Note from Uncle Dale: “Nothing” May Actually Be Better

Hello one and all!  Uncle Dale (you know me, I’m the one typing on my phone).  This is actually my second swing at this Note.  I posted it once before but I was not happy with it. It was easy to misunderstand the point and it may cause some emotional response.  I am expecting it and ready for your comments.  I ask only that you think about the overall point before hammering me on any single point. Also remember I have a hard time shutting the attorney out completely when I write, and I have invited him in on this Note.

Today is alllll about the phrase “well, it’s better than nothing” specifically when a hearing person uses it to excuse bringing in an unqualified interpreter.

This is a hot issue right now, and I have heard the phrase from hearing people, who have no idea, after they finish chuckling about those videos from the Florida news conferences. They laugh and then get very pensive and say, “still, I guess it’s better than nothing.”

Or

When I have to deal with my brother’s friend who has a small business and spouts off things like:

“Hearing Impaired people are just ungrateful! They keep complaining that they don’t want to write back and forth during appointments, so I brought my niece to help me out with them. I go to all that trouble even though I think we’re getting along an fine, because they keep complaining they want an interpreter (as often as not he still says ‘translator’), so I get them an interpreter and now they complain about THAT TOO!”

You realize you didn’t get an interpreter right?  You got your 16-year-old niece who has had like three community ed “Signing SEE is Fun” classes.  

“She did a real nice job.”

You are evaluating how well she did based on… the Deaf Client complaining?

“Well I think she did fine. It looks really pretty when she does the Sign Language and her mother says her teacher says she could be an interpreter. ”

Could be, not is.

“Anyway,  It’s better than nothing.”

Using an unqualified Sign Language interpreter is actually notbetter than nothing.” If you don’t have a qualified (certified) interpreter then, for several reasons “nothing” is almost always better!

I felt the collective shudder of at least some within the Deaf community.  But, please let me state my case.

When the Client has nothing hearing people may tend to make some little bit of effort or take the smallest bit of responsibility for the communication! (well, hearing people with good intentions may anyway). With nothing hearing people at least feel compelled to invest little time and energy into making sure communication happens, even as a reflex. It’s mostly exaggerated lip movements and yelling but sometimes they will even slow down and start to think. It’s not perfect, but it is educational.

More important however is when there is nothing hearing people may give a little “communication benefit of the doubt” to the person who is Deaf. When there is nothing it’s easier to convince the hearing person that despite all the fish mouth, yelling and modern dance-maybe, just maybe-the whole message might not have been effectively communicated, and maybe, just maybe, they should not expect that the person who is Deaf actually understood everything by magic or divine intervention. The hearing person might not get to all the way to that epiphany on their own, but is more apt to understand that communication was “spotty at best,” when it’s pointed out that there was nothing to make it effective.

But, if you put any person in the room, pick them off the street, and then have that person waive their hands around, you will never convince the hearing person that hand waiving is not a magic incantation that restores hearing.

“They wanted Signs so I brought in a person who Signs; my niece.  They said it would make communication easier, but now they are trying to tell me they didn’t pay on the Amortization schedule because they didn’t understand it!  What an excuse! I explained it very clearly”

So you had your niece Sign this explanation for them?

“Yep and she told me they didn’t even ask a question.”

Ok. We will get to that in a second. Does your niece know what amortization is?  

“She doesn’t need to know, she just had to Sign the word.”

Does your niece know what the Sign for amortization is?

“What kind of silly question is that?  I think she just spelled it out.”

If she spelled it out what would that do for the people who are Deaf except show them how to spell a-m-o-r-t-i-z-a-t-i-o-n and assume that it is a word and that your niece spelled it right. Was she teaching spelling or vocabulary?

“Well I am sure they would have asked if they had questions. Why didn’t they ask some questions?”

You said that twice now. Do you know for a fact they didn’t ask a question?  

“They waived their hands a lot to each other. I’m sure my niece would have told me.”

Only if they understood enough to know the question they should ask or if she understood them enough to understand their question, you mean.

“Why wouldn’t she? She does that Signing for the ‘death’ real well!  No they are just trying to get out of the deal!  They wanted Sign Language and I gave them Sign Language they can’t pretend now that it wasn’t the RIGHT Sign Language. Even I know that Sign Language is universal or maybe not the whole universe but international…”

And so on and so on.

Put a warm body in the chair, no matter how limited their skills, and wham! for all the hearing people realize it’s like the message was proclaimed through a burning bush.

Put a warm body in the chair and I have seen judges and juries begin the trial with the assumption that communication was effective, and then hold on to that assumption despite all evidence to the contrary.  “Nothing” is sometimes better as it shows to juries and judges that there is no POSSIBLE way communication could have happened at all, let alone been effective.

I read a police report once where the officer interviewed the drunk Deaf suspect using the equally drunk hard-of-hearing guy who happened to be sitting in the back seat.  On the stand when confronted with the Defendant’s denial that he understood what the officer said, the officer testified under oath “oh no, he understood every word! EVERY WORD!”

How do you know that for sure?

“Because [the other drunk passenger] was waiving his hands around as fast as I was talking!”

Sigh.

Truth be told, if there is not a qualified interpreter I’m not even a huge fan of writing to communicate. Because it often has the same “magical” impact as nonsensical hand waiving.  In fact written communication proves less beneficial than “nothing” all the time, because hearing people (Judges especially for some reason) seem to have a kind of special blindness that impacts their ability to see words written by persons who are Deaf as anything less than pure Shakespearean poetry.

I’m gonna get all lawyery on you for a minute now.

In a case called Patrice v Murphy for example the Judge found that the Deaf Plaintiff’s position-that an interpreter was necessary for effective communication with the police-was a very narrow view of the capabilities of people who are Deaf (Notice the hearing centric assumption that use of ASL or of an interpreter was somehow a lesser capability-let me point out that you can’t do it, your honor).

In the decision the Judge decided an interpreter was not needed and (I swear this is true) potentially dangerous for the police officers. The Judge stated:

Where plaintiff is able to communicate with the officers using printed forms and her written statements, with no apparent difficulty or loss of meaning (as was the case here), no additional accommodation is required. 

Read that part again for me would you? Got it?  The Judge based his assessment of “no apparent difficulty” on this writing sample taken directly from the police report the Plaintiff filled out. Ready? It said:

Jim thought I use the knife to kill it was misunderstand as I use it to hold the page of cooking book. Jim put knife away I was enough made to hit him He hits me back continue fight. He took my hands squeeze bend fingers all way His leg hold my head and hit my back. My daughter Katherine was the witness. All this morning was hard Jim used bad verbal languages on my both daughters that influence my feelings mixed to carry until now I blow my temper. no weapon. just use my first.

She got arrested and based on this writing sample the Judge determined that she had no difficulty communicating in writing.

Oh, they also gave her a card with the Miranda Rights on it and the officers said they were not sure if she understood it-but the Judge quieted their troubled hearts and found their concerns lacked relevance because she acknowledged that she understood by signing her name at each place the officer pointed.  (Total proof she understood don’t ya think? NOT).

I look at this case and have to wonder, if the Judge can read what she wrote and still say “oh that’s fine!!!” wouldn’t she have been better off with nothing!

I had a case where the police improperly searched the home of a Deaf person (I can’t even say Deaf suspect, because they could not connect him in any way to the matter–quick run down, for reasons obnoxious the police jumped to the conclusion that a murder victim they found was Deaf… she was not… and decided to knock on the door of every person in the area named in a police report along with the words Deaf, Hearing-Impaired or Hard of Hearing. People tend to kill within their own cultural group so lets at least recognize that the police acknowledged Deaf as a culture.)  The Deaf person said he did not understand what the police wanted.  The police said he was being belligerent (which is odd because “belligerent” is not an exigent circumstance allowing for a search without a warrant.)

The police hung their case on a series of written notes between themselves and my Client.  The notes consisted mainly of the police writing questions and my Client either responding “I don’t understand,” or with a non-sequitur.  The Judge (who I respect highly) read the notes and saw, as he said, “question, answer, question, answer, it looks like a conversation.”

I said but the answers don’t match the questions!

The Judge said, “I’m not seeing that.”

In frustration I said that even the police report stated that communication was not effective!

Well.  The Attorney for the police department DID NOT LIKE THAT! He denied that the police report said anything like that.

So, I had him read the police report into the record (ok all you attorneys I know the pitfalls… I was ready for them). The attorney for the police department read, “communication was difficult,” and “communication was very difficult,” and “we struggled to communicate,” and at least 5 other similar references.  I folded my arms in a SEEEEEEEE THERE IT IS, kind of way.

The Attorney for the police department said “difficult and not effective are not the same thing.”

WHAT?

The Judge said, “do you have any case law that says I should interpret ‘very difficult’ to mean ‘not effective?'”

No, I said. But I can give you legal support as to why you should.

The Judge said “Go ahead.”

Ok. In order to gain entrance to this Courthouse a person has to walk up three sets of stairs, five stone steps parallel to the street, a landing, five stone steps perpendicular to the street, a landing, and five more parallel to the street up to the door. Am I right?

The Judge pondered that for a moment and then said “If you want the Court to take judicial notice of that it will.”

Please do, I replied. Now, on the North side of the building there is a long ramp that leads from the street to the old prisoner’s transport door. What is the purpose of that ramp?

The Judge replied, “that is for ADA compliance, because with the steps it would not be possible for persons using wheelchairs to access the building.”

Your Honor, of course it would be possible, it would just be very difficult. A person could flop out of the wheelchair, strap it on their back, and crawl arm over arm up the three sets of steps and right through the door, but! it would be a struggle and very difficult!

Moreover, we would never subject a person in a wheelchair to that kind of humiliation.  It would be undignified and embarrassing.  But the police department is arguing that it is fine to subject my Client to the indignity and humiliation of a communication process that it labels very difficult for him because… well, I’m not sure why. They do however appear to think people using wheelchairs are more deserving of dignity and respect than a person who is Deaf even though the same law is being applied.

The Judge leaned back and smiled (ruefully) and said “I feel a bit like you set me up.”

You asked the question your Honor.

So, there it was in his lap.  He thought for a minute and said, “I am not sure I want to make new law today.”

And that was it.  I also was not interested in making new law, but I was interested in enforcing what I think the law already says. So I filed an appeal. The case settled before we had a real answer.

With “nothing” there would have been no question.  With no written conversation everyone would know effective communication is not happening.

But, as I said, if someone is sitting in the chair, waiving their hands, people assume some magic spell of understanding-or when almost anything is written on a paper the words become some kind of mystical incantation that calls forth the old gods of effective communication.  When anyone tries to point out that neither is true and that effective communication is not happening, then hearing people always seem to blame the person who is Deaf for not understanding.

The Florida unqualified interpreter videos are not funny. They are a tragic symptom of a systemic problem.

One last stop before we’re done.  There will be more than a few of you, Deaf and hearing, who will hate this! But, it has to be said.  Its not just the unqualified interpreters that are the problem.  The ADA and 504 are not magic talismans that create access by their very existence in this world. They must be enforced and if they are not then they continue to be useless.

What does that mean? It means that if a doctor or a lawyer or an accountant or a training course says “we wont provide an interpreter but you can bring your own,” bringing your own just makes the problem worse. It means if a person who is Deaf calls a qualified/certified interpreter and says “I asked my doctor for an interpreter and he says I have to bring my own,” or an interpreter calls me and says “can the ADA make that lawyer pay me because I HAVE TO go with my friend to her meeting tomorrow or she’ll have no interpreter.  I know I should get paid but I can’t leave my friend with nothing!

Ready?

Yes you can. And (gulp) yes you should!

Because NOTHING is the only way to fix this! NOTHING is the strongest basis for a lawsuit that may bring about real change! If you, as a qualified interpreter show up at the appointment then 1) there is no legal reason the Lawyer or Doctor or Accountant needs to pay you; not under the ADA anyway (There may be an argument under quantum meruit but that is a way different topic); and, 2) if you show up it is harder to make the case in court that the Lawyer or Doctor or whatever failed to afford effective communication, because if you were there, then there was effective communication. communication actually happened, it was not denied.  The case all but goes away because the person who is Deaf was not denied access (yes there are actually some other legal arguments under the ADA… but they are so much more technical to argue than “no interpreter = no effective communication.”)

In short, if you show up you are letting the Doctor or Lawyer or Other get away with it-you are a Band-Aid on a gushing artery.

It sucks.  I know. We all thought the ADA would be the end of the problem when it was really just the start of the journey.  Almost 30 years on this road and we are still fighting the same fights. And I know it must be exhausting for the Deaf community, the same old oppressive bull. But it will never end unless you are willing to fight.  From a legal point of view to start to fix the problem, nothing is once again better.  I would so love to get put out of the business of suing professionals for this oppressive petty crap, but I don’t see that happening soon.

Members of the Deaf community, forgive me. I know I just told interpreters not to go with you to that VERY IMPORTANT APPOINTMENT.  I’m sorry.  But, the Doctor or Lawyer you are meeting with is like a bad boyfriend, they are not going to commit to do right by you )by paying for interpreters) as long as they can get it for free.

Before anyone accuses me I DID NOT SAY DON’T VOLUNTEER!  There are many good and worthy causes for which interpreters should provide services for free.  But if the interpreter is the ONLY volunteer in the room it is just another form of oppression perpetrated on the Deaf community.

I hate to tell you all this.  I wish the world was a better place.  I wish the ADA was easy to enforce, but its not.  The ADA is, well, it’s really tough to enforce. But its really important that we actively engage, hearing and Deaf, in enforcement! The only way it will be enforceable tomorrow is if the violation today is so obvious that a hearing judge or a bunch of hearing people on the jury can understand it or, lets be honest, can’t figure out how not to enforce it; and they will search for reasons not to enforce it! It sucks. But… it’s better than nothing?

Ok. I know it’s Uncle Dale’s Rules for Interpreters, and I spouted a bunch of lawyer stuff today but… it’s the water we all swim in.   We need to collectively (both interpreter and Deaf consumer) think more about exactly how much we know about the ADA and 504 and IDEA when we consider how deeply and daily they impact our lives.

I get shocked looks every now and then when I ask a question like, “how does the ADA define a ‘qualified’ interpreter?” And someone says CERTITIFED! and I answer NOPE. I wish. But nope.

I can’t dig into that any more today. Today I am going to bed and fix alll the typos in this thumb typed essay in the morning.  I finally got it typed out though and maybe that’s better than… um, maybe that’s good enough.

Uncle Dale’s “You Probably Should Know”: Title I of the Americans with Disabilities Act and Authority.

 

Hi everybody!

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.

Commerce Clause

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.

BUT

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.

Private Companies

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…

 

 

 

Uncle Dale’s “You Probably Should Know”: Where Do Section 504s Come From?

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. 

So… how?

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

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.

Rule 332

CPC compatible answers to the question, “How was your day?” (An on-going series):

Well, first thing this morning… wait, did you cut your hair? It is so cute! When did you do it?

Uncle Dale’s “You Probably Should Know”: Living Wills

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.

Trusts.

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.

A Will.

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.

 

Uncle Dale’s “You Probably Should Know”: Employee vs Independent Contractor (MLM)

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

http://cases.justia.com/federal/district-courts/utah/utdce/2:2009cv00543/70925/20/0.pdf?ts=1411581661

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.