DEAF WATCH---- JULY - 1999 Greetings, BIG LOSS FOR ADA LAST MONTH! Next month's labor day message will be strong, emotional, and firey as last months losses is expected to have a profound impact on our future as a strong community. I see that Deaf organizations in California spend way to much of their time and resources defining and enforcing what's "politically correct" for the community instead of working to advance the community toward the promised land of fairness, equality, and justice. Richard Roehm ************************************************************* HISTORIC LEGISLATION PASSED TO HELP PEOPLE WITH DISABILITIES ON SSI/SSDI RETURN TO WORK WASHINGTON (Reuters) - The Senate Wednesday unanimously passed legislation that would extend federal health insurance to many disabled people who get jobs, lowering the main barrier to returning the disabled to the work force. ``This is the final great step in making sure the disabled community of our country has reached the final great goal of being reentered into full lives,'' Sen. James Jeffords, a Vermont Republican who co-sponsored the bipartisan bill, said. The bill would allow workers with disabilities who earn less than two and a half times the poverty level, or an annual income of about $20,000 for an individual, to keep Medicaid health insurance coverage. Those who earn more than that would have the change to buy into the comprehensive coverage. It also would let states, which administer the federal program, to offer coverage to people who have a severe medical impairment but lose eligibility for Social Security benefits because of an improvement in their health, and would ensure that Social Security beneficiaries would regain cash benefits if they stop working. Polls show that most disabled people want jobs but fewer than one-half of 1 percent of Americans receiving disability benefits ever return to work because they fear losing federal health benefits that cover services such as personal assistance, according to advocates for the disabled. Most employers' health plans do not offer the full coverage to meet needs of people with disabilities. ``It's ridiculous that we punish disabled persons who dare to take a job by penalizing them financially, by taking away their health insurance lifeline, and by placing these unfair obstacles in their path,'' Sen. Edward Kennedy, a Massachusetts Democrat who co-sponsored the bill, said. Despite overwhelming support for the measure, it stalled for months in a dispute over paying the estimated $800 million cost over five years for expanded coverage. Backers of the bill said it would generate net savings in the longer term. The Senate finally agreed to pass it on condition it would be paid for through cuts in entitlement programs to be specified later. Kennedy said he had assurances from President Clinton, who pushed the bill in a Capitol Hill appearance on Tuesday, that it would not be a problem finding resources. In the House, the Commerce Committee approved the bill, but the Ways and Means Committee must review it before it goes to the floor. While paying for the measure is the main snag in the House, Jeffords said with the bill's broad backing, ``I cannot conceive that we would not be able to come to an amicable agreement over the funding.'' It is up to individual states whether to adopt the new provisions but advocates for the disabled were expected to lobby states hard to participate. ************************************************************* SSI AND SSDI ENROLLMENT DOESNT PREVENT ONE FROM FILING ADA LAWSUITS The case was Cleveland v. Policy Management Systems Corp. "After suffering a stroke & losing her job, PETITIONER CLEVELAND SOUGHT & OBTAINED SOCIAL SECURITY DISABILITY INSURANCE (SSDI) BENEFITS, claiming that she was unable to work due to her disability. The week before her SSDI award, she filed suit under the Americans with Disabilities Act of 1990 (ADA), contending that her former employer, respondent Policy Management Systems Ckorporation, had discriminated against her on account of her disability. In granting Policy Management Systems summary judgment [dismissing the suit], the District Court concluded that Cleveland's claim that she was totally disabled for SSDI purposes estopped [kept] her from proving an essential element of her ADA claim, namely, that she could 'perform the essential functions' of her job, at least with 'reasonable...accommodation,' 42 U.S.C. sect.12111(8). The Fifth Circuit affirmed, holding that the application for or receipt of SSDI benefits creates a rebuttable presumption that a recipient is estopped from pursuing an ADA claim and that Cleveland failed to rebut the presumption. Held: 1. PURSUIT, AND RECEIPT, OF SSDI BENEFITS DOES NOT AUTOMATICALLY ESTOP A RECIPIENT FROM PURSUING AN ADA CLAIM OR ERECT A STRONG PRESUMPTION AGAINST THE RECIPIENT'S ADA SUCCESS. However, to survive a summary judgment motion, an ADA plaintiff cannot ignore her SSDI contention that she was too disabled to work, but must explain why that contention is consistent with her ADA claim that she can perform the essential functions of her job, at least with reasonable accommodation. [One explanation of some possibilities--For example, since the Social Security Administration (SSA) does not take into account the possibility of 'reasonable accommodation' in determining SSDI eligibility, an ADA plaintiff's claim that she can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that she could not perform her own job (or other jobs) without it.] 2. Here, the parties should have the opportunity in the trial court to present, or to contest, Cleveland's explanations for the discrepancy between her SSDI statements and her ADA claim, which include that the SSDI statements that she was totally disabled were made in a forum that does not consider the effect that reasonable workplace accommodation would have on her ability to work and that those statements were reliable at the time they were made." ************************************************************* TEXAS GOVERNOR'S COMMITTEE ON PEOPLE WITH DISABILITIES HONORS DEAF BASHERS WITH EMPLOYER OF THE YEAR STATUS Texas Governor's Committee on People with Disabilities Names Tandy / Radio Shack Large Employer of the Year FORT WORTH, Texas, June 9 /PRNewswire/ -- Tandy Corporation/RadioShack has been named Large Employer of the Year by the Texas Governor's Committee On People With Disabilities. The Governor's Committee award will be presented in October as part of National Disability Employment Awareness Month (NDEAM). "The Governor's Committee on People with Disabilities is pleased to recognize Tandy Corporation/RadioShack as the 1999 Large Employer of the Year," said Executive Director Pat Pound. "This Fort Worth-based company recruits and accommodates employees with disabilities to work in positions throughout the company." The nomination originated from a RadioShack customer in San Antonio who was impressed by the expertise and service he received from a sales associate with a disability. "I just wanted to be the one to nominate RadioShack. I believe a company that hires people with disabilities deserves recognition," he said. In making the final selection, committee judges noted that the depth of the company's involvement in special needs is evidenced by participation in various programs and the range of positions held by people with disabilities. The company's efforts to support employment opportunities and provide internal training were also cited. One judge said, "My hat's off to them and I wish that more companies would follow suit." "It's very gratifying to receive this kind of recognition for our efforts," said Leonard Roberts, chairman, president and CEO of Tandy Corporation/RadioShack. "We work with our employees to maximize their mental and physical capabilities to perform tasks. We focus on their abilities -- not their disabilities. Nothing holds them back. If they are able to do the job -- they are given the opportunity to do it." Employees with disabilities hold numerous positions throughout Tandy/RadioShack. In fact, the company actively works with city and state programs to recruit persons from the Texas Department of Mental Health and Mental Retardation, Goodwill Industries and the Fort Worth Mayor's Committee on Persons With Disabilities. "Our philosophy is that all employees should have fair and equal access to opportunity," said Roberts. "Perceived limitations have no place in a modern workforce." Retail employees have also been trained in selling a wide variety of specialty merchandise designed for individuals with special needs. Special needs items have been part of the RadioShack product mix for years and customers often comment on benefits derived from them. Tandy/RadioShack is a major contributor to the United Way Campaign and its many programs to help people with disabilities. Since 1996, combined corporate and employee contributions totaled $17 million. The company is a gold sponsor of the Barbara Jordan Awards Banquet hosted by the Fort Worth Mayor's Committee on Persons with Disabilities. And Tandy/RadioShack has also provided financial support and computer equipment to the Center for Computer Assistance to the Disabled. This new recognition comes on the heels of another Employer of the Year award conferred on Tandy/RadioShack by the Rotary Club of Fort Worth and the Fort Worth Star-Telegram. Earlier this month, Tandy/RadioShack was honored in the "over 100" employees category. That selection was based on programs and treatment of employees, work force diversity, growth in numbers of employees, economic impact on the community and community service. RadioShack, the retail operating format of Tandy Corporation (NYSE: TAN), is the nation's largest consumer electronics chain and one of the most trusted electronics retailers in the United States. With more than 7,000 stores and dealers, RadioShack sells more wireless telephones, telecommunications products and electronic parts and accessories than any other retailer. It is estimated that 94 percent of Americans live or work within five minutes of a RadioShack store or dealer. ************************************************************* FCC CONVENES A PUBLIC FORUM ON 711 ACCESS TO TELECOMMUNICATIONS RELAY SERVICES CC Docket No. 92-105 The FCC invites individuals with hearing or speech disabilities, state administrators, members of the telecommunications industry, and other members of the public to a forum to discuss implementing 711 access to telecommunications relay services ("TRS"). The goal of this forum will be to identify the steps that must be taken to implement 711 access to TRS, as well as any obstacles to implementation and how those obstacles can be resolved. As described below, the forum will be held on Wednesday, September 8, 1999. In 1997, the Commission issued a First Report and Order, which directed Bellcore to assign 711 on a nationwide basis for access to TRS, and a Further Notice of Proposed Rulemaking ("Further Notice"), which asked for comment on implementing 711 access to TRS. In the Further Notice, the Commission requested comment on the type of network needed to implement 711 access to TRS; the steps to implement this network; the costs involved and how they should be recovered; and what effect, if any, nationwide implementation of an N11 code for TRS access will have on CMRS providers and their networks. In addition, the Commission requested comment about the possibility of providing both voice and text TRS services through the same abbreviated N11 code, the proprietary nature of N11 codes, and on transferring the administration of N11 codes at the local level from the incumbent LECs to the North American Numbering Plan ("NANP) administrator. The Commission received 22 comments and 7 reply comments addressing these questions. Several commenters stated that additional information was needed before implementation of 711 access to TRS could be accomplished. To supplement and refresh the record, we will host a forum on September 8, 1999 at 1:00 - 4:00 in the Commission Meeting Room, Room TW-C305, at 445 12th St. S.W., Washington, D.C. 20554. At the forum, we will seek to identify the telephone needs of the TRS user community and discuss the issues presented to state administrators and carriers in implementing 711 access to TRS. The forum will focus on implementing a switched-based N11 system to access TRS and discuss the following: (1) the projected costs of implementing a switched-based 711 system to access TRS and how those costs should be recovered; (2) procedures to ensure that TRS centers provide to TRS users a choice of carriers that will carry their TRS traffic from the TRS center to the called party; (3) methods to educate the public about 711 access to TRS, including airing public service announcements; (4) implementation of 711 access to TRS on Commercial Mobile Radio Services ("CMRS") networks; and (5) the length of time in which states will be able to implement a switched-based 711 system to access TRS. In addition, we will address whether to transfer the administration of N11 codes at the local level from the incumbent LECs to the NANP administrator. Finally, at the forum, we will discuss the format that Maryland, in conjunction with Bell Atlantic, has chosen to provide 711 access to TRS. The forum will enable a full exchange of ideas on 711 access to TRS. We will select individuals with varying view points to make presentations. Those parties making oral presentations at the forum must submit written ex parte comments containing or summarizing their presentations prior to the meeting, in compliance with Section 1.1206 of the Commission's rules, 47 C.F.R. § 1.1206 (permit-but-disclose). While time may not allow all who wish to make oral presentations to do so, we encourage all to submit written ex parte comments on implementing 711 access to TRS by August 25, 1999, to Magalie Roman Salas, Secretary, 445 12th Street, S.W., TW-A325, Washington D.C. 20554. Ex parte comments should reference CC Docket No. 92-105. In addition, please send your submissions to Anna M. Gomez, Chief, Network Services Division, Common Carrier Bureau, 445 12th Street, S.W., #6-A320, Washington, DC 20554 and to Helene Schrier Nankin and David Ward at the same address. Both written and oral ex parte presentations will help us focus the agenda for the public forum and aid us in our decision-making process. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to . If using this method, please reference CC Docket No. 92-105 in the Proceeding Block. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, including "get form " in the body of the message. A sample form and directions will be sent in reply. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. For more information, to provide comments, or if parties would like to make an oral presentation at the forum, please contact Helene Schrier Nankin at (202) 418-1466 (voice) or hnankin@fcc.gov (e-mail); or David Ward at (202) 418-2336 (voice) or doward@fcc.gov (e-mail); or Ms. Nankin or Mr. Ward at (202) 418-0484 (TTY). Copies of materials distributed at this meeting can be purchased from the FCC's duplicating contractor, International Transcription Services, Inc. (ITS, Inc.) at (202) 857-3800 or fax (202) 857-3805 and 857-3184; or TTY (202) 293-8810. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio tape. ITS may be reached by e-mail: its_inc@ix.netcom.com. Their Internet address is http://www.itsi.com. This meeting can be viewed over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. For information on these services call (703) 993-3100. The audio portion of the meeting will be broadcast live on the Internet via the FCC's Internet audio broadcast page at . The meeting can also be heard via telephone, for a fee, from National Narrowcast Network, telephone (202) 966-2211 or fax (202) 966-1770. Audio and video tapes of this meeting can be purchased from Infocus, 341 Victory Drive, Herndon, VA 20170, telephone (703) 834-0100; fax number (703) 834-0111. Videotapes and the meeting will be close captioned. ************************************************************* NATIONAL COUNCIL ON DISABILITY RELEASES STATEMENT ON ADA RULINGS Toward an Inclusive Definition of Disability By Andrew J. Imparato General Counsel and Director of Policy National Council on Disability June 28, 1999 As an attorney who has spent my career working to promote policies and laws that expand opportunities for the 54 million Americans with disabilities, I am deeply concerned that the U.S. Supreme Court totally missed the mark last week in three cases construing the definition of “disability” in the Americans with Disabilities Act (ADA). The Supreme Court has left me and millions of other Americans with significant mental or physical impairments unprotected against egregious discrimination. The three cases involved people with poor uncorrected vision, monocular vision, and hypertension who were challenging discriminatory employer policies that unfairly excluded them based on their impairments. In deciding that these people fall outside the civil rights protections of ADA because their conditions are correctable, our highest court has left many people with treatable conditions like epilepsy, diabetes, and, in my case, bipolar disorder, outside of the law’s protection as well. Anyone who is functioning well with their disability is now at risk of losing civil rights protections as a result of the Supreme Court’s “miserly” construction, to use Justice Stevens’ characterization in his eloquent dissent. People with hidden disabilities often are unable to predict how an employer, coworker, friend, or colleague will react when they learn of the disability. In my case, I have had a wide range of experiences when I self-identify as a person with bipolar disorder or manic- depressive illness. Some people assume that it is something I had in the past and that I am “better.” Some worry that I might “go postal” and treat me with kid gloves. One interviewer raised an unfounded concern about whether I would know how to conduct myself appropriately at staff meetings. My own experience confirms for me that fears, myths, and stereotypes about people with disabilities are alive and well in the United States. Congress enacted ADA in 1990 to address this country’s sad history of excluding, paternalistic, degrading treatment of our citizens with disabilities. In its role of advisor to the President and the Congress on public policy issues affecting people with disabilities, my employer, the National Council on Disability (NCD), drafted ADA to address the many forms of discrimination that occur for people with a wide variety of disabilities. One of the core findings in ADA is that “disability is a natural part of the human experience.” This is a powerful statement. “Disability” should not be interpreted by the Supreme Court to exclude the many people whose conditions in their natural state result in significant impairments in functioning but who can function well with medication, assistive devices, or other mitigating measures. The people who would be left out nonetheless will continue to encounter bigotry and attitudinal barriers when we are turned down for jobs or are passed over for promotions. ADA is about equal opportunity, full participation, equal access. It is not about hand-outs or special privileges for a select few. An inclusive definition of disability means extending a good thing—fairness—to more people. A narrow definition of disability for ADA means that civil rights will be “doled out” to the “deserving few.” Under the decisions last week, people bringing ADA claims will need to emphasize the negative about their impairment and how it affects them, as if they were applying for disability retirement benefits. The evidence they submit to demonstrate their disability can and will be used against them when they seek to demonstrate their qualifications for the position they are seeking. This puts people in a Catch-22 situation that Congress never intended. When Congress defined disability in ADA, they intentionally used the inclusive, flexible definition that has been in place for many years under the Rehabilitation Act. The ADA definition includes not just people with physical or mental impairments that substantially limit at least one major life activity, but also people with a history of such impairments, and people who are regarded by others as having such impairments. If Congress wanted to limit coverage to people in wheelchairs, blind people, and deaf people, they certainly could have. Instead, Congress followed the advice of NCD and others and incorporated an inclusive definition of the protected class that would reach the many and varied ways that fears, myths, and stereotypes come into play to unfairly limit people based on their physical or mental conditions as opposed to their work experience and proven abilities. ADA should be read to protect anyone who is treated unfairly because of their physical or mental impairment. Because the Supreme Court decided otherwise, equal justice for all now rings hollow for millions of Americans with disabilities. # # # National Council on Disability 1331 F Street, NW, Suite 1050 Washington, DC 20004 202-272-2004 Mark S. Quigley Public Affairs Specialist National Council on Disability 1331 F Street, NW, Suite 1050 Washington, DC 20004 202-272-2004 Voice 202-272-2074 TTY 202-272-2022 Fax mquigley@ncd.gov http://www.ncd.gov ************************************************************* ************************************************************* RESOURCE OF THE MONTH: Southern California Association of the Deaf and Hard of Hearing A new organization set to debut in September 1999 that will help people with all ranges of hearing disabilities become informed, represented, and empowered. This website is a good resource itself for Southern Californians with hearing disabilities. http://www.angelfire.com/ca3/SCADHH/ ************************************************************* Disability Lawsuit List. Olmstead v. L.C. No. 98-536 AMERICANS WITH DISABILITIES ACT The United States Supreme Court held (Opinion by Ginsburg; dissent by Thomas) that Title IIA of the Americans with Disabilities Act (ADA), 42 USC s 12132, requires that States must not discriminate against the mentally disabled by placing them in state institutions when (1) community settings are available, (2) State treatment professionals have determined that community placement is appropriate, and (3) there is no opposition to the community placement by the affected individual. Respondents, L.C. and E.W. were placed in Georgia Regional Hospital-Atlanta due to their mental illness and retardation. L.C. was eventually placed in a residential community program. E.W., however, has remained in the state hospital because of a lack of state funds to transfer her to a residential community program. In construing the public services portion of the ADA, the Court reasoned that unnecessary institutional segregation constitutes discrimination per se, which cannot be justified by a lack of funding. - - - - - - - - - - - - - Sutton v. United Air Lines No. 97-1943 AMERICANS WITH DISABILITIES ACT The United States Supreme Court held 7-2 (opinion by O'Connor; dissent by Stevens, Breyer) that mitigating measures must be taken into account in judging whether an individual has a disability under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. This conclusion is derived from the language of the Act which requires an impairment "substantially limits" a major life activity. Justice O'Connor emphasized that the language is in the present indicative verb form, not potentially or hypothetically limited if corrective measures were not taken. Requiring that persons be judged in their uncorrected or unmitigated state runs counter to the clear language of the statute. The Court also held that inquiry whether a person has a disability required by the ADA must be done on a case by case basis. Petitioners applied for jobs as airline pilots with uncorrected vision of 20/200, but the airline required minimum uncorrected vision of 20/100. The Court found that petitioners did not properly allege that they have an impairment that "substantially limits" a major life activity because they are only limited for the position of global airline pilot. They are still afforded an opportunity to use their skills at other occupations such as a regional airline pilot or pilot instructor. - - - - - - - - - - - - - - - Murphy v. United Parcel Service No. 97-1992 AMERICANS WITH DISABILITIES ACT The United States Supreme Court held 7-2 (opinion by O'Connor; dissent by Stevens) that the determination whether petitioner's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. This case follows a similar fact pattern of Sutton v. United Airlines (above). Murphy was terminated from his employment from UPS because of his hypertension. In a medicated state, Murphy functions normally in everyday activities. The Court did not reach the question whether Murphy was an individual with a disability while medicated because he had not shown that was substantially limited from performing one or more major life activities. A person must be regarded as precluded from more than one particular job. Petitioner has only shown that he is precluded from performing a job as mechanic that also requires driving a specific type of commercial motor vehicle. Because he has failed to show he is unable to perform a class of jobs, he has not shown that he has an impairment that "substantially limits" one or more major life activity. - - - - - - - - - - - - - - - Albertsons v. Kirkingburg No. 98-591 AMERICANS WITH DISABILITIES ACT The United States Supreme Court held in a unanimous decision (opinion by Breyer) that an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation need not justify enforcing the regulation because its standard may be waived in an individual case. Kirkingburg drove a commercial truck for Albertsons. He has amblyopia, a condition that leaves him with 20/200 vision in one eye, and leaves him effectively with monocular vision. He was erroneously certified under Department of Transportation (DOT) standards. However, at a 1992 physical, his vision was correctly assessed, and his physician told him that he would have to receive a DOT waiver to continue driving commercially. Albertsons fired him, and refused to hire him back once he received a waiver from DOT. The standards to which Albertsons held Kirkinburg were set by the Federal Motor Carries Safety Regulations, 49 CFR s 391.11, and carry the force of law. The Court did not find it credible that Congress enacted the ADA with the understanding that employers who choose to respect federal standards would be burdened with defending those regulations in the face of an experimental waiver. ************************************************************* This month's recipients of the Deaf Watch Award. THE PEACH'S HOME PAGE http://www.geocities.com/EnchantedForest/Meadow/2421/Pg1-MAINPAGE.HTML Good site! ************************************************************* Letters from readers. If deaf people shall ever break the shackles of isolation, and free themselves forever of the pains, injustices, injuries and cruelties of isolation to pursue lives of abundance, fulfillment and fluent creativity, it'll be when deaf leadership fulfills its greatest responsibility and compels educators to start teaching deaf children how to read and write and become communicatively literate in the language of the land. This requires deaf leadership, itself, to become communicatively literate on a face-to-face basis with society in society's language, a human experience which deaf leadership never had. As it stands, deaf leadership does not understand or comprehend, and therefore cannot value the face-to-face communication experience with society in society's language because deaf leadership never had and never gave itself this most basic of human communication experiences. This human experience is one which hearing people take for granted every day of their lives, but which deaf people have never known. It is an experience deaf leadership can give itself immediately. The required "VOICE" communication technology can become immediately available to enable deaf leadership to learn what face-to-face communication in the language of the land is all about. Until deaf leadership fulfills its most important responsibility of making sure deaf children acquire literacy skills for life, deaf people will continue suffering the pains, cruelties, injuries and injustices of isolation. I hold deaf leadership responsible for perpetuating the suffering of deaf people. I hold deaf leadership responsible for the failure of deaf education to teach deaf children how to read and write. I hold deaf leadership accountable for refusing to act while deaf society remains in an environment of insistent pain and suffering which demands action. I hold deaf leadership responsible when every wherewithal is available to deaf leadership to change things for the better but deaf leadership does nothing. The culprit is not the educators, both deaf and hearing, who arrogantly walk all over deaf leadership. The culprit is deaf leadership which allows the educators to walk all over them. Morton Warnow ------------------------------------------------------------- - DEAF WATCH - Federal ID Number : 33-0765412 - Chief Editor/Editor : Richard Roehm - Orange County, California - Internet : Deaf@activist.com - Nesmuth@worldnet.att.net - ICQ #: 7389913 | Handle: SilentKnight - DEAF WATCH Http://www.deafwatch.com - Http://www.i-sphere.com/eyedeaf/deaf.htm - Visit Http://www.i-sphere.com/eyedeaf/nez.htm ---------------------------------------------------------- - Education is the best gift that lasts a lifetime! - Help someone subscribe to The Deaf Watch Newsletter ---------------------------------------------------------- - SUBSCRIPTION INFORMATION - To be added to the mailing list, send "SUBSCRIBE" - To be deleted from the mailing list send "DELETE" - to this address DEAF@ACTIVIST.COM - - Mailing lists are not sold/given to anyone. ------------------------------------------------------------- - Internet Sphere Interactive is a Deaf owned Internet service - provider. They host the Deaf Watch main site. For more - information, visit Http://www.i-sphere.com -------------------------------------------------------------