Spell it With Me Now ... A-C-C-O-M-M-O-D-A-T-I-O-N-S

For your human rights in employment education and entertainment today, I offer a little story about a pizza shop in Utah that had to pay out 'big dough' for failing to provide reasonable accommodations to an employee with Down Syndrome. 

Actually, from my (and perhaps your) point of view, it's even worse than your that - this wasn't just your garden variety failure to accommodate case - this particular employee had "happily did his job for more than five months with 'an independently employed and insured job coach* to assist him'.” 

Or, at least he had until an operating partner of the company saw him working with his coach, and ordered him fired.

Seriously? Some people companies people will never learn.

See, even though individuals with disabilities living in Utah do not have the benefit of the Canadian Charter of Rights and Freedoms (or, more particularly, sec. 15 thereof) or any of Canada's federal or provincial human rights legislation, they do (as do all residents of the US) have the benefit of the the Americans With Disabilities Act (“ADA”).

The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services...

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Sound familiar?

However, unlike Canadians, Americans also have the benefit of the US' Equal Employment Opportunity Commission ("the EEOC"). the organization that enforces the ADA in the employment context; meaning you bring your employment complaint to them and, if they think it is justified, they will sue the employer on your behalf. Making them, kind of, sort of like a human rights commission solely for employment issues.

At any rate, thanks to the fine work of the EEOC, Papa John's has not only 'agreed' to pay that employee damages in the amount of $125,000, but also to “review its equal employment opportunity policies, conduct training for management and human resources employees for its restaurants in Utah, and establish a new recruitment program for individuals with disabilities in Utah.”

The take-away(s) of the story for Papa John's (and all Canadian and American employers) is that

• employers must provide "reasonable accommodations" to persons with disabilities and "engage in an interactive process to determine if an accommodation is reasonable yet not burdensome"; and
• a long-term "independently employed and insured job coach" might just be a "reasonable accommodation" for a person with an intellectual disability.

Or, to put it another way, what he said:

“Employers must understand that they cannot refuse to provide an accommodation to individuals with intellectual disabilities. … Employers should embrace workers like Scott who work with such joy. I want employers to know that their obligation to provide a reasonable accommodation includes allowing a job coach at the workplace, if needed, absent undue hardship.”

* Which subject (that being "an independently employed and insured job coach to assist him") could be the subject of a blawg post all by itself, says she, as she continues to toil away at accessing funding for just such a beast for her own daughter.

If I Had My Druthers ...

A bit of a personal missive this evening - some of my readers will know that I have two children with special needs.  Two teenage children, to be exact.  My oldest daughter has a laundry list of labels and diagnoses - mentally challenged, PPD, speech/language disorder ... none of which accurately describe her - and my youngest has a learning disability.

As I walked out of my oldest daughter's IPP meeting today and into the bright sunshine, it struck me that many days it really doesn't seem to matter how much or how well you think you know the law or which government entity is responsible for this or that - creating something meaningful and functional for our children seems nearly an impossibility.  The key words here are, of course, meaningful and functional.

It I had my druthers, Nova Scotia's Canada's education law would be very similar to that in the US.  We would have legislation similar to IDEA (Individuals with Disabilities Education Act) - which, admittedly, would be somewhat difficult given that IDEA is a federal law whereas, in Canada, education is a provincial responsibility - which actually had some teeth in it, which actually gave parents meaningful rights and a process to challenge a school or school board's actions (or inaction). 

Yes, that's what we would have as opposed to the current namby pamby wishy washy excuse we have for legislation - legislation which uses much of the language in IDEA (such as guaranteeing our children an "appropriate education") but lacks both the process and the teeth to back it up.

I have definitely discovered that high school is a whole new ball game when it comes to IPPs.  From everything from the way they are created to the way they are reviewed and implemented, it is, quite simply, different.  And much harder, from a parent's point of view (or at least from my point of view) to meaningfully participate, to offer meaningful input that is actually included in the IPP and to get information as to how well the goals, once they are finally created, are (or are not) being met (and no, I don't mean the pathetic excuse for "reporting" that is passed off as report cards).

Although it took a long time for IDEA (as it exists today) to emerge, it also took a lot of parental involvement and advocacy.  And I can't help but think that's the only thing that is going to move Canada's educational systems for children with special needs forward.

In the meantime, I suppose we will all just keep putting one foot in front of another.  And keep hoping that somehow, through it all, we can manage to actually obtain an appropriate education for our children.

There's only one problem with that, of course.

Hope isn't actually a strategy.

Making A Difference?

Acting unanimously, the House of Representatives last night approved a bill to remove the terms “mentally retarded” and “mental retardation” from federal education, health and labor laws. The measure, called “Rosas’ Law” in honor of a Maryland girl who has Down syndrome, has already passed the Senate and is expected to be signed into law by President Obama.

“This law is about families fighting for the respect and dignity of their loved ones,” said Sen. Barbara Mikulski (D-Md.), one of the measure’s sponsors. “This change will have a positive effect on more than 6 million Americans.” She said the law will make the language of federal law consistent with that used by the Centers for Disease Control and the United Nations, and will not affect any services, rights, responsibilities or educational opportunities for people with intellectual disabilities.

Rosa’s law substitutes the terms “intellectual disability” and “individual with an intellectual disability” for the earlier terms, now considered outdated and stigmatizing by many self-advocates and their families. It does not cover entitlement programs, which include SSI, Medicare, Medicaid and Social Security.

Sounds nice. Definitely.

And what more could you ask for than the photo op of such a sweet looking little girl with an older brother willing to go forth and do battle for her rights?

Cynical, you say? Maybe. Maybe not.

There's no doubt in the world that words can and do hurt.  And serve to shape our perception of "reality".  And much like the Marcelli household, the word "retard" is not allowed in our house.  Never will be.

And yet, there's something here that bothers me that I can't quite put into words.  At any rate, I do seem to be feeling a tad more cynical on the subject today than I was the last time we discussed Rosa's Law.

Still, it's passed.  And that's a good thing.  A step forward. 

But is it a step that will really matter?

I'm not sure. Kids (and their parents) will still throw around the word 'retard" as a taunt, on the playground and elsewhere.  Parents of challenged children will continue to wince when hear the word.  Some may speak up.  Some may not.  But, most importantly, children who are challenged will continue to be hurt what is said. No matter what the law books may say. 

Still, perhaps one small step forward. 

It may be that I just need to keep reminding myself ...

It's better to light a candle than to curse the darkness.
Eleanor Roosevelt

H/T to On Special Education Blog

Litigation v. Education

The Americans with Disabilities Act is somewhat similar to Canadian human rights legislation in that it prohibits private employers, state and local governments, employment agencies, labor unions and other public entities from discriminating against qualified individuals with disabilities with respect to employment matters and access to services.  Although, unlike our human rights legislation, this particular piece of legislation applies only to individuals with disabilities (defined as "a physical or mental impairment that substantially limits a major life activity").

But it's a nice piece of legislation in that it allows individuals with disabilities who believe that they have been discriminated against direct access to the courts (as opposed to a human rights bureaucracy as is the case with our own human rights legislation).

And yet an interesting situation is developing in Florida where many small business owners feel that they are being faced with the prospect of financial ruin by certain litigants who are using the legislation in a less than honest manner.

Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said

Even some in the disability community are unsure of  these so-called "drive by lawsuits",

"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.

The flip side of the argument, of course, is that given that this legislation came into force over 20 years ago, can business owners really legitimately argue that they didn't know what is required of them or that they were "caught off-guard" by the lawsuits?  And in a situation where Justice Department and Equal Employment Opportunity Commission lawsuits are scarce, some see private lawsuits as vital to enforcing the legislation.

Still, this story does raise what I see as a very valid issue - when is it in the best interests of the disability community to focus more on education than on litigation?