Is Walking the Only Goal?

Big news last week.  Austin Whitney walked to receive his diploma at UC Berkley.  http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/15/BARO1JFEP8.DTL.

Austin incurred a spinal cord injury in a drunk driving accident just before starting college.  He uses a wheelchair for mobility like so many others.  After working for nine months with the engineering department at Berkley on the exoskeleton that they had been developing for 10 years, he was able to don the nearly full-bodied apparatus pull himself up on a special walker and “walk” across the stage.    This has prompted predictions of the robotic exoskeletons helping hundreds of thousands of wheelchair users to walk. 

Really?

Let’s look at this without the blinders.

People who use wheelchairs can get into the chair and go about their day.  This can include working, studying, driving, playing, taking part in sports, going out to restaurants, and so many other things.  In other words, people who use wheelchairs live life.

Or, we can strap on this apparatus, including a power pack the size of most backpacks, and pull ourselves up on the crutches or walkers that have the controls and take one slow painstaking step at a time.  Even this progress would come after months of training and therapy, all of which would be time taken out of living life.

For those who are convinced that walking – no matter how poor the quality of walking – in the only important thing in life, this may be an answer.  For hundreds of thousands of wheelchair users, I don’t think so.

I congratulate Austin for graduating from college without losing any time.  That is an accomplishment that is noteworthy. 

I also congratulate the engineers at UC Berkley for developing this robotic exoskeleton.  I’m sure that it has many interesting applications.

That said, I need to emphasize that promoting walking over quality of life is not doing persons with disabilities any favors.  Let’s get our priorities straight.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

EEOC Third Rule of Construction

The third rule of construction in the EEOC regulations to determine whether an impairment substantially limits a major life activity is the big one that the first two were building up to:

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘‘substantially limits’’ a major life activity should not

demand extensive analysis.

Virtually all the cases brought to the Supreme Court in the past 20 years dealt almost exclusively on whether or not the person with the disability “qualified” for protection under the Act.  This rule is meant to stop that.  It clearly states that the issue should be decided on whether discrimination has occurred.  If there were no other changes in these amendments, they would have accomplished much.

The most important thing to remember about the Americans with Disabilities Act is that it is civil rights legislation.  As in all other civil rights legislation, the coverage is intended to be broad.  No other minority needs to qualify to be covered under civil rights legislation.  Neither should persons with disabilities.  Focusing on whether an impairment is sufficiently disabling seriously diminishes the intended protections.

I will grant that there are individuals who do not have a disability who will seek protection under the ADA because they have no other protection.  However, that should not limit the rights of those who should be covered.  Nor should it be the standard by which others are judged.  Fraud needs to be dealt with separately.

In order for this Act to provide protection, the acts of discrimination should be the focus for all decisions.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Second Rule of Construction

The second rule of construction for determining whether a disability “substantially limits” a person states:  An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in

the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

Nonetheless, not every impairment will constitute a disability within the meaning of this section.

The EEOC is making it clear that a disability only has to limit the ability to perform a major life activity when compared to the performance of most people.  Again, the interpretation is broad and meant to include more people than fewer people.  A person can be limited in without being restricted from performing this major life activity.  This rule also allows the comparison to be to one’s peers rather than to most people.  It also allows the limitation to be compared to how the same individual performed without the limitation.

As this rule follows the one that says the term “substantially limits” needs to be expansive, there is again a clear intention to change the focus from the decision about who is to be included to the act of discrimination. 

But that does not mean that there is no standard.  As broad as the standard may be, a standard does still exist.  Not all impairments cause the person to be limited. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

First Rule of Construction for "Substantially Limits"

In the EEOC final regulations implementing the ADA Amendments of 2008, there are nine rules of construction for determining whether a disability “substantially limits” a person, thereby qualifying that person’s disability to be a covered disability under the Americans with Disabilities Act. 

The first rule states:  The term ‘‘substantially limits’’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘‘Substantially limits’’ is not meant to be a demanding standard.

This is meant to address the narrow definitions that came about due to several court decisions. 

When you think about it, what other minority needs to qualify to be a member of that minority?  Do we require DNA testing to prove race?  Is an affidavit from a religious leader needed to prove the religion to which a person belongs?  So, why does anyone have to prove not only that they have a disability, but that that disability allows them to be covered under important civil rights legislation?

This first rule states that interpretation of a person’s limitations due to disability needs to be defined broadly enough to make qualification a simple matter that will cover more people rather than fewer.  Focus instead on the civil rights of the individual and correct the acts of discrimination that occur.

I will cover the other rules of construction in future postings.  If you wish to see the entire set of regulations published by the EEOC, go to http://www.gpo.gov/fdsys/pkg/FR-2011-03-25/pdf/2011-6056.pdf.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

EEOC publishes regulations

The Equal Employment Opportunity Commission (EEOC) has published final regulations implementing the ADA Amendments of 2008.  http://www.gpo.gov/fdsys/pkg/FR-2011-03-25/pdf/2011-6056.pdf

These amendments clarify the definition of disability in order to broaden those covered, consistent with other civil rights legislation.  They also are intended to change the focus from who is covered to the act of discrimination itself – refusal to hire, accommodate, promote, etc.  Almost all the major court decisions have focused on whether or not someone qualifies rather than on whether or not the act of discrimination occurred.  The amendments should change that.

A major section of the recently published regulations is the nine rules of construction determining what “substantially limits” a major life activity means in the definition of disability.  Every one of these rules makes it clear that they are intended to be interpreted broadly to cover more people than in the original act.

If these amendments decrease the incidences of discrimination and reduce the unemployment rate of persons with disabilities, they will have done their job.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Profit by Investing in Workers with Disabilities

“Profit by investing in workers with disabilities” is the theme for this year’s Disability Employment Awareness month, observed in October.  This was announced by the US Department of Labor’s Office of Disability Employment Policy.  http://www.dol.gov/opa/media/press/odep/ODEP20110609.htm.

Organizations planning activities for October will be focusing on this theme this year, that employing workers with disabilities is good business. 

First, by being willing to include workers with disabilities in your employment plan, you have access to a deeper pool of talent.  Persons with disabilities are better educated and have more skills than ever before.  This includes returning veterans, persons with physical disabilities and people with intellectual disabilities, as well as people with any other disabilities.  When you are hiring, you are hiring the ability.  It then becomes a matter of simply accommodating the disability.  If you have hired the right talent, accommodating the disability is no more than adding the appropriate tools for the job.

Second, hiring, accommodating, retaining and promoting persons with disabilities are viewed by the public – and that include customers – as a sign that a business is welcoming to all.  People want to do business with a company that is welcoming.  It makes them all feel that they are important as customers.

So, since employing persons with disabilities is good for your bottom line, profit by doing just that.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

NACE Report Raises Questions about Hiring Persons with Disabilities

Since the passage of the Americans with Disabilities Act, the number of persons with disabilities who have gone on to higher education has increased.  In fact, education is one of the areas that have seen the most success for persons with disabilities.  However, this success has not translated into increased employment.  In fact, there has been a decline in employment of persons with disabilities in the past 20 years. 

According to a recently published survey by the National Association of Colleges and Employers (NACE), http://www.naceweb.org/Research.aspx?fid=193&menuID=123&ispub=False&nodetype=2&navurl=, employers are hiring students who did internships with them at increasing rates. 

So, that raises a number of questions.  Are students with disabilities doing internships?  If so, are they being hired?  At what rate? 

If students with disabilities are getting internship opportunities at the same rate as other students and are being hired at the same rate, then there is hope that the huge gap in employment between persons with disabilities and those without will finally narrow.  If not, it’s time to address what’s going on so that employment opportunities equalize. 

So, let’s get those questions up on the board.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude