Should check, we apologize. Sometimes technology does not always work perfect. We will transition to Eve Hill who is the senior counselor to the attorney general within the Department of Justice and Sally Conway who is the deputy chief of the disability rights section within the Department of Justice. So Sally and Eve, you go ahead.
Thank you all for having me today. I want to talk a little bit about the civil rights division priorities. Disability rights in general is a very high priority for the civil rights division and some of our priorities are ways to affect what the law means and how it impacts people with a variety of disabilities. One area is in emerging technology. We know that modern technology composes significant opportunities or significant challenges if we don''t ensure that the technology is accessible. One underlying theory of the Americans with Disabilities Act (ADA) well, we wouldn''t make the existing world accessible all at once. It would happen gradually as old things were replaced with new things. These are new things. Technology is in the process of revolutionizing our economy and our culture. Affecting communication, how we obtain information, how we entertain ourselves and others, how we get educated, how we buy goods, and making all these things more easy for us and more efficient. But many of these technologies like Websites, cell phones, ticket Kiosks, e-book readers are either wholly or partly inaccessible to people who are blind or have other disabiltiies. So most recently we pursued accessible technology through two statements of interest, which are like amicus briefs, in National Association of the Deaf versus Netflix. National Association of the Deaf sued to require Netflix to caption online, watch instantly movies, the movies that it streams to your television or your other device. And we oppose Netflix''s attempts to dismiss the case. Our brief made clear that Title III of the ADA applies to online only businesses, as we have said before, and that it requires their online services to be accessible. We also argued that Netflix is responsible for making its online services accessible and that the 21st Century Communications and Video Accessibility Act doesn''t preempt application of Title III to online services. That both laws can exist together. The Massachusetts district court, I''m pleased to say, refused to dismiss the case. And held that Title III covers online only businesses. Covers them even if the services are accessed only from peoples homes, making clear that it is the services of a public accommodation not in a public accommodation. The court also made clear that copyright doesn''t necessarily preempt Title III and that it is a factual issue to determine what level of control Netflix has or could have over the content. And that the 21st Century Communications and Video Accessibility Act doesn''t preempt Title III. So we are moving forward on the technology arena. Another area we care deeply about is education. We are exercising our expanded ability to pursue complaints about discrimination in public, private, and higher education. So for example, in a number of contexts, we are challenging the argument that schools should have unfettered discretion to decide what accommodations to provide or to permit, as long as they follow procedures. So in KM versus Tuston Unified School District, earlier this year, we filed an amicus brief on behalf of a public school student with a hearing impairment who had asked her school to provide realtime captioning. This is under Title II. The district court had held that the school had a free appropriate public -- had provided a free appropriate public education under the Individuals with Disabilities Education Act (IDEA) because she was able to benefit to some extent through her education, and the school provided preferential seating and class notes. The district court believes that was the only requirement imposed on the school and that the ADA Effective Communication Requirement didn''t require anything more. Our brief argued that Title II of the ADA requires the school to ensure, as it says, that its communications with students with hearing and vision disabilities is equally effective as for other students. Not just that they get some benefit from the education. So this is a different standard from the IDEA''s free appropriate public education standard. In addition, we argued that under Title II the school has to provide primary consideration to the student''s choice of auxiliary aid and isn''t entitled to just make up its own mind about what auxiliary aids should be provided. So this is important because this applies to all effective communication cases and makes clear that states in the public school context may be different from the Title II ADA requirements and that both may apply. In an 8th circuit court case, Argenny vs Creighton University, we filed an amicus brief on behalf of a medical student with a hearing impairment who needed realtime captioning in class and an oral interpreter in clinics. So he has clinical rotations that he has to go through as well. Our brief argued that the university shouldn''t get deference in deciding what auxiliary aid should be required. So this case explores the limits on deference to schools. They have been granted a lot of deference in the past to decide what the academic requirements are of their degree and including in that, what auxiliary aids should be provided. We have made the distinction that while they should get deference in determining what their degree means and what the academic requirements are of the degree, they don''t get deference in terms of deciding what a student''s auxiliary aid should be. So we will see how that turns out. In a public school''s case, CC versus Cypress School District in June of last year, the department filed a statement of interest in California in support of a 7-year-old child with autism who had been denied the right to bring his service animal to school. CC''s service dog, Eddie, had been trained to resist when CC tried to elope her bolt, to redirect or ground him, to apply deep pressure when he starts stemming, to nudge, lick, or otherwise redirect his attention when he becomes anxious, and to remain near CC, to carry his communication card and help him to communicate and socialize. Cypress School District claimed that it would be better for CC not to have the dog. He would become overreliant on the dog and it would undermine his independence. And they claim that this decision was totally within its educational discretion and was not a matter of civil rights. So the department explained that students and their parents have the right under Title II to determine their own service animals. To determine their own medications. To determine their own self-mitigation in fact. And that schools need to take students as they come and accommodate them as they are with those choices in place. The district court agreed with us and required the school to let CC bring his service dog with him and I''m really happy to say, CC has been doing well. Eddy has been doing well. It''s made a huge difference in CC''s life and apparently his first word was Eddy. So we think these cases that go beyond allowing the school district to do whatever they decide are making a difference in the lives of children with disabilities, who eventually become our adult leaders in the disability movement. We are also looking at high stakes testing. We are working to ensure that admissions and licensing testing, whether for higher education or for business certification, are accessible to people with disabilities. So that--and we require testing providers to offer their test in a way that best ensures that the test measures the knowledge or skill that the person has and not their disability. And this comes from our regulation at 36.309, which states that the tests have to be administered in a way that best ensure that the measurement is of the knowledge or skill and not the disability. We recognize that this standard is not coextensive with either reasonable modification or effective communication but may require more or different changes to the test. So just a few weeks ago we filed a statement of interest in California in Department of Fair Employment and Housing versus Law School Admission Council. The plaintiff in the case, which are a puntitive class, claim that the law school admission counsel discriminates against test-takers with disabilities by requiring unreasonable levels of documentation of disability -- requiring really a lot of medical evidence of disability. And then by failing to make their decisions in a timely manner so people can be assured that they will get their accommodation or can know that they need to appeal denials of their accomodation. And also that the council is failing to make sure that their test best ensures that it measures skill and knowledge rather than disability. And finally they are claiming that the test discriminates against students with disabilities by flagging their accommodated test scores. So the LSAC put the notation by accommodated test scores, saying that essentially, that they don''t stand by this score, and lets the law schools who are considering these applicants know that they may not be valid scores. The department brief argues that the new ADA regulations limiting the documentation that test providers can require, are entitled to deference by the court. So that the -- we both argued that even before the new regulations did not -- would not allow testing entities to require unnecessary documentation and to wait too long to make their decision, that the new regulations were very explicit about that and required not only not requiring undue documentation but paying deference to previous accommodations that students have gotten in touch with. We also argued for the first time that flagging of accommodated scores is a violation of the ADA. That it really goes to the heart of the ADA in that a person is entitled to seek their reasonable modifications or their accommodations in auxiliary aid and should not be punished for that. And that these do not undermine legitimacy of the scores. We also filed a statement of interest and an amicus brief in two parts of a case against The Multi-State Professional Responsibility Exam. We really don''t focus all our efforts on lawyers but these are the ones that happen to come up. So this was on behalf of a person who is blind and has a learning disability and needed accommodation software in order to take the Multi-State Professional Responsibility Exam in Vermont. And we argued again that the regulation, section 36.309, requires the best ensured standard. So the testing entity is not allowed to have just the list of the six things that it''s willing to provide always and that this is the blanket list, take it or leave it, no matter what you really need but that they have to make the changes that are necessary to best ensure the test is not testing disability and is testing knowledge. The court there agreed and the plaintiff has taken the test and passed. So all is well for her. Another of our high priority areas is in community integration and what we call Olmstead Enforcement, based on the Supreme Court case, Olmsted vs LC. We participated in 40 cases in 25 states. We have worked on behalf of people with intellectual and developmental disabilities, mental illness, physical disabilities adults and children, people in public and private facilities, people who are at risk of entering facilities as well as those already in facilities. We have implemented this through settlement agreements, through technical assistance, we have a website dedicated to Olmstead and guidance specifically about what the Olmstead Integration Mandate means, all on our ADA.gov website. We have recently reached a settlement agreement with the commonwealth of Virginia. To really transform their system of services for people with intellectual and developmental disabilities from one that currently relies heavily on five state operated training centers that are very institutional, towards ones that offers a range of community based services for people in their own homes, in their family homes, or in small group settings. Along with housing supports, prices supports that help people stay at home, and quality assurance. One of the things that we''ve learned from past deinstitutionalization movements is that you can''t just get people out of the institutions. You have to make sure that the community services are there and that they are of high quality to keep people from having to return to institutions or for ending up homeless. So this has a substantial piece that''s dedicated to making sure that community services are both available and of high quality. Now nothing in the ADA or the integration mandate is limited to residential settings, although up until now, it has been -- we have been focused on where people live and integration and where people live. We have now expanded our Olmstead work to look at how people live. Simply moving someone from an institution to a community based residence doesn''t achieve community integration if they then are denied integration in how they spend their days and end up returning to an institution for nine or ten of the daylight days. So we are working -- we are focusing on how people spend their days including what we are all doing, is work, in the community. So a few weeks ago we issued a letter of findings and this was predated by a statement of interest in Oregon. Oregon''s system of employment and vocational services is violating Olmstead by unnecessarily segregating people with disabilities in institutional sheltered workshops, when most people could and want to work in integrated employment. So the letter of findings talks about the imbalance of funding and incentives and the administrative processes that lead people into sheltered workshops instead of into supportive, community based competitive employment. And that''s very recent and the court so far has agreed that Title II, the integration mandate, is not limited to residential services and does apply to employment on vocational services. So we will see what happens there but I am quite sure that this is likely to make a significant difference in real community integration for people with intellectual and developmental disabilities, as well as other people who are sent to similar workshops. June 22 was the 13th anniversary of the Olmstead decision and to celebrate that anniversary we released a document online called Faces of Olmstead, that highlights a few of the thousands of people who have benefitted from the department''s Olmstead work. And so you can read about some of those people on our ADA.gov website and they''re really quite impressive and meaningful. And Tom Perez on that day also testified before the Senate''s Health Education and Labor Intentions Committee about the division''s on going commitment to our Olmstead work. We''re also very interested in transportation issues and have entered MOUs with some federal agency transportation fundors and they have their own inspection and monitoring programs that they will now include ADA reviews in. So that allows us to leverage our effort in making sure that transportation facilities and transportation vehicles are accessible to people with disabilities. We also care a great deal about health care. We have been very active throughout the time of the ADA in ensuring that people have effective communication in their interactions with doctors and nurses and other health care providers. We''re also turning now to physical access. To health care because that has long been overlooked and people with disabilities have long not had equal access to health care because of the lack of physical access. And, of course, you will hear or have heard a great deal about our new regulations which were issued in 2010 and the standards became effective in March of 2012. Those cover things like judicial and detention facility as well as a range of recreational facilities, including swimming pools. There was some confusion among swimming pool owners and operators about the requirements for fixed versus nonfixed lifts. Our regulations require a fixed lift whenever it is readily achievable and as a result of that, we have extended the compliance date for existing pools only until January 31st of 2013. After which they will be required to ensure that pool lifts that they install are attached to the pool lift and can''t be moved around or hidden in a closet, or otherwise made less available to people with disabilities. So that''s a little taste of what we are doing and I appreciate being here. Thank you.
Thank you Eve and I don''t know Sally did you want to make any additional comments or did you want to chime in during Q and A?
I''ll just chime in during Q and A.
Ok great. So at this time, thank you to both Sharon and to Eve for giving us a lot of information on things to think about in relationshap to the activities and the work that your agencies have been engaged in this past year, and some of the perspectives of the courts and other areas of the enforcement arena. And at this time we will go ahead and entertain some questions. So I am going to turn over to John to give some instructions to those individuals who are on the telephone. And then I also will be feeding in the questions that people have submitted through the chat area as we go. So individuals that are in the webinar platform if you would like to submit your questions in the chat area, we will repeat them for our presenters. So John why don''t you go ahead and let the telephone folks know how to ask questions.
Ladies and gentlemen at this time, if you have a question or a comment, press the star followed with the 1 key on your touch tone telephone to place yourself in the question queue. So again, for any questions or comments press the star followed with the 1 key at this time. And at the moment I am showing just one question coming from Rick Edwards.
Ok go ahead.
Hi. I will tell you that I am somewhat encouraged by the Department of Justice (DOJ)''s focus on access to education although I would say there is still many many schools out there that have not dealt with the basic physical access. I''d like to encourage the DOJ not to lose sight of the unfortunately large number of public accommodations that are still not providing basic access like gas stations and doctor''s offices, rest rooms in stores and restaurants and hotels and I am not talking about the pools but the basic front door even though it''s obviously been 22 years since the passage. My basic question is since we are talking about 22 years later, what do you think is the likelihood of that there will be any kind of increase in staff to handle the increased volume of complaints?
I think the volume of complaints has remained pretty steady as opposed to increasing, and I think that we have--I can''t predict what the likelihood is of increased levels of staff. We do deal with a lot of complaints, many of which you don''t hear about, and we do have a significant focus on ensuring physical access to both existing and new places of public accommodation.
I''m going to take a question that we have from online right now. The individual is saying that they were recently informed that with most recent changes to the ADA law as it applies to HR and employment, if we hire a candidate for a position and there is an obvious disability, example that they give is blindness, we are to provide an additional interview or screening tool. Are you familiar with this requirement and what are the details about this? That''s the question that''s posed. So I don''t know if they are referencing something that may have been out in print or something. But Sharon, do you want to respond to that?
Absolutely, I know of no such requirement that when you are offering a job to somebody with an obvious or known disability that there is some extra step you must take. In fact, taking extra steps in certain circumstances could be viewed as discrimination. I mean the same basic process for hiring should be used for everybody and not sort of one track for people with known or obvious disabilities and a separate track for everybody else. So I am not sure in terms of the question what it is they heard. It is certainly nothing in the ADA Amendments Act, either the statute or the regulations. The only thing that I can see that might happen as an extra step, and it is certainly not a screening tool, is after making a job offer to someone there might be a request for reasonable accommodation. Now that''s not about doing a new screening, rather it is about engaging in the interactive process area when you receive a request for reasonable accommodation and finding out about what it is they need and why they need it and how it ties to the disability. And whether it is something that will help the person to perform the job and will not cause an undue hardship for the employer. So to that extent, that may follow but of course, that''s all dependent on somebody requesting accommodation. But the bottom line is I have no idea of any kind of requirement and would encourage people to be very skeptical, who is telling you there is such a requirement, what''s the basis for it. Because I would hate to see some employer unwittingly start doing something that could be viewed as discriminatory.
And Sharon, just to clarify, if there was such a change in regulation and such of that nature, Equal Employment Opportunity Commission (EEOC) would include that information on their website, is that not correct?
Well yes, if we were going to change our regulation, first of all, we would be announcing that there would be a public comment period. We would be very clear about a proposal to change the regulations and we would be inviting public comment on it. But even where EEOC is putting out new guidances, we would not be establishing that kind of "requirement".
And so somebody may have seen this in an article or they may have seen it --
You do. And if anybody ever--the question or anybody else spots where this is, I mean that''s the kind of thing that people contact EEOC about and say, "is this from you or what can you tell us about it? Is this something we must do? Is it something that is good idea?" I mean you can always check in with us about that.
Great. Thank you. Let''s see, we have another question before we go back to the telephone that the individual''s stating online that, "I understand that the Second Circuit Court of Appeals, The U.S. Circuit Court of Appeals, on June 28th, ruled that the Americans with Disabilities Act does not in fact require the city to make taxiing serve the disabled. Only that the city cannot discriminate against disabled people seeking to license to drive a cab. Has that been appealed or what is the status at this time?
That''s private litigation so we are not a party to that. I don''t know that it''s been appealed.
Ok, so just a clarification, that was not something that the Department of Justice was specifically involved in. That was private litigation and they are not aware of, at the time, any further action being taken on that particular case. Okay. So John, do we have any questions from the telephone at this time?
No questions at the moment. However I would like to give the instructions one more time. So if anybody does have a question or comment, press the star, followed with the 1 key, at this time.
Okay. I will keep going here. Eve, somebody is asking you to repeat the name of the case involving the service animal and Eddy, and if there is a published opinion on that case.
The name is CC, as in Charlie Charlie, versus Cypress school district. Cypress is C-Y-P-R-E-S-S and I don''t know if the opinion is published or published yet. So I''ll have to--Robin, can I get you that information?
Sure we can post that with the archive information. Yes. Definitely we will do that. Okay. Another question that has been posted online is that taxi companies--I have been told that taxi companies are a part of the private sector and do not have to follow the public laws that are required of transit providers that receive federal transit administration funding. Is this actually the case?
Hi, this is Sally and I will take a stab at this. Taxi cabs--they are Title III entities and they are carved out as such in the Department of Transportation regs. And they have some very specific requirements that are the requirements that run through the ADA. And it''s: you can''t discriminate based on disability. You can''t charge more. You can''t, you know, fail to pick up because somebody has a disability, which we know happens all the time. And we have looked at a number of taxi cab cases over the years. So it is clearly covered by Title III of the ADA, there''s just no question whatsoever.
But it is usually not a public transportation as in a subway system. It is not usually run by the state government or the city government.
And just for clarification, sometimes you do have local transit providers that will contract with taxi companies to partner or to be part of their demand response system and in those situations that would have a different application of the ADA, correct?
Well, they would really need to comply with both. With whoever their -- I am assuming that the vast majority of cases, it is going to probably be a Title II. Probably a local, state, or county government that is contracting with a taxi cab company to provide essentially paratransit service or demand response service. So certainly the Title II entity has to make sure that if they are doing this, they have -- they have to comply with the ADA and very often, there are going to be some very specific conditionS that will be terms that are very clearly spelled out in whatever contract is. But I would also argue that they still remain Title III entities and also would have to comply the taxi cab company as a Title III entity as well. So they may have a contractual arrangement with a state or a local government to satisfy the state or local government obligations. They are also in and of themselves a Title III entity.
Great. Thank you. Sharon we have a question that was submitted through the online system that is asking, can you please clarify the extent of medical diagnosis required by the court to obtain a workplace accommodation? It is our understanding that the specific condition is not required and the doctor should instead focus on the employee functional limitations due to a disabling condition versus medical diagnosis. Is this true?
No, it is not true. Yes, the functional limitations are very important to establishing what is needed, perhaps, for reasonable accommodation but the threshold that one has a disability covered by the ADA would include exactly what the person has. In other words, what the diagnosed condition is. And while it is a much lower threshold, that it is substantially limiting a major life activity or under the second definition, there''s a record of the substantially limiting impairment. The idea that a doctor can just focus on the functional limitation and sort of bypass the name of the condition is wrong. Courts do not support that. EEOC hasn''t supported that. I understand sometimes that it can be very sensitive information. People''s concerns about disclosure, I do appreciate that. EEOC appreciates that. But there is a sort of a quid pro quo to getting reasonable accommodation and one can''t be or insist on being vague or limiting in the medical information that will be provided. What I have always told individuals is, you are welcome to start by not disclosing the exact name of the condition, focus on the functional limitations. But if the employer says that''s not good enough, then I have counselled individuals. They really do need to disclose what it is that they have been diagnosed with and that''s just a reality. If there is concerns about that this information be treated as sensitive medical information, do remember that the ADA has very strict confidentiality requirements. Nothing wrong with reminding whoever you are turning the information over to, that there are confidentiality requirements. It is fine to be asking if the employer is intending to share it with anybody and express concerns that it not be shared too much or having shared this information, to establish you are covered. So say, "look, you know, I understand why I am handing it over" but internally, the employer will not necessarily have to be specific with everyone it talks to. For example, you might be telling human resources the name of your condition to establish a disability. Human resources obviously, will have to work with an employee supervisor to implement a reasonable accommodation. Almost in all cases that will be true. That doesn''t mean that the supervisor needs to know the exact name of the condition. And here I often advise human resource personnel employers, you can say to a supervisor we have established the person has a disability. You don''t have to know exactly what it is. But it has been established and we have also established we need to provide a reasonable accommodation and we need you to implement it. And that''s a perfectly appropriate way to proceed. So to honor an individual''s request that the information be treated in a confidential manner and the sensitivity of it.
Thank you Sharon. I mean I think our office could also verify the fact that we have had many people who''ve called and said that they were interpreting or at least had heard from somebody speaking, or wherever, that there was no longer employers couldn''t ask for information about the person''s diagnosis or condition under the ADA AA. So I think there is some confusion out there and this kind of a question definitely plays to, reinforces, that confusion.
No, it is a good question and I want to lay that one to rest because otherwise, the result can be that individuals can be turned down for their request for accommodation. So no, this is not true. It was never true under the original ADA and it is not true under the ADA amendments act.
Ok. Let''s shift over here, I have a question that is asking, are condominiums that are mainly full for residential ownership but some units that are rented out, are they exempt from ADA law so that common areas do not have to meet ADA requirements?
Well, thank you for asking that question. So the short answer is, if something is for residential only and it is built -- and that is the intent, there is no requirement that it complies with the ADA. However if housing is built, and I think we see this a lot in mixed use kinds of, where there may be a building that''s built. It is going to be very clear that some of the units are going to be strictly for residents but some may also be put into a pool, and that they are really going to be seen as rental properties. So you really look at the difference between those two. But if something is strictly residential, then there is no specific requirement in terms of the ADA.
Okay. Thank you. I know housing trips people up sometimes.
It is a really difficult thing and we are, just to let you know, we are in the process of actually doing a TA document on housing that is not related to education but residential facilities. And we are really trying to do something that is going to be easy to understand because there is so many different permutations and combinations that one could go through. So I would again, like Sharon had said earlier, I can''t give you any idea of the time where it is one of the many things that we are working on. But it is one of our priorities because we do get a lot of questions.
Yep. I agree. I think we do at the ADA center level, too. John, are there any other additional questions on the phone before I continue with the online?
I am showing no questions from the phone.
Ok, they are silent today. Here is a question related to post secondary Ed. Regarding academic accommodations and higher education, are there certain categories of disabled individuals who seem to be having more problems with getting accommodations that they need? In other words, Which disabled populations are we not serving as well as others from the experience of The Department of Justice might have had in this area?
I think it really runs the gamut. I certainly think that returning service members that have PTSC or have traumatic brain injuries or have both, I don''t know that they are being overlooked but I think it is a brand new phenomenon. That it is a huge wave that post secondary schools are looking at now and it may be at times, very difficult to be able to accommodate the traumatic brain injury and the PTSD. And I think because it is so new and that there are so many people coming through the doors now, there is no one size fits all, and I think it''s hard. And I think schools are wrestling with that but I think schools are also--an awful lot of schools are being proactive and trying to figure out what would work the best. I think certainly we still see issues relating to folks with communication disabilities. And it will be as simple as -- well, simple. That should not have been the term I used. That we could sort of give the age old, somebody would like to record a lecture. And the professor does not want that to happen in his or her classroom. But a lot of it is note taking and readers and electronic formats that are accessible. Or formats that are accessible to folks, particularly folks who are blind or have vision loss. Interpreting, if you affiliate these issues to folks who are deaf, has always been an issue. And that continues. And but I think those are really big things. I think we still see issues relating to physical accessibility, but I think, also as a chair user myself, that the physical access has improved. And we have had a number of cases over the years that really related with larger universities to increasing the physical environment for folks who use mobility devices. But I think really right now, we are really looking at folks who are returning from Iraq and Afghanistan. The other issue is folks that are returning and they want to use the GI Bill for their education and there are time limitations. I think, and I may not be right, but I think it is 39 months and you have to have completed X amount. And I think with folks who have PTSD or traumatic brain injuries, may need to take a lesser load, and that''s an issue too. That added stress that folks are feeling in wanting to complete the coursework but every time stress really starts becoming an every day issue for folks, that also compounds their need for accommodations and also their need for some understanding. So I think those are really the big areas.
I would only add I think some of the things that we get, and again from the ADA center perspective, is we, in post secondary, continue to get calls related to the Autism Spectrum Disorder and accommodating those individuals. That seems to be an ongoing issue because that''s a newer population for the post secondary community. And also with the emerging technologies and the increased use of technology distance learning and things of that nature, we continue to get calls and issues that are raised by students about timely access to things. Because everything is in such demand in regards to the realtime with so much of the technology but when it comes to sometimes, work around other things for accommodations, students are not getting those things at the same pace as other students are.
Thanks for adding that. Because you are exactly right. The Autism spectrum, because kids are now growing up and they are going to school, following diagnosis. That didn''t happen many years ago and distance learning is a huge field. And it is something that we certainly are looking at.
Yeah, ongoing, might be a good time to ask you, where are things at with the notice of rule making that came out back in 2010 related to websites for Title II and other entities?
I wish that I could say something but, of course, I cannot. And things are right where they were and we are looking at things but I don''t know what''s going to happen or when. And given that an election is coming up and things tend to stop, they have to be stopped. So I can''t say much about that at all.
So obviously pressing forward and looking at what''s happening in the private sector and the guidance that DOJ already does have out there about these obligations for the web-based content as part of their programs and services.
We have another question here. Someone is actually saying that they are paraphrasing you. That you stated today that schools should have the responsibility for setting academic standards while the students should set their own best accommodations. Is this a correct summary and if students determine their own accommodations, what happens if their requests are unreasonable?
No, that''s not quite correct. What we are claiming is that schools don''t have unfettered discretion to decide what a student''s accommodations are. And that in providing effective communication under Title II, they are required to provide primary consideration to the choice of the individual. So they can still use the undue burden and fundamental alteration defenses in terms of providing effective communication, or the reasonableness requirement and the fundamental alteration requirement for reasonable modification, so that they''re still there, of course. But in the cases that we have been involved in, they had been deciding things like auxiliary aid is not good for you. As opposed to, that auxiliary aid would be an undue burden for us. Those are the sort of distinctions and that schools still get to determine what their degree means, the course requirements, and so forth for their degree. But in determining whether an accommodation is within those requirements, they have to give some consideration to the person with a disability.
Thanks for that clarification. Sharon we have a question here that says--that asks you to please provide some tips on evaluating leave as a form of accommodation, and they gave an example: when they have an employee whom they have exhausted 12 weeks of FMLA and now they are examining further leave as an ADA accommodation.
Ok well, as an initial matter, and it is implied in the question, you never want to use the exhaustion of the FMLA leave for 12 weeks of FMLA leave, and say, that''s it and we are done under the ADA as well. And that''s a long held position of the EEOC. It is in our guidance on reasonable accommodation, that when someone has exhausted or is about to exhaust FMLA leave, that the employee indicates he or she will need additional leave. That constitutes a request for reasonable accommodation. And probably thanks to the ADA Amendments Act, whatever the FMLA condition is, clearly it is lasted at least 12 weeks. It may have lasted more than that. But the likelihood that it is also going to be an ADA disability is significantly higher under the amendments act. So, odds are, you are going to have to deal with this as a request for reasonable accommodation. And evaluate it on that basis. You are permitted under the ADA to take in to account that there has already been 12 weeks of leave. So when we get to determining the feasibility from the employer''s perspective of granting more leave, you are going to be able to take into account what the impact has been on your operations, that the person has already received 12 weeks of leave. But you want to start with how much more leave is the person asking for? Are they asking for a particular amount and if so, what is that? Are they asking for one extra day, an extra week, an extra month, an extra 12 weeks, an extra year? What is it they are asking for and why? What''s going on medically that the person needs the extra leave? And you can be asking, and really this is going as well, to the person''s health care provider, how confident is the doctor that whatever is being requested is it? That that''s the amount people need. Now we all have an understanding that with medical conditions, it is not always possible to give an absolutely definitive date of return or that nothing may happen to interfere with that. But you really want to, at a minimum, be looking for some estimate, even if it is not a definitive date. Somebody will be able to return sometime in the month of September. Could it be September 1? Or September 30th? The doctor then could explain why he or she can''t be more definitive but based on the progress this person is making, the medical condition, as it is being treated, that, you know, between September 1 and September 30th. I mean that''s something the employer can still work with. Once you have that kind of information as an employer, then you want to go back and see okay, can we give that much leave? What''s going to be the impact? Here is where you want to start with. Well, what has the impact been on the 12 weeks of FMLA leave? Do we have assignments that have not been done and if that''s true, what''s the impact of that? Do we have coworkers who have been doubling or tripling up to keep work going and what''s the impact of that? I mean, are we starting to burn people out? That people can''t keep up that pace? Do we have a huge project that''s about to start? Okay, the 12 weeks we got by but now we are going to have a huge project, we really need everybody there. And here is what is going to happen if we are without one person, and I am talking now for more than a few days time. So you are really doing an undue hardship analysis at this point. Once you understand how much leave the person needs, still, because of their medical condition, now you are assessing, is that going to cause you as an employer an undue hardship? One thing I always point out in these types of situations, sometimes what the employee needs is just more leave. That''s -- there is no alternative to that. But in some situations, doctors think in terms of either, you are working or you are not working. And they are not thinking about, well there is a range of potential accommodations that may enable somebody to get back to work a little sooner. So, for example, now obviously this depends on the type of work the person does, is the person up to doing some work from home? Maybe their doctor is not going to release them at all at this time to come back in to the workplace, but depending on the kind of job the individual performs, are there any job duties that the person can do at home? And if so, would the doctor allow this person even four, five hours a week? I mean it may be very minimal to begin with, again depending on the person''s medical condition, but can the person start doing some work from home? Can the person, if we are able to get them back in to the workplace, no, they are not ready to come back full time but they may be able to come back on a part time basis. Again perhaps only one day a week to begin with. But again sometimes doctors may think of it as a kind of, it''s all or nothing. And here is where employers can be asking questions about, is the person up to doing either some work from home if their job permits that, coming in for a little bit in to the workplace, other kinds of accommodations that might make that possible. Taking extra breaks. If somebody normally works while standing, is it possible that they could be seated so we don''t get them overly fatigued. As I say in some instances, this is really all going to be irrelevant. It really is the person who is just not up to working, period. But I have seen situations where employers raise that and the doctor comes back, oh, okay didn''t think about that. Didn''t realize you might be able to do that and saying yes, here is what I can release my patient to do. So it never hurts if that seems a potential possibility for employers to go ahead and raise that.
Thank you Sharon for your very thorough response to that question. Complicated issue. Going to move on here and take another question from our online guest. With this being election year, got a question related to upcoming elections. This is an entity who has a voter who is deaf and blind requesting a Braille ballot so that they can vote independently. However their office of elections indicates that a Braille ballot cannot be read by the ballot counter. Does a Braille ballot need to be provided to this voter under Title II of the ADA?
That''s a tough one. First of all, yes, they would have the requirement to modify or provide effective communication, excuse me, to the extent that they could but if it is something that''s not possible, yeah, there is -- the ballots are huge. Boy, I think that''s a really hard question. Are they arguing that it would be a fundamental alteration?
I think that--all I can go by is what they put into the doc into their question. Which was that they have an electronic ballot reader and a Braille ballot would not be able to be read. Of course someone would have to know Braille to be able to read any ballot that was responded to in Braille. So they''re saying electronically, their Braille ballot -- you know their ballot reader, does not read Braille.
I mean, I am not going to definitively say no, they would never have to do something like that because we don''t know what different capabilities are in different places. But it is probably going to be, in that case, that that individual would need some kind of assistance. And then what would that be? And that would certainly have to be tailored to the specific circumstance. But still, you are still within the effective communication obligation. But it is always a really difficult one and people certainly want to maintain secrecy, you know, of a private ballot. But there are times when that may not be possible.
And the fact that on a formal ballot would have it stand out from other ballots anyway.
I mean all of that certainly would.
So it would be a case by case situation that each entity would have to look at in regards to their capacity and any barriers that it may create for them?
Unless there was some way they could -- you know, depending on the length of the ballot and all of those things, that they create some kind of a Braille overlay for something, piece by piece. But that''s going to be a very difficult thing to do.
But again, when you go through to figure out, you still go through the analysis and the whole process that you would go through in determining effective communication.
Okay. We have a question here asking, does the Department of Justice get many questions about audio description services or visual description services for Title II or III entities?
We don''t get an overwhelming number. We do -- I think we -- you know, famous last words, I don''t listen to every single call that comes in. The 1400 calls a week that we answer on the information line. But I think we -- we would get some call to say, would this be required, and then again, we go through the entire auxiliary aid and service. But I mean audio description is a vital service for folks to access, you know, materials. I mean and it certainly is one of -- and we change -- I mean we include that they are specifically in the regulatory language. I don''t think we get a lot of calls specific to that. But I will tell you what, when we get calls about effective communication and auxiliary aids and services, we always -- we discuss that. You know, we will say this is absolutely one means of providing material in an accessible format to folks. But I don''t think we get a ton of calls.
Okay. Again going back to the taxi, there seems to be confusion, someone is saying that based on what they heard Ms. Conway say, if they heard correctly, that New York City taxi companies do not in fact have to make taxis serve people with disabilities. Or be accessible.
We haven''t expressed an opinion on that. We did file a statement of interest, in that case, involving New York taxicabs about Whether the taxicab and limousine commission in New York City, essentially, for all practical purposes, operated as part of its public transportation system, a taxi cab system. The lower court took a different approach to finding that New York was required to make its taxis accessible and the Second Circuit rejected that approach. Rejected both approaches in fact. And said that New York City did not have an obligation to make sure that taxi cabs were accessible.
And when I answered the question I was speaking general terms. I was not speaking about the New York case.
Okay. Someone is asking about if you know about a status of a private class action activities or a private class action activities regard and transportation act that''s including the lack of curb ramps and mid rails and timely radiation by various states of those issues? Are you aware of anything?
Well, let''s see, we are aware of the Frame Versus Arlington case, which is about curb cuts, not specifically about transportation related curb cuts. We are aware of litigation regarding access to Amtrak stations. There may be many others that we don''t know of, or at least that I don''t know of off the top of my head.
Great. John were there any additional questions from the telephone?
Actually I do show one question coming from Robert. Please go ahead Robert.
Do any of you know the status of the money case that the National Federation for the Blind filed? I know it had gone off to the district -- to the District of Columbia circuit and I hadn''t heard anything yet about what had happened in the District of Columbia on the money case versus the Department of the Treasury.
It was the American Council of the Blind, rather than the National Federation of the Blind that brought that suit, the Paulson case. I believe one court found that the money had to be made more accessible and I don''t know what has happened to it since then.
Yeah, there were quite a few articles at the time when the court''s ruled in favor of that but I would agree we have not seen anything-- published anything about the implementation of that either.
Or moving forward with that but thank you for the question. Maybe that''s something that we can follow up on. I have a question here from our online. Sharon, would you be willing to comment on two recent circuit court decisions where plaintiff including the EEOC lost on essential job function cases? That being EEOC versus the Picture People, Communication for Deaf Photographer, and the Jones versus Walgreens individual with mobility impairment and essential function of drugstore manager maintains display marketing, et cetera. Unloading deliveries to a store and essential job function of a store manager.
In terms of, I mean--yes, I am willing to comment on this but with the caveat that I was not directly involved with either case. So the information I have is from reading the decisions. I did not get to see all of the evidence that was presented in them. I think the first thing I would emphasize is that in both of these cases, the courts were ruling on what they determined were the essential functions of the particular positions at issue in these cases. Actually with the Walgreens case I would caution anyone not to say immediately, "oh, anybody working in a drugstore as a cashier, these are always going to be the essential functions of the job." That is just not how it is done and I don''t think either case stands for that proposition. I think what the courts were doing was looking at the facts before them in these particular cases. And with the Walgreens case you had one big drugstore company buying out another one and from what I gather, when they bought out the company, it seems as though they reduced the number of staff people who worked at the drugstore at any one time. As a result, it meant that the people who were working had to take on more assignments than they did under the original owners. Now that is something that is not prohibited by the ADA. But I think what happened in that case is, someone who initially could really spend all her time or the vast majority of her time, just being a cashier and therefore just sitting, and that was the issue with the disability. She really needed to sit down. Suddenly, when there were fewer people working and now the new management, so we needed everyone not just to be a cashier but we''re going to need you to stock shelves. We''re going to need you to unload trucks as they come in. Now her disability would prevent that and in essence saying, "no I really need to just sit down." Well if she is going to just sit down, she couldn''t stock shelves and she couldn''t help unload trucks. And the court concluded those were essential functions of her position. So, I think to me what I am taking from that, is that, very important to be judging or determining essential functions based on the facts at a particular point in time and recognizing over time one''s essential functions may change for a variety of reasons. It is not unusual in these past few years. A lot of companies have had to downsize. They are -- they had to let people go, they are hiring fewer people, which means the workers who remain, often have to get new assignments or add onto their existing ones. That can change the essential functions and therefore that can affect what may or may not be a seizable, reasonable accommodation. In the second case involving a deaf person who was working in a photography studio, what the court basically concluded was that the individual really needed to be able to speak and to hear. That the essential functions of this job which required working with people coming in to have, we all know those formal photographs that one can have taken, that''s what this shop did. That she really needed to work with these people, especially a lot of children, and they were on tight time schedules. And that if you had, for example, an interpreter doing the work instead, the interpreter would really be performing the essential function of getting the people into position, getting them to be comfortable so that they''ll look their best in the photograph. So the interpreter would be doing more than really interpreting but would be actually taking over, performing essential functions. And that led the court to conclude that given that the job really required ability to speak and hear, which the deaf individual could not do, meant she was not qualified. EEOC I think does the best it can at times, in terms of taking cases, what we view as strong cases. We don''t always win them. Our track record tends to be pretty good but sometimes we don''t succeed with them but I think it is unfortunate if you look at them, not to overinflate the significance of these court rulings. It was the specific facts in these cases that led the courts to rule as they did.
Great. Thank you. And thank you as we are at the end of our session and it is amazing how quickly 90 minutes will go, especially when you have had such a plethory of different diverse questions coming from our participants. But that is one of the unique things about this program is that We do have people from different walks of life that are participating and all coming from different areas of interest. So I want to thank our panelists, I want to thank Sharon Rennert from the Equal Employment Opportunity Commission, Eve Hill and Sally Conway from the Department of Justice for giving of your time today to respond to our questions and to give people a little bit of an update of what is actually happening. I just wanted to make one comment, there were a few people who did submit some comments about housing and some of the discussion we had previously on housing and I wanted to remind our presenters and others that we did not mention that fair housing also has a role in this particular issue. And I know that the guidance that the Department of Justice is going to be putting out will help clarify some of those issues of where fair housing come ins and where ADA applies and such and how that interface actually happens and I can get a clarification for that Sally but that''s what you will be doing in your guidance?
Yes and I should have mentioned that but yes, the intersection of fair housing ADA and how to figure all that out.
Great, well, thank you. Again, just remind people that next month''s session, we hope that you will consider joining us. This is a topic of interest that segways, golf cars, four wheelers oh, my. Just to look at the issues of the regulations and what''s been happening with different types of other power driven mobility devices. How that''s playing out, how is it procedurewise and otherwise post the revisions to the regulations under Title II and Title III. So feel free to join us for the next session and you can register by going to www.adaaudio--ada hypen audio.org. You will receive an email following this session with a link to an evaluation. We do really appreciate your feedback but We are getting ready for our 2012-2013 series, and we are also very interested in other topics that you would like to have us include. So as you fill out your evaluation, you''ll see that option to identify other topics and please share with us as we are interested in meeting your needs and are always looking for new ideas for different topics to cover. So once again thank you everyone for your participation today. Thank you to our presenters and everyone can now hang up the phone and/or disconnect from the Internet. Have a good day.
Ladies and gentlemen this does conclude your conference. You may now disconnect and have a great day.