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A Deep Dive Into Complaints Under 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.
Preliminary Information
Questions and Comments
I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].
The Next Episode
Since the ACB convention is the first week in July and given that our family has a lot happening in July, I will not be doing a live episode of Demand Our Access in July. So, the next live episode of the Demand Our Access podcast will take place on Saturday, August second. As of now, I don’t know what topic I will cover in August. As always, I’m open to your ideas.
Updating the Website
Since I won’t be doing any live episodes during the month of July, I will be working on updating the Demand Our Access website. I will have more information about the updated website and maybe even demo it in August.
Complaints Under Title II
Introduction
As a reminder, Title II of the Americans with Disabilities Act (Title II), primarily covers state and local governments. I have mentioned complaints under Title II in previous episodes. But this time I will be taking a deeper dive into complaints under Title II. I’m doing that because I think it is more important than ever for us to understand our options for filing complaints under Title II and the rights we have in filing directly with our state or local government.
Citations
Again, I will not be mentioning citations to sections of law during this episode. I will post the citations to the specific sections of law when this episode is posted to the Demand Our Access website.
Public Entities
As a reminder, Title II often confers responsibilities to what the law calls “public entities.” In general, public entities are an entire local government or individual sections of a local government. Sometimes, different responsibilities under the law apply to public entities depending on whether or not they employ at least 50 employees. To keep this simple, I will, most of the time, refer to local governments (not public entities). The rights we have and the responsibilities the government must meet will be the same. The technical differences in what defines a public entity don’t change our rights as disabled people.
Roadmap
In this episode, I will cover the following five topics:
General complaint information
Filing complaints with your local government
Filing complaints with Federal Agencies
Filing Complaints with the Department of Justice
Tips on filing complaints
General Complaint Information
Where you Can File
When a local government is discriminating against you based on your status as a disabled person, you can file your complaint in one of three places:
The local government that is discriminating against you
A federal agency that oversees the program that is the basis of your complaint
With the Department of Justice (DOJ)
You are not limited to filing in only one of the three places; for example, you could file both with your state or local government and with DOJ.
Time Periods for Filing
One important thing to remember is the time periods in which you must file. Complaints filed with DOJ or a federal agency must be filed within 180 days of the alleged discrimination. State and local governments, on the other hand, can require that complaints under Title II be filed within 60 days of the alleged discrimination. When facing discrimination, it is a very good idea to figure out your local government’s complaint procedures (if any), because you may need to file within 60 days of the events comprising the discrimination.
Who can File
You don’t have to be the person who actually experienced the disability discrimination in order to file a complaint. As long as you have the permission of the disabled person or you are their guardian, you can file a complaint under Title II.
If you are so inclined, you can also file a complaint on behalf of a class of disabled people. But that’s something most people won’t try. So, I’ll leave it there.
Filing with a State or Local Government
Notice of Rights
Under Title II, public entities are required to notify those of us with disabilities of, among other things, of our right to file a complaint with them when we believe they are violating our rights under Title II. In this case, I have used the term “public entity” because I have seen situations where a state or local government has adopted a general framework for complaints but has allowed individual agencies within the local government to establish their own procedures for the investigation and resolution of complaints filed under Title II. While it would be nice to assume that the filing deadlines are the same among agencies of a state or local government, it’s important to remember they may not be the same.
If you are interested in filing a complaint with your state or local government, I would begin by seeing if they have published a notice of rights. If they have and it was done correctly, the notice of rights should give you the basic ideas as to how you should file your complaint with them and the time period in which they are requiring you to file your complaint. If the language in the notice of rights leads you to believe there is a question as to with whom the complaint would be filed, I would ask their designated ADA coordinator to tell you how you should file your complaint, with whom, and about the time period you have to file.
To keep this simple, you could just file your complaint within 60 days of the alleged discrimination. As long as you file with your state or local government within 60 days, your complaint will be considered timely.
Elements of Your State or Local Government’s Complaint Procedures
The complaint procedures developed by your state or local government (whether they are applicable to the entire state or local government or if agencies within the state or local government have developed their own complaint procedures) must be designed to ensure the investigation of complaints is equitable and that complaints are resolved in a timely manner. Here are steps they are to take to ensure they investigate complaints equitably and resolve them in a timely manner:
Complaints are to be in writing, but the process of filing complaints must be accessible.
Once your complaint is filed, you should be able to meet with someone to discuss your complaint within a reasonable amount of time (typically 15 days).
You should get an update on your complaint within 15 days of that initial meeting.
All communications to you from your state or local government regarding the complaint should be accessible to you.
The complaint procedures should include a right to appeal.
The contact information for someone to ask about the complaint should also be provided.
I want to briefly touch on some of the above points.
Accessibility of the Complaint Process
The question of accessibility is, obviously, really important. Since it’s better for everyone if your complaint is filed in writing, there are many ways this could be accomplished. Either they could provide an accessible online form, they could have someone assist you in completing an inaccessible online form, or someone could take your complaint over the phone. No matter how it’s done, your state or local government must provide you an accessible way to file your complaint.
Once your complaint has been filed, any communication from your state or local government to you about your complaint including but not limited to their initial response, questions they may have, their initial determination, and anything related to their appeals process and the ultimate decision must be accessible to you. As soon as you contact them about your complaint, you should let them know how you wish to be contacted about the complaint. Remember that when it comes to effective communication, your state or local government is required to give primary consideration to the method(s) you wish them to use when contacting you. They also need to ensure you have an accessible way to contact them about every aspect of your complaint and the complaint process.
ADA Coordinator
The issue of who to contact can also be tricky. Most people refer to the person who is supposed to address complaints as the ADA coordinator. Some state and local governments have one ADA coordinator for the whole state or local government. Others have created a situation where individual agencies have their own person designated as the ADA coordinator. In those cases, it is very unlikely that each agency of the state or local government will have its own ADA coordinator; rather, it is likely that a few large, public-facing agencies will have a designated ADA coordinator, but smaller agencies will not.
If your state or local government has not designated anyone to be the ADA coordinator, you should figure out how they address complaints under other civil rights las, like Title VI of the Civil Rights Act of 1964. No matter what, your state or local government must have someone, even if they don’t know how to do it, designated to investigate and resolve civil rights complaints.
Appeals Process
Even some of the state and local governments that claim to have a complaints procedure under Title II, don’t have the required appeals process in their complaint procedures.
View all episodes
By Jonathan SimeoneDisclaimer
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.
Preliminary Information
Questions and Comments
I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].
The Next Episode
Since the ACB convention is the first week in July and given that our family has a lot happening in July, I will not be doing a live episode of Demand Our Access in July. So, the next live episode of the Demand Our Access podcast will take place on Saturday, August second. As of now, I don’t know what topic I will cover in August. As always, I’m open to your ideas.
Updating the Website
Since I won’t be doing any live episodes during the month of July, I will be working on updating the Demand Our Access website. I will have more information about the updated website and maybe even demo it in August.
Complaints Under Title II
Introduction
As a reminder, Title II of the Americans with Disabilities Act (Title II), primarily covers state and local governments. I have mentioned complaints under Title II in previous episodes. But this time I will be taking a deeper dive into complaints under Title II. I’m doing that because I think it is more important than ever for us to understand our options for filing complaints under Title II and the rights we have in filing directly with our state or local government.
Citations
Again, I will not be mentioning citations to sections of law during this episode. I will post the citations to the specific sections of law when this episode is posted to the Demand Our Access website.
Public Entities
As a reminder, Title II often confers responsibilities to what the law calls “public entities.” In general, public entities are an entire local government or individual sections of a local government. Sometimes, different responsibilities under the law apply to public entities depending on whether or not they employ at least 50 employees. To keep this simple, I will, most of the time, refer to local governments (not public entities). The rights we have and the responsibilities the government must meet will be the same. The technical differences in what defines a public entity don’t change our rights as disabled people.
Roadmap
In this episode, I will cover the following five topics:
General complaint information
Filing complaints with your local government
Filing complaints with Federal Agencies
Filing Complaints with the Department of Justice
Tips on filing complaints
General Complaint Information
Where you Can File
When a local government is discriminating against you based on your status as a disabled person, you can file your complaint in one of three places:
The local government that is discriminating against you
A federal agency that oversees the program that is the basis of your complaint
With the Department of Justice (DOJ)
You are not limited to filing in only one of the three places; for example, you could file both with your state or local government and with DOJ.
Time Periods for Filing
One important thing to remember is the time periods in which you must file. Complaints filed with DOJ or a federal agency must be filed within 180 days of the alleged discrimination. State and local governments, on the other hand, can require that complaints under Title II be filed within 60 days of the alleged discrimination. When facing discrimination, it is a very good idea to figure out your local government’s complaint procedures (if any), because you may need to file within 60 days of the events comprising the discrimination.
Who can File
You don’t have to be the person who actually experienced the disability discrimination in order to file a complaint. As long as you have the permission of the disabled person or you are their guardian, you can file a complaint under Title II.
If you are so inclined, you can also file a complaint on behalf of a class of disabled people. But that’s something most people won’t try. So, I’ll leave it there.
Filing with a State or Local Government
Notice of Rights
Under Title II, public entities are required to notify those of us with disabilities of, among other things, of our right to file a complaint with them when we believe they are violating our rights under Title II. In this case, I have used the term “public entity” because I have seen situations where a state or local government has adopted a general framework for complaints but has allowed individual agencies within the local government to establish their own procedures for the investigation and resolution of complaints filed under Title II. While it would be nice to assume that the filing deadlines are the same among agencies of a state or local government, it’s important to remember they may not be the same.
If you are interested in filing a complaint with your state or local government, I would begin by seeing if they have published a notice of rights. If they have and it was done correctly, the notice of rights should give you the basic ideas as to how you should file your complaint with them and the time period in which they are requiring you to file your complaint. If the language in the notice of rights leads you to believe there is a question as to with whom the complaint would be filed, I would ask their designated ADA coordinator to tell you how you should file your complaint, with whom, and about the time period you have to file.
To keep this simple, you could just file your complaint within 60 days of the alleged discrimination. As long as you file with your state or local government within 60 days, your complaint will be considered timely.
Elements of Your State or Local Government’s Complaint Procedures
The complaint procedures developed by your state or local government (whether they are applicable to the entire state or local government or if agencies within the state or local government have developed their own complaint procedures) must be designed to ensure the investigation of complaints is equitable and that complaints are resolved in a timely manner. Here are steps they are to take to ensure they investigate complaints equitably and resolve them in a timely manner:
Complaints are to be in writing, but the process of filing complaints must be accessible.
Once your complaint is filed, you should be able to meet with someone to discuss your complaint within a reasonable amount of time (typically 15 days).
You should get an update on your complaint within 15 days of that initial meeting.
All communications to you from your state or local government regarding the complaint should be accessible to you.
The complaint procedures should include a right to appeal.
The contact information for someone to ask about the complaint should also be provided.
I want to briefly touch on some of the above points.
Accessibility of the Complaint Process
The question of accessibility is, obviously, really important. Since it’s better for everyone if your complaint is filed in writing, there are many ways this could be accomplished. Either they could provide an accessible online form, they could have someone assist you in completing an inaccessible online form, or someone could take your complaint over the phone. No matter how it’s done, your state or local government must provide you an accessible way to file your complaint.
Once your complaint has been filed, any communication from your state or local government to you about your complaint including but not limited to their initial response, questions they may have, their initial determination, and anything related to their appeals process and the ultimate decision must be accessible to you. As soon as you contact them about your complaint, you should let them know how you wish to be contacted about the complaint. Remember that when it comes to effective communication, your state or local government is required to give primary consideration to the method(s) you wish them to use when contacting you. They also need to ensure you have an accessible way to contact them about every aspect of your complaint and the complaint process.
ADA Coordinator
The issue of who to contact can also be tricky. Most people refer to the person who is supposed to address complaints as the ADA coordinator. Some state and local governments have one ADA coordinator for the whole state or local government. Others have created a situation where individual agencies have their own person designated as the ADA coordinator. In those cases, it is very unlikely that each agency of the state or local government will have its own ADA coordinator; rather, it is likely that a few large, public-facing agencies will have a designated ADA coordinator, but smaller agencies will not.
If your state or local government has not designated anyone to be the ADA coordinator, you should figure out how they address complaints under other civil rights las, like Title VI of the Civil Rights Act of 1964. No matter what, your state or local government must have someone, even if they don’t know how to do it, designated to investigate and resolve civil rights complaints.
Appeals Process
Even some of the state and local governments that claim to have a complaints procedure under Title II, don’t have the required appeals process in their complaint procedures.