Principles of Nondiscrimination and Equal Opportunity and the Section 188 Disability Checklist for J

1
Principles 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

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Equal 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

3
Equal 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

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Nondiscrimination 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

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The 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

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What the Checklist includes

• Part I Description of legal requirements
• Part II (Appendix) Examples of suggested
  policies, practices, procedures for complying
  with the legal requirements

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URL for the Checklist

• http//www.dol.gov/oasam/programs/crc/WIASection18
  8DisabilityChecklist.htm

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What 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

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Whos 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

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Category 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?

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Term 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

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Term 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)

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Category 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)

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Category 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

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Exceptions 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

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Is 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

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Term 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.)

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Who 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

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Overview of the Most RelevantChecklist Elements

Outreach
Monitoring
Data Collection
EO Officer
Disability Law
Notice
Assurances
Corrective Actions
Complaints
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The 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

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Element 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

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Equal 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

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Who 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

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How 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

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Specific 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

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Tag 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

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What 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

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What 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

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What 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

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Notice 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

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Element 4 Universal Access

• This phrase has a specific meaning under the WIA
  nondiscrimination regulations
• Different from its meaning in the disability
  community

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What 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)

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Suggested 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

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More 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

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Element 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)

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Sections 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

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Element 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

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Specific 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

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What 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

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5.2 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

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What 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

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How 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

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What 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)

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What 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

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What 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

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What 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

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What 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

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Where 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/

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Examples 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

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Examples 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

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Undue 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

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5.4 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

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Segregation 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?

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Most 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

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5.5 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

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More 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

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Effective 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)

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5.6 Programmatic Accessibility 5.7
Architectural Accessibility

• Programmatic accessibility applies only where
  architectural accessibility isnt required!
• The Access Board [phone]. TDD/TTY (800)
  993-2822. E-mail info_at_access-board.gov.

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The 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

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New construction

• Facility must fully meet
• legal standards for
• architectural accessibility
• required by 29 CFR 32.28(a)

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Alteration or renovation

• Was it done
• by you?
• on your behalf?
• for your use?
• If no, use existing facilities rules

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Alteration 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)

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Existing 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

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Federal 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

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Which 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

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What 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

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Program 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

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Program 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 . . .

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Program accessibility Small recipients (contd)

• Then . . .
• you may reassign students with disabilities to
  other Centers that have accessible facilities
• 29 CFR 32.27(b)(3)

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Examples of possible changes to provide program
accessibility

• Redesigning equipment
• Moving classes or other services to accessible
  locations
• Assigning aides to assist students / employees

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Program 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

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5.8 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.

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Employment 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.

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Medical 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.

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Element 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

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More 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

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Alternative 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.

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Where 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/)

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Contacting 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