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Archive for February, 2012

Compliance With Title VI For Colleges and Universities

Tuesday, February 7th, 2012

Attorney and award-winning author, Seena Foster, will conduct a one hour webinar on Wednesday, February 15, 2012 from 2:00 pm to 3:00 pm addressing issues of compliance with Title VI of the Civil Rights Act of 1964 by colleges and universities. The webinar is sponsored by the American Association for Affirmative Action at www.affirmative action.org. Ms. Foster is a Partner of Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.

The Meaning of “Disability”

Sunday, February 5th, 2012

Federal civil rights laws prohibit disability-based discrimination in federally-funded programs and activities as well as in your employment practices. Disability-based discrimination complaints generally fall into one of three legal theories—disparate treatment, disparate impact, or reasonable accommodation. In order to prevent discrimination on the basis of disability under any of these legal theories, we must understand how “disability” is defined. In this paper, we will focus on the definition of “disability” in the civil rights context. Other issues pertaining to disability-based discrimination, such as reasonable accommodation, will be handled in a separate paper.

Our understanding of the concept of “disability” is guided by the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Amendments Act of 2008 (ADAAA).

“Disability” defined

Under these federal civil rights laws, “disability” is broadly defined as (1) a physical or mental impairment that substantially limits one or more major life activities, or (2) a record of such impairment, or (3) being regarded as having such an impairment.

“Physical or mental impairment” defined

The types of conditions that may give rise to a physical or mental impairment include, but are not limited to, the following:

√ physiological disorder or condition
√ cosmetic disfigurement
√ anatomical loss affecting one or more body systems, including neurological, muscoskeletal, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine
√ mental disability
√ organic brain syndrome
√ emotional or mental illness
√ specific learning disabilities
√ contagious and noncontagious diseases
√ visual, speech, or hearing impairments
√ cerebral palsy
√ epilepsy
√ HIV disease (symptomatic or asymptomatic)
√ tuberculosis
√ illegal drug addiction (prior or perceived)
√ alcoholism (prior or perceived)
√ cancer
√ heart disease
√ diabetes
√ muscular dystrophy

It is important to keep in mind the ADAAA provides that a temporary or transient condition of six months or less (i.e. a broken arm) does not constitute a “disability” for purposes of the federal civil rights laws.

With regard to illegal drug use, generally an individual who is currently engaged in illegal drug use will not be deemed an “individual with a disability” when a recipient operating a federally funded program or activity acts on the basis of such use. On the other hand, if the person successfully completed a drug rehabilitation program, or is participating in such a program and is no longer using illegal drugs, s/he may meet the definition of and “individual with a disability.” Similarly, if the individual is erroneously regarded as using illegal drugs (when, in fact, the individual is not), then that individual also may meet the definition of an “individual with a disability”; namely, the individual is “perceived” to have impairment where none exists.

However, even if state law permits the use of certain drugs but their use is illegal under federal laws, then the person will not be deemed an “individual with a disability” under the ADA and the statute’s nondiscrimination provisions do not apply. In James, et al v. City of Costa Mesa, ___ F.3d ___, Case No. 10-55769 (9th Cir. May 21, 2012), plaintiffs sought to prevent the shutdown of marijuana dispensing locations by the City of Costa Mesa, California through filing a discrimination complaint under the ADA. The circuit court held that even though the State of California permits the use of marijuana for medicinal purposes, under federal law, this constitutes “illegal drug use” and the ADA does not apply. The court stated:

We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.

If you have questions regarding whether a person is an “individual with a disability”, check with the civil rights office of your federal funding agency, or with your EO leadership.

“Substantially limits a major life activity” defined

It is important to keep in mind that a mere “physical or mental impairment” is insufficient to invoke the protections of federal civil rights laws; rather, the “physical or mental impairment” also must “substantially limit one or more major life activities.” “Major life activities” are commonly understood as including the following:

√ Caring for one’s self;
√ Performing manual tasks;
√ Walking;
√ Seeing;
√ Hearing;
√ Speaking;
√ Breathing;
√ Learning; and
√ Working.

Types of adverse actions at issue

Disability-based discrimination may take a variety of forms. In federally funded programs and activities, a person with a disability may be subjected to illegal discrimination under the following circumstances:

√ outright intentional exclusion from the program or activity;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ exclusion from participation based on certain qualification standards or criteria;
√ segregation from others in participating in a program or activity;
√ failure to address a request for accommodation or modification; and
√ being channeled to lesser programs or activities.

Similarly, in your employment practices, disability-based discrimination may arise from the following:

√ refusal to hire or promote because of the disability;
√ use of exclusionary occupational criteria or standards;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ failure to address a request for accommodation or modification; and
√ segregation from others at workplace events or meetings.

These lists are not exhaustive; rather, they are intended to give you an idea of the types of discriminatory acts that are encountered by persons with disabilities.

Past, Present, and Perceived Disability

Illegal disability-based discrimination may occur based on an individual’s present or past disability, or your “perception” that the individual has a disablity. Let’s start with examples of discrimination based on a “present” disability.

√ In a federally funded program or activity. Jane is blind. She has a master’s degree in business administration and comes to your One Stop Career Center seeking employment in this field with a company. Your employment counselor, however, refers Jane to a position as an entry level clerk for a company. Although this position requires only an associate’s degree and it pays much less, the counselor explains that he has successfully referred other blind people to these positions with the company. Here, Jane has been given a job referral to a lesser position because of her “present” disability (blindness).

√ In the workplace. Again, we’ll use Jane for purposes of our example. She has been working as a project manager for your company for ten years and has received excellent reviews by her supervisors. She has applied for a promotion to a position that involves supervising staff. Although Jane is an excellent candidate, you are concerned with how she would interact with subordinate staff because she is blind. As a result, you decline to promote her. In this example, Jane has been denied a promotion because of her “present” disability.

Illegal discrimination also may occur on the basis of a person’s “past” disability. Here, the person, at one time, suffered from a disability that limited one or more major life activities. And, even though the person no longer suffers from the disability, s/he suffers from discrimination because of the “past” disability. Let’s take a look at a couple of examples.

√ In a federally funded program or activity. Three years ago, John was diagnosed with an aggressive form of cancer. For 12 months, he was treated with chemotherapy. For the past two years, he has received check-ups from his physician every six months and the cancer is in remission. John seeks to enroll in an on-the-job training program in the construction industry. He meets the essential eligibility requirements for the program because he has a bachelor’s degree and five years of experience. However, you deny his application to enroll. You state that the program is expensive and requires a commitment of four years. You are concerned that the cancer will reappear in that time period. Here, you have discriminated against John on the basis of a “past” disability, i.e. you denied enrollment in the training program because he suffered from cancer in the past.

√ In the workplace. Again, we’ll use John as our example. This time, he applies to be hired by your company for a supervisory position. Your company is expanding and you need someone who can “hit the ground running” and get results from the team of folks assigned to him or her. You believe John’s recent bout with cancer constitutes too much of a risk to place him in such a critical position with your company even though he meets all of the occupational qualifications for the position. You decide not to hire him. Here, John has suffered illegal discrimination on the basis of a “past” disability.

Finally, we’ll take a look at discrimination on the basis of a “perceived” disability. Here, the person may have a disability, but it does not substantially limit any major life activities. Or, the person does not have any disability at all. Yet, the person is treated as if s/he does have a disability.

√ In a federally funded program or activity. In this example, Joan seeks training as a construction project manager. When she arrives at your One Stop Center, she accidentally catches her foot on the corner of a desk. You did not see this and, as Joan approaches your desk, she is walking with a limp. Because the training program requires considerable walking, lifting, and bending, you decide that Joan would not be able to complete the training given her limp. Here, you have denied training to Joan based on your “perception” that she suffers from a disability, which is illegal.

√ In the workplace. Again, we’ll use Joan as our example. Here, you are a bank manager seeking to hire tellers. Joan arrives at your bank to interview for the position. She was referred by one of your existing tellers. However, a different teller whispers to you that he thinks Joan has an “illegal drug problem” and would pose a risk if hired. You proceed to interview Joan. Even though she meets your educational and experience requirements for the bank teller position, you decline to hire her. You are concerned about her “illegal drug problem.” In reality, Joan has never used illegal drugs. In this example, you have discriminated against Joan on the basis of a “perceived” disability.

Conclusion

In sum, discrimination may occur on the basis of a present, past, or perceived disability. To avoid disability-based discrimination in federally funded programs and activities, you should focus on the essential eligibility requirements for the service, aid, training, or benefit and whether a person meets those requirements regardless of any past, present, or perceived disability. Similarly, in the workplace, focus on the bona fide occupational requirements and essential job duties for a position or promotion. And, whether in federally funded programs or activities, or in the workplace, you must have policies and procedures in place to handle requests for accommodation and/or modification.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.