# Presentation: 464136

## How Job Corps Can Use (and Benefit From)the WIA Section 188 Disability Checklist

**Presented by:**
- Denise Sudell, Esq.
**Senior Policy Advisor, Disability Issues**
**Civil Rights Center**
**U.S. Department of Labor**

## The Checklist is a tooldesigned to:

- Help ensure non-discrimination 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

## 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

## URL for the Checklist

- _[http://www.dol.gov/oasam/programs/crc/WIASection188DisabilityChecklist.htm](http://www.dol.gov/oasam/programs/crc/WIASection188DisabilityChecklist.htm)__ _

## Laws Barring Disability-Based Discrimination

- Disability nondiscrimination laws are ***different*** from other civil rights laws
- Just letting people with disabilities participate in Job Corps 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

**Notes:**
by “people” I mean students AND EMPLOYEES 

## What Federal Laws Protect Job Corps Students / Employeeswith 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

## Overview of the Most RelevantChecklist Elements

-      Notice

- Complaints

- Corrective Actions

-      EO
-           Officer

- Disability Law

- Assurances

- Data Collection

- Monitoring

- Outreach

## 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

## Element 1:   Appointment of EO Officer

- Job Corps Centers must appoint an EO Officer, and
- Provide education and training for the EO Officer and his/her staff
- Publicize contact info for EO Officer, including TDD/TTY number
- Allocate sufficient staff and resources
- EO Officer may also serve as Disability Coordinator

**Notes:**
Section 504 requires the designation of a responsible employee to coordinate efforts to comply with that section – in the past, known as Section 504 Coordinator, but since other disability laws come into play

## 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

## “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

## 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

## 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 student’s file

## Specific requirementsfor 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 student’s file

## 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

## 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

## 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 – can’t make up your own tag lines

## What other info must be included?

- If materials / broadcasts / publications include a voice telephone number . . .
- they **must** include either:
- the Center’s / operator’s TDD/TTY number, or
- the number of the relay service the Center / operator uses

##     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 Corps’s commitment to admit students with disabilities

## Element 4:  Universal Access

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

## What does “Universal Access” mean in this context?

- People can’t have meaningful “access” to the Job Corps program . . .
- if they don’t know about the program
- So providing “universal access” means . . .
- doing OUTREACH to specific communities (including communities of people with disabilities)

## 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

## 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

## 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)

## 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

## Element 5.1:  General Prohibitions

- These are the “don’ts” – 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

**Notes:**
We can’t list every single action that may violate the law because every individual situation is different, and no one can foresee every possible situation that may arise – but we will provide a broad general description of the types of actions that are considered discriminatory.

## Examples of General Types of Discriminatory Actions

*Denying* a qualified person with a disability the *opportunity* to *participate in*, or *benefit from*, a program or activity, or Job Corps in general, because of his/her disability
*Failing to give* a qualified person with a disability an *equal opportunity* to get the same results or benefits from Job Corps, or a specific program or activity, that students without disabilities receive

**Notes:**
All of these actions are discriminatory if applied to groups of people with disabilities, as well as individual persons with disabilities.  For example, it is discriminatory and unlawful for a recipient to charge all people with disabilities, or all people with a particular disability, a fee for providing accommodations or communication aids. 

Again, please remember that these are only examples, and that there are many other actions that may violate Federal law because they discriminate against qualified people with disabilities.

## 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

## What is steering?

- Based ***solely*** on a student’s 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

## 5.2:  Reasonable Accommodations5.3:  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

## 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

## What are the differences between them?

- Modifications specifically apply to “policies, practices, and procedures” (the way things are done)
- Accommodations also apply in employment context (discussed under 5.8)

## What are the differences between them? (cont’d)

- 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

## What triggers your obligationto 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 – doesn’t 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*

## What triggers your obligation? (cont’d)

- 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

## 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

**Notes:**
We’ll talk in a minute about what we mean by “the responsible person”

## Where can you get helpin deciding what accommodation will be right?

- Job Accommodation Network
- FREE information and referral service (funded by USDOL’s ODEP)
- Can provide individualized suggestions for accommodation/modification solutions
- 800-526-7234 (V/TTY)
- http://www.jan.wvu.edu/

**Notes:**
JAN’s web page talks a lot about the ADA, but they are familiar with the One-Stop system and can provide solutions 

## 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

## Examples of accoms/mods (cont’d)

- 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

**Notes:**
no-beverages policy – many psychiatric medications cause dry mouth

## Undue hardship andfundamental 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

**Notes:**
“Other action” does NOT include referring student to another Center!

## 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

## 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?

##         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”

## 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

## 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

##      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)

## 5.6:  Programmatic Accessibility 5.7:  Architectural Accessibility

- Programmatic accessibility applies only where architectural accessibility isn’t required!
- The Access Board (800) 872.2253.  TDD/TTY:  (800) 993-2822.  E-mail:  _[info@access-board.gov](mailto:info@access-board.gov)__. _

## 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”

## New construction

- Facility must *fully meet*
-  legal standards for
*architectural accessibility*
- [required by 29 CFR 32.28(a)]

**Notes:**
We’ll talk about what those standards are in a little while

## Alteration or renovation

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

## Alteration or renovation (cont’d)

- 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)

**Notes:**
Again, we’ll talk about what those standards are in a few minutes

## 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

## 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

**Notes:**
UFAS – developed under Rehab Act -- first published in 1984

## Which standardsshould you use?

- DOL’s 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

## 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

**Notes:**
If a program or activity is available at only one site:
Either:
That site must be accessible, or
The program must be made available at an alternate accessible site or sites
True for every program or activity you provide

## Program accessibility (con’t)

- 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*

## 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 . . .

## Program accessibility:  Small recipients (cont’d)

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

## Examples of possible changes to provide program accessibility

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

## 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

## 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.

## 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.

## 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.

## Element 8:  Complaint processing

- Center’s / operator’s 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

##  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

##   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.

## 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/)

## How to contact me

*Postal Mail:*
- Denise Sudell, Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210
*Telephone:*
- 202-693-6554 (voice)
- 202-693-6515/16 (TTY/TDD)
*E-Mail:  *sudell.denise@dol.gov