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…

 

 

 

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”: 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.