# Presentation: 774010

## WIA Section 188 Disability Checklist Training

**Introduction to Element 5 –**
**Compliance with Federal Disability Nondiscrimination Law**

## “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

## “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*

## 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

## 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

**Notes:**
By “auxiliary aids and services” we mean communication aids.  You’ll learn more about these aids and services later in this training, when we discuss Element 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

**Notes:**
In California, AB 925 also applies – Josie deLeon will be telling you about that law shortly

## 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)*

## 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

## 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. § 12101 *et seq.*) (known as “the ADA”)

**Notes:**
We won’t focus on the ADA during this training, but there are a few things you should know about it:
ADA has three titles – only two are relevant to most One-Stop recipients
Title I of ADA
Contains the employment-related provisions
Prohibits discrimination in employment  against qualified individuals with disabilities (we’ll be talking shortly about what “qualified” means in this context)
Title II of ADA
Prohibits disability-based discrimination by State and local public entities, whether or not they receive federal financial assistance

Title III covers public accommodations.

## “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”

## 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

## 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)

- 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-**

- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

## 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)***

## 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

- 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-**

## 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)

- 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-**

## 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

## 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

**Notes:**
Another Supreme Court issue

## 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)

**Notes:**
This category was included in the law  partly to protect people  who have had illnesses or impairments in the past, but have recovered – such as cancer survivors

## 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

## 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

**Notes:**
Please note that the slide talks about “current illegal use of drugs,” not “current use of illegal drugs” – drugs that are legal (such as prescription drugs) may be used in an illegal way

What does it mean if a person falls into one of these exceptions?
Essentially, it means that the person isn’t protected by law from discrimination on these bases – if  they are excluded from (kept out of) the program, activity, or job, or subjected to other kinds of adverse treatment, because of one of the listed reasons, s/he has no legal basis to complain

Of course, this provision does not *require* a recipient to exclude these people, or give them other types of adverse treatment.  (However, State law may protect these people.)

## 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.)

- 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-**

**Term to Know:**
**“****Qualified Person with a Disability”**

**Notes:**
When we talk about “the essential functions of the specific job,” we mean in most cases a specific position with a specific employer.  Different employers may use the same terminology for positions with very different sets of essential functions.

The exception is if there is a particular function or job requirement  that is common to *every* person who holds the job.  For example, the position of “truck driver” requires an employee to be able to drive, and to meet the requirements for the applicable license.

## 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.

**Notes:**
Decide in advance how much time to allow for this exercise (we suggest a minimum of 40 minutes).  Ask participants to divide into small groups, distribute exercises, and tell the groups to read, discuss, and be prepared to report out.  (To save time, divide the cases among the groups and ask each group to read and discuss only the case(s) it has been assigned.)  Keep track of time:   tell participants when half the time is up, when they have a certain number of minutes left (such as five minutes), when they have one minute left, and when time is up.  Have each small group report out to the larger group.  Use the Trainer’s Version of the exercise to review each group’s answers, and make sure the group has touched on all of the required elements of the definition of “individual with a disability” or “qualified individual with a disability.”

## Any questions?