Information and Guidance on the
Americans with Disabilities Act

Winter 2002
Volume 6, Number 2

This Issue Highlights EMPLOYMENT

What's Inside?

Feature Stories

• Disability-Based Harassment On The Job Is Discrimination
• Supreme Court Decides Two Cases, Agrees to Hear a Third

Project Director's Report
DOJ Update
Access Board News
Employment Update
Regional News
Publications
Frequently Asked Questions
Great Web Sites
Events and Announcements

FEATURE STORIES

Disability-Based Harassment On The Job Is Discrimination

For five years, Philip Lanni, disabled by dyslexia and other neurological impairments, worked as a radio dispatcher for the New Jersey Department of Environmental Protection. Consistently, the rangers Mr. Lanni sent to their jobs made him a target of pranks and ridicule, according to a lawsuit he won against the department in 1999. Rangers highlighted spelling mistakes in his logbook and tried to blame him for errors that were not his fault. Eventually, the harassment escalated. One ranger brandished a gun at him, and another sprayed his face with Mace. When he complained, Mr. Lanni was told he worked in a "locker room atmosphere" and should not be "so sensitive."

Mr. Lanni is in the vanguard of an issue that has emerged with full force only recently: the harassment of disabled employees at work. Federal courts and juries are starting to treat it just as seriously as traditional cases of sexual or racial harassment. However, many companies are still slow to respond to the challenge, according to lawyers involved with the issue.

"There has been a great deal more time spent educating people on harassment on the basis of sex and race," said Margaret Hart Edwards, a lawyer with Littler Mendelson in San Francisco who advises corporations.

According to the complaints - some 2,400 are now filed annually with the Equal Employment Opportunity Commission (EEOC) - many disabled employees say they are constantly berated by co-workers and managers who accuse them of faking their injuries. Others say colleagues gang up on them as they would in the schoolyard. Still others say they are shunned by managers, who try to force them to quit. Disability-based harassment is now the fourth most frequent claim behind racial harassment, sexual harassment, and claims for harassment based on national origin.

Many employees with disabilities facing harassment do not sue for fear of losing their jobs. They may depend on their employer for health insurance or worry about their ability to find another position. While that makes it harder to show a repeated pattern of discrimination and harassment, several lawsuits have recently overcome these hurdles. Mr. Lanni won a six-figure jury award for disability-based harassment. Two cases that were appealed in federal courts earlier this year were affirmed. Those decisions are the first instances since the ADA went into effect that appellate courts have explicitly recognized this kind of harassment as a form of discrimination, just as other harassment is viewed under the 1964 civil rights act.

Harassment of people with disabilities takes different forms, but it can sometimes be a matter of sheer cruelty. The EEOC recently brought a lawsuit against the Olive Garden, a chain of Italian restaurants, on behalf of a former employee, Jody Terrio, who is mentally retarded. "Examples of the physical abuse," the commission claimed in its suit, "include putting Terrio in headlocks and other physically painful wrestling positions, pulling down Terrio's pants in front of co-workers, and hiding or riding around on Terrio's bicycle because they knew it would upset Terrio.

Sometimes the discovery of a condition can ignite an outbreak of hostility. Sandra Flowers worked as a medical assistant at a doctors' office in Baton Rouge for six years. As soon as her office manager discovered that Ms. Flowers was infected with HIV, "her whole attitude and demeanor changed," Ms. Flowers said. The office manager told colleagues not to touch the food Ms. Flowers brought to an office gathering. She repeatedly cleaned Ms. Flower's telephone with rubbing alcohol. In a single week, according to the lawsuit Ms. Flowers brought against Southern Regional Physician Services, she was forced to take four random drug tests. After Ms. Flowers was accused of mistreating patients, she was fired.

Many people bringing complaints have disabilities that carry considerable stigma, like mental illness. Others confront questions about whether they are truly disabled, forty percent of complaints involve psychiatric disabilities or back injuries, according to federal statistics. Someone who has a psychiatric disability can become vulnerable to the hostilities of co-workers. Eric Stewart worked for Bally Total Fitness when he suffered a breakdown and was diagnosed with bipolar illness. When Mr. Stewart returned to work, his colleagues called him "psycho," "wild man" and "freak," according to a lawsuit he filed against Bally. He was eventually fired. A federal court in Philadelphia ruled last year that the case could proceed to trial.

In some cases, supervisors are frustrated at having employees who are restricted from performing all aspects of their jobs. Robert Fox injured his back, limiting him to light-duty work at a General Motors plant in Martinsburg, WV. A supervisor there routinely referred to disabled employees as "911 hospital people," according to Mr. Fox's lawsuit. He said he was frequently asked to do work that could further injure his back. When he refused, one manager asked him how he was supposed to take someone "with these restrictions." A jury awarded Mr. Fox $200,000 in damages. GM has paid Mr. Fox, who still works for the company, according to a spokesman.

As disabled employees gain greater access to the ordinary workplace, they face many of the same obstacles experienced by other members of a minority. Many consultants recommend that companies broaden their diversity efforts to include people with disabilities explicitly. Advocates say employers' efforts to make the workplace more hospitable are more important than their attempts not to run afoul of the ADA. "The spirit of the law," said Matthew Sapolin, of the Queens Independent Living Center, "is much better than the letter of the law."

(Source: "Employers Increasingly Face Disability-Based Bias Cases," Reed Abelson, The New York Times, November 20, 2001.)

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Supreme Court Decides Two Cases, Agrees to Hear a Third

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

On January 8, 2002, the Supreme Court issued a unanimous decision against Ella Williams in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The case addressed who is protected under the ADA. The decision can be found at: http://supct.law.cornell.edu/supct/html/00-1089.ZS.html

The case was brought by Ella Williams, an assembly line worker for a Toyota manufacturing plant in Kentucky. Ms. Williams developed bilateral carpal tunnel syndrome in her wrists and bilateral tendonitis in her neck, shoulders and arms as a result of gripping pneumatic tools to perform her job. She could no longer perform certain functions of her job. As an accommodation, she was assigned to perform two simpler jobs. After several years, Toyota began requiring her to perform other tasks as well, which she was unable to do because of her condition. She requested that, as an accommodation, her job be modified to include only the tasks she was previously performing. Toyota denied this request.

Initially, a district court had found that Williams was not a person with a disability and granted summary judgment for Toyota. The court said that Ms. Williams was neither substantially limited in performing manual tasks nor substantially limited in working. The Sixth Circuit Court of Appeals reversed the district court? decision, holding that Ms. Williams presented enough evidence about her substantial limitations in manual tasks to avoid dismissal. The evidence supported her claim, the appellate court found that, due to her inability to perform repetitive motions and restrictions on her lifting, she was substantially limited in performing a class of assembly line jobs and other jobs. She was also substantially limited in performing other manual tasks outside of the workplace. Toyota asked the Supreme Court to reverse the Sixth Circuit decision, arguing that the Sixth Circuit created an "end run" around the difficult burden of showing that Ms. Williams is substantially limited in working.

The Supreme Court held that the Sixth Circuit had applied the wrong standard for determining whether the plaintiff was substantially limited in performing manual tasks and remanded the case for consideration under the correct standards. The Sixth Circuit erroneously focused on tasks related only to work, the high court ruled, saying that the correct test is that an individual must have an impairment that prevents or restricts the individual from doing activities that are of central importance to most people's daily lives. Work-related activities may be considered but may be of limited relevance because they generally will not be the sort of activities that affect most people's daily lives.

EEOC v. Waffle House, Inc.

On January 15, 2002, the Supreme Court ruled that a worker's agreement to arbitrate employment-related disputes with an employer does not prevent a federal agency from obtaining relief for discrimination against the employee. The high court, by a 6-3 vote, sided with the Equal Employment Opportunity Commission (EEOC), which argued it still should be allowed to obtain victim-specific relief, including back pay, reinstatement and damages. The justices, in an opinion written by Justice John Paul Stevens, reversed an appeals court ruling that the EEOC could not seek relief on behalf of workers covered by arbitration agreements.

The case involved Eric Baker, a cook at Waffle House restaurant in South Carolina. Waffle House terminated Baker in 1994 after he had a seizure on the job, claiming it was for his "benefit and safety." Baker had signed a Waffle House employment application, which included the arbitration provision. Baker filed a complaint with the EEOC alleging his discharge violated the ADA. He did not submit a claim for arbitration.

The EEOC then brought its own enforcement action, alleging that Waffle House had engaged in unlawful employment practices on the basis of disability and seeking appropriate relief for Baker. The EEOC asked on Baker's behalf for back pay, reinstatement, and compensatory and punitive damages. It further asked Waffle House to change its policies regarding disabled employees. Waffle House argued the case should be decided in arbitration, not in the courts. Because of the arbitration agreement Waffle House required of its job applicants, the EEOC could not seek damages specific to Baker's case, an appeals court ruled.

Justice Stevens said an agreement between an employer and employee to arbitrate employment-related disputes does not bar the EEOC from pursuing relief in an enforcement action under the disabilities law. The decision can be found at: http://supct.law.cornell.edu/supct/html/99-1823.ZO.html

Chevron v. Echazabal

The Supreme Court has invited the Office of the Solicitor General to file a brief in an employment discrimination dispute where the issue is whether a worker should be disqualified from performing a job where he presents a safety threat to himself but not to others. While the EEOC has interpreted the concept of "direct threat" to mean that individuals who pose a danger to themselves are not qualified, there is a split in the US Circuit Court of Appeals with regard to this issue. The high court will hear the case of a Mario Echazabal who was denied an oil refinery job because of a disability that company doctors said could harm him at the worksite. The case is Chevron v. Echazabal, 00-1406.

Mr. Echazabal sued Chevron Corporation under the ADA, claiming he should have gotten the job despite a chronic case of Hepatitis C. Doctors who examined Echazabal said exposure to chemicals at the refinery would speed the deterioration of Echazabal's liver, and that a large exposure from a plant fire or other emergency could kill him. It should be noted that Echazabal worked for many years, without health incidents, at the refinery as an employee of a Chevron contractor. Issues arose only after Echazabal applied directly with Chevron for an available position similar to the one he had worked with the contractor.

Chevron withdrew a 1995 job offer to Echazabal for work at the company's El Segundo, CA, refinery. Echazabal sued in 1997, but a federal judge threw out his case. He appealed, and the 9th US Circuit Court of Appeals ruled that Chevron could not claim that the threat posed to Echazabal's health was enough to disqualify him. Chevron then appealed to the Supreme Court, arguing that Echazabal's medical condition puts him outside the protection of the ADA.

(Sources: "Supreme Court Decides ADA Case on Definition of Disability," Bazelon Center for Mental Health Law, http://www.bazelon.org/williams.html; "Supreme Court Allows EEOC Enforcement in Bias Cases," Reuters, January 15, 2002; and "Court Takes Rejected Oil Worker Case," The Associated Press, October 29, 2001.)

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PROJECT DIRECTOR'S REPORT

Is The Sleeping Giant Waking?

People with disabilities are no longer a minority of society. The number of Americans with disabilities is still often estimated to be within a range between 45 million to 65 million. However, this fixed range depends on a definition of disability which is based on a fixed ratio of persons with disabilities to those without disabilities (Zola, 1994). This range assumes that the condition of disability is one that is measurable and doesn? change. The counting of people with disabilities also assumes that there is a sub-set of the population, a statistical minority, an ?s" and a ?hem", and upholds a myth that ?t will never happen to me". The truth is that most people acquire their disability throughout their lifetime and fewer people are actually born with disabilities.

Statistically, disability crosses race, gender, class and ethnicity. The empirical reality is that everyone, unless they experience a sudden death, will acquire one or more disabilities in their life time (Zola, 1994). Recently, President Bush echoed this notion in his opening statement of the Freedom Initiative Act.

"Disability is not the experience of a minority of Americans. Rather, it is an experience that will touch most Americans at some point during their lives." (2001)

Eight years ago, Dr. Zola stated that the experience of living with a disability by the majority of Americans is the growing reality upon which future conceptualization, measurement and policy must be based. This growing majority is truly the sleeping giant in our midst. Bush's Freedom Initiative is a proposal to ensure that all Americans with disabilities will have the tools to use their skills and make more of their own choices. The Freedom Initiative increases investment in technologies, education and access to the workforce and to community life for Americans with disabilities. Today, as we enter the year 2002, is the sleeping giant waking? Dreaming? Or walking in his sleep?

September 11 and its Aftermath

On 9/11, we witnessed both the best in humans and the worst in humans. On the employment front for people with disabilities we continue to witness the best and the worst behaviors of our species. In the aftermath of 9/11, we?e heard awe-inspiring stories of fellow employees helping people with disabilities to safety. As a result, some issues facing workers with disabilities have appeared in the mainstream news. One such issue is, how do employees with disabilities escape from an office building in an emergency? The mainstreaming of this particular disability issue resulted in changes being made to policies and law. Employers can now legally ask an employee if he or she has a disability that would require help in evacuating a building-a critical life and death issue. Many federal agencies have worked diligently to provide guidelines to help resolve this problem (The US Access Board, FEMA).

In This Issue: Employment

This edition of Access New England Newsletter features the topic of ADA related employment cases. Issues that sound familiar (we?e heard of sexual harassment and racial harassment) but stretch into the harassment of employees with disabilities in the workplace (Lanni v New Jersey Department of Environmental Protection). There are approximately 2,400 disability harassment complaints filed annually with the EEOC. Many people filing complaints have conditions that can? be seen-learning disabilities and back problems. The truth is that for the vast majority of people with disabilities, hidden disabilities are the most common disabilities along with asthma, diabetes, and mental health issues (National Health Interview Survey, 1992).

A Ticket to More and Better Opportunities?

For many people with disabilities, crucial issues remain-such as how to get into the building. Access to education and to subsequent employment opportunities are necessary. With the advent of the Social Security Administration? new Ticket To Work program and the Department Of Labor? New Office on Disability Policy Employment Grants, the government is taking steps to increase equal opportunity for education and employment opportunities for people with disabilities. As the sleeping giant is prodded into waking, future workers and their employers will bring ADA issues to the table that we have not even dreamed of-and render outcomes that will sometimes be nightmarish and sometimes provide a vision of hope.

As medical science and technology extend and expand human life activities throughout the lifespan, more and more of us will be living, working and recreating with disabilities. Is the sleeping giant waking? Dreaming? All of us must work hard to fully waken the sleeping giant to the possibilities that "dreams and lives are made of."

Wholeheartedly,
 
Oce Harrison
Project Director

Bibliography

Bush, G.W. (2001) New Freedom Initiative Act.
http://www.dol.gov/_sec/programs/ptfead/freedom_init.htm

Kaye, S. H. (1995) Disability watch: The Status of People with Disabilities in the US. A Report by Disability Rights Advocates. Published by the University of California, San Francisco.

Zola, I. (1994) The Sleeping Giant in Our Midst: Redefining "Persons with disabilities." In Gostin and Beyer (Eds.) Implementing the Americans with Disabilities Act: Rights and responsibilities of all Americans. Baltimore: Paul Brooks.

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DOJ UPDATE

Arizona State Compensation Fund Agrees To Settle ADA Case

The Department of Justice announced that the Arizona State Compensation Fund has agreed to pay $150,000 in damages and take steps to ensure compliance with the employment provisions of the ADA. The settlement resolves a disability discrimination charge filed by a former employee of the Arizona State Compensation Fund who alleged that the Fund unlawfully terminated her after failing to grant her the reasonable accommodation of additional leave without pay, which she needed in order to stabilize her disability of severe depression.

"Granting unpaid leave to an employee with a disability -- so that he or she can eventually return to work -- is, in many instances, a reasonable accommodation under the ADA," said Ralph F. Boyd, Jr., Assistant Attorney General for Civil Rights.

The former employee took three months of unpaid leave under the Family and Medical Leave Act (FMLA), to recover from a severe bout of depression. She stayed in communication with her supervisor while on leave and toward the end of that leave, advised her supervisor that she planned to return to work soon and was working with her doctor.

The Department of Justice alleges that, shortly after the expiration of her FMLA leave, the Fund terminated the employee instead of granting her a brief additional period of unpaid leave as a reasonable accommodation. The employee's termination came just one day after she submitted to her employer a release from her physician clearing her to return to work the following week.

Under the settlement agreement between the parties, the State Fund will:

• not discriminate in violation of the ADA against a qualified individual with a disability, including an individual with a mental impairment such as depression;
• not automatically terminate a "Qualified individual with a disability" at the expiration of leave taken under the Family Medical Leave Act;
• consider, on a case by case basis, whether it may reasonably accommodate a qualified individual with a disability by providing leave without pay or another form of reasonable accommodation; and
• continue to train supervisory employees about the ADA.

Baltimore City Schools Agree To Settle Disability Rights Lawsuit

The Department of Justice has announced that the Baltimore City Public School System has agreed to pay $55,000 as compensation to a teacher with a vision impairment after it revoked an employment offer. The school system has also agreed to adopt policies to ensure compliance with the employment provisions of the ADA.

The consent decree resolves a disability discrimination charge filed by an elementary school teacher who uses a service animal because of a severe vision impairment. She alleged that the school system offered her a teaching position after two interviews, in which she had used a cane. After she mentioned that she would soon be picking up her new service animal, the school principal then withdrew the offer because she would not allow a dog in the building. The charging party later found employment as a teacher with another school system.

Under the agreement, the school system will ensure that all personnel who participate in employment decisions are trained in the requirements of the ADA. It will also designate an employee to serve as an ADA coordinator for employment matters and to serve as a liaison with people with disabilities. The school system will also post notices about the ADA in every school or other location in which its employees work.

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ACCESS BOARD NEWS

Resources on Emergency Evacuation and Disaster Preparedness

The tragic events of this September have brought into focus the importance of the needs of all persons, including those with disabilities, in preparing for, and responding to, disasters and emergencies. Accessibility information on emergency egress, evacuation planning, and disaster preparedness is available from a variety of sources.

Design Requirements for Accessible Egress

The Access Board's ADA Accessibility Guidelines (ADAAG), as well as model building codes, life safety codes, and state access codes contain requirements for accessible egress and emergency alarms. ADAAG specifies the required number of accessible means of egress and provides technical criteria. Requirements for accessible routes, such as width and the treatment of elevation changes, are applied to egress routes to ensure access for persons with disabilities. ADAAG also addresses emergency warning systems and requires that they include visual appliances to alert people who are deaf or hard of hearing.

Multi-story buildings pose a particular challenge to accessible means of egress since elevators are typically taken out of service in emergencies for safety purposes. For buildings constructed since January 1992, ADAAG includes requirements for fire-rated spaces where persons unable to use stairs can await evacuation assistance. Known as "areas of rescue assistance" or "areas of refuge," these spaces must meet specifications for fire resistance and smoke protection. They are often incorporated into the design of fire stair landings. A two-way communication device is required so that users can place a call for evacuation assistance. ADAAG requires areas of rescue assistance in new buildings only and provides an exception for those equipped with sprinkler systems that have built-in signals used to monitor the system's features.

Evacuation elevators, which are now recognized by model buildings codes, also offer a solution. Unlike standard elevators, evacuation elevators are designed to remain functional in emergencies. Evacuation elevators feature back-up power supply and pressurization and ventilation systems to prevent smoke build-up. This type of elevator was not generally recognized when ADAAG was first developed, but the Board has included requirements for them in its proposal to update ADAAG.

Resources on Evacuation Planning and Disaster Preparedness

Evacuation planning is a critical component of life safety, especially for people with disabilities. Planning should include a needs assessment so that individual accommodations and assistive products can be incorporated into an evacuation plan. Various products are available that are designed to accommodate persons with disabilities in emergencies. Mobility aids, such as evacuation chairs, can be used to transport people unable to use stairs. Evacuation chairs can be a key element of an evacuation plan, particularly in existing buildings that may not have areas of rescue assistance or evacuation elevators. Other products, such as visual alarm devices, are also available to accommodate people with disabilities, including in existing facilities.

Key sources of information on evacuation planning include the US Fire Administration and National Fire Protection Association. Materials are also available on-line from ican.com and the Job Accommodation Network. Information on evacuation products can be obtained from Abledata, a federally subsidized organization that maintains a database of information on more than 27,000 assistive devices and technologies. The American Red Cross and the Federal Emergency Management Agency (FEMA) have developed materials on disaster preparedness for people with disabilities. The National Organization on Disability's website provides links to resources and guides on this topic. Links to the following resources and specific materials are provided at http://www.access-board.gov/evac.htm.

(Sources: Access Currents, Volume 7, No. 5 September/October 2001.)

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EMPLOYMENT UPDATE

Comprehensive Settlement Reached In Wal-Mart Lawsuit

The EEOC announced a $6.8 million consent decree with retail giant Wal-Mart Stores. The decree resolves the EEOC's lawsuit which alleged that Wal-Mart's pre-employment questionnaire, "Matrix of Essential Job Functions," violated the ADA. Parties to the decree also have agreed to settle 12 other ADA lawsuits filed against Wal-Mart in 11 states.

Between 1994 and 1998, Wal-Mart sought disability-related information from applicants through their "Matrix" questionnaire before making conditional offers of employment, a violation of the ADA. As part of the decree, Wal-Mart has abolished the pre-employment questionnaire and will institute an array of new or revised policies. Also under the decree, Wal-Mart will provide priority consideration for hiring at its distribution centers to applicants who were qualified for employment but rejected based on medical or disability related information requested during the now defunct interview process. A toll-free number (866) 513-8206 has been established for applicants at Wal-Mart distribution centers between 1994 and 1998 who may have been affected by the pre-employment inquiries.

The decree describes two funds to compensate alleged victims of discrimination: a $3.8 million fund for identified charging parties and aggrieved individuals in this and 12 other EEOC lawsuits, and a $3 million fund to provide damages for individuals yet to be identified who were allegedly harmed by the pre-employment practice and other ADA violations. Wal-Mart, with 1.14 million workers at nearly 4,000 facilities worldwide, is America's largest retailer.

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NEWS FROM THE CENTER

One-Stop Incentive Grants Awarded

The Department of Labor (DOL) has provided grant money to the New England ADA & Accessible IT Center to provide training, technical assistance, and public awareness to the One-Stop Career Resource Centers in New England. The purpose of the grant is to increase the capacity of One-Stops and Workforce Development Systems to serve customers with disabilities. The Center, in turn, offered this grant money in the form of six Incentive Grants in the amount of $2,800 to our state affiliates, independent living centers and One-Stops to bid on.

The awardees are as follows:

• Independence Unlimited, an independent living center in Hartford, CT;
• Alpha One, a statewide independent living center in South Portland, ME;
• Stavros CIL, an independent living center in Amherst, MA;
• Workforce Opportunity Council, Inc. of NH;
• Rhode Island Governor? Commission on Disabilities; and
• Vermont Department of Employment and Training.

Grant recipients will be engaging in a diverse range of activities ensuring that the services of the region? One-Stops will be accessible to people with disabilities. Some of the proposed activities include:

• Surveying One-Stops for physical, programmatic and information technology access;
• Outreach efforts and presentations to state and local Workforce Investment Boards; and
• Providing training to One-Stop staff on the following topics:
  The Americans with Disabilities Act
  • Disability etiquette
  • Working with customers with non-apparent disabilities
  • Guidelines for interviewing and accommodating individuals with physical and mental disabilities.
  • Guiding principles on disclosing a disability to an employer
  • Employer concerns about hiring people with disabilities
  • What is accessible IT (information technology)?

ADA Center To Exhibit At Upcoming Events

The New England ADA & Accessible IT Center will be exhibiting at the following events. Look for our booth and staff on:

• Sunday-Tuesday, April 7-9 - Northeast Foodservice and Lodging Expo - Bayside Expo Center - Boston, MA

• Wednesday-Thursday, April 17-18 - New England Building and Facilities Maintenance Show - Bayside Expo Center - Boston, MA

Audio Conferences Co-Sponsored By The ADA Center

The following list of audio conferences are a collaborative effort among eight regional ADA Centers.

• March 19 - Playgrounds: Application of ADA

• April 16 - Service Animals: Policy & Procedure

• May 21 - Application of the ADA to Temporary Employment

June 18 - Design Issues in Children's Environments

• July 16 - ADA Status Report

• August 20 - Public Rights-of-Way

• September 17 - Accommodating Students with Psychiatric Disabilities in the Classroom

All audio sessions run from 2-3:00 pm EST. Cost per session is $60 or four sessions for $200. Audio conference descriptions are available at http://www.adagreatlakes.org/training/schedule.htm

Contact: Kathy Gips at kgips@AdaptiveEnvironments.org or (800) 949-4232 (v/tty).

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REGIONAL NEWS

Connecticut Coalition Facilitates Access To Arts And Healthcare

The ADA Coalition of Connecticut, Inc. recently completed Artful Access, a project funded through The New England ADA Center. The Coalition submitted 24 entries to Access Expressed, the VSA Massachusetts guide to accessible cultural facilities which is being expanded to a regional directory. This regional collaboration between the New England ADA Center and VSA supported 2001 Incentive Grant awardees to undertake assessments/evaluations of cultural facilities. The Coalition was pleased to train and work with Ingrid Arrojo of VSA Connecticut, who assumed a leadership role in the interviewing component of the evaluations. During the course of the project, the Coalition established a collaboration with the Connecticut Commission on the Arts, which is funding the Coalition to conduct a series of evaluations in 2002.

In 2001, the Coalition received mid-year funding from the Connecticut Council on Developmental Disabilities (DD Council) for research on: 1) the constitutional issues related to recent lower and Supreme court decisions on the ADA and 2) legislative responses across the country to these decisions. The latter is a 300 page compendium on different state strategies. The two papers, written by, respectively, Connecticut Attorney Melissa Marshall and Massachusetts consultant Chris Palames, provide indispensable information that will guide the Coalition in implementing a 2002 DD Council grant that funds an effort to enhance the Connecticut state human rights statutes for people with disabilities.

The Coalition also just completed a contract project for Qualidigm, Inc., the holder of a 2001 grant from the Susan G. Komen Breast Cancer Foundation to increase access to mammography for women with disabilities. Under the contract, the Coalition provided ADA training to radiology technicians and conducted surveys of four radiology facilities. The grant has been renewed for 2002 and the Coalition will again provide technical assistance.

RI Commission Promotes Work Opportunities

The Rhode Island Governor's Commission on Disabilities assisted in the establishment of each of the netWORKri (One-Stop) Centers. Working with the Office of Rehabilitation Services and an advisory committee of consumers, the Commission:

• Surveyed each of the 7 One-Stops including their resources, materials, physical, programmatic and information technology (IT) and assisted in design/purchasing specifications to ensure accessibility; and

• Purchased TTYs for the One-Stops and renovated the facilities to remove any barriers.

The Commission will be providing marketing services for the One-Stops targeted at people with disabilities and their families as part of its "Promoting Work" grant from the Department of Labor to the RI Human Resource Investment Council. The Commission will also be providing training to the One-Stop staff.

It is the Commission's intent to integrate outreach efforts/presentations/trainings to State and Local Workforce Investment Boards into existing training/awareness activities. Members of the Workforce Investment Boards and the State Economic Policy Council need a greater understanding of their unique role in increasing the employment rate for workers with disabilities.

Presentations will be scheduled regarding:

• The provisions of WIA/504/ADA and the responsibilities of WIB Members to ensure that individuals with disabilities become a productive part of the workforce;

• Services available at the One-Stops and from other governmental and community based organizations to assist WIB clients who have disabilities; and

• The potential of people with disabilities to be employed in IT occupations.

NH Class Action Lawsuit Filed To Protect Individuals With Developmental Disabilities

On January 16, 2002, the Disabilities Rights Center filed a class action lawsuit in Hillsborough County Superior Court against the State of New Hampshire. Harris v. Shaheen is a class action brought on behalf of hundreds of individuals with developmental disabilities who are eligible to receive Medicaid and developmental services under the Services for Developmentally Disabled Act, but who are not receiving needed services for which they are eligible. Defendants named in the suit are NH Governor Jeanne Shaheen; Donald Shumway, Commissioner of the NH Department of Health and Human Services; and Susan Fox, Director of the NH Division of Developmental Services.

Because the state has failed to develop a comprehensive array of community-based services and programs that meet their needs, the plaintiffs, and all those similarly situated, have been left with no or inadequate services. Plaintiffs have been either placed on waiting lists for services to which they are entitled or have been left to languish in inappropriate and, sometimes, overly restrictive placements while designated area agencies make piece-meal attempts to develop more appropriate programs and services for them.

The plaintiffs and the other class members are unable to care for themselves and require a range of services and programs, from rehabilitative and vocational services that will enable them to become more independent and productive, to residential programs and services that will assist them with the most basic aspects of daily life. As the plaintiffs languish on the waiting lists or in inappropriate programs, they suffer physical and emotional setbacks and fail to reach their potential.

The suit alleges that the states' failure to develop a comprehensive array of services and programs and to provide them with "reasonable promptness" violates plaintiffs' rights under New Hampshire? Services for Developmentally Disabled Act, the federal Medicaid Act and the Americans with Disabilities Act, as well as their federal and state constitutional rights to due process and equal protection. Plaintiffs seek an injunction from the court that would require the state to promptly provide adequate supports and services to 1) individuals who are on the state? waiting list; 2) individuals who are eligible for services but are not on the state? waiting list; and 3) individuals who currently have inadequate services.

For further information contact Plaintiffs' Counsel:
Ronald K. Lospennato, Disabilities Rights Center, Inc.,
Concord, NH; (603) 228-0432 or
Erica Bodwell, Backus, Meyer, Solomon, Rood & Branch,
Manchester, NH; (603) 668-7272

Social Security Reforms Reduce Barriers To Employment In Maine

Alpha One, an Independent Living Center, has established ABILITY First, an initiative delivered in cooperation with the Coastal Career Centers. This program is funded by the Department of Labor. ABILITY First offers key services to Maine? citizens with disabilities as they return to or enter the workforce. The services offered include: benefits counseling, computer courses for the deaf or hearing impaired and a technology training fund. Benefits Specialists provide information and analysis of an individual? Social Security and other benefits and gives information on the effects of earnings on these supports. Computer courses are offered for the deaf and hearing impaired in ASL. The Technology Fund provides monies for training in the technology field.

On December 17, 1999 the Ticket to Work and Work Incentives Improvement Act became law. The four basic purposes of this legislation are: 1) to provide health care and job placement services to persons with disabilities, 2) encourage states to develop an option allowing people with disabilities to purchase Medicaid coverage, 3) provide individuals extended Medicare coverage while working and 4) establishment of the Ticket to Work and Self-Sufficiency Program.

The Ticket to Work and Self-Sufficiency Program has as its goals to expand the choices of service providers for individuals with disabilities returning to work. The final rules for this program were published in the Federal Register in December of 2001. Included in this program are a number of work incentives, which allow people with disabilities increased medical coverage, work related expenses and higher earning limits before benefits are terminated. For more information log on to the Alpha One website at http://www.alphaonenow.com

Massachusetts Town Enters Into Settlement With DOJ

As a part of its ongoing Project Civic Access, the Civil Rights Section of the Department of Justice has entered into a voluntary settlement with the town of Brookline, MA to increase access for people with disabilities to facilities, programs, and services. The settlement requires Brookline to remove physical and communications barriers throughout the town. Among the facilities where physical changes must be made are: Larz Anderson Warming Hut/Skating Rink, Brookline High School, The Health Center, Coolidge Corner Library, Putterham Golf Course Club House, Soule Recreation Center, Putterham Library, The Swimming Pool, The Physical Education Building, Brookline Town Hall, Lynch Playground, The Public Safety Building, The Main Library, and Devotion House.

Brookline will also address its responsibility to provide effective communication with persons who are hearing or speech impaired in the following ways: Town meetings are to be held in the Brookline High School Auditorium, which is equipped with an assistive listening system; Board of Selectmen meeting minutes are available in alternate formats; and Brookline's ADA Coordinator will obtain sign language interpreters for town programs and will arrange for the provision of materials in alternate formats. Brookline's Police Department will also be equipped with a TTY system for emergency communications with persons who are deaf, hard of hearing, or speech impaired. The town agrees to continue to ensure that incoming emergency TTY calls are answered as quickly as other calls received and that employees are trained and practiced in using a TTY to make and receive emergency calls.

This settlement agreement was reached in November 2001. A copy of the agreement can be obtained at http://www.usdoj.gov/crt/ada/brklinem.htm.

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PUBLICATIONS

New Publications Available from our Center

Employment Documents

• Title I Technical Assistance Manual -- EEOC manual explains the Title I regulations, including questions, answers and practical examples. 260 pp.
• Employer's Responsibility Booklet -- EEOC booklet. 17 pp.
• Your Employment Rights as an Individual with a Disability -- EEOC booklet. 11 pp.
• EEOC Poster -- Summarizes federal laws prohibiting employment discrimination. 1 pp.
• Title I Employment Regulations -- 32 pp.
• How to File a Title I Complaint -- 4 pp.
• EEOC Guidance on Pre-employment Disability-Related Inquiries and Medical Exams -- Q & A on what questions employers may ask applicants and when medical exams may be required. 26 pp.
• EEOC Guidance on Disability-Related Inquiries and Medical Examinations of Employees -- Explains when it is permissible for employers to make disability-related inquiries or require medical examinations of employees. 26 pp.
• EEOC Guidance on Definition of Disability -- 60 pp.
• EEOC: "Disability" and "Qualified" After Supreme Court Decisions -- Instructions for determining if someone has a disability and/or is qualified in light of Supreme Court? 1999 decisions on mitigating measures. 17 pp. $2
• EEOC Guidance on Workers' Comp. & ADA -- Question and answer format on occupational injuries, return to work, direct threat, medical exams and light duty. 25 pp.
• EEOC Guidance on Psychiatric Disabilities -- 41 pp.
• The Family and Medical Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964 -- Answers to questions that have arisen among the three laws. 11 pp.
• EEOC Guidance Reasonable Accommodations -- Addresses what constitutes a request for reasonable accommodation, types of reasonable accommodations, employers' right to documentation of disability and undue hardship. 77 pp.
• EEOC Guidance on Contingent Workers and Temp Agencies -- ADA issues for temporary staffing firms and their clients. 20 pp., $2
• EEOC: Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures -- Confidentiality issues, what can be asked, emergency procedures. 2 pp.
• ADA and Working - ARC Brochure -- An easy-to-read guide on employment discrimination for people with mental retardation. 12 pp., $5
• The Road to Opportunity - ARC Brochure -- Guide on employing people with mental retardation. 11 pp., $4.50
• Accommodation Ideas for Persons with Psychiatric Disabilities -- 9 pp., $1
• The ADA and Hiring Police Officers -- DOJ responds to the employment concerns commonly raised by police departments. 5 pp.
• A Guide for People with Disabilities Seeking Employment -- Joint publication of DoJ, EEOC and the Social Security Administration. 2 pp.
• Mental Health Issues in the Workplace: How the ADA Protects You Against Employment Discrimination -- Addresses disclosure, reasonable accommodations, safety concerns, who is protected. 44 pp. $2
• Emergency Procedures for Employees with Disabilities -- Checklist, 6 pp. $1
• Cornell's Implementing the ADA Series - Reasonable Accommodations 4 pp. each
  • Alcohol and Drug Abuse $1
  • Allergic $1
  • Blind or Visually Impaired $1
  • Brain Injury $1
  • Cognitive Disabilities $1
  • Deaf or Hard of Hearing $1
  • Diabetes $1
  • HIV Positive $1
  • Learning Disabilities/ADHD $1
  • Musculo-skeletal Disorders $1
  • Poor Indoor Air Quality $1
  • Psychiatric Disabilities $1
• Cornell'S Implementing the ADA Series 4 pp. each
  • Reasonable Accommodation $1
  • Injured Workers $1
• Accommodating Individuals with Asthma, Allergies, Multiple Chemical Sensitivity, Fragrance or Tobacco Smoke Sensitivity -- Accommodation possibilities for the above-mentioned sensitivities as well as latex allergies. 12 pp., $1

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FREQUENTLY ASKED QUESTIONS

Employee Medical Information And Emergency Evacuation Procedures

Many employers are developing or re-evaluating emergency procedures to ensure the safe evacuation of all employees. A comprehensive emergency evacuation plan should provide for prompt and effective assistance to individuals whose medical conditions may necessitate it. How do the Americans with Disabilities Act and the Rehabilitation Act affect an employer? ability to achieve this goal.

Specifically, employers have asked whether they may request information to help identify individuals who might need assistance because of a medical condition and whether they can share this information with others in the workplace.

1. May an employer ask employees whether they will require assistance in the event of an evacuation because of a disability or medical condition?

Yes. Some employees may need assistance because of medical conditions that are not visually apparent. Others may have obvious disabilities or medical conditions but may not need assistance. Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.

2. How may an employer identify individuals who may require assistance?

There are three ways that an employer may obtain information:

• After making a job offer, but before employment begins, an employer may ask all individuals whether they will need assistance during an emergency.

• An employer also may periodically survey all of its current employees to determine whether they will require assistance in an emergency, as long as the employer makes it clear that self-identification is voluntary and explains the purpose for requesting the information.

• Finally, whether an employer periodically surveys all employees or not, it may ask employees with known disabilities if they will require assistance in the event of an emergency. An employer should not assume, however, that everyone with an obvious disability will need assistance during an evacuation. For example, many individuals who are blind may prefer to walk down stairs unassisted. People with disabilities are generally in the best position to assess their particular needs.

An employer should inform all individuals who are asked about their need for emergency assistance that the information they provide will be kept confidential and shared only with those who have responsibilities under the emergency evacuation plan.

Yes. An employer may ask individuals who indicate a need for assistance because of a medical condition to describe the type of assistance they think will be needed. One way that this can be done is by giving all employees a memo with an attached form requesting information. The employer also may have a follow-up conversation with an individual when necessary to obtain more detailed information. For example, it would be important for an employer to know whether someone who uses a wheelchair because of mobility limitations is able to walk independently, with or without the use of crutches or a cane, in an emergency situation.

It also would be important for an employer to know if an individual will need any medication, equipment, or device in the event of an emergency. Of course, an employer is entitled only to the information necessary for it to be prepared to provide assistance.

4. Who is allowed to have information about employees needing assistance in an emergency?

The ADA has provisions that require employers to keep medical information about applicants and employees confidential. These provisions, however, include an exception that allows an employer to share medical information with first aid and safety personnel. This exception would allow an employer to share information about the type of assistance an individual needs in the event of an evacuation with medical professionals, emergency coordinators, floor captains, colleagues who have volunteered to act as "buddies," building security officers who need to confirm that everyone has been evacuated, and other non-medical personnel who are responsible for ensuring safe evacuation.

More information on emergency preparedness for employees with disabilities can be found on the President's New Freedom Initiative Disability Direct website http://www.disabilities.gov/category/6/51 and on the Job Accommodation Network's website at http://janweb.icdi.wvu.edu/media/emergency.html.

(Source: "Fact Sheet On Obtaining And Using Employee Medical Information As Part Of Emergency Evacuation Procedures," EEOC, http://www.eeoc.gov/facts/evacuation.html.)

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GREAT WEB SITES

Helpful Employment Web Sites

http://ssa.gov/work
The Social Security website promotes the employment of Social Security beneficiaries with disabilities. Find out all about the Ticket to Work and Work Incentives Improvement Act of 1999 and learn about activities in your state that can assist people with disabilities who want to work.

http://www.yourtickettowork.com
Everything you need to know about the Ticket to Work including the final regulations. The Ticket to Work and Self-Sufficiency Program is the centerpiece of legislation signed by President Clinton under the Ticket to Work and Work Incentives Improvement Act of 1999. This comprehensive national initiative is also designed to assist people with the training and support they need to go to work by increasing their choices. Social Security Administration (SSA) beneficiaries with disabilities can find employment, vocational rehabilitation and other support services from public and private providers. SSA will begin the Program in early 2002 by mailing Tickets to eligible beneficiaries in the following states: Arizona, Colorado, Delaware, Florida, Illinois, Iowa, Massachusetts, New York, Oklahoma, Oregon, South Carolina, Vermont, and Wisconsin. Information also available at (866) 968-7842 (v) or (866) TDD2WORK (tty).

http://www.doleta.gov
The Department of Labor's Employment and Training Administration seeks to build the labor market through the training of the workforce and placement of workers in jobs through employment services. This website is designed to direct adults, youth, dislocated workers, and workforce development professionals to information on these programs and services. Employers will find information on several areas, including tax credits and other hiring incentives, how to find and train employees, assistance with plant closures and downsizing, legislation text, and ETA grants and contracts.

http://usworkforce.org/
USWORKFORCE.ORG is designed to provide answers to questions about the implementation of the Workforce Investment Act. It represents a collaboration between public and private sector groups and individuals to provide access to workforce information and resources and to apply that information toward innovative and effective partnerships and programs.

http://www.eworkforce.org/careerkit/
America's Career Kit, one of the nation's most powerful online career development resources, provides access for people needing job search assistance, career guidance, salary data and training and education resources.

http://www.servicelocator.org
America's Service Locator helps you to find your nearest One-Stop Career Resource Center. America's Service Locator and the Toll-Free Help Line (877) US-2JOBS (v) or (877) 889-5627 (tty) is a partnership between the US Department of Labor, state governments and local agencies to provide a database of service providers via phone or the internet. The database directs customers to a range of services in their area: unemployment benefits, job training, youth programs, seminars, education opportunities, disabled or older worker programs and much more.

http://janweb.icdi.wvu.edu/english/
The Job Accommodation Network (JAN) represents the most comprehensive resource for job accommodations available. JAN's work has greatly enhanced the job opportunities of people with disabilities by providing information on job accommodations since 1984. A free telephone consulting service funded by the President's Committee on Employment of People with Disabilities provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace. Information also available at (800) 526-7234 (v/tty).

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EVENTS/ANNOUNCEMENTS

Community Access Monitor Trainings
ADA and MAAB Regulations
- April 17-18 Bourne, MA
- May 16-17 Andover, MA
- June 6-7 Dedham, MA
Massachusetts Office on Disability
617-727-7440 v/tty or myra.berloff@modi.state.ma.us

Community Access Monitor Trainings
ADA and MAAB Regulations
- April 17-18 Bourne, MA
- May 16-17 Andover, MA
- June 6-7 Dedham, MA
Massachusetts Office on Disability
617-727-7440 v/tty or myra.berloff@modi.state.ma.us

National ADA Conference April 23-26 San Diego, CA
Contact: National Association of ADA Coordinators
800-722-4232 or naadac@aol.com

Save the Date:

The University of New Hampshire's Institute on Disability is pleased to announce an exciting new event at the 10th Annual Northern New England Access Expo: The New England Technology Forum!

Join colleagues and friends from throughout the New England region to network and reconnect, share new assistive technologies and related innovations, ideas, products and services.

Date: September 5, 2002
Location: Center of New Hampshire, Manchester, NH
Sponsored by: UNH-Institute on Disability's Assistive Technology Partnership, Adaptive Environments' New England ADA & Accessible IT Center, Maine CITE, ATECH Services, NETAC (North East Technical Assistance Center), and Granite State Independent Living, Vermont Assistive Technology Project.

Look for the NEXT issue of Access New England highlighting ACCESSIBLE INFORMATION TECHNOLOGY.

Attention Subscribers!
Are you interested in receiving our newsletter via e-mail? Send us a message at adaptive@adaptiveenvironments.org and we'll drop Access New England directly into your e-mail letterbox. Moved recently? Changed your name? No longer interested in receiving our newsletter? Let us know so we can keep our mailing list up-to-date and effective. Call us at 800-949-4232 V/TTY or drop us a line at 374 Congress Street, Suite 301, Boston, MA 02210. Questions about the ADA? Call us at 800-949-4232 V/TTY for answers and guidance.