ADA In Focus - Volume 9, Number 2 Spring/Summer 2004
In Focus this Issue
- ADA and IT Issues: :
- Training Events
- Coalitions & Consortium:
- ADA Rulings:
- What's New:
- Web Sites
ADA & IT IN FOCUS is published three times yearly by the ADA & IT Information Center for the Mid Atlantic Region. It is posted to the web on the “Publications” page at www.adainfo.org. It is also available by request in large print, Braille, audio cassette, and computer disk.
Richard G. Luecking, President
Marian Vessels, Project Director
Nancy Horton, Assistant Director
Kathleen Desmond Porter, Training and Organization Development Director
Wesley R. Young, Technical Assistance Specialist
Rachel Margolis, Program Assistant
David Stewart, Technical Assistance Specialist
Mark Derry, Training Consultant
TransCen, Inc. is a Rockville, MD based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D010212). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.
ADA & IT Information Center
451 Hungerford Dr., Suite 607
Rockville, MD 20850-4151
TEL: 301-217-0124 V/TTY
FAX: 301-217-0754
Toll-free: 800-949-4232 V/TTY
URL: www.adainfo.org
©2004 by TransCen, Inc.
ADA and IT Issues:
ENFORCEMENT: HOW DOES IT WORK?
Many people, at one time or another, may find themselves participating in an investigation, mediation, negotiation, or some form of enforcement action related to the ADA. Those who have rights and responsibilities under the ADA, including people with disabilities as well as covered entities (such as many employers, state or local government agencies, private businesses, and telephone companies) will find it helpful to know a little about how the process works.
Although the Federal government pursues some enforcement activity on its own, much enforcement of the ADA is “complaint-driven.” Individuals with disabilities, groups of individuals with disabilities (a “class”), their representatives, or their associates, may present complaints to one of the Federal agencies charged with enforcement responsibilities under the ADA. Private lawsuits can also be brought to Federal court in many situations.
The ADA includes provisions for enforcement in each of its main parts, or titles. The enforcement process is not the same under all the titles, so let’s explore the provisions in each.
Title I: Employment
Title I of the ADA covers private employers with at least fifteen employees, as well as state and local governments no matter how many employees they have. The U.S. Equal Employment Opportunity Commission (EEOC) is the designated enforcement agency under title I. Individuals can file complaints with the EEOC, or with their state’s Fair Employment Practices Agency (FEPA).
The EEOC and the FEPAs have work sharing agreements to avoid duplication of effort when a situation is covered under both state and Federal laws. Typically, the EEOC and the FEPAs automatically “dual file” charges to ensure individuals’ rights are protected, but only the agency which received the original complaint will handle it.
Complaints must be filed with the EEOC within 180 days of the alleged discrimination (failure to hire, termination, failure to provide reasonable accommodation, harassment, etc.). The deadline may be extended to 300 days when the charge is also covered by a state or local anti-discrimination law.
The EEOC may assign priority to an investigation if it appears likely that a violation occurred. Investigations may involve requests for information or documents, interviews, and/or site visits. The EEOC tries to resolve complaints, and may refer a charge to the agency’s mediation program if both parties agree. If mediation is unsuccessful, the charge is returned to the agency for investigation.
A charge can be dismissed at any time, including when it is first filed, if the EEOC judges that there is not enough evidence to support a claim and that further investigation is not likely to produce such evidence.
If an investigation establishes that discrimination occurred, the EEOC will issue a letter of determination to that effect, and try to remedy the situation through conciliation. If conciliation is not successful, the agency will decide whether it wants to file a lawsuit against the employer. When lawsuits are filed against state or local government employers, the U.S. Department of Justice (DOJ) handles the litigation.
If a claim is dismissed for any reason, or the EEOC decides not to sue the employer, a “right to sue” letter will be sent to the individual, who can then file a private lawsuit within 90 days of receiving the letter. An individual may file a private lawsuit regardless of whether the EEOC believes his case has merit.
An individual can also request a right to sue letter 180 days after filing a complaint, even if the EEOC has not completed its investigation or efforts at that point. The individual can then file his lawsuit within 90 days.
Injunctive relief can be obtained to stop discrimination or harassment and provide equal opportunities. Other remedies that may be available will vary depending on several factors: whether the employer is private, a state government, or a local government; whether the discrimination was intentional; whether the employer acted with malice; and whether the lawsuit was brought by a private individual or by the Federal government.
Title II: State and Local Governments
Most state and local governments receive Federal funds and therefore have been subject to Section 504 of the Rehabilitation Act for many years. Complaints under Section 504 are presented to the Federal agency that provides the funding. The complaint process under title II is designed to be similar to that under Section 504.
There are eight Federal agencies (other than the EEOC, which handles all complaints related to employment) that have been designated to handle complaints under title II, according to “functional” areas. The Departments include Justice, Agriculture, Education, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation.
The Department of the Interior, for example, handles complaints against state or local government programs that are related to lands and natural resources, such as parks, water management, environmental protection, and historic preservation programs.
Complaints under title II must also be filed within 180 days of the alleged discrimination. Each agency must review complaints to determine whether it has jurisdiction, and if not the complaint must be referred to the appropriate agency, or to the Department of Justice (DOJ) to make a determination. An individual, if unsure about which Federal agency to approach, can also file complaints directly with DOJ, which can assign the complaint appropriately.
The designated agency investigates complaints and attempts informal resolution. If a resolution can not be reached, the agency will issue to the complainant and the state or local government entity a “Letter of Findings” which describes its conclusions and recommended remedies.
The agency will then try to negotiate a voluntary compliance agreement, but if that is not successful, the agency will refer the matter to the Attorney General with a recommendation for appropriate action.
Although state and local governments with more than 50 employees are required by title II to have a grievance procedure available to address complaints, individuals are not required to avail themselves of that opportunity before filing a formal complaint with a Federal agency. Neither are individuals required to file a formal compliant prior to initiating a private lawsuit. Unlike under title I, private lawsuits can be filed under title II without going through any administrative procedures.
Titles III: Public Accommodations
DOJ is the enforcement agency for title III, which covers private businesses such as stores, restaurants, day care centers, and theaters. Complaints can be filed directly with DOJ.
DOJ also has a mediation program, and complaints are referred when appropriate. Mediation services are provided at no cost to the participants, who are often able to work out a solution to their dispute through the process.
Individuals can file private lawsuits regardless of whether they have filed formal complaints. Private lawsuits can seek injunctive relief to fix the problem, but can not seek monetary damages or compensation, other than attorney’s fees and legal costs.
DOJ files lawsuits on behalf of the United States, only when there is reasonable cause to believe there is a “pattern or practice” of discrimination, or when there is an issue of general pubic importance. DOJ can seek monetary damages for individuals in these cases (although not punitive damages), as well as civil penalties, in addition to injunctive relief.
Title IV: Telecommunications
Title IV requires the provision of relay services to enable people with hearing and/or speech disabilities to utilize the telephone system. The Federal Communications Commission (FCC) is responsible for enforcement duties.
Complaints about intrastate services (services within one state) are typically handled by state entities, which are certified by the FCC. The FCC retains jurisdiction if a complaint is not resolved within 180 days.
The FCC directly handles complaints about interstate services (services between states). Complaints can be either formal or informal. Prompt resolutions are facilitated by accepting informal complaints in a variety of forms, including by mail, fax, telephone, or e-mail.
Enforcement Resources:
Delaware Office of Labor Law Enforcement
(employment)
Wilmington: 302-761-8200, Milford: 302-422-1134
Delaware Office of Human Relations
(public accommodations and housing)
New Castle County: 302-577-5050
Kent County: 302-739-4567
Sussex County: 302-856-5331
www.delaware.gov
District of Columbia Office of Human Rights
(employment, housing, and public accommodations)
202-722-4559, http://ohr.dc.gov
Maryland Commission on Human Relations
(employment, housing, and public accommodations)
1-800-637-6247, www.mchr.state.md.us
Pennsylvania Human Relations Commission
(employment, housing, and public accommodations)
Harrisburg: 717-787-9784 (V), 717-787-7279 (TTY)
Pittsburgh: 412-565-5395 (V), 412-565-5711 (TTY)
Philadelphia: 215-560-2496 (V), 215-560-3599 (TTY)
www.phrc.state.pa.us
Virginia Council on Human Rights
(employment, housing, and public accommodations)
804-225-2292, WEB: http://chr.vipnet.org
West Virginia Human Rights Commission
(employment, housing, and public accommodations)
1-888-676-5546, www.wvf.state.wv.us/wvhrc/
FEDERAL AGENCIES:
U.S. Equal Employment Opportunity Commission:
1-800-669-4000 (V), 1-800-669-6820 (TTY)
www.eeoc.gov
U.S. Department of Justice ADA Information Line:
1-800-514-0301 (V), 1-800-514-0383 (TTY)
www.ada.gov
Federal Communications Commission:
1-888-225-5322 (V), 1-888-835-5322 (TTY)
www.fcc.gov/cgb/dro/
Training News & Events
Raising the Bar 2004
Ellicott City, MD, June 8 - 9, 2004
This regional workforce development conference will be held at the Turf Valley Inn and Conference Center. It is expected to draw more than 600 workforce development professionals from Delaware, the District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia. Workshops will explore five key areas: Job Seeker Services; Business Services; Program Planning/Management; Leadership; and Professional/Personal Development.
For more information, call 866-544-9677 or visit www.mwda.org/04conference.htm
World of Possibilities Expos
Baltimore Convention Center, Baltimore, MD, June 25 - 27, 2004
Dulles Expo & Conference Center, Chantilly, VA, October 22 - 24, 2004
Each Expo will provide an opportunity for attendees to explore a vast array of products and services, including assistive and adaptive technology, durable medical equipment, computer software, mobility products, living aids, and more. The Expos will also offer informative workshops, demonstrations, and representatives from local and statewide agencies and organizations to provide information about supports, services and resources.
For more information, call 410-549-5707 or (toll free) 1-866-CARING-4, or visit http://expo.caringcommunities.org/
Access E-Learning On-Line Tutorial
This tutorial will serve as a resource for making distance education accessible for individuals with disabilities. The course offers information on the most common needs in distance education, and provides instruction in techniques that will enhance the usability of on-line materials for all students. Modules are included on the specifics of how to make various types of documents and elements accessible, such as HTML, Powerpoint slides, video, Flash, and documents in Word, Excel, and PDF.
For more information, visit www.accesselearning.net
Coalition & Consortium News
Voting Access: State and Local Activities
The year 2004 promises vigorous political campaigns and record voter turn-out. Many of our ADA Coalitions are involved in activities to help ensure that people with disabilities are able to participate in the process and cast their ballots.
The Virginia ADA Coalition is participating in a state-wide effort to survey polling places. Training on voting access issues is also being offered to people with disabilities, family members, and advocates.
Several members of the West Virginia ADA Coalition serve on the Help American Vote Act (HAVA) state plan team and have been involved in providing training programs to election officials, as well as consultation on HAVA grant funds expenditures.
Get involved with the ADA Coalition in your state!
Great Resources!
The “Political Participation” pages at the web site of the National Organization on Disability feature information, resources, links, and articles on voter registration, voting equipment and polling place accessibility, get-out-the-vote efforts, and candidates’ disability policy platforms. Visit www.nod.org
The Department of Justice has developed an “ADA Checklist for Polling Places.” The checklist prompts reviewers to assess elements such as parking and drop-off areas, entrances, interior and exterior routes, and voting areas. It describes typical issues for voters with various disabilities, and even offers suggestions for temporary solutions when permanent changes can not be achieved. Find on-line and print versions of the checklist at: www.ada.gov/votingck.htm
The ADA & IT Information Center has full color posters that illustrate various access features at an active polling place. If you would like to have a poster to display, give us a call at 1-800-949-4232 V/TTY.
To Contact our Affiliates:
State ADA Coalitions:
MD - 800-949-4232 V/TTY
E-MAIL - cjandre@comcast.net
DC - 202-234-7550 ext. 5 V or 202-234-7590 TTY
E-MAIL - info@disabilityrightscouncil.org
DE - 302-376-4399 v or 757-376-4397 TTY
E-MAIL - freedomcil@yahoo.com
WV - 304-296-6091 V/TTY
E-MAIL - ADAcoalition@aol.com
VA - 757-461-8007 V or 757-461-7527 TTY
E-MAIL - kgonzalez@endependence.org
PA 814-863-0471 V/TTY
E-MAIL - wwrl@psu.edu
State Assistive Technology Programs:
MD - 800-832-4827 V/TTY
WEB - www.mdtap.org
DC - 202-547-0198 V or 202-547-2657 TTY
WEB - www.atpdc.org
DE - 800-870-3284 V/TTY
WEB - www.asel.udel.edu/dati
WV - 800-841-8436 V/TTY
WEB - www.ced.wvu.edu/Programs/Community/WVATS/index.htm
VA 800-552-5019 V/TTY
WEB - www.vats.org
PA 800-204-7428 V/RELAY (in state only)
WEB - www.temple.edu/instituteondisabilities/piat/
ADA Rulings: Decisions and Settlements
4th Circuit Denies Immunity Defense under Rehabilitation Act
The U.S. Court of Appeals for the 4th Circuit issued an opinion in the case of Shepard v. Irving, holding that the state waived its 11th Amendment immunity be accepting Federal funds.
This case was brought by Amy Shepard, a student with a learning disability who attended George Mason University (GMU). One of Ms. Shepard’s professors, Katrina Irving, refused to provide accommodations, and Ms. Shepard complained to the GMU Disability Resource Center.
The professor subsequently gave Ms. Shepard an “F” and brought a charge of plagiarism against her to the GMU Honor Committee. The Honor Committee refused to allow Ms. Shepard to have a representative, either a lawyer or a family member, attend the hearing. The Committee found the student guilty of plagiarism, affirmed the “F” grade, reprimanded her, and ordered her to perform community service.
Ms. Shepard brought her lawsuit under both Title II of the ADA and Section 504 of the Rehabilitation Act, as well as the First and Fourteenth Amendments (rights to free speech and due process).
Her suit named GMU as well as several individuals, including the professor and the student members of the Honor Committee, as defendants. She alleged both discrimination and retaliation, and sought damages and injunctive relief (specifically, Ms. Shepard asked for expungement of the “F” grade and the plagiarism conviction, or, alternatively, a new hearing where she is allowed representation).
Although the district court did not rule in favor of the defendants on all the grounds that were raised, the complaint was dismissed in its entirety. On appeal, the plaintiff abandoned her arguments related to due process under the Fourteenth Amendment, as well as many of the claims against individuals in their individual capacities.
The remaining issues revolved around whether the defendants were immune from suits for prospective relief or damages under Title II or Section 504.
Although the court found that the defendants are immune from suits for damages under Title II, it held that injunctive relief is still available under the Ex Parte Young doctrine, which allows suits against individuals in their official capacities in order to stop discriminatory and harmful actions.
The court also ruled that the defendants had waived immunity by accepting Federal funds, and are therefore liable under Section 504.
Several issues remain to be decided, including the claims related to retaliation. The case will go back to the district court for further consideration in light of the Circuit court’s opinion. The opinion is on-line at http://pacer.ca4.uscourts.gov/opinion.pdf/021712.U.pdf
Chaplain Disputes Physical Requirements are Essential to Job
A district court in Pennsylvania refused to grant summary judgment to the defendant in the case of Jeffrey v. Ashcroft, in which Father George Jeffrey brought suit under the Rehabilitation Act against the Federal Bureau of Prisons (BOP).
The BOP terminated Fr. Jeffrey from his position as prison chaplain after he failed to pass a rigorous “Physical Abilities Test” (PAT), which is designed to measure physical ability to perform duties such as emergency rescue or restraining inmates.
The court found that there were sufficient reasons to proceed, as there are legitimate questions that require further scrutiny, including whether it is necessary for chaplains to be able to perform the types of duties simulated in the PAT. The opinion is posted on-line at www.pamd.uscourts.gov/opinions/vanaskie/00cv1442.pdf
What's New
CDC: Diabetes Resources
The Centers for Disease Control (CDC) provides a comprehensive public health resource through its Division of Diabetes Translation, so named because its mission is to “translate science into practice.”
The project hosts a web site packed with information, resources, statistics, and educational materials about the prevention and treatment of diabetes. Visit the English language site at www.cdc.gov/diabetes/ or the Spanish site at cdc.gov/spanish/enfermedades/diabetes.htm
For inquiries and publications, you can also call toll free 1-877-CDC-DIAB (877-232-3422).
Access Board: Designing Accessible Telecommunications Products
The U.S. Access Board has issued a new technical assistance document to provide guidance for designers of telecommunications products. It analyzes the standards issued by the Board under Section 508 of the Rehabilitation Act, and gives background and parameters useful in developing telecommunications products that conform to those standards.
The publication can be found posted on-line at: www.access-board.gov/sec508/telecomm-course.htm
DOJ Certifies Maryland Accessibility Code
The U.S. Department of Justice announced its certification of the Maryland Accessibility Code as meeting or exceeding federal standards for accessible design. Maryland is the fifth state to achieve code certification, after Washington State, Texas, Maine and Florida.
By harmonizing federal and state standards, certification increases compliance while reducing regulatory burdens. Local officials responsible for implementing State code requirements will be able to check for compliance early in the design and construction process, when mistakes are more easily and inexpensively corrected.
Maryland and EEOC Partner to Promote Employment in State Government
Maryland became the first state to pledge its participation in the U.S. Equal Employment Opportunity Commission’s States' Best Practices Project to enhance employment opportunities in state government for people with disabilities.
Maryland and the EEOC will jointly review the state's recruitment, hiring, and reasonable accommodations policies and procedures to identify best practices that other states may be able to replicate.
MD TAP: Lending Library of IT Training Materials and Resources
The Project for IT (Information Technology) Accessibility at the Maryland Technology Assistance Program has devel-oped a lending library of videos and other presentation materials which can be used for training activities in Maryland. The project also maintains information about organizations that provide accessible telecommunications, software development, and consultations. For more information, contact the project by calling 1-800-TECH TAP (1-800-832-4827), voice or TTY.
CDC Report: Service Animals in Medical Settings
The Centers for Disease Control released a report that includes information on policies and procedures for staff in medical facilities where therapy or service animals are present. To find the document on-line, visit www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm and scroll about half-way down to find “Recommendations Animals in Health Care Facilities.”
Web Sites
http://main.wgbh.org/wgbh/access/index.html WGBH works to bring media access to television, movies, home video, and the Internet. They offer a variety of products and services related to captioning and/or video description for television programs and live broadcasts, web casts, theatrical releases, and videos and DVDs for education and home entertainment. Their web site even includes listings for movie theaters across the country that are equipped with Rear Window Captioning systems and/or Descriptive Video Service Theatrical systems, as well as current films and show times.
www.usdoj.gov/crt/drs/drshome_esp.htm The Disability Rights Section at the U.S. Department of Justice has posted a collection of publications in Spanish. The documents include ADA highlights and frequently asked questions, as well as information on how to file complaints. Look for additional publications on this site in the future.
www.nod.org/emergency The National Organization on Disability has added several new features to its web pages on emergency preparedness, including a products and services directory, a bulletin board, research papers, and video clips which can be viewed on-line.
www.ncdae.org/ The National Center on Disability and Access to Education engages in research, training and technical assistance activities to improve educational services through distance learning technology.
ADA & IT In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA & IT In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
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