Title: Principles of Nondiscrimination and Equal Opportunity and the Section 188 Disability Checklist for J
1Principles of Nondiscriminationand Equal
Opportunity(and the Section 188 Disability
Checklist)for Job Corps
- Presented by
- Greg Shaw
- Civil Rights Center
- U.S. Department of Labor
2Equal treatment vs.equal opportunity
- Most civil rights laws require equal treatment
treating everyone the same - Unequal treatment is usually based on unfair
stereotypes re what members of various groups
are capable of accomplishing
3Equal treatment vs.equal opportunity (contd)
- Disability nondiscrimination laws are different
from other civil rights laws - Just treating people with disabilities the same
as everyone else is not enough - Legal duty to work with people with disabilities
to make sure they have an equal opportunity to
benefit from the Job Corps program
4Nondiscrimination vs.equal opportunity
- Your obligations include both
- actions that are prohibited (things you must not
do) because they are discriminatory, and - actions that are required (positive steps you
must take) to level the playing field for people
with disabilities in other words, provide equal
opportunity
5The Checklist is a tooldesigned to
- Help ensure nondiscrimination and equal
opportunity for persons with disabilities in the
One-Stop system and in Job Corps - Provide practical tips and suggestions to help
you comply with Federal requirements
6What the Checklist includes
- Part I Description of legal requirements
- Part II (Appendix) Examples of suggested
policies, practices, procedures for complying
with the legal requirements
7URL for the Checklist
- http//www.dol.gov/oasam/programs/crc/WIASection18
8DisabilityChecklist.htm
8What Federal Laws Protect Job Corps Students /
Employeeswith Disabilities?
- Two relevant laws
- Section 504 of the Rehabilitation Act of 1973
- regs at 29 CFR part 32
- WIA Section 188
- regs at 29 CFR part 37
9Whos protected from discrimination under these
laws?
- Three categories of protected individuals
- An individual person who . . .
- has an actual, current disability
- has a record of a past disability
- has been regarded as having a disability
10Category One Is the individual a person with
an actual, current disability?
- Does the person have a physical or mental
impairment? - Does the impairment affect one or more of his/her
major life activities? - Is the effect a substantial limitation?
11Term to Know Major Life Activity
- Supreme Court says its an activity of central
importance to daily life - Examples Caring for ones self, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning - Working is questionable
12Term to Know Substantial Limitation
- Not all limitations are substantial enough to
constitute a disability! - In general, a substantial limitation either
- Prevents the person from performing an activity
that the average person can perform, or - Significantly restricts the person in performing
such an activity (as compared to the average
person)
13Category Two Is the individual a person with a
record of a disability?
- Past history of a genuine disability
- Misclassified as having a disability
- The record or misclassification has to meet the
three elements of an actual disability
(impairment, major life activity, substantial
limitation)
14Category Three Has the person been regarded as
having a disability?
- Has an impairment, but
- Impairment doesnt substantially limit a major
life activity, or - Impairs a major life activity because of other
peoples attitudes - Doesnt have an impairment, but is treated as
having one
15Exceptions to the Definition of Individual with
a Disability
- In all contexts
- Specific sexual / psychological disorders
- Current illegal use of drugs
- In employment context
- Either
- Current alcohol abuse, or
- Currently contagious disease or infection
- That
- Prevents the person from performing job duties,
or - Makes the person a direct threat to health /
safety
16Is the person with a disability qualified?
- To be protected from discrimination (and entitled
to equal opportunity / positive actions) under
Federal law, the person with a disability must be
qualified for the program, activity, or job
17Term to Know Qualified Person with a Disability
- For participation in Job Corps the person must
meet the essential eligibility requirements of
the program or activity - For employment s/he must be capable of
performing the essential functions of the
specific job - In either case, take reasonable accommodations /
modifications into account - Dont pay attention to barriers (architectural,
transportation, etc.)
18Who is entitled to equal opportunity/ positive
actions under these laws?
- Only people who have actual, current disabilities
- Others (with records or regarded as) are not
entitled to positive actions such as reasonable
accommodations
19Overview of the Most RelevantChecklist Elements
Outreach
Monitoring
Data Collection
EO Officer
Disability Law
Notice
Assurances
Corrective Actions
Complaints
20The Nine Elements
- Element 1 Designating an EO Officer
- Element 2 Notice and Communication
- Element 3 Assurances
- Element 4 Universal Access
- Element 5 Compliance with Disability
Nondiscrimination Law - Element 6 Data Collection
- Element 7 Monitoring
- Element 8 Complaint Processing
- Element 9 Corrective Actions/Sanctions
21Element 2 Notice and Communication
- Job Corps Centers and operators must provide
specific notice that they are covered by Federal
nondiscrimination law - Two types of notice
- Equal Opportunity is the Law
- Tag lines and other info
22Equal Opportunity is the Law(aka The Notice)
- Must use exact text provided in regulation (29
CFR 37.30), which - Explains that discrimination on specific listed
bases (including disability) is against the law - Explains where and when to file a discrimination
complaint
23Who should receive the Notice?
- Basically, everyone!
- The regulations contain a complete list (29 CFR
37.29) - Applicants and enrollees
- Applicants for employment and employees
- Unions and professional organizations
- Members of the public
24How must the Notice be distributed?
- Posted prominently
- Through internal memoranda / other communication
methods - In handbooks / manuals
- Made available to each student / made part of the
students file
25Specific requirementsfor people with disabilities
- Notice must be communicated as effectively as to
people without disabilities - If Notice provided in alternate formats to a
student with a disability, record must be
included in students file
26Tag lines and other information what materials
are covered?
- Must be included in any materials / publications
/ broadcasts that - Describe Job Corps programs or activities
- Explain requirements for Job Corps
27What materials are covered?
- Distributed by any method
- orally
- in writing
- electronically (including websites)
- Distributed to any person or organization
- staff, clients, the public at large
28What tag lines are required?
- Equal opportunity employer / program
- Auxiliary aids and services available upon
request to individuals with disabilities - Must use this exact text cant make up your own
tag lines
29What other info must be included?
- If materials / broadcasts / publications include
a voice telephone number . . . - they must include either
- the Centers / operators TDD/TTY number, or
- the number of the relay service the Center /
operator uses
30Notice and Communication(illustrative examples)
- Marketing and recruitment materials (including
photos and ad copy) - Mention students with disabilities as one of the
groups served - Show students across the full range of physical,
mental, cognitive, and sensory disabilities - Show students with disabilities who are from
various racial / ethnic groups - Indicate Job Corpss commitment to admit students
with disabilities
31Element 4 Universal Access
- This phrase has a specific meaning under the WIA
nondiscrimination regulations - Different from its meaning in the disability
community
32What does Universal Access mean in this context?
- People cant have meaningful access to the Job
Corps program . . . - if they dont know about the program
- So providing universal access means . . .
- doing OUTREACH to specific communities (including
communities of people with disabilities)
33Suggested ways of providing Universal Access
- Advertising in targeted media
- Sending notices about openings at a particular
Center / operator to schools and community
service groups that serve various populations
34More ways of providing Universal Access
- Collaborating with entities that have experience
working with persons with disabilities - Consulting with appropriate community
organizations about ways to improve outreach
35Element 5 Compliance with Federal Disability
Nondiscrimination Law
- This element includes both
- actions that are prohibited (things you must not
do), and - actions that are required (positive steps you
must take to level the playing field for people
with disabilities)
36Sections within Element 5
- 5.1 General Prohibitions
- 5.2 Reasonable Accommodations
- 5.3 Reasonable Modifications
- 5.4 Most Integrated Setting
- 5.5 Effective Communication
- 5.6 Programmatic Accessibility
- 5.7 Architectural Accessibility
- 5.8 Employment Practices
37Element 5.1 General Prohibitions
- These are the donts actions that are
considered discriminatory - Impossible to list every single action that may
violate the law - Important these actions are unlawful even if
the person(s) who take them do not intend to
discriminate
38Specific Examples of Discriminatory Actions
- Failing to provide appropriate accommodations
(such as alternate formats) for students taking
the TABE test - Stereotyping students with disabilities when
developing their Personal Career Development
Plans - Scheduling students with disabilities for
different career development classes and
activities than other students
39What is steering?
- Based solely on a students disability
- Assigning him or her to a particular vocational
training program - Directing him or her to a particular profession /
career path - Steering is illegal!
- Deciding on an individualized basis is
appropriate and required by law
405.2 Reasonable Accommodations5.3 Reasonable
Modifications
- Must be provided for all aspects of Job Corps
programs and activities - the enrollment and assessment processes
- personal counseling
- training of all types
- student government/leadership
- dormitory life and recreation / leisure time
activities
41What are reasonable accommodations /
modifications?
- Actions that must be taken when a particular
person with a disability seeks to apply for /
participate in - Job Corps in general
- a particular program or activity
42How are accommodations / modifications different
from accessibility?
- Access and accessibility refer to
- Generalized actions
- Actions that must be taken in advance
- Not tied to a particular person with a disability
43What are the differences between accommodations
and modifications?
- Modifications specifically apply to policies,
practices, and procedures (the way things are
done) - Accommodations also apply in employment context
(discussed under 5.8)
44What are the differences between them? (contd)
- Terminology
- Accommodations must be provided unless would
cause undue hardship - Modifications must be provided unless would
fundamentally alter the nature of the service,
program, or activity
45What triggers your obligationto accommodate or
modify?
- When you receive a request for help from/on
behalf of a qualified person (student, applicant,
or employee) with a disability - No magic words necessary doesnt need to have
mentioned disability or accommodation or
referred to the law - Just needs to have asked for an adjustment or
change related to a medical condition
46What triggers your obligation? (contd)
- Does the person seeking the accommodation /
modification have an actual, current disability? - You are allowed to make a reasonable request for
documentation of the disability / medical
condition
47What are you required to do in response to a
request?
- The responsible person must make an individual
determination about the request - Engaging in an interactive process with the
person asking for an accommodation / modification
48Where can you get helpin deciding what
accommodation will be right?
- Job Accommodation Network
- FREE information and referral service (funded by
USDOLs ODEP) - Can provide individualized suggestions for
accommodation/modification solutions - 800-526-7234 (V/TTY)
- http//www.jan.wvu.edu/
49Examples of accoms/mods
- Learning disabilities
- Allow a longer time period for test-taking
- Provide a helper to write down answers
- Allow frequent breaks
- Make exception to no-taping policy
50Examples of accoms/mods (contd)
- Psychiatric disabilities
- Structure the training program or job so the
person can avoid large group settings - Provide a quiet setting (or allow use of
headphones) so the person can concentrate - Make exception to no-beverages policy
- Provide more, or more regular, feedback
51Undue hardship andfundamental alteration
- Center must
- go through specific, formal process to decide
whether hardship / alteration would occur - if so, take other action that would allow the
student / applicant / employee with a disability
to participate to the fullest extent possible
525.4 Most Integrated Setting
- You must
- Administer programs and activities in the most
integrated setting possible - Not provide segregated aid, benefits, services,
or training to students with disabilities unless
necessary to provide services as effective as
those provided to others and - Let qualified students with disabilities
participate in integrated programs or activities,
even if lawful special programs / activities
exist
53Segregation is it lawful?
- Can you prove
- that segregation is necessary?
- that you provide alternate services that are as
effective as services for students without
disabilities? - that you gave students with disabilities the
option of participating in either the segregated
or regular program?
54Most integrated setting(some examples)
- You should make every effort to provide training
/ other assistance that leads to employment for
students with disabilities in a competitive,
integrated work environment - You should not automatically place students with
disabilities in / steer them to sheltered
workshops
555.5 Effective Communication
- Take steps to ensure that communications with
people with disabilities are as effective as
communications with others - Furnish appropriate auxiliary aids and services
where necessary to give a person with a
disability an equal opportunity to participate - Give primary consideration to the requests of the
person with a disability when determining the
appropriateness of a particular auxiliary aid or
service
56More communication requirements
- Where you communicate by voice telephone, you
must also use TDDs/TTYs or a relay service - You must make sure that people with disabilities
can find out - what accessible services and facilities are
available - where they are located
57Effective communication(some examples)
- Inform applicants, students, and employees of
your obligation to provide auxiliary aids and
services - Provide a list, in accessible formats, of all
currently available assistive technology devices
and services (such as closed captioned TV
monitors or ZoomText)
585.6 Programmatic Accessibility 5.7
Architectural Accessibility
- Programmatic accessibility applies only where
architectural accessibility isnt required! - The Access Board (800) 872.2253. TDD/TTY (800)
993-2822. E-mail info_at_access-board.gov.
59The hierarchy of obligations
- New construction
- Alteration or renovation
- Done by you, on your behalf, or for your use?
- Before or after you received Federal financial
assistance? - Existing facilities
60New construction
- Facility must fully meet
- legal standards for
- architectural accessibility
- required by 29 CFR 32.28(a)
61Alteration or renovation
- Was it done
- by you?
- on your behalf?
- for your use?
- If no, use existing facilities rules
62Alteration or renovation (contd)
- If yes, when was it/will it be done?
- Before you received Federal financial assistance
(became a contractor) use existing facilities
rules - After you received Federal financial assistance
altered/renovated part must comply with
architectural accessibility standards - 29 CFR 32.28(b)
63Existing facilities
- Not new construction
- Either
- Not altered or renovated by you, on your behalf,
or for your use or - Altered or renovated before you first received
Federal financial assistance - Must meet program accessibility requirements
64Federal standards for architectural accessibility
- Three different sets of Federal standards exist
- Uniform Federal Accessibility Standards (UFAS)
41 CFR 101-19.6 - Americans with Disabilities Act Accessibility
Guidelines (ADAAG) - ADA and ABA Accessibility Guidelines (published
in the Federal Register July 23, 2004) --
http//www.access-board.gov/ada-aba.htm
65Which standardsshould you use?
- DOLs Section 504 regs say UFAS
- But . . . regs also allow alternative standards
to be used if they will allow equivalent or
greater access - So . . . you may use either UFAS, ADAAG, or new
ADA-ABA Guidelines
66What is program accessibility?
- What it does mean
- Your program or activity must be accessible when
viewed in its entirety - Every aspect of your program or activity must be
accessible - Examples enrollment, assessment, training
courses, recreation / leisure time activities
67Program accessibility (cont)
- What it does not mean
- Making each of your existing facilities
accessible - Making every part of a facility accessible
- Making structural changes where other ways of
providing access are possible
68Program accessibility Exception for small
recipients
- If your Center . . .
- Has 15 or fewer employees at all times during the
grant year, and - Serves 15 or fewer students during the grant
year, and - Consults with one or more qualified people with
disabilities, and - Determines that it cannot provide program
accessibility without making significant
alterations to its existing facilities . . .
69Program accessibility Small recipients (contd)
- Then . . .
- you may reassign students with disabilities to
other Centers that have accessible facilities - 29 CFR 32.27(b)(3)
70Examples of possible changes to provide program
accessibility
- Redesigning equipment
- Moving classes or other services to accessible
locations - Assigning aides to assist students / employees
71Program accessibility two key points
- You must provide programs and activities in most
integrated setting possible for people with
disabilities - You may be required to alter or renovate your
facilities if there is no other possible way of
providing program accessibility
725.8 Employment Practices
- Prohibit discrimination on the basis of
disability - Provide reasonable accommodation
- Develop and use a regular schedule for reviewing
selection criteria to ensure they do not screen
out, or tend to screen out, qualified people with
disabilities and - Prohibit pre-employment and pre-selection
inquiries regarding disability.
73Employment Practices(some examples)
- Be aware of which disability-related inquiries
are legal and illegal. Unless an exception
applies, none of the following should be asked
during the application (pre-offer) process - Health or physical condition
- Medical history
- Previous workers compensation claims or
- Prior health insurance claims.
74Medical Information(special considerations)
- Medical and disability-related information about
employees and students must be kept separate from
non-medical information - Medical information must be securely stored in a
separate location from non-medical information
and - Medical information may include insurance
application forms, health certificates, results
from physical examinations, etc.
75Element 8 Complaint processing
- Centers / operators EO Officer must ensure that
the discrimination complaint procedures are
followed. - Procedures must provide the complainant with the
option to file initially either with Job Corps or
directly with the Civil Rights Center. - This includes disability-related complaints
76More on complaint procedures
- The procedures must include the following
required elements - Initial written acknowledgement of receipt
- Written statement of issues
- Process for fact-finding
- Alternative dispute resolution (ADR) and
- Written notice of final action (including notice
of right to file with CRC). - Process must be completed within 90 days
77Alternative dispute resolution
- Must be included as an option in the procedures.
- Cannot be required as an initial step before a
discrimination complaint is filed. - Must be chosen by the complainant after the
discrimination complaint is filed and - the Center has provided written acknowledgement
that complaint received and - the Center has provided a written statement of
issues that are accepted for attempted resolution.
78Where to get more information
- CRC website (http//www.dol.gov/oasam/programs/crc
/crcwelcome.htm) - Contains information such as
- the WIA Section 188 Disability Checklist
- PowerPoint presentations from National Training
Conference - ODEP website (http//www.dol.gov/odep/)
79Contacting CRC
- Postal Mail
- Denise Sudell, Civil Rights Center, U.S.
Department of Labor, 200 Constitution Ave. NW,
Washington, DC 20210 - Telephone
- 202-693-6554 (voice)
- 800-877-8339 (Federal Information Relay Service
- for TTY/TDD)
- E-Mail sudell.denise_at_dol.gov