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Disability Civil Rights

Margaret JohnsonAdvocacy DirectorDisability Rights CaliforniaCalifornia’s protection and advocacy system

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After this Session You will be able to …. Describe what disability civil rights is Know the main parts of the Americans with

Disabilities Act Analyze a disability civil rights issue Know where to look for more information

about disability civil rights

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The 5 Most Important Disability Civil Rights Topics What is Disability Civil Rights Who is disabled Who has to comply with disability civil

rights laws Disability Civil Rights law violations Enforcing disability civil rights laws

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The 4 Most Important How to Do’s

Identify a disability rights civil rights issue Analyze the issue Decide what steps to take to resolve the

issue & take them Find resources to help

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What is Disability Civil Rights?

What is the definition of civil rights? Examples of Disability Civil Rights Laws

Americans with Disabilities Act (ADA)Federal Fair Housing Amendments ActCalifornia Unruh Civil Rights ActAir Carriers Access ActSection 504 of the Rehabilitation Act

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What is the ADA? A federal civil rights law for people with

disabilities Intended to end discrimination against

people with disabilities Intended to facilitate full participation in

society as a whole by people with disabilities

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Who Disabled Under the ADA?

Someone who: Has a physical or mental impairment that

substantially* limits one or more major life activities, or

Has a record of such an impairment, or Is regarded as having such an impairment

*Not under California law

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What are Examples of“Major Life Activities”? Caring for oneself Walking Performing manual tasks Seeing Hearing Breathing Learning Working

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What Does “Substantially Limits” Mean?Factors considered: Nature and severity of the impairment Duration or expected duration of the impairment

—temporary vs. permanent Permanent or long-term impact, or the expected

permanent or long-term impact resulting from the impairment

With the passage of the ADAAA, no longer need to consider “mitigating measures” although this was never the law in CA

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Hypothetical

Jeff needs glasses to read and do most activities. He loses his glasses while at a locked facility and wants the facility to provide him with a reader so he can read paperwork related to his conservatorship.

Is Jeff disabled under disability civil rights laws and thus entitled to the help he wants?

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Who Has to Comply with the ADA?

Employment (Title I)

State & Local Government Services (Title II)

Public Accommodations/Private Businesses (Title III)

Telecommunications (Title IV)

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What Doesn’t the ADA Cover?

Airlines

Housing

Special Education

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Hypothetical

Jorge goes to a self help center shortly after his release from a locked facility. He has a limp and uses a cane. The facility does not have an accessible restroom.

Is a self help center covered by disability civil rights laws?

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Title II: Discrimination by State andLocal Government “No qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by such entity.”

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Who’s a Qualified Individual? Person with a disability who meets the

essential eligibility requirements for a particular public service with or without:Reasonable modifications to rules, policies, or

practicesRemoval of architectural, communication, or

transportation barriersProvision of auxiliary aids and services

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What are Examples of Title II Violations/Discrimination? Refusing services because of disability Providing only separate, or segregated services to

people with disabilities Imposing eligibility requirements that tend to screen out

people with disabilities Refusing to make reasonable modifications Refusing to provide auxiliary aids Imposing surcharges Failing to make services accessible to and usable by

people with disabilities

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What Architectural Access Requirements Apply? Program access vs. specific facilities Newly constructed facilities must be “readily accessible

and usable” Existing facilities—only if no other feasible means for

achieving program access Alterations—must be made accessible to the maximum

extent feasible Maintenance of accessible features Self-evaluation and transition plans

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Enforcement of Title II Resolve informally through meetings, letters,

negotiations, formal mediation, or Submit a complaint to the appropriate federal

agency within 180 days: U.S. Department of Justice or designated agencies U.S. Department of Transportation (public transit),

or

File a lawsuit within 2 years Can recover attorneys fees

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Hypothetical

Dori is hard of hearing. She is in a locked facility & has an upcoming hearing on her conservatorship. She wants to talk to her lawyer, but need an amplifier on the telephone. She asks the facility to put one on the facility phone. They refuse.

Is there a possible violation of the ADA?

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Title III: Discrimination by Public Accommodations

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person [or private entity] who owns, leases (or leases to), or operates a place of public accommodation.”

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What are Examples of Places of Public Accommodation? Restaurants Hotels Theaters Stadiums Department Stores Shopping Centers Grocery Stores Convenience Stores Gas Stations

Pharmacies Doctors’ Offices Private Hospitals Private Museums Amusement Parks Private Schools and

Universities Day Care Centers Health Clubs

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Examples of Title III Violations/Discrimination Denying services or benefits based on disability Providing only separate, or segregated,

programs or services Using eligibility criteria that tend to screen out

people with disabilities Making unnecessary inquiries about disability Imposing extra charges Retaliating for exercising ADA rights Refusing to reasonably modify its policies,

practices or procedures Refusing to provide auxiliary aids and services

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Access Requirements:Existing Facilities Barriers must be removed where “readily

achievable” Examples of barriers:

Telephones, drinking fountains, paper towel dispensers, etc. mounted too high

Deep pile carpetingUnpaved ground surfacesObstructions in store aislesPoor theater/stadium seating

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Existing Facilities: What if Barrier Removal Isn’t Readily Achievable? Must make goods and services available

through alternative methods, if readily achievable.

For example,Retrieve items for customer from inaccessible

aislesDelivering items to curbside or home delivery

from inaccessible business

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Access Requirements:New Construction & Alterations All newly constructed places of public

accommodation and commercial facilities must be readily accessible to and usable by people with disabilities to the extent that is is not structurally impracticable

Must be built in strict compliance with ADAAG Alterations done after 1/26/92 must also meet

ADAAG to maximum extent feasible

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Enforcement of Title III Can file a complaint with the Department

of Justice; or bring a lawsuit (within two years of discrimination)

Can get court order to stop discrimination, but can’t get damages*

Can recover attorneys fees

*Statutory damages may be available under California law

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Hypothetical

Rosa lives in a board and care home. She has a small dog that she says is a service animal. The board and care says the dog has to go.

What do you think?

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Analyzing ADA Violations Does the person have a disability under the

ADA? Is the disability known or disclosed? Is the person “qualified” (for Title I and II)? Is the entity covered?

Title I: Private employer; 15+ employeesTitle II: State or local governmentTitle III: Business/public accommodation

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Analyzing ADA Violations What was the disability-based discrimination? What defenses might be raised? E.g.,

Undue financial burdenUndue administrative burden (Title II)Fundamental alterationDirect threat to health or safety

What approach will be used? E.g., MediationAdministrative complaint (required for Title I)Lawsuit

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Analyzing ADA ViolationsWhat remedies will be sought? E.g., Change in or exception to policy Removal of barriers Staff training Other injunctive relief Money Etc.

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Hypothetical

Sun is Deaf and needs an interpreter at meetings so she can understand what is happening and ask questions. She is in a locked facility. The facility refused to provide an interpreter for any meetings and said she would have to pay if she wanted one.

You know this is wrong. What do you do?

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Resources

www.disabilityrightsca.org http://www.ada.gov/ http://www.disabilityaccessinfo.ca.gov/law

sregs.htm http://ag.ca.gov/consumers/pdf/disabled.p

df

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Questions?