Newport Accessibility Games

A friend informed me some people are supporting the new traffic plan on Spring St. on Americans with Disabilities Act grounds.  They say that closing off the street altogether makes it safer for persons with disabilities in that area.  They don’t realize that it creates the necessity to travel further by wheelchair to get places and it makes access to the courthouse even more difficult than it already is.

Let me explain my lack of enthusiasm for this “support”.

First, who is making this an ADA issue?  Everybody whose business is totally accessible (no excuses acceptable here), please step forward.  Nobody?  Everybody whose nonprofit organizations hold fundraisers only at accessible locations, show yourselves.  Hmmm.  Still no one.    Well then, surely, these are people who supported the Accessibility Advisory Committee when there was one and routinely support ADA issues.  Anyone?  Still no response.

So, the only other group I know consists of people who have no real ADA knowledge or commitment but who have other goals and hope that creating an ADA issue will help achieve them.  Ahhhh!  There you are!  We’ve met before. 

Some of you didn’t like the designer of Queen Anne’s Square, so tried to make it an ADA issue.  You yourselves owned businesses that were not then – and are not now – accessible.  Some of you objected to sidewalk seating at some restaurants but needed assistance in making that happen.  Call on the ADA!  Some of you wanted help with ordinances that enhance biking or wanted tree removal.  Make it an ADA problem to ensure success.

To those of you making the traffic pattern an accessibility issue, where were you when the Washington Square redesign demolished half the accessibility that existed before?  If you were concerned about access, why did it take fifteen years of fighting to get an elevator in City Hall?  And why did the lower Broadway project make the entire area inaccessible? 

I could go on, but you get the idea.

I know that whenever and however the traffic pattern issue is resolved, you will all go away.  Since the same people who designed Washington Square and lower Broadway oversee the Spring Street project, it will involve more bricks and cobblestones and other elements that make access dangerous or even impossible for persons with any mobility impairment and persons who are blind.  None of you talking about the traffic pattern will be there to object. 

So, call me a cynic.  I’ve earned the right. 

Every time I try to access a Newport business, I hear excuses about why it just cannot be accessible.  I’ve seen announcements of fundraisers held in restaurants and other inaccessible facilities.  I worked with the now defunct Accessibility Advisory Committee to educate city officials and city residents to change the city’s accessibility and attitude toward it.  I regularly get calls to make problems go away by turning them into ADA issues.

You can’t just play a single card in this game.  You need to sit in for the entire hand.

Excuses for Lack of Access

People don’t always recognize how inaccessible their businesses can be and how that discriminates against persons with disabilities. I know they don’t understand when they give excuses that don’t make sense.  Some of these excuses make me laugh until it hurts and others just make me shake my head.   Here are some examples:

During a survey of business owners, the question of accessibility was posed.  One business owner actually said that his business was accessible since the building only had one step to get into it!  Talk about no clue.  For someone in a wheelchair, that one step was as good as a steep cliff.  Access is denied. 

Another business owner said he wasn’t concerned since no one had come in to say he couldn’t get in.  Yes, that’s right.  (Read it again if you don’t get it.)  He somehow felt that if people could not get into the building, they would come in and tell him.  How?  Do people even think about what they say?

Another interesting response from a business owner was that he was not required to be accessible since he never said he was accessible.  How about if we apply that to other laws?  Suppose a policeman stops you for speeding.  Do you think that excuse would fly?  Try telling the officer that you were not required to obey speed limits since you never said you would.  While the officer may have difficulty writing that ticket at first because he would be laughing so hard, you can be sure there would be a ticket with a fine attached.  The same goes for any other law you break.  This is not a response that will benefit you.

When I recently complained to a business owner that I couldn’t attend several events that were held at his facility, he replied that two out of three of their facilities were accessible.  He then invited me to visit the accessible ones.  Somehow the fact that two facilities are accessible does not help when the event is at the inaccessible one got lost on the business owner.  Access to the events I was trying to attend was denied. 

When you fail to comply with the Americans with Disabilities Act, you are effectively putting up a “Keep Out” sign.  Actually, a sign can be ignored when the barrier cannot be.  Is keeping people out of your business what you really want to do?  Persons with disabilities make up the third largest market segment in the U.S.  I think that’s a lot of business to turn away.

Annette Bourbonniere

www.accessing-ability.com

Twitter:  @AccessInclude

Proposed New Rules for Federal Contractors

The Obama Administration has proposed new guidelines for hiring workers with disabilities that would require all federal contractors to set goals of having 7% of their workforce composed of persons with disabilities.

Certainly, this will add some muscle to the Americans with Disabilities Act, since it requires action which is stronger than the passive of not discriminating.  Of course, there will be the ever-present paperwork needed to document this effort and businesses will object to that, as they have objected to paperwork requirements of Affirmative Action and the ADA. 

Some other concerns include how to document this 7% since the ADA does not allow you to ask about disability.  That’s not quite true, though, is it?  AFTER a person is hired, it is allowed to ask disability related questions and, if the response is voluntary, this documentation can be accomplished. 

What I find exciting about these new guidelines is that federal contractors will have to document their efforts to recruit individuals with disabilities.  This outreach is crucial to all successful employment programs and needing to document it will ultimately lead to workforces that are more inclusive of persons with disabilities.

This will not resolve all the employment issues of persons with disabilities, but it is a giant step in the right direction.

You can read the notice of proposed rule-making or submit a comment at http://www.regulations.gov.  Comments will be accepted until February 7, 2012.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Taxi Please!

Why does it have to be so difficult to enforce the federal Americans with Disabilities Act?

In New York City, the city agency that governs taxis doesn’t think that having more accessible taxis is worth enforcing.  http://www.newmobility.com/articleViewIE.cfm?id=11939

Not only would requiring taxi companies to make all new taxis wheelchair accessible not cost the city a single dime, it would save the city significant money since it would reduce the dependence on the Access-a-Ride that is funded by the city.

So, what is the resistance?  This resistance is widespread and truthfully makes no sense. 

Businesses resist providing access since they never look at the benefits, only the costs.  But the truth is that state and city governments turn a blind eye to access issues on a regular basis also.  This blind eye is not only toward their own access responsibilities, but cities are consistently unwilling to enforce access laws in their communities.

A question that all state and city governments should ask is whether they would tolerate discrimination toward any other minority.  Or, would they tolerate businesses that put out signs saying that persons with disabilities are not allowed in?  If they would not tolerate discrimination toward other minorities or businesses that put out signs that verbalize their discrimination toward people with disabilities, they should not tolerate discriminatory actions or omissions.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Sixth Rule of Construction Is Very Important

The sixth rule of construction is a big one.  It states: 

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

This means that if a person has access to and uses either a medication or a device that alleviates the effects of the disability, that person’s disability still exists.  For example, a person who is able to fully control his or her seizures with medication still has a seizure disorder.  Likewise, a person who is able to stand with crutches or a standing frame, still has a mobility impairment.  The fact that a device or medication can control the effects of a disability does not mean that the person no longer has that disability.

Likewise, job accommodations work to remove the effects of a disability in the workplace.  Because the effects of a disability are alleviated to any extent, it does not mean that the disability no longer exists.  Therefore, the person has an impairment that substantially limits a major life activity and that disability is covered under the Americans with Disabilities Act.

The exception to this is ordinary eyeglasses and contact lenses.  If a person’s vision is corrected by ordinary corrective lenses, that person’s vision impairment is not considered to substantially limit a major life activity and, therefore, that person is not considered to have a disability under the Act.

While the ADAAA lists many mitigating measures in its appendix, this list is not considered to be exhaustive and the basic principle continues to be that the effects of mitigating measures is not to be considered when determining whether or not a person has a disability.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Fifth Rule of Construction

The fifth rule of construction in determining if a person’s impairment substantially limits him or her in a major life activity states:  The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

The purpose of this rule is to make it clear, once again, that the federal Americans with Disabilities Act is to be interpreted broadly.  The person with a disability needs only to show that he or she is restricted in the performance of a major life activity as compared to most people in the general population. 

For example, a person with dyslexia may not be able to read handwritten notes.  This person does not have to provide a physician’s note or statistics about dyslexia.  He is allowed to, but is not required to.  It is sufficient to say that most people in the general population can read handwritten notes. 

It is reasonable to infer that most people can read such notes and that, if this person cannot, his impairment substantially limits him in a major life activity.  Presenting statistics or scientific proof that dyslexia prevents people from reading handwritten notes is not required.

The entire purpose of the ADA is to remove barriers encountered by persons with disabilities while trying to live everyday life.  The Amendments Act of 2008 makes it clear that the Act is not intended to add barriers that make persons with disabilities prove they should be covered by this law.  This rule, like the other eight rules of construction, is intended to clarify this.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Fourth Rule of Construction

The fourth rule of construction in determining whether an impairment “substantially limits” a major life activity is:  The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term ‘‘substantially limits’’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘‘substantially limits’’ applied prior to the ADAAA.

This is one more way of telling the courts that congress intends for this law to be applied broadly, covering more people than the courts determined in the first 18 years of the Americans with Disabilities Act.

In the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the issue of “substantially limits” was key.  The court found:  The Court's consideration of what an individual must prove to demonstrate a substantial limitation in the major life activity of performing manual tasks is guided by the ADA's disability definition. "Substantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree," and thus clearly precludes impairments that interfere in only a minor way with performing manual tasks.

As in other court cases, the decision was based on whether or not the individual was covered under the ADA and not whether there was an act of discrimination.  Again, the whole purpose of the amendments is to reverse these priorities. 

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

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

10 Steps to Access

When businesses think about becoming accessible, they imagine major reconstruction, complicated rules and huge expenses.  It doesn’t have to be that hard.  Here is a checklist of 10 things you can do to make your business more accessible and, at the same time, have the United States Government help you pay for it.

1.      Entrance – Any step over 3 inches needs a ramp.

2.      Doorway – At least 32” when door is open 90 degrees.

3.      Room between tables, racks or displays – 32” minimum

4.      Bathroom  Door – At least 32” when door is open 90 degrees. 

5.      Bathroom Stall – At least 32” when door is open 90 degrees.  A minimum of 60” turning space for wheelchairs.  Make sure door opens out.  Grab bars on at least one side of toilet.

6.      Bathroom sinks - Accessible height, soap and towels within reach.

7.      Fire safety - Flashing lights in the bathroom

8.      Communication – Provide alternate methods of communication for persons who are blind or deaf.  Staff must be trained to use alternatives.

9.      Advertise – Let people know you are accessible.  Include notice in all advertising.

10.  Attitude –Be welcoming of all customers.  Train staff to be welcoming as well.

Tax Credits – 50% tax credit per year for compliance with ADA.  PLUS – Tax deductions of up to $15,000.  Information can be obtained from either the IRS website (www.irs.gov) or the ADA website (http://www.ada.gov/) .

Use IRS form 8826 – Simple form.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Parents Protest Protecting Girl with Peanut Allergy

Parents are protesting the requirement that their children wash their hands and rinse their mouths twice a day to protect a six-year-old student with an exceptionally severe peanut allergy.  They feel this child should be home schooled since these measures infringe on the rights of their children.  You can find the story at http://www.huliq.com/10473/parents-insist-girl-peanut-allergy-florida-be-home-schooled.

Frankly, if this had been April 1, I would have thought this was an April Fool’s joke. 

First of all, some of the parents who are protesting because they feel that these protective measures take 30 minutes a day away from their children’s education have pulled their children out of school in protest.  Really?  At the very least, let the children get as much education as is available while mounting this protest.  Maybe the parents are really concerned that their children will be exposed  to too much kindness.

Second, none of these parents seem to take into account that the extra hand washing may be protecting their children from colds and other germs that could be keeping them out of school for illnesses.  These absences could add up to more than this supposed 30 minutes a day.   It sounds to me like this procedure has a protective effect for their children too.

Third, there is nothing stopping these protesting parents from taking their children out of the class and home schooling them.  Although, to be honest, I don’t see these parents as healthy examples for their own children.

The federal Americans with Disabilities Act is civil rights legislation that is intended to provide services for persons with disabilities that are equal to the services provided to anyone else.  Education in a public school is one of those services. 

I am aware that persons with disabilities face a great deal of discrimination still.  And, there has always been a concern on the part of persons without disabilities that any accommodation for a disability is a privilege that they lack.  (If you doubt this, why is it so difficult to enforce accessible parking?)  If this had been a single individual mounting this protest, I would not have been the least surprised.  But, to have this great uproar over a single youngster’s need to be protected is outrageous. 

This is a truly shameful, ignorant response to a human situation.  This is the kind of bias that leads people to act as though any kindness toward another takes away from them.  This is sad.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Should 4-Year-Old Have Service Dog in School?

There have recently been a number of lawsuits regarding service dogs, particularly in the schools.  Most recently, the parents of a four-year-old with fetal alcohol syndrome have sued their North Carolina school district because it won’t allow their child to have his service dog in school.  http://www.postandcourier.com/news/2011/mar/14/parents-disabled-boy-sue-want-schooldistrictallo/?fb_xd_fragment#?=&cb=f28bab22d7f2d06&relation=parent&transport=fragment&frame=f2d60a3887b626c.

Service dogs have been specially trained to actively provide assistance to persons with disabilities and, according to the federal Americans with Disabilities Act, are allowed to go wherever the person with the disability goes.  That includes schools.

In most of the recent cases, the issue has been defining the difference between service dogs – which are allowed by law to accompany their owners – and therapy dogs, which are not covered by the Americans with Disabilities Act.  The major difference between the two is that service dogs are trained to actively provide a service, whether that is guidance, assistance, signal, intervention or other service, and therapy dogs passively provide comfort. 

In the North Carolina case, the question is primarily whether the 4-your-old can manage his dog.  I don’t know the answer to that, but I do know that separating the dog from the boy for long periods of time will have an adverse affect on the dog’s training, making him less effective as a service dog when the two are together.

My opinion – and that’s all it is – is that the parents of this boy have sought the best possible way to equip their son with the tools necessary to manage his disability and grow.  It sounds to me like that effort needs to be considered.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Is Charlie Sheen Facing Discrimination?

Like many of you, I feel we've heard more than enough from and about Charlie Sheen. But, if you will, please indulge me with one more perspective.

I am neither a lawyer nor a psychiatrist, and I guarantee you I would never be mistaken for one of his goddesses. The perspective I'm going to put forth is not fact, but rather a series of possibilities that are worth considering. My interest isn't just in this one person, but in how we look at similar situations in others.

So, for the purpose of this exercise, let's start by supposing this is not Charlie Sheen, but rather a stage hand on the set. There would be a lot less publicity but we would be able to see the issues more clearly.

When Charlie was charged with assault, which I believe is a felony, his employer continued his employment. There was concern about what would happen to the show if he were sent to jail, but there was no talk of firing him. The criminal charge did not bother his employer as much as his potential absence from work.

When Charlie was actively doing drugs, he was not fired. No employer needs to tolerate active illegal drug use, but his did.

Later, when Charlie was ranting on television, apparently quite delusional, he was fired.

Again, I am not a psychiatrist -- I don't even play one on television -- but this man certainly appears to be ill. It's even possible that his mental illness has led him to self medicate with illegal drugs. This is not uncommon.

So, what do you think? Fire him or treat him with compassion? Is this a case of discrimination covered under the Americans with Disabilities Act? Should his employer, who did not fire him for other bad boy behavior, fire him now? If you took away the fame and viewed him as an employee of any large corporation, is he being discriminated against for mental health issues?

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Has the ADA Improved the Lives of Americans with Disabilities?

The Kessler foundation and the National Organization on Disability released its survey looking at quality of life measures for persons with disabilities. http://www.2010disabilitysurveys.org/pdfs/surveyresults.pdf

The survey shows where the ADA has generated progress and where there are still significant gaps between Americans with and without disabilities.  Employment of persons with disabilities still lags far behind employment of persons without disabilities.  Consequently, household income and those areas where income significantly affects participation also lag behind.  According to the report the gaps between Americans with and without disabilities show that persons with disabilities were much more negatively affected by the economic recession.  No surprise there!

Disability policy in this country mandates that persons with disabilities impoverish themselves in order to qualify for critical services that are not covered under traditional insurance.  In order to regain financial independence, we have a longer way to go than those without disabilities.  While there are well-intended patches to this system, there is little likelihood these patches will result in great changes.  A total overhaul of disability policy is in order.

The survey did show a couple of areas of progress;  There has been improvement in the numbers of Americans with disabilities who have attained educational levels that should result in improved employment outcomes and there has also been an improvement in political participation by persons with disabilities.  Both of those areas of improvement bode well for the future.

Read the full study to see where the ADA has been effective and where we still have lots of work to do.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude