DBTAC: Great Lakes ADA Center

Welcome to the DBTAC:
Great Lakes ADA Center's monthly Newsletter

Trainings & Events

The Great Lakes Center offers technical assistance on a variety of issues under the ADA and Accessible Information Technology

Federal Agencies

The Great Lakes Center offers customized trainings on a variety of issues under the ADA and Accessible Information Technology.

Great Lakes Affiliates

The Great Lakes offers resource materials on a variety of issues under the ADA and Accessible Information Technology.

Resources from the Technical Assistance Desk

In the Headlines

The U.S. Department of Justice has posted the latest installment of the Best Practices Tool Kit for State and Local Governments to its web site. The tool kit is a technical assistance document designed to assist state and local governments and officials on improving compliance with Title II of the Americans with Disabilities Act (ADA) in programs, services, activities, and facilities. Chapters five and six include:

• Chapter 5, Website Accessibility Under Title II of the ADA
• Chapter 5, Addendum: Title II Checklist
• Chapter 6, Curb Ramps and Pedestrian Crossings
• Chapter 6, Addendum: Title II Checklist

Read more about the Tool Kit at http://www.ada.gov/pcatoolkit/toolkitmain.htm.

The U.S. Department of Labor (DOL) has announced that "Workers with Disabilities: Talent for a Winning Team!" will be the official 2007 theme for National Disability Employment Awareness Month. DOL’s Office of Disability Employment Policy leads the federal government’s efforts during disability employment month by producing materials to increase the public's awareness of the contributions and skills of workers with disabilities. Read more about the DOL Announcement at http://www.dol.gov/opa/media/press/odep/odep20070555.htm#content.

The National Association of the Deaf (NAD) has settled a lawsuit against Baltimore Washington Medical Center. The lawsuit had been filed by Alma Andrews alleging that the Center failed to provide her with qualified interpreter services, including video relay interpreters, during several Visits to the hospital. The agreement requires the Center to examine and strengthen its policy regarding the provision of video relay interpreters and to provide in person interpreters when video interpreters don’t afford effective communication. Read more about the NAD settlement at http://www.nad.org/SettlesBWComplaint.

The Office of Disability Employment Policy (ODEP,) U.S. Department of Labor, is seeking Grant Applications to Fund a national technical assistance center on transition and employment for youth with disabilities. ODEP is making up to $1.7 million available to one cooperative project over a 24 month period. The initiative may be funded for up to three additional years at approximately $1,000,000 per year, depending on performance, identified need and the availability of future funding. Read more about the ODEP Grant at http://www.dol.gov/odep/regs/fedreg/notices/2007009117.htm

The U.S. Equal Employment Opportunity Commission (EEOC) held a meeting examining employment testing and screening practices used by employers to evaluate large numbers of applicants and employees. During the meeting EEOC commissioners herd from EEOC attorneys, charging parties, advocates on behalf of employers and employees, and two nationally recognized organizational psychologists. Discussions on written tests, criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices were held during the meeting. The increased use of personality tests was also discussed. Employers asked that the EEOC provide outreach, additional guidance and education on practices that would comply with the Americans with Disabilities Act and other Federal employment laws the EEOC enforces. Read more about the EEOC Efforts at http://www.eeoc.gov/press/5-16-07.html.

The U.S. Department of Justice has reached a settlement agreement with Mandalay Bay Resort & Casino, Las Vegas, NV. The DOJ had initiated a compliance review after receiving a complaint from an individual with disability against another property owned by Mandalay Corporation, which was located in Mississippi. The accessibility issues cited by the DOJ included, lack of dispersion of accessible rooms through-out the various sleeping classes, absence of accessible signage, doors requiring more than 5 pounds of pressure to open as well as other accessibility issues. Read more about the Mandalay Bay Resort & Casino settlement at http://www.ada.gov/mandalay_bay/mandalay.htm.

The National Association of the Deaf (NAD) has filed a Title III complaint with the U.S. Department of Justice against a law Firm for rejecting relay calls. The complaint alleges that the Maryland firm of Peroutka & Peroutka refused to take calls from an individual using both video relay services and text relay services. NAD in the complaint requests that the DOJ require the law firm to stop refusing relay calls, modify its policies regarding calls from individuals that are deaf and hearing impaired and to make known to the public that the firm accepts relay calls. Read more about the NAD complaint at http://www.nad.org/LawFirm.

The Centers for Medicare and Medicate Services (CMS,) U.S. Department of Health and Human Services, has awarded grants to thirteen states and the District of Columbia for ALTERNATIVES to nursing home care. The thirteen states and the District of Columbia will receive $547 million over 5 years to develop long term care programs that will allow individuals to receive services in their homes or in their communities. This is the second round of grants that will eventually provide $1.7 billion to states to develop alternatives to the institutionalization of individuals with disabilities and the elderly. Read more about the CMS Grant Awards at http://www.cms.hhs.gov/apps/media/press/release.asp?Counter=2165&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numDays=3500&srchOpt=0&srchData=&keywordType=All&chkNewsType=1%2C+2%2C+3%2C+4%2C+5&intPage=&showAll=365&pYear=&year=0&desc=&cboOrder=date.

The U.S. Department of Justice (DOJ) announced a consent decree settling the case of the United States v. Marion County Nursing Home District. The case stemmed from an employee’s charge of employment discrimination filed with the Equal Employment Opportunity Commission (EEOC.) The EEOC investigated the charges and found the charges with merit and referred the case to the DOJ for action because the employer was a public entity. The County in the consent decree agrees to end any discriminatory employment practices against employees and applicants with disabilities as well as keeping confidential information about any employee with the HIV infection. Read more about the Consent Decree at http://www.ada.gov/maplelawn.htm.

The National Council on Disability (NCD) announced the formation of a partnership to address the needs of crime victims with disabilities. NCD along with the Association of University Centers on Disabilities, and the National Center for Victims of Crime plan to foster greater public awareness of crime victims with disabilities and develop a commitment to better serve this population. Read more about the NDC Partnership at http://www.ncd.gov/newsroom/news/2007/crime_victims.htm.

The U.S. Justice Department reached a Fair Housing Act settlement with a Las Vegas developer and architect. The settlement resolves a suit filed in 2005 alleging that newly constructed condos were not accessible to individuals with physical disabilities. The settlement requires the retrofitting of condominium units upon the request of the homeowners, the retrofitting of public and common use areas, the provision of accessible pedestrian routes, payment of $100,000 in damages, and training on the requirements of the Fair Housing Act for staff of the developer and architect. Read more about the DOJ settlement at http://www.usdoj.gov/opa/pr/2007/May/07_crt_345.html.

Great Lakes In Focus

Effective Communication and the ADA

The Americans with Disabilities Act (ADA) requires that state and local governments and places of public accommodations insure that individuals with disabilities have the same level of access to information that individuals without disabilities have. This can be done through the provision of auxiliary aids and services. For individuals that are deaf or hearing impaired that could include qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's,) and videotext displays.

The ADA does not require that a qualified interpreter be provided every time one is requested. Consideration of the duration and complexity of the information being provided should be evaluated to determine if effective communication can be achieved through another means or if a qualified interpreter is necessary. For example, an individual that is deaf may be able to go into a city hall and get general information about the application process for getting a building permit by writing notes. If however, that same individual wanted to appeal the denial of his application for a building permit it is likely that a qualified interpreter would be needed because that process would probably be more complex and of a longer duration then when he picked up the application.

Similarly, a deaf individual may be able to walk into a doctor's office and make an appointment for a medical examination by writing notes. However, in order to insure effective communication with the individual during the examination it is likely that a qualified interpreter would be necessary. First consideration should be given to the auxiliary aid or service requested by the individual but the state or local government or the place of public accommodation has the final determination on what will be provided. What ever is provided must achieve effective communication with the individual that is deaf or hearing impaired.

A state or local government or a place of public accommodation does not have to provide any auxiliary aid or service that would result in an undue financial or administrative burden or in a fundamental alteration of the nature of the goods, services or programs being provided. There are tax credits available to small businesses for the costs of providing auxiliary aids and services (www.ada.gov/taxpack.htm). A place of public accommodation would have to take into consideration any tax benefits available when determining if a financial undue burden would result from providing the auxiliary aid or service that has been requested. If an auxiliary aid or service would result in an undue burden or fundamental alteration then another means of providing effective communication should be provided.

Individuals may contact the DBTAC Great Lakes Center with any questions by calling 800-949-4232 (V/TTY) or by visiting our online Contact Form at http://www.adagreatlakes.org/WebForms/ContactUs/.

Accessible Information Technology (AIT)

The DBTAC Great Lakes Accessible Technology Initiative can assist organizations, community groups, businesses and public government entities with information and training on information technology issues. You may visit the Accessible Technology section http://www.adagreatlakes.org/AIT/ of the Great Lakes web site for more information on the services provided by the Center.

For technical assistance questions contact Janet Peters at the Great Lakes Center by calling (800) 949-4232 (V/TTY) or by visiting the on-line contact form at http://www.adagreatlakes.org/WebForms/ContactUs/.

The Docket

Winkelman v. Parma City School District (http://howappealing.law.com/Winkelman2007.pdf)

The U.S. Supreme Court ruled that parents of disabled children do not have to hire an attorney to sue school districts in federal court under the Individuals with Disabilities Education Act (IDEA.) The court ruled that the federal law gives rights to parents as well as to the child with a disability. Parents may represent themselves in federal court when disputes arise between the parents and a school district over what is best for the child's individualized education plan the court held.

The Supreme Court's decision overturned a 6th Circuit ruling which had stated that the parents were not able to represent themselves in further appeals of the lower courts ruling in their suit against the school district under IDEA. The ruling by the Supreme Court only dealt with the issue of the parent's right to represent themselves in an IDEA lawsuit and not with the facts of the original suit. The original case was filed by the Winkelmans, alleging that the school districts plan for educating their autistic child was inadequate.

Kleiber v. Honda of America (http://caselaw.lp.findlaw.com/data2/circs/6th/063490p.pdf)

The 6th Circuit Court of appeals affirmed a lower court's summary judgment ruling in favor of the defendant in Kleiber v. Honda. The former employee, Kleiber, filed suit under the Americans with Disabilities Act (ADA) claiming that Honda had failed to accommodate him after he sustained a non-work related injury.

Following the injury Kleiber was unable to return to his previous position with Honda. After receiving documentation from Kleiber's physicians and following a fitness for duty examination Honda determined that Kleiber was not able to perform any jobs at the plant. The 6th Circuit Court agreed with the lower court's determination that no evidence had been presented that Kleiber was capable of performing any of the jobs at the plant.

Technical Assistance Desk

Question: I recently received a non-work related injury that will prevent me from doing my current position in the warehouse where I work. I will however be able to do other jobs. Is it my responsibility or my employer's responsibility to identify open jobs that I can do?

Answer: The Americans with Disabilities Act (ADA) requires covered employers to reassign qualified employees with disabilities to a vacant position that the individual is qualified to do. This type of accommodation is referred to as an accommodation of last resort. It is provided when no other accommodations can be provided that would allow the individual to perform the essential functions of the job. The employee must have a covered disability. The definition of a disability under the ADA is:

A physical or mental impairment that substantially limits one or more major life activities or:

A record of such an impairment or:

Being regarded as having such an impairment.

The employer is in the best position to know which jobs are vacant or will become vacant within a certain period of time. The employer as part of the interactive process should ask the employee about qualifications and interests to help facilitate the search for vacant positions. An employee should assist the employer in identifying vacant positions to the extent that the employee has access to information about vacant positions.

The employee must be qualified for the position. This means that the employee satisfies the requisite skill, experience, education, and other job-related requirements and can perform the essential functions of the job with or without a reasonable accommodation. The employee need not be the most qualified for the position only qualified. The employer is not required to assist the employee in becoming qualified for the position.

The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other factors such as benefits if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified.

For additional information contact the DBTAC Great Lakes ADA Center by calling 800-949-4232 (V/TTY) or by visiting our on-line contact form at http://www.adagreatlakes.org/WebForms/ContactUs/.