Good day, ladies and gentlemen, welcome to your "ADA Update: 19 Years Later" conference call. At this time all participants are in a listen-only mode. Later we will conduct a question-and-answer session and instructions will follow at that time. If anyone should require assistance please press star and zero on your touch-tone telephone. I would now like to turn the call over to your host Peter Berg with the Great Lakes ADA center.
Okay, thank you very much. Welcome and we are glad to have everyone joining us here today with the 2009 ADA Audio Conference Series. The audio series is a project of the network of 10 regional ADA centers also known as Disability Business Technical Assistance Centers or DBTACs. Today''s session is being recorded and an archive of today''s recording along with a text transcript will be posted to the ADA audio conference website approximately 10 to 14 days following today''s session. You can find that information on the audio conference home page at www.ada-audio.org. If you have questions about upcoming audio conference sessions you can contact us at 877-232-1990. Well, as usual, we are in the month of July and getting our update on what is taking place with the Equal Employment Opportunity Commission and the U.S. Department of Justice to get information about their initiatives and efforts and things that they are doing as we approach the 19th anniversary of the signing of the Americans with Disabilities Act coming up on Sunday, July 26. And we are very fortunate, the ADA centers are very lucky to have a great relationship with both the Department of Justice and the EEOC and to have a long-standing relationship with both of our speakers today. We will be hearing from Sharon Rennert and John Wodatch this afternoon. They will both give presentations on their Department''s initiatives and efforts around the enforcement of the ADA and then following that we will open it up to all of you participants who can probe Sharon and John''s minds with your tricky ADA questions. So Sharon Rennert as I said comes to us from the EEOC, she is a Senior Attorney Advisor within the ADA Division at the EEOC within the Office of Legal Counsel. Sharon has been working on ADA guidance for the EEOC and is the lead author on the Commission''s guidance on reasonable accommodations. She is also played a key part in developing other technical assistance material for the Commission including telework as a reasonable accommodation. John Wodatch joins us from the U.S. Department of Justice. He is the Chief of the Disability Rights Section within the Office of Civil Rights at the Department of Justice. John is a civil rights attorney with over 30 years of experience working with the federal government. He is instrumental in developing policy for the Department of Justice around the ADA and was the key author on the department''s Section 504 regulations under the Rehabilitation Act of 1973. So with that you have heard more than enough from me, I will turn it over to Sharon at this point and then following Sharon''s presentation we will hear from John. So welcome to both of you and Sharon, why dont you please go ahead and take over.
Terrific, thank you, Peter. Well, welcome to everyone that I trust is out there and I am not just talking as much as I would enjoy that to Peter and John. But I always look forward to this session and it is quite an exciting and busy time to be holding this audio conference because I am sure as everybody knows, at the very beginning of this year the ADA Amendments Act went into effect. And I am going to devote the bulk of my remarks this afternoon to the Amendments Act which made a lot of changes to the definition of "Disability" that is going to impact all titles of the ADA, not just the employment provisions that my agency focuses on but it will affect state and local government services and public accommodations as they provide services to people with disabilities. It is also applicable to federal agencies under the Rehabilitation Act so mostly what I want to do today, because I think there remains a lot of confusion and misunderstanding, how precisely did the definition of "Disability" change from what we have come to know it as, give you context about that and I expect there will probably be some questions about it when we get to the Q and A part of this. But before I get to that, let me talk about a couple other things involving EEOC, certainly one of the things that all federal agencies in the first year of a new administration care about is who will be heading them. And just last week the President announced his intent to nominate an attorney, her name is Jacqueline Berrien. She currently serves as the associate director and counselor of the NAACP Legal Defense and Education Fund up in New York. We don''t know exactly when the President will officially send her nomination to the Senate. She will have to have a hearing and be confirmed ultimately by the full Senate and I am sure that that is expected, and then she will take her place as the new chair of EEOC, so something to watch out for. Once she is here, we will still have two other vacancies, remember, we are a five-person Commission so we do expect further nominations as well as a general counsel so we are hopeful that those other nominations will be coming soon. So we can have a full complement here at the EEOC. The other thing that is certainly of concern to us, you have probably heard in the news that EEOC has been grappling with a growing backlog of charges, of cases coming into us, this is a very labor-intensive process to investigate and make decisions on the charges of discrimination that are filed with us. And over the past ten years or so we have had a kind of decline in personnel so hence one consequence of that has been a growing backlog. Well we did get extra money for this year and we are very pleased that both the House and the Senate seem in line to increase our budget again for the next fiscal year. The House has already approved about $367 million for EEOC, the Senate, appropriate senate committee, has approved a similar figure so that would be about a $23 million increase for us and I can tell you the bulk of the new money is going to hire more investigators, more front-line people, precisely because that is where we need them. And as a consequence of that, both for myself and many of my colleagues we are undertaking a lot of internal training on the ADA Amendments and other new things that we are going to be enforcing here, such as the Genetic Nondiscrimination Act so we have quite a lot going on here. But I really want to turn now to the ADA Amendments and before I describe sort of the major provisions, just to sort of give you some background as to where we are, what is going on with this. As I said it went into effect on January 1, EEOC was directed by Congress to develop regulations to implement the new statute, last month the Commission did approve what would be a proposed regulation meaning it would be published for public comment but we don''t get to simply vote on what we want and then publish it. As with all federal agencies, we send it to what is known as the Office of Management and Budget, OMB. And OMB gets a certain amount of time to review it, ask questions, perhaps to make suggestions for some changes and only after OMB finishes its review as well as a number of federal agencies, including the Department of Justice, so we get comments from quite a few federal agencies, we make any necessary changes, and then the Commission votes again and at that point it will be published. I do not know exactly when that could be. Theoretically it could be next month, in August, it could be September, what I am advising people is to periodically check the EEOC website, EEOC.gov because obviously as soon as it is published we will have it up there, be displaying prominently the federal register for those of you who really follow these things very closely, of course that is another way to check and there will be a comment period, probably of about 60 days. And I really strongly encourage everyone when you look at it, if you do have questions, something you don''t understand in it, comments to make, please, please do send us in comments. It is a really important part of this process and it can have a tremendous impact. It certainly did with the original ADA regulations. A number of changes were made to that proposal in response to public comment. So when you get your opportunity I hope we hear from you. But let''s talk about generally what it is that has changed. Some of it or if you have been in this field long enough will actually be going back to where we began so let''s kind of quickly review this. 99% of what is in the ADA Amendments Act is focused on making changes to the definition of "disability" most other provisions of the ADA were left untouched. So in the employment realm, they are not really changing anything about the reasonable accommodation obligation, there is one minor change I will mention that but pretty much what you know is the obligation to provide reasonable accommodation remains unchanged. Defenses like direct threat and undue hardship, they remain unchanged. What it means to be a qualified person, the ability to perform essential functions, unchanged. So all of that is what you have always known it to be. It really was the intent of Congress to make some major changes to the definition of disability because as I think anyone listening to this webcast year after year is quite aware, that from the Supreme Court on down, there were judicial interpretations that really narrowed the definition of disability and made it much harder for people with a range of medical conditions to show that they had a disability under the ADA. And if you can''t do that, then you really can''t get to other issues like you know was it right for an employer not to hire me? Was it right that they fired me because of my medical condition or that they denied me an accommodation? So really critical to show coverage. And so all changes that I am about to talk about, I think you will best understand them if you keep in mind that the goal here was to expand the definition of disability, that the goal was that it should be much easier, much more straightforward, much more common sense, if you will, that there should not be a need for days and weeks of analyzing a tremendous amount of data to show does this person have a disability. It should be much simpler than that. So what stays the same is the basic three-part definition. Congress decided they did not want to create a whole new definition. They liked that there is the three-part definition, the physical or mental impairment that substantially limits a major life activity, a record of such impairment or being regarded as having such an impairment. They leave that alone but what they change, they changed the meaning, the meaning of a lot of those terms that are used. So let''s start with the first big change, major life activity. With major life activities, Congress gave examples for the first time. They said they don''t want courts debating anymore is this or is this not a major life activity so they said let us give all kinds of examples. Now, most of what they gave as examples are things that we are very familiar with, these are things that were in the current ADA regulations, things that EEOC and many of its guidances had talked about, so walking, standing, sitting, eating, sleeping, thinking, concentrating, learning, interacting with others, all of these are there and they should not be a surprise to just about anybody. But the other significant development is Congress created a whole new list of major life activities which they called major bodily functions, major bodily functions. Now, these are the things where when you have an impairment, this is the part of the body that is really impacted by that impairment where there is some change in how that particular part of the body functions. These are now part of the list of major life activities. Again examples in both instances Congress said we are not trying to come up with an exhaustive list. People might add additional major life activities, additional major bodily functions but, again, I think that they really tried to come up with what they viewed as sort of the most obvious. And some examples here, major bodily functions, the functions of the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, I mean there is a whole number of them, normal cell growth. The idea here is let''s take the last one, normal cell growth, if a person has cancer, well almost by definition cancer is abnormal cell growth, something has gone very wrong in cell growth. Because that is a major life activity, as long as we establish that you are substantially limited in that major life activity you have a disability. Now, why did Congress do this? Well it looked at a lot of court cases involving people with various forms of cancer where when the court looked at what I now call the traditional list of major life activities they kind of said well the person can walk, they can stand, they can speak, they can hear, they kind of went down the list. We don''t find any substantial limitations simply because the person has cancer. And yet the person could be quite seriously ill with the cancer. And so by putting in normal cell growth, of course that is going to be immediately impacted and in fact probably before anything else would be, so it is going to be a more direct analysis, much easier to find people covered. And again, remember that is the goal. To increase coverage to make it easier to cover especially a whole host of conditions that courts seem to find much more difficult or problematic to deal with. So that is the very first major set of changes we find. The next changes come with substantial limitation, has to be a substantial limitation in a major life activity. And here Congress again said, look, I think that the courts and they included EEOC, they all got off track and basically Congress found the courts and EEOC had set too high a standard, too high a bar to judge substantial limitation. They rejected both the EEOC''s formulation of a significant restriction, they rejected the Supreme Court''s interpretation of a severe restriction and the Congress said it has got to be a lower standard. Now, Congress clearly did not want to cover every kind of medical condition or ailment and in fact it made clear that the things that we have always excluded, the fairly I think common sense and easy things, people with the common cold, people with a seasonal flu, people with appendicitis, if you break a leg or brake an arm, none of these kind of things, you get a concussion -- these are not going to be disabilities because they will not be substantially limiting. So Congress said, look, you still want to exclude a number of things, but you do not want to make it too high a bar. So in order to figure out how to kind of do this, we now know we don''t want it to be too high but trying to sort of figure out where it is, again being a kind of common sense, what the Commission has tried to emphasize here are a number of the directions that Congress gave us in sort of how to interpret this law, starting with, again, that they don''t want it to be a demanding analysis, they do want to have broad coverage here, they also wanted to go back to probably the most significant of all the Supreme Court decisions and that was the one that dealt with mitigating measures. As many of you remember, back in 1999, Supreme Court, contrary to what EEOC and the government had argued and what most courts had found, is that when a person uses a mitigating measure to control the symptoms or deal with symptoms or effects of any given medical condition, things like medication or prosthetic devices, the Supreme Court had said well we are going to take those into account in analyzing whether someone has a disability and if a person was fortunate enough to use a mitigating measure that basically eliminated the effects, the symptoms, then it was very hard to say or to show this person has a disability. And Congress said no, it is not fair, it is not right, employers cannot discriminate on the basis of a person having diabetes or epilepsy and then in essence get away with it because court is going to say well that is not a disability. That seemed quite wrong to Congress. So perhaps I think the biggest change or where we may see the biggest impact is if an individual uses a mitigating measure and Congress again gave us a non-exhaustive list, they don''t want it to be -- anybody to think they came up with the entire list but they really tried to lay out the most common ones. Things like medication, medical supplies and equipment, prosthetic limbs, the artificial limbs and devices, hearing aids or cochlear implants, oxygen therapy, assistive technology or reasonable accommodations, learned behaviors or adaptive neurological modifications that can come up. For example, with people with learning disabilities, people who learn to compensate for their type of learning disability so they can function and they can prosper, these kinds of either learned behavioral or adaptive neurological modifications those are mitigating measures and the new law directs that we must disregard them in assessing whether someone has a disability. So someone with epilepsy, they are using an anti-seizure medication, the focus is on what happened before you started taking this medication or what would happen if you stopped using it? The fact the medication is tremendously successful in stopping seizures, we put that aside in assessing whether a person has a disability. So that is perhaps our biggest change about mitigating measures. One caveat here and that is that ordinary eyeglasses, and you can''t see me right now but if you could, you would see I am wearing ordinary eyeglasses or contact lenses, those we do take into account. Those we do, and I think Congress wanted to say, look, they recognize that many, probably millions of people wear these kinds of corrective lenses and they really have no intent to have all of us be covered under the ADA so we do take that into account. So if tomorrow I went and asked for some reasonable accommodation related to my vision impairment, the EEOC is free to say no to me because my ordinary eyeglasses which in the words of the statute, they are intended to fully correct visual acuity or eliminate refractive error, that doesn''t give me a disability. Okay, so all these activities, we are still not done here. Congress still looked at some other situations and said, we still think we need to do a couple other things. One is they made very clear that those medical conditions that are either episodic or in remission, episodic or in remission, those two can be disabilities if they substantially limit a major life activity when active. Now, this was to get at a couple different situations. Let''s go back to epilepsy for a moment. People with seizure disorder don''t necessarily have seizures 24/7. Some have them once a day, once a week, maybe three times a day, it varies. What this provision is saying is, we focus on the individual when he or she is having a seizure and if at that time the person is substantially limited in a major life activity, then the person has a disability. This can be true for a whole host of medical conditions, many psychiatric illnesses and disorders are considered to be episodic, they are not ones that people have the effects of all the time. Other things could be muscular dystrophy, multiple sclerosis, many different things. Now, in remission. What about a condition in remission? Well, the most obvious is probably cancer. Again the idea here is that maybe six months ago I had my surgery and I had maybe chemo or radiation and today my doctor would say that my cancer is in remission. I am not cured but it is in remission and maybe I still am undergoing some follow up treatment and observation to watch to see if it would come back. Well, again, in that situation, if the cancer were to reoccur and it would substantially limit a major life activity if it did reoccur, then again that would be enough to get coverage. I think what we are going to see in many instances is it is not necessarily just one of these changes or even two but many times it will be three or four of these changes combined when you put it all together and I think you got to do that. You have got look at it as someone recently said holistically, that you are going to be able to say this really is a disability without too much trouble. Okay, in my last couple minutes, let me go to the last major change here and that is the "regarded as" and while some of the changes I have described you could say well that is really going back to where we began before the courts kind of narrowed the definition. The changes to the "regarded as" definition, and I think this is really for employers more than anybody else, these are pretty significant changes because basically what Congress did is they took out both the substantial limitation and major life activity part of it. So now what we have is that when an employer takes an employment action, I don''t hire somebody, I terminate somebody, I deny someone a promotion, I give somebody a lower evaluation, okay when the employer takes those kinds of actions because of an impairment, note that word, not saying because of disability, I am saying because of an impairment, that will constitute regarding someone as having a disability, the exception here, remember the word impairment is very broad, it is broader than the word disability under ADA. The exception here is that if the impairment at issue is both -- and I have to be both transitory and minor -- then you cannot use that to trigger regarded as. Transitory is defined as lasting six months or less so if you have an impairment that will last six months or less, and it is minor, if that is the basis of an employer''s action, that is not going to trigger regarded as coverage. In all other instances, when an employer bases a decision on an impairment, it will trigger regarded as coverage, which means the employer, if challenged would have to defend its employment action, would have to show its action is justified under the ADA Quickly, two examples. One where you can''t help but trigger regarded as and one where you can. You will trigger regarded as covered every time an employer who does a post-offer medical exam, takes the results of that medical exam and uses it to revoke the job offer, you have just used an impairment to justify to -- as the basis for revoking a job offer. That is an employment action. You can''t help it and I wouldn''t want employers to try. The important thing for employers in this situation is to concentrate on the validity of the revoking of the job offer. You want to make sure you can really justify it consistent with the ADA. But what about a situation where you can avoid triggering regarding as coverage? To all supervisors out there, I apologize in advance if you think I am being unkind to you, but it is what I call the situation where a supervisor gratuitously talked about an impairment in connection with taking an action, whether it is giving a lower performance rating, denying a promotion, whatever it may be, that the supervisor gratuitously wants to bring up, well, you know because of your impairment, you are constantly late for work, so I am going to write you up. Because of your impairment, you are not timely in handing in your job assignments so you are going to get a lower performance rating, because of your impairment, I don''t think you are qualified for this promotion. You bring up impairment when you don''t have to, what you want to bring up is that people are tardy, people''s work is not adequate, other kinds of reasons why you don''t think someone is qualified for the job, the sort of real substantive reason, so that is where I think you really want to be careful as employers that your supervisors, your managers should not be bringing up impairment. Okay. That is very, very quick. And my apologies to whoever is transcribing this, so I will close here and wait for your questions and, again, just encourage people that when we finally do publish our proposed rule, please let us hear from you what your thoughts are. Thank you.
Alright thanks, Sharon. We will go and turn it over to John at this point.
Thank you, thank you very much, Sharon. That was terrific. I appreciated hearing your perspective on ADA amendments Act. This is John Wodatch, I am here to sort of talk about some of the recent actions from the Department of Justice, from the Civil Rights Division. I am going to in the next 20, 25 minutes or so, just go through a variety of different issues and actions, none of them in a terrible amount of depth but to give you an idea of what is going on. Like Sharon, I will start with some of the new administration issues. Obviously we have become the Obama administration and at the Department of Justice we have Eric Holder as the Attorney General and Attorney General Holder was himself in his past life a civil rights lawyer as was the President, and it is not surprising, then, for us that he has come and spoken to the employees of the department and basically said to us that this is a new day in the civil rights enforcement, the enforcement of the nation''s civil rights laws, that he is very much committed to their vigorous enforcement and that he hopes that to the extent that we were laboring under an area of timidity in our approach to civil rights, that that era is over and now we should be appropriately aggressive in pursuing the nation''s civil rights laws and civil rights agenda. Like the EEOC, we in the Civil Rights Division do not yet have our political leader, a person from Maryland named Tom Perez has been nominated by the President and cleared by the Senate committee that considers nominations, he has had his hearing and been voted out of committee. We are waiting for the full Senate to vote on his nomination. We are very hopeful that he will be, make it through the confirmation process this week because that would then get our political leadership in place and allow us to fully proceed with what Attorney General Holder has tasked us with. A couple issues, one of the things, I think you are probably aware that as part of the economic stimulus package, Congress passed and the President Obama signed the American Recovery and Reinvestment Act of 2009 which has billions and billions of dollars that are being distributed to states and communities throughout the country and a large portion of those funds are being used to build, repair and upgrade a wide range of systems, buildings and programs. And I think the Department wants everyone to be clear too that with this money goes civil rights obligations. We are particularly concerned with entities that are using stimulus funds to alter buildings, build new buildings, create programs, that they understand that there are disability rights obligations that goes with those. We put a notice on our website, I think most other federal agencies have as well to remind entities of that if you are involved in any of those activities and are unclear about what standard might apply to new construction or an alteration, that you get in touch with us so that you can ensure that facilities that are being newly built are altered, are being done in an accessible fashion. You can certainly use our website, ada.gov or call our toll-free ADA information line or also use the DBTAC network as the national network of ADA centers so that you can have information about how to use these funds. Another related issue to the economy and one people think about is that okay we are in -- at the very least an economic recession, I am certainly not an economist but we know we are in a time of economic downturn, states, local governments are clearly having financial difficulties, businesses have the same. I would just like to reiterate the fact that there is an economic downturn doesn''t mean that you are absolved from complying with the ADA Particularly I think there are bedrock ADA principles that apply to new construction. If you are building a new building, a new construction, it must be accessible. There is not a cost defense in the ADA for following the ADA standards for accessible design when you are building a new facility. Similarly, if you are doing an alteration to a facility, that alteration to the extent that it is an alteration that involves accessible issues must be accessible to the maximum extent possible, that to the maximum extent possible is not an economic concept so again, the alteration must be made accessible if it is possible to do so considering the physical circumstances that you are dealing with. Now, that said, there are parts of the ADA where there is significant compliance flexibility based on cost. Clearly in the obligation for state and local governments, to deal with program accessibility, is limited by an undue burden defense and clearly undue burden is linked to the economic resources of a state or local government and so therefore that is an area where the economic downturn may have an impact on the nature of the accessibility that you are going to be required to carry out. It doesn''t absolve you from all ability or all obligations to comply with the ADA. Similarly, businesses that are dealing with readily achievable barrier removable, of course readily achievable does have in the ADA itself a specific consideration of costs and therefore cost-conscious approaches to eliminating existing barriers are appropriate. It doesn''t mean that you are absolved from your ADA obligations. And of course this is clearly an area where the EEOC has primary jurisdiction but undue hardship is a limitations on the obligations of employers to provide reasonable accommodations and the cost not only of the accommodation but the financial profile of the employer or the group of employers involved in a business are an issue that can be considered. The main thing I would like to get across, though, is for new construction and alterations, those are not limited by cost issues. Okay. Now, I think the thing you probably want to hear me talk about more than anything else is the proposed ADA regulations. If you will recall, starting in 2004, in September of 2004, the Department published an advanced Notice of Proposed Rule Making in which we began the process of adopting the Access Board''s 2004 ADA Accessibility Guidelines as well as dealing with a wide range of compliance issues that had been developed from our experience over the years of applying the ADA. And in June of 2008 we published two Notices of Proposed Rule Making, asking for comments, we had a 60-day comment period, we held a public hearing in July of 2008 that was webcast nationwide, many of you participated in that, 45 individuals testified in person or by phone, we ended up receiving 4,400 comments from raising really broad range of issues, from businesses, industries, state and local government agencies, disability advocacy organizations, private individuals, many of them addressing issues that were common to both regulations, some of them specifically. In the last days of the Bush administration, we worked very closely with the other federal agencies and the Office of Management and Budget to try and issue a final rule but by the time the Bush administration ended work on that, those final rules had not been completed and on January 21, the first full day of the Obama administration, the Department of Justice notified the Office of Management and Budget that we were withdrawing the final rules we had submitted to OMB for their review. We did that in response to a memorandum from the President''s Chief-of-Staff that directed executive branch agencies to defer publication of any rules that were in consideration until the reviews, the rules were reviewed and approved by officials appointed by President Obama. Now, as I mentioned to before, we have not yet received through the whole confirmation process the head of the Civil Rights Division so we are at this point awaiting our political leadership to finish the review of the, of these proposed rules. I can tell you that what we are -- the first issue that the that will have to be decided is whether the rule-making record that we have accrued over the last several years is enough for us to go to a final rule or whether it would be appropriate, since it is a new administration, to begin the process again and ask for a public comment. A number of entities, particularly those representing disability rights groups, objected to the fact that our rules which were very complex, that we only provided 60 days of public comment period and that had asked for a extension of that comment period and that extension was denied in the last administration and therefore those groups have made the case that it would be appropriate for us to have another Notice of Proposed Rule Making. The other -- the sort of countervailing issue to that is whether one of the main things we were going to do in this rule is adopt the play and recreation and courtroom rules that were -- that are at this point only guidelines and not applicable to entities covered by Titles II and III of the ADA and whether that the delays in doing an NPRM would be appropriate in putting off making these requirements, putting these requirements into effect so that is one issue affecting it. A countervailing issue to that is there are issues that were not included in our Notice of Proposed Rule Making in the last administration. Some of these approaches were favored in our comments and might be of interest to officials in the new administration and so if we proceeded with the Notice of Proposed Rule Making, we could address these kinds of issues. An example that I can give you is our proposed rules didnt have any specific guidance on emergency preparedness nor did we have specific guidance on medical equipment although we have had settlement agreements on both those issue and some technical assistance documents on those issues. That said, it might be the argument goes more appropriate to proceed with a Notice of Proposed Rule Making so we can flesh proposed regulatory guidance out on those issues and then proceed to a final rule. The sooner that we have our political leadership in place, the quicker we will have these decisions and proceed. We are prepared to go forward either with a final rule or with a proposed rule and we will -- we will move fairly quickly on that decision after we have our new political leadership in place. But at this point there is no firm time that I can give to you on that. Okay. Let me switch gears, talk a little bit about some of the cases that we have been working on and I will just sort of give you a few of the issues that -- areas where we have filed suit or filed amicus briefs, and a couple of settlement agreements we were involved in. We filed a suit against an entity in Alabama called the Whales West RV Resort and Train and Garden Lovers Family Park and this is in a Title III matter and it is involving alleged HIV discrimination. This is an RV resort with amenities that include a lake, an indoor pool, and a Victorian steam train that circles the resort and our -- we received a complaint from a family, a mother and father and two-year-old child who was with them on the trip and the child has HIV disease. The mother informed the RV resort manager that the child was HIV positive and the resort manager allegedly told the family the child would not be allowed to use the RV resort pool or showers because of HIV. Complainants protested and attempted to work it out but they were denied access to the park. We attempted to resolve this matter voluntarily, it didnt work out that way. So we have filed suit. We had hoped and still hope that we can resolve this without resorting to full litigation but a trial date is set for that in May of 2010. Another case we have brought recently is against Noble Learning Communities, it is a case we brought in the eastern district of Pennsylvania. The Noble Learning Communities are a network of more than 180 private preschools, elementary schools, secondary schools in 15 states, they operate under a number of different names including Evergreen Academies, Chester Brooke Academies, Bethesda Country Day School and Mary Hill Schools. These places also provide child care services and summer programs. We received a series of complaints that children, some children who were enrolled were dis-enrolled and some who sought admission were denied admission, these were children with a variety of autism spectrum disorders so we were dealing with children with autism, Asperger syndrome, Down Syndrome, developmental delayed disorders, ADHD and similar issues. We again here attempted to resolve this voluntarily, we were unable to do so and are in active litigation on that subject as we speak. Another matter was involves the City of Baltimore and its zoning code. We have received, again, this is triggered by a complaint from organizations that provided drug treatment facilities, substance abuse treatment facilities and in the city of Baltimore, if you are that type of facility, you have to go through a burdensome conditional ordinance zoning process in order to put a facility in any zone. This process requires approval not only by the Baltimore City Council but by local neighborhood association and it was our view that because of unfounded stereotypes about people in with disabilities who were in drug treatment, this process has resulted in facilities not getting a permit or in having to expend tremendous resources in order to get the permit. We have filed the lawsuit, I think the Mayor of Baltimore has been forthcoming about the potential for settling this, some members of the City Council have not been as forthcoming but I think we still hope that we will be able to negotiate a settlement of this one without having to go through lengthy litigation and bring about a change in the Baltimore city zoning code. Another matter litigation I would like to mention, we intervened in June in a case against the City of Jackson, Mississippi, really alleging accessibility in Jackson''s public transportation system. There was already a lawsuit going on filed by 11 residents of Jackson and by two non-profit organizations who work on behalf of people with disabilities and the complaint there alleges that the City of Jackson has failed to maintain, promptly repair, or keep in operative condition the wheelchair lifts for the city''s fixed route bus system, bus system there is known as JTRAN. We are also having an allegation about failing to adequately to train the personnel to properly assist passengers with disabilities and the other issue raised there is the paratransit service. We allege that the city has failed to provide the required level of service to passengers in their ADA complementary paratransit service. Those of you who work in the transportation area know that this is an area where the Department of Transportation has a very detailed regulations, our complaint in this case is linked to failure by our alleged, our allegation the city has failed to comply with the Department of Transportation''s requirements and as a result, individuals who use wheelchairs are forced to wait while multiple buses with inoperable lifts pass them by, often leaving them stranded and unable to get to work or medical appointments or wherever else they were going. Also that the paratransit system has capacity restraints that, the failure to provide next day service, the failure to plan to meet the demand for paratransit services resulting in a substantial number of trip denials, significantly and timely pickups and even limitations to their telephone reservation capacity. I think our initial -- since we filed the lawsuit, I think we feel we have been able to engage the City of Jackson in some negotiations and we are hoping that again this is a matter that will be eventually resolved amicably. One of the other sort of litigation hallmarks of the new administration, something we haven''t done for a while, is to have an increased presence as an amicus or friend of the court presence in cases so these are cases where we might not be bringing the case, we might just enter the case on an issue that we think we have expertise or something or a reason to join in and there are three I would like to briefly mention. One involves litigation in the 9th Circuit in a case called Arizona versus Harkins Amusement Enterprises, dealing with the obligation of a movie theater chain to provide movies with closed captions and video descriptions. This is a case on appeal. The district court held that what plaintiffs had sought which was closed captions and video descriptions was not required by the ADA because it would impermissibly alter the content of the product that was being provided and the court also said that they interpreted the ADA''s legislative history and the Department of Justice''s regulations and the Access Board guidelines as not requiring theater owners to exhibit movies with closed captions. As an amicus the Division filed a brief and argued that closed captions and video descriptions are auxiliary aids that permit individuals with sensory disabilities to enjoy movies and these do not alter a movie theater service of exhibiting movies and we also argued there is nothing in the ADA text, its legislative history or regulations that indicates closed captioning is not required. The language, by the way, in those talks about open captioning not being required but there is nothing in those that would do that for closed captioning. We also participated in ongoing litigation in Florida involving some private entities suing Walt Disney World over Walt Disney World''s refusal to allow persons, visitors who use their own Segways to use them in the park. In settling this lawsuit, Disney and the private plaintiffs have come up with an agreement and what we were doing was objecting to the nature of the agreement. The agreement would require Disney to provide a specified number of four-wheeled electric stand-up vehicles that Disney has created that would be available for people for a daily rental fee and a deposit. There were other -- this would apply to both Disney resorts in Florida and California, Disney would agree to pay three named plaintiffs a monetary relief and attorney''s fees but no other Segway users would be able to file discrimination claims or receive damages or fees. The Department has entered objections to this agreement in terms of some of them are procedural in nature dealing with the nature of the class and how extensive it is but part of our concern also was this is an issue that we are in the process of looking at in terms of our regulation. If you recall in our proposed regulation we asked questions about this, we had a proposal about how to use or how Segways should be dealt with in terms of entities covered by Titles II and III and it was our view that the judicial endorsement of this proposed agreement would undermine the effectiveness of the Department''s current rule making efforts. Last one of these I will mention is Olmstead case against Florida, Long versus Benson, what we filed a brief saying is that the state there was arguing to the court that the lawsuit shouldn''t be brought because people with a disability did not have the ability to bring a private right of action, could not even bring the legislation because the - it is not what -- the action is about a violation of our regulation and not the statute and under some recent Supreme Court precedent that that would not be appropriate for them. We disagreed with that and said in our brief that private entities do have the ability to bring this type of lawsuit. The state also argued that under the Department of Justice''s regulation that talks about personal services, if you recall we have a provision that says public entities are not required to provide personal services, you know, to give someone a wheelchair, provide other personal services, and certain circumstances, we viewed this as a misinterpretation of what our regulation because certainly we would say that regulation means the Department of Motor Vehicles does not have to provide glasses to drivers or does not have to provide wheelchairs to persons with disabilities but where a state operates a program that includes -- that includes by its very nature personal services which of course the Olmstead -- nature of Olmstead cases would, that it must be do so -- that regulation is not applicable and they must provide those types of services to people with disabilities. That case is also still under active consideration. I have gone on quite a bit. I was going to talk about a couple other things but they are on our website, we have important settlement agreements with the City of Philadelphia on boating access, with the DC government on homeless shelters and their accessibility and reasonable modifications there, and with Wal-Mart on the provision of allowing service animals into the stores are all there. And we have a recent - I will close with a TA document we just put up in the past week which deals with people who are HIV positive and state licensing in education programs. We have been made aware that there states were interpreting existing laws that were in place dealing with communicable diseases, laws that had been put on the books for tuberculosis and other airborne communicable diseases that said if you had these kinds of diseases you could not enter certain professions, for example, barbering, massage therapy, home healthcare assistants. A number of states, either by law or an interpretation have started to interpret these communicable disease requirements as being applicable to persons who are HIV positive. It is our view that because HIV disease is not communicated through casual contact, not airborne, that excluding individuals with HIV under these licensure requirements is unnecessary and in fact discriminates against individuals in violation of the ADA. We are going to follow up in the next week or so and there is a fact sheet to this effect on our website. We are going to follow up in the next week or so with letters to each of the states, to their state attorneys general, asking them to review their state laws and administrative proposals to see if they have laws or regulations that should be changed to allow people who are HIV positive to not be ineligible for licenses and these chosen profession because of the outdated laws or unfounded stereotypes and fears. I think Peter, I have probably gone on and we need to have some time for questions and that is -- let me just close by saying that we are energized and very excited at the Department of Justice and are looking forward to what the Attorney General has called a renaissance of civil rights enforcement.
Excellent. Thanks for all the information, John and Sharon as well. I am going to bring the Operator on in here in a second to instruct participants on how they can ask questions. I would ask participants that if you are using a speaker phone, that you get as close to the speaker phone as possible or pick up the handset, if possible, and also if we could keep folks to one question, it will allow as many people as possible to ask questions. So Operator could give instructions please.
Ladies and gentlemen if you have a question at this time, please press star 1 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.
Sharon while we are waiting, received a question online for you and the questioner wants to know how EEOC field staff are handling disability complaints that allege discriminatory act taking place after January 1, 2009?
Our field staff have certainly been sent information about the ADA Amendments and clearly one of the things they have to do is to make sure that any complaint coming in, in which the alleged discrimination occurred on or after January 1 will be handled under the Amendments Act. Right now and for a period of time our staff will be also handling still cases where they will be using the old definition of disability, too. Our staff has received initial training, the EEOC is preparing to do more training, both in August and September, more in-depth training on the Amendments Act. We have people on staff in my office and other offices who are working very closely with our field as they get these first cases to make sure that they are applying the Amendments Act appropriately. So that is what we are doing.
Great, great. Operator my we have our first question, please.
Our first question.
Go on with your question.
Thanks, Peter. Sharon, I have a question for you. Partly an observation and question but I have been doing a lot of training on the ADA Amendment and by lawyers who say how horrible this is going to be for their clients but the way I see it, you can have more who qualify, more folks who would be determined to be qualified under ADA. The only problem you have is if you act based on that impairment or rather that disability -- impairment. Is that basically what you are seeing?
Well, I am not sure what the reference is, that this is horrible. I think it is certainly true that more people will be protected under the ADA from now on going forward than last year but I certainly don''t think that is a terrible thing. I also don''t think from an employer''s perspective that it means that suddenly you are behind the eight ball here. I think that for employers who may have gotten used to the fact that so many people were no longer covered, they can''t take that for granted and it really is about making sure that employment actions are taken consistent with the ADA. A person, as I said, still has to be qualified, they still have to be able to perform essential functions of a position with or without reasonable accommodation. As I say this I remember the one thing I didn''t say about those who fall under only the regarded as definition of disability, I said there was one small change to the reasonable accommodation provision, it is that people who only, only fall under the regarded as definition of disability are not entitled to reasonable accommodation. But otherwise, I think employers need to just be sure that people - they are qualified, and if somebody cannot perform the essential functions with or without reasonable accommodations, that person should not be hired for a particular job. They want to make sure they are following the reasonable accommodation requirements including looking at reassignment when that would be appropriate. If it is a health or safety issue, they want to make sure they take actions consistent with the direct threat requirements so I think it is more a shift of focus that is going to happen for employers. Instead of the lengthy focus that was on whether a person has a disability, I think the focus is going to shift to these other substantive issues.
Alright thank you. Go on our next question, please.
Next question
Yes, John Wodatch this is a question for you. The American Council of the Blind in Minnesota in the last five months or so filed a complaint with the U.S. Department of Justice under Title II of the ADA alleging a statewide discrimination by the Minnesota Department of Transportation in providing accessible public rights of way. Specifically against ten counties and numerous cities, unfortunately, the case has now been referred by the Department over to the Federal Highway Administration and the Minnesota Division office has one person who does some civil rights work, and Federal Highway Administration national level their key civil rights person, went over to NASA, so what we have is going from an agency of justice that has litigation authority and resources over to the Federal Highway Administration that doesn''t have the resources and can only threaten to cut off all Federal Highway funds to a state which you know is never going to happen and is not credible. So I guess I would like your comment on the delegation rules and what I view as a very negative impact on disability enforcement where agencies without the kinds of authority and resources that the Department of Justice have handled or miss handled these cases.
Is this?
Yes.
Oh, it is nice to hear your voice. You are raising an interesting issue. Under our existing Title II regulation, we have interpreted ourselves as ceding that jurisdiction, areas of this kind of complaints to each of these federal agencies. I think there was a recognition at Justice that this was denying ourselves the flexibility to keep some of these cases for whatever the circumstances might be was in need of change so one of the things that we put into the regulation that we proposed last year was a change in the requirement that we had to provide these complaints to the other federal agencies and gave ourselves the flexibility to keep those. That regulation hasn''t been completed yet. We did get some negative comment on that from some of the federal agencies and actually from some of the disability rights community as well although I believe that it would be appropriate for us to be able to have some flexibility in handling some of these complaints. Some federal agencies have very limited staff for investigating complaints, it was my understanding -- I will follow up and look at this specific complaint -- usually the Federal Highway Administration has a lot more investigative staff than another number of federal agencies do but if a complaint that is as major as this is being unable to be investigated, we will take a look at it.
Can you pull it back from FHWA?
We can only do that if they would agree to it under existing our rule. Now we have done that with various complaints at various times for different reasons, we have had done some work with the education complaints, we have done some with DOT as well where we have been the entity that has done the investigation. We can look into that.
Okay, I will e-mail you the complaint number. Thanks very much.
Our next question, please.
Our next question.
I will defer but I would like to know if you do have a contact information available on the website or where we can reach you individually.
The contact information for both of our speakers can be found on the ADA Audio Conference site.
Okay, because mine is a specific question.
And you also have the 800 numbers for both the Department of Justice and the EEOC as well as contacting network of ADA centers.
Okay, thank you.
Do we have our next question please.
Our next question.
Hi, John, this is directed to you. We, much to our surprise, were greeted by some reporters at our front door last Friday talking about the Department of Justice settlement agreement with the City of Atlanta. And I know nothing is posted on your website yet, but is there something in general you can share with the audience in general and also just to help us answer some of the questions that are coming in from the reporter. That would be very helpful.
I saw that report as well. We have an ongoing investigation under Project Civic Access with a number of cities in the United States. I didn''t talk about that Project Civic Access is very much still alive at the Department and we have ongoing negotiations with the City of Atlanta. And what tends to happen when you are dealing with a city, traditionally what happens is we will go out on site, do an investigation, send them a letter with either findings saying we have found things that we are good, or things that needed to be fixed and then tried and proceeded to come up with a settlement. What happens is the city while it is still considering its response because of the nature of local government will do with the city council so we don''t have a settlement agreement with Atlanta yet. We are hoping to have one and I think they are looking at what their response can be to us and what funding they have to be able to deal with the barriers that we have. So I am very hopeful that in the near future we will be able to have an agreement with the City of Atlanta but it is, we are not there yet .
Alright thanks, our next question, please.
Our next question.
My question is: If you have an employee that states they have a disability such as cancer, and it is not obvious and we request medical documentation to give them whatever accommodation that they need, and that documentation is not obtained so they don''t go to their doctor and they dont give us whatever documentation we request, are we legally bound to still continue that accommodation?
Okay. I am going to take that question. An employer certainly has a right when a person an applicant asking for reasonable accommodation. An employer has a right to get medical documentation to confirm basically your question is when the condition is in effect a hidden one, you can''t tell looking at this person that he or she has a disability so you just want in essence corroboration of this. You certainly are entitled to that and the EEOC''s guidance on reasonable accommodation, which is on our website, makes clear about how the individual who is requesting accommodation should cooperate with this request. But in terms of the kinds of information, your question kind of implies you just want corroboration that the person has cancer. Now, it is also true that employers are entitled to know that the condition meets the ADA definition of disability but as we have been discussing that definition has changed and so one of the things I caution employers about is that if you are asking all the same questions about a condition to establish disability, if you are asking for the same amount of documentation as you asked for last year, then you are probably off track. You should not need the same kinds of information, the same amount because it has to go to the current definition of disability is and certainly if people have, you know they have lung cancer, breast cancer, these kind of things that basically the corroboration from an oncologist, yes, they have it or something, you know, a health insurance form that confirms it, that is probably going to be more than enough, spending -- you know one of the tips I give employers these days is if you used to spend two, three, four, five, six weeks trying to determine disability, if you are spending that same amount of time now something is probably wrong. The whole idea here is to make this a much quicker process, much smaller part of the process. But to individuals who are requesting accommodation to understand that the employer does have the right to get certain kinds of documentation and the sooner that you provide that or explain why there may be a delay, then you can keep the dialogue going so as an individual with a disability, you don''t want to ignore that legitimate request.
So if a request is not -- if they don''t provide anything, we do not we are not legally bound to provide them that accommodation. Is that correct then?
You are not legally bound but I want to say be careful that you really feel you have got a good reason to really doubt, I mean, I understand you may not be able to see something here but the last thing I ever hate to see are cases being brought where something really should have tried to be resolved. So I would be going back trying to understand why the person is having a problem doing this and to clarify what you are looking for, maybe you think it is clear, sometimes it is not to the employee. Hopefully that can resolve things and you can get documentation you want but individuals do need to cooperate to get the accommodation.
Alright, thank you for the question. John, I have a question for you that was submitted online by someone who is participating through audio streaming and their question, they are an individual that lives in a community where there is no policy or program in place by the city for sidewalk maintenance or replacement. The city does have a program for curb ramp replacement but many times sidewalks are broken and there may be a perfectly good curb ramp in place but a broken sidewalk prevents someone from getting to that and the questioner wants to know if that is acceptable under the ADA and what can be done to encourage the city to develop some type of policy or program.
Okay. This is both a hard and easy question at the same time! It is hard because the -- we do not have in place standards yet on public rights of way that are specific but the Access Board is in the process of developing guidelines on this issue and when they do that we will proceed to move toward having standards. That said, and so you know we have a provision in our regulation that requires entities to maintain accessible, to maintain the accessibility features of things that are required. That said, there is no specific requirement that a sidewalk has to meet certain, an outdoor sidewalk has to meet certain standards but that is I think it is, that is the sort of technical part but I think it just makes common sense that the city has created a network of sidewalks that they are used for the citizens to be able to move around the city and that just like maintaining other accessible features, they should be maintaining them so that they are passable. The difficulty comes here in that there is no you know there is no specific standard that it be stable, firm and slip resistant or it be of a certain material or that it be a certain width. I mean we have other standards that we can apply to that, but I can tell you from my own neighborhood there are sidewalks that are -- that have bricks and trees that have become -- that are impassable to people who use wheelchairs to get around the city and I would say that is an ADA violation. And so, I think the city would have an obligation to be able to repair those so they are useable by people with disabilities.
Alright, thanks John. Operator, may we have our next question, please.
Once again if you have a question please press star 1. Our next question.
John, Sharon, this is in Honolulu. Sharon, you talked mostly about the ADA Amendments Act and the proposed rules but my question is actually directed to John. Do you see any changes in DOJ''s rules or in the way that you provide technical assistance with the new definition under the ADA Amendments Act for Titles II or III? Most of the emphasis now in the Acts are for Title I, or in Section 504.
Right. I would love or if I wasn''t as talkative as I am, I could just say yes, here to your question. (Laughter) But it is very hard for me to do that. Clearly the ADA Amendments Act applies across the board. I think, clearly I think everyone thinks most of the changes will be in the employment arena. We will be following EEOC and putting out regulations ourselves that will amend our ADA regulations dealing with the changes but we do think that there are, that there will be significant changes outside the employment area, especially for persons with learning disabilities and some of those other areas, testing accommodation areas where the nature of disability was an issue. I think also the -- in terms of some of the areas where we had to deal with mitigating measures, persons with diabetes and people with certain psychiatric conditions, people with monocular vision where it wasn''t clear that we could establish in the past they are people with disabilities, I think that is a much clearer issue. But I think you may be getting to a different point which is especially with the issue of bodily functions, major bodily functions is going I think to expand the category of people with disabilities which might bring about an expansion of the nature of reasonable modification of policies and practices and other areas and I think that is something that we will be looking at but I that, clearly the statute has already been changed and those issues are there now. We hope to make it all clearer when we actually get through a regulatory process.
Are you considering melding those changes with the Title II and III proposed rules that you were talking about or having it entirely separate?
I think a lesson we have learned from our last rule making is that it is better to have many smaller rule-makings than to have one comprehensive one and so I think from at least while my tenure is here future rule makings will be much more targeted and limited.
Thanks for your question there. Our next question, please
Once again if you have a question, please press star 1.
John, I have another online question for you. This was regarding the case you mentioned involving Jackson, Mississippi. And the questioner wants to know how the Department of Justice winds up filing the suit against the City versus the Department of Transportation doing so?
Well when I say the city we are really talking about the Department of Transportation. When we file the lawsuit it is against the entities in the city that have the responsibility under the DOT regs to carry that out. So it would not be -- we didn''t file suit against the mayor. We filed suit against the actual departments in the city that have responsibility for the transportation.
I think the questioner was getting at why DOJ filed the suit versus the DOT?
Oh I see, ok. Under those, that is structural question from the ADA. DOT has authority to do administrative investigations, but if a lawsuit is going to be filed that would be handled by the Department of Justice. This is not a case where DOT was involved, this was a private lawsuit and so we intervened in the private lawsuit. We work pretty closely with DOT but their area is administrative work. Our area is providing the action in court.
Excellent. Operator, do we have one more question before we get to the bottom of the hour here?
Our next question.
Hi. My question has to do with expansion of the definition of disability. And the nexus between the documentation that the employee needs to provide to the employer, I was thinking about this in response to the question with the person saying they have cancer. Does the employee just have to document, I have cancer, these are the life activities that I am limited in and how much information does the employee need to provide from a medical professional about what the relationship is between the limitations and the accommodations requested?
Okay, thanks for your question. I think Sharon going to deal with it.
I will take this one. This is why I think it is so critical that after all it is the employer who is going to be asking for something, I think the employer has to be specific what it is asking for. EEOC has identified sort of two areas where an employer could be asking for documentation. The first goes to whether the applicant or the employee''s medical condition would constitute a disability as defined under the ADA. The second area has to do with what the individual is asking for, does the person need any kind of accommodation, even the one they are asking for, they may need something but does it have to be the particular thing they are asking for. And how will that solve whatever the problem is. So the employer has to be specific when it is asking someone to bring information which one of those two areas and perhaps it is both that they are asking for information and to be clear a lot of times what I see is employers give a very general request. They will say bring something from your doctor, and so not surprisingly what the employee then brings back from the doctor may be a statement that I am treating this person for breast cancer, for lung cancer, whatever it may be, the person is scheduled for surgery, they are undergoing chemo, you know sincerely Dr. Jones. And then the employer feels frustrated, like well, wait a minute, that is not telling me anything. The employers are going to have to be specific here. As I said in answer to the earlier question, yes, the employer is entitled to ask for information that shows it is a disability as defined under the ADA, but the employer has to be specific that that is what it was asking for and certainly to not assume the employee, I mean to say an individual, well, bring me documentation that shows it is an ADA disability. Number one, I don''t know that the employee would understand what that means, I certainly don''t think most doctors would understand what that means, so I really encourage employers, make your request in plain English. Be specific about what it is you are asking for so a lay person, both the individual who is requesting accommodation, and if they are having to go to their doctor to ask their doctor to provide something, the doctor gets the sense of what you are looking for. So that the appropriate documentation is coming back.
Alright well, thank you Sharon and John for the vast amount of information that you have shared with us today and as you always do. For anyone that did not have a chance to ask their question, you are encouraged to do one of several things. You can contact your regional ADA center, by calling 1-800-949-4232. The Department of Justice operates a technical assistance line 800-514-0301 as well as the EEOC 800 number, 1-800-669-4000. All contact information for all of the speakers that participate in the audio conference series is available on the Audio Conference website page, www.ada-audio.org. You can find the link on there for speakers. Again, today''s session was recorded. The audio archive as well as the written text transcript will be posted to the ADA Audio Conference website in 10 to 14 days following today''s session. I hope that you will be able to join us on August the 22nd, 2009, for our next session entitled "Ensuring Effective Communication: Whose Responsibility Is It?". For additional information on the audio conference series visit the audio conference website or you may call 1-877-232-1990. Again, thank you very much to John Wodatch and Sharon Rennert for their time today and thank all of you for participating in the ADA Audio Conference series. Have a good afternoon, thank you.
Ladies and gentlemen, thank you for your participation in today''s conference. This concludes the conference and you may now disconnect.