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ASSISTIVE TECHNOLOGY & REASONABLE ACCOMODATIONS IN EMPLOYMENT Hillary Sklar, Attorney Disability Rights California Los Angeles Regional Office (213) 427-8747 Hillary.Sklar@disabilityrightsca.org June 14, 2011 Goals 1. Discuss an overview of federal and state laws that protect individuals with disabilities from employment discrimination and provide for reasonable accommodations. 2. Discuss requests for reasonable accommodations: how to negotiate a request for assistive technology; employer defenses. 3. Discuss remedies for disability discrimination including denials of requests for reasonable accommodations. 4. Review Resources. Disability Rights California Disability Rights California works to bring about fairness and justice for people with disabilities. To reach those goals of fairness and justice, we may: – File lawsuits on behalf of individuals or groups, –Investigate charges of abuse and neglect, –Build peer/self advocacy groups, –Forge community partnerships, –Advocate for change in laws, regulations, and public policy, and –Provide information to those who may not know about their rights. PAAT grant • PAAT (Protection & Advocacy for Assistive Technology), 29 U.S.C. 3004. The PAAT program was created in 1994 when Congress expanded the Technology-Related Assistance for Individuals with Disabilities Act (Tech Act) to include funding for Protection &Advocacy’s to assist individuals with disabilities in the acquisition, utilization, or maintenance of assistive technology devices or assistive technology services through case management, legal representation and self advocacy training. Overview of Federal and State Anti- Discrimination Employment Laws • Federal laws – Title I of the Americans with Disabilities Act (ADA) – Sections 501, 503, and 504 of the Rehabilitation Act of 1973 • California laws – Fair Housing and Employment Act (FEHA) – Government Code Section 11135 Federal Laws Title I of the ADA • Title I of the ADA does not apply to federal agencies. Rehabilitation Act of 1973 • Federal agencies must comply with Section 501 of the Rehabilitation Act of 1973. Note: Each section of the Rehabilitation Act provides virtually identical protections and rights as under the ADA. However, the complaint process is different under the ADA and the Rehabilitation Act. Basic requirements of Title I of the ADA • “Covered entities” may not discriminate against a “qualified person with a disability” in the private sector and in state and local governments. • Employers may not retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. • Employers must reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business. Who Must Comply with Title I of the ADA? • Private employers • State and local governments, • Employment agencies • Labor unions These are all considered “covered entities.” A covered entity has 15 or more employees. An employer cannot discriminate against “qualified applicants and employees on the basis of disability.” Employment Practices Regulated by Title I of the ADA Employers cannot discriminate against people with disabilities in regard to any employment practices, condition, and privileges of employment. All aspects of the employment process are covered such as: • Application • Promotion • Testing • Hiring • Assignments • Leave • Benefits • Evaluation Who is Protected by Title I of the ADA? Qualified individuals with disabilities An “individual with a disability” is a person who: • Has a physical or mental impairment that substantially limits one or more major life activities; or • Has a record of such an impairment; or • Is regarded as having such an impairment A “qualified individual with a disability” is an applicant or employee who meets the: • Skill, experience, education, and other job-related requirements of the position held or applied for and • Who, with or without reasonable accommodation, can perform the essential functions of the job What is a “Substantial Limitation”? • A significant restriction in the ability to perform a class of jobs or a broad range of jobs as compared to the average person having similar training, skills, and abilities. • An inability to perform a single, particular job or narrow range of jobs would not rise to the level of substantial limitation. • Factors in determining substantial limitation: – Nature and severity of the impairment – Duration or expected duration of the impairment – is temporary or permanent? – Permanent or long-term impact – Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), mitigating measures, such as assistive technology, were considered ADA Amendments Act (ADAAA) of 2008 • The ADAAA took effect January 1, 2009. The changes are not retroactive. • The changes apply to the ADA and to the Rehabilitation Act of 1973. • The law made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). • It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were approved by a bipartisan vote and were published in the Federal Register on March 25, 2011. Overview of ADAAA • Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. • The EEOC regulations implement the ADAAA -- in particular, Congress’s mandate that the definition of disability be construed broadly. • For detailed information: – http://www.eeoc.gov/laws/statutes/adaaa_info.cfm – ADA National Network www.adata.org Key Changes to “Disability” • The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. • The term “substantially limits” is to be construed broadly in favor of expansive coverage. • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA. • With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids. Key Changes to “Disability” cont’d • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. • Make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” • The regulations clarify, however, that an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. Questions about Title I of the ADA? Rehabilitation Act of 1973 The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. Reminder: The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act. Who Must Comply with the Rehabilitation Act of 1973? • Section 501 - Federal departments and agencies • Section 503 - Contractors and subcontractors who have contracts of $10,000 or more with the federal government • Section 504 - Any agency or business receiving federal funds Section 501 • Federal departments and agencies may not discriminate against a “qualified person with a disability” in the private sector and in state and local governments. • Employers may not retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. • Employers must reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business. Section 503 • Same as Section 501 except applies to Contractors and subcontractors who have contracts of $10,000 or more with the federal government. • Enforced by the U.S. Department of Labor's Office of Federal Contract Compliance Programs • Section 503 fact sheet: http://www.dol.gov/ofccp/regs/compliance/fs503.htm Section 504 • Section 504 states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. • Each Federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide Federal financial assistance also have section 504 regulations covering entities that receive Federal aid. • Each agency is responsible for enforcing its own regulations. Section 504 may also be enforced through private lawsuits. It is not necessary to file a complaint with a Federal agency or to receive a "right-to-sue" letter before going to court. Questions about the Rehabilitation Act? California Law Fair Housing and Employment Act (FEHA) Government Code Section 11135 • California law is generally broader than the ADA. • Employers may not discriminate against a person with disability in hiring, training programs, firing, compensation or other terms and conditions of employment. • Applies to employers having five or more employees. • Applies to employers in the State of California or any political/civil subdivision of the state, or in a city. • Substantial limitation not required of major life activity. Mere limitation is enough. • Like the ADAAA of 2008, mitigating measures, such as medications or AT, are not factors except if the mitigating measure limits a major life activity. • For detailed information: Disability Under the Fair Employment & Housing Act http://www.dfeh.ca.gov/res/docs/Publications/DFEH- 208DH.pdf Employer Requirements under FEHA 1. Employers must provide reasonable accommodations for applicants and employees who, because of their disability, are unable to perform the essential job functions. 2. Employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodations. *The employee must first establish they have a disability as defined by FEHA. 3. Employers are not required to provide accommodations that would represent an “undue hardship” to the business. Definition of “Essential Job Functions” Factors that must considered: • The position exists to perform the function. • There are a limited number of employees available to whom the job function can be distributed • The function is highly specialized. Evidence of the essentialness of a job function includes: • The employer's judgment and • Written job description prepared before advertising or the interview • Amount of time spent on the job performing the function, among other factors. California Government Code Section 11135 • Similar to the ADA • Provides at least the same protections as the ADA. • Uses the same standard. • Covers any employer that: • Is funded directly by the California, or • Receives funds from California, and • Has more than 5 employees • The employer must receive a total of $10,000 per year or at least $1,000 per arrangement 28 Questions about FEHA and Section 11135? Reasonable Accommodations • Under Title I of the ADA, a reasonable accommodation includes modifications or adjustment that enable employees with disabilities to perform essential job functions. • Provision of assistive technology is an example of a reasonable accommodation. Reminder – To be protected under the ADA, the employee must be able to perform the essential functions of the job with or without reasonable accommodations. 30 Making a Request and Negotiating For What You Need Timing • A request can be made at any time during the job application process or during employment. • Consider asking once the employee with a disability knows about a workplace barrier that, due to a disability, is preventing the employee from competing for a job or performing a task. 31 Requests cont’d How • Tell the employer you have a disability and need an assistive device to do your work. Under the ADA, employer need not consider accommodations if employee does not employee states s/he has a disability. • Ask for a meeting to discuss the specifics of what is needed. • An agreement may be able to be reached if the employee and the employer know enough about AT. • Advisable to document the discussion and the terms of the agreement in writing. • If an agreement cannot be reached, an evaluator should be consulted for an assessment. Request Examples • Proper request for a reasonable accommodation • “I’m having trouble getting to work at my scheduled starting time because of medical treatments I am undergoing” • Insufficient request • “I would like a new chair because my current one is uncomfortable.” – Missing: Link/nexus to medical condition that causes the chair to be uncomfortable. 33 AT Evaluations Department of Rehabilitation (DOR) • ADA does not require employers to accept outside assessments. • DOR evaluations are fairly comprehensive. May be used to support need for AT, to establish proof of disability and/or functional limitations that affect job performance. • Employer incentive: DOR may be a funding source if the evaluation is part of a rehabilitation plan and achievement of plan goals. 34 Evaluations cont’d Medical/Doctor letters • Employer is entitled to know physical and mental limitations that affect ability to perform the job due to disability. • May be provided by another source of reliable documentation to avoid input from a doctor. • Employer is not entitled to all medical records and information. • Employer is entitled to ask for additional medical information to establish the employee has a disability under the ADA once a reasonable accommodation is requested. • Ex. the disability may not be obvious or more is needed to establish a link between the disability, resulting limitation, and the AT sought. Other sources • Disability organizations, ILCs, rehabilitation hospitals, private companies 35 Examples of AT • Telecommunication Devices for the Deaf (TDD) • Telephone amplifiers • Talking calculators for people with reading or visual disabilities • A one-handed can opener for a person who had the use of only one hand who worked in food services and could perform all tasks except opening cans • A phone headset for an insurance salesman with cerebral palsy See, EEOC’s Technical Assistance Manual http://askjan.org/links/adatam1.html 36 Some Considerations Part-Time Telecommuting for a Full-Time Position Employer may have to provide equipment to work at home. Employer may not have to provide same equipment for both locations if too expensive. Is the equipment portable and able to be used at home and in the office? Timing of Employer Response No specific time frame but should be as quickly as possible. 37 Employer Defenses • Employers are not required to approve every request for an accommodation. • Reasonable accommodation ≠ the best accommodation • Equal ground not better position • But, employer must make reasonable efforts to determine appropriate accommodation • And, may select a less expensive alternative so long as it is appropriate. • The accommodation may not be for personal use. • Undue Hardship • Determined by a balance of factors such as the size of the employer, the number of employees, and the cost of the accommodation requested. 38 Questions about Reasonable Accommodations? 39 Remedies if the AT Request is Denied General considerations: • The federal and state agencies that enforce the ADA, Rehabilitation Act, FEHA, and Section 11135 each have their own rules and timelines for employment discrimination complaints. • Determine whether to file a state or federal complaint. • Determine the timelines that apply. • Determine the rules for filing a complaint. Determining whether to file a State or Federal complaint 1. Determine which law covers the employee and the employer 2. Determine which law covers the complaint 3. Both state and federal laws may apply 4. Look to the state and federal agency for guidance – some may have agreements about which agency will handle certain complaints. (e.g. ADA Title I = EEOC; ADA Title II = DOJ) 5. Talk to an advocate or attorney for additional guidance. 41 U.S. Equal Employment Opportunity Commission (EEOC) • Enforces Title I of the ADA and Section 501 of the Rehabilitation Act. • Complaints are called “Charge of Discrimination” • In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. • Holidays and weekends are included in the calculation, although if the deadline falls on a weekend or holiday, you will have until the next business day. • Call an EEOC Field Office for help calculating dates. • **In California, you may also file an ADA complaint with the CA Department of Fair Employment and Housing (DFEH). The EEOC or the DFEH will let you know which agency will investigate your complaint. How to File with the EEOC • See, “Disability Discrimination” includes information on Reasonable Accommodations http://www.eeoc.gov/laws/types/disability.cfm • Filing A Charge of Discrimination http://www.eeoc.gov/employees/charge.cfm • How to File a Charge of Employment Discrimination http://www.eeoc.gov/employees/howtofile.cfm • In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. EEOC “Charge Handling” What to expect: • An investigation by EEOC staff • Possible mediation • Possible dismissal • If no violation is found, EEOC sends a “Notice-of-Right-To- Sue” to complainant. • If a violation is found, EEOC will try to reach a voluntary settlement. If one cannot be reached, the EEOC will refer the case to legal staff. **For detailed EEOC information: http://www.eeoc.gov/employees/index.cfm California Department of Fair Housing and Employment (DFEH) complaints • The DFEH is the largest state civil rights agency in the country. The DFEH's statutory mandate is to protect the people of California from employment, housing and public accommodations discrimination and hate violence pursuant to the California Fair Employment and Housing Act (FEHA) • A complaint of employment discrimination must be filed within one year from the date that the alleged discriminatory act occurred. www.dfeh.ca.gov • First make an appointment for an interview in one of the DFEH employment offices located throughout the state. Call the Department’s Communication Center at 1-800-884-1684 (within California), 1-916-478-7200 (outside California), or TTY 1-800-700-2320 during regular business hours, Monday through Friday. • You may also make an appointment online day or night by using the Department’s "Online Appointment System." 45 DFEH cont’d • Filing an employment complaint with DFEH: http://www.dfeh.ca.gov/Complaints_FileComplaint.htm • Complaint process: http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm • Right-To-Sue Notices – FEHA requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a "right-to- sue notice" from the Department before filing a lawsuit under the FEHA. DFEH will accept requests for an immediate DFEH "right-to-sue notice" from persons who have decided to proceed in court. Your DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit under the FEHA. See, http://www.dfeh.ca.gov/Complaints_RTSNotice.htm Section 11135 complaints • Must file a complaint within one year from the date of the discriminatory action with the state agency that administers the program involved. • If you do not discover the violation until after the one-year period has ended, you may still file your complaint; however, you only have 90 days from the end of the one-year deadline to pursue your complaint. • The state agency may stop funding to the program and may forward the complaint to the DFEH. The administering state agency has authority to investigate and resolve discrimination claims. 47 Questions about filing complaints? 48 Resources • Job Accommodation Network (JAN) www.askjan.org • Disability Rights California www.disabilityrightscalifornia.org Assistive Technology manual, Chapter 6, “Reasonable Accommodation in Employment” • Employment and the ADA: Questions & Answers http://www.accessibletech.org/faq/employ.php • ADA National Network www.adata.org • Pacific ADA Center www.adapacific.org/ 49 Resources cont’d • U.S. Department of Labor, Office of Disability Employment Policy (ODEP) http://www.dol.gov/odep/categories/employment_supports/technology.htm • U.S. Department of Labor, Office of Disability Employment Policy (ODEP) Technology and People with Disabilities http://www.dol.gov/odep/archives/ek99/tech.htm • Disability.gov Employment > Working with a Disability & Employment Supports > Assistive Technology & Universal Design https://www.disability.gov/employment/working_with_a_disability_%26_em ployment_supports/assistive_technology_%26_universal_design Final questions?
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