# Presentation: 659928

## Principles of Nondiscriminationand Equal Opportunity(and the Section 188 Disability Checklist)for Job Corps

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

## “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

**Notes:**
Exception being affirmative action laws

## “Equal treatment” vs.“equal opportunity” (cont’d)

- 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

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

## “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*

**Notes:**
When we get into disability-related requirements, we’ll also discuss the difference between “accessibility” and “reasonable accommodations” – both of which are equal opportunity requirements.

## The Checklist is a tooldesigned 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

## 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)__ _

## 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

**Notes:**
ADA also applies, but we’re not going to discuss it today

## 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

**Notes:**
Now remember:  we’re talking here about NONDISCRIMINATION obligations – obligations for EQUAL OPPORTUNITY (positive actions) are different

## 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?*

## 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”**

## 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”**

## 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 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
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.)

**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.

## 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

**Notes:**
If you think about it, this is a common-sense approach.  The positive actions recipients must take to provide equal opportunity are designed to help people with disabilities compete on an equal basis despite their substantially limiting impairments.  People who don’t have actual, current disabilities don’t have substantially limiting impairments, so they aren’t entitled to that “extra help” – at least not under these specific legal provisions. 

## 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 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

**Notes:**
Punctuation and all!  (Especially relevant for “political affiliation or belief”)

## 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.
General discriminatory actions:  

## 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

## 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

**Notes:**
We’ll talk more about accessibility later, under Elements 5.6 and 5.7

## 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)

## 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)__. _

**Notes:**
These two concepts are different methods of achieving the same goal -- accessibility

## 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)
- 800-877-8339 (Federal Information Relay Service
- for TTY/TDD)
*E-Mail:  *sudell.denise@dol.gov