WIA Section 188 Disability Checklist Training Introduction to Element 5 – Compliance with Federal Disability Nondiscrimination Law

5-1 “Equal treatment” vs. “equal opportunity” Disability nondiscrimination laws are different from other civil rights laws  Treating people with disabilities the same way as people without disabilities is not enough  Legal duty to work with people with disabilities to make sure they have an equal opportunity to benefit from the program, activity, or job

5-2 “Nondiscrimination” vs. “Equal Opportunity” Recipients’ obligations include both:  actions that are prohibited (things you must not do) because they are discriminatory, and  actions that are required (positive steps recipients must take) to level the playing field for people with disabilities – in other words, provide equal opportunity

5-3 The overarching principle of disability nondiscrimination law is that people with disabilities must be treated as individuals, not on the basis of assumptions and stereotypes about their disabilities

5-4 General principles underlying disability nondiscrimination laws Under these laws, One-Stop recipients:  should focus on: the individual customer’s/employee’s abilities the accommodations and auxiliary aids and services s/he needs in order to use those abilities  should not focus on: the limitations caused by the customer’s/employee’s disability

5-5 What Federal laws apply? Several different Federal disability nondiscrimination laws apply to each WIA recipient You need to know about all the laws that apply to each recipient

5-6 What Federal laws apply? (cont’d) Workforce Investment Act of 1998 (WIA), Section 188 (29 U.S.C. § 2938)  Implementing regulations: 29 CFR part 37  Bar disability-based discrimination and  Require equal opportunity for people with disabilities through: individualized treatment positive actions (e.g., reasonable accommodation)

5-7 What Federal laws apply? (cont’d) WIA Section 188 and regs (cont’d)  Apply to: All programs and activities: –offered by One-Stop partners –through One-Stop delivery system Doesn’t matter if program/activity is physically located in One-Stop Center

5-8 What Federal laws apply? (cont’d) Other applicable Federal laws:  Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794) Implementing regulations: 29 CFR part 32 Applies to all recipients of Federal financial assistance from DOL  The Americans with Disabilities Act of 1990, as amended (42 U.S.C. § et seq.) (known as “the ADA”)

5-9 “Handicapped” vs. “Individual (or Person) with a Disability” DOL’s Section 504 regulations (29 CFR part 32) have not yet been amended to replace the term “handicap” with “disability” However, the term “handicapped” is unacceptable and should not be used Use “people first” language (“person with a disability,” “people who are blind”) – not “the blind” or “the disabled”

5-10 Who’s 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

5-11 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?

neurological musculoskeletal special sense organs respiratory (including speech organs) Source: 29 CFR 37.4, definition of “disability,” paragraph (1)(i)(A) cardiovascular reproductive digestive genitourinary hemic and lymphatic skin endocrine Term to Know: “Physical or Mental Impairment” 5-12 Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

5-13 Physical or Mental Impairment (cont.) Any mental or psychological disorder, such as: mental retardation organic brain syndrome emotional or mental illness specific learning disabilities Source: 29 CFR 37.4, definition of “disability,” paragraph (1)(i)(B)

5-14 Physical or Mental Impairment (cont.)  Various types of impairments: orthopedic visual speech hearing  Cerebral palsy  Epilepsy  Muscular dystrophy  Multiple sclerosis Cancer Heart disease Diabetes Mental retardation Emotional illness Specific learning disabilities HIV tuberculosis Drug addiction Alcoholism Examples:

Supreme Court says it’s an activity “of central importance to daily life” Examples: Caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning “Working” is questionable Term to Know: “Major Life Activity” 5-15

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) Term to Know: “Substantial Limitation” 5-16

5-17 What constitutes a “significant restriction”? Look at whether/how much the impairment restricts:  the conditions under which the person can perform the activity  the manner (way) in which s/he can perform the activity  the duration (length of time) for which s/he can perform the activity

5-18 Must take “mitigating measures” into consideration Medication, devices (crutches, prostheses), anything else that mitigates (lessens) the effect of disability You must take both positive and negative effects into consideration

5-19 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)

5-20 Category Three: Has the person been regarded as having a disability? Has an impairment, but:  Impairment doesn’t substantially limit a major life activity, or  Impairs a major life activity because of other people’s attitudes Doesn’t have an impairment, but is treated as having one

5-21 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

5-22 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

For aid/benefits/services/training: 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 Don’t pay attention to barriers (architectural, transportation, etc.) 5-23 Term to Know: “Qualified Person with a Disability”

5-24 Group Exercise: Is this person protected? Purpose:  To identify when an individual is a “qualified person with a disability”Task:  You are a member of the EO monitoring team. You’ve been asked to review several cases in which a person has filed a complaint claiming that s/he is a person with a disability.  Read the cases. Decide whether each person is protected from discrimination under the principles we’ve been discussing (Federal and State).  Share your decision about each case with the class, and explain your reasoning.

Any questions?