more attorneys willing to litigate under the employment provision because it is more familiar to them. Not only is the employment aspect of the ADA the most complained and the most litigated part of the ADA, because of how important employment is but also because there is a willingness of the attorneys to take it because the employment discrimination provision of the ADA may be different than those under Civil Rights Act including Title VII of the Civil Rights Act, but the language of the ADA was largely borrowed from them. So there is a comfort level. The vast majority of employment discrimination plaintiffs firms will consider a good ADA case particularly if there has been retaliation or you can tie it into an age discrimination issue as well. So again, I would not totally discourage you from seeking an employment discrimination, the private sector but again, it is the private sector and inevitably it is going to cost some money. I hope that answers your question Caller.
How about the ACLU?
The ACLU focuses on civil liberties issues. And the difference between civil rights and civil liberties is a big difference lecture. The ACLU has developed some good resources on civil rights concerns and I am sure that there has been some local ACLU offices that have engaged in some civil rights work but for the most part they focus on other constitutional protections.
Okay, thank you.
Any other question?
Thank you. Our next question comes from the Captioner. Your line is open.
Hello, this is the Captioner, I have a question. Lets see, would a large retail agency like Walmart who are requiring applications to be done online in violation of Title I?
And the question I got is for example you are a large box retailer that appears to be requiring that application be conducted online which may put a lot of barriers up for a lot of people with disabilities. Would that be covered under Title I? Assuming that they did not accommodate a real need of somebody with a disability that was unable to utilize that service because of a disability, then it would be covered under Title I of the Americans with Disabilities Act. Because again, you are protected in application, in the interview process, in hiring, and in your employment. I hope that answers your question. Any other questions?
Thank you, our next question, your line is now open. If your phone is on mute, please un-mute it.
And don''t feel bad. I did that.
I guess we will go to our next question.
But get back into the queue.
Our next question, your line is now open.
We don''t have a question. We dont have one.
Okay, our next question, your line is now open.
Yes, can you hear me?
Yes, I can.
Okay, we were just curious because you were talking about the deadline for filing your complaints. And if an employee has a cognitive or a psychological disability and does not understand and this is a deadline, what happens in that case?
That is an interesting issue. I would say under most circumstances, if they miss a deadline, they are going to miss a deadline. I mean, you might convince the EEOC that that is the case, but I am going to tell you under most circumstances they are going to stick to the 180 or the extended deadline.
Okay. Even if somebody had a head injury and they cannot, they did not understand that there was a deadline and then they try to file, you don''t think that they will understand?
I am going to tell you under most circumstances, no. And that is because at a certain point it creates an injustice even to the other side. At a certain point you know, why would an employer need to keep that information, witnesses disappear, move on in their lives, died in fact and so there is a reason why we have statutory deadline that kind of drive procedures. As empathetic as I am, I am going to tell you under most circumstances, under most circumstances they are going to stick to the 180 days. Now again, that is from the date of the discrimination and understand that is a discrete discrimination. There are circumstances where the discrimination is ongoing, someone has not for example been terminated, someone was not just denied one time an accommodation. So there may be an opportunity to revisit under those circumstances, I am not, I don''t tell people to go back and get - no actually I do tell people go back and get discriminated against again. It is kind of an awkward way to put it but there may be an opportunity with regard to some rights and some types of discrimination where you can go back and un-ring the bell and start the tolling over again. But I encourage people, that is why I encourage people to get on this soon. If you feel that you have been wronged and maybe you have some cognitive issues like you said a head injury, then I would encourage you to work with an advocate who maybe can identify that you have been discriminated against or you may have been discriminated against. This is why I say that you need to be willing to file a complaint so that you are prepared to get on this as an issue. If you need some assistance to a certain extent within the deadline, the EEOC can assist you. They can take complaints over the phone, fax, email, you know if they are not too busy in the office they may even schedule a face-to-face, which may help somebody to be honest to make their case for complaint. But under most circumstances they are going to hold you to the deadline. I hope that answers your question.
Okay, thank you.
Thank you, our next question, your line is now open.
I am glad you got here.
I wanted to go back to something you were saying about, it is not a formality to file with the EEOC folks, but sometimes you actually make it so that it is a formality because all you really want is to get the right to sue letter because you really want to file a lawsuit.
Well, for example, lets say if you got a clear-cut case of discrimination, you got great evidence on your side, and you are not poor, okay, and I hate to be blunt, but you got the 10 grand or the 5 grand to drop in front of a really high quality employment discrimination attorney, you archived all your emails and you got good letters, you got somebody who has got pending complaints against them and so it is kind of a you know waiting out through the EEOC investigation process it is just delaying the inevitable. So, either you can ask for the right to sue letter, assuming that you have retained the services of an attorney or assure that you can within 90 days or you can have your attorney make that request for you. And so it becomes just something of a formality and that is something that I have done with other attorneys. It is just you know we used to wait for the investigation, under certain circumstances because it allows the employers to tip their hand a little bit. But the employers have gotten fairly savvy and we find when I am working with some firms, they made the decision that discovery is a better process for getting this done and getting it started soon. Because again, if you wait for the right to sue letter to come from the EEOC it may take a long time. I hope that answers your question.
Thank you, our next question comes from the Captioner.
I am going to say that this is probably the last question we can take on this so that we have time to finish off the rest of the topic.
Thank you Jacquie.
Okay, no problem.
This is a question from, the question is, why doesn''t the ADA have more teeth, i.e. regulations and penalties for businesses?
This sounds more like a Title III question. Did you get that Jacquie? I didnt quite hear that.
Yes, sounds like something you will be covering in a moment.
I am pretty sure I will be covering that in a moment. And if I don''t get into that, then I am going to encourage you to re-queue and ask that question again because it sounds like not an employment question, but a question about penalties and remedies against Title III entities. And again we did not really go into remedies a lot with regards to employment because again I am going to tell you the whole Title I discussion is multiple you know hour and the half long webcast or rather teleconferences. But typical remedies are compliant, potential back pay et cetera. The same kind of remedies that you will tend to seek under Title VII discrimination cases, Title VII employment discrimination cases, on race based, gender based issues as well. With the notable exception of the right to be reasonably accommodated which is unique to the Title I of the Americans with Disabilities Act. Okay, we are going to move on the Title II and III of the ADA. And these have some interesting I think some procedural components that I have verified recently with the Department of Justice. As I mentioned earlier, Title II of the Americans with Disabilities Act covers people with disabilities against discrimination and accessing the programs and services of state and local government entities. Again, anything that is an elected or appointed governmental body that is not the federal government or Native American government, under most circumstances is a Title II entity. And the protection is about accessing those programs and services and this is going to include facilities under most circumstances, but understand we are not talking about total access. We are talking about accessing the programs and services in a meaningful and comparable way that those people without disabilities. This is a huge obligation for Title II entities. And it covers, there is this specific regulation that go along with those general protection such as the obligation to, you know back in the early ''90s a turn in the curb cut and side walk plans to promote an accessible pedestrian infrastructure within municipalities, the obligation to make transportation services accessible including the creation of complementary demand response public transportation services like paratransit services. So it governs a huge amount of the behavior of state and local governmental entity. And there is really not a single part of your state or county or city government that is not touched by the Americans with Disabilities Act Title II. I am going to talk to you about Title III as well. This was probably the biggest achievement of the Americans with Disabilities Act, was to extend the protection of discrimination outside of government into the private sector the way that the 1964 Civil Rights Act did. So this covers any business that is open to the public and any commercial facility that is open to the public. So everything from retail centers, large box retailers, professional offices including dentists and doctors and attorneys and accountants. Recreational facilities such as bowling alleys and lets say private golf courses under most circumstances. And the only real exclusions that are out there are for those things that are under most circumstances, private clubs, those private clubs that satisfy the IRS definition of what a private club is, so those organizations like The Elks, The Shriners, The Order of the Eastern Star, to a certain extent country clubs, although country clubs have become vulnerable depending on their behavior and whether or not they actually lease their facility or provide access to the general public outside of a core of peer membership. And there is a great deal of exemption for religious entities with respect to the facilities owned by for example, churches. Now, again, under state law, you may reach into these types of facilities in ways that the federal law does not. For example, the Americans with Disabilities Act accessibility guidelines is not going to affect or cover the construction, the design and construction of a church, of a place of worship. However under state law, the Texas Architectural Barriers Act, for example, and the ADA equivalent Anti-Discrimination Act under Texas law, you are going to find that there are going to be aspects of that design and construction that are going to fall under this coverage. So, the only thing that is specifically excluded is the portion of the facility that is part of the worship. But those more public areas are going to be covered under law, but that is a state law issue. So as you can see, this covers, this is where the rubber meets the road, to be honest. This is where most, you know most people think of what the ADA is trying to achieve and to a certain extent the ADA did achieved, was provide this broader access the way that we live our daily lives. You know, it is shopping, paying taxes, going to public educational settings, taking advantage of public transportation at times, accessing private transportation as covered under Title III of the ADA. Again you know, I am really thumb nailing this for you because there is a lot of specifics. Now, you are again, this is part of the same set of Civil Rights Act, so the only way that you can enforce your right to access state and local governmental programs and services and access those public, those businesses open to the public and those private and public transportation services and ensure that you are not, that your rights are going to be respected when you have been discriminated against is to file a complaint with the appropriate agency, usually federal but often a parallel state agency or file a lawsuit. And again, there is a remedy discussion here but which I think is more appropriate for under most circumstances to a longer, lengthier ADA primer for example. But we will talk a little about remedies. Okay, I advise you that under most circumstances, you default to the EEOC under employment, with regards to enforcing your rights under Title II and Title III you got a lot more choices with regards to enforcement. The primary agency for enforcing your rights under Title II and Title III is the Department of Justice. The U.S. Department of Justice who wrote most of, promulgated rather most of the reg that breathe life into this part of the ADA. They have their own complaint process, and I am going to walk you through this with some examples. And then I am going to talk to you about transportation and education which is a separate animal. And then leave enough time hopefully for some questions. The U.S. Department of Justice is going to take complaints to the nature of when you have been denied access to the programs and services of a state and local governmental entity or a Title II entity. They have a process for receiving complaints, they have a very specific complaint form that you can download or fill out on-line at usdoj.gov. Now, the handout that I gave that should be attached to this lecture, posting on the teleconference site, provides I think more specific information about the address, the fax number and the web address for filing Title II complaints. And essentially the Title II complaint is asking, the Title II complaint form is asking you to provide the kind of specific information that will give the U.S. Department of Justice enough information to be interested in pursuing it. It is asking the who, what, when, and where, the nature of the discrimination. Again, I am going to encourage you that if you feel that you have been discriminated, in say accessing your public library because they are not providing services that are accessible to you because the stacks are on the second-floor and they are not staffed adequately to pull books that you have requested or provide some other way for you to access those services, or there is a blanket prohibition against somebody with a developmental disability from partaking in say a local, the services of a local lets say swimming program at a public pool. These are the types of things that you can file a complaint with the U.S. Department of Justice about. They are going to want you to very specifically indicate who you are, who the person with the disability is, if they are not the ones who are filing the complaint, the contact information of the person filing the complaint and assisting the person filing the complaint, they are going to want to know who ever you contacted within lets say that city recreational or that parks program on swimming. They are going to want you to give a timeline of facts, if you got photos that support your claim or you got emails or letters that supports your claim, they want you to send attached copies of that. And there again, a pretty specific checklist of questions they want you to answer so that they are armed with enough information to pursue the claim. Similarly, under Title III, under many and I think most circumstances, the Department of Justice will take a complaint where you have been denied access to businesses that are open to the public where there is public accommodations and those commercial facilities that hold themselves open for business. If you have been discriminated against on the basis of your disability, similarly, you can file a complaint with the U.S. Department of Justice. You don''t have to fill out the specific form, but following that guideline is actually an excellent model. It is probably better that you endeavor to solve this outside of that process and I tell you this because, I tell you this for a variety of reasons. One, you may find that you can solve this without a complaint or a lawsuit. That is always the best. But in trying to solve this for example, negotiating with a private business and communicating with them for example through writing or email, you are creating the paper trail that may provide you with the kind of evidence of discrimination that you need to file a complaint that is going to catch the notice of the U.S. Department of Justice. Now I mentioned equipping them with enough information to be interested, I mentioned catching the notice of the U.S. Department of Justice. Imagine every potential complaint and actual against a state or local government entity that has denied access to a person with a disability and every potential complaint against every restaurant, bar, club, recreational facility that has denied access to a person with a disability either through act or through omission, through let''s say, not properly constructing their facility to be accessible. Or you know accommodating a person with disabilities in other ways so they can access those goods and services. Imagine the potential of complaints. Now, the actuality is there is a lot of complaints. In no way is the U.S. Department of Justice able to staff enough to entertain all of those complaints. So you are better if, you stand a better chance of getting them to take your complaint seriously if you take your complaint seriously and you provide the kind of documentation. So again, the paper trail, the email, the letters, you know being polite tempered and tone, but sending things certified mail tends to get peoples attention, it also provides you with evidence if they received the nature of your concerns and if they fail to respond in lets say you know a timely manner, then you, that is additional evidence that you can put in your narrative when you are sending your complaint to the Department of Justice. And again, there is information about how to file a Title III complaint link on their website and I have provided you with the link to that website in the material that I attached to this teleconference. Now this is an interesting issue. Understanding that there is no way that they can take all the complaints, so why should you endeavor to make a complaint? Because again as I indicated, if you don''t do it, it is not going to happen. The only way that you can enforce your rights is to file a complaint or file a lawsuit. Now, here is an interesting issue. What about filing Title II and Title III lawsuits? Well, there are far fewer attorneys that will entertain Title II and Title III lawsuits, so that does not mean there are not any. And I am going to talk to you a little bit about that. I mentioned the Protection and Advocacy organization in each and every state and territory. Again, they are equipped and charged with taking complaints of about Americans with Disabilities Act violations. They are under no obligation to take every case or investigate every case. But the better your case is, lets say the more widespread its potential effect, even better if you get more of your peers with disabilities to sign on and provide additional evidence, you might interest the protection and advocacy in taking your case and trying to reconcile the discrimination with the parties involved and or file a lawsuit. So again, more reason to think of your discrimination in the complaint mode to protect the kind of evidence that you would need to file a complaint to support someone in potentially representing you in a lawsuit. Now you know I mentioned the private sector a little less likely to take this case and that to a certain extent is to be expected because these aspects of the Americans with Disabilities Act, this part of the law is not drawn, is not as much drawn from previous civil rights legislation and regulatory laws. These are the unique provisions of the Americans with Disabilities Act that make, that distinguish it from other omnibus civil rights act like the 1964 Civil Rights Act and other amendments. And to be honest, there are not that many attorneys who are very familiar with the requirements under Title II and Title III, besides those that work for lets say the Civil Rights Projects or Protection and Advocacy organizations. But there are some that do specialize in broader, who do take broader civil rights claims and so you might be lucky enough to live in a state with an excellent attorney. I don''t name them the ones that I know because they got enough people who are referring to them right at the moment. But again you might be able to find an attorney. Now I understand this, it is the private sector, in all likelihood, they are going to want some sort of remuneration, they are working for a living as well. This is why one strategy that I know people have taken is to work with cross disability organizations or discrete disability organizations to help support those private sector attorneys who might be otherwise unwilling to take a case. It is expensive to file a federal lawsuit. And so, a lot of the up front cost asked for, a lot of the up front retainer that is asked for is to cover the initial cost and ensures that the attorney will at least going to get paid for a great deal of the initial work. Under certain circumstances, non-profits are unable to, say for example, to use the attorneys that they have in California to handle a case lets say in South Carolina. But they might marshal the support with the lets say the national and the regional organizations to put together enough funding to support a private attorney in taking that case in South Carolina. So, if you are an active member of a cross disability organization or a discrete disability rights organization, you might consider working with those groups, to again identify the like-minded attorneys in the private sector who would be more willing to take the case. Again, there are circumstances where attorneys will just take this, will take that and bear the cost of the litigation but they are few and far between. And I am not one of them because again it is expensive. Okay, where are we at? I think we are going to entertain some questions.
All right, do we have any questions, Operator?
Yes, ladies and gentlemen, at this time if you have a question, please press the 1 key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key.
Aaron, before we take anymore questions from our phone participants, I have one that was submitted online. And also, this really quickly, the folks can also access the Title II complaint form and how to file the Title III complaint form going to the ada.gov website. The question that was submitted online wants to ask why are zoning ordinances exempt from coverage under Title II of the ADA?
They are not. Zoning ordinances are potentially covered under the Americans with Disabilities Act if they are going to, tend to create a situation where people with disabilities are discriminated against and then those ordinances may in fact be unlawful. And so you may just be getting shine on by a local official. And I hope that answers the question of the online, online questioner, if it does not, please send another email. Next question?
On the phone line, our first question comes from the Captioner. Your line is now open.
This comes from, I am writing a paper on gas station assistance that the ADA calls for gas stations to provide for people with disabilities. Why aren''t businesses penalized for not complying with the ADA? Why doesn''t the ADA have more teeth?
Okay, that is a good question. Somebody has got a particular issue under the lets say Title III of the Americans with Disabilities Act and they are disappointed that under this, that there is less affirmative compliance, that there is less voluntary compliance. In this case, it is an issue surrounding gas stations and I am assuming assisting of patrons with disabilities on those self-serve centers. And the questioner is you know rightfully concerned with why doesn''t the ADA do more? By trying to emphasize something I have not done enough, is that the ADA is not an organization, the ADA is a civil rights law. So unless you file complaint, and file lawsuits to enforce those rights, under a lot of circumstances, they are not going to get respected. And this is one of those. On a single staff 18 pump convenience store that is on a busy corner, a lot of turnaround, all too often the needs of an individual with disabilities who needs assistance in pumping gas, is going to be missed or actually ignored. And if it is actually ignored, then you can document that and it is fairly easy to document. Get somebody with a video camera to and date stamp it and show you are attempting to get help you know, and provide that information in your complaint that you have this evidence. Write a letter to the owner lets say of a local franchise and ask them why they did not provide this service, see if they give you anything back. If they give you anything back then attach that, a copy of that information, that email or that letter in your complaint. That is the only way this is going to get enforced, is if you file complaint or file a lawsuit. Now I understand your outrage, but again you need to channel your outrage into pursuing enforcement. Next question?
Thank you, our next question comes from, your line is now open.
In terms of denial service though, the ones that I always thought were kind of most interesting because these are the ones that you don''t really realize you were doing until it is done. And that is whenever you have a theater group performed at the commons for instance or on the theater, they would call people up to the stage.
Your line is open, are you asking a question? Operator, why dont we go to the next question?
No problem, our next question comes from, your line is open.
My question is under the Title III. I mean like I know that I understand that new Signature Hotel new building to always cover accommodation, but could the old Signature to provide accommodation?
That is a great question and I hear this all the time. A lot of people were chilled as I called it from filing complaints against business that is in an existing building, because they get told that this has been grandfathered, that this is too old of a facility for us to have to comply with that ADA. And as everybody at the regional ADA centers, the DBTACs like to say there aint no such thing as the grandfather clause with regards to the Americans with Disabilities Act. There may be a limited amount of architectural modifications that a business that is open to the public has to provide. But they need to find a way and be willing to have a policy in place to provide access to the goods and services that they offer. And there is a variety of strategies to meet that. And again that is a complicated discussion I think for another teleconference, but understand that an outright denial and they refuse to do something because it is an old facility is probably a violation of Title III of the ADA. You just need to find a way to document it. Now, I want to take another question or two and then I want to close with a little bit of discussion of some procedure around complaints and litigation under Title II and Title III. So do we got another couple of questions in the pipe?
Yes, our next question comes from, your line is now open.
I have a question regarding the Title III, the ADA and religious entities. You say it does not cover religious entities. However, if they rent to a community agency is that covered and to what extent?
That is an interesting issue. If they start using their facility, let''s say as a public meeting hall, and it is arguable if they rent it to lets say a member of their congregation for a wedding. But if they start allowing people to use this like an entertainment facility, particularly with some of the larger, lets say mega churches that have large recreational facilities, we got one in Houston that has a McDonald''s on campus for example, it is hard to argue that that church that has a McDonald''s on campus is not somewhat vulnerable under Title III. In fact, they are. If they are truly acting as a landlord or a lessor and leasing this to public access, then they have some responsibilities to provide accessibility but so do the people who are leasing the facility or using the facility. So if it is lets say a non-profit organization that you license the facility, that is a joint obligation. I hope that answers your question. Next question?
Thank you, our next question comes from, your line is now open.
Thanks. Earlier you said that there were a number of ways to file a complaint under Title II. Can you go into some of those?
Yes, we are kind of running out of time and I am glad you asked, I was going to cover some of that, so I am glad that we close with that question. Now, I mentioned that you know, I mentioned state and local government entities and I mentioned private businesses, we mentioned transportation a little bit. And I promise to get to that and education. There are a number of responsive investigative agencies under the Americans with Disabilities Act that can receive complaints. There should be a link to those investigative agencies on the handout that is attached to the form. If you have an issue with regard to access to public transportation or private transportation, or public transportation you are going to want, you may want to file that complaint with the Department of Transportation for example. A complaint against about an educational entity can be filed with the U.S. Department of Education. Again, there are a number of investigative agencies responsible under Title II and Title III of the Americans with Disabilities Act. However, I have had this verified by the response of offices on civil rights and most of those organizations, you can potentially file anything but an employment case or a complaint to the Department of Agriculture, their office on civil rights and they have one. But if it is not appropriately placed there, they will put forward it to the appropriate governmental entity. I encourage you under most circumstances to file it with the appropriate federal agency and again, the handout that we have kind of marches you through the most common application of where you filed your complaint when. And it even includes some discussion outside the scope of this lecture, where we talk about access to federal facilities for example. So again, I am going to encourage you to defer to that handout for most of your regular situations. And it should be fairly specific and I checked all the links and the phone numbers and addresses last week so that should be very update. Now, I want to, before we close, I want to do something that I admitted I want to talk to you about the complaint process under Title II and Title III. Again, the complaint process for Title III, Title II, complaint against state and local governmental entities is so much more precise and there is that form that the Department of Justice wants you to fill out. In addition, there is a deadline for filing your complaints with your Title II complaints, with the U.S. Department of Justice. They want you to file your complaints within 180 days of the day of the discrimination, where you have been denied access to a state or local governmental entities or program and services and in talking to lets say the Department of Justices ADA helpline to clarify the point, unlike employment where you may have a discrimination that terminate your employment, that gives you a hard deadline for when you start tolling those 180 days, under most circumstances, when you have been denied access to a program or a service of a state or local government entity, you going to want to file that complaint very early. But if you have been chilled for whatever reason, I am going to encourage you this, go back and get discriminated against again. I know that sounds horrible, but if it is access to a local facility, if where the only programs are offered, if it is a denial to participate again, and that recreational swimming program for any child with a developmental disabilities, that child is still going to be developmentally disabled 6, 9 months later when you ran past the tolling date. You can make your reapplication, get discriminated against again if this is something that you are still offended by. And again, I know that sounds awkward, I am not encouraging people to go and create discrimination opportunities, but where you know, where you have been chilled or misinformed, or just really haven''t gotten sufficiently comfortable with the notion of pursuing this, until you miss that deadline, under a lot of circumstances, you can un-ring that bell. Now undoubtedly, there are some single denial issues that will never come up again, you need to file your complaint as soon as possible. Just because that, because again, people will disappear, be transferred, records will be destroyed et cetera. It is always better to be fresher of the nature of the discrimination and to the complaint. There is no such limitation on the Title III complaints, however again, if you are talking to the U.S. Department of Justice, they prefer you do it within you know 30 days. Because the same set of facts are potentially there. People may move on, records may be destroyed, the ownership of a facility may change, and then you run the risk of having the complaint be moved. Because something has changed because you failed to pursue the complaint. Now, the limits of your ability to file a lawsuit under Title II and Title III are vastly different than Title I with regards to employment. The U.S. Department of Justice has issued regs where you are going to look to the local jurisdiction law on statute of limitation with regards to how long you have to file a complaint or rather file a lawsuit. And so, let''s say under a typical statute of limitation for a civil complaint in state court in many states is 2 years. Under certain state schemes, civil rights complaints have a longer or shorter statute of limitation. So again, with regards to your ability to file a lawsuit, it is still better to do so in a timely manner because of all those realities that we discussed, but you may again extend the period from 180 days to as long as 2 years or 3 years or more, but under most circumstances, no, it is always better to pursue this earlier. And there is nothing, there is nothing more disheartening to me than to have the damning letter, the perfect piece of evidence from the offender where they denied access to a place of public accommodation and have done so boldly and obnoxiously and then you look at the date on the letter and it is 3 years ago and you understand it is way past the statute of limitations. When you have all the evidence you need to pursue your case right in front of you on a single piece of paper but you can''t because the time has tolled. So again, I encourage you to be timely. Moreover, I encourage you to think about discrimination from a complaints potential. What do you have to do to protect your rights? If you cannot resolve this outside the complaint or litigation arena, you have to document, create the paper trail, don''t provide another reason for denial, I know it sounds horrible to ask people to be tempered if they have been denied a basic essential right, but I encourage you to make the other person look like the jerk. Try to render everything into writing even if you talk to someone on the phone or through relay. Try to follow up with a letter or an email discussing the nature of the phone call. Try to get people to give you record if they wont, it may just put them on notice that you are serious about enforcing your own rights. Now I know we did not get to a lot of questions but this was kind of a, this was a big issue to discuss. I encourage if you have follow-up question, you can contact your local ADA Center. And again, I want to thank everybody and hand this over to Jacquie for the close.
All right. Thank you so much to everybody who joined us and we will get those questions answered. And also I want to thank Aaron for being a speaker today on such a really a big topic to try to fit into such a small amount of time as you all saw, very difficult to do. So, you know please do call your, call or email your DBTAC ADA Center that is nearest to you. Please join us next month for an update from the Access Board on their Section 255 and Section 508 regulations. The session will be December 16, from 1:00 to 2:30 p.m. Central Standard time. For information on this session and the rest of the 2008-2009 schedule, call toll free 877-232-1990 or visit ada-audio.org.
Jacquie, just real, I want to mention if people do have questions, the number for that ADA Centers, 800-949-4232 or people can visit www.adata.org to find the center that serves their state.
All right, thanks. Bye everybody.
Ladies and gentlemen, thank you for your participation in todays conference. This concludes the program, you may now disconnect.