Rule 302

VRS Call Center, Saturday 2:30 AM: This isn’t Hell. Hell only has 9 rings.

(I answered more than that my first hour.)

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 explanation… 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 amendment 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 nuance 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.

Uncle Dale’s “You Probably Should Know”: The Affordable Care Act and Interpreters 

OBAMACARE? Yow! Thems fightn’ words!  I have another blog where I express my political views and try to keep this one more informative and neutral. At risk of being accused of political speech hear me out!  This is something you probably should know and a scary number of people don’t.

It has to do with hospitals and doctors offices providing interpreters; even live interpreters over VRI.

A little background first. The ADA has five parts called Titles (you will never use the last two). Title II applies to government entities. Title II of the ADA has what is called the “Primary Consideration Rule.”  What that means is when a person who is Deaf attempts to access government programs, benefits and services the government entity must give “primary consideration” to the auxiliary aid or service requested by the person who is Deaf.  What that means is the government agency must give the person who is Deaf the specific aid they requested, like a live interpreter, or the government entity must prove it was not needed.  It is not easy to prove something is not needed.

Title III of the ADA doesn’t say that.

Title III has to do with accessing the services of private businesses, like hospitals and doctors offices. Title III only says the private business “should consult with” the person who is Deaf. IT INCLUDES NO OBLIGATION TO GIVE CONSIDERATION TO WHAT THE PERSON WHO IS DEAF REQUESTS NOR DOES IT EVEN OBLIGATE THE DOCTOR TO ASK OR LISTEN WHEN ASKED. It says the doctor “should” consult with the person who is Deaf, but does not make failing to consult a factor in discrimination.

In recent years when the Department of Justice has settled cases involving people who are Deaf who sue government entities (the settlement agreements are called Consent Decrees) the DOJ has begun including new language in these Consent Decrees stating that the definition of “primary consideration” now requires that the government entity ask the person who is Deaf what kind of accommodation the Deaf person needs*.

Think about that.

Prior to that language being added the expectation has always been that the government entity only had to give “primary consideration” to the auxiliary aid or service that the person who is Deaf ACTUALLY REQUESTED.  If the Deaf person didn’t ask… too bad!

Now, keep in mind that is not the current interpretation of the rule in general; it only applies to the Consent Decrees in which it is included. But, if that language is an indication of the DOJ’s intent regarding how “primary consideration” should be interpreted, if it becomes the standard, then anytime the law requires “primary consideration” the entity or business must ASK the Deaf person what they want, and give it to the Deaf person, or have the burden to explain in court why it did not.

So, compare that with Title III where the private business doesn’t even have to consider the request of the person who is Deaf who does ask… the law just says it should, not that it must.

Section 504 has always been somewhere in the middle of the two extremes of Title II and Title III. The regulations under the Department of Health and Human Services have much stronger language than “should” but still not as strong as “primary consideration.” For some weird reason HHS also limited the application of Section 504 to medical providers with 15 or more employees.  So many small town doctors are not required to follow 504. That pulls it even closer to the weaker standard of Title III.

Now. After all that build up I CAN FINALLY get to the thing you probably should know.

A couple of nights ago I was meeting with a group of people who are Deaf and who had complaints about hospitals using VRI and mentioned the Affordable Care Act (Obamacare) and fully 2/3 of the people in the room groaned, rolled their eyes, or made a disgusted face (I will freely admit, the Deaf Republican has always been a strange notion to me) there were comments flying around the room about how terrible Obamacare is and supporting the Senate Bill.  At this point I got everyone’s attention.

“I will not have a political discussion here,” I said, “that is not why we are here-but I will tell you all something you probably should know.”

“Most of the hospitals we are discussing fall under Title III as they are private businesses.”  I explained what the concept of “should” to them.

“Only one of the hospitals is a government entity.” I explained the benefit ‘primary consideration’ like I did above.

“All of them must follow Section 504,” I explained, “because they accept Medicare.” In most situations if 504 is applied to a private company that, but for federal funds, would be under Title III then Section 504 mimics the standard of Title III (they “should” ask the person who is Deaf, not “must”).

Here is the kicker, ready?

Obamacare has a section called the Non-Discriminatory Rule or Section 1557.  Section 1557 applies to any health program or activity, any part of which receives HHS funding, such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers (Medicare Part B is excluded).

In Section 1557 it states that covered entities must give “primary consideration” to an individual’s choice of aid or service.

Yes you read that right!

The Office of Civil Rights confirmed that all covered entities will be held to the higher standards established under Title II of the ADA, which requires covered entities to give primary consideration to the choice of an aid or service requested by the individual with a disability.

OCR also explicitly stated that the communications requirements of Section 1557 apply to all providers even those with fewer than 15 employees.

In essence the ACA/Obamacare makes the standard for Section 504 the same as the standard for Title II for private hospitals that accept federal funds (even if but for federal funds the standards of Title III would apply).

That can be interpreted to mean that hospitals and doctors must give the Deaf patient the accommodation they ask for (or maybe even ask the Deaf patient what you want) remembering that VRI and live interpreters are listed as separate auxiliary aids under the law, and if they don’t the court will make the medical provider prove a live interpreter was not needed instead of requiring the Deaf person to prove it was.

If the ACA/Obamacare goes away, so does that protection.

You should probably know that.

*Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available.  See Consent Decree for LAWRENCE et al., v. CITY OF ENGLEWOOD, et al., and ARAPAHOE COUNTY SHERIFF para 27 https://www.ada.gov/lawrence-arapahoe.htm 2013

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.

http://www.refinery29.com/2017/01/138465/how-to-call-senator

Note from Uncle Dale: A Harsh Examination of the Interpreter  

So, you ask, Uncle Dale who are you… I mean in relation to the Deaf Community.

Good question.  I can only answer for me and certainly not for the Deaf Community.

As I see me, I am a facilitator of communication. I can be an ally, when it is appropriate (sometimes it’s not-sometimes what I see as ally behavior is actually Audism. All of my passion and experience and fluency does not save me from the things my hearing privilege hides from me).

Sometimes… sometimes I am a necessary evil (mental health treatment should not be interpreted–it should only happen directly in the language of the person needing therapy-oh and education as well. But this is not the world in which we live).

I am not the savior of the Deaf Community. I’m the hired help.

I must always remind myself that the Deaf Community was resisting Audism before I got here and will still be fighting it long after I’m gone.

I am not needed. What is needed is the work I do.  The work I do is needed and always appreciated, but sometimes the appreciation is… grudging; and that is fine. The Deaf Community does not need to love me AND THAT IS FINE.  I don’t have any say about how the Deaf Community should or should not feel about anything.  I can only make observations on what I see and how I feel, but I have no power to dictate how anyone else SHOULD feel.

There is a level of ambivalence that always seems to exist between me and the community I love and serve. I exist in world where my work is greeted with appreciation and frustration at the same time. It is entirely possible to hold two varied feelings about the same thing with no contradiction. In other words you can feel conflicted without it being a conflict.

Why? Well. I think of it this way. Imagine that, in order to breathe, you must employ the services of a person who touches the end of your nose-a certified nose toucher.

Now, it may not be that you can’t breathe, but in order to breathe effectively, and specifically at times of stress or when breathing effectively is vital, the services of a professional, certified “nose toucher” is needed (can’t do it for yourself, oh and you have horrible memories of the education system trying to teach you to touch your nose with your elbow, and everyone seems to have a suggestion of installing dubious microchips in your nose, but I digress).

So how would you feel toward the “nose toucher?” You would of course appreciate the “nose toucher” each and every time you took a clear and effective breath. But, you would also resent the fact that you had to depend on this other person for something so basic as breathing, that the world as it is forces this reality.

You would surely be angry each time someone talked to the “nose toucher” instead of you, as if you were unable to think instead of breathe.

Out of necessity you spend time with your “nose toucher,” and so you may develop “a relationship,”  sometimes beyond the realm of “nose touching,” maybe even a friendship.  But, that can lead to problems of its own. A blurry line between friend and professional can be dangerous.

Of course sometimes you will be assigned a “nose toucher” that you just do not like.  That’s a whole new level of frustration.

In the end no matter how much you appreciate the work of the professional, certified, “nose toucher” and even despite perhaps liking some of the “nose touchers,” they are people you MUST be with, not people you choose to be with. Every time they do their job you are grateful for it and also reminded of the fact that you are dependent on them. Appreciation and frustration. Sometimes you just want to go into the bathroom all alone and just choke. Sometimes you would rather just choke.

This is the way I imagine it, but I may be way off. Even if I am exactly accurate in my observations, people who are Deaf have every right to this feeling of ambivalence and it does not diminish the importance of what I do or my love of doing it. For me, recognizing it just keeps my head in the right place so I can do it my job effectively.

Who am I in relation to the Deaf Community? I am as helpful as I can be, as often as I can be. Nothing more nothing less.