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Our Experience with an Inaccessible Local Government Website
Apr 27, 2026
54m 43s
Advocating for Accessible Emergency Alerts
Apr 27, 2026
40m 25s
My Journey into Emergency Preparedness
Mar 21, 2026
50m 23s
Interviewing Erin Taylor From Upstream Access
Mar 10, 2026
54m 21s
Emergency Preparedness With Scenarios
Jan 26, 2026
52m 33s
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| Date | Episode | Topics | Guests | Brands | Places | Keywords | Sponsor | Length | |
|---|---|---|---|---|---|---|---|---|---|
| 4/27/26 | ![]() Our Experience with an Inaccessible Local Government Website✨ | accessibilitydisability rights+3 | Desiree | Department of JusticeTexas Attorney General+1 | — | accessibilitydisability+3 | — | 54m 43s | |
| 4/27/26 | ![]() Advocating for Accessible Emergency Alerts✨ | emergency preparednessaccessible emergency alerts+1 | — | Demand Our Access | — | emergency alertsdisabilities+3 | — | 40m 25s | |
| 3/21/26 | ![]() My Journey into Emergency Preparedness✨ | emergency preparednessdisabilities+3 | — | — | local area | emergency preparednessdisabilities+5 | — | 50m 23s | |
| 3/10/26 | ![]() Interviewing Erin Taylor From Upstream Access✨ | emergency preparednessdisabilities+3 | Erin Taylor | Upstream AccessPerson-Centered Emergency Preparedness (P-CEP) | AustraliaAmerica | emergency preparednessdisabilities+3 | — | 54m 21s | |
| 1/26/26 | ![]() Emergency Preparedness With Scenarios✨ | emergency preparednessdisabilities+4 | — | Demand Our Access | — | emergency preparednessdisabilities+5 | — | 52m 33s | |
| 11/14/25 | ![]() Advocating in Private Housing Situations When the Property Manager Doesn’t Understand Our Rights✨ | advocacyhousing rights+3 | — | Fair Housing Act | — | housingadvocacy+3 | — | 50m 58s | |
| 10/26/25 | ![]() Advocating in Private Housing Situations✨ | advocacyhousing rights+3 | — | Fair Housing Act | — | advocacyFair Housing Act+3 | — | 55m 15s | |
| 8/21/25 | ![]() A Brief Introduction to the Fair Housing Act✨ | Fair Housing Actdisability rights+3 | — | Demand Our AccessFair Housing Act | — | Fair Housing Actdisability status+3 | — | 21m 26s | |
| 6/22/25 | ![]() A Deep Dive Into Complaints Under Title II✨ | Title IIcomplaints+3 | — | Demand Our AccessACB | — | Title IIcomplaints+3 | — | 27m 54s | |
| 6/13/25 | ![]() Maintenance of Accessible Features, Assistive Mobility Devices, and Existing Facilities Under Title II✨ | accessibility featuresassistive mobility devices+3 | — | Demand Our AccessACB | Eastern timeTitle II | accessibilityassistive devices+3 | — | 24m 10s | |
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| 6/12/25 | ![]() Accessibility Overlays | In this episode, Desiree and I discuss those terrible accessibility overlays that promise to make websites more accessible while actually doing little to improve accessibility. As Desiree’s demonstration shows, these overlays are hard to use, don’t behave consistently, and provide little in the way of greater access. | — | ||||||
| 4/20/25 | ![]() Continuing Our Revisited Look at Title II | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In this episode, I am continuing my revisited look at Title II of the Americans with Disabilities Act (Title II). As a reminder, Title II primarily covers state and local governments. In this episode, I will be covering topics I haven’t covered before as a part of the Demand Our Access project. So, I will not be discussing effective communication and service animals. For information about those topics, please check out the episodes previously posted to the Demand Our Access website. In this episode, I am also not covering topics that primarily tell state and local governments how to comply with Title II. The Roadmap section will tell you exactly what will be covered in this episode. Comments and Questions As always, I want to hear from you. To share your comments and questions about the material covered in this episode, or general thoughts about Demand Our Access, you can contact me by completing the contact form on the Demand Our Access website. If you would rather email, send your message to Jonathan@DemandOurAccess.com. Citations To make the material easier to follow, I will not provide citations to sections of law. The links to the relevant sections of law will be included when this episode is posted to the Demand Our Access website. Roadmap In this episode, I will cover the following topics: Discrimination prohibited Illegal use of drugs Retaliation and coercion Personal mobility devices and personal services Continuing Our Look at Title II Discrimination Prohibited Even though the discrimination that is prohibited under Title II is largely in the law to tell state and local governments what they should be doing as a starting point for complying with Title II, it’s important for us (as disabled people) to understand what our local governments are supposed to be doing to include us. The material in this section is a bit dense. So, I have tried to summarize it in a way that communicates what you should know while leaving out a lot of legal language. Qualified Person with a Disability The definition of a qualified person with a disability is found in the Definitions section of Title II. I’m including here, because the Discrimination Prohibited section repeatedly references qualified people with disabilities. Defining a Qualified Person with a Disability Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. I know I said I wouldn’t include a lot of legal language, and I generally will not. I included the exact definition of a qualified person with a disability because it’s a definable term that’s used throughout Title II. All of that legal language can be simplified down to this: A qualified person with a disability is a person with a disability who, with or without an accommodation or modification, can participate in the activity or program they wish to join. If you want to swim and there are no physical limitations associated with your being able to swim, you are a qualified person with a disability for the purposes of taking swimming lessons. You are qualified to take swimming lessons even if you need an accommodation to take swimming lessons. No Disability Exclusion A state or local government cannot, based on our being disabled, prevent us from participating in its programs, nor may it deny us the benefits of its services. This is true even if the program in which we choose to participate or if the service we wish to benefit from is administered completely by a third party or jointly between our government and a third party. If your local government contracts with a company to provide its water bills, the water bills they provide must be accessible. The government cannot say that they aren’t responsible for the inaccessible bill because they contracted with a company to process them. 4Types of Discrimination In order to stay away from things that may be confusing, I’m not going to cover all the types of discrimination listed; instead, I’m going to focus on the ones I believe are most likely to be encountered by you in your dealings with your local government. Afforded Opportunities Local governments cannot provide us an aid or service that is not as effective in affording us an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided people without disabilities. If your local government offers barbecuing lessons and the goal of the lessons is for each person enrolled in the lessons to independently barbecue a steak and vegetables by the end of the lessons, you (as a disabled person) cannot be told you will cook the steak on the stove. If you were told you would need to make your steak on the stove, your local government would be denying you the opportunity to obtain the same result and to reach the same level of achievement. Maybe you would agree to use a gas grill. Maybe you would agree to use different cooking tools. But at the end of the lesson, you need to have the same opportunity to learn how to grill your steak and vegetables. That is the only way you could have the chance to obtain the same result and reach the same level of achievement offered to participants without disabilities. The Provision of Different Aids and Services Local governments cannot provide you with aids and services that are different from the aids and services provided program participants who are not disabled unless the provision of different aids and services is necessary to ensure the aids and services you are provided are accessible. Returning to the example of the barbecuing lessons: it would be acceptable for a local government to provide you a talking meat thermometer instead of providing you a meat thermometer that doesn’t talk. The different thermometer is clearly necessary for you to tell the temperature of your meat. Participation in Advisory Boards Local governments must make accommodations to enable people with disabilities to participate in their advisory bodies and their public boards. This requirement is not limited to those bodies they may establish to get input from the disability community. It applies to all of their advisory bodies and public boards. If you have an interest in joining your local government’s taskforce on the selection of a new public portal to process tax collections, your local government is required to ensure you can fully participate. Most Integrated Setting Local governments are to provide those of us with disabilities the opportunity to participate in the most integrated setting possible. This means they cannot establish a group for hikers with disabilities and force all disabled hikers to participate in that group. If you, as a person with a disability, wish to participate in hikes open to the general public, your local government is required to follow the provisions of Title II and accommodate you to the best of its ability and with certain limitations. Separate Programs Local governments can offer the disability community separate, segregated programming. A good example of this is wheelchair basketball. Since it would be very difficult to make traditional basketball games accessible to someone using a wheelchair, wheelchair basketball is a good accommodation for a local government to offer. Completely Different Programming Nothing in Title II prevents local governments from offering programming that is entirely created for those of us with disabilities. For instance, a local government could establish a goalball program for those of us who are blind or low vision. This is true even though there is not a goalball program for the general community. Choosing Facilities Local governments cannot choose facilities for events that are not accessible to those of us with disabilities. Sadly, this is a part of Title II that is violated on a very regular basis. Eligibility Criteria Local governments cannot use eligibility criteria that screen out or tend to screen out those of us with disabilities unless the eligibility criteria being used is necessary for the provision of the service being offered. Returning to our example of the barbecue lessons, the local government couldn’t say that eyesight is necessary for someone to safely barbecue. So, a requirement that people participating in the barbecue lessons need to be able to see would result in the local government establishing eligibility criteria for the barbecue lessons that would screen out anyone who is blind and potentially lots of people who are low vision. Since eyesight is not necessary to barbecue that eligibility requirement would be illegal. No Surcharges I’m sure I have said this before, but it’s worth repeating: local governments cannot charge those of us with disabilities for the cost of the accommodations we need. This rule applies to even a portion of the cost. The cost of our accommodations is completely the responsibility of the local government. Legitimate Safety Requirements Local governments may impose legitimate safety requirements. But those safety requirements must be based on actual risks. Mere speculation about those of us with disabilities and/or disabilities is not permitted. Neither is developing safety requirements that depend on stereotypes of those of us with disabilities and our disabilities. If a local government has safety requirements related to a particular program, it must approach each case by using an individualized assessment. This means that even if someone else with the same disability as you cannot meet the safety requirements for a particular program, you must be given the chance to demonstrate you can individually meet those safety requirements. Illegal Use of Drugs Current use of illegal drugs is not protected. Local governments can discriminate against someone for actively being a drug user. Local governments can discriminate against someone for previous drug use with the following exceptions: If you have successfully completed a supervised drug rehabilitation program If you have otherwise been successfully rehabilitated If you are currently participating in a drug rehabilitation program If they erroneously believe you are using illegal drugs Rehabilitation Services Local governments cannot deny rehabilitation services to someone currently using drugs if they are qualified for services. Drug rehabilitation services may deny coverage to someone who uses illegal drugs while in the program. Drug Testing Local governments can administer reasonable policies, including drug testing, to ensure someone is not using drugs while participating in a drug rehabilitation program. Alcohol and Marijuana I don’t want to get bogged down in this, but I do think that people should know alcoholism is considered a disability under the ADA. Marijuana use, even used of medical marijuana, is not covered by the ADA. Retaliation and Coercion Local governments cannot discriminate against someone because they opposed a practice made unlawful under Title II. Nor can a local government discriminate against someone for filing a complaint under Title II, testifying in a proceeding related to a Title II violation, or otherwise assisting in the investigation of a local government’s violation(s) of Title II. No one, public or private, shall coerce, intimidate, threaten, or interfere with any individual in any exercise or enjoyment of any activities, programs, and services offered by a local government. Nor may anyone coerce, intimidate, threaten, or interfere with an individual who is filing a charge of discrimination under Title II or otherwise assisting in the investigation of a charge under Title II. All of this means you have a right to hold your local government accountable when it violates your rights. It also means that anyone can assist in the investigation of a complaint under Title II without facing retaliation and/or coercion from the local government. Personal Devices and Services Local governments do not have to provide people with disabilities personal mobility devices that would enable us to participate. Personal mobility devices are things, like wheelchairs, that we are supposed to have for ourselves. Local governments also do not need to provide services that are strictly of a personal nature in order for us to participate. This means they don’t need to help us eat or use the bathroom in order for us to participate. Let me be clear: when I say they don’t need to help us use the bathroom, I am strictly talking about the act of using the bathroom. They must help us find the bathroom. They don’t need to help us use the bathroom. Conclusion That completes our continued revisited look at Title II for this time. Thank you for listening. I very much appreciate your support. | — | ||||||
| 3/16/25 | ![]() How You can Advocate for Section 504 | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In the last episode of the Demand Our Access podcast, I discussed Texas v. Becerra, a lawsuit seeking to have Section 504 of the Rehabilitation Act of 1973 (Section 504) declared unconstitutional. If you want to learn more about the lawsuit, please listen to that episode or read the transcript of what I said about the lawsuit. During the questions and comments portion of that episode, there was a lot of interest in advocating for the protection of Section 504. So, this episode will present strategies those of you living in the 17 states can take to try to protect Section 504 and things those of us who don’t live in one of those 17 states can do to be heard. Before discussing how we can advocate to protect Section 504, I will discuss the next episode and let you know how you can contact me. The Next Live Episode The next live episode will take place on Saturday, April sixth at 2:00 PM EDT. In that episode, I am planning to continue my revisited look at Title II of the Americans With Disabilities Act, primarily covering state and local governments. Comments and Questions If you have any comments and/or questions about the Demand Our Access project, you can fill out the contact form on the Demand Our Access website or you can email me at Jonathan@DemandOurAccess.com. How You Can Advocate for Section 504 If You Live in One of the 17 States As a reminder, the 17 states suing to have Section 504 declared unconstitutional are as follows: Alabama Alaska Arkansas Florida Georgia Indiana Iowa Kansas Louisiana Missouri Montana Nebraska South Carolina South Dakota Texas Utah West Virginia Contacting Your Attorney General If you live in one of the 17 states, the best thing you can do is contact your attorney general and let them know why you support Section 504 and that you want them to withdraw from the lawsuit. In order to make contacting your attorney general easier, I have worked with ChatGPT to create a table of contact information for the 17 attorneys general involved in the lawsuit. The table provides the name, mailing address, phone number, and website for each attorney general. I didn’t include an email address and/or contact form, because those methods of contact weren’t consistent enough among the attorneys general for them to be easily included in a table. if you would rather send an email or complete a contact form, visit your attorney general’s website to see how you can do that. I’m not going to read the names of the attorneys general and their individual contact information. The table of contact information will be provided at the end of the transcript when this episode is posted to the Demand Our Access website. What to Say Obviously, you should voice your support in a way that is comfortable for you and that reflects your voice. So, I can’t tell you exactly what to say when contacting your attorney general. Also, I can’t provide a different script for every possible method of communication you may use to contact your attorney general. So, I have developed a short sample script that works whether you contact your attorney general over the phone, through email, by using a contact form, by writing a letter, or even if you meet them. Before providing the script, I want to make one important point: the more personal your appeal the more likely it is to be heard. That doesn’t mean you should provide health information or anything else that you typically don’t provide strangers. What it means is that the more you can demonstrate how Section 504 has personally helped you, the more impactful your support of Section 504 will be when offered to your attorney general. I say that because attorneys general hear from lots of people every day. Much of what they receive is from people who are simply regurgitating what one organization or another has told them to say by providing a template or sample script. While that will be what you will also be doing, you can make your support of Section 504 more impactful by adding some of your personal experience with Section 504 to what I will provide here. In my view, the more personal information about how Section 504 has been a positive in your life really matters in this case because your attorney general doesn’t understand the benefits to those of us with disabilities that have been gained as a result of Section 504. Even worse, they believe it shouldn’t exist. This means convincing them to stop opposing Section 504 is an uphill job. The more they come to believe their voters support Section 504 for personal reasons, the better the chance they will realize their opposition to Section 504 is not smart. Before providing the script of what you could say, I want to make one more important point: please contact your attorney general. Even if you aren’t comfortable sharing any personal experiences, contact them. Even if you don’t really know how Section 504 has benefited you, contact them. Even if all you are comfortable doing is using the below script, contact your attorney general if you live in one of the 17 states and ask them to withdraw from Texas v. Becerra. The Script For the purposes of developing a script, I’m pretending my name is John Smith, I live in Waterloo, Iowa, and that I’m calling the office of the attorney general of Iowa. Obviously, you should edit the script as necessary if you don’t live in Iowa. Now for the script: My name is John Smith. I’m a resident of Waterloo. In the last election, I voted for Attorney General Bird. As a person with a disability, Section 504 of the Rehabilitation Act of 1973 has helped me achieve things I would have never achieved without it. I’m calling to ask Attorney General Bird to please withdraw our state from Texas v. Becerra. If Section 504 of the Rehabilitation Act of 1973 is declared unconstitutional, those of us with disabilities will have even a harder time realizing our potential. Something like that is all you need to do to let your attorney general know Section 504 is important to you and that you want your state to withdraw from the lawsuit. But I will include a script that has more personal details, in case that’s helpful to those of you who would be comfortable sharing some personal information. A More Personal Script My name is John Smith. I’m a resident of Waterloo. In the last election, I voted for Attorney General Bird. As a blind person, Section 504 of the Rehabilitation Act of 1973 has helped me achieve things I would have never achieved without it. When I was a child, my public school education was more accessible to me than it would have been had Section 504 not been the law. As an adult, Section 504 allows me to request accommodations from federal agencies I wouldn’t be able to request without Section 504. As a resident of Iowa, Section 504 means I can better participate in all programs offered by our state in ways I could never participate without Section 504. I’m asking Attorney General Bird to please withdraw our state from Texas v. Becerra. If Section 504 is declared unconstitutional, those of us with disabilities will have a much harder time reaching our potential. As you can see, the more personal script is longer. It’s longer because it highlights ways Section 504 helps those of us with disabilities. If the generic examples I included in the more personal script doesn’t apply to you, or if you can think of state-specific examples that would resonate better with your attorney general, feel free to replace them with ones that better fit your life and represent the programs offered by your state that are more accessible to you because of Section 504. If you’re having trouble coming up with more personal ways Section 504 has helped you, discuss it with others in your state. Maybe others have ideas that sound better to you than what I included as examples here. Other Things to Try I have listed three items in this section based on the impact I believe they would have. The three things you can also try to protect Section 504 if you live in one of the 17 states are as follows: Organize a protest Contact the media Tell your community Organize a Protest If you aren’t comfortable with the word “protest” think of what you will be organizing as an event in Support of Section 504 and the civil rights of those of us with disabilities. To be effective, this kind of protest, obviously, needs many participants. So, contact groups of which you are a member and/or those groups with which you have an affiliation and gage their interest. This could be as simple as a local chapter of ACB or a state affiliate of ACB deciding to organize a local event in support of Section 504. This could be ACB chapters and affiliates working in a cross-disability manner with other organizations of those of us with disabilities. Consider Blinded Veterans of America, Paralyzed Veterans of America, and others. To give your protest even more of a chance at success, contact groups not specifically dedicated to increasing accessibility to those of us with disabilities. Think about teachers organizations and teachers unions. Maybe look at organizations of local government workers. In short, think which groups would be affected if Section 504 was declared unconstitutional and see if they want to work on a protest in support of Section 504. Lastly, look at organizations in your community that may already be organizing protests in opposition to what is happening politically. Maybe there is a local organization of democratic socialists. Maybe there is a group affiliated with the Democratic Party that is active in your community. You don’t have to agree with everyone who is interested in supporting Section 504 on every issue or even most issues. the only thing that matters here is building support for Section 504. Contact the Media Write letters to your local newspaper. Tell them how and why you support Section 504. The language from the sample scripts discussed above would be good starting points for letters to your local papers. Call local and/or national talkshows and educate hosts and listeners about Section 504 and why you support it. Contact local reporters, especially those covering politics and human interest stories, and see if they are interested in helping you spread the word about the threat to Section 504. Talk to Your Community Tell your family, friends, and members of any community groups of which you are a member about the threat to Section 504. See if they would be interested in coming to your protest or contacting the media too. The more people who know about and understand the threat to Section 504 and the civil rights of those of us with disabilities the better! How you can Advocate if You Don’t live in One of the 17 States Contact the Department of Justice The Department of Justice still has not said how it is going to participate in the lawsuit. Even though getting the Department of Justice to side with those of us with disabilities is a long shot, it’s a shot worth taking. The threat to our civil rights is so real that I believe we should do all we can to try to protect Section 504 and through it our civil rights. The Department of Justice has a Contact Us page you can use to find a link to a web form, a mailing address, a phone number, and more ways to make contact with them. The current attorney general is Pamela Bondi. A Script for Contacting DOJ I have written this script so it will work whether you call, complete the contact form, or send a letter. Obviously, if you are sending a letter through the mail, you will need to format appropriately. All I’m providing is what could be the main text of your letter. My name is John Smith. I’m a resident of Winchester, Massachusetts. I’m writing to ask Attorney General Bondi to defend Section 504 of the Rehabilitation Act of 1973 in the lawsuit Texas v. Becerra. As a person with a disability, I have benefited greatly from the rights afforded me by Section 504. As a child, I benefited from a more accessible education because of Section 504. Thanks to Section 504, I can get accommodations from federal agencies I wouldn’t get without Section 504. Since Section 504 is the law, I can receive accommodations from the state of Massachusetts I wouldn’t receive without Section 504’s protections. If the Department of Justice doesn’t defend Section 504, those of us with disabilities will be less likely to reach our potential. That’s about all you need to do to let the Department of Justice know you support Section 504 and that you want them to defend it in court. If you are willing, your examples could be less generic than mine were. Here, I was only trying to put together something that would work for most people. Again, the more specifics you provide about your life, without sharing things you wouldn’t share with strangers, the better. Other Things You can do if You Don’t Live in One of the 17 States If you don’t live in one of the 17 states, you can still contact the media and educate your community about the value of Section 504. If you want to contact the media, I would focus on national outlets. For newspapers, think papers like the New York Times, USA Today, and the Washington Post. For talkshows, I would focus on shows with a national reach too. For those of us not living in one of the 17 states, focusing on national media makes sense because there is a chance our thoughts will reach people in the 17 states. There is also a chance our support of Section 504 will be received by politicians and Department of Justice staff living and working in the DC area. Conclusion This is the end of my thoughts on how you can advocate for Section 504. If you have any questions about your advocacy efforts, please contact me. Thank you for listening to this episode of the Demand Our Access podcast. I appreciate your support. Table of Attorney General Contacts State Attorney General Phone Number Address Website Alabama Steve Marshall (334) 242-7300 501 Washington Avenue, Montgomery, AL 36130 www.alabamaag.gov Alaska Treg Taylor (907) 465-3600 P.O. Box 110300, Juneau, AK 99811-0300 law.alaska.gov Arkansas Tim Griffin (501) 682-2007 323 Center Street, Suite 200, Little Rock, AR 72201 arkansasag.gov Florida Ashley Moody (850) 414-3300 The Capitol, PL-01, Tallahassee, FL 32399-1050 myfloridalegal.com Georgia Chris Carr (404) 656-3300 40 Capitol Square SW, Atlanta, GA 30334 law.georgia.gov Indiana Todd Rokita (317) 232-6201 Indiana Government Center South, 302 W. Washington St., 5th Floor, Indianapolis, IN 46204 www.in.gov/attorneygeneral Iowa Brenna Bird (515) 281-5164 Hoover State Office Building, 1305 E. Walnut Street, Des Moines, IA 50319 www.iowaattorneygeneral.gov Kansas Kris Kobach (785) 296-2215 120 SW 10th Ave., 2nd Floor, Topeka, KS 66612 ag.ks.gov Louisiana Elizabeth B. Murrill (225) 326-6705 1885 N. 3rd St., Baton Rouge, LA 70802 www.ag.state.la.us Missouri Andrew Bailey (573) 751-3321 Supreme Court Building, 207 W. High St., P.O. Box 899, Jefferson City, MO 65102 ago.mo.gov Montana Austin Knudsen (406) 444-2026 Justice Building, 215 N. Sanders, Helena, MT 59601 dojmt.gov Nebraska Mike Hilgers (402) 471-2682 2115 State Capitol, Lincoln, NE 68509 ago.nebraska.gov South Carolina Alan Wilson (803) 734-3970 P.O. Box 11549, Columbia, SC 29211 www.scag.gov South Dakota Marty Jackley (605) 773-3215 1302 E. Highway 14, Suite 1, Pierre, SD 57501 atg.sd.gov Texas Ken Paxton (512) 463-2100 300 W. 15th Street, Austin, TX 78701 www.texasattorneygeneral.gov Utah Sean D. Reyes (801) 538-9600 Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, UT 84114 attorneygeneral.utah.gov West Virginia Patrick Morrisey (304) 558-2021 State Capitol, 1900 Kanawha Blvd E., Charleston, WV 25305 ago.wv.gov | — | ||||||
| 3/2/25 | ![]() The Lawsuit Threatening Section 504 | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In this episode I will be covering the lawsuit threatening Section 504 of the Rehabilitation Act of 1973 (Section 504). Sharing my Feelings Usually, I try to avoid my personal feelings when I discuss the law as a part of Demand Our Access. In preparing this episode, I had an impossible time fully separating my feelings of anger and hurt from the material I’m presenting. Given the reality that if the states are successful all of us with disabilities will have significantly fewer civil rights, I’m hoping you can understand why some of my feelings and opinions have made their way into this material. Before discussing Section 504 I will briefly describe the next episode and provide my contact information. The Next Episode The next live episode of the Demand Our Access podcast will take place on Saturday, March 15. In that episode, I will continue my revisited look at Title II of the Americans with Disabilities Act. Questions and Comments As always, I’m interested in hearing from you. Please provide any feedback by completing the contact form on the Demand Our Access website or by emailing me at Jonathan@DemandOurAccess.com. The Threat to Section 504 Briefly Describing Section 504 So we all understand the potential magnitude of this lawsuit, I want to briefly describe Section 504’s history and what it covers. As mentioned earlier, Section 504 is a section of the Rehabilitation Act of 1973, which was signed into law by President Richard Nixon. The regulations implementing Section 504 were not published by the Department of Health and Human Services until 1977, after the protests addressed in the documentary Crip Camp. Simply put, Section 504 applies to programs of the federal government and programs receiving money from the federal government. This means that Section 504 currently provides legal protections to those of us with disabilities in all public programs offered by the federal government and all programs receiving any funding from the federal government. For more information about Section 504, check out the episode titled Section 504 of the Rehabilitation Act of 1973. Texas v. Becerra On September 26, 2024, a group of 17 states led by Texas filed suit against the Department of Health and Human Services (HHS) in the Northern District of Texas. The currently named defendant in the suit is Xavior Becerra (the secretary of HHS during the Biden administration). This is why the lawsuit is currently referred to as Texas v. Becerra. Note, the link to the complaint filed by the 17 states posted to the Demand Our Access website when this episode of the podcast is posted goes to a reasonably accessible PDF on the Texas attorney general’s website. Participating States The 17 states participating in the lawsuit are as follows: Alabama Alaska Arkansas Florida Georgia Indiana Iowa Kansas Louisiana Missouri Montana Nebraska South Carolina South Dakota Texas Utah West Virginia Things to Know About the Lawsuit To, hopefully, not get too technical, I want to briefly cover the seven major aspects of the complaint filed by the 17 states. After briefly highlighting the important aspects of the complaint, I will delve into more specifics about some of them. I have organized the list of seven things you currently need to know about the lawsuit in a way that, I hope, addresses questions in an order most of you may be thinking about them: In a status report filed with the court on February 19, the Department of Justice, which has not yet said how it will participate in the lawsuit, and the 17 states asked for a pause in the cases timeline. Despite previous reporting, all 17 states that initially joined the lawsuit are still participating. The lawsuit seeks to have Section 504 declared unconstitutional. The lawsuit wants the rules developed by the Biden administration to further codify how Section 504 applies to health care providers dismissed. A lot of the complaint mentions how the HHS rules will affect Medicaid. The complaint seeks to limit the so-called integration of those of us with disabilities into community programs. Much of the language in the complaint focuses on HHS’s determination that gender dysphoria is covered under Section 504 and that people with gender dysphporia are protected by Section 504. The Unconstitutionality of Section 504 Since this is not an episode about constitutional law, I’m not going to dive deeply into constitutional arguments. Here, my goal is to provide a basic amount of education around the argument being made by the states that Section 504 is unconstitutional. Here are things to know about the argument that Section 504 is unconstitutional: The state’s argument is based around the Constitution’s Spending Clause. The Spending Clause grants Congress permission to raise and spend money for the nation’s defense and general welfare. There are three primary arguments being advanced by the states for why Section 504 violates the Spending Clause: Section 504 fails to provide unambiguous conditions for states receiving federal funds Section 504’s broad application imposes conditions on federal funding unrelated to the original purpose of the funds Section 504 is coercive, as it compels states to choose between complying with its extensive requirements or forfeiting all federal funding I can’t leave a discussion of the state’s argument that Section 504 is unconstitutional without highlighting the jeopardy our community faces from the second of the three arguments. The second argument being advanced for the unconstitutionality of Section 504 is the most important. By arguing that applying Section 504 to programs that are not specifically designed to cover those of us with disabilities, the states are trying to ensure that, even if they can’t convince the courts to deem Section 504 unconstitutional, they may be able to restrict its application to only those programs specifically designed for those of us with disabilities. If they were to win this point, only programs, like rehabilitation services, would continue being covered by Section 504. Programs including Medicaid and public education would no longer be covered by Section 504. The Biden Administration’s Rules on Health Care Providers and Accessibility On May ninth, 2024, HHS’s Office of Civil Rights announced new rules designed to make health care more accessible to those of us with disabilities. Three of the more important provisions of the updated rules are as follows: Child welfare agencies cannot remove children from the custody of disabled parents without an individualized determination that the child is not safe in the parent(s) custody. Within certain limitations, the websites and mobile apps of health care providers must be accessible. Equipment used in the provision of health care services is to be accessible to people with disabilities. If the 17 states win their case, the updated rules will be removed resulting in parents facing the loss of their children because of discrimination, people not being able to access accessible digital content, and people not having important medical exams and procedures because medical equipment is not accessible to them. Medicaid The states are arguing against the strengthened integration rules because of the ways they will affect Medicaid. In the simplest terms, the states are arguing against home-based health care services to be provided to people with disabilities who rely on Medicaid for their health care. In their complaint, the states actually argue that Medicaid was constructed to favor institutionalization. While there, sadly, may be truth in that argument, the provision of integrated health care services has been strong since the 1990s. In 1999, the Supreme Court in a case called Olmstead, supported the idea that services should be provided in the most integrated setting possible, with those certain limitations. So, plaintiffs are not only trying to have Section 504 declared unconstitutional, but they are trying to overturn nearly 26 years of Supreme Court rulings supporting the idea that services should be provided to those of us with disabilities in the most integrated setting possible. Integration Under the rules codified by Biden’s HHS in May of 2024, the government strengthened the integration provision under Section 504 as it applies to health care by indicating that recipients of federal money, including states, are required to provide services in settings that enable individuals with disabilities to interact with non-disabled persons to the fullest extent possible. The regulation explicitly prohibits actions that result in unnecessary segregation or pose a serious risk of such segregation. Examples of prohibited actions include policies that limit access to integrated settings, offering greater benefits in segregated environments, imposing more restrictive rules in integrated settings, or failing to provide community-based services, which could lead to institutionalization or a significant risk thereof. There are two main arguments being made by the states against the strengthened integration rules: The states argue that requiring states to administer programs in the “most integrated setting appropriate” imposes obligations beyond what Congress intended in the original statute. The integration mandate infringes upon states’ rights. By compelling states to modify their programs and services to align with federal integration standards, the plaintiffs claim this mandate disrupts the balance of power between federal and state governments as outlined in the Constitution. The two arguments being advanced by the states in opposition to strengthened integration rules are really troubling. If the courts strike down the notion that those of us with disabilities should be served in the most integrated setting possible, where is the end on that reversal? Would it just be limited to health care settings? Or will all provisions, like those guaranteeing disabled children the ability to be integrated in mainstream classrooms, also be eventually repealed? Gender Dysphoria Gender dysphoria is a psychological condition recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), published by the American Psychiatric Association. It refers to significant distress or impairment caused by a mismatch between an individual’s gender identity (their internal sense of being male, female, or another gender) and their sex assigned at birth. Obviously, a discussion of gender dysphoria is not at all related to what we are discussing here. I need to mention gender dysphoria here because of the sad reality that the 17 states are using HHS’s decision to consider gender dysphoria a disability as a justification to invalidate most of the civil rights those of us with disabilities have had for more than half a century. While I don’t doubt that the representatives of the 17 states disagree with the determination that gender dysphoria is a disability, I am personally offended by the idea that state governments are using gender dysphoria to rally support for the idea that Section 504 should be declared unconstitutional. If you disagree with my argument that gender dysphoria is being used here to fire up the public and distract them from the real motivations of the states, don’t forget they could have sued to simply overturn the determination that gender dysphoria is a disability. They could have sued to overturn the rules announced by HHS in May of 2024. Instead of taking one of those more conservative approaches, the 17 states chose to try to have Section 504 declared unconstitutional and to get the courts to reverse themselves on the idea that those of us with disabilities should be fully integrated into society. Following the Lawsuit If you are interested in getting updates on the lawsuit, I encourage you to visit the page dedicated to it authored by the Disability Rights Education and Defense Fund (DREDF). Conclusion Thank you for listening to this episode of the Demand Our Access podcast. I very much appreciate your support. | — | ||||||
| 2/17/25 | ![]() Title II Revisited | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. The Next Episode The next episode of the Demand Our Access podcast will take place on Saturday, March first. In that episode, I will continue our second look at Title II of the Americans with Disabilities Act (Title II). If you have any questions or comments about this episode or Demand Our Access in General, I would love to hear from you. You can email me at Jonathan@DemandOurAccess.com. You can also complete the contact form on the Demand Our Access website. Introduction Title II primarily sets forth the requirements state and local governments are supposed to follow to ensure their activities, programs, and services are accessible to those of us with disabilities. Unfortunately, their isn’t a single state or local government complying with Title II. Even worse, most state and local governments are demonstrably out of compliance with Title II. This deliberate noncompliance with Title II on the part of every state and local government adds to the discrimination faced by those of us with disabilities on a daily basis. Since we all need to interact with our state and local government, their lack of compliance with Title II causes us lots of stress and difficulty. For those reasons, I chose Title II to be the first topic I discussed through the Demand Our Access podcast. Over the last roughly 2.5 years, I hope my ability to teach important legal concepts has improved. So, I thought it would be good if I revisited Title II now. Much of the substance covered here will be very similar to what was covered more than two years ago. But I am, hopefully, presenting the information in a way that makes it easier to understand. Episode Roadmap I am covering these topics in this episode because they are the foundation of compliance under Title II. In the next episode, I will cover more of the information you will need to effectively request an accommodation or modification from your state or local government. If terms like accommodation and modification don’t mean anything to you now, they should when I finish our revisited two-part look at Title II. Below are the eight topics I will cover in this episode: Code of Federal Regulations Defining a Public Entity Project Civic Access ADA coordinator Notice of rights Grievance procedure Self-evaluation Transition plan Title II Revisited Code of Federal Regulations Laws don’t often contain all their legal requirements. Congress regularly directs federal agencies to develop or promulgate what the law will require. Under the ADA, several federal agencies have responsibility for developing guidance as to what it means to comply with the ADA. When an agency has responsibility for clarifying what compliance with section(s) of the ADA means, they have enforcement power over those section(s). The Department of Justice (DOJ) has primary responsibility for establishing what guidelines for compliance under title II. DOJ also has primary enforcement power over Title II. When a federal agency establishes what constitutes compliance, those requirements are published in the Code of Federal regulations. When I cite to a section of law (either during the episodes or on the website) I will almost always be citing to the Code of Federal Regulations. Often, the Code of Federal Regulations is referred to as C.F.R. When I refer to a section of C.F.R, I’m referring to a section in the Code of Federal Regulations. For the rest of this episode, I’m not going to mention any section in the Code of Federal Regulations. I’m not mentioning specific sections of the Code of Federal Regulations here, because I have realized mentioning the citations is very distracting for listeners. Even though I won’t mention the citations to the Code of Federal Regulations, they will be provided when the text of this episode and this accompanying audio file are posted to the Demand Our Access website as a podcast episode. Defining a Public Entity A public entity is defined in 28 C.F.R. § 34.104. Section 35.104 is the list of definitions under the ADA. The definition of public entity has three parts: any state or local government any department, special purpose district, or instrumentality of state, states, or local government the National Railroad Passenger Corporation and other commuter authorities All public entities with at least 50 employees should appoint their own ADA coordinator and have their own grievance procedure. Most local governments, if they have an ADA coordinator at all, do not have one in every agency or department. Project Civic Access Project Civic Access is the primary way the Department of Justice (DOJ) enforces Title II. It has conducted audits of communities in all 50 states, Washington, DC, and Puerto Rico. It has done more than 200 audits in total. The agreements are posted online to help communities come into compliance with the ADA. The settlement between DOJ and the City and County of Denver, Colorado is representative of what is typically covered. The settlement includes: notice grievance procedure ADA coordinator physical accessibility of facilities accessible web content emergency preparedness If none of the concepts mentioned in the Denver settlement make sense to you, I hope you will have a better understanding of them when I finish these two episodes. While Project Civic Access, especially now, may not do anything to hold state and local governments accountable, I believe it’s important to understand what DOJ has already established as the issues it’s most interested in state or local governments meeting. Even if DOJ won’t help you now, the language in Project Civic Access settlements can assist you when advocating with your state and local government. ADA Coordinator Information about the requirements for an ADA coordinator, to provide public notice of rights, and grievance procedures can be found in Chapter Two of DOJ’s Title II Tool Kit. The requirement for an ADA coordinator is established in 28 C.F.R. § 35.107(a). Public entities with at least 50 employees must designate a “responsible employee”. Most people refer to the responsible employee as an ADA coordinator. The ADA coordinator is supposed to investigate and resolve complaints filed under Title II and ensure compliance with Title II. The law does not specifically list any qualifications an ADA coordinator must have. Every public entity is required to notify the public of their ADA coordinator and provide that person’s contact information. One critical concept to remember about the requirement for all public entities to have an ADA coordinator is that a public entity is defined, in part, as the agencies, departments, and instrumentalities of a state or local government. If a state or local government took its compliance with Title II seriously, all of its agencies, departments, and instrumentalities with at least 50 employees would designate a qualified ADA coordinator. Sadly, most state and local governments, if they designate anyone as the ADA coordinator, they only designate one person to be the ADA coordinator for the whole state or local government. Notice of Rights Notice of rights is established in 28 C.F.R. § 35.106. The notice requirement applies to all public entities regardless of number of employees The notice should include the following: employment effective communication reasonable modifications no surcharges filing complaints The notice Should be published in all facilities, on the website, and included in event notices. The notice must be available in alternative formats The notice of rights, when offered, can be an important step to advocating for greater access. This is because a proper notice of rights will help you understand what your rights are and how your state or local government hopes to ensure it follows the law and effectively accommodates you. Unfortunately, many communities don’t publish a notice of rights. Others publish a combined notice of rights that generically states the state or local government will comply with several civil rights laws, but provides little or no specifics about compliance under any of those civil rights laws. Other state or local governments publish a notice of rights and then do little to ensure it’s followed. No matter what, looking for your state or local governments notice of rights is a good place to start. If they don’t have one, or if it lacks specifics, you have issues to raise at the beginning of your advocacy efforts. Grievance Procedure The grievance procedure requirement is established in 28 C.F.R. § 35.107(b). Every public entity with at least 50 employees is required to adopt and publish a grievance procedure. The grievance procedure is to allow for the “prompt and equitable” resolution of complaints filed under Title II. The DOJ sample grievance procedure calls for the following: the complaint filed preferably in writing date of and description of the problem should be submitted by the grievant or their designee within 60 days of the discrimination Meeting within 15 days of complaint being received Offer an appeal process All correspondence from the state or local government to you about your complaint are to be provided in accessible (alternative formats) One compliance mistake almost all state and local governments make is their failure to ensure every agency, department, or instrumentality meeting the definition of a public entity has its own grievance procedure. Since many public entities also don’t have their own ADA coordinator, the responsibility for investigating and resolving complaints for an entire state or local government usually falls on one person. One way we could raise the issue of noncompliance with Title II on the part of our state and local governments would be to figure out if they have a grievance procedure. If they only have one for the entire state or local government, filing a number of complaints under their grievance procedure would highlight the insufficiency of their efforts to comply with title II. Filing with the state or local government directly won’t result in you collecting damages, but it should result in them better accommodating you. If they do it correctly, it should also result in them making changes so they better follow the law. Self-evaluation The self-evaluation is an examination of a public entity’s activities, programs, and services for accessibility to people with disabilities. The self-evaluation requirement is established in 28 C.F.R. § 35.105. The Deadline for completion of self-evaluations on the part of state and local governments was January 26, 1993. It is required of all Public entities regardless of number of employees. People with disabilities must be given a chance to comment. If there are more than 50 employees, the self-evaluation must be available for public inspection for three years. The documentation made available to the public is to include: list of people consulted facilities inspected description of completed modifications If a Self-evaluation was completed under Section 504 of the Rehabilitation Act of 1973, it is sufficient. There is no requirement for updating the self-evaluation. Transition Plan The transition plan is a public entities schedule to remove physical barriers that must be removed to achieve programmatic access. . The transition plan is established in 28 C.F.R. § 35.150(d). Public entities with 50 or more employees must complete a transition plan. Transition plans were to be completed by July 26, 1992. All barriers were to be removed by July 26, 1995. A transition plan should do the following: identify physical barriers Describe how barriers will be removed Set forth a schedule of barrier removal A transition plan should name the person in charge of compliance with the transition plan. To my knowledge, there isn’t a single state or local government that has removed all physical barriers to access. Most of them haven’t completed their transition plan. Even when a state or local government has completed their transition plan, it’s very unlikely they are constantly checking to ensure new physical barriers to access haven’t been created since their facilities were studied for accessibility as a part of the transition plan process. Advocating Under Title II In case you’re interested in advocating for greater access with your state and/or local government, check out the episode called Advocating for Our Rights Under title II of the ADA. In that episode, I walk through specific steps you can take when advocating under Title II. Conclusion This completes our revisited look at basics under Title II. I will be back on March first to continue our look at Title II. Thank you for listening to the Demand Our Access podcast. I very much appreciate your support. | — | ||||||
| 2/11/25 | ![]() Advocacy Updates and Playing the Blind Card | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction This episode has two main topics: advocacy updates from Desiree and I; and playing the blind card while advocating. The next live episode will take place on February 15 at 2:00 EST. I don’t yet have a planned topic for that episode. If you have any comments and/or suggestions, please write me at Jonathan@DemandOurAccess.com or complete the contact form at Demand Our Access. Advocacy Updates From Desiree and I My Advocacy Updates While I can’t yet discuss everything I’m working on, I want to mention my complaint with the Equal Opportunity Employment Commission (EEOC), and issues I’m having with the Oregon Employment Department (OED). My EEOC Complaint The EEOC has accepted my charge of discrimination and notified my former employer. While awaiting their response, I have decided that, if they agree, I will attempt to resolve my discrimination through mediation run by the EEOC. I have made the choice to try mediation, even though I doubt it will be successful, because mediation could bring about a much faster result. Also, there is the reality that the current administration is seemingly considerably less likely to litigate cases of disability discrimination. But even if they don’t, I still have hope that the Oregon Bureau of Labor and Industry, which has a partnership agreement with the EEOC, will investigate if mediation fails. My Issues with the Oregon Employment Department After trying for more than a month, I made the difficult decision to stop seeking additional unemployment benefits. The truth is that constantly fighting for the access I need to consistently get the unemployment benefits I’m entitled to receive from an agency with little to no knowledge of its legal responsibilities under Title I and no desire to meaningfully provide the accommodations I’m entitled to receive from them was causing me tremendous stress. So, I have begun the process of trying to force them to follow the law by filing with the Oregon Bureau of Labor and Industry. At this point, I don’t believe the Department of Justice will assist me. So, I hope I can, at least, make it so the next blind person needing accommodations from OED to get the benefits they deserve doesn’t suffer the amount of discrimination I have suffered. Desiree’s Traveling with a Service Animal As you may know, Desiree has a new guide dog. While you are listening to this, she is in Florida at a conference. Prior to flying to Florida, she had to complete the forms necessary to fly with a service animal. What you are about to hear is the inaccessibility she encountered while completing the required forms. In her recording, Desiree mentioned the company Open Doors that enables you to register your service animal with five different airlines. Playing the Blind Card Introduction to Playing the Blind Card While I’m calling what I am talking about here the blind card, it’s important to note that the analysis I will share here applies to all situations where a disabled person uses stereotypes and assumptions about disabled people and those of us with disabilities to encourage nondisabled people to make something more accessible. Obviously, what I’m sharing here is strictly my opinion. I recognize and appreciate others will disagree. I’m sharing this anyway to hopefully stimulate thought and provoke what I believe is an important discussion. The last episode of the Demand Our Access podcast focused on how we can advocate during these difficult political times. During the question and comment portion of the live version of the podcast, the issue of playing the blind card while advocating was raised a couple of times. Since I never play the blind card, I thought I would take some time to explain my personal opposition to playing the blind card while advocating. Why I Never Play the Blind Card I never use the negative stereotypes and negative assumptions many sighted people have about blindness and those of us who are blind when I’m advocating is that feeding on those stereotypes and assumptions continues the disrespect, whether understood or not, by the sighted person of me and the rest of us who are blind. Simply put, if someone believes blind people are less capable, believes we deserve credit for doing everyday tasks that are easy for them but which they incorrectly assume are more difficult for us than they are, or develops (whether encouraged or not) a feeling of pity for us that person will never fully respect us. Also, that person will never see us as their equal. If someone doesn’t respect blind people, doesn’t see blind people as their equal, or pities blind people that person will never believe blind people are entitled to the same rights and privileges they take for granted. This truth often will not prevent the sighted person from granting us a short-term, relatively easy accommodation or otherwise trying to help. In the long run, though, it will prevent the sighted person from working toward the societal change we need to create a world that is accessible and inclusive to us. More problematic with playing the blind card is the greater harm we cause our community. As we all know, those of us who are blind have a difficult time finding work. In many instances, we struggle for equal inclusion in social settings. As I think most of us are aware, the struggles we often face finding work and making true friends results from the negative feelings many sighted people have about blindness and blind people. What we don’t often consider when playing the blind card to achieve short-term access is how playing that card and creating feelings of pity for us on the part of the sighted person further complicates the ability of all of us to find work and make meaningful friendships. When someone makes a document accessible because they feel sorry for a blind person’s inability to read print and isn’t even aware that by failing to make their document accessible they violated the law and the civil rights of blind people that sighted person is unlikely to ever change the processes that resulted in the document being inaccessible. By failing to change those processes, the person will force all blind people to continue to have to request accessible documents; instead of providing the access provided everyone considered worthy of access. If that person is unaware they violated the rights of blind people by creating an inaccessible document and they gave one blind person an accessible document because they felt sorry for them is that sighted person likely to hire a blind person? Is that person likely to be capable of considering a blind person to be their trusted friend? The truth, as I see it, is that by playing the blind card we are encouraging the continuation of negative stereotypes and negative assumptions about blind people and blindness. By assisting in the continuation of those negative stereotypes and assumptions, we are not educating people about our civil rights, holding them accountable for violating our civil rights, and making it harder for our community to achieve the kind of access and inclusion we all individually deserve. By perpetuating the idea that people should accommodate us out of pity or with a nod to our imagined incapabilities, we are enabling society to continue placing the burden of ensuring greater access and inclusion largely on us. We will only create a society that is accessible to and inclusive of us when we are proud enough and strong enough to consistently promote the need for sighted people to see our rights as civil rights and when we refuse to use their negative stereotypes and negative assumptions about us and our disability to foster feelings of pity for us. When someone pityís you that person will never hire you. When someone pitties you that person will never truly love you. I am doing Demand Our Access so we can advocate from a position of education and strength. Hopefully, with greater understanding of our rights, more of us can advocate for our community from the perspective of we have the right to be fully included. In closing, I’m not suggesting people shouldn’t, where appropriate, educate people as to why something is inaccessible. But I strongly believe the best way for us to create a society that is accessible to and inclusive of us is for us to mix that education with strong reminders that we have civil rights laws that need to be followed. If so-called hearts and minds advocacy worked, we wouldn’t be living in a society where much is still inaccessible. Conclusion Thank you for listening to this episode of the Demand Our Access podcast. I appreciate your support. | — | ||||||
| 1/19/25 | ![]() How You Can Comment on the Proposed Fine of AccessiBe | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Briefly Explaining Accessibility Overlays So we are all on the same page, I want to briefly describe the kinds of overlays involved here. Several companies, including AccessiBe, have been marketing overlays to government agencies, businesses, and nonprofits. In marketing these overlays, these companies, including AccessiBe, are selling the myth that installing these overlays will make websites fully compliant with the Web Content Accessibility Guidelines (WCAG). The idea is that if these overlays are used, websites will fully comply with WCAG and the websites will be fully accessible. As anyone who uses assistive technologies knows, these overlays don’t make websites fully usable to those of us who use assistive technologies. As the Federal Trade Commission (FTC) mentions in its document explaining the proposed consent agreement discussed soon, AccessiBe’s Access Widget doesn’t even create compliance with WCAG. How you can Comment on the Proposed Fine of AccessiBe Explaining AccessiBe AccessiBe is an Israeli company that develops and sells what it calls AccessWidget. AccessiBe has been promoting the idea that all companies, government agencies, and nonprofits need to do to is install AccessWidget and their websites will be accessible to everyone. Currently, AccessiBe’s website boasts that more than 100K websites have been made accessible to everyone through the use of AccessWidget. The current price for using AccessWidget is $490 annually for sites with less than 1,000 pages. For websites with less than 10,000 pages and for premium add-ons, the current annual cost for AccessWidget is $1,400. For sites with less than 100,000 pages and for premium add-ons, the current annual cost is $3,490. The FTC’s Fine On January sixth, the Federal Trade Commission announced a proposed consent agreement with AccessiBe and asked for public comment. Under the terms of the proposed consent agreement, AccessiBe would be fined $1 million for alleged violations of law prohibiting unfair or deceptive acts or practices. Speaking about AccessiBe’s actions, the FTC’s analysis of the proposed consent agreement says the following: This matter involves AccessiBe’s marketing and sale of a web accessibility software plug in called AccessWidget. AccessiBe represented that AccessWidget could make any website compliant with the Web Content Accessibility Guidelines (“WCAG”), a comprehensive set of technical criteria used to assess website accessibility. AccessiBe advertised these claims on its website and social media, as well as in articles that were formatted as impartial and objective reviews on third-party websites. AccessiBe also failed to disclose its material connections with the publishers of those third-party articles. The proposed complaint alleges that AccessWidget did not make all websites WCAG compliant, and that the company’s claims were false, misleading, or unsubstantiated. The proposed complaint also alleges that formatting the third-party articles and reviews as independent opinions by impartial authors and publishers was false and misleading, and that AccessiBe’s failure to disclose its material connections with the publishers of those articles was deceptive. The proposed order contains provisions designed to prevent AccessiBe from engaging in these and similar acts and practices in the future. Provision I prohibits AccessiBe from representing that its automated products, including accessWidget’s artificial intelligence and other automated technology, can make any website WCAG compliant, or can ensure continued compliance with WCAG over time as web content changes, unless the company has competent and reliable evidence to support the representations. Provision II prohibits AccessiBe from misrepresenting any fact material to consumers about any of the company’s products or services, such as the value or total cost; any material restrictions, limitations, or conditions; or any material aspect of its performance, features, benefits, efficacy, nature, or central characteristics. Provision III prohibits AccessiBe from misrepresenting that statements made in third-party reviews, articles, or blog posts about its automated products, including accessWidget’s artificial intelligence and other automated technology, are independent opinions by impartial authors; that an endorser is an independent or ordinary user of the automated product; or that the endorser is an independent organization or is providing objective information. The proposed consent agreement has several additional provisions. I am not going to read the rest of them here. If you’re interested, a link to the whole analysis from the FTC will be in the show notes when this episode is posted to Demand Our Access. A Comment I Previously Submitted. Here is a comment on the proposed consent agreement I submitted prior to recording this demo. As a totally blind person, I’m so glad the FTC has taken action against AccessiBe. Overlays, like AccessiBe, cause those of us who use assistive technologies to use the web more problems than they solve. There are two primary reasons why AccessiBe causes those of us who use assistive technologies more problems than they solve: they give website owners a false sense of compliance; and they are frustrating for those of us who use assistive technologies to use. Thanks to the deceptive marketing practices of AccessiBe, businesses and government agencies have been convinced to believe that installing AccessiBe’s overlay will actually make all of their site and related sites accessible. As the settlement demonstrates, the vast amount of third-party content necessary to effectively use the services offered by most businesses and government agencies will not be affected by AccessiBe’s technology unless the third-parties use the tool as well. For this reason, I’m very much looking forward to sharing the final settlement with my water company. It’s third-party portal is not accessible, even though the water company has put AccessiBe’s tool on its primary website. AccessiBe and all of the other overlays promising WCAG compliance are frustrating to use for those of us who use assistive technologies because they change the way we typically navigate web content. Depending on the overlay being used, we have to memorize different keystrokes. In some cases, we need to activate a menu and choose different options. Both of these requirements make navigating web content slower and less efficient for those of us who use assistive technologies than web navigation is for those who don’t use assistive technologies. Also, use of overlays, like AccessiBe, will never make web content as accessible and usable as is content coded for accessibility and tested by native users of assistive technologies for usability. Not addressed by this settlement because it’s beyond the scope of this settlement is the reality that strict compliance with the Web Content Accessibility Guidelines doesn’t actually ensure web content is fully accessible and/or usable. Even if AccessiBe was able to make all web content compliant with the Web Content Accessibility Guidelines, it would not be able to promise to make all web content fully accessible to and/or usable by those of us who use assistive technologies. I thank the FTC for taking this important action on behalf of those of us with disabilities. I’m hopeful this action will help businesses and government agencies understand that there is no substitute for coding web content for accessibility and for having native users of assistive technologies test important content for usability. Commenting on the Proposed Consent Agreement Tips To Remember Before demonstrating how you can comment, I want to share a few tips that may help you figure out what to say: You don’t need to write a book or be overly technical. Even if a previous commenter has said what you were thinking of saying, we are helped by the number of comments submitted. Any constructive feedback helps. This is a relatively easy way to have your voice heard and for you to make a difference. Deadline for Commenting Comments on the proposed consent Agreement must be filed no later than 11:59 PM EST on February fifth. In order to file a comment on the proposed consent agreement, we will use the Regulations.gov website. For the purposes of this demo, I am using a PC running Windows 11, Microsoft’s Edge browser, and version 2025 of the JAWS for Windows screen reader. My operating system, web browser, and screen reader are all up to date. The Comment I will Post for This Demo I have chosen to post this comment as a part of the demo, because I hope it shows people they don’t need to write several paragraphs, quote the agreement, or use technical language. The key is simply to share any feedback you have about the proposed consent agreement. The Text of the Comment Being Posted I briefly mentioned this in a previous comment, but it deserves its own comment. The focus of the harm done to those of us with disabilities by AccessiBe, and the rest of the accessibility overlay industry, shouldn’t be limited to how overlays, like AccessWidget, don’t actually provide compliance with WCAG. It’s very important that people without disabilities recognize the cognitive overload these overlays force us to experience. Having to learn new keystrokes and/or having to select different menu options depending on the overlay being used is a barrier people without disabilities don’t experience. If websites were accessible and usable, we could navigate all websites in a similar manner. With the prevalence of these overlays, we have to take all kinds of additional steps we don’t have to take when sites are coded correctly. We have to take all of these extra steps, and as the FTC found, the extra steps don’t result in accessibility, never mind usability. Now for the Demo I have pasted the comment I just read to my clipboard. When I get to the comment field, I will paste it in there. | — | ||||||
| 1/6/25 | ![]() Advocating During These Politically Challenging Times | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction Without getting too political, I think most people would agree that advocating for civil rights will not be the same under the incoming Trump administration as it has been under the Biden administration. That being said, I strongly believe that advocating for our rights, even if you don’t believe our advocacy efforts will be as successful, is even more important than maybe it has ever been. I say that because if the Trump administration is serious about cutting programs that provide greater access and inclusion, one of the best ways we can defend the programs we need is to demonstrate how many things still aren’t working. To put it another way: if very few people are requesting accommodations or modifications, or asking government to enforce violations, the easier it will be for officials to argue that our civil rights programs aren’t needed. Before getting into how we can advocate for our rights during the second Trump administration, I think it’s important to provide some reminders as to what actually happened during the first Trump administration and how little we are on his mind: The first Trump administration made no real effort to repeal or seriously weaken the ADA and related laws. Trump almost never talks about the ADA and those of us with disabilities. He has not promised to reduce the rights of those of us with disabilities. Trump wouldn’t get many political points by launching an attack against the disability community and/or by threatening to destroy the access we currently have. I shared those reminders because I believe the first Trump administration, at least when it comes to the civil rights of those of us with disabilities, is a good indicator of what the second Trump administration will be like for our advocacy efforts. As you may remember, the first Trump administration did basically nothing to improve access for those of us with disabilities. But it didn’t go out of its way to destroy the gains we have made prior to Trump taking office for the first time. Currently, that is what I expect to happen beginning on January 20. Since I don’t expect our concerns to be taken seriously, we need to begin our look at advocating during the second Trump administration by considering how we can advocate for our rights outside of the Department of Justice, the Equal Employment Opportunity Commission, and the rest of the federal agencies with oversight over our civil rights laws. Advocating for Our Rights Under the Second Trump Administration A key to our advocacy efforts under the second Trump administration will be using the state and local laws that provide us similar protections to those we have under the ADA at the federal level. How effective advocacy efforts will be at the state and local level will depend, in part, on how seriously your state and/or local government takes the civil rights of those of us with disabilities. So, everyone’s mileage will not be the same. But everyone, except those of you living in Alabama, has a state law promising civil rights protections to disabled people. Obviously, I cannot cover the 49 state laws that provide protections to those of us with disabilities on this podcast. In the recording, I discussed a table listing the state-specific laws. I was not able to publish that table to the site, because I am having issues with the way WordPress is interpreting the HTML for the post with the table. In case you consider your state’s law, I want to give you a few important reminders: No state law can provide us fewer protections than we get from the ADA and related laws. States are allowed to provide greater and different protections than are provided by the ADA. Most of the state laws providing us civil rights protections are very similar to the protections provided by the ADA. Some states offer protections of our civil rights when it comes to education. Some states offer protection of our civil rights when it comes to financial issues. Some states offer protection of our civil rights when it comes to housing. Only a few states directly call out protections similar to those offered by Title II of the ADA (covering the activities, programs, and services of local governments). Most state laws address the protections offered by Titles I and III of the ADA (covering employment and businesses and nonprofits respectively). Advocating Under Title I and Your State’s Law As you most likely know, The Equal Employment Opportunity Commission (EEOC) oversees compliance with Title I of the ADA. What you may not know is that the EEOC has partnership agreements with state and local agencies it calls Fair Employment Practices Agencies (FEPAs). Generally, the agreements between the EEOC and the FEPAs call for joint jurisdiction over filed claims. This means that by viling with the EEOC you are very likely to also be filing with your local FEPA. If the EEOC can’t or won’t investigate your complaint, there is a chance they will work out an arrangement with your local FEPA that will result in your complaint being investigated. This is especially true if your claim raises issues of state law as well as issues under Title I. The EEOC does not have a page listing all of the FEPAs. So, I cannot provide you an easy resource you can use to discover the agency in your community that works with the EEOC as a FEPA. But a simple search for your local FEPA should give you the required contact information. If your local FEPA has a filing process that is more accessible than is the filing process offered by the EEOC, you can choose to file with your local FEPA. In all likelyhood your complaint will reach the EEOC even if you file through your FEPA. Advocating Under State Law Protections Like Titles II and III While the Department of Justice is largely responsible for addressing claims filed under Titles II and III of the ADA, we can use, where available, state laws that provide similar, greater, or different protections than do Titles II and III. Again, I can’t discuss all of the state and local agencies that have enforcement powers over local laws providing similar protections to Titles II and III, but I can provide some tips you can use if you need to file under a local law: See if your state or local community has a human rights commission or some other agency with "human rights" in its name. See if your state or local community has an office of equity and inclusion. See if your state or local community has an agency with the word "disability" in its name. If you find an office with one of those words in its name, it is likely it will be the place that can address your complaint. If not, it is almost certain that the agency will be able to direct you to the right place. Local Laws Protecting Our Civil Rights Again, I can’t possibly cover all of the local laws providing us civil rights protections, but you should be aware that many cities, counties, and towns have adopted local laws that discuss our civil rights. Examples of communities with civil rights laws granting those of us with disabilities protections include but are not limited to: New York City; San Francisco, CA; Chicago, IL; Austin, TX; Los Angeles, CA; and Seattle, WA. Local Enforcement All of the cities listed in the previous section have offices that, to differing levels, have the authority to enforce their local civil rights laws. If you are facing discrimination, it’s a great idea to find out if your local community (whether it be state, local, or both) has a civil rights law providing those of us with disabilities protections. If your local community has a civil rights law that provides us some protections, it is very likely there is an agency with the authority to take enforcement actions. If you don’t have a local office that investigates claims of discrimination, you can always look at your local district attorneys office and/or your state’s attorney general. Again, your milage will vary, but there are ways to have violations of your state law protections investigated. Don’t Forget Local Organizations If you are struggling to figure out who to contact, don’t forget to ask local organizations in your community if they can help. Maybe someone in your state or local ACB affiliate will be able to help. Maybe your local NFB chapter will have an answer. It is likely your local Client Assistance Program (normally charged with assisting you when you have issues with your rehab agency) can provide assistance. Many state bar associations have lawyer referral programs. While the terms of these lawyer referral programs are different, it is very likely you can be matched with at least one lawyer who will provide you a free consultancy to briefly discuss your situation. In every community there are organizations and people who are able and willing to help. If you are experiencing discrimination, you will, if you work at it, be able to eventually find a way to have your discrimination addressed. This is true even if the Trump administration is even less interested in advancing our civil rights than the Biden administration has been. Conclusion Thank you for listening to this episode of the Demand Our Access podcast. I truly appreciate your support. | — | ||||||
| 11/16/24 | ![]() What do do When You Face Discrimination at Work | My Mastodon Handle In case anyone is interested, I joined Mastodon. My handle is @JonathanSimeone@caneandable.social. All of the posts I make to the Demand Our Access website will automatically be shared to my Mastodon account. I look forward to meeting you on Mastodon. Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In this episode, I will briefly recap Title I of the Americans with Disabilities Act (Title I) before discussing steps you should take in case you face discrimination at work. If you have any comments or questions about this episode, you can complete the contact form on the Demand Our Access website, or you can email me at Jonathan@DemandOurAccess.com. For more information about Title I, visit the page called ADA Title I Information. If you are concerned as to how recent political events will affect the ability of people with disabilities to have concerns of discrimination addressed by the federal government, I will be covering that in the next episode. That episode will be live on ACB Community on Saturday, December seventh at 2:00 PM EST. It will be posted to Demand Our access shortly after it is presented live. As I have said several times before, there is no way to cover this kind of material without using words like "impaired" that many of us in the disability community don’t use. I’m using words like "impaired" here because those are the words used in the law. Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and be written in modern language. For now, we have to discuss the law as it has been written. Briefly Recapping Title I Our brief recap of Title I is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 1630. To make this presentation easier to follow, I’m not going to mention the exact citations to different sections of the Code of Federal Regulations. If you are interested in the citations, you can find them in the episodes where I discussed Title I. I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I’m doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I. If you heard either of the episodes where I discussed Title I in greater detail, some of this will be review for you. I have included what I believe are some of the most important things to know about our rights under Title I here so if someone listens to this episode prior to listening to the episodes on Title I, some of the information they will need is here. Important Concepts For an employer to be covered byTitle I, it must have at least 15 employees. The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions. To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you. Private membership clubs (excluding labor organizations) are not covered by Title I. Religious institutions are covered by Title I. But they may give preference to people of their religion. Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I. Discrimination Prohibited It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following: Recruitment, advertising, and job application procedures Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring Rates of pay or any other form of compensation and changes in compensation Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists Leaves of absence, sick leave, or any other leave Fringe benefits available by virtue of employment, whether or not administered by the employer. Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training Activities sponsored by an employer, including social and recreational programs Any other term, condition, or privilege of employment The term "discrimination" under Title I includes but is not limited to the acts described in 29 C.F.R. 1630.4 through 29 C.F.R. § 1630.13. Again, visit the page ADA Title I Information to learn more. Contractual or Other Arrangements It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer’s own qualified applicant or employee with a disability to the discrimination prohibited by Title I. Contractual or Other Relationship Defined The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union, including collective bargaining agreements, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs. The requirement that employers not discriminate through contractual arrangements or other relationships is important because of the number of relationships employers typically enter into that affect employees; for example, when an employer signs a contract whith a third party to manage the benefits the employer provides its employees, anything covered by that contract must be accessible. If an employer contracts with a third party for the use of an online portal where employees are to manage the benefits of their employment, the portal must be accessible. Relationship or Association with a Disabled Person It is unlawful for an employer to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association. The provision providing protections for those who have a relationship with a disabled person typically arises when an employer knows the family member of an employee has a disability requiring expensive health insurance. If the employer fires the employee to avoid the cost of their family member’s health care, the employer has violated Title I. Not Making Reasonable Accommodations It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual’s physical or mental impairments. An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act. An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified. An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I. Retaliation and Coercion Retaliation It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in Title I. If you face discrimination at work, the retaliation provision is important because it protects any coworkers who tell the truth about the discrimination you are facing. Coercion, Interference, or Intimidation It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by Title I. This means an employer cannot bully you to prevent you from advocating for the rights you have under Title I. What to do When you Face Discrimination at Work A Note About Me I am not going to share everything about my situation now, but I believe you should know that I was recently laid off by my former employer. One of the reasons I believe I was laid off is their inability to accommodate me. Since I have been facing discrimination since I began working for them in March of 2018, I have been following the practices outlined below for years. Because I have documented much of the discrimination I have faced, I believe I have a good chance at having the EEOC determine that my former employer discriminated against me based on my status as a disabled person. I will provide more details of the discrimination I faced in future episodes. Things to do as Soon as You Apply Here are things every employee and job applicant with a disability should remember: Discrimination does not need to be intentional. Since most employers are not familiar with their responsibilities under Title I, my advice is to prepare as if you will face discrimination. When something does not work as you think it should, save all related emails and documents. If things are not going well, do as much of your communicating with your boss or human resources in writing. If your boss or human resources schedules a meeting with you to discuss something related to an accommodation, confirm your take-aways from the meeting in writing. If someone says something that sounds like discrimination, confirm what they said in writing. If you are part of a union, report the discrimination you are facing to a shop steward. At the first sign of trouble, don’t run to the EEOC. Don’t wait too long to run to the EEOC. Let’s unpack some of these points. Intentionality This may be hard for some to understand, but I believe we are better off assuming we will face discrimination at some point and preparing to defend ourselves if it happens. As I said before, discrimination under Title I does not need to be intentional to be discrimination. This does not mean you should be expecting everyone to constantly discriminate against you; instead, the idea of preparing to defend yourself against discrimination is an acknowledgment that most employers are not familiar with their responsibilities under Title I. Even if an employer has no intention of discriminating, they may do so accidentally. Whether the discrimination you face is intentional or not, it is still discrimination. When you face discrimination, you have a right to have your discrimination remedied. Save Related Information There are many ways people communicate at work. Whether it be through email, Teams chats, or the sharing of documents, and more, there are many ways workplace communications are sent. How you communicate at work depends a lot on choices made by your employer. No matter how you communicate at work, you should develop a strategy for keeping communications that address any potential discrimination you face at work. As soon as I started working for my previous employer, I knew there was going to be trouble. Critical online tools employees are expected to use were not accessible. Most employee trainings were not accessible. Almost no one working in human resources had any idea of my rights as a disabled person under Title I. Understanding these realities and accepting that I may someday face discrimination that would be so severe that I would need to file with the EEOC, I began keeping all emails related to the discrimination I faced. I kept the emails I believed I would need by forwarding them to my personal email and moving them to a special folder in my personal inbox. When I wound up having to file with the EEOC, I had dozens of emails and documents going back more than six years to prove the discrimination I had faced. Communicate in Writing As often as you can, you should get important things related to potential discrimination put in writing. If someone tells you why a certain accommodation cannot be provided, send them an email as close to the meeting’s ending as you can summarizing what you believe were the key points they made during the meeting. Ask them nicely to confirm whether your summary of the meeting is accurate. Tell them if they do not correct anything, you will proceed as if your understanding of the meeting is agreed to by them. By telling them no response will be considered an acceptance of your summary, you increase the chances that important information will be available in writing for you to use to strengthen your complaint. Tell Your Union If you are lucky enough to be a member of a union, you should reach out to your union when you are facing discrimination at work. Union’s have many tools such as unfair labor practices, grievances, and appeals to civil service review boards that may be able to help resolve your discrimination. Even better, the union will provide assistance and, where possible, may even fund actions that could help you. Every contractual relationship between a union and an employer is different. But if you are a member of a union, there is a good chance your union may be able to help. My union has filed unfair labor practices against my employer, they have also filed with the Civil Service Review Board, and they organized a show of support at an employer-sponsored picnic. In short, my union has been a stong supporter of me and is strongly advocating on my behalf. Don’t Run to the EEOC For many reasons, filing a complaint with the EEOC and/or a state or local agency that accepts complaints under Title I should not be the first thing you do when you face discrimination at work. Here are some of the reasons why this kind of complaint should not be filed right away: Filing an external complaint really escolates the tension between you and your employer. *Filing too early prevents you from putting together a stronger case if you wind up needing to file. The EEOC and its local partners take a long time to investigate. In most cases, the EEOC will not represent your if you wind up needing to sue your employer. Don’t Wait Too Long to File In my case, I waited too long to file my complaint with the EEOC. I had, what seemed at the time, good reasons for waiting. But had I filed earlier, I don’t believe there is any chance my former employer would have taken the illegal actions it wound up taking to terminate me when it had no grounds to terminate me. I say that because had my former employer been under an ongoing investigation for the consistent discrimination it subjected me to, it would have been extremely unlikely to commit even more violations that would immediately be scrutanised by the EEOC. Deciding When to File On one hand, I have told you not to file too quickly. On the other hand, I have told you not to wait too long to file. So, how do you decide when is the right time for you to file an external complaint against your employer? The answer is that you should file an external complaint against your employer when it becomes obvious to you that no internal action is available that may reduce the discrimination you are facing. Here are questions to ask when determining whether it is time for you to file an external complaint: Does your employer have a policy for how it will address requests for accommodation made under Title I? Is anyone trained on the policy for addressing accommodations requests under Title I? What happens when you file a request under Title I? If things aren’t going well, does your employer have an internal complaint procedure? Have you tried to use your employer’s internal complaint procedure? Did your employer’s internal complaint procedure result in actions being taken to reduce the discrimination? If your employer has no procedures for how it will address requests for accommodation made under Title I, things are unlikely to get much better. If you file an internal complaint about the discrimination you are facing and going through the process does nothing to materially reduce the discrimination you are facing, it is unlikely any additional internal processes will result in change. Going through an internal complaint process that results in no meaningful change in your circumstances is a great way to show discrimination if you wind up filing with the EEOC or a relevant state or local agency. Final Thoughts Abelism is alive and well. Through ableism, we often face discrimination. The workplace, because most of us have difficulty finding work, is often a place where we face discrimination. The purpose of this episode isn’t to scare people. Nor is it intended to make you feel like every employment setting will be hostile. The purpose of this post is to be very frank about the reality of disability discrimination in the workplace and to hopefully help some of you begin to figure out how you will address the discrimination you are facing on the job. Far from suggesting you file with the EEOC a week after you being a new job, I hope you will take from this episode the need to be realistic about the discrimination you may face at work. If you begin saving emails and documents that could be used if a complaint is eventually filed, you will be glad you were prepared. In the meantime, showing proof of the discrimination you are facing could encourage your employer to do better–reducing the chances that you will need to file an external complaint. Simply put, once things don’t feel right you should begin preparing as if things will go very badly. But before you take the huge step of turning your employer in to an external agency to investigate, you should work within the systems, such as they are, that have been established by your employer. The more internal steps you take to resolve the discrimination you are facing, the better the chance you will never need to file. If you wind up filing, your efforts to resolve the discrimination internally will really add to your case. Conclusion Thanks for listening to this episode of the Demand Our Access podcast. I really appreciate your support. | — | ||||||
| 11/3/24 | ![]() Using AI to Advocate and Learn About the Law | Introduction As the title indicates, this episode is about using artificial intelligence (AI) to advocate for our legal rights and to learn more about the law. Specifically, I demonstrate using AI to find who to contact when you need to make an ADA request of your local government, having AI draft the substance of an ADA request, and using AI to learn more about the law. All demonstrations were done using ChatGPT. Since some people don’t want to pay for ChatGPT, I demonstrate these tasks in the free version too. Important Notes on ChatGPT ChatGPT is a tool that can make doing things faster and more efficient. ChatGPT makes mistakes. Don’t use it to do important work for you unless you can check its results. For making an ADA request, ChatGPT doesn’t need to be perfect. It only needs to communicate the basics of a request. The paid version of ChatGPT provides much better, faster responses than does the free version. The free version will make developing an accommodations request easier, especially if you don’t know how to make an accommodations request. Why I Won’t Share Exact Prompts In thinking about it, I decided I couldn’t share exact prompts here as suggestions for you. I can’t share exact prompts here because the responses ChatGPT provides depends on a number of factors including: how often you use it; how often you have asked it to perform tasks similar to what you would be asking it to do when making an accommodations request; and what information you need it to provide. As an example, finding the ADA coordinator for Boston, MA is significantly easier than is finding the ADA coordinator for Leander, TX, as the recording demonstrates. Since I don’t think providing exact prompts will work, I want to strongly encourage you to try using ChatGPT, whether you have the paid or free version) to help you develop an accommodations request under the ADA. If you try using ChatGPT to make an accommodations request or to learn more about the law, please let me know. I would appreciate hearing about your experiences. Important Notes On ChatGPT’s capabilities The paid version can create a sample request in different formats, including Word. The free version cannot provide sample text in different formats, but you can paste its sample text into the app of your choice. The paid version can provide actual names of people holding different positions. The free version does not give specific contact information. The paid version can be customized to learn how you want it to work. The free version cannot be customized. Conclusion I strongly believe AI can do much to help all of us make ADA requests and learn more about our legal rights. If you are interested, I urge you to give ChatGPT a try. You may find that by using it you are more comfortable making ADA requests and you may be more willing to demand your access. | — | ||||||
| 10/23/24 | ![]() Section 504 of the Rehabilitation Act of 1973 | About Me It has been more than two years since I shared a little about me in one of these episodes. So, I am going to do it here for the benefit of people who have started listening since I last shared a bit about myself. Education and Certifications I have a law license from Massachusetts. I am a certified ADA coordinator. I am a certified Professional in Accessibility Core Competencies’. I am a member of the ADA Trainer Leadership Network. Professional Background I am the disability analyst for Portland Parks & Recreation in Portland, Oregon. Previously, I was the ADA Title II disability policy analyst in Portland’s Office of Equity and Human Rights. I was a contract attorney for Disability Rights Advocates in Berkeley, California. I was a staff attorney for the then American Bar Association’s Commission on Mental and Physical Disability Law. A Few Personal Things I was born totally blind. I am a member of the American Council of the Blind. I live in Oregon with my wife Desiree and the two youngest of my three stepdaughters. I an a huge sports fan, especially baseball. I am an avid reader and writer. While I enjoy learning about assistive technologies, I know Desiree knows more about them than me. I love animals. We have two cats, Rain and Yoyo. Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Resources The provisions of Section 504 are set forth in 10 C.F.R. § 4. The Department of Justice’s Guide to Disability Rights Laws has a good description of Section 504. The Department of Education also has an informative page on Section 504. As always, any resources discussed in this episode will be linked to when the episode is posted to the Demand Our Access website. Section 504 Introduction Section 504 of the Rehabilitation Act of 1973 (Section 504) is a landmark civil rights law that prohibits discrimination based on disability. It was designed to ensure those of us with disabilities are not excluded from, denied the benefits of, or subjected to discrimination under any program or activity that receives federal financial assistance. Section 504 laid the foundation for future disability rights legislation in the United States, most notably the Americans with Disabilities Act (ADA). History of Section 504 The Rehabilitation Act of 1973 was signed into law by President Richard Nixon on September 26, 1973. Although the act as a whole aimed to provide support for people with disabilities in areas such as employment and independent living, it was Section 504 that specifically addressed civil rights. The language of Section 504 was groundbreaking, as it introduced the concept of accessibility for people with disabilities into federally funded programs and activities, essentially stating that people with disabilities should be treated the same as those without disabilities. Section 504 was modeled after earlier civil rights laws, such as Title VI of the Civil Rights Act of 1964, which prohibited discrimination based on race, color, or national origin in federally funded programs. By extending civil rights protections to people with disabilities, Section 504 marked a turning point in the disability rights movement. While the law was passed in 1973, its implementation was delayed for several years due to opposition from various government agencies. It wasn’t until a series of protests by disability rights activists, including the historic 504 Sit-ins in 1977, that regulations enforcing Section 504 were issued by the U.S. Department of Health, Education, and Welfare. Crip Camp If you want to learn more about the sit-ins that were responsible for the federal government finally issuing regulations under Section 504, I highly recommend the documentary Crip Camp. Crip Camp, released in 2020, is maybe the only documentary that tries to tell the story of the civil rights movement of those of us with disabilities from our perspectives. If you know of another documentary I should watch that tells our story largely in our voices, please let me know. Definition of a Qualified Individual with a Disability Under Section 504, a person with a disability is defined as any individual who: Has a physical or mental impairment that substantially limits one or more major life activities Has a record of such an impairment, or Is regarded as having such an impairment. If the three-prong definition of a person with a disability under Section 504 sounds familiar, it should. The ADA and Section 504 both define a person with a disability the same way. A “qualified” person with a disability is someone who meets the essential eligibility requirements for the receipt of services or participation in programs or activities. This means those of us with disabilities must be qualified to participate in the specific program or activity, regardless of our disability. Still, reasonable accommodations must be made to ensure we are not excluded from programs due to our disability. Example A nonprofit receives federal funding to run a program of adult swimming lessons. Since the nonprofit has accepted federal money to provide the swimming lessons, the swimming lessons are covered by Section 504. In developing the swimming lessons, the nonprofit restricts access to the lessons to those who can get in and out of the pool independently. A person who walks with crutches but has the ability to move their body with their arms registers for swimming lessons. When they arrive for their first lesson, the nonprofit tells them that in order to qualify for swimming lessons, students must be able to independently get in and out of the pool. The nonprofit is violating the disabled person’s rights under Section 504 if the disabled person can prove they can effectively learn to swim with their limited mobility. As long as the disabled person can swim, inaccessibility (like pools not equipped with lifts) cannot be used as a reason for excluding the disabled person from the swimming lessons. This is because the ability to independently access and leave the pool may not be directly related to the ability to swim. In order for a person with a disability to be excluded, the qualifications for participation must be directly related to the abilities necessary to effectively participate. Bonus points to those of you who remember that the disabled swimmer in this example would also have rights under Title III of the ADA. Comparison with the Americans with Disabilities Act (ADA) While Section 504 and the Americans with Disabilities Act (ADA) both aim to prevent discrimination against those of us with disabilities, there are key differences between the two laws. Scope of Coverage Section 504 applies only to programs and activities that receive federal financial assistance. This includes public schools, universities, hospitals, and any other institutions funded by federal dollars. The ADA, passed in 1990, is broader in scope. It covers employment (Title I), state and local government services (Title II), public accommodations (businesses and nonprofits) (Title III), and telecommunications (Title IV). Entities covered by the ADA are covered by the ADA whether they receive federal funds or not. Enforcement Section 504 Section 504 is enforced through the agency that provides federal financial assistance to the program or institution in question. Compliance is monitored by the individual agencies with enforcement power under Section 504, and failure to comply can result in the loss of federal funding. Example A hospital receives federal money from the Department of Health and Human Services to assist with the funding of its daily operations. By accepting the federal money, the hospital becomes responsible to comply with the Section 504 regulations adopted by the Department of Health and Human Services. Agencies with Enforcement Power Under Section 504 Enforcement of Section 504 is carried out by various federal agencies, depending on the specific program or institution involved. Some key agencies responsible for enforcing Section 504 include:1. Department of Education (Office for Civil Rights, OCR): Responsible for ensuring that public schools, colleges, and universities that receive federal funding do not discriminate against students with disabilities. Department of Health and Human Services (HHS): Enforces Section 504 in programs such as hospitals, clinics, and social services that receive federal funding. Department of Labor (DOL): Enforces compliance in employment and training programs that receive federal funds, ensuring that people with disabilities have equal access to vocational services and employment opportunities.4. Department of Transportation (DOT): Ensures that federally funded transportation services, such as public transit systems, do not discriminate against individuals with disabilities. Department of Housing and Urban Development (HUD): Enforces Section 504 in federally funded housing programs to ensure that people with disabilities have access to fair and equal housing opportunities. Each of these agencies has the authority to investigate complaints, ensure compliance, and impose corrective actions or sanctions, including the withdrawal of federal funds if necessary. The ADA Depending on the facts of a case, many federal agencies can technically enforce the ADA. But the ADA is primarily enforced by the Department of Justice. The most notable exception is that the Equal Employment Opportunity Commission (EEOC) oversees enforcement of Title I of the ADA. Conclusion This concludes our look at Section 504 of the Rehabilitation Act of 1973. Thank you for listening. I appreciate your support. | — | ||||||
| 10/23/24 | ![]() Advocating for the Rights of Disabled Parents | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In this episode, I am covering how disabled parents can advocate for their rights to be accommodated by the schools of their children. Since public schools are covered by Title II of the Americans with Disabilities Act (Title II) and private schools, except most religious schools, are covered by Title III of the Americans with Disabilities Act (Title III) I will briefly recap important concepts under both title II and Title III. For more information about Titles II and III respectively, please visit the pages entitled ADA Title II Information and ADA Title III Information. Links to both pages will be in the episode notes when this episode is posted to the Demand Our Access website. Additionally, you may also want to review the episode called Effective Communication under Titles II and III. That, too, will be linked in this episode when it is posted to the website. If you have any comments or questions, please use the contact form on the Demand Our Access website, or email me at Jonathan@demandouraccess.com. Recapping Titles II and III For those of you who heard the episode Advocating for Our Rights under Title II and/or heard the episode Advocating for Our Rights Under Title III, the review materials here will not be new. I have included them here, though, so if someone needs what I believe is the most important information to advocate for their rights as a disabled parent, all of that information will be in one place. Recapping Title II Since this is only a recap of our rights under Title II, I have chosen to cover only accommodations and modifications under Title II and effective communication under Title II. I have chosen these two topics because requests for accommodation and/or modification are how we get our rights under Title II and most requests for accommodation made under Title II relate to effective communication. Requests for Accommodation or Modification Requests for Modification I’m beginning with a discussion of modifications because they are more straightforward. When you request a modification, you are requesting a state or local government modify an existing policy, practice, or procedure to enable you as a disabled person to participate. Here are some examples of when you may need to request the modification of a policy, practice, or procedure from a state or local government: If a city has a policy that electric vehicles are not allowed in a park, someone using an assistive mobility device would have the right to have the policy modified so they can use their wheelchair in the park. If a state has a policy banning all animals from a museum, the handler of a service animal would need to request a modification to that policy allowing service animals to enter the museum. If a county has a policy requiring paper applications be completed by someone needing benefits, people with any number of disabilities would have the ability to request the policy be modified. Requests for Accommodation Requests for accommodation cover anything that does not involve the modification of a policy, practice, or procedure. Here are some examples of accommodations: If someone requests a sign language interpreter, they are requesting an accommodation. If someone requests an accessible electronic document, they are requesting an accommodation. If someone requests assistance in completing a print form, they are requesting an accommodation. If someone requests a public meeting be moved to a more accessible facility, they are requesting an accommodation. An Important Note on Modifications and Accommodations There may be circumstances when you need to request both a modification and an accommodation; for example, if a county does require the completion of a print form for someone to access benefits, a person with a disability may both choose to request a modification to the policy to ensure the county stops discriminating against people with disabilities. The person would then need to request an accommodation to ensure they can complete the inaccessible print form while the policy is being modified. Effective Communication I have included effective communication under Title II, but you must remember the effective communication requirement also applies to entities covered by Title III. To keep this simple, I have written this section so that it only applies to Title II; however, I have included the biggest difference between effective communication under Title II and effective communication under Title III. The effective communication requirement is designed to ensure communication between state and local governments and people with disabilities is as effective for those of us with disabilities as it is for people without disabilities. Specifically, the law requires that we must be able to: Communicate with state and local governments Receive information from state and local governments Convey information to state and local governments That means that all information made available to the public is to be accessible to those of us with disabilities. All methods of accepting community feedback used by state and local governments must be accessible to us. Auxiliary Aids and Services What the ADA calls auxiliary aids and services (aids and services) are tools and/or assistance enabling those of us with disabilities to effectively communicate. The effectiveness of provided aids and services depends on our individual disabilities and the ways we individually choose to communicate. Examples of aids and services include but are not limited to the following: Providing a blind person an accessible electronic document Ensuring an online form is accessible to assistive technologies Providing a Deaf person a sign language interpreter Assisting someone with a mobility disability in completing a print form Primary Consideration One of the big differences between Title II and Title III is that state and local governments must give "primary consideration" to our requested methods of communication. This means the state or local government must honor our requested method of communication unless it can provide an equally effective method of communication or it can demonstrate that our requested method of communication would result in a fundamental alteration or an undue burden. I’m not going to discuss fundamental alterations and undue burdens here. If a school attempts to deny your request for effective communication, whether the school is covered by Title II or Title III, review the episode called Effective Communication Under Titles II and III for additional information. Companions People described by the law as companions also have rights. Typically, the issue of a so-called companion needing an accommodation under Title II arises when a parent with a disability needs to communicate with a state or local government on behalf of their child. The right of disabled parents to be accommodated holds whether the parent is individually accessing the particular activity, program, or service or if the child is accessing the activity, program, or service on their own; for example, if a blind parent wishes to register their five-year-old daughter for swimming lessons the registration process must be accessible whether the child has a disability or not. No Surcharges In finishing our recap of effective communication under Title II, I need to remind you that a state or local government cannot charge you for the provision of any aid or service. The cost of ensuring effective communication is entirely the responsibility of the state or local government. Recapping Title III Since this is intended to be a brief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights. Coverage General Provisions Title III covers: Places of public accommodation Commercial facilities Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode. Public Accommodations The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation. Defining a Place of Public Accommodation A place of public accommodation is a facility whose operations: Affect commerce And fall within one of 12 categories. For our purposes, we are interested in the places of education category. The Department of Justice’s description of the places of education category says the following: Places of education include nursery schools, elementary, secondary, undergraduate, or postgraduate private schools. Commercial Landlords and Tenants Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay. The commercial landlord and tenant relationship is most likely to arise in a situation where a private school covered by Title III rents space to use for the private school. Religious Institutions Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular. Examples A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution’s private school does not have to follow Title III. If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III. If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III. The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution. Private Clubs Strictly private clubs aren’t covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III: Members exercise a high degree of control over club activities The member selection process is very selective Substantial membership fees are charged The entity operates as a nonprofit The club was not founded to avoid federal civil rights laws Facilities of a private club lose their exempt status to the extent they are made available to the public. Example A private country club rents to a private organization to run a private school from its facility. The private school accepts students whose families are members of the country club and from families who aren’t members of the country club. By allowing nonmembers of the country club to attend the private school, the private club has lost its Title III exemption for the portion of its facility used as a private school. State and Local Governments Under Title III State and local governments aren’t subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I’m mentioning this in a recap of Title III is that facilities and programs can be subject to the requirements of Titles II and III. Examples A state’s parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant. Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III. A city owns an office building. It rents the first floor of the building to an organization that runs a private school. The entire building, because it’s owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure the private school lives up to the city’s responsibilities under Title II. A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III. Surcharges A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them. A Quick Note on Section 504 Section 504 refers to Section 504 of the Rehabilitation Act of 1973. Section 504 applies to entities, like public schools,, that receive federal funding. Since public schools were required to follow Section 504 long before there was an ADA, most schools refer to their accommodations plans and officers as Section 504 programs. Since much of the ADA was modeled after Section 504, how you address a school that receives federal funds and is subject to Section 504 is not much different than it would be advocating for your rights under Title II. But remember, you are able to access your rights under Title II, Title III, and Section 504. If, for some reason, you believe advocating under Section 504 is better, you can do that. Even if the school keeps referring to Section 504, you can still advocate under Title II. In almost every instance, the outcome should be the same. At some point, I will cover Section 504 so folks can understand how similar it is to the ADA. Advocating for Our Rights as Disabled Parents Since parents could be advocating under either Title II, if we are talking about a public school, or Title III, if we are talking about a private school, I give an example for advocating under both titles. For our purposes, I will pretend that both the public and the private school in our examples use an online payment portal called Parent Pay for parents to do things like add money to their children’s lunch accounts and pay their fees for things like arts and music. I will also pretend that both schools are regularly sending home print forms to be signed and print assignments parents are to work on with their children. As in our other episodes where we discussed advocating for our rights, we will be using our three steps to advocacy: Decide who to contact Prepare what to say Once your request is submitted Decide who to Contact When it comes to deciding who to contact when you need to request an accommodation or a modification from a public school, the process should be relatively straightforward. By now, I really hope every public school has someone assigned to addressing accommodations and/or modifications for those of us with disabilities. In most cases, public schools call their disability compliance program their Section 504 program. In some cases, the program’s name will mention both Section 504 and Title II. Either way, the person you will contact is the person listed to address either or Section 504 or Title II. If by some chance you cannot find a contact person working on Section 504 and/or Title II, I would address your request to the school district’s superintendent. I suggest contacting the superintendent because I prefer to have my accommodations made on a system-wide basis. I do not want to have to negotiate the same accommodations with every teacher and every school. This is especially true if you have students in different schools and/or you have a student in middle or high school, where they will have several teachers. Prepare What to Say Once you have figured out who you will contact, it’s time to decide what you will say. In most cases, they will want you to complete an online form or send an email. But you always have the right to call or simply visit their office. No matter how you decide to make your initial contact, the sample I have provided will help you decide what to say. Title II Example My name is John Smith. My daughter Elizabeth attends Green Elementary. As a qualified person with a disability, I am writing to request two accommodations under Title II of the Americans with Disabilities Act Title II. First, I need you to ensure Parent Pay is accessible to those of us who use assistive technologies to navigate the web and use apps. Currently, there are many unlabelled buttons and links with non descriptive labels, making it extremely difficult for me to use Parent Pay. While you are working on ensuring Parent Pay is accessible, I will need accommodations for performing the tasks I need to do in Parent Pay that are not accessible. Second, I need all information typically sent home with students to be emailed to me in an accessible electronic format. I am fine with formats, like Word and PDF, as long as the file I get is accessible. Thank you for considering my requests. I look forward to discussing them with you. Here, I told them who I am, the name of my child, the school she attends, I clearly identified the accommodations I need, and let them know Parent Pay is not accessible. While I suggested accessible Word documents or accessible PDFs, I did not try to tell them how to accommodate me. In making this initial contact, I want to be open to their ideas while knowing I will stick to getting what I need to have equal access. Once Your Request has Been Submitted Again, it is impossible for me to know how the person you contact will react. Sadly, many of the people assigned to coordinate Section 504 and/or ADA programs for schools are not qualified to do that work. In many instances, they have little knowledge of Title II. So, you will need to, in more instances than you should, educate them about your request and your rights. The following tips should help you once you are actually talking to someone about your request: Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate. Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person. Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you. Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate. If your request deals with an inaccessible app or website, remind them of the Department of Justice’s new rule on web accessibility under Title II. Let them know they only have a couple of years to make their app and/or website accessible, so they would be helped to start on making accessibility improvements now. Title III Decide who to Contact Deciding who to contact to request an accommodation or a modification from a private school can be more difficult than it usually is when contacting a public school. The reason is that many private schools are not familiar with their responsibilities under Title III. If you cannot find any information as to how your child’s private school addresses Title III requests, you should just contact the school’s principal and let them figure out how the school will address your request. Prepare What to Say Title III Example My name is Paul Cooper. My son Brian attends Douglas Academy. As a qualified person with a disability, I am writing to make two requests for accommodation under Title III of the Americans with Disabilities Act (Title III). First, I need you to ensure Parent Pay is accessible to those of us who use assistive technologies to navigate the web and use apps. Currently, there are many unlabelled buttons and links with non descriptive labels, making it extremely difficult for me to use Parent Pay. While you are working on ensuring Parent Pay is accessible, I will need accommodations for performing the tasks I need to do in Parent Pay that are not accessible. Second, I need all information typically sent home with students to be emailed to me in an accessible electronic format. I am fine with formats, like Word and PDF, as long as the file I get is accessible. Thank you for considering my requests. I look forward to discussing them with you. In case you did not notice, the language related to the accommodations was the same in both sample requests. I did that to highlight the reality that in most cases how you request an accommodation under either Title II or III is the same. Once Your Request is Submitted To avoid repeating myself too much, I will say the tips provided under the Title II section apply to Title III, with one important difference. The Department of Justice has not yet clarified a standard for what constitutes accessible apps and/or websites under Title III. But the Department of Justice expects the websites of Title III entities to be accessible to those of us with disabilities. Conclusion Thank you for listening to the Demand Our Access podcast. I appreciate your support. | — | ||||||
| 9/22/24 | ![]() Advocating for Our Rights Under Title III | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Advocating for Our Rights Under Title III Introduction As a refresher, Title III of the Americans with Disabilities Act (Title III) applies to businesses and nonprofits. In this episode, I will briefly recap important concepts under Title III. I will then discuss the steps I take when I need to advocate with a business or a nonprofit under Title III. I will also include a sample writing you can use when you need to advocate under Title III. Although the sample I am including will be intended to be written, if you are more comfortable talking to someone about your rights under Title III, the sample text I have included could be used as talking points for you in a discussion that takes place over the phone or in-person. As always, I will include important links when this episode is posted to the Demand Our Access website. If you have any questions or comments about this episode, you can feel free to reach me through the contact form at the Demand Our Access website, or you can email me at Jonathan@DemandOurAccess.com. Recapping Title III Since this is intended to be a vrief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights. If you want to learn more about Title III, please check out Basics Under Title III and Basic Under Title III continued. Coverage General Provisions Title III covers: Places of public accommodation Commercial facilities Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode. Public Accommodations The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation. Defining a Place of Public Accommodation A place of public accommodation is a facility whose operations: Affect commerce And fall within one of the following 12 categories: Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms Establishments serving food or drink (e.g., restaurants and bars Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums Places of public gathering (e.g., auditoriums, convention centers, lecture halls Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals Public transportation terminals, depots, or stations (not including facilities relating to air transportation Places of public display or collection (e.g., museums, libraries, galleries Places of recreation (e.g., parks, zoos, amusement parks Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses In order to be a place of public accommodation, a business does not need to be expressly named in the above list; rather, it needs to fall within one of the 12 categories listed above. So, a sporting goods store is a place of accommodation under the sales and rentals category even though sporting goods stores aren’t directly mentioned in the above list of places of public accommodation. Commercial Landlords and Tenants Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay. Religious Institutions Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular. Examples A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution’s private school does not have to follow Title III. If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III. If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III. The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution. Private Clubs Strictly private clubs aren’t covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III: Members exercise a high degree of control over club activities The member selection process is very selective Substantial membership fees are charged The entity operates as a nonprofit The club was not founded to avoid federal civil rights laws Facilities of a private club lose their exempt status to the extent they are made available to the public. Example A private country club rents to a private organization to run a day care center from its facility. The day care center accepts students whose families are members of the country club and from families who aren’t members of the country club. By allowing nonmembers of the country club to use the day care center, the private club has lost its Title III exemption for the portion of its facility used as a day care center. State and Local Governments Under Title III State and local governments aren’t subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I’m mentioning this in an episode about Title III is that facilities and programs can be subject to the requirements of Titles II and III. Examples A state’s parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant. Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III. A city owns an office building. It rents the first floor of the building as commercial space to a restaurant, news stand, and an office supply store. The entire building, because it’s owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure all of the commercial activities taking place on the first floor live up to the city’s responsibilities under Title II. A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III. Surcharges A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them. Advocating for Our Rights Under Title III For those of you who listened to the episode on Advocating for Our Rights Under Title II, some of this will sound familiar. This is because to advocate for Our rights Under Title III, we will use the same three steps we use when we advocate for our rights Under Title II. Although the steps for advocating under Titles II and III are the same, the language we will use and the rights we have are a bit different. The three steps to advocate for our rights are as follows: Decide who to contact Prepare what to say Once your request is submitted Decide Who to Contact Deciding who to contact when you need to request an accommodation and/or modification from a business or a nonprofit can be difficult. Since I cannot imagine all of the different scenarios you will encounter with the numerous types of organizational structures that exist, I can only provide a few general pointers for you to consider when you need to advocate with a business or nonprofit. For simplicity’s sake, I am going to write the below tips as if they only apply to businesses. But do not forget you can follow the same steps when contacting a small or large nonprofit: If the business is a small local business, ask for the owner or manager. You can do this by visiting the business, calling the business, or maybe they have a website with a contact form or email address. If the business is a national chain, visit their website and/or their app. Depending on their commitment to access, their website and app may both be accessible and they may have information about ADA requests. If you cannot find a specific way to make an ADA request electronically, you can use generic contact forms or email addresses made available for public feedback. You can always call a national chain. Usually, a phone number is relatively easy to find. If there is a local store in you community, you can always visit the store and ask them for assistance. Maybe, the assistance they can provide is helping you make contact with someone in corporate headquarters who could be better able to help. The more expensive it will be to grant your request, the more likely it is that a larger business will be more likely to grant your request. Prepare What you Will Say Once you have decided who you will contact and how you will contact them, it’s time for you to decide what you will say. This applies whether you are making your request in writing, over the phone, or by visiting a store. To make this easier to understand, I’m going to walk you through an example. For our purposes, I am going to pretend I need to arrange shopping assistance at my nearest national chain grocer. I have decided to file this Title III request, because I have had a difficult time getting assistance when I go to this store and ask for shopping assistance. To avoid starting trouble, I will be contacting a fictitious national grocery chain named Bob’s Groceries (Bob’s). Looking at Bob’s website and app, which were both kind of accessible, I could not find any specific way to make a request under Title III. So, I have decided to submit my request through a contact form for people needing customer service. My Sample Title III Request I visit the Bob’s store at 321 Maple Rd. in Hanford, Washington. I’m writing to make a request for accommodation under Title III of the Americans with Disabilities Act (Title III). Specifically, I need to be able to get shopping assistance from a category of staffer who understands the store’s layout and can effectively understand and speak English. I am making this Title III request because the shopping assistance I have been getting from the people paid to move the carts is insufficient. The last three times I have visited my Bob’s, I have left with the wrong amounts of items, I couldn’t get what I needed because my assistant couldn’t find them, and I have purchased food that was expired. These bad experiences have wasted my time and money, and could have resulted in me getting sick. Please contact me to discuss my request within five business days. In this example, I told them what store I shop at, notified them I am making a request under Title III, told them what I want from my request, and explained why I am making the request I am making. Since most of these forms have character and/or word limits, I kept my request to 149 words. Once Your Request is Submitted It’s hard to provide very specific advice as to how you should proceed once your request has been submitted. I wish we could assume your request will be forwarded to someone with the authority to actually address it and some degree of knowledge as to how it should be addressed. But that is not always true. It is impossible for me to go through all of the things that could happen once your request has been submitted. So, I want to share a few pointers for you to keep in mind once you start talking with a business or nonprofit about your request: Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate. Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person. Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you. Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate. If your request is related to their inaccessible website, remember that the Department of Justice expects the website of Title III entities to be accessible to those of us with disabilities. Conclusion Thank you for listening to this episode of the Demand Our Access podcast. I appreciate your support. Don’t let them tell you to bring a friend to assist you. Unless it’s an emergency situation, they cannot rely on someone else assisting you. | — | ||||||
| 9/13/24 | ![]() paratransit | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In this episode, I am discussing paratransit. This episode will cover only topics related to how paratransit affects people with disabilities. I will not be covering any of the requirements that assist local governments in implementing their paratransit program. The information related to paratransit has been codified by the Department of Transportation (DOT) in 49 C.F.R § 37.121.133. The link in the episode notes goes to 37.121. You can use the Next button to navigate to each subsequent section. Alternatively, you can access the entirety of 49 C.F.R. § 37. If you access part 37, the sections related to paratransit are set forth in subsection F. The subsections are at the heading two level. So, you can find subsection F by navigating the page by the heading level two. Important Definitions The important definitions are set forth in 49 C.F.R. §37.3. Note, the definitions set forth in subsection 37.3 apply to the whole of part 37 (not just the paratransit requirements). I have included the link so you can check out the definitions on your own. If you want to learn more about terms I have not defined here, the definitions section is the place to go. Here are what I believe to be the important definitions related to paratransit. To make this easier to follow I have chosen to edit and/or summarize the definitions: Paratransit means comparable transportation service required by the ADA for individuals with disabilities who are unable to use fixed route transportation systems. A fixed route system is your local bus or train service that operates on a fixed schedule and has fixed routes. Commuter bus, commuter rail, or intercity rail systems are not fixed route systems. Oregin-to-destination means providing service from the place where a passenger is picked up and transporting them to their destination. Paratransit may be provided as either a curb-to-curb service or a door-to-door service. The choice is made by your local paratransit provider. When a paratransit provider chooses curb-to-curb service, it must generally provide additional assistance to passengers who need assistance beyond the curb to use paratransit. Nondiscrimination The nondiscrimination provisions are set forth in 49 C.F.R. § 37.5. I will cover two of them here: If paratransit is provided, you cannot be required to use it if you choose to use regular public transit. You cannot be required to be accompanied by an attendant. Paratransit Paratransit Eligibility The specific eligibility requirements related to paratransit are set forth in 49 C.F.R. § 37.123(e). I am not going to reproduce those here, because I suspect most people listening are eligible for paratransit. But there are a few things related to paratransit eligibility I want to mention: If an individual meets the eligibility criteria with respect to some trips but not others, the individual shall be paratransit eligible only for those trips for which they meet the criteria. A personn eligible for paratransit service can typically only take one additional person with them. If a person eligible for paratransit service has a personal care attendant, they can take their personal care attendant and one other person on the trip. A family member or friend traveling with a person eligible for paratransit service is not considered a personal care attendant unless they register as a personal care attendant. Additional individuals accompanying the paratransit eligible individual shall be provided service, provided that space is available for them on the paratransit vehicle carrying the paratransit eligible individual and that transportation of the additional individuals will not result in a denial of service to paratransit eligible individuals. In order to be considered "accompanying" someone who is eligible for paratransit service, the other individual(s) must be picked up and dropped off at the same place as the person who is eligible for paratransit service. The Process for Paratransit Eligibility Here are things to know about the process entities must use to determine paratransit eligibility: All information about the process, materials necessary to apply for eligibility, and notices and determinations concerning eligibility shall be made available in accessible formats upon request. If a decision has not been made within 21 days of an application being completed, the applicant shall be treated as eligible for paratransit service until or unless the application is denied. A determination regarding eligibility must be communicated in writing. If the application is denied, reasons for the denial must be provided. When someone is eligible for paratransit they shall be provided documentation stating that they are “ADA Paratransit Eligible.” The documentation shall include the name of the eligible individual, the name of the transit provider, the telephone number of the entity’s paratransit coordinator, an expiration date for eligibility, and any conditions or limitations on the individual’s eligibility including the use of a personal care attendant. Recertification for paratransit eligibility may be required at "reasonable intervals." Providers of paratransit are required to establish an appeals process for situations when a determination has been made that someone is not eligible for paratransit. They can require that an appeal be filed within 60 days of a determination that someone is not eligible for paratransit. The process shall include an opportunity to be heard and to present information and arguments, separation of functions (i.e., a decision by a person not involved with the initial decision to deny eligibility), and written notification of the decision, and the reasons for it. The entity is not required to provide paratransit service to the individual pending the determination on appeal; however, if the entity has not made a decision within 30 days of the completion of the appeal process, the entity shall provide paratransit service from that time until and unless a decision to deny the appeal is issued. Suspension of Service Providers of paratransit may establish an administrative process to suspend, for a reasonable period of time, the provision of complementary paratransit service to individuals who establish a pattern or practice of missing scheduled trips. Trips missed by the individual for reasons beyond their control (including, but not limited to, trips which are missed due to operator error) shall not be a basis for determining that such a pattern or practice exists. Before suspending service, an entity must do the following: Notify the individual in writing that the entity proposes to suspend service, citing with specificity the basis of the proposed suspension and setting forth the proposed sanction. Provide the individual an opportunity to be heard and to present information and arguments. Provide the individual with written notification of the decision and the reasons for it. The appeals process described above is available to people whose service has been suspended. Any sanctions imposed cannot be enforced until the appeals process has been completed. Personal Care Attendants An entity can require you to indicate whether or not you use a personal care attendant in the application process. Complementary Paratransit Service for Visitors Each entity required to provide paratransit service shall make it available to visitors to their area. A visitor is an individual with disabilities who does not reside in the jurisdiction(s) served by the public entity or other entities with which the public entity provides coordinated complementary paratransit service within a region. Each public entity shall treat as eligible for its complementary paratransit service all visitors who present documentation that they are eligible for paratransit somewhere else. With respect to visitors with disabilities who do not present such documentation, the public entity may require the documentation of the individual’s place of residence and, if the individual’s disability is not apparent, of their disability. The public entity shall accept a certification from the person with a disability that they cannot use fixed route services. If you are using paratransit service as a visitor, you only qualify for 21 days of service during any 365-day period. An entity cannot make visitors certify for their service before providing service. Service Criteria The service criteria are set forth in 49 C.F.R § 37.131. I am not going to cover all of the service criteria because I do not believe they are relevant to most situations. But I will cover what I think are the most important service criteria. Service Area For bus systems, the general rule is that the place where someone is picked up and the place where they are dropped off must both be within 3/4 of a mile of a bus stop. For rail systems, the service area shall consist of a circle with a radius of 3⁄4 of a mile around each station. At end stations and other stations in outlying areas, the entity may designate circles with radii of up to 11⁄2 miles as part of its service area, based on local circumstances. Response Times The entity shall schedule and provide paratransit service to any paratransit eligible person at any requested time on a particular day in response to a request for service made the previous day. Reservations may be taken by reservation agents or by mechanical means. The entity shall make reservation service available during at least all normal business hours of the entity’s administrative offices, as well as during times, comparable to normal business hours, on a day when the entity’s offices are not open before a service day. The entity may negotiate pickup times with the individual, but the entity shall not require a paratransit eligible individual to schedule a trip to begin more than one hour before or after the individual’s desired departure time. The entity may use real-time scheduling in providing complementary paratransit service. The entity may permit advance reservations to be made up to 14 days in advance of an individual’s desired trips. Fares The fare for a trip charged to a paratransit eligible user of the complementary paratransit service shall not exceed twice the fare that would be charged to an individual paying full fare (i.e., without regard to discounts) for a trip of similar length, at a similar time of day, on the entity’s fixed route system. In calculating the full fare that would be paid by an individual using the fixed route system, the entity may include transfer and premium charges applicable to a trip of similar length, at a similar time of day, on the fixed route system. The fare charged someone who is "accompanying" a paratransit eligible person shall be the same fare that is charged the paratransit eligible person. There is no fee charged for personal care attendants. Miscelanious Provisions The entity shall not impose restrictions or priorities based on trip purpose. The complementary paratransit service shall be available throughout the same hours and days as the entity’s fixed route service. The entity cannot limit capacity by the following: restrictions on the number of trips someone can take; waiting lists for access to the service; or Any operational pattern or practice that significantly limits the availability of service to people eligible for paratransit. Subscription Service Entities are allowed to establish subscription services. A subscription service allows someone to schedule similar trips at one time; for example, a trip to work every workday. Subscription service may not absorb more than fifty percent of the number of trips available at a given time of day, unless there is non-subscription capacity. Notwithstanding any other provision of this part, the entity may establish waiting lists or other capacity constraints and trip purpose restrictions or priorities for participation in the subscription service only. | — | ||||||
| 9/9/24 | ![]() Advocating for Our Rights Under Title II of the ADA | Disclaimer The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice. Introduction In the nearly two years I have been working on the Demand Our Access Project, I have covered many different aspects of the law. As I have repeatedly said, I am doing the Demand Our Access project because I strongly believe the best way for those of us with disabilities to achieve more equitable outcomes in society is for us to understand and enforce the legal rights we have. So, it’s time for us to spend dedicated time discussing how to advocate for ourselves and our community by using the lega rights we do have to achieve better outcomes for us as individuals and for our community as a whole. This episode will be the first in a series of episodes where we discuss how to effectively advocate for better outcomes by using the legal rights we have covered in the previous episodes of Demand Our Access. Our first episode on advocating for our rights will cover state and local governments. Specifically, I’m going to go through the steps I take when I need to advocate for my civil rights with my state or local government. We are starting with state and local governments for three reasons: Those of us with disabilities have more protections when we face discrimination from a state or local government than we have when we face discrimination by a corporation. State and local governments are covered by Title II of the ADA (Title II), which was the first substantive topic I presented through the Demand Our Access project. Many in our community rely on state and local governments for critical services in ways they do not need to rely on corporations. Since basics under Title II of the ADA was covered nearly two years ago and because that episode didn’t expressly discuss accommodations and modifications under Title II, I’m going to briefly recap some of the rights afforded us under Title II. Then, I will move into the ways I advocate under Title II. I will include a sample request that I hope helps you understand how to make a request of a state or local government under Title II. Recapping Title II Since this is only a recap of our rights under Title II, I have chosen to cover only accommodations and modifications under Title II and effective communication under Title II. I have chosen these two topics because requests for accommodation and/or modification are how we get our rights under Title II and most requests for accommodation made under Title II relate to effective communication. This recap of our rights under Title II will not provide any citations to the law or Department of Justice guidance. To learn more about Title II, please check out the episode Title II Basics. Requests for Accommodation or Modification In putting together the Basics Under Title II episode, I decided not to cover requests for accommodation or modification. At the time, I believed people knew they had a right to request things of their local governments, and I didn’t want to make the episode any longer than it was already. Nearly two years later, I now believe that I need to provide people more exact language when helping them learn to get their rights met by state and local governments. The reason for my change of heart is simple: I have come to realize that the more knowledgeable you sound in your request the more likely you are to have your request effectively addressed. Requests for Modification I’m beginning with a discussion of modifications because they are more straightforward. When you request a modification, you are requesting a state or local government modify an existing policy, practice, or procedure to enable you as a disabled person to participate. Here are some examples of when you may need to request the modification of a policy, practice, or procedure from a state or local government: If a city has a policy that electric vehicles are not allowed in a park, someone using an assistive mobility device would have the right to have the policy modified so they can use their wheelchair in the park. If a state has a policy banning all animals from a museum, the handler of a service animal would need to request a modification to that policy allowing service animals to enter the museum. If a county has a policy requiring paper applications be completed by someone needing benefits, people with any number of disabilities would have the ability to request the policy be modified. Requests for Accommodation Requests for accommodation cover anything that does not involve the modification of a policy, practice, or procedure. Here are some examples of accommodations: If someone requests a sign language interpreter, they are requesting an accommodation. If someone requests an accessible electronic document, they are requesting an accommodation. If someone requests assistance in completing a print form, they are requesting an accommodation. If someone requests a public meeting be moved to a more accessible facility, they are requesting an accommodation. An Important Note on Modifications and Accommodations There may be circumstances when you need to request both a modification and an accommodation; for example, if a county does require the completion of a print form for someone to access benefits, a person with a disability may both choose to request a modification to the policy to ensure the county stops discriminating against people with disabilities. The person would then need to request an accommodation to ensure they can complete the inaccessible print form while the policy is being modified. Effective Communication I’m not going to cover everything under the effective communication requirement here. For more information about the effective communication requirement, please check out the episode Effective Communication Under Titles II and III of the ADA. The effective communication requirement is designed to ensure communication between state and local governments and people with disabilities is as effective for those of us with disabilities as it is for people without disabilities. Specifically, the law requires that we must be able to: Communicate with state and local governments Receive information from state and local governments Convey information to state and local governments That means that all information made available to the public is to be accessible to those of us with disabilities. All methods of accepting community feedback used by state and local governments must be accessible to us. Auxiliary Aids and Services What the ADA calls auxiliary aids and services (aids and services) are tools and/or assistance enabling those of us with disabilities to effectively communicate. The effectiveness of provided aids and services depends on our individual disabilities and the ways we individually choose to communicate. Examples of aids and services include but are not limited to the following: Providing a blind person an accessible electronic document Ensuring an online form is accessible to assistive technologies Providing a Deaf person a sign language interpreter Assisting someone with a mobility disability in completing a print form Primary Consideration One of the big differences between Title II and Title III, covering primarily corporations and nonprofits, is that state and local governments must give "primary consideration" to our requested methods of communication. This means the state or local government must honor our requested method of communication unless it can provide an equally effective method of communication or it can demonstrate that our requested method of communication would result in a fundamental alteration or an undue burden. I’m not going to discuss fundamental alterations and undue burdens here, because it is very unlikely that a state or local government would be able to prove that a requested method of communication would result in a fundamental alteration or undue burden. For our purposes, all you need to know is that in almost every instance a state and local government must communicate with you in the ways you desire to have them communicate with you. Companions People described by the law as companions also have rights. Typically, the issue of a so-called companion needing an accommodation under Title II arises when a parent with a disability needs to communicate with a state or local government on behalf of their child. The right of disabled parents to be accommodated holds whether the parent is individually accessing the particular activity, program, or service or if the child is accessing the activity, program, or service on their own; for example, if a blind parent wishes to register their five-year-old daughter for swimming lessons the registration process must be accessible whether the child has a disability or not. No Surcharges In finishing our recap of effective communication under Title II, I need to remind you that a state or local government cannot charge you for the provision of any aid or service. The cost of ensuring effective communication is entirely the responsibility of the state or local government. Advocating Under Title II Here are the steps I follow when I need to advocate with a state or local government for an accommodation and/or modification under Title II. Decide who to Contact Sadly, this step, depending on how much your local government is doing to follow Title II, will be relatively easy or extremely difficult. Some communities clearly list their ADA coordinator on their website. Some communities have a clear notice of rights under Title II that tells you how to request accommodations and/or modifications. But many communities, especially smaller ones, do not make this information available and are doing almost nothing to follow the law. To determine who to contact, I suggest the following ideas: Review the government’s home page for any mention of requesting an accommodation or a modification. Call your local government and ask how you can request an accommodation or modification under Title II of the Americans with Disabilities Act. If your accommodation and/or modification is related to a specific event, see if information about the event lists a way of getting an accommodation. If it doesn’t, see if it lists a contact for questions related to the event. Assuming your community has a standard contact form and/or email address for public feedback, use those methods of communication to make your request. If you can do so relatively easily, visit your local government’s office and ask for assistance. Since all of us are different, I’m not going to recommend one point of initial contact over another. If you are more comfortable calling someone, find a number and call. If you are more comfortable writing out your request, use a contact form or an email address. If you enjoy directly talking to someone, visit an office. Of course, the options you have may be limited by accessibility. If the contact form is not accessible, you may need to call. No matter how you do it, you cannot make a request without contacting your local government. Prepare What You Will Say Once you know who to contact and you have decided how you will contact them, it’s time to decide what you are going to say. This applies whether you are making your request in writing, over the phone, or by visiting an office. To make this easier to understand, I’m going to go through a sample request. For our purposes, I am going to pretend I need an accommodation to complete an inaccessible registration form so I can register for a ceramics class offered by my local government’s parks and recreation department. I will be submitting my accommodation request through a generic contact form, because I was unable to figure out how to make direct contact with the people running the ceramics class. Here, I am assuming the form enables me to enter my name, phone number, and email address into separate fields. So, all I will share below is what I would enter in the comment field that I will use to make my request. My Sample Request for Accommodation As a person with a disability, I’m requesting assistance under Title II of the Americans with Disabilities Act (Title II) to register for the ceramics class taking place at the Oaks Community Center and beginning on August fifth. I’m requesting an accommodation under Title II, because the registration form is inaccessible to those of us who use assistive technologies to access the web. Given the inaccessibility of the online registration system, I cannot independently register for the ceramics class I wish to take. Given that contact forms tend to have very limited space for comments, I tried to keep my request very simple and short. So, I only included the information I believe they most need. I made sure they understand I’m a person with a disability and that I’m requesting an accommodation under title II of the ADA. I told them the class I wish to register for, the location where it will be, and when it begins. I shared all of that information to assist them in figuring out who will be the best person to assist me in registering for the class. Finally, I told them a little bit about why I’m requesting the accommodation I’m requesting. This approach works well in making your initial request when you don’t know exactly who to contact and whether you are requesting an accommodation or modification. Once Your Request is Submitted It’s hard to provide very specific advice as to how you should proceed once your request has been submitted. I wish we could assume your request will be forwarded to someone with the authority to actually address it and some degree of knowledge as to how it should be addressed. But that is not always true. It is impossible for me to go through all of the things that could happen once your request has been submitted. So, I want to share a few pointers for you to keep in mind once you start talking with your state or local government about your request: Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate. Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person. If you are requesting an aid or service to enable effective communication, the circumstances where the state or local government could deny your request are very rare. Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you. Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate. Don’t let them tell you to bring a friend to assist you. Unless it’s an emergency situation, they cannot rely on someone else assisting you. | — | ||||||
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