Random Thoughts by Uncle Dale: 2017 International Week of the Deaf/Sign Language

Take a minute to share your love of ASL with someone who doesn’t sign…preferably someone who knows you sign, or it just becomes some kind of modern dance performance art and you are just viewed as pretentious for having snobby inaccessible tastes in art… and you will want to explain that in the truest interpretation of the term they are very accessible (first pun not intended but the second totally was) but don’t explain yourself! Keep the mystery alive…

Happy 2017 International Week of Sign Language!  

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…

 

 

 

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?

Note from Uncle Dale: This is What the Website is FOR!

I know three posts in one day is getting a little excessive. But I looked back and the first day I loaded like 30 Rules. For a while I was doing three a day.  That got a little “overloady” for everyone I think. 

Anyway, a friend just sent me one of those “urgent” emails; the ones with the red exclamation point. The subject line said in all caps “HAVE YOU SEEN THIS?

https://www.usor.utah.gov/dhh/terps

Did you give them permission to do this?”

The answer to both questions is no.  

But the real answer is “YAY!”  That is what the blog is here for.  This link meets all the criteria I ask. It’s accessible and it cites the source.  

I want this info out there.  So again, “YAY!”

If you want to link for your school or agency please do.  Just make sure you cite the source and are not charging for this information.

I would love a heads up if you link. 

Thanks! 

Edit: BTW… thanks for looking out for me!  I do appreciate 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.