Summer 2013 Newsletter

In this issue:

Please enjoy this edition and let us know what you would like to see in the next one.

 

Been Denied Assistive Technology? Don’t Despair. The DLC May Be Able to Help!

By: Erin Hough, DLC Advocate

Assistive technology (AT) is helping people everywhere to overcome barriers and be more independent. For some, a simple AT device can mean the difference between being able to participate fully in society and staying home, feeling frustrated. One person may need a power wheelchair in order to get to the office to do her job. Another may only be able to communicate through use of a computer that tracks eye movement. Children with learning disabilities often use iPads with reading and writing applications in order to participate with peers in the classroom. Athletes may rely on assistive technology to compete and perform.

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The world of assistive technology is a happening place.  It holds many possibilities for helping individuals overcome all kinds of barriers. But all too often, someone’s dream is crushed when, after going through the long process of assessments, equipment trials, and applications for funding, they receive the worst possible result: a denial letter.

Most people, upon receiving a denial letter, either throw it in the trash or burn it. It may be tempting to curse all forms of AT and hit the couch to watch reality show reruns for about a week, telling oneself, “I didn’t really need that device anyway.  After all, I’ve gotten along all this time without it.”

Don’t let this happen to you. We know you’re tired of endless paperwork and conversations with unsympathetic professionals, but one more phone call may make all the difference.  If this is a device that you truly need in order to increase your independence and be successful at work or school, the Disability Law Center may be able to help. We have successfully appealed denials in the past. And it’s possible that by standing up for yourself now, you will be preventing problems for others in the future.

 

Ask the Advocate

By: Lindsay Boerens, DLC Advocate

Question:  I’ve been having a hard time landing a job. I’m curious about what kinds of disability-related questions an employer can ask me during a job interview? Do you have any tips on how to answer these questions?

Answer:  As I am sure you already know, finding steady employment continues to be one of the most challenging issues for people with disabilities. According to the most recent statistics from the U.S. Department of Labor, people with disabilities account for just 21 percent of labor force participation and have a 6.6% higher rate of unemployment than people without disabilities. Even though the Americans with Disabilities Act (ADA) has been around since 1990, many job seekers do not understand their rights when it comes to their job search.

It is illegal for employers to discriminate against applicants based on their race, color, sex, national origin, religion, age or disability. Here are some examples of improper questions aimed at determining whether or not you are part of a legally protected class:

  • Are you married?
  • Do you have any children?
  • Do you take any medications?
  • Do you have a disability?
  • What is your religion?
  • How many days of work did you miss due to illness last year?

Employers are not allowed to ask you questions about your disability. Unfortunately, not all employers adhere to this rule. If a potential employer asks an improper question during your job interview, one of the best ways to protect your right against discrimination is to address the employer’s concern and not the question. As a general rule of thumb, always focus your answer on your abilities, not your disability!

If an employer asks you an improper question, you might consider using one of the following answers:

  • I am able to perform all the essential job duties required for this job. Let me show you how I can do that.
  • I understand that you might have concerns. Let me assure you that I am very capable of meeting your needs.
  • I’ve held many jobs over the years despite my disability. I am able to find creative ways to work around my needs without distracting others. This makes me a good problem solver.
  • I might need a little help with __________. Would that be a problem?

Remember, focus your answer on what you can do – not on your disability. If this technique does not work, you may consider filing a charge of discrimination with the Utah Anti-Discrimination and Labor Division (UALD) or the Equal Employment Opportunity Commission (EEOC). For more information or help please call the Disability Law Center.

 

The Scenic Route

By: Tim Lewis, DLC Advocate

scenic route top

For those who enjoy outdoor recreation, the Uintah Basin is a small paradise.  It boasts some of the most beautiful lands in our state; from the high rising Uintah Mountains to the depths of Flaming Gorge, and all of the state parks in between.  There is something here for everyone.

In the midst of this beauty, homelessness is not an idea that readily comes to mind.  We tend to think of homelessness as an issue that affects only large cities and population centers. The truth is, however, that homelessness can be found in every region of our state, whether urban, suburban, or rural.  Even in the beautiful Uintah Basin.

Homelessness is a complex issue.  It affects people of every age, gender, race, ethnicity, ability, and disability.  According to the recent point-in-time count, published by the National Alliance to End Homelessness (NAEH), 16,522 Utahns experienced episodes of homelessness in January of 2013.  The NAEH also finds that about half of people experiencing homelessness suffer from mental health issues. At any given point in time, 45 percent of homeless people report having had indicators of mental health problems during the past year. About 25 percent of the homeless population has serious mental illness, including chronic depression, bipolar disorder, and schizophrenia.

Where are the homeless located?  There are approximately 14 homeless people on average for every 10,000 people in rural areas, compared with 29 homeless people out of every 10,000 in urban areas. Additionally, rural areas tend to have higher rates of poverty, only compounding the risk of becoming and staying homeless in those areas. While the circumstances and causes can vary, the main reason individuals and families experience homelessness is because they are unable to find affordable housing.

Obviously, one of the most important strategies in ending rural homelessness is prevention. With that goal in mind, the Uintah Basin Association of Governments, located in Roosevelt, has created a special committee to tackle homelessness in their community.  The Uintah Basin Regional Homeless Coordinating Committee is working to address homeless issues in Duchesne, Uintah, and Daggett counties.  They work to ensure there are adequate services available to assist those in need. The committee is comprised of a variety of individuals and organizations including law enforcement, local schools, disability service providers, counseling agencies, shelters, the Department of Workforce Services, Community Action Program advocates, victim’s advocates, religious leaders, and the Department of Child and Family Services.

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My position as an advocate brought me in contact with the group last year.  I visited them to discuss ways the Disability Law Center might coordinate our services with the needs of the homeless community in the area.  I was impressed by the dynamic and diverse individuals who participate. They have truly formed a group of “Community Partners” working together to solve homeless issues.   Developing a comprehensive resource directory that homeless individuals and families can use to get help is just one project they have completed.

The Disability Law Center applauds the efforts of the Uintah Basin Regional Homeless Coordinating Committee.  Keep up the good work!

Trip Tip:  If you are in the Vernal area, be sure to visit Fantasy Canyon, located 27 miles south of the city.  This canyon contains some of the most unique rock formations you will ever see.  It is well worth the trip.  And don’t forget to stop by the old Brew Haus afterwards for a burger.  I recommend the black bean burger.  It’s delicious!

 

bLAWg – Reasonable Accommodations

By: Laura Boswell, DLC Staff Attorney

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One of the most important concepts in disability law is that of the “reasonable accommodation,” whether we’re talking about employment, access to businesses, or even fair housing. In a nutshell, the concept is that in order to afford people with disabilities a level playing field, accommodations may be needed.

Title I of the Americans with Disabilities Act (ADA) provides us with the legal definition of what a reasonable accommodation is in the employment context. The ADA defines an accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997) (emphasis added).

While that definition certainly includes a lot of words, getting to the heart of what it means is still constantly under debate. What we do know about reasonable accommodations is that there is no exhaustive list citing all the accommodations that have been found to be reasonable, and all the ones that have not. What is reasonable in any one employment context depends upon the type of job, the disability-related limitations that require accommodation, and the resources of the employer.

In my experience, employers who deny accommodation requests frequently do so before completing an individualized assessment. One of the most common reasons employers give for denying such a request is that granting an accommodation would give the employee with a disability an unfair advantage, and that they are simply enforcing a uniformly applied policy.  My concern with this “one size fits all” approach is that it seems to miss the central point of the ADA: an accommodation is meant to ensure equal, not greater access.

I recently attended a conference where there were many human resource (HR) representatives in attendance. Because it is usually a HR representative that has denied my client a reasonable accommodation, I was intrigued to hear their perspective.  When the topic of accommodating employees with disabilities came up, the tone of several comments seemed to be, “what is the least I can offer an employee, and still have it be “reasonable?”

To be fair, many of these comments were framed after the HR rep told a horror story starring an employee requesting highly unreasonable things from their employer.  It occurred to me that many of these past bad experiences likely color an HR representative’s willingness to grant a future accommodation for a new employee. While I am certainly sympathetic to employers who feel they have been “burned” in the past, a good faith effort to accommodate is still required under the law.

When provided appropriately, accommodations do not give an unfair advantage; rather they make the person with the disability a more productive member of the team.  I recently had a client who uses hearing aids.  Unfortunately, the type of phone provided to employees interfered with his hearing aid. The feedback made it extremely difficult for him to use the phone at all. Therefore, he requested that a different kind of phone be installed in his office. While this seems like a relatively small request, the employer was initially hesitant—citing concerns that other employees weren’t afforded the option of another phone. Fortunately, the employer realized that in order to have equal access to the phone, this particular employee simply needed a different model, and the problem was resolved.

Other accommodations may require an employer to modify a policy. For example, a client recently came in to our office with a letter from her employer stating that she was going to be terminated in three weeks.  The client had undergone spinal surgery, and had exhausted her leave under the Family Medical Leave Act (FMLA). She wanted to return to work, but her doctor said that she would need to work up to a full time schedule. The employer stated that as per their policy, if she was unable to return to work at a full forty hours a week, she would be subject to automatic termination.  We argued that a temporary part time schedule was a reasonable accommodation due to the large size of the company, and that such a request should not be denied solely because of the policy.  Fortunately, the employer granted the accommodation.

In order to fulfill the ADA’s promise of an equal playing field for everyone, accommodations will, at times, be necessary.  Ultimately, determining what is “reasonable” in any one situation does not have to be an “unreasonable” process, especially when both the employer and employee are willing to brainstorm about specific and productive solutions.

 

Public Policy:  Coming This Fall at a School Near You

By: Carol Murphy, DLC Staff Attorney

There were a number of education bills passed during the 2013 Utah Legislative Session which will change the way school districts do business starting later this year.  The bills outlined below may be of special interest to families of students with disabilities:

  • HB 134 S3- Parental Notification Related to Student Safety

This bill requires schools to notify a parent or guardian if the student threatens to commit suicide or if the student is involved in certain incidents of bullying, cyber-bullying, harassment, hazing or retaliation.  School districts and charter schools must adopt policies for notifying parents/guardians and maintaining contact records.  The records will be a “private record” under GRAMA (Government Records Access and Management Act).

  • HB 154- Suicide Prevention Programs

This bill requires the State Board of Education and the State Office of Education to designate a suicide prevention coordinator to oversee school district and charter school youth suicide prevention programs.  The coordinator will help establish model youth suicide prevention programs. The bill also requires school districts and charter schools to implement programs for students in secondary grades which address prevention of youth suicide, suicide interventions and post-intervention for families, students and faculty.

  • HB 298 – Parent Seminar on Youth Protection

This bill requires school districts (but not charter schools) to offer an annual seminar for parents/guardians with information on substance abuse, bullying, mental health and internet safety. The State Office of Education will develop a curriculum and provide it upon request to local school districts.  The local school board may opt out of providing the parent training, if the board determines the seminar is not needed in the school district.

The effective date for these bills is May 14, 2013.

You can find full text of these and other legislative bills by visiting le.utah.gov.

More Resources: 

Disability Scoop, “School Restraint, Seclusion Bill Introduced in Congress,” published on May 10, 2013 at http://www.disabilityscoop.com/2013/05/10/school-restraint-introduced/17919/.

“How Safe Is The Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies,” published by the Autism National Committee at http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf.

 

Book Review – “What We Have Done”

By: Barbara Toomer, Disabled Rights Action Committee

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Have you ever wondered how people with disabilities coped with the many roadblocks to their full participation in today’s society?  Fred Pelka’s book, What We Have Done, uses the voices of a broad range of folks – from those high up in government to those institutionalized by society – to bring to life the struggles and the result of over 50 years of trial.

Today, when many of us think of disability rights, we latch onto the Americans with Disabilities Act (ADA) and the Fair Housing Act, never thinking how and why these laws came about, or how many people put their lives on the line so all of us could enjoy the full benefits of being an American – with or without a disability.  Yet, since about 1950, people with disabilities have gone from being kept away from society in back rooms or institutions, being objects of pity, thought of as special, unholy, unclean, or as divine punishment for sinfulness, to achieving their civil rights.  What We Have Done is an oral history of disability rights, spoken by those who lived it.  Activists, self-advocates, paid advocacy administrators, disability organizations are all recognized and given the opportunity to remember.

Ed Roberts, founder of the Independent Living Centers, wrote that while lying in his iron lung after contracting Polio he overheard his doctor saying he’d be “better off dead” rather than living his life as a “vegetable.”  Years later, after graduating from the University of California and founding the first independent living center that mushroomed into IL Centers in all 50 states; Roberts would joke that as a vegetable, he’d rather be an artichoke.  “A little prickly on the outside (but) with a big tender heart.…. I’d like to call on all the vegetables in the world to unite”.

Dr. William Bronson, who worked in the New York state hospital and advocated for better treatment of those institutionalized by bringing the horrific conditions in the institutions to the public eye said, “There was just wretchedness and suffering – insanity and inhumanity.  Short of Dachau or a concentration camp in Germany where they were actually burning people everyday – they didn’t have to burn people here.  They needed to keep them alive because they needed to make money off them.”

The high point of civil rights movement for people with disabilities, to date, comes with the passage and signing of the ADA by President George H.W. Bush on July 26, 1990.  This landmark was achieved by disability organizations coming together for the first time.  They found a common cause in spite of territorial or policy differences.  Pelka examines this variety of outlooks for success with the oral histories of those who made it happen.

There is an old saying that you don’t want to know how laws or sausage is made.  Pelka ignores this adage and treats us to the wide variety of individual remembrances how the various facets of the Americans with Disabilities Act jelled into the law that gave us our civil rights.

Activists who achieved a deaf president of their university, 504 regulations,  lifts on busses, plus organizations that advocate for people with disabilities, mainstream thinkers and doers on Capitol hill, Congressmen, Senators, and other insiders, all have a voice in this 555 page tome, including 46 page of footnotes and 18 pages of index.  (Just so you know how detailed this history is.)

Mary Lou Breslin summed up the progress made over the past 50 years:  “I don’t think people with disabilities, especially those with visible disabilities, will ever have to live in the shadows again.”

What We Have Done
By: Fred Pelka
University of Massachusetts Press, 2012
www.umass.edu/umpress

The Disability Law Center invites you to submit your own book or movie review for future editions of our newsletter. The book or movie should include disability related topics. Choice of article and content are subject to editorial discretion. You may send your review to newsletter@disabilitylawcenter.org.

Thank you for reading this edition of the DLC Newsletter. See you in the fall!