The Chairman of the Chicago Commission on Human Relations, Clarence N. Wood, has found "substantial evidence of disability discrimination" by the Chicago Public Library against two blind persons. The Chairman's report making the finding is below. Unfortunately, it did not need to come to this point. Three letters were sent in 1993 seeking a meeting and clarification on the access issues raised. The letters were ignored. Meetings were scheduled and then canceled, never to be re-scheduled again. Calls were unanswered. After the complaint was filed, the first substantive contact with the library was in the summer of 1997, with the filing of briefs and arguments from the library's attorneys. All of this could have been avoided with open communication and a willingness to explore solutions rather than complain about unfunded mandates. The library continues to refuse to make a written commitment to maintain the access achieved so far or to upgrade software or hardware. The hearing is now scheduled for January. On the library's witness list are two members of the National Federation of the Blind who are blind themselves. Steve Benson is a 41,448 dollar a year staff assistant in the Communications Department of the Chicago Public Library. He is the President of the National Federation of the Blind of Illinois and serves on the national board of directors of the NFB. David Andrews is the former director of the Federation's Braille and Technology Center. A 1993 letter from the library lists David Andrews as its consultant. It is believed that they will defend the library's inaccessibility to blind persons. The library's $74,928 a year ADA compliance officer, Jim Pletz, has been in the past an associate member of the NFB. Kelly City of Chicago COMMISSION ON HUMAN RELATIONS 500 North Peshtigo Court, 6th Floor Chicago, IL 60611 Kelly Pierce & Elsie Haug, ) Complainant ) v. ) ) CCHR No. 94-PA-8/84 City of Chicago, Chicago Public Library, ) Dempsey, Scott & Harold Washington ) Library Center, ) Order Dated: July 29, 1998 Respondents. ) ORDER FINDING SUBSTANTIAL EVIDENCE I. INTRODUCTION The complainants in these 1994 cases charged the Chicago Public Library (þCPLþ) with failing to accommodate their disabilities. Kelly Pierce (þPierceþ) has been blind for 12 years; Elsie Haug (þHaugþ) is vision impaired due to macular degeneration. Pierce, a computer expert, sought mainly independent computer access, instructions for the operation of machinery and software programs in alternate format and a written commitment by the CPL to assure that new computer programs and equipment would be accessible. Haug, who prefers low-tech solutions, in general sought large print materials which would be tailored to her needs and more information about library services in large print. Neither individual was represented by counsel, nor did they state that they represented any advocacy group. (Pierce and Hang are sometimes referred to collectively as "Complainants.") II. PROCEDURAL HISTORY The complaints were assigned to a Disability Evidentiary Conference ("DEC") Conciliator in May, 1997. The DEC Conciliator requested the parties to provide statements of their current positions in preparation for a DEC conference. The CPL and Pierce filed position papers and replies. Haug did not file any documents at that time. A conference date was set and then continued several times at the requests of both Pierce and CPL until October 29, 1997. The first meeting of the DEC Conference was held on October 29, 1997. Due to the need of the CPL to provide information about and the Complainants to review possible accommodations, the Conference was continued until January 6, 1998. The parties met and again discussed possible settlement and ways to accommodate each Complainant's needs. The DEC Conference was continued until a telephone Conference on February 18, 1998 to report progress. The final DEC Conference was held on May 1, 1998 to give all parties time to review possible accommodations. At the conclusion of that meeting, the parties were given until June 15, 1998 to reach a settlement. On June 15, 1998, the Chicago Public Library notified the Commission that settlement had not been reached with either party and filed a report of the final CPL position. Neither Pierce nor Haug has submitted any final documents or reports. Because the DEC Conciliator specifically requested at the last conference that no further position papers be submitted, neither she nor the Executive Compliance Staff read the Respondentþs final submission. All conferences except the telephone conference were recorded by a court reporter. III. STANDARDS The Chicago Human Rights Ordinance states, "No person that owns, leases, rents, operates, manages or in any manner controls a public accommodations shall withhold, deny, curtail, limit or discriminate concerning the full use of such public accommodation by any individual because of the individuals . . . disability . . . . CHRO, 2-160-070. Further, the Commission's Regulations state, No person who owns, leases, rents, operates, manages or in any manner controls a public accommodation shall fail to fully accommodate a person with a disability unless such person can prove that the facilities or services cannot be made fully accessible without undue hardship. In such a case, the owner, lessor, renter, operator, manager or other person in control must reasonably accommodate persons with disabilities unless such person in control can prove that he or she cannot reasonably accommodate the person with a disability without undue hardship. Reg. 520.105. The Regulations define "full use" as: "Full use" of a public accommodation means that all parts of the premises open for public use shall be available to persons who are members of a Protected Class at all times and under the same conditions as the premises are available to all other persons, and that the services offered to persons who are members of a Protected Class shall be offered under the same terms and conditions as are applied to all other persons. Reg. 520.110. "Reasonable accommodation" and "undue hardship" are also defined in the Commission's regulations -- Regs. 520.120 + 520.130. In addition, the Commission has adopted the following standard to determine whether or not there is substantial evidence of a discrimination: whether there is "more than a mere scintilla of relevant evidence such that a reasonable mind might find it sufficient to support such a conclusion." E.g., Doering v. Zum Deutschen Eck, CCHR No. 94-PA-35 (Sep. 14, 1995). In addition, when deciding whether or not there is substantial evidence, the Commission cannot make credibility determinations; that is, CHR cannot disbelieve a complainant merely because the respondent disputes his or her story. E.g., Lacy v. Karr & Assocs., CCHR No. 97-E-91 (Jan. 14, 1998). IV. CONDITIONS EXISTING IN 1994 WHEN THE COMPLAINTS WERE FILED Based on testimony of the complainants and admissions by representatives of the respondent, the Executive Compliance Staff adopts the DEC Conciliator's conclusions that the following conditions existed in 1994 with respect to allegations of discrimination contained in the complaints: A. PIERCE COMPLAINT FACTUAL ALLEGATIONS: [All allegations are from Pierceþs complaint with some clarification in his letter sent to the parties and the DEC Conciliator dated July 26, 1997. All responses are from an undated response from the CPL to Commission inquiries (possibly late 1994 or early 1995) and from a letter to Commission staff dated November 21, 1996. Some of the conclusions are supported by statements made in the DEC conferences.] ISSUE 1: No speech synthesizer at the Harold Washington Library Center (þHWLCþ) for use with the computer and CD Rom materials blocking independent access to that equipment. The CPL admits that there is no speech synthesizer for use with the computers at the HWLC in an undated response (possibly late 1994 or early 1995). The November 21, 1996 CPL letter indicates the CPL has a screen reader at that point. Pierce responds that the CPL staff lacks the ability to operate the screen reader; there are no braille or audio instructions; and the computer screen reader [also known as a þvocalizerþ] is only available in the CPL HWLC Computer Center, which is open fewer hours than the HWLC is open to the public in general. Conclusion: There is substantial evidence that there was no speech synthesizer was available in 1994. When such equipment was added by the CPL, staff was not sufficiently trained to operate the equipment and no instructions were available in alternative format. ISSUE 2: Lack of assistive devices blocks independent access to a number of library resources (described below). CPL initially responded that all listed library services were available through the Illinois Regional Library for the Blind and Visually Impaired (þIRLBPHþ) operated by CPL with state and federal support. CPL also responded that these materials were available in braille and recorded formats. (Undated written response.) In a letter to CHR staff dated November 21, 1996, CPL modified that response as follows: a) Card catalogue information. In 1996 [and most likely in 1994], all catalogue searches could be done with the assistance of staff and the patron could then read the written search results with a text reading machine [also known as a þscannerþ]. Pierce responded that if staff were available or knowledgeable at all in his visits to the HWLC, it took the staff 30 to 45 minutes to compile the information requested and, contrary to CPLþs assertion, the result of the search could not be printed on paper or transferred to a floppy disk to be read on a scanner. By 1996, the CPL asserted that patrons with low vision could also use the regular on-line catalogue and increase the text size with available software programs or use the screen reader. Pierce, who is blind, responded that there were no instructions, in braille or on cassette, for the use of the screen reader. Instead, CPL staff offered Pierce a four-hour tutorial on the use of the screen reader. Pierce also noted that the use of this computer was limited to the hours of the CPLþs Computer Center, which were not co-extensive with the HWLC. Pierceþs basic response to all offers of staff assistance is that blind persons should be given independent access and not have to depend on staff assistance. He stated, þThe nature of using a computer is personal and interactive; CPL fails to explain in its response why it cannot provide such access or what barriers must be overcome for independent access to be achieved.þ (Letter, July 26, 1997) Conclusion: There is substantial evidence that in 1994 there was no independent access to the card catalogue through the use of assistive devices as staff was necessary to make any card catalogue search. When staff was available to make card catalogue searches, the results were not made available to patrons in writing or on disk. Even if the results had been made available in writing, the staff was not knowledgeable about the operation of the scanner and there were no instructions in alternative format. By 1996, an on-line catalogue was available with a screen reader, but again staff was not knowledgeable and no instructions were available in alternative format. b) Catalogue for the Talking Books Center at IRLBPH. CPL states that patrons can call IRLBPH and request this information on-line to receive the most current information. [Further investigation at the conferences confirmed that this does not include the entire catalogue, only the most recent additions.] Staff assistance is also available to do a search of these materials. Pierce responded that the on-line number provided limited on-line directions on use of the catalogue and there were not written instructions for the numberþs use, which resulted in his not being able to use the service; in particular he had difficulty placing an order for the book. Conclusion: There is substantial evidence that there was no independent access for the catalogue of all talking books availability in 1994 due to the difficulty in using the system and the lack of instructions in alternative format. Again, the CPL would assert that the IRLBPH is not a service they are offering, even though it is housed at the CPL and staffed by CPL staff. However, what legal responsibility the CPL has for this service must be determined. Because the CPL houses it and provides it to the public, the Commission finds there is substantial evidence of discrimination on this issue, too. c) Government publications index. CPL offered staff assistance to locate þspecific titles or topicsþ and noted that visually impaired readers could use the reading machines to read the results of those searches. Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. [At the DEC Conference, he noted that sighted patrons could use a CD-Rom to provide access to the index, but he was unable to do so.] Conclusion: There is substantial evidence that there was no independent access to searches of government publications index materials in 1994. When a scanning device was purchased sometime after that date, staff was not sufficiently trained in its operation and there were no instructions in alternative formats. d) United States census data. As of 1996, CPL offered visually impaired patrons the ability to request specific print data from staff and then read that data on reading machines. CPL at one point noted that this data is also available in braille from IRLBPH, but later appeared to retract that claim. [This was not a service the CPL claimed was available at the conferences.] Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. Conclusion: There is substantial evidence that there was no independent access to searches of United States census data in 1994. When a scanning device was purchased sometime after 1994, staff was not sufficiently trained in its operation and there were no instructions in alternative formats. e) Chicago Tribune archives. As of 1996, CPL offered patrons the ability to request þspecific print dataþ from staff and then read the data retrieved on reading machines þif they do not wish further staff assistance.þ Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. Conclusion: There is substantial evidence that there was no independent access to searches of the Chicago Tribune archives in 1994. When a scanning device was purchased sometime after 1994, staff was not sufficiently trained in its operation and there were no instructions in alternative formats. f) Infotrac Health Reference Center. CPL states that patrons may request þspecific print dataþ from staff and then read the data retrieved on reading machines þif they do not wish further staff assistance.þ Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. Conclusion: There is substantial evidence that there was no independent access to searches of Infotrac Health Reference Center materials in 1994. When a scanning device was purchased sometime after 1994, staff was not sufficiently trained in its operation and there were no instructions in alternative formats. g) Infotrac Periodicals Index. CPL states that patrons may request þspecific print dataþ from staff and then read the data retrieved on reading machines þif they do not wish further staff assistance.þ Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. Conclusion: There is substantial evidence that there was no independent access to searches of Infotrac Periodicals Index materials in 1994. When a scanning device was purchased sometime after 1994, staff was not sufficiently trained in its operation and there were no instructions in alternative formats. h) Marketing and application materials for the Talking Books Center and IRLBPH. CPL notes that brochures marketing the Talking Books Program of IRLBPH are available in braille from the Illinois State Library. The application, provided by the federal government, must be completed with staff assistance. Pierce responded, in general, that blind persons should have independent access to this information with assistive devices. Conclusion: There is substantial evidence that there was no independent access to the application for the Talking Books Center in 1994. The CPL did not assert that it was unable to provide the application in alternative format or that it would be an undue burden to do so. The brochures were available in alternative format in 1994. i) Software in the CPLþs Computer Center such as WordPerfect 5.1, Lotus 1-2-3, Windows and Resumemaker. By 1996, CPL notes that these programs are available to visually impaired patrons with the use of Zoomtext (which increases font size) and JAWS (which reads the test on the screen to the user). Pierce responded that on his visit to the HWL on July 11, 1997, those programs were not installed on computers accessible to the blind with screen-readers. Further Pierce noted that a better program, Microsoft Office 95 was available to sighted patrons on a Microsoft Windows NT platform. It was not available to blind or visually impaired persons. Pierce also notes that the form of Microsoft chosen by CPL (Windows NT) was the least accessible form of that program. Conclusion: There is substantial evidence that neither Zoomtext nor JAWS was available in 1994. Even as late as 1997, those programs were not installed on computers equipped with screen-readers. ISSUE 3. Failure of the CPL to respond to these issues or to respond in a timely fashion with staff assistance. CPL notes that the reference staff and/or reader advisor assistance is available at the HWLC, other CPL branches and the IRLBPH. Pierce responded by pointing out the length of time it took to find staff assistance on many occasions, citing two instances in his complaint. In one example, the CPL took four weeks to search for the availability of four books. Pierce states that if the CPL had braille or audio services, he could have been able to do the search independently and promptly. Second, Pierce states that he spent four months contacting CPL officials asking for a copy of any plan for increasing accessibility of the CPL and had received no response. Conclusion: There is substantial evidence that in 1994 there was limited staff availability to provide the kind of services the CPL claimed to be offering to provide access to its facilities to blind or visually impaired. In addition, staff was ill-trained to provide that assistance. Despite the fact that technology existed to provide independent access for blind and visually impaired visitors, the CPL did not take advantage of these assistive aids. Thus, there was no independent access for blind persons to the CPLþs services, and staff assistance was limited and lacking in technological knowledge. B. HAUG COMPLAINT FACTUAL ALLEGATIONS. [This analysis is based on Haugþs complaint, the CPLþs response to her complaint, marked received by the Commission on March 8, 1995, and discussion at the DEC Conferences. Haug submitted no other documents to the Commission before the DEC Conferences.] ISSUES 1 and 2: In 1994, the on-line card catalogue was only available on a small size computer screen (15") which is not accessible to those with vision impairments and is not available in large print. The CPL stated that it anticipated installation of a voice synthesizer (þDEC-TALKþ) on its new public access computerized catalogue sometime in 1995 and on some of its computers in the Computer Center. CPL noted that the computer on which the catalogue program would be located would also have the capability of printing a search in þlarge printþ of 14.5 font. [This is not widely regarded as large enough print for most people with visual impairments. At the conferences, it was determined that Haug needed print in excess of 20 point for printed materials to be legible to her.] The CPL also said staff assistance was available for catalogue searches for the vision impaired. There was no response to Haugþs statement that the catalogue is not available in large written print. Conclusion: There is substantial evidence that, in 1994, the card catalogue was not available in large print and the CPL provided no assistive device which would have provided independent access to Haug even though such equipment existed as evidenced by their planned purchase. ISSUE 3: There was no index of large print books available for the visually impaired. CPL responded that a large print list of þNew Additions to the Large Print Collectionþ was available upon request at the CPL in 1994. Customized lists of books in the Literature and Language Division were also available upon request. CPL responded that the planned installation of a computerized catalogue with DEC-TALK would also allow a visually- impaired person to access any of the large print holdings. Conclusion: There is substantial evidence that, in 1994, the complete index of large print books was not available in large print and the CPL provided no assistive device which would have provided independent access to a visually impaired person even though such equipment existed as evidenced by their planned purchase. ISSUE 4: No large print map of the Harold Washington Library was available. CPL noted that it was in the process of upgrading information and directional service brochures to large print type for visually impaired persons. CPL attached a map, claiming it was large print. [The map is not in what would be considered large print for most people with visual impairments. At the conferences it was determined that the proffered map was not readable by Haug.] Conclusion: There is substantial evidence that there was no large print map available in 1994, even though such technology readily existed and the cost of preparing such a map was minimal. ISSUE 5: The electronic directory (þkioskþ) on the third floor of the HWL was not available in a format usable by visually impaired patrons. Rather than dealing with this allegation directly, the CPL pointed to large print signs available on each floor and to the map available at the information desk. Conclusion: There is substantial evidence that, in 1994, the electronic directory was not accessible, nor was another directory in an alternative format accessible. A large print director would have been an inexpensive, readily available and accessible alternative for persons with visual impairments. ISSUE 6: The Kurz-Weil Scanner is not available during regular CPL hours. [The scanner orally reads a document when the document is scanned into it, thus allowing a visually impaired person access to that document.] The CPL admitted that the scanner was available only during the Computer Centerþs hours of operation, which were more limited than the hours the HWLC was open. Conclusion: There is substantial evidence that, in 1994, the assistive device to aid persons with visual impairments read normal text was not available during regular operating hours of the HWLC, although the CPL did not allege any undue burden to make it available during those hours. ISSUE 7: There was no written list of services and equipment available for use by persons with low vision or to library employees to assist persons with low vision. The CPL gave no direct response to this allegation, but did note that docents were given a three-hour training which included sensitivity training and information about the services available to the disabled community. Conclusion: There is substantial evidence that, in 1994 -- and up to the date of the DEC Conference -- there was no listing of assistive devices and services for visually impaired persons even though providing such a listing would have been easily and inexpensively prepared. [Experiences of Haug -- including one on the day before the last conference -- indicated that the docents were not knowledgeable about those services and that the one-time training was insufficient.] ISSUE 8: Lavatory signage was not readable to Haug. The CPL did not specifically address this issue in its written response. [During the DEC Conferences, the CPL said that its lavatory signage met the requirements of the Americans with Disabilities Act, but noted that it was revising that signage and asked Haug to check it.] Conclusion: There is no obvious conclusion about this issue. Federal and state law do not require that such signs be in black and white, just that the signs are on a contrasting background. However, since the CPL did not respond to this allegation, it must be taken as true as of 1994 and so the Commission finds substantial evidence. ISSUE 9: Print materials which describe CPL services were not in large print. The CPL referred to its large print signage and the map it described as large print. The CPL noted that it was in the þprocess of upgrading information and directional service brochures to large print type for the visually impaired patron.þ Conclusion: There is substantial evidence that the written materials which describe CPL services were not available in large print in 1994, even though large print was readily available and inexpensive. [At the DEC Conferences, the CPL admitted it did not have large print information, but noted that at some point after 1996 the CPL had initiated a phone service with listing of services by category.] ISSUE 10: Cubicles should be provided for visually impaired persons utilizing closed circuit television. The CPL stated that it did not understand the issue, as the closed circuit televisions were available to all, in an area designed for public access, to serve a broad spectrum of þchallenged individuals.þ [At the conferences, Haug explained that she believed that visually impaired persons using these materials to read other documents needed cubicles to maintain their privacy.] Conclusion: The CPLþs provision of closed circuit television to read other documents was available to persons with or without visual impairments equally and thus does not disparately or significantly impact persons with visual impairments. There is no substantial evidence as to this issue. V. COMMISSION'S DETERMINATION In 1994, the CPL failed to provide significant staff assistance or assistive devices or other accommodations to give access to people with vision impairments or blindness in the HWLC. This failure cannot be excused by expense or lack of availability, as assistive devices were readily available, the CPL never claimed they were too expensive, and there were a variety of low-tech or no-tech options available. The CPL never specifically raised the issue of undue administrative or financial burden during the conferences, although it would say some requests were not feasible (no electrical outlets, brailling something would result in a huge volume, etc.). Further, even when the CPL did provide assistive devices, they did not provide instructions in alternative formats --again readily available and low-tech -- to allow independent access by people with visual impairments. The CPL did not adequately train its staff in the use of these devices, and failed to provide any information in accessible formats about the availability of these assistive devices and staff assistance. Therefore, the Commission finds substantial evidence of disability discrimination against the City of Chicago Public Library for all claims described above, except it finds no substantial evidence as to Issue 10 from Haug's complaint. Also, the Commission finds no substantial evidence against the two individuals Haug named as Respondents (Dempsey and Scott) as there is no reason to believe they have personal responsibility for the lack of accommodations. A finding of "substantial evidence" is not a finding of liability. Rather, it is a preliminary determination that there is substantial evidence that Respondent may have violated the Human Rights Ordinance. Because the parties have spent the better part of a year in formal settlement negotiations, presided over by the Commission's DEC Conciliator, the Commission sets this case for an Administrative Hearing. See attached Order Setting Administrative Hearing and Pre-Hearing Conference and the Standing Order for particulars.. NOTE: The parties are reminded to send all materials to Complainant Pierce on a computer disk and to Complainant Haug in large print (a print size of at least 20). This order, the order setting the Administrative Hearing and the Standing Order were all sent that way by the Commission. By: CLARENCE N. WOOD Chair/Commissioner For: CHICAGO COMMISSION ON HUMAN RELATIONS Date Mailed: July 31, 1998