Monday, March 30, 2015

The ADA and You. Yes, You.

It seems like more and more often these days I'm seeing articles about organizations pushing back against following ADA requirements. On a day-to-day level this isn't new. Anyone who has had a prolonged relationship with any disability community sees it constantly. For me it's usually doctor's offices telling Deaf people that the office isn't responsible for providing interpreters. (This is wrong by the way). Seriously, doctor's offices are the worst for this, and yet you can kind of understand how they wouldn't know. After all, they are usually small offices that specialize in being doctors, not in legal matters. While I'm sure they all have a lawyer they work with for the things you need to be a practicing doctor, they don't have anything that would approach being a legal department, and they probably contract out the business end. Basically, even though they're wrong and need to know that they are wrong, you hope that they'll listen to reason. (They often don't). What I can't abide are huge huge institutions that don't seem to understand their responsibilities under the ADA. Seriously, it's disgusting.

Part of why this irks me is that it touches on the two courses I teach regularly, Business and Government Interpreting, and Medical Interpreting. I teach a units on HIPAA and on the ADA. So here's what I'm going to do, even though I do ADA consulting as a business, I'm going to give away some of the milk for free. I am going to give the quick and dirty on your responsibilities vis-a-vis the ADA. I will try to be brief, I will try to not be sarcastic. I will add the disclaimer that I am not a lawyer and that this blog entry should not be construed as legal advice. (I don't know why we always have to say that, but there, it's said, don't sue me.) I'm going to try to do this in plain language.

Quick Primer

The ADA has five titles.

Title I: Employment

This commonly misunderstood title requires accommodations in places of employment. This means that you must accommodate your employees and cannot discriminate against disabled people in hiring. The part of this title that is misunderstood is that it applies only to employers with 15 or more employees. This is done to protect small businesses. The problem is that many businesses totally misunderstand this and thing that if they have less than 15 employees they don't have to accommodate customers. These people are wrong. (As we'll see later). Remember, Title I only applies to your employees, not your customers.

Title II: Non Discrimination in State and Local Government Services

The Feds are already unable to discriminate so this law was set up so everyone below the Feds have to play nice. It's a shame we even need this kind of law. Basically, if you're a government you can't refuse service to people based on disability.

This is what makes stories like this one, in which a Deaf man was held in an Arlington, VA jail for six weeks without and interpreter so inexcusable, because by law it's totally avoidable. And I'm no policing expert, but we do kind of tend to rely on the police and the corrections system to, at minimum, know the law. However, this quote from the sheriff's department lawyers shows that they're either complete jerks, or totally ignorant of the ADA:

"even if the discrimination were intentional, the lawyers write that it would not violate federal law because there is a rational basis for the discrimination: "it takes extra resources and creates additional security considerations to bring in an ASL interpreter,''

That's right, these lawyers think that federal law allows for discrimination on the rational basis that it's expensive, and requires more work. But hey, what's six weeks of totally unnecessary incarceration when there's a couple hundred bucks to be saved? The weirdest part of this story is that it happened in an area with the highest concentration of Deaf people in the country. So you'd think they'd know better. It's inexcusable and the tax payers of Arlington are about to be at least several hundreds of thousands of dollars lighter.

In another instance I had a state university fight me on paying for interpreters for clubs and organizations. They're stance was it was it was expensive and that if they had to pay for interpreters for all clubs they'd be ruined. They also claimed that their use of federal funds didn't necessitate that they follow the ADA. They were wrong on both counts.

Title III: Nondiscrimination on the basis of disability by Public Accommodations and in Commercial Facilities

Here's where all those businesses with less than 15 employees need to pay attention. Regardless of how many employees you have, if you serve the public, you have to provide accommodations. "Oh ho!" you say, "But interpreting is expensive. I can claim this 'undue hardship' loophole thing and then I won't have to pay." Yeah, you're out on that "cool life hack."

The cost of service is in no way contingent on or related to the price the customer is paying. So let's say you charge $100 for a patient visit, but an interpreter costs $130. Too bad. Seems unfair? Sorry, that's the cost of doing business. But if you think of it the way the government does it hurts less. You see,the undue hardship test is based on your total annual operating budget. So, assuming you turn a profit of more that $130, you have to pay for the interpreter. It might also interest you to know that the last time I checked (2014) no organization had ever won an undue hardship case. Ever. Never, ever. Ever. If you think you're going to claim undue hardship to avoid accommodating a client, be ready to pay way more in a law suit than you were going to pay for an interpreter.

"Ah, but I'm a non-profit. Obviously I don't have to provide accommodations, I have none of these profits you speak of." Sorry. The ADA doesn't distinguish between for profit and non-profit, again, the standard is annual operating budget. You would be shocked (shocked!) to know some of the enormous, well known, national non-profits that have contacted me for volunteer interpreting. These are organizations that are paying huge staffs of lawyers and marketers and web designers, and writers,have huge paid boards and management structures and so on. But when they have to pay for accommodations, all of a sudden they're poor.

Sorry non-profits, if you have any employees or pay for any services, you should be paying for accommodations. Do you call around for free plumbers, or free electricity? Do you ask for student volunteer accountants? Do you petition for free Internet service? No? Then why do you think you should get your accommodations for free?

That said, if you're a non-profit there are ways to get low cost or free interpreting services, please contact me for a consultation. I'm kidding. If you have people who are already a part of your organization who are qualified to provide accommodations, ask them. But make sure they're qualified. Seriously. Not just someone who knows some signs. Or ask for donated services, for which you will provide a donation receipt. That way everyone understands that services aren't free, and that in the event that no volunteer is available, you know how much you can expect to pay for service.

I recently saw this story about a Deaf family suing a peewee football league for failing to comply with the ADA. I encountered this in a local league as well. A Deaf kid made an All Star team and the league had no plan as to how to provide an interpreter at the All Star show case tournament. If you are a non-profit you must come up with an accommodation plan right now. Right now. You have to put it in your budget. You have to add it to your fundraising. Seriously, if you have Deaf people in your realm at all you have to have a accommodation slush fund. If you don't you're setting yourself up for trouble.

Oh, and for you medical providers, that means you have to provide services for immediate family members of the patient (parents, spouse, children). 

Title IV: Telecommunications

Title V: Misc.

These probably don't apply to you, but you can look them up.


I can't stress this enough, you can't get around this stuff. You think you can, but you can't. I once worked for a company whose lawyers told them they could do all kinds of things they were sure were totally OK according to loopholes in federal law. They did this even though many of us employees warned them they were breaking the law. They ignored us, the Feds hit them with a $20M penalty and the company almost went under. Seriously, don't mess around here, just go ahead and do what you're supposed to do. Plan ahead. Understand that like taxes and insurance, ADA compliance is part of your overhead. It's not extra, it's not a surprise, it's a standard. Get used to it.

Really, I shouldn't have had to write this. There's a million guides out there for you. The problem is, you're ignoring them. So now there's one more. If you want more legalistic resource they're out there. In fact, I'll even give you some resources below.


1 comment:

  1. "Do you call around for free plumbers, or free electricity? Do you ask for student volunteer accountants?"

    I would not be surprised if some smaller charities and organizations do this. When I worked for a small nonprofit in Baltimore, we got free IT/computer/tech support from a member and some old hardware. He probably volunteered, but possibly the director asked him directly. I don't know if he got donation receipts or a tax break or anything. I do know he paid full membership.