Americans with Disabilities Act
Americans with Disabilities Act Q&A with Ed Zwilling and Adjacent Space September 1st, 2021
Video Transcript
- To introduce myself, my name's Angelica Dill, I'm one of the co-founders alongside with Trey Gordon. He's the other co-founder of Adjacent Space. By day, I'm an American sign language interpreter and the stay-at-home mom, but also by night, I'm trying to figure out how to run this thing alongside of Trey and a lot of the other team members that are volunteering to make all of this happen. Our mission is to promote accessibility and equity for the deaf, hard of hearing and deaf blind community, elevating accessibility and equity takes on different forms, but we mainly seek proactive action as well as responsive action to discrimination, which is part of what we're talking about tonight. And I wanna point out the Ed here, elephant in the room is in fact a lawyer. He does sue people for living. People a lot of times don't like lawyers, but I do wanna point out the fact that he gives his time to us. He's volunteered a lot of hours to respond to our questions, give you a little bit of background. When we first started as a tiny little organization, we were super new, and we reached out to a lot of lawyers in the area and Ed was the only one who responded. So I think that speaks volumes, he's done a fantastic job at advocating with us and seeking out proactive action, and again, that's one of the ways we wanna approach some of the discrimination and accessibility that happens in our community. So again, Ed here, thank you so much for your time. Can you tell us a little bit about yourself?
- Yeah, absolutely. My name's Ed Zwilling, I moved here to Birmingham in 1989 to go to law school. I graduated in 92, so I've been practicing for 29 years and starting in about 2002, about what I guess that's 19 years ago now. I started primarily representing people with disabilities. I had represented people with disabilities before that time, but it really became my primary practice area in 2002. I left the firm I was with at that time in 2018 and opened my own office. And that is still my primary practice area, I represent folks with disabilities under the Americans with Disabilities Act, the Rehabilitation Act, the Fair Housing Act, and there are a host of other laws that apply in unique situations the Healthcare Access Act, the Help America Vote Act, the Individuals with Disabilities Education Act. And there are many federal laws that protect people with disabilities. And so my mission here and in generally when I speak, I do a lot of self-advocacy workshops, is to empower people with disabilities because knowledge is power, and if you know what your rights are and how to enforce them, hopefully you can be a much more successful participant in our society. So that's why I'm here.
- Sounds great, so it's not just the ADA, there are plethora of laws that you're tapping into and trying to figure out how that applies to the people that you work with. Yeah.
- Exactly.
- Awesome. Okay, we're gonna start off by taking a couple of polls to see who's out there right now. And also I wanna point out, I do see the questions that have already been asked out there and we'll get to them at some point, as we can stick them in. We do have a couple of questions that we kind of just had preexisting, and so we're gonna do a little bit of both throughout this time. Also, if you are a deaf person who uses ASL as your first language, and you'd prefer to ask the question ASL, we can spotlight you and put you on video. And then again, you can just put them in English and that Q&A chat area. So let's start with our first poll. Can you see the first question? Yes. Go ahead and take the pool if you are able to see it. Oh, and so it's all six again, we're very new. We were gonna give them to you at different times, but we'll just go ahead and see who's out there, take the poll, give them to you all at once. Somewhat familiar with the American Disabilities Act, okay? Seems like that's a common answer. I'll wait and give everybody a moment to look through these. Hmm, can everyone view all four screens? Looks like someone can only view me. Yeah, it's probably a gallery view that you need. I like that the audience's troubleshooting as well, it's great. All right, let's just go ahead and go through some of these responses that everybody sent. So how familiar are you with the Americans with Disabilities Act, few said very familiar and most people said somewhat familiar. I think it's pretty true for the people that are in our audience right now, being familiar with the ADA, sorry, Dan, and I'm just zooming through this, being familiar with the ADA, the individual's responsibility, we had one person say that, and then everybody else says everyone's responsibility. We all need to be familiar with and work towards the goal of equity. And the third one, I am, it looks like we have a mix deaf, hard of hearing, deaf blind from the deaf community, a family or a friend of, or a business owner, employee of a business. And then in a recent poll, people with disabilities have said the toughest hurdle with the ADA is finding compliance, finding employment, or understanding the law. And actually the answer to that one, it looks like we kind of had a mix there, is that the answer that most people said was finding employment, which is very interesting. And then how often do you personally see work with, or interact with people with disabilities? Most of you said often, that's really awesome. And then we're gonna circle back to this at the end, because we wanna know what you guys are interested in the future, but what you're most curious about. Most of you said other, I'd be curious to know what else, but maybe we'll circle back to this at the end and ask you what else you're curious about after Ed goes through some things. But some people said how to provide appropriate and reasonable accommodations, and then how to make successful accommodation requests. There's one person that said that, but most of you said other. So we'll ask that later on. Very cool. All right, let's dive into our first question, and then we'll kind of circle back to some of the questions that have been asked in the audience. So in our community, businesses and nonprofits often respond to providing interpreters, their responses usually we don't have the budget for that. That's a very common response that we hear, especially as an organization, also myself as an interpreter, it's just something that we commonly hear. A majority of our community, although we do have a mix of hard of hearing individuals, you know there's different methods of communication, they might rely on oral English or use hearing aids, cochlear implants, et cetera. But most of the time they're only gonna be effectively using American sign language to get their services, or be a customer or a patient. English might be a second language to them, therefore trying to accommodate with a written transcript, writing notes back and forth or other visual are usually not as effective. And according to the ADA, a business or a nonprofit has to prove undue burden to not provide a reasonable accommodation. We know that an entity is legally obligated to look at their whole operating budget rather than a specific program, 'cause we often hear well that class, if we paid for an interpreter that would be more than we would incur for that class of the fee or whatever it might be of that program. So they respond that way, thinking that that specific program can't cover the accommodation. Other times they respond this way because they see the interpreter costs money, or they don't realize that they're legally obligated to do this. So Ed, from your perspective and all of the knowledge that you know, what can an individual do or what's the next step in the response to this business, if they get that response?
- Well, a lot of times businesses will give up that major co-response. And it's a response out of ignorance, it's not based on any actual understanding of the law or what responsibility, the business has, for example, with regard to architectural barriers for like a wheelchair user, it's very common for me to hear, oh, we're grandfathered in. There's no grandfather clause in the ADA. It doesn't matter how old the building is, there's no grandfather clause. So, when we're dealing with effective communications, there's a great documented guidance handout, I guess you would call it, from the department of justice on effective communications. I think I had put it in the chat box, I'm not sure if everyone who's a participant can see that link, but if somebody can post that, that would be good. I would encourage you guys to read that and get very familiar with it, because it's a really great summary of what your rights are. It doesn't necessarily tell you how to enforce them, and I'll go through that in just a sec. But you know, it's possible that a business doesn't have the resources to provide an interpreter for the deaf, but I would think that those circumstances would be few and far between. Generally when you're going to ask for an interpreter in my experience when people really need one and haven't gotten it, it's been in the medical setting and they're in a hospital or something like that. In that situation, I don't think that that excuse, would ever hold water, because what you look at is the overall size of the facility, the number of its locations, the number of its employees, whether it has a parent company. And if so, the same analysis goes toward the parent company, how many locations, how many employees. And so if you're dealing with a very large corporation and most businesses that operate hospitals, don't just operate one hospital, they operate many hospitals. They're very, very large, and it's just the cost of them doing business. And so for them to say, we're not gonna do that, and to tell the person with a hearing impairment that you have to provide that for yourself, is a direct violation of the ADA, where it's clear that they can't afford it. So what do you do when that happens? So I look at it as three levels of self-advocacy, level one, the most basic level, I'm gonna call it letter writing. And let me explain what I mean by letter writing. So since we started, I started with the medical example, let's just stay there. So say that you show up at the emergency room, you've been in a minor accident, but you need medical treatment and it's emergent. And so you show up there, and you tell the receptionist there at the desk who may or may not be a nurse that you're deaf and you needed an interpreter, and you're bleeding or whatever the case may be. It may not be obvious what your symptoms are, but that you need an interpreter. So, they may hand you a clipboard and a pencil and a lot of paperwork to fill out, and they may not, for all you know they're calling an interpreter, they may not be calling an interpreter, you just don't. Well, if you never get the interpreter, your rights have likely been violate. In an emergency situation, that's very often when a hospital's gonna roll out VRI, Video remote interpreting, but there are still, especially if you live in a rural part of Alabama, there are hospitals that don't have the VRI. So, and they don't have a lot of interpreters in rural Alabama. So, if you're in the greater Birmingham Metro area, you're Immobile, you're in Huntsville, they don't really have an excuse, but if you're out in the middle of nowhere, Alabama, I won't name any names, there may not be a whole plethora of interpreters for them to have. But bottom line is they have to provide, same to make some effort to effectively communicate with you. And if you don't feel that that's happened, there wasn't an effort to determine whether passing notes would help you, whether speaking loudly or demonstratively would help you, whether sharing a computer screen would help you, in the case where they don't have an interpreter, or whether VRI would help you or any of these other things. Well, and they just ignore it, well, then there's not even been an interactive process, and that's just as dismissive as can be, that's offensive. In that situation, when you're writing your letter, you're not gonna address it obviously to the person you dealt with behind the counter, that's someone who's very low on the totem pole. I always tell my participants in my workshops, that when you're dealing with a business, you need to be business like. So what you should do is address your letter to the owner or the operator of the facility. How do you find that out? Well, there's lots of ways you can do it, generally the hospital has its owner in great big letters on the building. I'm giving an example, this is not to pick on anybody, but like St. Vincent is no longer St. Vincent's here in Birmingham. It's now Ascension St. Vincent, St. Vincent was purchased by Ascension. So that's who you would write, is you would write Ascension. And you would probably, I would advise you to enclose the guidance that I referenced from the DOJ that sets out what the rights and responsibilities are of people with hearing impairments and businesses who are serving. And then you're gonna let them know why it is you need an interpreter, maybe English as a second language for you. ASL is your primary means of communication, a lot of people don't understand that, that they expect everybody speaks English and sign language is just a way of communicating in English, which is not at all true. So you're gonna have to educate them, and then you're gonna have to tell them what you expect and what you want. And then when you don't hear back from them, you have to follow up, but you have to be persistent. So the letter writing campaign is the first method. Then next, you can step that up, if you don't get a response, the next thing you can do is file an administrative complaint. Now, where you file the administrative complaint varies based upon the type of facility. So in this case, we're dealing with a hospital, you could file it with the department of justice, you could probably also file it with the department of health and human services, I believe they have a office of civil rights. If this were happening at your university and you weren't being accommodated in class, or when you went to visit with a professor during office hours or whatever the situation may be, while you're in college, you would file it with the office of civil rights with the department of education. But if you're not sure exactly where to file it, you can't go wrong filing with DOJ, if there's a more appropriate agency, DOJ will refer your complaint. And then you hopefully we'll have someone in the federal government, who routinely works with people with disabilities, looking at this claim. And if they feel it's one that's worthy of litigation, they may turn it over to United States attorney. I have had people come to me who had already filed DOJ complaints, and in the midst of my representation out of the blue one day, I've gotten a call from the United States attorney, so I do know that that happens, but by and large, the DOJ, the department of justice is a large administration that oversees with all whole country. And so you can't expect that you're gonna get individualized attention to every claim that you filed by United States attorney. You're probably not, but if they're looking for the type of case that you happened to turn in, or if you're one of 30 people who turned in a complaint against the same facility, they will recognize that. And those are the ones that they take more serious.
- I wanna, sorry, I wanna interrupt just for a second-
- Yeah.
- Going back to you came in, whether it's an emergence situation or what have you, you request for an interpreter, the emergency's happening right then, your medical need is happening right then. So, yes to let a writing, yes to all these things that I think can be very effective, but in the meantime, what do you do in that moment? Because the time is passing when you need the interpreter and the damages are happening in real time. So, I mean, what is it that you can do to nail someone in that moment? We're saying receptionist probably doesn't know, is there someone else that you should try and be asking for something you should do?
- You can certainly take it up the flag pole, obviously tell the nurse, tell the doctor, but all of those people in a hospital setting are employees, none of them have a policymaking power to create an effective communication policy for their hospital on the spot. So if you're there and you're not being accommodated, they probably don't have an effective policy, and if they do have an effective policy, they probably don't have effective training in that policy, and those employees don't know what they're supposed to do. So-
- Which I'm sorry, again, to interrupt but this is what you do. I mean, again, I wanna just highlight the negative so I can show the positive.
- Right.
- suits, the result is unfortunately, the company is sued, but then policies are created and people are trained and then we can progress from there, but without the policy within the system a lot of times then people don't know what they're doing as an employee.
- That's exactly right. And so that's why there's not a magic wand that I can give you that will be your Trump card to ensure that you're commentated on an as-needed basis as you go through life. Unfortunately, there's nothing like that out there, because at the end of the day, this is a civil matter, it's not a criminal matter. Its not like you can call the ADA police and they'll arrest them, if they don't provide an interpreter, that's not the way that it works. So, the letter writing campaign is what you can try and do to affect change proactively after the fact, so that if you return, that doesn't happen again. And so that you can leave a legacy of access to other people who are similarly situated, who may come after you. If the letter writing campaign doesn't work, there's the administrative complaint, but the third option is sort of your nuclear option, and that's when you hire a lawyer and file a private suit, the ADA has a right of private action, the Rehabilitation Act has a right of private action. So does the Affordable Healthcare Act all three of those laws require an interpreter for the deaf in a hospital setting. It has to be determined on a case by case basis, but they're supposed to have policies in place to make that determination is needed. Now, if you forget everything else I've said about this third option, remember this, all of these federal laws I've mentioned have a prevailing party attorney fee provision. So you should not have to come out of pocket to enforce your civil rights. So if you talk to an attorney and they wanna charge you a fee or a retainer fee, an hourly rate or whatever to file the lawsuit for you, that should tell you one of two things, either that lawyer doesn't know what he or she is doing, or your case, isn't as good as you think. And what effective communication policies should exist, again, it's determined on a case by case basis, and you have to look at the actual plaintiff in the case, the person with a hearing impairment, but you also have to look at the facility. And so, every now and then I'll see a case that I don't think is a very strong case, and in those situations, I'm more apt to quote a fee. But if I believe that you have a strong case, I'm not gonna charge you anything to bring suit. And then if we don't recover anything, you don't owe me anything. And that's the way that you should be handling your case, and what I always tell my clients is, if I'm not willing to invest my time and expense in your case, you shouldn't be investing your time and expense in the case either, 'cause this is what I do for a living, and if I don't think it's good, please, you might wanna take me up my word, and if you don't, I can certainly get you other folks to get second opinions from. But what happens when you file a lawsuit? At that point, you're no longer drafting letters, you're not filing the complaint, your lawyer's drafting it, and your lawyer is dealing with their lawyer, and the types of things that we're asking for, or a policy to be created that complies with the ADA, that their employees be trained in that policy, that, that policy be posted on their website, and in some cases we can get damages, it really depends on the situation, but there are certain cases where you can get damages, if the Rehabilitation Act applies, you can get damages if the discrimination is intentional. If the discrimination falls under the ADA, but involves a core constitutional right, say you're denied an interpreter in court when you're on trial for some crime, that would be a core constitutional right, you could potentially get damages for that. But I hope that answers the question.
- Yeah, I mean, I think we can go on about this question in particular, I'm always curious about the undue burden and I think it just sounds like it's a gray area. I guess what I am disappointed in with the ADA is that there's no percentage or there's no specific number, like a lot of the other eight parts of the ADA, such as building codes and measurements, it doesn't address it the same way for the deaf community, and I think that that's were we-
- Well, let's talk about that, 'cause there was a push in the 2010 amendment and you raise a good point because the biggest gray area is quote readily achievable. And that applies to removing architectural barriers in existing construction. So say you got a building that was built in the 1950s and it has broom closet size bathrooms that you can't fit a wheelchair in. So is it really achievable for them to blow out walls and widened doors, and make the room bigger? And the question is, it depends. and so how, and it's the same type of analysis as for undue burden, how big are they? How many locations? How many employees? You looked at what's their income, what's their operating expense, and there was a push to say, well, maybe if they spend one half a percent of their gross revenue, that would be fair on an annual basis. Maybe it should be a percent, maybe it should be a quarter of a percent, maybe it should be on the net, nobody could agree on what was the appropriate amount of money. So we don't have it, and the problem is, if you give a percentage, then there are gonna be people who are just gonna be exempt. I mean, they don't have to comply at all. If you keep it gray, then they have to make a cost benefit analysis. Am I gonna go without a net, and I'm not gonna accommodate people and risk getting sued, or maybe I should provide accommodations, even though I think it's too expensive and I really can't afford it. Maybe I should do it just to avoid getting sued because that'll be more expensive. And so sometimes the gray area can be beneficial. Okay, I hope that-
- Yeah, it does.
- Get some light on that situation, but I understand what you're saying that there's not certainty, but that's a two way street and you can use that to your advantage.
- Yeah, definitely. Okay, we're gonna ask our first question from the audience, from Beth, she says, I work for Alabama Department of Rehabilitation Services, and often work with employers when it comes to job development for deaf and hard of hearing consumers that she works with. My question is, how can I educate the employers about ADA, that she's bringing these consumers that she's working with, providing accessibility to their deaf employees?
- Oh, that's a great question. And that's a tough one, especially when you're dealing with smaller employers who may not have a human resource director, may not have legal counsel. This is just all folklore to them, they don't really know what they're supposed to do, but the bottom line is what accommodations are due really comes down to, you have to look at it, it's a much more narrow analysis when it's employment based, you have to look at what are the essential functions of the job, and whether or not, some accommodation is necessary for the employee to perform the essential job functions. And to the extent that there is, then they have an obligation to provide accommodation, to as necessary to enable the employee, to provide the essential job function.
- And this has moved the EOC, and the ADA sort of coming together right?
- Yeah, see title one of the ADA has an administrative remedy that non of the other titles of the ADA have. So, employment is title one of the ADA, and you have to exhaust your administrative remedy and go through the EOC before you could file a complaint. Whereas before, if you had gone to the emergency room, in that example, you could go right to the department of health and human services and file a complaint, you could go right to the DOJ and file a complaint. You could go right to court and file a lawsuit. But if you worked at the hospital, you couldn't do any of that, you'd have to go to the EOC and exhaust that remedy before you got a letter, which is, you know, colloquially known as a right to Sula. But yeah, it's tied to the essential functions of the job, so that means if there are communication accommodations that the employee would like, it would make him feel more or her feel more comfortable, feel better, feel more a part of the team, but they're not truly necessary to perform the essential functions of the job, then there's not an
- I think though, with deaf and hard of hearing specifically, whether you use ASL or not, communication is everything. I mean, it's a part of, and so then a learning, whether you learn from another coworker, what they do and how they do it to make your job better or talking to your boss randomly, or going to a meeting or a training. I mean, it's so much incorporated in every day of the job that it's essential for all of those pieces to come together, and I think that's what we saw in the survey and the response that I was giving everyone that the biggest barrier has been to get employment and probably to keep it or to probably be successful in their employment, that's huge.
- Yeah, absolutely, no doubt, no doubt, employment, transportation, housing, healthcare, those are the, those are the big four.
- Yeah, awesome. Lets look-
- But yeah. Yeah, the key though to take away is that there has to be an interactive process, if a request for accommodation is made and it's just severely denied, that in and of itself is a violation of the ADA. There has to be a back and forth and a dialogue as to why the request was made, and whether or not some other accommodation might also work. And so the employer is free to suggest otherwise. But there has to be a give and take and a back and forth, there can't just be a summary rejection and no further conversation.
- And probably that needs to be on record too, from the employer, they need to show proof that they had that conversation with the employee and said why they said no about this specific accommodation, and if not, then they don't have that paper trail on-
- That's right, and employee should always make those requests in writing as well, so that they can prove that the request was made, and always ask if you get an oral response, always ask for it in writing, and if you don't get it, I always advocate sending a confirmatory email or letter after the fact confirming what you heard and giving them the opportunity to correct it, if what you're stating is wrong. And in that, so you can always create the paper trail yourself, you don't need them to do it for you, but that's how you do it, is you send them an email confirming what they told you.
- Yeah, okay, awesome. I'm gonna tie in a question that we had asked previously with you, but also with the question that we had from the audience, first, I'll ask the question that we had prior, and then I'll follow it up. How can companies and businesses reasonably prepare for ADA accessibility obligations, such as preparing a budget or their policies, that sort of thing, and necessary communications for whether it be a client, patient, consumer. And then the question from the audience was, for new business owners who is deaf or a disabled owner, do you have any good advice for them? So we kind of have a opposite kind of situation which is interesting. So I don't know if you wanna address both of them at the same time or take one at a time.
- Right, no, I saw that question, and I'm looking at my notes for the one that you had asked previously.
- Yeah, it's the second one.
- Oh, I see, forgive me. All right, well, as I said before, there's no ADA police, so that's the problem is that the ADA is only enforced by people with disabilities. So if you don't know what your rights are and don't try and enforce them yourself, there is no one else who will do it for you. And so if you're not being accommodated, it's because you and everyone else who was, who was in that situation have not advocated enough for effective communication. I mean, it's as simple as that. I think there was a study that was done, it's probably been 15 years ago that something like half a percent of the people with disabilities are doing all of the advocacy work on behalf of everyone with disabilities. There's not a lot of people out there that file lawsuits to enforce their rights.
- It's so much pressure though on individuals, which, I mean that's the hardest part, I think that's the biggest barrier.
- Right, right. And so, even if you're not the type of person that wants to be the plaintiff on the complaint, I would still encourage filing administrative complaints. Because again, that creates a paper trail and lets the government know that you had this problem on this particular time. And even if they do nothing about it, when you filed a complaint, when someone else files a complaint, now they've got two complaints about the same place. They get a third or a fourth, I think they're much more likely to do something about that. It's kind of like, it's a sad commentary, but I live off of a highway 280, and you can tell where people have died based upon where the traffic lights are on TV. As you get further into Chelsea, you pass Greystone, pretty much every one of those lights between Greystone and Chelsea that was put up, was put up because somebody was killed, at that intersection. So, and unfortunately that's the way ADA, all it's reactive, it's reactive to the complaint. There's not any penalty for people who go about violating a law until someone holds them to account. And the only people with legal standing to do that are the people who are affected by personally people with disabilities. So yeah, I don't know how else to say.
- Yeah, yeah.
- Now, I don't know what to tell a deaf business person, a deaf entrepreneur, who's going into business. 'Cause the question is I saw it was just, do I have any general advice for now? And I'm not really, I don't have any general advice, I don't know that it would be any different than anyone going, you know, opening up their own business. And yeah, I have tons of advice, but I don't know that I have much advice as it goes along with this particular topic, for a deaf business owner. There was another question that I wanted to reach out real quickly about-
- From Tiara, I think I'm
- Yeah, the one about the IEP. She wants to know when the IEP takes effect and the answer is, I don't know, I think after you've had the IEP meeting and it's signed, it's in effect. So if you've had the IEP meeting, the IEP was written up and everyone just signed it, I think it's good. And if your son transfers to a new school, that IEP should still be enforced in effect, and if they don't want to recognize it because it wasn't their IEP, I think that's just tough. The flip side of the coin is if it's not good, if it hasn't been fully executed and there's some legitimate question as to whether it's binding, you should request another IEP meeting as soon as possible, and I recommend that you contact ADAP, that Alabama Disabilities Advocacy Program at university of Alabama in Tuscaloosa, and ask them for the name of an advocate to attend the IEP meeting with you. You'll be much more likely to get what you need, if you bring the guns to the meeting. And trying to bring an IDA case on the basis of there not being what you need in the IEP is a much, much more difficult than bringing an IDA case to enforce an IEP that has what you need that they didn't comply with. So I hope that's helpful.
- Yeah, somebody was asking about the other document, I think that they're referring to potentially the ada.gov effective communication document you're referring to, I'm not sure that that was put out there. So I'm gonna have Anna from the chat, find that as well, 'cause that's what you're referring to as well.
- That's right, I might can put it in the chat again, I think the last thing I pasted-
- Okay, wanna make sure to see if it's there.
- Let me still there. Yeah, there it is, I just added it.
- Okay, and somebody asked, we're gonna ask one more question from the audience, then I'm gonna jump back to our notes. Someone said that, oh, are there advocates who can speak on behalf of someone who can't afford an attorney? I'm assuming, they're just saying, can somebody be alongside them? Who else could that be? Like you said, you don't charge people when you see that there definitely has case.
- That's right, that's right, I do not charge folks when I believe they have a good case. The only time that I am, the only exception to that is when there are some facts that make me think the case isn't as strong as I was like it to be, such that I'm not willing to take the risks. And I always advise my folks, yeah, if you wanna pay me, I'll do it, but my advice is to not because if I'm not willing to risk my money, you shouldn't risk your money. But if you have a good case, it shouldn't cost you a dime to find a lawyer to advocate for you.
- Yeah, and I think that as far as an advocate goes, I think that that could be a lot of different roles. Interpreters sometimes take on the role as an advocate in certain moments, but a lot of times we kind of stay within our professional boundaries. So that is something that sometimes can't be utilized in schools that looks a little bit different. Adjacent Space does try to be that person or that organization to be alongside of people as a support system or it looks a lot of different ways, but I would be curious as well as to see if there could ever be something developed into somebody that's an advocate and kind of alongside that person, maybe helping take notes and memos and that sort of thing, because I think that the paper trail that you're referring to, I think is very cumbersome, and I think that that's the hardest part is that there's so much pressure on the individual, there's so much pressure on that family member or person that is trying to make sure that their own rights are being accommodated while they're experiencing something. They just had their father passed away and they need an interpreter or they're going to the hospital for some reason and the emergency situation is happening right now, and so I think that that's a lot for somebody to take on. So yeah, I'm not sure I personally have that answer either, I don't know if you have anything else to add to that.
- I don't, I don't, the other resource and it's the same place that I referenced for the IEP, but the reason I reference it for the IEP is that back in the early two thousands, the IDEA was somewhat gutted and it made it much harder for the parents of a child with a disability to find an attorney to take a case like that, because it's much harder to actually get the attorney's fees awarded in that situation. And so as a result of that, because aid app is the federally mandated and federally funded protection and advocacy organization here in Alabama, they have taken IPs on, as something under their mandate that they will help the parents of kids with disabilities with. And they do take those cases on occasion and they work with lawyers who handle those cases as well. So it's the best place for you to start, but they handle pretty much the whole host of ADA situations. And so, in a case where you can't find an attorney, who's willing to take it, I always recommend checking with ADAP, because like I said, they're paid by the federal government to advocate for folks with disabilities here in Alabama.
- And did you say that you provide free consultations? How do you handle that when you're first approaching?
- I do, I do. I don't charge for the initial consultation so, many times that's just shooting emails back and forth, sharing some documents, sometimes it's a phone conversation, sometimes we meet in my office, when we meet in the office, I usually try and limit the free consultation to 30 minutes, but I can generally tell if it's a case before that, if we can either talk or email in advance.
- Yeah, I'm gonna jump down to the question about currently what's happening with the pandemic still going on, everything kind of still feels virtual to me anyway. I think a lot of our lives went a little bit back to normal and then we shifted again. So last year when we first had our first Q&A with you, we asked this question kind of similarly, I think it was just about six months into the pandemic, at the time that asked you what you saw on any shifts virtually. we started using Zoom often, there's a lot of webinars, conferences we're going online, social media content event, I mean, there's just so much being pushed online and at the about how our rights could be met. And I'm wondering now, as far as the ADA goes, I don't know if any suits have been made since then, if anything has changed or the ADA, and how things have been shaped by the pandemic. You know 'cause at this point we're probably about a year and a half out. So has anything been shaped because of it, are any rights being met because before it just felt like there was tons of barriers everywhere because everything was online.
- Well, I'm involved with a case that may shape policy some, we'll see, I haven't filed it yet, I'm working on it, but because so many things went remote, one of the things that went remote for a lot of places and only one remote in this place briefly, and then went back to the normal, our city council meetings. And so, it used to be generally, if you wanted to speak at a city council meeting, you had to attend the meeting. And then at the end of the meeting, there was some time a lot for public comments, and you had the opportunity to address the council and have your thoughts be known on whatever the issues of the day or, well, during the pandemic, they started having these meetings remote and allowing the public to attend the remote meetings. And so there are people with disabilities who were not able to attend the meeting, not because the meeting itself was inaccessible, but because they were basically bedridden for a time, say you have relapsing and remitting, and Ms. And you're having a bad day, and it just happens to be the Tuesday night at the city council meeting, and you really wanted to speak on something, but you're stuck in bed and there's no way you're gonna make it there. Well, you're being excluded on the basis of your disability, and the pandemic has made that clear that these meetings can be held virtually, that comments can be phoned in, can be given via Zoom or other media that we have technology to where you don't necessarily have to be there in person. And so I think it gives her eyes to both an ADA claim and a first amendment, free speech claim. If the city council wants to hear people speak, then that's great, but they can't exclude people on the basis of disability, and if your disability prevents you from attending the meeting in person, then that's what they're doing. So anyway, so I know that's been on my radar, but yeah, all of these in meetings I think would also give rise to work accommodations like the first Q&A question we had, about how, the lady from VOC rehab wanting to know how do I let employers know what they've got to do? Well, if you're gonna have a Zoom conference and required your employees to attend it, then you may need to provide an ASL interpreter, you may need to provide captioning. It just depends on what the communication needs of the hearing impaired employee. So yeah.
- That leads a thought to my next question, but also Trey and I went to the national ADA's symposium about a month ago, I think I briefly mentioned that we were gonna attend that and a lot of questions came up, but it's complicated to think about how, again, back to the undue burden situation, where somebody is responding and say, no, I can't afford that. How can we prepare these businesses to be able to address these moment by moment situations, where Beth and our audience was asking, how do I tell them you have this deaf employee now, you need to address them. Obviously there's gonna be some things that are just attitudinal shifts, how do we do these things a little bit differently? Sometimes it is financial because interpreters cost money, captionists cost money, that sort of thing. But how are businesses able to identify that, how are they able to build that budget? Create a plan around that, when maybe they have never had to do that before, because there were a company of, they had never hired a deaf person or something like that, but also within our training, kind of leading into this question that I had asked you before, we have learned that 50 or more employees out of business meant that technically by law, they're supposed to have an ADA coordinator, whether or not they name that or not, they have to have a designated person that is in charge of being familiar with the law, addressing how they're going to approach certain policies, how they're gonna design the workplace to address some of those barriers. But how are businesses able to set up for that? I mean, a lot of times it seems like they're unaware of their legal responsibilities. A lot of times they've never had to have that experience before, so all of a sudden they have this huge line item on their budget that they didn't have before. So just thinking as an organization, Adjacent Space is trying to educate a lot of people, like we said, we have proactive action that we're trying to constantly address. Sometimes it's reactive because that's just kinda the nature of our society right now. What kinda comments and thoughts do you have on that?
- Well, I've got to tell you that I was not aware that that 50 or more employee guidance apply to a business. I'm familiar with it in the title two arena that is governments, cities, counties, municipalities, what have you, if they have 50 or more employees and they're required not only to have an ADA coordinator, but they're required to do a self evaluation, they're required to do a transition plan and title two of the ADA is a lot like section 504, if any of you out there had a disability as a child, when you were in school, you probably had something called a quote 504 plan, which is what we had before we had the IDEA. It's basically the IEP, but it used to be called a 504 plan. And basically all cities and counties had to have a 504 plan with regard to any program service or activity that benefited from federal funding. So, if you've got department of transportation money, well, then you had to look at your sidewalks and make sure that you had curb cuts in them for wheelchairs and things like that. And so I haven't done the research to see where that language applies to a business, but I'll just answer the question from the assumption that, that is indeed true. I don't have any reason to doubt you. But I'm not aware of any business, and I have sued some of the biggest businesses, I've never been contacted by anyone claiming to be the ADA coordinator of a business. I have been. just so you know.
- Yeah.
- Yeah.
- I have been contacted by ADA coordinators from some municipalities, but even some very large municipalities don't even have, and they're supposed to. And very often when they do that person is wearing a couple of other hats. He might be the facilities guy for the parks department and they just make them the ADA coordinator too. So to answer your question is, I don't know how they prepare for that, but that whole idea of doing a self evaluation and a transition plan, that's basically in a nutshell what any lawsuit that I've ever handled under the ADA really turns into, is we're looking at their business from the standpoint of my client, and in most cases now, sometimes it's been someone who's deaf and needs effective communications. I have handled many of those cases, but the vast majority of them are wheelchair user, and we're looking at, they gotta be able to park, they gotta be able to get in, they gotta have a maneuvering clearance at doors, things have to be within reach, bathrooms have to be accessible. And we go through everything. Well, when like I had a case against the Birmingham Jefferson Community Center back in 2004, and we had deaf and blind plaintiffs as well as wheelchair using plaintiffs, and so we looked at providing open captioning at the arena during basketball games, because at the time I was representing the basketball coach for the Talladega School for the Deaf. And when he was head played in the tournament there, he had no clue what calls were being made by the referees, if he didn't happen to be looking right at him, when they made the call, he didn't know what the call was because there was no effective communication, they were not captioning, what was being said over the loudspeaker. So open captioning is what we got to solve that. We had visual alarms put in the fire system, in the rooms, it didn't have visual alarms. Otherwise a deaf person would not know the fire alarm is going. So these are the types of things that you only realize are required when you look for them to see if they're being provided.
- Yeah.
- And so if you're not looking for those issues, then they're only gonna know about it, if the person with a disability is being a squeaky wheel and making it known that they're not compliant.
- But, and that's why today we need to make sure we have better diversity boards and more diverse employees and just diversity across the board, 'cause that's when we learned from other people and then we learn, oh, that's accessible to me, but not to you, or that's offensive to you, but not to me. And these things won't come up until we open up and like Adjacent Space, we often say create space, we need to create space for those moments. And I think a lot of times until we allow people to talk about that, about their own experiences here, right? Until we look for ourselves or until we're being sued or until all these other things come up. Yeah, we don't know about them.
- It's always cheaper for the business to do that self evaluation on their own. And when the ADA was first passed, all of the people who do expert work for litigation now, they were all formed doing voluntary compliance work for those concerned businesses that wanted to comply with the new law. But very, very quickly that work died out, the experts that I know that have been doing this since the early nineties, when the ADA was first passed, said that they only probably had two or three years of voluntary compliance work. And then it all turned into litigation. So, generally folks aren't going to do what the law requires until they're made aware that the law requires it.
- Yeah, education is everything. Well to not take any more of your time, it looks like it's about that hour mark. I wanna thank you Ed so much for your time, just now everybody in the audience, if you didn't have a chance to ask a question, or if something popped up later, you can always email us@infoatadjacentspace.org, we're always happy to provide resources or direct you towards Ed, or if Ed wants to share his email, I know that he said, he's happy to have a free consultation-
- I'm gonna put it in the chat, if you have a legal question for me, you can email it to me. Were did it gonna go? There it is, all right.
- We did put a survey in the chat as well, if you don't mind filling that out, we always want to be basing this type of stuff on what people want to know. Ed and I talked before this event, and we're actually going to start doing a series where we're gonna be focusing on very specific topics, like I said in the beginning, you probably showed up thinking that you're gonna have a certain question answered, and you probably walked away, maybe not having that question answered, but maybe you learn something else. We're gonna try to focus in on more specific topics so that you know what you're getting into. Because again, the ADA pretty extensive, a lot of information, we just are focusing on effective communication, but there is plenty more to learn about the ADA. If you could either in the survey, if you fill it out, let us know what topics you're interested in, or if you even wanna put it in the chat now, like I said, a lot of people said other and that poll, and I'd really be interested to know what people are wanting to learn about. Just to do a brief shout out to our interpreters, they did an amazing job. We also are just volunteer based, so all that we do and we put into the organization, all the donations that we get, we get grants sometimes, once we put in the work and the time to get those grants, which has been fantastic, we're able to push back into the community and we're either hiring deaf interpreters to do work, right now we're trying to recreate our website and everything that's an English, we're trying to put it in the ASL right now. We are trying to hire deaf interpreters to interpret information that oftentimes is lost in the mix of this pandemic right now, specifically in the Alabama area. But events like this, you know it does take money. We have to pay for the Zoom platform, we're paying for interpreting services. Hopefully captioning is going to work out much smoother next time again, I apologize. It seems like it was an error on the way we set up the event. This is a learning curve, but we wanna do better next time. So if you ever think, Hey, I wanna donate to a nonprofit organization. We would love to take your $1, your $5, anything really does matter, and we really do truly push that back into the community. We tried to do as much as we can to push our mission, which is promoting equity, promoting accessibility, volunteer steam only run so far, and the reality again, is that events like this take funds to make it happen. Also other ways to support, not financially pushing our social media, if you ever see something that you like, or that you learned that something new, please share it with other people and subscribed to our newsletter, they up to date with the things that we're doing, and some of the ways that we're pushing all of those things, like what we're talking about, proactive action and reactive action. You can see what we're doing once a month, we do a monthly newsletter where we in ASL and English are explaining what we did that month. Sometimes it's not a ton of things, because again, we are volunteers, but we're always updating everybody because we want it to be transparent or you can buy a really cool t-shirt, a tote, all of that stuff. You can make us your Amazon charity, things like that all really do count and they make a difference and make things like this possible. So yeah, again, take a moment with the survey, I think that we put all of the emails in there, and again, we really appreciate everybody's time tonight. I'm so glad you're able to join us, thank you, Ed, again, it was so great to get more information and this is what we needed. So you have a great night.
- Thanks for including me, I appreciate it.
- Yeah thank you.
Americans with Disabilities Act Q&A with Ed Zwilling and Adjacent Space September 30th, 2020
Video Transcript
[ID: (1) At the top left, there is a screen of a white woman in a black shirt. The background is black. (2) At the middle of the top row, a white woman is wearing a gray shirt. The background is black. (3) At the top right, a white man is wearing a black shirt. He is wearing round brown glasses. The background shows a cream-colored wall with a wooden desk at the right of the screen. (4) At the bottom left, a white woman is wearing a black shirt. She is wearing wire glasses. The background shows a light gray coloring. (5) At the bottom right, a white bearded man is wearing a blue-white patterned shirt. He is wearing rectangular glasses, and there is a window with white bars behind the man.]
Transcript:
Angelica (Anna is interpreting for Angelica): We want to see your face, Ed!
Ed (Jennifer is interpreting for Ed): Are you sure about that? Okay.
Angelica: Okay everyone, please turn off your video. Click on the box with three dots and close your video and microphone. Okay, hello everyone! Thank you for joining our Americans with Disabilities Act Zoom session with lawyer Ed Zwilling! Again, please make sure to close your video and microphone. If you have any questions, you can type the question in the Chat box and Trey and I will check your questions. If you prefer to sign your question instead, you can inform us that you would like to sign and we will spotlight you so that you can sign the question. Okay! Thank you Ed for joining, and thank you interpreters Anna Hayes and Jennifer Kuyrkendall! Anna will interpret for Angelica while Jennifer will interpret for Ed.
Adjacent Space is a nonprofit organization that promotes visual-tactile accessibility and equity for Deaf, hard-of-hearing, and Deafblind communities. ADA is about access for our communities, namely Deaf, hard-of-hearing, Deafblind, and allies. For people who work in medical settings, this will be a great opportunity for you to learn about ADA. Soon, Ed will be explaining about his expertise and experience, and then we can ask him questions that could be relevant to your workplace, medical center, doctor’s office, and etc to really understand the law of ADA and reasonable accommodations. We will now ask Ed questions. At the end, if you have any questions, you can either type in the Chat box or sign your question. If you prefer signing, then we will make sure to showcase your video so that you can ask your question in sign language. If you have more questions but you didn’t want to ask in front of everyone, we can arrange for you to have a private chat with Ed after. You can contact us via compliance@adjacentspace.org if you would like to have a confidential chat with Ed.
We could support you if the situation calls for it. We’ll go by case-by-case basis. We’re happy to support you! Okay, could you explain your background, Ed? Your expertise with ADA?
Ed: Okay! Thank you all for joining! I’m honored to be here! I worked with the law in Alabama since 1992. I came from Virginia, and I’ve been here since 1989. I’ve been here for a long time, more than any time I spent in anywhere. In 2002, 10 years after I finished my law school I worked for a civil rights firm in Birmingham advocating for people with disabilities. I worked mainly for fair access to housing, rehabilitation act, ADA, and more. I worked there for 16 years. Two years ago, I decided to work independently. I’ve been working in this area of my expertise for 18 years, nationally. I also worked on fighting against architecture barriers, attitude barriers, and policy barriers. I advocated for effective methods of communication. If you have any questions or curiosities, let me know! I’ll be happy to answer!
Angelica: Awesome! And I want to share that Ed has been a huge help for our organization! We’re a new and young organization, but we want to get involved and help/advocate our communities—Ed really helped us—thank you! We’ve contacted Ed in past for legal counsel and advice, and he always answered every single of our question! Thank you!
Ed: Yes, of course! It’s my pleasure! Some questions may be very detailed, some questions I can anticipate getting, or I may get some surprise questions! I want to get you a heads up: a lot of answers that I will probably be sharing often: “it depends.” The law is not black and white. It’s very grey. You know the idiom: “early bird gets the worm?” It’s important for you to advocate for yourself. It’s important to get what you need instead of accepting stuff as it is.
Angelica: You’re definitely right! We look forward to hearing your “it depends” answers! Okay, here’s the first question. We’re not sure if you’re able to give a direct answer, but here it goes: during the coronavirus pandemic, if someone goes to the doctor’s or dentist’s office, and they (the providers) don’t want a live interpreter due to coronavirus concerns and would prefer getting a video remote interpreter. You know how the term “essential worker” has grown during the pandemic. Does the term match interpreters? Are interpreters considered essential workers? CDC may have guidelines that may not be addressed by ADA. What is a Deaf individual’s rights when it comes to that? What do you think?
Ed: Well—for a surprise, my answer is… it depends. Effective communication—in the middle of a pandemic—do you remember when at the beginning of this pandemic everyone was not allowed to go anywhere. You can only go to work if you were labeled as an essential worker. Do you remember that time? Well, the rules were not as strict in Alabama as they are in other states. You have to understand to achieve effective communication plus accommodations, you must be aware of what we call “direct threat” which explains the threat of health in the communities.
[ID: The screen now involves four people. (1) At the top left, there is a screen of a white woman in a black shirt. The background is black. (2) At the middle of the top row, a white woman is wearing a gray shirt. The background is black. (3) At the bottom left, a white woman is wearing a black shirt. She is wearing wire glasses. The background shows a light gray coloring. (4) At the bottom right, a white bearded man is wearing a blue-white patterned shirt. He is wearing rectangular glasses, and there is a window with white bars behind the man.]
So, let’s say…if a disabled person says she can’t wear a mask due to health problems. Does that mean my disability affect my health to wear a mask? Or do you mean you’re not comfortable wearing a mask? If you really can’t wear a mask due to a disability—such as PTSD—if wearing a mask triggers a panic attack due to PTSD then that is an acceptable form. Can Walmart tell you you cannot enter their store because you refused to wear mask? Yes, they can! Why? Because of the “direct threat” during a pandemic—only during pandemics--stores and establishments can prohibit you from entering due to a “direct threat.”
So, going back to the original question: are interpreters considered essential workers? I don’t know any legislative actions that have labeled interpreters as essential workers. For this discussion, let’s say they’re labeled as essential workers. If these places have a policy on how these workplaces and employees are capable of working with interpreters, then it is possible. Generally, people do not know how how to do this. They often don’t have policies in place. Even if they have policies, they don’t know how to apply it in their work. Or… [technical difficulties].
Anna: Jennifer froze for a bit.
Ed: So during a pandemic, many interpreters aren’t available. If an interpreter is labeled as an essential worker, they have an option… [technical difficulties].
Ed: So, again, it depends. Interpreters have an option either to show up for work or not.
Angelica: Again, maybe that is relevant to policies. Do hospitals have policies? Would you suggest a deaf client to ask the hospital upfront what is their policy on serving for the deaf?
Ed: Absolutely. Yes. The best way to do this is to ask the hospital in advance. Some people thought that doctors will be aware that you are deaf based on your previous appointments with them. That may be true, but how many patients do a doctor see everyday? The doctor may have its assistant handling these duties in scheduling interpreters, etc. So, it’s important to contact them in advance. I understand that it can be exhausting having to contact them every time, but if you can make this a habit, then the doctor may understand that you require an interpreter every time you visit. In case of an emergency or a problem, they can realize that they need to get you an interpreter. Sometimes the secretary forgets to call for an interpreter, sometimes the doctor forgets to inform the secretary to call for one. I know a case where someone has to go to the hospital three times a year due to cancer. The staff at that hospital knows who this person is because they contacted the hospital numerous times about the patient’s disability. If this person goes to this hospital without any prior notification and he encounters a barrier, then that’s a policy failure. It’s not the patient’s fault that they failed to provide accommodations for him, but if he called in advance it could reduce problems for his visit. In a perfect world, you don’t have to do anything—they will take care everything for you! As for being in courts, they interpret effective accommodations differently, depends on the situation.
Angelica: Right. And deaf clients and patients need interpreters to communicate. Deafblind and hard-of-hearing individuals also need accommodations to communicate in these settings. Okay, moving on to the second question. Some doctors would prefer getting a video remote interpreter to save money. Common problems facing video remote interpreting include: unreliable connection, freezing screens, and staff that do not know how to utilize the monitor properly, or interpreters from other states not being familiar with regional signs, interpreters that do not have any important background information on deaf clients. Some deaf clients may feel that VRI is not reliable. How do they request for a live interpreter? And have these places follow through deaf clients’ requests for live interpreting?
Ed: Let me think about that question. I want to answer from an other practice’s perspective. Let’s use a person in wheelchair as an example. The concept applies to deaf people the same. VRI—from my experience many years ago… when did VRI originate? I think it was before 2002.
Angelica: I don’t know. I think it may be around when the technology was growing. When the text messaging came along, at around that time, probably.
Ed: It was around at that time, 2002. I handled a case that involved that back then. At that time I was part of a huge ADA advocacy group, we handled cases that involved people in wheelchairs, deaf people, blind people, people with disabilities, plus people without any disabilities. Even if I don’t represent a deaf person, I will still bring up needs and accommodations for deaf people anyway, even if I am not working with them at the moment. Like, for instance, if we are working with a hotel, we will bring up alarm lights, TTY, bed vibration clocks, etc. Like, “a deaf kit” that has comprehensive review of things that are needed for deaf people. One example, in a small town I asked them what their policy is on providing interpreters. They said that they have no policy in place because interpreters were so far away—no one is around locally. Not even one RID certified interpreter in this town, that’s why there is no policy. So, VRI is a great way to accommodate that temporarily. If they can’t find an interpreter or that you have to wait four, five, or six hours to get one—VRI helps in that regard. That, in my opinion, is when utilizing VRI is at its best. For example, someone got in a vehicle accident. This person is taken to the emergency room. Now, is this accident planned? No. Was the hospital planning to have an interpreter? No. The hospital’s job is to save your life. VRI is necessary. Better than nothing, right? But for the permanent use? I disagree. ADA has three different categories of support.
First: Advocacy in speaking for myself. There is a certain way you should do this. You are working with a business. Hospitals for an example—doctors, nurses, administrators are doing business. If you’re in a doctor’s room and the VRI is freezing, and you’re frustrated and you decide to tell your nurse. You try to explain to your nurse that VRI is not working at all. What will your nurse do? Will the nurse notify its supervisors? No, the nurse will not. If you want to order a burger from McDonald’s, and you needed to go to the bathroom while you’re not sure what to do with the food. If you decide to inform to the cashier, what will they do? Not much. If you try to explain your problem to the manager that you needed to go to the bathroom and you could not keep the food right now when you’re in a wheelchair, will the manager be understandable of your needs? You got to think in terms of business. If I had a bad experience with VRI and bad experience in physical access, write a letter to an administrator, i.e. your hospital administrator. I know I’ve been talking about a hospital, but this applies to anywhere. You can contact the city council. If something is going on and you don’t have any access—if sharing my experiences and responsibilities as a citizen is a barrier—then you should write to the mayor. You should contact the supervisor/the top of chain. Your complaining to the subordinates won’t really do anything. Your attitude should be businesslike. You shouldn’t ask—you tell them to follow the law. Most of the time, they don’t really know or understand the law. This would be a good teaching moment for them, even though they should already be aware of this law. When you teach them you are really helping the world. You’ll help people who need the law by teaching them at that moment. By being involved, you’re really helping other people. Sometimes I get excited by this because it’s something that we can fix for the future.
So, to recap, you write a letter to the supervisor or the boss. In your letter, you name the requirement of ADA is like (www.ada.gov: there is a manual) and you should click on the effective communication tab and what is not considered effective tab. A warning: you may be confused in what is considered effective and what is not. But that’s how you can understand that. Businesses do not understand that. There is a gray area in the law. Department of Justice has printed different articles on that. But you can inform your business or workplace or anything that they need to do this, they need help on this, and send them important information like articles, etc… and you ask them to reply back to your letter. You should also include an expected reply date, like 14 days. If they haven’t responded, you can follow up. You also need to ask them to send you a policy for effective communication. You tell them you want to see a policy in place. In that approach, you must think in terms of a business. Do hospitals or these places want to purposefully discriminate against you? No. You need to inform them. Maybe your action can help them save a lot of lawsuits later. Now, you may not receive any word from them. That’s the first thing you should do. Write them a letter. Wait for their response. You need to advocate for yourself and become more knowledgeable. You have to explain what the law is about and educate them. Okay, now moving to the second point: the same thing as you do for the first thing; you continue to advocate for yourself. This includes making a formal complaint. You file a formal compliant. This distinction is important. The first thing is writing them a letter. The second is making a formal complaint.
This is also called “administrative compliant.” It’s same as making a complaint in your workplace. The complaint will be sent to EEOC. EEOC is Equal Employment Opportunity Commission. EEOC is for employment. But if you’re a consumer in a restaurant, business, etc…the formal complaint filing process will go to the Department of Justice. They have a link on their website—very easy to find and contact them. You can file it electronically—just fill out dates, information, details, what happened, and explain how you didn’t have any effective communication and file it with Department of Justice. The referral can lead to an investigation and that can lead to a lawsuit. The government can get involved, and it’s because you just filed a complaint. Now I want to be clear: does this mean that every time you file a compliant, they will investigate immediately? No. But if more people continue to file a complaint against one place, then Department of Justice will be active.
Now let’s talk about the third point. You can hire your own lawyer. I want to emphasize this: when you hire your own lawyer, they shouldn’t charge you. Civil rights are about protecting disabled people and groups. Laws have what it’s called: “preventing parties”—it happens if you win a case, the offending company must pay the lawyer’s fees. You are not responsible for paying your lawyer fees. If the judge fines, there are usually other factors involved on why there are fines. If there was a case where your charge wasn’t deemed worthy or you didn’t have enough evidence—that could lead to a fine. That could mean your case wasn’t strong. Sometimes the lawyer doesn’t know. So that could lead to charges for civil rights. My point is that if you hire a lawyer and it’s about civil rights, you do not have to pay anything. I, as a lawyer, would hire an expert to justify your case—but anyway getting back to the point. These are options you can do. First, simple—you write a letter to the supervisor or the boss of that company. Second, you file a formal complaint. Third, you hire a lawyer. That sums it up. My suggestion? If you don’t like VRI… you will still get VRI anyway. If you don’t act, that is. You must act if you want to see change.
Angelica: Right, especially during the coronavirus pandemic. All day work on Zoom/virtually. Sick of them already. Most deaf people are sick with VRI. Thank you for answering the question! Okay, moving on. Next question. When we want to file a complaint, what do we need to document? How can we document if we are experiencing something now? For example, let’s say I’m in a hospital room and I’m laying on the gurney. How can I document now? Maybe after my visit, I recall some stuff that were not right. How can I properly document stuff?
Ed: The most important thing you can do is document. It doesn’t matter what kind of situation. You can note everything on paper or your phone. Let’s talk about a scenario where an employee is working. The employee’s supervisor is talking to you—not via emailing or texting—talking to you. If the message isn’t appropriate—how do you document that? Once the boss leaves, you go ahead and type everything that you heard and then you email your boss what your boss told you. Then ask your boss if you’ve missed anything or misunderstood something and ask them to let you know if you did. Then you submit that email. That is called documentation. If they answer you back and said that you misunderstood them, then okay. If they don’t respond or realize that they made a mistake, then you have documentation on hand. Try to document as soon as you can when it’s possible for you to do so. Use your phone to document. Get their names. Let’s say if you have an appointment to see your neurologist for exams. Communicate your needs. Ask them for an interpreter. If they follow up with VRI when you want a live interpreter. If they ignore you and say that they can only provide VRI, go ahead and get their names. Both first and last names. Document the time of the day. That will be worth it later because it shows that they are not properly trained. They may ask you who you asked to request for a live interpreter. The front desk receptionist usually does not know what to do. They also usually do not have any authority. They aren’t usually trained. The job usually has a high turnover. That’s why it’s important for you to continue contacting them on this matter. Make sure to document your dates on your calendar if there’s a pattern of repeated behavior.
Ed: So, if you see that the VRI service is not functioning or that the staff lack training or knowledge on how to handle it, you document it right away. Document pictures if there are any. So at a later time you can use these as evidence when you file a formal complaint or bring a legal lawsuit. I had a different case where there was a guy in wheelchair. He needed to get on a city bus to go somewhere. This driver refused to let him get on the bus because he didn’t want to stop the bus to open the wheelchair ramp to allow him get on. This became into a habit where the driver would apparently openly discriminate him by not stopping for him when he’s near the bus stop. The driver may do that because he felt that it would be a waste of time, delaying the schedule, etc. So, in my lawsuit, this man took pictures of all discriminatory behaviors that the bus driver did. That helped us win the case. I know I went off on a lot of things but I hope that answered your question!
Angelica: Ha, yes you answered our question! Now, I noticed there are two questions that were typed in the Chat box. The first question asked if texting, not emailing, is an acceptable form of documentation. I guess this meant as in texting between the client and the provider. Is that an acceptable form of documentation?
Ed: That’s a great question. Many people do not have any deaf friends or family members—hearing people do not understand that English and ASL are two vastly different languages. Many hearing people do not know the difference. Hearing people do not understand that. Some people understand better at signing than they do writing English. It’s about your background, school, were you born deaf? Hard-of-hearing? Late deafened? Can you read and write well? Even if some people do not have any speaking or hearing disabilities—they still can have reading or writing problems even though they may not have any disabilities. So, if you are deaf and English isn’t your strength, like you are struggling with reading, writing, or expressing yourself then texting or writing is not considered an effective form of communication. For you. You may need someone around to accommodate your needs. There are many different kind of accommodations. Lipreading, for example, if that does not work for you then it is not effective communication. So, it depends on individual needs and preferences. So, that’s why it’s important for you to tell them you need a live interpreter. If you don’t tell them, then the businesses, places, hospitals will do whatever it is the easiest for them. They could find a volunteer interpreter to interpret for free of charge. The law says you cannot charge people with disabilities for accommodating services. But if a place forces you to bring your own interpreter, then that’s considered “structure” which would mean they save their money. So, for businesses—it’s important that you tell them you need interpreters.
Angelica: Right—texting related to a phone—saving the text conversations you have with your provider is an acceptable form of documentation that can be used in a lawsuit, right?
Ed: Yes. Sometimes these texts can provide obvious and evident proof that communication at that time is not effective. It can show that clients do not understand their providers. Yes, save these text messages. Plus—you gotta check out your situation. Ok, let’s say you got sent to a hospital for a cut on your hand… and let’s say your blood cells are dropping and you got sent to an emergency room, and that’s different from the situation where your hand is cut. So, this process requires testing, checking, giving medics, etc—so it depends. Getting your hand taken care of, when compared to a heart problem—how can you explain that you got to stop taking medications during a time when you need to document? A live interpreter is needed here. Imagine yourself going to a doctor’s office to get your diagnosis…only to see the communication is being written. Is that appropriate? No.
Angelica: Right. You asked us if we can imagine that scenario. I’m pretty sure the audience can imagine that.
Ed: Yes, I’m sure you do. I meant, sometimes, an interpreter isn’t needed at the moment. Sometimes you do need one. If I go and buy a car and I need to go through paperwork—do I need an interpreter? Yes, I do. But if I’m going for a test drive, do I need an interpreter to go in with me? No. It depends, again.
Angelica: Yes, that. I’ve noticed another question that relates to the supervisor question. If I work somewhere and my boss isn’t very receptive to my needs, what should I do? Can I go to the upper administration, higher than my boss if my needs aren’t met? Going up in the chain, or should I go with a third party to express my concerns? Like EEOC and DoJ, that. Is there a specific group I should ask about that?
Ed: Yes, okay. The answer is it depends on the situation. If the ADA isn’t being followed—how do I get to that point—if the workplace is involved with what is being called “interactive process.” You notify your employer that you need accommodations. Your accommodations must match to whatever the job they hire you to do for. Your accommodations must help you succeed your duties that you are hired for. If I can achieve my job duties without any accommodations, then the employer is not required to provide you accommodations. But if there are some duties that you are capable of doing without any accommodations but some duties that you can’t, it becomes into a question: is it reasonable? Is that “undue burden” for your employer? They have the right to recognize your needs but they can say that some certain accommodations are too expensive but offer different methods of accommodations. It becomes into a back-and-forth discussion in finding what accommodations work for you when there is undue burden. The disabled employee can offer different alternatives. For this process—the employer hasn’t broken any law…yet. The “undue burden” like “I can’t afford it”—can be sued. The process should be about back-and-forth discussion in finding what works best for both parties involved. In most of my cases, the employer never got involved in discussing in what accommodations they can provide for the employee. If they still refuse to discuss about it, then that’s a slam dunk case right there. An easy case win.
Even though the accommodations may not be right, you are entitled an opportunity to discuss on what accommodations you need. If the employer does not entertain the discussion and refuses your needs, refuse to discuss other options, refuse to listen to your needs…that’s called discrimination. I hope that’s clear. So, to answer your question…it’s important that you go step by step and not to skip a step. Sometimes you don’t have a choice. So, there’s a right and wrong way to do this. I suggest you go step by step, and not to skip a step and tell your boss right away. Make sure to involve your Human Resources specialist, as people working in Human Resources often have the most legal training and experience. Human Resources representatives will usually contact the company’s lawyers for advice, and then the Human Resources can relay the advice to you. So, if you tried everything but you don’t get any answers…then you should go to EEOC, which is the last resort.
Angelica: That’s great. We have one more from Zoom Chat and then we will go back to what we came up prior to this meeting. This question relates to someone who saw or witnessed the event. This could be an interpreter or a family member or friend who saw the discrimination. Sometimes interpreters may feel they want to support the deaf person—if they know a policy is broken…what kind of power does the witness have? If a nurse saw a policy being broken, what can we do? Who do we contact?
Ed: Witnesses always help in any case. I know there were interpreters who have filed a complaint on their behalf before. I think it’s such a strange situation for an interpreter to be in. It could be a conflict of interest. Often, providers, hospitals, court cases, etc…they pay for interpreters, and these interpreters then file a complaint against them? It’s strange. “Don’t bite the hand that feeds you,” as they’re giving you money. That’s a very good question. Witnesses are always good. They help you with your documentation. In my experience, most of the time witnesses are family members who are working with deaf people. These places will ask family members to interpret for their deaf family members because they refuse to pay for interpreters.
Angelica: Alright. Now let’s move on to another question. As we know, there are more things that are provided online. Events, webinars, workshops, etc are now online. What if captions aren’t enough? I saw some policies and laws that were passed that require companies to provide interpreting in their online content. Does this apply with ADA?
Ed: It depends. If it’s related to your work—trainings—are dependent on your work via Zoom…well there are many situations. Employers must give you accommodations you need to achieve your work. If captions work for you—as in you being proficient in reading and understanding English—then yes, captioning is effective. If captioning isn’t good for you, then you need to notify your employer in advance with specific and exact dates so that they can schedule an interpreter for you. If your company says no to your request for a live interpreter, then in my experience, we won cases like that. This is related for work. But now if it’s about volunteering—like you want to learn something on your own time, that’s when things get sticky. It really depends.
Angelica: And you call that as building something, like “brick and mortar” — do you mind expanding on that part?
Ed: Yes, thank you for reminding me. I don’t know if there are any deafblind person in this meeting tonight but… deaf, deaf.
Angelica: You said that deaf people who can hear?
Ed: Oh! Sorry! I meant deaf people who can see…as for deafblind they may need someone to read the website for them. How can deafblind people read the website? I don’t know—can you explain that?
Angelica: Yes, there are some tools that are accessible for deafblind. Anyone wanna share that in this session?
Ed: I guess there is a HTML code for a website to match whatever an equipment needs. So, that’s my point. A lot of cases happened because no one is familiar in how to use technology to support the equipment needed to make content accessible. That reminds me of something. If I join an online event—before coronavirus—this event only came in online. That is different from if you had events in person only. When you host events in person you are required to have access to everything. But when you’re online, you aren’t required. There are not any rules, policies, and laws that are written that require access when you are fully virtual. In the Obama Administration, they tried to convince online businesses to comply with WCAG: Website Content Accessibility Guidelines. Department of Justice tried to get involved in being firm and tough on these guidelines, but it never really saw success for online businesses.
Let me give you another example. If I want to get a plane ticket and I order from a company like Southwest. I call them and they told me that I would find a cheaper plane ticket online. That sounds good to me so I hang up my phone to order it via online. I have a box that can translate information for me via speaking so I go on their website. But due to faulty or missing coding, I am unable to retrieve information on cheaper plane tickets online. Now, because Southwest has a physical location, this means they are legally obligated to follow the ADA. Their website must be complaint to ADA.
Here’s another example. If we want to book something from Hotels.com or Expedia.com, and they don’t have a physical location. Then the rules are different for them. ADA regulations do not apply to them. If there is a physical location, then the website must be accessible. If a website has no physical location, then they do not have to follow rules. So to answer your question: if it is relevant to employment, then the answer is a resounding yes. If it’s relevant to your work and it happens to be online, then your employer must give you accommodations. But if I’m doing it for my own personal choice and I need accommodations online…it really depends.
Angelica: I guess we should buy you a shirt that reads: “It depends.”
Ed: Haha—I think all lawyers should wear that shirt!
Angelica: Maybe interpreters, too. Okay. Let me check to see if there are any questions—again I want to be sure that we’re not taking too much time from your schedule! I also want to be sure we are mindful of Ed’s time too. If you have any more questions you would like to ask Ed, please contact us at compliance@adjacentspace.org and we’ll answer! It doesn’t matter if it’s a minor or serious question; we’re happy to hear from you! Okay, I need to back up a bit and ask one more question—if there’s a situation where the complaint is filed to the boss or the head of a company…is there a specific template or letter that we should write for our complaint? Is there a specific website we can look up for more information? Adjacent Space has collected all important information on people to contact when it comes to ADA complaints on our website, but is there more resources that our audience can use? Sometimes it can be overwhelming researching which places and sites to look for to contact suitable representatives for ADA complaints. Do you have any resources you can share?
Ed: For something like a letter demanding that the company offer accommodations, no. But if you want to write something, you can consult a lawyer, like me, to write up a statement to send to your company. It would still be considered a lawsuit, and we may seek for a settlement versus going all the way in the court. I’m happy to write a letter on your behalf if that will help solve a problem, but as a resource…a place where you can easily use to send to your company? No, I do not know anything. But I can point you to a list of various information, yes. There is a website called: www.ada.gov, and they have a technical manual of everything in different formats that you prefer, such as small/large texts, braille, and so forth. They have information relating where you live, in a small city, municipality, hospitals…they have a lot of help. Remember—ADA is a broad law, and they may not answer your detailed, specific problem with ADA for effective communication. You can find their guidelines, namely Title II (2) and see how they provide access. UAB is a pretty good entity in this area compared to some hospitals that aren’t so great. UAB falls under Title II technical assistance manual, because it’s related to state. But if you were talking about a private hospital, you need to refer to Title III (3) technical assistance manual. If you’re a student in a school, then the process is different. Department of Education is responsible, and you can file at Civil Rights department when it relates to school.
Angelica: Great, thank you! There’s a question that relates to workplace negotiating for accommodations. If you’re in a discussion with your entity about getting accommodations and the discussion is ongoing but you’re not getting any results…how long does that take or is there a specific deadline that they need to respond or give accommodations?
Ed: There was a situation that relates to that. There was a man who worked from home, and he is hearing impaired. He needed headphones to work for a call center. And these headphones were five times more expensive than the regular hearing aids, but this guy needs them for his work. So, this guy finally got headphones for his work, but it turned out to be faulty and it got broken…so things were sticky after that. Hold on, my battery is about to be gone. Let me recharge.
Angelica: We got just one more question to ask!
Ed: Sorry, I didn’t plug the charger for my laptop. Anyway, this guy asked his company for a new headphone, and his company said no—but offered repairs for it instead. His company said that in meantime he could just bear it for a short time until his headphones come back. Well, the repairs took few months, so I told my client that he needed to file a discrimination complaint (they’re good for 180 days). The grace period happens on the day when you’re discriminated—you must file a complaint within 180 days of the date where the discrimination occurred. If the discrimination at your workplace happens often, then count the grace period from the LAST time that you were discriminated. If they keep on discriminating you, then this proves that there is a pattern.
Angelica: Good to know!
Ed: That is for your employment only. But for anything else, you have a limitation of two years to file in state of Alabama.
Angelica: Okay, thank you. Okay! Last question! We’re skipping a question, but we’re curious—is there a specific theme that you’ve consistently seen in our deaf community—by that I mean deaf, deafblind, and hard-of-hearing people. Is there any themes you have noticed often and if you have any advice you would share to us?
Ed: You must inform your needs. For me personally, it took me some time understanding what deaf culture is about and what it needs. I met a deaf client and I learned about his needs and I learned a lot more about deaf culture and community. Your upbringing, deaf school or mainstreamed school. Your communication preference, ASL or oralism? Culture? I don’t know. Your language comprehension skills? Gifted? Good life? Hearing people do not know. That’s my point. In my field, there are going to be people who have college degrees. High school degrees. So, you need to educate the public. If your needs aren’t being met…they just don’t understand or know what you really need. Usually they don’t want to discriminate you. They just don’t understand.
Angelica: Thank you very much. We appreciate your time in coming here! We want to wrap things up. This session will be recorded and saved. We’ll share this on our website—if that’s okay with you, Ed?
Ed: Yes, of course.
Angelica: We want to keep this video as a resource. You say you feel excited when you work, and I do feel the same. I’m excited to see what changes we can make! We want to advocate for changes. Anytime we learn about ADA, this resource is such a great way for us to cause changes for a better world! Thank you again!
Ed: Thank you all!
Angelica: Thank you everyone who came! Have a good night!
Ed: Bye!