Demand Our Access

In this episode, Desiree and I discuss those terrible accessibility overlays that promise to make websites more accessible while actually doing little to improve accessibility. As Desiree's demonstration shows, these overlays are hard to use, don't behave consistently, and provide little in the way of greater access.

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, I am continuing my revisited look at Title II of the Americans with Disabilities Act (Title II). As a reminder, Title II primarily covers state and local governments.

In this episode, I will be covering topics I haven't covered before as a part of the Demand Our Access project. So, I will not be discussing effective communication and service animals. For information about those topics, please check out the episodes previously posted to the Demand Our Access website.

In this episode, I am also not covering topics that primarily tell state and local governments how to comply with Title II. The Roadmap section will tell you exactly what will be covered in this episode.

Comments and Questions

As always, I want to hear from you. To share your comments and questions about the material covered in this episode, or general thoughts about Demand Our Access, you can contact me by completing the contact form on the Demand Our Access website. If you would rather email, send your message to [email protected].

Citations

To make the material easier to follow, I will not provide citations to sections of law. The links to the relevant sections of law will be included when this episode is posted to the Demand Our Access website.

Roadmap

In this episode, I will cover the following topics:

Discrimination prohibited

Illegal use of drugs

Retaliation and coercion

Personal mobility devices and personal services

Continuing Our Look at Title II

Discrimination Prohibited

Even though the discrimination that is prohibited under Title II is largely in the law to tell state and local governments what they should be doing as a starting point for complying with Title II, it's important for us (as disabled people) to understand what our local governments are supposed to be doing to include us.

The material in this section is a bit dense. So, I have tried to summarize it in a way that communicates what you should know while leaving out a lot of legal language.

Qualified Person with a Disability

The definition of a qualified person with a disability is found in the Definitions section of Title II. I'm including here, because the Discrimination Prohibited section repeatedly references qualified people with disabilities.

Defining a Qualified Person with a Disability

Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

I know I said I wouldn't include a lot of legal language, and I generally will not. I included the exact definition of a qualified person with a disability because it's a definable term that's used throughout Title II.

All of that legal language can be simplified down to this:

A qualified person with a disability is a person with a disability who, with or without an accommodation or modification, can participate in the activity or program they wish to join.

If you want to swim and there are no physical limitations associated with your being able to swim, you are a qualified person with a disability for the purposes of taking swimming lessons. You are qualified to take swimming lessons even if you need an accommodation to take swimming lessons.

No Disability Exclusion

A state or local government cannot, based on our being disabled, prevent us from participating in its programs, nor may it deny us the benefits of its services. This is true even if the program in which we choose to participate or if the service we wish to benefit from is administered completely by a third party or jointly between our government and a third party.

If your local government contracts with a company to provide its water bills, the water bills they provide must be accessible. The government cannot say that they aren't responsible for the inaccessible bill because they contracted with a company to process them.

4Types of Discrimination

In order to stay away from things that may be confusing, I'm not going to cover all the types of discrimination listed; instead, I'm going to focus on the ones I believe are most likely to be encountered by you in your dealings with your local government.

Afforded Opportunities

Local governments cannot provide us an aid or service that is not as effective in affording us an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided people without disabilities.

If your local government offers barbecuing lessons and the goal of the lessons is for each person enrolled in the lessons to independently barbecue a steak and vegetables by the end of the lessons, you (as a disabled person) cannot be told you will cook the steak on the stove. If you were told you would need to make your steak on the stove, your local government would be denying you the opportunity to obtain the same result and to reach the same level of achievement.

Maybe you would agree to use a gas grill. Maybe you would agree to use different cooking tools. But at the end of the lesson, you need to have the same opportunity to learn how to grill your steak and vegetables. That is the only way you could have the chance to obtain the same result and reach the same level of achievement offered to participants without disabilities.

The Provision of Different Aids and Services

Local governments cannot provide you with aids and services that are different from the aids and services provided program participants who are not disabled unless the provision of different aids and services is necessary to ensure the aids and services you are provided are accessible.

Returning to the example of the barbecuing lessons: it would be acceptable for a local government to provide you a talking meat thermometer instead of providing you a meat thermometer that doesn't talk. The different thermometer is clearly necessary for you to tell the temperature of your meat.

Participation in Advisory Boards

Local governments must make accommodations to enable people with disabilities to participate in their advisory bodies and their public boards. This requirement is not limited to those bodies they may establish to get input from the disability community. It applies to all of their advisory bodies and public boards.

If you have an interest in joining your local government's taskforce on the selection of a new public portal to process tax collections, your local government is required to ensure you can fully participate.

Most Integrated Setting

Local governments are to provide those of us with disabilities the opportunity to participate in the most integrated setting possible. This means they cannot establish a group for hikers with disabilities and force all disabled hikers to participate in that group. If you, as a person with a disability, wish to participate in hikes open to the general public, your local government is required to follow the provisions of Title II and accommodate you to the best of its ability and with certain limitations.

Separate Programs

Local governments can offer the disability community separate, segregated programming. A good example of this is wheelchair basketball. Since it would be very difficult to make traditional basketball games accessible to someone using a wheelchair, wheelchair basketball is a good accommodation for a local government to offer.

Completely Different Programming

Nothing in Title II prevents local governments from offering programming that is entirely created for those of us with disabilities.

For instance, a local government could establish a goalball program for those of us who are blind or low vision. This is true even though there is not a goalball program for the general community.

Choosing Facilities

Local governments cannot choose facilities for events that are not accessible to those of us with disabilities. Sadly, this is a part of Title II that is violated on a very regular basis.

Eligibility Criteria

Local governments cannot use eligibility criteria that screen out or tend to screen out those of us with disabilities unless the eligibility criteria being used is necessary for the provision of the service being offered.

Returning to our example of the barbecue lessons, the local government couldn't say that eyesight is necessary for someone to safely barbecue. So, a requirement that people participating in the barbecue lessons need to be able to see would result in the local government establishing eligibility criteria for the barbecue lessons that would screen out anyone who is blind and potentially lots of people who are low vision. Since eyesight is not necessary to barbecue that eligibility requirement would be illegal.

No Surcharges

I'm sure I have said this before, but it's worth repeating: local governments cannot charge those of us with disabilities for the cost of the accommodations we need. This rule applies to even a portion of the cost. The cost of our accommodations is completely the responsibility of the local government.

Legitimate Safety Requirements

Local governments may impose legitimate safety requirements. But those safety requirements must be based on actua

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In the last episode of the Demand Our Access podcast, I discussed Texas v. Becerra, a lawsuit seeking to have Section 504 of the Rehabilitation Act of 1973 (Section 504) declared unconstitutional. If you want to learn more about the lawsuit, please listen to that episode or read the transcript of what I said about the lawsuit.

During the questions and comments portion of that episode, there was a lot of interest in advocating for the protection of Section 504. So, this episode will present strategies those of you living in the 17 states can take to try to protect Section 504 and things those of us who don't live in one of those 17 states can do to be heard.

Before discussing how we can advocate to protect Section 504, I will discuss the next episode and let you know how you can contact me.

The Next Live Episode

The next live episode will take place on Saturday, April sixth at 2:00 PM EDT. In that episode, I am planning to continue my revisited

look at Title II of the Americans With Disabilities Act, primarily covering state and local governments.

Comments and Questions

If you have any comments and/or questions about the Demand Our Access project, you can fill out the contact form on the Demand Our Access website or you can email me at [email protected].

How You Can Advocate for Section 504

If You Live in One of the 17 States

As a reminder, the 17 states suing to have Section 504 declared unconstitutional are as follows:

Alabama

Alaska

Arkansas

Florida

Georgia

Indiana

Iowa

Kansas

Louisiana

Missouri

Montana

Nebraska

South Carolina

South Dakota

Texas

Utah

West Virginia

Contacting Your Attorney General

If you live in one of the 17 states, the best thing you can do is contact your attorney general and let them know why you support Section 504 and that you want them to withdraw from the lawsuit. In order to make contacting your attorney general easier, I have worked with ChatGPT to create a table of contact information for the 17 attorneys general involved in the lawsuit. The table provides the name, mailing address, phone number, and website for each attorney general. I didn't include an email address and/or contact form, because those methods of contact weren't consistent enough among the attorneys general for them to be easily included in a table. if you would rather send an email or complete a contact form, visit your attorney general's website to see how you can do that.

I'm not going to read the names of the attorneys general and their

individual contact information. The table of contact information will be provided at the end of the transcript when this episode is posted to the Demand Our Access website.

What to Say

Obviously, you should voice your support in a way that is comfortable for you and that reflects your voice. So, I can't tell you exactly what to say when contacting your attorney general. Also, I can't provide a different script for every possible method of communication you may use to contact your attorney general. So, I have developed a short sample script that works whether you contact your attorney general over the phone, through email, by using a contact form, by writing a letter, or even if you meet them.

Before providing the script, I want to make one important point: the more personal your appeal the more likely it is to be heard. That doesn't mean you should provide health information or anything else that you typically don't provide strangers. What it means is that the more you can demonstrate how Section 504 has personally helped you, the more impactful your support of Section 504 will be when offered to your attorney general.

I say that because attorneys general hear from lots of people every day. Much of what they receive is from people who are simply regurgitating what one organization or another has told them to say by providing a template or sample script. While that will be what you will also be doing, you can make your support of Section 504 more impactful by adding some of your personal experience with Section 504 to what I will provide here.

In my view, the more personal information about how Section 504 has been a positive in your life really matters in this case because your attorney general doesn't understand the benefits to those of us with disabilities that have been gained as a result of Section 504. Even worse, they believe it shouldn't exist. This means convincing them to stop opposing Section 504 is an uphill job. The more they come to believe their voters support Section 504 for personal reasons, the better the chance they will realize their opposition to Section 504 is not smart.

Before providing the script of what you could say, I want to make one more important point: please contact your attorney general. Even if you aren't comfortable sharing any personal experiences, contact them. Even if you don't really know how Section 504 has benefited you, contact them. Even if all you are comfortable doing is using the below script, contact your attorney general if you live in one of the 17 states and ask them to withdraw from Texas v. Becerra.

The Script

For the purposes of developing a script, I'm pretending my name is John Smith, I live in Waterloo, Iowa, and that I'm calling the office of the attorney general of Iowa. Obviously, you should edit the script as necessary if you don't live in Iowa. Now for the script:

My name is John Smith. I'm a resident of Waterloo. In the last election, I voted for Attorney General Bird.

As a person with a disability, Section 504 of the Rehabilitation Act of 1973 has helped me achieve things I would have never achieved without it.

I'm calling to ask Attorney General Bird to please withdraw our state from Texas v. Becerra. If Section 504 of the Rehabilitation Act of 1973 is declared unconstitutional, those of us with disabilities will have even a harder time realizing our potential.

Something like that is all you need to do to let your attorney general know Section 504 is important to you and that you want your state to withdraw from the lawsuit. But I will include a script that has more personal details, in case that's helpful to those of you who would be comfortable sharing some personal information.

A More Personal Script

My name is John Smith. I'm a resident of Waterloo. In the last election, I voted for Attorney General Bird.

As a blind person, Section 504 of the Rehabilitation Act of 1973 has helped me achieve things I would have never achieved without it.

When I was a child, my public school education was more accessible to me than it would have been had Section 504 not been the law. As an adult, Section 504 allows me to request accommodations from federal agencies I wouldn't be able to request without Section 504. As a resident of Iowa, Section 504 means I can better participate in all programs offered by our state in ways I could never participate without Section 504.

I'm asking Attorney General Bird to please withdraw our state from Texas v. Becerra. If Section 504 is declared unconstitutional, those of us with disabilities will have a much harder time reaching our

potential.

As you can see, the more personal script is longer. It's longer because it highlights ways Section 504 helps those of us with disabilities. If the generic examples I included in the more personal script doesn't apply to you, or if you can think of state-specific examples that would resonate better with your attorney general, feel free to replace them with ones that better fit your life and represent the programs offered by your state that are more accessible to you because of Section 504. If you're having trouble coming up with more personal ways Section 504 has helped you, discuss it with others in your state. Maybe others have ideas that sound better to you than what I included as examples here.

Other Things to Try

I have listed three items in this section based on the impact I believe they would have. The three things you can also try to protect Section 504 if you live in one of the 17 states are as follows:

Organize a protest

Contact the media

Tell your community

Organize a Protest

If you aren't comfortable with the word "protest" think of what you will be organizing as an event in Support of Section 504 and the civil rights of those of us with disabilities. To be effective, this kind of protest, obviously, needs many participants. So, contact groups of which you are a member and/or those groups with which you have an affiliation and gage their interest. This could be as simple as a local chapter of ACB or a state affiliate of ACB deciding to organize a local event in support of Section 504. This could be ACB chapters and affiliates working in a cross-disability manner with other organizations of those of us with disabilities. Consider Blinded Veterans of America, Paralyzed Veterans of America, and others.

To give your protest even more of a chance at success, contact groups not specifically dedicated to increasing accessibility to those of us with disabilities. Think about teachers organizations and teachers unions. Maybe look at organizations of local government workers. In short, think which groups would be affected if Section 504 was declared unconstitutional and see if they want to work on a protest in support of Section 504.

Lastly, look at organizations in your community that may already be organizing protests in opposition to what is happening politically. Maybe there is a local organization of democratic

Disclaimer

The information presented in any of the Demand Our Access podcast

episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode I will be covering the lawsuit threatening Section 504 of the Rehabilitation Act of 1973 (Section 504).

Sharing my Feelings

Usually, I try to avoid my personal feelings when I discuss the law as a part of Demand Our Access. In preparing this episode, I had an impossible time fully separating my feelings of anger and hurt from the material I’m presenting. Given the reality that if the states are successful all of us with disabilities will have significantly fewer civil rights, I’m hoping you can understand why some of my feelings and opinions have made their way into this material.

Before discussing Section 504 I will briefly describe the next episode and provide my contact information.

The Next Episode

The next live episode of the Demand Our Access podcast will take place on Saturday, March 15. In that episode, I will continue my revisited look at Title II of the Americans with Disabilities Act.

Questions and Comments

As always, I’m interested in hearing from you. Please provide any feedback by completing the contact form on the Demand Our Access website or by emailing me at [email protected].

The Threat to Section 504

Briefly Describing Section 504

So we all understand the potential magnitude of this lawsuit, I want to briefly describe Section 504’s history and what it covers.

As mentioned earlier, Section 504 is a section of the Rehabilitation Act of 1973, which was signed into law by President Richard Nixon. The regulations implementing Section 504 were not published by the Department of Health and Human Services until 1977, after the protests addressed in the documentary Crip Camp.

Simply put, Section 504 applies to programs of the federal government and programs receiving money from the federal government. This means that Section 504 currently provides legal protections to those of us with disabilities in all public programs offered by the federal government and all programs receiving any funding from the federal government.

For more information about Section 504, check out the episode titled Section 504 of the Rehabilitation Act of 1973.

Texas v. Becerra

On September 26, 2024, a group of 17 states led by Texas filed suit against the Department of Health and Human Services (HHS) in the Northern District of Texas. The currently named defendant in the suit is Xavior Becerra (the secretary of HHS during the Biden administration).

This is why the lawsuit is currently referred to as Texas v. Becerra. Note, the link to the complaint filed by the 17 states posted to the Demand Our Access website when this episode of the podcast

is posted goes to a reasonably accessible PDF on the Texas attorney general’s website.

Participating States

The 17 states participating in the lawsuit are as follows:

Alabama Alaska Arkansas Florida Georgia Indiana Iowa Kansas Louisiana Missouri Montana Nebraska South Carolina South Dakota Texas Utah West Virginia

Things to Know About the Lawsuit

To, hopefully, not get too technical, I want to briefly cover the seven major aspects of the complaint filed by the 17 states. After briefly highlighting the important aspects of the complaint, I will delve into more specifics about some of them.

I have organized the list of seven things you currently need to know about the lawsuit in a way that, I hope, addresses questions in an order most of you may be thinking about them:

In a status report filed with the court on February 19, the Department of Justice, which has not yet said how it will participate in the lawsuit, and the 17 states asked for a pause in the cases timeline.

Despite previous reporting, all 17 states that initially joined the lawsuit are still participating.

The lawsuit seeks to have Section 504 declared unconstitutional.

The lawsuit wants the rules developed by the Biden administration to further codify how Section 504 applies to health care providers dismissed.

A lot of the complaint mentions how the HHS rules will affect Medicaid.

The complaint seeks to limit the so-called integration of those of us with disabilities into community programs.

Much of the language in the complaint focuses on HHS’s determination that gender dysphoria is covered under Section 504 and that people with gender dysphporia are protected by Section 504.

The Unconstitutionality of Section 504

Since this is not an episode about constitutional law, I’m not going to dive deeply into constitutional arguments. Here, my goal is to provide a basic amount of education around the argument being made by the states that Section 504 is unconstitutional.

Here are things to know about the argument that Section 504 is unconstitutional:

The state’s argument is based around the Constitution’s Spending Clause.

The Spending Clause grants Congress permission to raise and spend money for the nation’s defense and general welfare.

There are three primary arguments being advanced by the states for why Section 504 violates the Spending Clause:

Section 504 fails to provide unambiguous conditions for states receiving federal funds

Section 504’s broad application imposes conditions on federal funding unrelated to the original purpose of the funds

Section 504 is coercive, as it compels states to choose between complying with its extensive requirements or forfeiting all federal funding

I can’t leave a discussion of the state’s argument that Section 504 is unconstitutional without highlighting the jeopardy our community faces from the second of the three arguments.

The second argument being advanced for the unconstitutionality of Section 504 is the most important. By arguing that applying Section 504 to programs that are not specifically designed to cover those of us with disabilities, the states are trying to ensure that, even if they can’t convince the courts to deem Section 504 unconstitutional, they may be able to restrict its application to only those programs specifically designed for those of us with disabilities. If they were to win this point, only programs, like rehabilitation services, would continue being covered by Section 504. Programs including Medicaid and public education would no longer be covered by Section 504.

The Biden Administration’s Rules on Health Care Providers and Accessibility

On May ninth, 2024, HHS’s Office of Civil Rights announced new rules designed to make health care more accessible to those of us with disabilities. Three of the more important provisions of the updated rules are as follows:

Child welfare agencies cannot remove children from the custody of disabled parents without an individualized determination that the child is not safe in the parent(s) custody.

Within certain limitations, the websites and mobile apps of health care providers must be accessible.

Equipment used in the provision of health care services is to be accessible to people with disabilities.

If the 17 states win their case, the updated rules will be removed resulting in parents facing the loss of their children because of discrimination, people not being able to access accessible digital content, and people not having important medical exams and procedures because medical equipment is not accessible to them.

Medicaid

The states are arguing against the strengthened integration rules because of the ways they will affect Medicaid. In the simplest terms, the states are arguing against home-based health care services to be provided to people with disabilities who rely on Medicaid for their

health care. In their complaint, the states actually argue that Medicaid was constructed to favor institutionalization.

While there, sadly, may be truth in that argument, the provision of integrated health care services has been strong since the 1990s. In 1999, the Supreme Court in a case called Olmstead, supported the idea that services should be provided in the most integrated setting possible, with those certain limitations. So, plaintiffs are not only trying to have Section 504 declared unconstitutional, but they are trying to overturn nearly 26 years of Supreme Court rulings supporting the idea that services should be provided to those of us with disabilities in the most integrated setting possible.

Integration

Under the rules codified by Biden’s HHS in May of 2024, the government strengthened the integration provision under Section 504 as it applies to health care by indicating that recipients of federal money, including states, are required to provide services in settings that enable individuals with disabilities to interact with non-disabled persons to the fullest extent possible. The regulation explicitly prohibits actions that result in unnecessary segregation or pose a serious risk of such segregation. Examples of prohibited actions include policies that limit access to integrated settings, offering greater benefits in segregated environments, imposing more restrictive rules in integrated settings, or failing to provide community-based services, which could lead to institutionalization or a significant risk thereof.

There are two main arguments being made by the states against the strengthened integration rules:

The states argue that requiring states to administer programs in the "most integrated setting appropriate” imposes obligations beyond what Congress intended in the original statute.

The integration mandate infringes upon states’ rights. By compelling states to modify their programs and services to align with federal integrati

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

The Next Episode

The next episode of the Demand Our Access podcast will take place on Saturday, March first. In that episode, I will continue our second look at Title II of the Americans with Disabilities Act (Title II).

If you have any questions or comments about this episode or Demand Our Access in General, I would love to hear from you. You can email me at [email protected]. You can also complete the contact form on the Demand Our Access website.

Introduction

Title II primarily sets forth the requirements state and local governments are supposed to follow to ensure their activities, programs, and services are accessible to those of us with disabilities. Unfortunately, their isn't a single state or local government complying with Title II. Even worse, most state and local governments are demonstrably out of compliance with Title II.

This deliberate noncompliance with Title II on the part of every state and local government adds to the discrimination faced by those of us with disabilities on a daily basis. Since we all need to interact with our state and local government, their lack of compliance with Title II causes us lots of stress and difficulty.

For those reasons, I chose Title II to be the first topic I discussed through the Demand Our Access podcast. Over the last roughly 2.5 years, I hope my ability to teach important legal concepts has improved. So, I thought it would be good if I revisited Title II now.

Much of the substance covered here will be very similar to what was covered more than two years ago. But I am, hopefully, presenting the information in a way that makes it easier to understand.

Episode Roadmap

I am covering these topics in this episode because they are the foundation of compliance under Title II. In the next episode, I will cover more of the information you will need to effectively request an accommodation or modification from your state or local government. If terms like accommodation and modification don't mean anything to you now, they should when I finish our revisited two-part look at Title II.

Below are the eight topics I will cover in this episode:

Code of Federal Regulations

Defining a Public Entity

Project Civic Access

ADA coordinator

Notice of rights

Grievance procedure

Self-evaluation

Transition plan

Title II Revisited

Code of Federal Regulations

Laws don’t often contain all their legal requirements.

Congress regularly directs federal agencies to develop or promulgate what the law will require.

Under the ADA, several federal agencies have responsibility for developing guidance as to what it means to comply with the ADA.

When an agency has responsibility for clarifying what compliance with section(s) of the ADA means, they have enforcement power over those section(s).

The Department of Justice (DOJ) has primary responsibility for establishing what guidelines for compliance under title II.

DOJ also has primary enforcement power over Title II.

When a federal agency establishes what constitutes compliance, those requirements are published in the Code of Federal regulations.

When I cite to a section of law (either during the episodes or on the website) I will almost always be citing to the Code of Federal Regulations.

Often, the Code of Federal Regulations is referred to as C.F.R.

When I refer to a section of C.F.R, I’m referring to a section in the Code of Federal Regulations.

For the rest of this episode, I'm not going to mention any section in the Code of Federal Regulations. I'm not mentioning specific sections of the Code of Federal Regulations here, because I have realized mentioning the citations is very distracting for listeners.

Even though I won't mention the citations to the Code of Federal Regulations, they will be provided when the text of this episode and this accompanying audio file are posted to the Demand Our Access website as a podcast episode.

Defining a Public Entity

A public entity is defined in 28 C.F.R. § 34.104.

Section 35.104 is the list of definitions under the ADA.

The definition of public entity has three parts:

any state or local government

any department, special purpose district, or instrumentality of state, states, or local government

the National Railroad Passenger Corporation and other commuter authorities

All public entities with at least 50 employees should appoint their own ADA coordinator and have their own grievance procedure.

Most local governments, if they have an ADA coordinator at all, do not have one in every agency or department.

Project Civic Access

Project Civic Access is the primary way the Department of Justice (DOJ) enforces Title II.

It has conducted audits of communities in all 50 states, Washington, DC, and Puerto Rico.

It has done more than 200 audits in total.

The agreements are posted online to help communities come into compliance with the ADA.

The settlement between DOJ and the City and County of Denver, Colorado is representative of what is typically covered.

The settlement includes:

notice

grievance procedure

ADA coordinator

physical accessibility of facilities

accessible web content

emergency preparedness

If none of the concepts mentioned in the Denver settlement make sense to you, I hope you will have a better understanding of them when I finish these two episodes.

While Project Civic Access, especially now, may not do anything to hold state and local governments accountable, I believe it's important to understand what DOJ has already established as the issues it's most interested in state or local governments meeting. Even if DOJ won't help you now, the language in Project Civic Access settlements can assist you when advocating with your state and local government.

ADA Coordinator

Information about the requirements for an ADA coordinator, to provide public notice of rights, and grievance procedures can be found in Chapter Two of DOJ’s Title II Tool Kit.

The requirement for an ADA coordinator is established in 28 C.F.R. § 35.107(a).

Public entities with at least 50 employees must designate a “responsible employee”.

Most people refer to the responsible employee as an ADA coordinator.

The ADA coordinator is supposed to investigate and resolve complaints filed under Title II and ensure compliance with Title II.

The law does not specifically list any qualifications an ADA coordinator must have.

Every public entity is required to notify the public of their ADA coordinator and provide that person’s contact information.

One critical concept to remember about the requirement for all public entities to have an ADA coordinator is that a public entity is defined, in part, as the agencies, departments, and instrumentalities of a state or local government. If a state or local government took its compliance with Title II seriously, all of its agencies, departments, and instrumentalities with at least 50 employees would designate a qualified ADA coordinator.

Sadly, most state and local governments, if they designate anyone as the ADA coordinator, they only designate one person to be the ADA coordinator for the whole state or local government.

Notice of Rights

Notice of rights is established in 28 C.F.R. § 35.106.

The notice requirement applies to all public entities regardless of number of employees

The notice should include the following:

employment

effective communication

reasonable modifications

no surcharges

filing complaints

The notice Should be published in all facilities, on the website, and included in event notices.

The notice must be available in alternative formats

The notice of rights, when offered, can be an important step to advocating for greater access. This is because a proper notice of rights will help you understand what your rights are and how your state or local government hopes to ensure it follows the law and effectively accommodates you.

Unfortunately, many communities don't publish a notice of rights. Others publish a combined notice of rights that generically states the state or local government will comply with several civil rights laws, but provides little or no specifics about compliance under any of those civil rights laws. Other state or local governments publish a notice of rights and then do little to ensure it's followed.

No matter what, looking for your state or local governments notice of rights is a good place to start. If they don't have one, or if it lacks specifics, you have issues to raise at the beginning of your advocacy efforts.

Grievance Procedure

The grievance procedure requirement is established in 28 C.F.R. § 35.107(b).

Every public entity with at least 50 employees is required to adopt and publish a grievance procedure.

The grievance procedure is to allow for the “prompt and equitable” resolution of complaints filed under Title II.

The DOJ sample grievance procedure calls for the following:

the complaint filed preferably in writing

date of and description of the problem

should be submitted by the grievant or their designee within 60 days of the discrimination

Meeting within 15 days of complaint being received

Offer an appeal process

All correspondence from the state or local government to you about your complaint are to be provided in accessible (alternative formats)

One compliance mistake almost all state and local governments make is their failure to ensure every agency, department, or instrumentality meeting the definition of a public entity has its own grievance procedure....

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice.

Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

This episode has two main topics: advocacy updates from Desiree and I; and playing the blind card while advocating.

The next live episode will take place on February 15 at 2:00 EST. I don’t yet have a planned topic for that episode. If you have any comments and/or suggestions, please write me at [email protected] or complete the contact form at Demand Our Access.

Advocacy Updates From Desiree and I

My Advocacy Updates

While I can’t yet discuss everything I’m working on, I want to mention my complaint with the Equal Opportunity Employment Commission (EEOC), and issues I’m having with the Oregon

Employment Department (OED).

My EEOC Complaint

The EEOC has accepted my charge of discrimination and notified my former employer. While awaiting their response, I have decided that, if they agree, I will attempt to resolve my discrimination through mediation run by the EEOC. I have made the choice to try mediation, even though I doubt it will be successful, because mediation could bring about a much faster result. Also, there is the reality that the current administration is seemingly considerably less likely to litigate cases of disability discrimination. But even if they don’t, I still have hope that the Oregon Bureau of Labor and Industry, which has a partnership agreement with the EEOC, will investigate if mediation fails.

My Issues with the Oregon Employment Department

After trying for more than a month, I made the difficult decision to stop seeking additional unemployment benefits. The truth is that constantly fighting for the access I need to consistently get the unemployment benefits I’m entitled to receive from an agency with little to no knowledge of its legal responsibilities under Title I and no desire to meaningfully provide the accommodations I’m entitled to receive from them was causing me tremendous stress. So, I have begun the process of trying to force them to follow the law by filing with the Oregon Bureau of Labor and Industry. At this point, I don’t believe the Department of Justice will assist me. So, I hope I can, at least, make it so the next blind person needing accommodations from OED to get the benefits they deserve doesn’t suffer the amount of discrimination I have suffered.

Desiree’s Traveling with a Service Animal

As you may know, Desiree has a new guide dog. While you are listening to this, she is in Florida at a conference. Prior to flying to Florida, she had to complete the forms necessary to fly with a service animal. What you are about to hear is the inaccessibility she encountered while completing the required forms.

In her recording, Desiree mentioned the company Open Doors that enables you to register your service animal with five different airlines.

Playing the Blind Card

Introduction to Playing the Blind Card

While I’m calling what I am talking about here the blind card, it’s important to note that the analysis I will share here applies to all situations where a disabled person uses stereotypes and assumptions about disabled people and those of us with disabilities to encourage nondisabled people to make something more accessible. Obviously, what I’m sharing here is strictly my opinion. I recognize and appreciate others will disagree. I’m sharing this anyway to hopefully stimulate thought and provoke what I believe is an important discussion.

The last episode of the Demand Our Access podcast focused on how we can advocate during these difficult political times. During the question and comment portion of

the live version of the podcast, the issue of playing the blind card while advocating was raised a couple of times. Since I never play the blind card, I thought I would take some time to explain my personal opposition to playing the blind card while advocating.

Why I Never Play the Blind Card

I never use the negative stereotypes and negative assumptions many sighted people have about blindness and those of us who are blind when I’m advocating is that feeding on those stereotypes and assumptions continues the disrespect, whether understood or not, by the sighted person of me and the rest of us who are blind. Simply put, if someone believes blind people are less capable, believes we deserve credit for doing everyday tasks that are easy for them but which they incorrectly assume are more difficult for us than they are, or develops (whether encouraged or not) a feeling of pity for us that person will never fully respect us. Also, that person will never see us as their equal. If someone doesn’t respect blind people, doesn’t see blind people as their equal, or pities blind people that person will never believe blind people are entitled to the same rights and privileges they take for granted. This truth often will not prevent the sighted person from granting us a short-term, relatively easy accommodation or otherwise trying to help. In the long run, though, it will prevent the sighted person from working toward the societal change we need to create a world that is accessible and inclusive to us.

More problematic with playing the blind card is the greater harm we cause our community. As we all know, those of us who are blind have a difficult time finding work. In many instances, we struggle for equal inclusion in social settings. As I think most of us are aware, the struggles we often face finding work and making true friends results from the negative feelings many sighted people have about blindness and blind people. What we don’t often consider when playing the blind card to achieve short-term access is how playing that card and creating feelings of pity for us on the part of the sighted person further complicates the ability of all of us to find work and make meaningful friendships. When someone makes a document accessible because they feel sorry for a blind person’s inability to read print and isn’t even aware that by failing to make their document

accessible they violated the law and the civil rights of blind people that sighted person is unlikely to ever change the processes that resulted in the document being inaccessible. By failing to change those processes, the person will force all blind people to continue to have to request accessible documents; instead of providing the access provided everyone considered worthy of access. If that person is unaware they violated the rights of blind people by creating an inaccessible document and they gave one blind person an accessible document because they felt sorry for them is that sighted person likely to hire a blind person? Is that person likely to be capable of considering a blind person to be their trusted friend?

The truth, as I see it, is that by playing the blind card we are encouraging the continuation of negative stereotypes and negative assumptions about blind people and blindness. By assisting in the continuation of those negative stereotypes and assumptions, we are not educating people about our civil rights, holding them accountable for violating our civil rights, and making it harder for our community to achieve the kind of access and inclusion we all individually deserve. By perpetuating the idea that people should accommodate us out of pity or with a nod to our imagined incapabilities, we are enabling society to continue placing the burden of ensuring greater access and inclusion largely on us. We will only create a society that is accessible to and inclusive of us when we are proud enough and strong enough to consistently promote the need for sighted people to see our rights as civil rights and when we refuse to use their negative stereotypes and negative assumptions about us and our disability to foster feelings of pity for us. When someone pityís you that person will never hire you. When someone pitties you that person will never truly love you.

I am doing Demand Our Access so we can advocate from a position of education and strength. Hopefully, with greater understanding of our rights, more of us can advocate for our community from the perspective of we have the right to be fully included.

In closing, I’m not suggesting people shouldn’t, where appropriate, educate people as to why something is inaccessible. But I strongly believe the best way for us to create a society that is accessible to and inclusive of us is for us to mix that education with strong reminders that we have civil rights laws that need to be followed.

If so-called hearts and minds advocacy worked, we wouldn’t be living in a society where much is still inaccessible.

Conclusion

Thank you for listening to this episode of the Demand Our Access podcast. I appreciate your support.

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Briefly Explaining Accessibility Overlays

So we are all on the same page, I want to briefly describe the kinds of overlays involved here. Several companies, including AccessiBe, have been marketing overlays to government agencies, businesses, and nonprofits. In marketing these overlays, these companies, including AccessiBe, are selling the myth that installing these overlays will make websites fully compliant with the Web Content Accessibility Guidelines (WCAG). The idea is that if these overlays are used, websites will fully comply with WCAG and the websites will be fully accessible.

As anyone who uses assistive technologies knows, these overlays don't make websites fully usable to those of us who use assistive technologies. As the Federal Trade Commission (FTC) mentions in its document explaining the proposed consent agreement discussed soon, AccessiBe's Access Widget doesn't even create compliance with WCAG.

How you can Comment on the Proposed Fine of AccessiBe

Explaining AccessiBe

AccessiBe is an Israeli company that develops and sells what it calls AccessWidget. AccessiBe has been promoting the idea that all companies, government agencies, and nonprofits need to do to is install AccessWidget and their websites will be accessible to everyone. Currently, AccessiBe's website boasts that more than 100K websites have been made accessible to everyone through the use of AccessWidget.

The current price for using AccessWidget is $490 annually for sites with less than 1,000 pages. For websites with less than 10,000 pages and for premium add-ons, the current annual cost for AccessWidget is $1,400. For sites with less than 100,000 pages and for premium add-ons, the current annual cost is $3,490.

The FTC's Fine

On January sixth, the Federal Trade Commission announced a proposed consent agreement with AccessiBe and asked for public comment. Under the terms of the proposed consent agreement, AccessiBe would be fined $1 million for alleged violations of law prohibiting unfair or deceptive acts or practices.

Speaking about AccessiBe's actions, the FTC's analysis of the proposed consent agreement says the following:

This matter involves AccessiBe’s marketing and sale of a web accessibility software plug in called AccessWidget. AccessiBe represented that AccessWidget could make any website compliant with the Web Content Accessibility Guidelines (“WCAG”), a comprehensive set of technical criteria used to assess website accessibility. AccessiBe advertised these claims on its website and social media, as well as in articles that were formatted as impartial and objective reviews on third-party websites. AccessiBe also failed to disclose its material connections with the publishers of those third-party articles.

The proposed complaint alleges that AccessWidget did not make all websites WCAG compliant, and that the company's claims were false, misleading, or unsubstantiated. The proposed complaint also alleges that formatting the third-party articles and reviews as independent opinions by impartial authors and publishers was false and misleading, and that AccessiBe’s failure to disclose its material connections with the publishers of those articles was deceptive.

The proposed order contains provisions designed to prevent AccessiBe from engaging in these and similar acts and practices in the future. Provision I prohibits AccessiBe from representing that its automated products, including accessWidget's artificial intelligence and other automated technology, can make any website WCAG compliant, or can ensure continued compliance with WCAG over time as web content changes, unless the company has competent and reliable evidence to support the representations. Provision II prohibits AccessiBe from misrepresenting any fact material to consumers about any of the company's products or services, such as the value or total cost; any material restrictions, limitations, or conditions; or any material aspect of its performance, features, benefits, efficacy, nature, or central characteristics. Provision III prohibits AccessiBe from misrepresenting that statements made in third-party reviews, articles, or blog posts about its automated products, including accessWidget's artificial intelligence and other automated technology, are independent opinions by impartial authors; that an endorser is an independent or ordinary user of the automated product; or that the endorser is an independent organization or is providing objective information.

The proposed consent agreement has several additional provisions. I am not going to read the rest of them here. If you're interested, a link to the whole analysis from the FTC will be in the show notes when this episode is posted to Demand Our Access.

A Comment I Previously Submitted.

Here is a comment on the proposed consent agreement I submitted prior to recording this demo.

As a totally blind person, I'm so glad the FTC has taken action against AccessiBe. Overlays, like AccessiBe, cause those of us who use assistive technologies to use the web more problems than they solve. There are two primary reasons why AccessiBe causes those of us who use assistive technologies more problems than they solve: they give website owners a false sense of compliance; and they are frustrating for those of us who use assistive technologies to use.

Thanks to the deceptive marketing practices of AccessiBe, businesses and government agencies have been convinced to believe that installing AccessiBe's overlay will actually make all of their site and related sites accessible. As the settlement demonstrates, the vast amount of third-party content necessary to effectively use the services offered by most businesses and government agencies will not be affected by AccessiBe's technology unless the third-parties use the tool as well. For this reason, I'm very much looking forward to sharing the final settlement with my water company. It's third-party portal is not accessible, even though the water company has put AccessiBe's tool on its primary website.

AccessiBe and all of the other overlays promising WCAG compliance are frustrating to use for those of us who use assistive technologies because they change the way we typically navigate web content. Depending on the overlay being used, we have to memorize different keystrokes. In some cases, we need to activate a menu and choose different options. Both of these requirements make navigating web content slower and less efficient for those of us who use assistive technologies than web navigation is for those who don't use assistive technologies. Also, use of overlays, like AccessiBe, will never make web content as accessible and usable as is content coded for accessibility and tested by native users of assistive technologies for usability.

Not addressed by this settlement because it's beyond the scope of this settlement is the reality that strict compliance with the Web Content Accessibility Guidelines doesn't actually ensure web content is fully accessible and/or usable. Even if AccessiBe was able to make all web content compliant with the Web Content Accessibility Guidelines, it would not be able to promise to make all web content fully accessible to and/or usable by those of us who use assistive technologies.

I thank the FTC for taking this important action on behalf of those of us with disabilities. I'm hopeful this action will help businesses and government agencies understand that there is no substitute for coding web content for accessibility and for having native users of assistive technologies test important content for usability.

Commenting on the Proposed Consent Agreement

Tips To Remember

Before demonstrating how you can comment, I want to share a few tips that may help you figure out what to say:

You don't need to write a book or be overly technical.

Even if a previous commenter has said what you were thinking of saying, we are helped by the number of comments submitted.

Any constructive feedback helps.

This is a relatively easy way to have your voice heard and for you to make a difference.

Deadline for Commenting

Comments on the proposed consent Agreement must be filed no later than 11:59 PM EST on February fifth. In order to file a comment on the proposed consent agreement, we will use the Regulations.gov website.

For the purposes of this demo, I am using a PC running Windows 11, Microsoft's Edge browser, and version 2025 of the JAWS for Windows screen reader. My operating system, web browser, and screen reader are all up to date.

The Comment I will Post for This Demo

I have chosen to post this comment as a part of the demo, because I hope it shows people they don't need to write several paragraphs, quote the agreement, or use technical language. The key is simply to share any feedback you have about the proposed consent agreement.

The Text of the Comment Being Posted

I briefly mentioned this in a previous comment, but it deserves its own comment.

The focus of the harm done to those of us with disabilities by AccessiBe, and the rest of the accessibility overlay industry, shouldn't be limited to how overlays, like AccessWidget, don't actually provide compliance with WCAG. It's very important that people without disabilities recognize the cognitive overload these overlays force us to experience. Having to learn new keystrokes and/or having to select different menu options depending on the overlay being used is a barrier p

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

Without getting too political, I think most people would agree that advocating for civil rights will not be the same under the incoming Trump administration as it has been under the Biden administration. That being said, I strongly believe that advocating for our rights, even if you don't believe our advocacy efforts will be as successful, is even more important than maybe it has ever been. I say that because if the Trump administration is serious about cutting programs that provide greater access and inclusion, one of the best ways we can defend the programs we need is to demonstrate how many things still aren't working. To put it another way: if very few people are requesting accommodations or modifications, or asking government to enforce violations, the easier it will be for officials to argue that our civil rights programs aren't needed.

Before getting into how we can advocate for our rights during the second Trump administration, I think it's important to provide some reminders as to what actually happened during the first Trump administration and how little we are on his mind:

The first Trump administration made no real effort to repeal or seriously weaken the ADA and related laws.

Trump almost never talks about the ADA and those of us with disabilities.

He has not promised to reduce the rights of those of us with disabilities.

Trump wouldn't get many political points by launching an attack against the disability community and/or by threatening to destroy the access we currently have.

I shared those reminders because I believe the first Trump administration, at least when it comes to the civil rights of those of us with disabilities, is a good indicator of what the second Trump administration will be like for our advocacy efforts. As you may remember, the first Trump administration did basically nothing to improve access for those of us with disabilities. But it didn't go out of its way to destroy the gains we have made prior to Trump taking office for the first time. Currently, that is what I expect to happen beginning on January 20. Since I don't expect our concerns to be taken seriously, we need to begin our look at advocating during the second Trump administration by considering how we can advocate for our rights outside of the Department of Justice, the Equal Employment Opportunity Commission, and the rest of the federal agencies with oversight over our civil rights laws.

Advocating for Our Rights Under the Second Trump Administration

A key to our advocacy efforts under the second Trump administration will be using the state and local laws that provide us similar protections to those we have under the ADA at the federal level. How effective advocacy efforts will be at the state and local level will depend, in part, on how seriously your state and/or local government takes the civil rights of those of us with disabilities. So, everyone's mileage will not be the same. But everyone, except those of you living in Alabama, has a state law promising civil rights protections to disabled people.

Obviously, I cannot cover the 49 state laws that provide protections to those of us with disabilities on this podcast. In the recording, I discussed a table listing the state-specific laws. I was not able to publish that table to the site, because I am having issues with the way WordPress is interpreting the HTML for the post with the table. In case you consider your state's law, I want to give you a few important reminders:

No state law can provide us fewer protections than we get from the ADA and related laws.

States are allowed to provide greater and different protections than are provided by the ADA.

Most of the state laws providing us civil rights protections are very similar to the protections provided by the ADA.

Some states offer protections of our civil rights when it comes to education.

Some states offer protection of our civil rights when it comes to financial issues.

Some states offer protection of our civil rights when it comes to housing.

Only a few states directly call out protections similar to those offered by Title II of the ADA (covering the activities, programs, and services of local governments).

Most state laws address the protections offered by Titles I and III of the ADA (covering employment and businesses and nonprofits respectively).

Advocating Under Title I and Your State's Law

As you most likely know, The Equal Employment Opportunity Commission (EEOC) oversees compliance with Title I of the ADA. What you may not know is that the EEOC has partnership agreements with state and local agencies it calls Fair Employment Practices Agencies (FEPAs). Generally, the agreements between the EEOC and the FEPAs call for joint jurisdiction over filed claims. This means that by viling with the EEOC you are very likely to also be filing with your local FEPA. If the EEOC can't or won't investigate your complaint, there is a chance they will work out an arrangement with your local FEPA that will result in your complaint being investigated. This is especially true if your claim raises issues of state law as well as issues under Title I.

The EEOC does not have a page listing all of the FEPAs. So, I cannot provide you an easy resource you can use to discover the agency in your community that works with the EEOC as a FEPA. But a simple search for your local FEPA should give you the required contact information. If your local FEPA has a filing process that is more accessible than is the filing process offered by the EEOC, you can choose to file with your local FEPA. In all likelyhood your complaint will reach the EEOC even if you file through your FEPA.

Advocating Under State Law Protections Like Titles II and III

While the Department of Justice is largely responsible for addressing claims filed under Titles II and III of the ADA, we can use, where available, state laws that provide similar, greater, or different protections than do Titles II and III. Again, I can't discuss all of the state and local agencies that have enforcement powers over local laws providing similar protections to Titles II and III, but I can provide some tips you can use if you need to file under a local law:

See if your state or local community has a human rights commission or some other agency with "human rights" in its name.

See if your state or local community has an office of equity and inclusion.

See if your state or local community has an agency with the word "disability" in its name.

If you find an office with one of those words in its name, it is likely it will be the place that can address your complaint. If not, it is almost certain that the agency will be able to direct you to the right place.

Local Laws Protecting Our Civil Rights

Again, I can't possibly cover all of the local laws providing us civil rights protections, but you should be aware that many cities, counties, and towns have adopted local laws that discuss our civil rights. Examples of communities with civil rights laws granting those of us with disabilities protections include but are not limited to: New York City; San Francisco, CA; Chicago, IL; Austin, TX; Los Angeles, CA; and Seattle, WA.

Local Enforcement

All of the cities listed in the previous section have offices that, to differing levels, have the authority to enforce their local civil rights laws. If you are facing discrimination, it's a great idea to find out if your local community (whether it be state, local, or both) has a civil rights law providing those of us with disabilities protections. If your local community has a civil rights law that provides us some protections, it is very likely there is an agency with the authority to take enforcement actions.

If you don't have a local office that investigates claims of discrimination, you can always look at your local district attorneys office and/or your state's attorney general. Again, your milage will vary, but there are ways to have violations of your state law protections investigated.

Don't Forget Local Organizations

If you are struggling to figure out who to contact, don't forget to ask local organizations in your community if they can help. Maybe someone in your state or local ACB affiliate will be able to help. Maybe your local NFB chapter will have an answer. It is likely your local Client Assistance Program (normally charged with assisting you when you have issues with your rehab agency) can provide assistance.

Many state bar associations have lawyer referral programs. While the terms of these lawyer referral programs are different, it is very likely you can be matched with at least one lawyer who will provide you a free consultancy to briefly discuss your situation.

In every community there are organizations and people who are able and willing to help. If you are experiencing discrimination, you will, if you work at it, be able to eventually find a way to have your discrimination addressed. This is true even if the Trump administration is even less interested in advancing our civil rights than the Biden administration has been.

Conclusion

Thank you for listening to this episode of the Demand Our Access podcast. I truly appreciate your support.

My Mastodon Handle

In case anyone is interested, I joined Mastodon. My handle is @[email protected]. All of the posts I make to the Demand Our Access website will automatically be shared to my Mastodon account. I look forward to meeting you on Mastodon.

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, I will briefly recap Title I of the Americans with Disabilities Act (Title I) before discussing steps you should take in case you face discrimination at work.

If you have any comments or questions about this episode, you can complete the contact form on the Demand Our Access website, or you can email me at [email protected].

For more information about Title I, visit the page called ADA Title I Information.

If you are concerned as to how recent political events will affect the ability of people with disabilities to have concerns of discrimination addressed by the federal government, I will be covering that in the next episode. That episode will be live on ACB Community on Saturday, December seventh at 2:00 PM EST. It will be posted to Demand Our access shortly after it is presented live.

As I have said several times before, there is no way to cover this kind of material without using words like "impaired" that many of us in the disability community don't use. I'm using words like "impaired" here because those are the words used in the law.

Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and be written in modern language. For now, we have to discuss the law as it has been written.

Briefly Recapping Title I

Our brief recap of Title I is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 1630. To make this presentation easier to follow, I'm not going to mention the exact citations to different sections of the Code of Federal Regulations. If you are interested in the citations, you can find them in the episodes where I discussed Title I.

I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I'm doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I.

If you heard either of the episodes where I discussed Title I in greater detail, some of this will be review for you. I have included what I believe are some of the most important things to know about our rights under Title I here so if someone listens to this episode prior to listening to the episodes on Title I, some of the information they will need is here.

Important Concepts

For an employer to be covered byTitle I, it must have at least 15 employees.

The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions.

To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you.

Private membership clubs (excluding labor organizations) are not covered by Title I.

Religious institutions are covered by Title I. But they may give preference to people of their religion.

Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I.

Discrimination Prohibited

It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following:

Recruitment, advertising, and job application procedures

Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring

Rates of pay or any other form of compensation and changes in compensation

Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists

Leaves of absence, sick leave, or any other leave

Fringe benefits available by virtue of employment, whether or not administered by the employer.

Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training

Activities sponsored by an employer, including social and recreational programs

Any other term, condition, or privilege of employment

The term "discrimination" under Title I includes but is not limited to the acts described in 29 C.F.R. 1630.4 through 29 C.F.R. § 1630.13. Again, visit the page ADA Title I Information to learn more.

Contractual or Other Arrangements

It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer's own qualified applicant or employee with a disability to the discrimination prohibited by Title I.

Contractual or Other Relationship Defined

The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union, including collective bargaining agreements, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

The requirement that employers not discriminate through contractual arrangements or other relationships is important because of the number of relationships employers typically enter into that affect employees; for example, when an employer signs a contract whith a third party to manage the benefits the employer provides its employees, anything covered by that contract must be accessible. If an employer contracts with a third party for the use of an online portal where employees are to manage the benefits of their employment, the portal must be accessible.

Relationship or Association with a Disabled Person

It is unlawful for an employer to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

The provision providing protections for those who have a relationship with a disabled person typically arises when an employer knows the family member of an employee has a disability requiring expensive health insurance. If the employer fires the employee to avoid the cost of their family member's health care, the employer has violated Title I.

Not Making Reasonable Accommodations

It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual's physical or mental impairments.

An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.

An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I.

Retaliation and Coercion

Retaliation

It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in Title I.

If you face discrimination at work, the retaliation provision is important because it protects any coworkers who tell the truth about the discrimination you are facing.

Coercion, Interference, or Intimidation

It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of,...

Introduction

As the title indicates, this episode is about using artificial intelligence (AI) to advocate for our legal rights and to learn more about the law. Specifically, I demonstrate using AI to find who to contact when you need to make an ADA request of your local government, having AI draft the substance of an ADA request, and using AI to learn more about the law. All demonstrations were done using ChatGPT. Since some people don't want to pay for ChatGPT, I demonstrate these tasks in the free version too.

Important Notes on ChatGPT

ChatGPT is a tool that can make doing things faster and more efficient.

ChatGPT makes mistakes. Don't use it to do important work for you unless you can check its results.

For making an ADA request, ChatGPT doesn't need to be perfect. It only needs to communicate the basics of a request.

The paid version of ChatGPT provides much better, faster responses than does the free version.

The free version will make developing an accommodations request easier, especially if you don't know how to make an accommodations request.

Why I Won't Share Exact Prompts

In thinking about it, I decided I couldn't share exact prompts here as suggestions for you. I can't share exact prompts here because the responses ChatGPT provides depends on a number of factors including: how often you use it; how often you have asked it to perform tasks similar to what you would be asking it to do when making an accommodations request; and what information you need it to provide. As an example, finding the ADA coordinator for Boston, MA is significantly easier than is finding the ADA coordinator for Leander, TX, as the recording demonstrates.

Since I don't think providing exact prompts will work, I want to strongly encourage you to try using ChatGPT, whether you have the paid or free version) to help you develop an accommodations request under the ADA.

If you try using ChatGPT to make an accommodations request or to learn more about the law, please let me know. I would appreciate hearing about your experiences.

Important Notes On ChatGPT's capabilities

The paid version can create a sample request in different formats, including Word.

The free version cannot provide sample text in different formats, but you can paste its sample text into the app of your choice.

The paid version can provide actual names of people holding different positions.

The free version does not give specific contact information.

The paid version can be customized to learn how you want it to work.

The free version cannot be customized.

Conclusion

I strongly believe AI can do much to help all of us make ADA requests and learn more about our legal rights. If you are interested, I urge you to give ChatGPT a try. You may find that by using it you are more comfortable making ADA requests and you may be more willing to demand your access.