ASK THE ADVOCATES: About the ADA and the Texas Commission for the
Blind
by Mark Richert
PRELIMINARY NOTES
In this issue of "Ask the Advocates," we discuss the basic process to
use when filing complaints concerning employment discrimination under
the Americans with Disabilities Act (ADA). Specifically, we pay
particular attention to employment discrimination claims against state
and local government entities, covered by Title II of the ADA.
However, before looking at the process itself, I think it might be
helpful for readers to have a "real world" illustration to use as a
reference point. Unfortunately, the example is real and
well-documented.
As a result of a Freedom of Information Act (FOIA) request, ACB has
obtained a copy of a Department of Justice (DOJ) "letter of findings"
concerning instances of alleged discrimination by the Texas Commission
for the Blind (TCB) against several of its employees who are blind or
visually impaired. The letter of findings is an extensive document,
outlining the specific circumstances that led to the filing of the
complaint, the repeated attempts by DOJ to negotiate with TCB and
settle the matter prior to the issuance of a letter of findings, and
the recommended terms of settlement. DOJ began to investigate the
initial complaint in October 1995. As it looked into the matter, DOJ
expanded the scope of its investigation to include similar claims by
other TCB employees.
The letter of findings indicates that TCB failed to provide materials
in accessible formats to the complainants who needed the materials to
perform their jobs. Additionally, the letter discusses TCB's failure
to allow the use of adaptive equipment by employees, as well as TCB's
unreasonably sluggish responsiveness to meet the assistive technology
needs of its blind employees. Perhaps most disturbingly, the letter of
findings describes an environment, tolerated by TCB, in which at least
one of its employees experienced harassment based on the employee's
blindness. DOJ goes to great lengths in its letter of findings to
point out that it has tried to work with TCB to resolve these
complaints. Although the letter documents TCB's general cooperation
with the investigation and its timely responses to requests for
information, as of the writing of this column, December 15, DOJ
attorneys have indicated to ACB that the matter remains "unresolved."
The following are excerpts from DOJ's letter of findings, dated May 8,
1997, to Pat D. Westbrook, TCB Commissioner. Please note that,
although the letter of findings is a public document, names of
complainants and others have been omitted by DOJ.
* * *
"... the Department finds that the Commission has policies or
practices of failing to provide certain employee manuals and
information in accessible formats (e.g. braille or audio tape)
appropriate to the needs of individuals with disabilities and failing
to ensure that necessary adaptive equipment is provided in a timely
manner. Specifically, we find that TCB has failed to ensure the
provision of personnel and counselor manuals in an accessible format
appropriate to their employees' needs and caused employees with visual
impairments to suffer unreasonable delays before being provided with
necessary adaptive equipment. While it may be true that the Commission
provides a substantial number of documents in accessible format to its
employees, clients, and others, and also does provide many of its
employees with adaptive equipment, the evidence also shows that the
procedural requirements and bureaucratic delays necessary to obtain
these accommodations effectively denies at least some of its blind or
visually impaired employees necessary accommodations.
In addition, when accommodations are provided, the Commission does not
follow-up or engage in an interactive process and individualized
assessment with at least some of its blind or visually impaired
employees to determine if the accommodation provided actually meets
those employees' needs. The evidence demonstrates that the
Commission's failure to provide manuals in an accessible format
extends to other blind or vision impaired employees other than those
mentioned here.
The Department also finds that these problems and others are
compounded by TCB's policy or practice of failing to adequately
address employee grievances or even to allow adequate access to
information about grievance procedures and other personnel matters.
For instance, TCB's failure to properly address [Complainant's]
complaints of harassment by [TCB staff] over several months allowed
[TCB staff] to harass [Complainant] without fear of discipline,
thereby making [Complainant's] work conditions unbearable." [NOTE: As
an example of the many instances of harassment, she reported that TCB
staff ridiculed her for using a brailler and talking calculator and
that her use of a talking clock was characterized by TCB staff as
"stupid."]
* * *
"The Department finds that [Complainant], who is blind, is a qualified
individual with a disability as defined by the ADA. The Department
finds that TCB discriminates against [Complainant] in violation of the
ADA in several ways. First, the restriction on use of certain adaptive
equipment, including the braille machine, talking clock and talking
calculator, amounts to an illegal denial of reasonable accommodations
to [Complainant].
While TCB alleges that these restrictions were made for work- related
reasons related to [Complainant's] alleged misuse of this equipment,
the United States finds that this argument is pretextual. Our
investigation reveals that [Complainant] would have little
justification or reason for misusing this equipment. Furthermore,
apart from the possible suspicions of other employees, no documents or
other evidence suggests that [Complainant] was misusing her braille
machine. Further, even if the allegations of misuse of the equipment
were true, the restrictions placed on [Complainant] were overbroad and
prevented [Complainant] from fully performing all the job functions of
her position. TCB's actions, therefore, amounted to a denial of
reasonable accommodations. As a public employer, the Commission is
required to make reasonable accommodations to the known physical and
mental limitations of otherwise qualified employees with disabilities,
unless it can demonstrate that providing the accommodation would
impose an undue hardship on the operation of its program. 28 C.F.R.
41.53.
As discussed below, the Commission has not claimed undue hardship and
has asserted that it was justified in restricting [Complainant's] use
of adaptive equipment. As also discussed below, we believe that these
claimed justifications are pretextual and inadequate to constitute a
defense to denying [Complainant] her use of adaptive equipment.
The department also finds that the conduct to which [Complainant] was
subjected constitutes a hostile work environment in violation of the
ADA, and that TCB failed to remedy promptly the harassment. The
harassing comments and insults concerning [Complainant's] disability,
the restrictions on her ability to use adaptive equipment, the
attitude of TCB employees towards her use of her cane, and the
repeated failure by TCB officials to address [Complainant's]
complaints all amount to harassment on the basis of disability, which
created a hostile work environment.
In submissions to the Department of Justice, TCB officials do not
categorically deny that the harassing comments and treatment took
place. Instead, TCB officials allege that the remarks -- made by [TCB
staff] -- were made in a "tongue-in-cheek" manner or were taken out of
context by [Complainant]. Somewhat alarmingly, the Commission also
attempts to use psychological profiles developed while [Complainant]
was a TCB client to blame [Complainant] for her negative reaction to
these comments, stating that such reactions were 'predicted by
psychologists who had worked with [Complainant] as our consumer...'
TCB also states that [Complainant] was using her adaptive equipment
for tasks outside her job assignments and that the use of the adaptive
equipment upset other employees. Evidence in the form of tape
recordings and testimony supports [Complainant's] allegations that
these comments and actions occurred. Further, the Department finds
that TCB's arguments either do not present a defense to the
allegations or are pretextual. First, it is not an adequate defense to
argue that disability-based insults and comments of the kind
experienced by [Complainant], when they create a hostile work
environment, were made in a "tongue-in- cheek" or joking manner.
Second, the evidence indicates that the comments, denials of
reasonable accommodations and work restrictions were not made in a
joking manner and were harassing. Interviews with [Complainant] and
other employees indicate that the actions of TCB officials created an
objectively hostile or abusive work environment and that [Complainant]
subjectively perceived them as abusive. Finally, TCB's assertion that
[Complainant] misused her adaptive equipment is not supported by any
evidence and is pretextual. Even assuming that other employees
disliked her use of her adaptive equipment, this evidence only
supports [Complainant's] claim of a hostile work environment. The
evidence establishes that her adaptive equipment was necessary for her
to perform her essential job functions and allowed her to perform
ordinary tasks that others without her disability would take for
granted.
The Department finds that TCB failed to remedy promptly the
harassment. While TCB alleges that it investigated the allegations and
counseled employees, our investigation found that most of the
complaints were not investigated, that any investigation that was done
was insufficient and that any actions taken by TCB were not prompt and
did not remedy the harassment.
Finally, the Department finds that, rather than remedy the harassment
and offer [Complainant] a workplace free from harassment, TCB created
a condition which resulted in her discharge. Evidence clearly
establishes that, as a result of this treatment, [Complainant]
suffered lost wages, severe emotional damages and other damages."
* * *
"The Department hereby determines that the actions described above by
the Commission violated Title II of the ADA. Specifically, the
Department finds that TCB discriminated against [the complainants] in
violation of Title II of the ADA. The Department also finds that TCB's
failure or refusal to provide reasonable accommodations constitutes a
policy or practice that discriminates against qualified individuals
with disabilities in violation of the ADA.
The Department hereby offers the Commission an opportunity to
negotiate a voluntary compliance agreement, as provided in 28 C.F.R.
35.173. Such agreement must provide appropriate remedies for the
victims of discrimination and will ensure that the type of violation
that occurred in the past will not be repeated.
In order to resolve this matter prior to litigation, we believe that a
settlement agreement must include, at a minimum, TCB's agreement to
provide adequate compensatory damages to [the complainants] and TCB's
agreement to undertake steps to ensure that the needs of other
employees with disabilities are met consistent with the requirements
of Title II. In addition, we also believe that a settlement agreement
must include an effective employee complaint grievance process that is
independent of an employee's chain of supervision. We propose the
following resolution:
1. TCB will agree to pay appropriate compensatory damages to [the
complainants] and backpay for [Complainant].
2. TCB shall designate an ADA Compliance Officer responsible for
receiving and investigating all complaints of discrimination on the
basis of disability in employment at TCB. This ADA Compliance Officer
must investigate all complaints, advise complainants of their right to
file a complaint with the Equal Employment Opportunity Commission or
the [DOJ], maintain records, and provide biannual summaries of
complaints to [DOJ] for a period of five years.
3. TCB shall agree that any complaint received by the ADA Compliance
Officer that is not satisfactorily resolved to the complainant's
satisfaction within 120 days shall be referred to mediation by an
independent mediator.
4. TCB shall agree to provide reasonable accommodations to all new
employees within 45 days of being hired by TCB. In addition, TCB shall
agree to reassess the need for additional accommodations for any
existing TCB employee within 30 days of request by any employee and
will provide any necessary reasonable accommodations within 60 days of
such request.
5. TCB shall agree to provide training for all supervisory employees
in all TCB offices concerning the rights and needs of persons with
disabilities (including persons with vision impairments). This
training shall be provided by an organization with recognized
expertise in these issues.
6. TCB shall establish an escrow account to compensate any additional
persons subjected to discrimination on the basis of disability.
7. If a TCB employee who is blind or has a vision impairment makes a
request to his or her immediate supervisor for a braille, tape, or
computer disk copy of any manual or publication that is issued to or
provided for use by other employees, TCB shall provide the requested
copy within 7 days of the request. TCB shall make copies of all
employee manuals or publications available in all three accessible
formats and shall make its best efforts to accommodate the employee's
choice of formats."
* * *
So reads the DOJ's letter of findings. It is both astonishing and
disturbing. Even if the claims of the complainants had no merit, which
DOJ refutes, it is remarkable that TCB has allowed this process to
persist to this point. As we learn about such situations, we need to
reexamine our resolve as a community to be zealous advocates. If we
are willing to tolerate discrimination or the refusal to provide
reasonable accommodations by agencies within our field, how can we ask
with conviction and consistency that the law be vigorously enforced
against employers or government entities generally? This is especially
true in an environment in which we are constantly faced with
challenges to specialized services and the very existence of separate
state agencies for the blind. The needs of people who are blind or
visually impaired are unique, and ACB stands united with the entire
blindness community in support of the separate state agency model.
However, to maintain the integrity of our commitment to quality
specialized services, we should demand and expect the very best from
the agencies that we fight tenaciously to preserve. Clearly, we hope
that the situation described in the letter of findings is the
exception that proves the rule.
Another reason to focus on the TCB matter is that it illustrates how
the ADA can operate in the employment context. For all its
limitations, the ADA can provide a process for fighting
discrimination. Unfortunately, many people believe that the process is
inherently complicated. Actually, the complaint process is relatively
simple. As indicated earlier, the basic complaint process is the
subject of this month's question.
QUESTION: I read your article about the Texas Commission for the
Blind, and I can relate to much of what the TCB employees were going
through. I work for a state government agency. I have asked for
accommodations several times, but I seem to be getting nowhere. I have
no idea how the employee in the TCB matter filed her complaint and got
the process moving. Furthermore, I'm not sure I could handle it even
if I did know the steps to take. Can you give me some basic
information?
ANSWER: Yes, but you should make sure you've done your homework before
you get to the point of filing a complaint. Although I'm not exactly
sure how long you've been dealing with some form of discrimination at
work, the first step that you should take is to avail yourself of
whatever process you might be able to use to try to resolve the
matter. There are two reasons why this is important. First, although
there is a considerable amount of intended discrimination in the
workplace, often employer actions that violate the ADA are simply the
result of ignorance or a failure to think about alternatives. So,
using the in-house process might get people together who need to
communicate better.
The second reason why the in-house process is important relates
directly to the experience of the TCB employees. Formally raising your
concerns with your supervisor, documenting your concerns in writing or
other appropriate means, and tapping into your employer's grievance
process will help you to build a record that will be extremely useful
when you decide to file a complaint under the ADA. If you are a member
of a union, remember that your union will have defined
responsibilities to respond to your concerns and advocate on your
behalf. However, keep in mind that unions are also subject to the
requirements of the ADA. Some workplace issues can be resolved by
reassignment of the employee, shifting work schedules and modifying
job responsibilities. Your union needs to be sensitive to these
possible accommodations.
If the in-house process does not work out for you, or you are
prevented from using it, you should consider filing a complaint under
the ADA. A few basic points should be kept in mind. Title I of the ADA
deals with employment. The Equal Employment Opportunity Commission
(EEOC) has the responsibility to enforce Title I. Title II of the ADA
concerns the activities, programs and services of state and local
government entities, such as your employer. The Department of Justice
is responsible for enforcing Title II. Clearly, state and local
government agencies are also employers, and the ADA is structured to
allow both EEOC and DOJ to enforce the Title I employment provisions
against state and local agencies. This has practical significance for
you because you have the option to file your complaint with either
EEOC or DOJ. Both federal agencies will apply the same regulations,
but the process is a bit different for each.
If you file your complaint with the EEOC, you are essentially locked
into that administrative process for the duration. You are not free to
pursue action in court until you have received a "right to sue" letter
indicating that EEOC has completed its investigation. You must file
your complaint within 180 days after the instance of discrimination.
However, the EEOC has developed formalized relationships with many
state human rights commissions, and, depending on where you live, your
complaint will actually be filed jointly with the EEOC and the
appropriate state body. In such cases, you have up to 300 days to file
your complaint. To learn about the process that pertains to you, you
can contact the EEOC at 1-800-669-4000. EEOC representatives can guide
you through the specific steps in the process applicable to you, but
you should also feel free to contact the ACB national office.
As an employee of a state agency, you have the option of filing your
complaint with DOJ. If you were working for a private employer you
would not have this option. Again, your complaint must be filed within
180 days. An important difference to remember about the DOJ process is
that you remain free to pursue a law suit in federal court. DOJ will
investigate your complaint. However, you should know that you may wait
from eight to 12 weeks to receive your first response from DOJ.
As for preparing the complaint, the common assumption is that the
actual complaint document is complicated and requires a great deal of
formality. This is regrettable because the complaint is really nothing
more than a letter. Although it is true that DOJ has prepared a Title
II complaint form, DOJ does not require that you submit your
information on the form itself. You are asked to provide your name as
the complainant, your complete address, your home and business phone
numbers, the name and contact information of the agency or other Title
II entity involved, the circumstances prompting your complaint in as
much detail as you can provide, and the date of your complaint. You
are also asked to inform DOJ if you have already filed, or intend to
file, your complaint with another agency or court and, if so, to
specify the agency or court.
Submit your letter to the U.S. Department of Justice, Civil Rights
Division, Disability Rights Section, P.O. Box 66738, Washington, D.C.
20035-6738. If you have questions about preparing this material, you
can contact DOJ at 1-800-514-0301, or contact the ACB national office.
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