Some people are asking me to make this a regular feature
March 11, 2018
Some people are asking me to make this a regular feature
March 11, 2018
Title I of the ADA. Ok ok! I know I have been down this road once, but I got ahead of myself. My previous blog is still valid (awesome even) but it will make much more sense after this blog/vlog. So go I would suggest you look at that one again after you finish this.
So, we already talked about Section 504. Remember, federal executive agencies, any State agency or political subdivision (counties, cities, towns…) or private business that receives federal funds must not discriminate against people with disabilities under Section 504. If 504 covers that then why do we need the ADA? Well, because a whole lot of agencies and private businesses don’t accept federal money, so don’t have to follow Section 504; what about them? The answer is the ADA.
And that brings us back the authority question. According to the 10th Amendment Congress can only pass laws over the things the Constitution gives them specific authority. The Constitution never mentions Deaf people or people with disabilities, so Congress needed to find Constitutional authority that would give it the power to pass a law requiring both States and private businesses not to discriminate against people with disabilities.
In the end they had to go with two; The 14th Amendment for anything relating to “state actors” and the Commerce Clause for private businesses.
This authority is important, but it is much easier to explain the Commerce Clause when we talk about Title III of the ADA. So I will just say that the Commerce Clause is the authority Congress used to pass a law that obligates private businesses not to discriminate against people with disabilities. Specifically, under Title I, not to discriminate against people with disabilities in the area of employment. I will explain how to actually enforce Title I in another vlog. Stay tuned!
The 14th Amendment
The 14th Amendment was proposed to dismantle slavery following the Civil War and so it pronounces a list of Rights. Our discussion will focus on Equal Protection, Due Process and Section 5 or the Enforcement Clause of the 14th Amendment, that enables Congress to pass laws enforcing the Rights listed in the 14th Amendment’s other provisions.
I know it sounds like a cop out but it is much easier to explain the principles of Equal Protection and Due Process when we talk about Title II so I will get deeper into it there, but here is what you need to know, the authority of the 14th Amendment is locked in a death battle with the 11th Amendment.
The 11th Amendment
The idea of the 11th Amendment pre-dates the Constitution. It’s based on an English legal theory called Sovereign Immunity (you can’t sue the king). What the Supreme Court says is that the 11th Amendment makes States immune from suit (because we are the State and so if you sue the State you are really just suing yourself… whatever). However, you can sue the State if State agrees to be sued (happens more often than you think) or the Constitution gives Congress the authority to “abrogate” (step-around) the 11th Amendment.
(If you read the 11th Amendment you will say, “hey! It doesn’t say that!” Well, if you on were the Supreme Court your opinion on that topic may matter… but you’re not, so it doesn’t.)
14th vs 11th
So, the 14th Amendment gives Congress the power to pass laws that obligate the State (meaning Utah, Massachusetts, California…) and its political subdivisions (counties, cities, towns…) to obey civil rights laws, like Title I of the ADA, if (there is always an if), the reason Congress is passing the law is to correct a history of discrimination (it must have already happened… its not to prevent possible future discrimination) and the law Congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination (congruence and proportionality).
A few years ago the University of Alabama argued that it was reasonable (rational) to demote an administrative nurse who had returned to work following treatment for breast cancer because it was rational to want a person without a history of cancer (a healthy person misses fewer days at work) in an administrative position. Alabama never really claimed that their position was not discrimination, it claimed that it was not illegal discrimination because Congress did not have the authority to pass Title I of the ADA because could not show a sufficient history of discrimination against people with disabilities by States to warrant abrogation of the 11th Amendment (psst there are pages and pages of examples going State by State in the Congressional record in alphabetical order of discrimination against people with disabilities). Alabama claimed the lack of evidence meant that the ADA lacked congruence and proportionality. The level of discrimination did not warrant the burden the law imposed on the 11th Amendment.
The Supreme Court agreed.
The Court found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I so far as making the States pay money (like back pay, compensation or punitive damages) if it discriminated against people with disabilities. Furthermore the Court decided it was rational to want a person without cancer (person without a disability) in the job of administrative nurse.
So Title I, for all real and useful purposes, went away as it applied to State employers.
Section 504 still applies and it gives very similar protections to Title I.
Wait? Why does 504 still apply? Because the AUTHORITY Congress used to pass it is different. If a State employer accepts federal money it agrees to being sued for violating Section 504. See I told you States would actually agree sometimes. THAT is your first taste of why we need BOTH Section 504 and the ADA.
This of course has no impact on Private Companies; they still have to follow the ADA (if… the have 15 or more employees— discussion for another time). Title I applies to private companies because Congress used a different authority to pass the part of Title I that obligates them to follow Title I. As I mentioned, it’s called the Commerce Clause and we will get to that when we discuss Title III. We will get a little deeper into 14th Amendment when talking about Title II.
Title II is next…
Hello everyone! Uncle Dale here.
So today I was reading some comments on a Facebook group for interpreters (the group is for discussions of best practices and resources). One of the interpreters asked a question and many many interpreters answered with statements like “the ADA requires that doctors provide interpreters.” Or “the ADA says they must provide qualified interpreters…”
Here is the problem. It doesn’t. No where in either Section 504 or the ADA is there ever a situation where either law says, “if… then you must provide an interpreter.” No where.
What the laws say is doctors or lawyers or accountants… must provide “effective communication.” There are certain situations where effective communication could not happen without an interpreter, but that is fact based not a matter of law…
Unless the facts are so clear that it can be decided as a matter of law. But to make sure you have the facts organized in such a way that an interpreter would be required as a matter of law, you have to understand the law. The whole law. Not just the parts you want to use to demand an interpreter, but the ways you have to document things and ask for things and which law you want to use in a specific situation with these facts and at that business or agency…
So. My “How to request a live interpreter at the ER” got thousands of views. “Where do 504s come from” did not. It was 12 minutes long. It seemed boring.
It’s important. You should watch it.
So the other day three people, a student who is Deaf, a hearing student who knows some ASL and an interpreter came to my office to ask some questions. In the middle of a great discussion on many topics related to education they, as a group asked:
“What is the difference between the ADA and Section 504?”
That is a good question. The answer is A LOT! For example one is three letters and one is three numbers. So, can you be more specific?
After a little negotiation to help them frame the actual question (many people would be shocked, I think to realize how often helping students figure out the question is much more important than helping them find the answer) they decided that they wanted to know why a person would choose to use 504 and not the ADA, or the ADA and not 504 or, you know, both at any given time.
Now that is a question I can answer! It gives me some direction and I can do it… but not in one go. We are going to be on this topic for a while.
Ok, you remember how as a kid you had to eat your vegetables first. You wanted dessert but you had to get through the stuff that is good for you first?
There are answers you want! Now. You want them right now! You are itching for them, and I could give them to you. But without context the answers I give will be interesting but not helpful. All sugar and no vitamins.
I am going for helpful. Sorry. It’s what I do.
If you want to know the how and when of 504 being useful, you have to start with why. Why is 504 in the first place.
You have to start with Authority. So. Here we go.
The 10th Amendment to the Constitution says that Congress can only pass laws on issues or matters that the Constitution specifically gives them the Authority over. If the Constitution is silent then… no. No Congress can’t.
If Congress “can’t,” then the authority over THAT (whatever THAT is) is reserved solely to the States (that’s States, Utah, Mississippi, Iowa, Massachusetts…)
So pop quiz hot shot! Where in the Constitution does it give Congress the authority over people who are Deaf? Or over Disabilities? Go ahead and look for it. I’ll wait.
Hint? It doesn’t.
Authority is a strange animal. It lives in various climates and walks on many planes. That sounded more mystical and shaman like in my head. Whatever.
Taxes are where Congress gets its authority to pass a law like 504. Article 1 Section 8 of the Constitution gives Congress the authority to collect taxes and to expend money. If you can do that then you can choose upon which items you will spend the money. It’s called “Carrot and Stick” policies.
Here is an example. Back in the late 1960s and early 1970s America was in the middle of a gas crisis. The Feds (read Congress) wanted everyone to drive 55 mph. But the Constitution does not give Congress the authority to force States to do that–or anything really.
So, it came down to money.
If a State set their speed limit at 55 mph they got federal highway funds (carrot) and if the State did not, they got no funds (stick).
This is the same reason why all States now have laws saying you have to be 21 to buy alcohol, and 18 to vote. If States adopted those laws they got funds for drunk driving prevention programs and police equipment and new voting machines. Get it?
So that is the authority Congress used to pass 504. But with 504 the authority attaches to everything. If you accept federal money for almost any thing you can’t discriminate against people with disabilities, according to 504.
Next problem, the whole of Section 504 is about a paragraph long. Seriously that’s it. So it has no room for explanations of what discriminate means, or who a person with a disability is or even what it means to accept federal funds…
So, all the different Executive Agencies made their own Regulations, basically wrote their own definitions of all those things.
If you want to know what discriminate means for a hospital you must look to the Regulations from the Department of Health and Human Services and not the ones written by the Department of Education… unless it is discussing a student who is hospitalized long term. How does the term Disability apply in an employment setting? The EEOC has the regulations for that, but not if you are an independent contractor, for that the Department of Justice wrote the Regulations. And so on. The Regulations often are similar but rarely the same.
Yes, it’s labor intensive, confusing and… mistakes are made. Grin.
Next problem, what does mean except federal funds. Also sometimes a little confusing.
With State agencies and other executive branch government entities you can usually be pretty sure they accept federal funds under 504, particularly after 9/11, because the Department of Homeland Security made it rain!
Many private businesses also accept federal funds in fact more than you would think. For example hospitals clinics and doctors that accept Medicare and Medicaid are accepting federal funds. Private colleges and universities who accept federally subsidized student loan’s are excepting federal funds (even the local college of massage therapy or the college of hair design if they get federally subsidized student loans).
There are some weird limitations to whether 504 applies in some stipulations but not as many as the ADA. For the most part “youse takes the money youse follows da rules.” The weird stuff I will discuss it all later vlog.
Ok here we are, authority. This you will find out is the magic key you need to make 504 work. If you know that the entity accepts federal funds BANG your in… if you know which Regulations apply.
The ADA is not so straight forward. We will talk about that later too.
Finally, an interesting problem that has been solved (just to give you hope). when Section 504 of the Rehabilitation Act of 1973 was passed it did not have a great deal of clarity on how it was to be applied (you may argue that is still true). So universities, for example, argued that classrooms didn’t accept federal funds and so they didn’t have to be accessible, only the office of student loans accepted federal funds so only that office had to be accessible. Courts agreed. No joke.
Congress fixed that problem in the late 1980s by passing a statute called the Civil Rights Restoration Act that said if you except federal money in one area of your entity it covers everything that benefits from the money. So in a practical sense, everything.
There you are, quick and dirty on the authority Congress used to pass Section 504. Next we’re going to talk about the ADA. The authority for the ADA will take at least three vlogs. Yeah, it’s that complicated. But we’re done you will understand enough that you can take advantage these laws, know how each is applied and you should have an idea at least as to when it’s best to use one over another… or both!
Remember! Uncle Dale’s Rules may be informative but it is not a substitute for legal advice. If you want information on any of the topic contained herein please talk to a lawyer in your area.
Hey everyone! So last week a former student/current rocking interpreter asked me over Facebook how to interpret the term “Living Will.” This of course set off a firestorm of opinions on leaving it to the lawyer/doctor/other person to explain what is means or the Deaf client to ask what it means.
Totally not getting into that discussion.
But, I will say it never hurts to know what it means yourself, because you are going to have to interpret it (no matter who digs for the deeper meaning), and if you are relying on an attorney to say anything that anyone but another attorney would understand you have not met many of us! We suck at explaining… bad… way bad!
Anyway, the real problem with the term “Living Will” is that if four people say it there will be seven different meanings intended–“Living Will” is the Aloha of testamentary terminology, people use it to mean everything.
So lets go through what we are talking about: What happens to my stuff after I die and myself while I die.
There are two kinds, Intervivos and Testamentary. Intervivos holds your stuff while you are alive and is usually revocable (you can change it or get rid of it while you are alive) but becomes irrevocable when you die… cuz you’re dead. Testamentary Trust are set up by another instrument, like a Will, and only are declared after you die.
Both of them hold your stuff as if they were legally a person. Trusts are usually set up with specific rules like “this is to be used for my kids education” and so living or dead that is what the trust can be used for. Most are time limited so if anything happens to you the Trust will do its thing until the kids are 22 or 23-years-old (I never advise a client to make the Trust distribute is corpus to a 21-year-old because I knew me when I was 21-years-old). Lots of people want Intervivos Trusts, fewer people need them. The tax advantages only kick in north of 5 million dollars. They are good for multiple marriages and kids from each marriage. Testamentary Trust established by a Will are good for people with young kids.
Like a “Last Will and Testament” Will. This is good for making sure all your stuff gets to the people who you want it to go to when you die. These days most stuff passes through an “extra-testamentary” document–as a beneficiary of an insurance policy or joint accounts or joint tenancy in the ownership of a house. A Will catches everything else so there is no dispute as to who gets the stuff.
A Living Will.
When people say Living Will they could mean any number of Advanced Directives (directions you give before something happens). An ACTUAL Living Will gives instructions of what you want done or not done medically if you are unconscious or otherwise unable to give competent instructions as to your wishes.
A Medical Power of Attorney or Healthcare Proxy (sometimes called a Living Will) designates a person to relay your wishes is for some reason you cannot do it yourself. Not their wishes for you but having told them what you want they accept the responsibility to relay your wishes.
Then there is a DNR-Do Not Resuscitate. Just like it sounds, if certain conditions are present just let me go.
There you go! and remember Uncle Dale’s Rule may be informative but it is not a substitute for legal advice. If you want information please talk to a lawyer in your area.
I got this question a bunch this week. Many people who are Deaf and a few interpreters are outraged because there is a multi-level marketing convention in town and it has refused to provide interpreters because it says that the Deaf attendees are not “employees.” The MLM is right, they are not employees-but 100% wrong that it does not need to provide interpreters for them.
If you are not familiar with the idea of an MLM, it’s one of those companies that sells soap or skin care products or essential oils or found some awful tasting fruit that they now sell as a health drink. They don’t sell them from stores or on-line. One person gets a few sales reps “under” them or in their “downline” who then get people “downline” from them and so on and so on… its a huge business.
Anyway. Most of these companies are run by lovely people, but every now and again I run into this issue. A Deaf person joins the group as a sales rep and buys a ticket to a MLM convention (where they have motivational speakers and sales trainings and opportunities to network and build your business) as all sales reps are encouraged to do. The person who is Deaf requests an interpreter and the MLM says no. The MLM doesn’t believe it has to because, as I said, the person who is Deaf does not “work” for the MLM; the person who is Deaf is not their “employee.” The MLM is right. The person who is Deaf is an independent contractor. If they try to force the issue using Title I the person who is Deaf will lose because Title I does not apply.
But, if you are not an employee you are “the public” and that falls under Title III. Once a person who is Deaf bought a ticket to the MLM event that person became a “qualified person with a disability” under Title III (I know the who disability thing leaves a bad taste in your mouth–I wrote a paper on it, me too–but if you want to use the ADA…). A person with a disability because the Deaf person is… well… Deaf, and qualified because a person is qualified to attend the MLM event if that person has a ticket to the event. So when the MLM said it would not provide interpreters the person who is Deaf got the last thing they needed to have “standing” (the legal ability) to sue.
[t]o establish Article III standing, a plaintiff must show that: (1) she has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to being merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).
MLM’s at this point will scream and cry that is not on the list of “places of public accommodation” that is contained within Title III, it is not a store nor does it maintain a place that “accommodates” the “public” (not the same thing as a reasonable accommodation— different thing/similar name… different discussion for a different time).
Again, the MLM is right. It is not on the list of “places of public accommodation” found in Title III. But the convention center it is using for the convention is.
“Oh,” you say, “so the convention center must provide the interpreter?” Nope. Well, the MLM can allocate the responsibility to provide interpreters to the convention center by contract… but usually the convention center will be responsible for the physical accessibility (more permanent structures) but the MLM is “operating” the venue (selling tickets, controlling access…) so the MLM would be responsible for non-structural access (psst. interpreters).
The person who is Deaf paid a price to attend the conference, the conference is held in statutorily defined place of public accommodation and the place public accommodation is operated, at least for the duration of the conference by the MLM, which Title III says makes the MLM, for the time frame of the conference at defacto public accommodation (even if the “lease” of the space is for a very short time).
So an “independent contractor” sales rep has the ability to enforce the ADA against an MLM using Title III, not because the person who is Deaf is an independent contractor… but because the person is NOT an employee, just a qualified member of the public.
I included a case that shows how it all works.
Jensen v United First Financial
This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.