WIA Section 188 WIA Section 188 Disability Checklist Disability Checklist

TrainingTraining

Introduction to Element 5 –Compliance with Federal

Disability Nondiscrimination Law

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““Equal treatment” Equal treatment” vs. “equal opportunity”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

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““Nondiscrimination” vs.Nondiscrimination” vs.“Equal Opportunity”“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

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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

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General principles underlying General principles underlying disability nondiscrimination lawsdisability nondiscrimination laws

•Under these laws, One-Stop recipients: should focus on:

the individual customer’s/employee’s abilitiesthe 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

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What Federal laws apply?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

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What Federal laws apply? What Federal laws apply? (cont’d)(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)

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What Federal laws apply? What Federal laws apply? (cont’d)(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

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What Federal laws apply? What Federal laws apply? (cont’d)(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 32Applies 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”)

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““Handicapped” vs. Handicapped” vs. “Individual (or Person) with “Individual (or Person) with a Disability”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”

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Who’s Who’s protectedprotected from from discrimination discrimination under these under these laws?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: Category One: Is the individual a person Is the individual a person with an with an actual, currentactual, current disability?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:Term to Know:““Physical or Mental Physical or Mental Impairment”Impairment”

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

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Physical or Mental Impairment Physical or Mental Impairment (cont.)(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)

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Physical or Mental Impairment Physical or Mental Impairment (cont.)(cont.)

Various types of impairments:orthopedicvisualspeechhearing

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:Term to Know:““Major Life Activity”Major Life Activity”

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•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:Term to Know:““Substantial Limitation”Substantial Limitation”

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What constitutes What constitutes a “significant restriction”?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

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Must take Must take “mitigating “mitigating measures”measures” into considerationinto consideration

•Medication, devices (crutches, prostheses), anything else that mitigates (lessens) the effect of disability

•You must take both positive and negative effects into consideration

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Category Two: Category Two: Is the individual a person Is the individual a person with a with a record of arecord of a disability? 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: Category Three: Has the person been Has the person been regarded as having regarded as having a a disability?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

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Exceptions to the Definition Exceptions to the Definition of “Individual with a of “Individual with a Disability”Disability”• In all contexts:

Specific sexual / psychological disorders Current illegal use of drugs

• In employment context: Either:

Current alcohol abuse, orCurrently 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 Is the person with a disability “qualified”?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.)

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

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Group Exercise:Group Exercise:Is this person protected?Is this person protected?Purpose:Purpose:

To identify when an individual is a “qualified person with a disability”

Task: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?Any questions?