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.

Uncle Dale’s “You Probably Should Know”: Interpreter Requests (Title I)

As I’ve mentioned, Aunt SuperTam says when I say “probably” I mean “definitely.”

These posts are designed to answer the most frequently asked questions I get from both interpreters and the Deaf Community; specifically the answers everyone should already know but rarely do!

Now. I know this blog is aimed at interpreters… but it’s vital for interpreters to know how the ADA, 504, IDEA… work; because these are the waters of the pool we all swim in each day.  That and Rule 11.  Read Rule 11.

https://uncledalesrulesforinterpreters.wordpress.com/2017/03/10/rule-11/

So.  If a person who is Deaf requests an interpreter what happens next?

(I mean of course what should happen next, according to law and policy, which is not always the same as what actually does happen.)

So what should happen if the request is made to the boss or at work (assuming the business is obligated to follow Title I of the ADA or Section 504) the employer then has an obligation to engage in a “meaningful dialogue.”

This dialogue is a legally required discussion to determine: if an accommodation is needed; if the accommodation would be reasonable; and, if it would not create an undue hardship (parenthetical digression time! Title I of the ADA uses the words “undue hardship” to mean the same thing that Title II and III call an “undue burden.” Same meaning, slightly different words. Why? Well, I have heard AN explaination… I’m not sure it’s THE explaination.  Regardless of why- that is a story for another time). An undue hardship/burden does not mean “expensive” or even “very expensive.”  In the context of employment it requires an extensive analysis. Many employers seem to think it means “if it costs us money we don’t have to” but that is just not so.

That being said, the laws as written don’t require the employer to provide an interpreter; only “effective communication.” Even effective communication is only required if the communication to be accommodated is for something that is considered to be an “essential function” of the job (getting hired is usually considered an essential function but, according to the 11th Circuit getting fired might not be).  The employer is given a lot of leeway to determine what is an essential function and what is not. If there is a written job description courts give it a lot of deference.  But if the function was never mentioned before the Deaf person showed up (suddenly the job requires telephone skills, but that has never been listed as a requirement until now…) the EEOC and the courts get very suspicious.

If a person who is Deaf has to file a complaint with an administrative agency like the EEOC (a necessary step before court*) the Deaf employee only has to show that it likely discrimination occurred and A) the function was essential; B) the employee requested and accommodation; C) the employer did not provide it; and D) the lack of effective communication had a detrimental impact on the employee.

Once this quite low threshold is met the burden shifts to the employer to show there was a legitimate business reason for their actions that was not discriminatory (burden shifting or the McDonnell-Douglas rule). Once that threshold is met the burden shifts back to the employee to prove that the business reason the employer stated was not legitimate but was just an excuse for discrimination (it was a “pretext”). The courts and administrative agencies tend to give a person who is Deaf’s request for an interpreter with a great deal of weight. This tendency to accept the person who is Deaf requesting an interpreter at face value, if they ask for one it is likely they need one, is somewhat unique the Title I (it is not so with Title III).

In a perfect world the Deaf employee asks for an interpreter, then the boss and the Deaf employee meet, they hammer out when accommodations would be required (what kind of thing requires and interpreter and what could be handled with notes or, honestly, with just pointing), a means to schedule interpreters for essential functions is agreed upon, and everyone goes back to work.

The world is generally not perfect.

Many employers don’t know their obligations.  Many Deaf employees don’t know their rights or how to enforce them.

So, when should a Deaf employee request an interpreter?  Many are reluctant to ask for one at the interview stage (a little hint, a person who is Deaf does not have to mention that they need an accommodation until they are asked to interview. The EEOC and Courts are verrrry suspicious of companies who “disinvite” people who are Deaf to interview for a job after a request for an interpreter.)

If a person who is Deaf already has the job then they should request accommodation when things are going good; in the honeymoon phase after they are hired.  Asking for an accommodation always goes over best if it’s not in response to a problem, but you can point out to the boss that the company can prevent problems and invest in the development of an amazing employee by removing or reducing barriers to communication!

The employee who is Deaf will normally get some push back. For example the boss will say, “you’re doing fine! We communicate fine.”  I have found the best response to that is “thank you.  I would like to keep it this way. Please consider my request and I would ask you to document this discussion in the file so we can refer to it later if we need to.  I am trying to set up a forward thinking plan to avoid problems that might disrupt productivity. As a person who is Deaf, I want to be the best employee you’ve ever had. Part of how I can do they is by preventing an issue before it starts, so I am going to ask that my proposal and the information on contacting interpreters just stay in my file for future reference.”

These steps apply if you are working for a private company or the government (except the States, Title I doesn’t generally apply to States, only 504 applies to States.  Long story. Do I really want to tell it now? Sigh. Ok).

If the Constitution does not specifically give the Federal Government authority to do something then that authority is reserved for the States (10th Amendment). So Congress cannot pass laws unless the Constitution gives it the specific authority over that thing.  Read the Constitution allllll you want it never even says the words Deaf or disability.  So how can Congress pass something like the ADA? Congress has to get its authority from somewhere.

There is a second problem I should mention.  It’s called Sovereign Immunity (connected to the 11th Amendment). This comes from a principle held over from the English.  It’s says “you can’t sue the king without the king’s permission.”  The 11th Amendment has been interpreted to say “you can’t sue the State without the State’s permission (that is not what the text of 11th Amendment says however… don’t get me started…).  The State actually gives permission more often than you’d think.  If the State doesn’t give permission congress can get around the 11th Amendment/sovereign immunity barrier because the 14th Amenment gives them the authority to do so (remember? 10th Amendment?) IF (oy always with the if) there is a history of discrimination and the law congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination.  A few years ago the University of Alabama made the argument that it was reasonable to demote a nurse with breast cancer because Congress had not proven that there was a history of States discriminating against people with disabilities (psst there are pages and pages of examples going State by State in the Congressional record).  The Supreme Court agreed with the University of Alabama and found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I  and so Title I went away as it applied to State jobs (not private companies though. Private companies still have to follow the ADA Title I because the part that obligates them uses a different authority).  Have no fear, Section 504 still applies and does basically the same thing as Title I (again 504 uses a different authority).

“If section 504 applies and does basically the same thing as Title I why is any of this important for us to know” you ask? Well, I’m glad you asked.  It’s important because over and over people who are Deaf tell me the name of the interpreter from whom they are getting their information about the ADA.  I’m not making any accusations that interpreters are wholesale violating the CPC (not wholesale, maybe retail… you know what? We need to have a long chat about the CPC and how we see it as a profession…)! I’m saying they sit in the lobbies of Deaf centers and at Deaf events and chat with Deaf friends or, shudder, ‘after the appointment is over’ which is a generally misunderstood time frame or perhaps even in the neuance of your interaction during an interpretation (read up on “interpreter role-space”) and interpreters say, often and with conviction, “that’s a violation of the ADA”… with NO IDEA if it actually a violation (Because RULE 11).

And then the Deaf State employee says to their supervisor “that violates my rights under the ADA” (because Rule 11 has a long reach) and the supervisor, knowing the ADA does not apply, continues to be a jackass because the supervisor knows that ADA does not apply and that the person who is Deaf does not understand their rights (At this juncture and by all that is holy stop reading this and go directly to the works of the brilliant Peter Llewellyn-Jones and Robert G. Lee on the topic of “Interpreter Role-Space”).

I leave all y’all with this thought.  If States are not obligated to follow Title I of the ADA because it was passed under the authority of the 14th Amendment and the Supreme Court said Congress did not prove a history of discrimination and so lacked the authority… what about Title II which applies only to government entities and was passed wholly by the authority of the 14th Amendment?  That is a complex discussion! We will save that for next time.

*ok the timelines on this are weird too.  You have to file your complaint with an administrative agency first. You have 180 days from the date of the most recent act of discrimination to file with the EEOC, unless your state has a state level agency for workplace discrimination (Utah has UALD and Massachusetts has MCAD), then you have 180 days to file with that State level agency and 300 days to file with the EEOC.  I know. “What the…” I know. Anyone who likes law or hotdogs should never see either being made.

Rule 295

The core of interpreting is love. Love is why we all started this journey, love is why we stay on this path, love is what we will remember as our lives end.