DEAF WORKERS OF ORANGE COUNTY PROJECT -- DEAF WORKERS WEEKLY BULLETIN -- January 2, 1999 Greetings, We wish you all an employable and prosperous 1999! After a short and somewhat restful hiatus, I once again return from holidays to bring you parts of our 1999 agenda: 1) Staunch and fiery support and advocacy of our rights as people with disabilities. Almost like Senator Wellstone's style of advocacy. 2) Active lobbying for an amendment to the Americans with Disabilities Act to plug in the numerous holes in law that have made it difficult to be enforceable. 3) Active fundraising for the Orange County Deaf Advocacy center by means of the possible commercialization of the Deaf Watch website. 5) Active support of new Deaf and disability organizations in southern California areas as well as other parts of the globe. 6) To start education programs for Orange County businesses to encourage to hire and fully accommodate employees and customers from the disability community through tax incentives. This year will be an extremely challenging year as I will soon be appointed to a number of official positions, as well as my full commitment to my wife and the new Deaf Center. I only ask you for your leadership and support in continuing this revolution that will empower all people with disabilities to live their fullest potential and to lead our community toward the promised land of fairness, equality, and justice. Richard Roehm ---- JOSEPH GAJEWSKI SETTLES CASE FOR $95,000 AGAINST NEW JERSEY TRANSIT FOR FAILURE TO COMPLETE HIRE In the case Gajewski v. New Jersey Transit, New Jersey Transit has recently paid $95,000 in damages, attorneys fees and costs to resolve the case filed against them for discrimination, under the Americans with Disabilities Act and the NJLAD. In July of 1995, Joseph Gajewski, who is hearing impaired, applied for and was approved for employment with New Jersey Transit, yet he was never given the opportunity to commence employment due to his disability. Mr. Gajewski passed an entrance examination and awaited a position to become available within New Jersey Transit. When one became available he was told that his application could not be found and another person was hired for the position. Afterwards, he interviewed for another position within the company and was told that he was hired pending the medical examination. He was then rejected after the medical examination solely because of his disability, as New Jersey Transit cited safety concerns. It was later determined that these safety concerns were unfounded and without merit. Mr. Gajewski however was never hired nor given an opportunity to work at New Jersey Transit. This discriminatory treatment is what brought about Mr. Gajewski?s decision to file a lawsuit against New Jersey Transit. Mr. Gajewski later began working for Schering Plough where he continues to work today. Mr. Gajewski and Ms. Smit are extremely pleased and excited with the settlement and hope to see major changes in employment companies across the country, in their policies and practices, as more and more of these cases are brought. Ms. Smit has other cases that are also pending for employment discrimination. It is her hope that employers will become more aware of the rights of the hearing impaired and will be more willing to accommodate these individuals in the future. ---- GINA BUSANIC SETTLES THIRD NEW JERSEY CASE AGAINST NEW JERSEY HOSPITAL FOR FAILURE TO PROVIDE INTERPRETERS In the third case of it's kind in New Jersey, a New Jersey hospital has entered into a public consent order agreeing to utilize certain protocol to ensure that reasonable accommodation will be provided to future deaf patients under the Americans with Disabilities Act and the Rehabilitation Act of 1973. This consent judgment is being used as a model in several similar cases throughout the country. This consent judgment has already been implemented at Bayonne Hospital, Jersey City Medical Center and will become utilized also at Raritan Bay Medical Center in the near future. On December 16, 1994 Gina Busanic who is deaf and communicates primarily in American Sign Language and Tommy Martinez went to Raritan Bay Medical Center excited about the pending birth of their first child. Unfortunately the hospital not only did not provide an interpreter to her during her pre-natal medical treatment but they also failed to advise her of Lamaze classes that would have been available to her. She did not find out about these classes until she was in her seventh month of pregnancy at which time it was already too late for her to sign up. She thus had no knowledge of how to go through childbirth. During the birth of her child Ms. Busanic was not provided with a qualified interpreter, despite federal and state law which requires that all hospitals provide reasonable accommodation, including qualified interpreters, to ensure that effective communication take place with all patients. After experiencing the terror, frustration and emotional anguish of receiving medical treatment without understanding much of what went on during the birth of her first child, Gina Busanic decided to sue the hospital so this would not happen to other deaf patients. She was represented in the case by Clara R. Smit, an attorney in East Brunswick who specializes in serving the deaf. After two and a half years of litigation the parties agreed to enter into a consent judgment wherein reasonable accommodations will now be obtained to ensure effective communication. The consent order will be filed with the Middlesex County Court. The consent order provides for signage to be posted throughout the hospital to alert both patients and staff alike to the hospital's responsibility to provide interpreters, closed captioning and TDD's to deaf patients who require same for effective communication. In addition the consent order mandates that the hospital follow several steps to ensure all possible efforts are made to obtain an interpreter whenever required throughout the day or night. Training and policy changes to implement the consent order which will become part of the hospital's administrative policy are also required as part of the order. The order will be entered as a judgment against the hospital; therefore failure to comply with the order by the hospital in the future will subject the hospital to court contempt charges. Gina Busanic and Ms. Smit are extremely pleased and excited with the settlement and hope to see major changes in New Jersey Hospitals and those across the country, in their policies and practices, as more and more of these cases are brought. Although the ADA and the Rehabilitation Act, specifically require that a hospital provide reasonable accommodation, such as interpreters to the deaf, it is only recently that deaf people have begun to feel empowered to start bringing these lawsuits. Communication difficulties in the past created extremely limited access to the legal community and the courts in general for deaf individuals. Thus, Clara R. Smit, who is fluent in American Sign Language and whose parents are deaf, is the first attorney in New Jersey to bring these suits. Ms. Smit has already settled two other cases, Bayonne Hospital and Jersey City Medical Center. She has also brought seven other cases against New Jersey hospitals, including St. Peter's, Jersey Shore Medical Center, St. Joseph's hospital, St. Barnabas, St. Michael's Medical Center, Passaic Beth Israel Hospital and Rahway Hospital, for failure to provide interpreters to deaf patients which are now pending. ---- COLLECTIVE AGREEMENT'S SENIORITY CLAUSE TRUMPS ADA Willis v. Pacific Maritime Association (9th Cir 12/11/98) http://laws.findlaw.com/9th/9716778.html Two disabled longshoremen sued an employer association and two unions claiming a failure to reasonably accommodate their disabilities. The District Court granted summary judgment for the defendants; the 9th Circuit affirmed. Both employees were denied placement on a list which would have given them priority for light duty assignments. One employee was denied transfer from one local union to another, which would have resulted in his doing less strenuous work. All of the denials were because these employees had insufficient seniority or because other employees had greater seniority. The seniority provisions were part of a collective agreement between the employer association and the unions. The court held that the employees' proposed accommodations were per se unreasonable under the ADA, and therefore the court would not use a balancing test. Although the ADA speaks to "reassignment to a vacant position" as a possible reasonable accommodation, the positions sought were not "vacant"; other employees with greater seniority had preference when a vacancy would occur in the future. The defendants were administering a bona fide seniority system, and that system is not discriminatory simply because it does not allow for accommodations. The court limited its decision to situations in which (1) there is a direct conflict between a proposed accommodation and collectively bargained seniority rights of other employees and (2) the accommodation request conflicts with a collective agreement's BONA FIDE seniority system. ---- SUPREME COURT SET TO HEAR APPEAL ON GROUNDBREAKING ADA CASE Olmstead v. L.C. No. 98-536 Court below: 138 F.3d 893 (11th Cir 04/08/98) At issue in this American with Disabilities Act (ADA) case is (1) whether the public services portion of the ADA compels states to provide treatment and habilitation for mentally disabled persons in community placement, when treatment is available in a state-run institution, and (2) if construed that way, whether it exceeds the enforcement power granted to Congress in Section 5 of the 14th Amendment. Patients in a state psychiatric hospital filed an action challenging their continued confinement in the hospital where persons with mental disabilities are treated in a segregated environment, violating Title II of the ADA, 42 USC ss 12131-12134 (1995), the Attorney General's Title II regulations, 28 CFR s 35.130 (1997), and the Due Process Clause of the Fourteenth Amendment. The court below held that: (1) the ADA and the Attorney General's integration regulation prohibit a state from confining disabled individuals in a state-run institution where that individual could be treated in a more integrated community setting; (2) confinement of patients in a state psychiatric hospital in a segregated environment violated the ADA; and (3) remand was appropriate on the issue of whether requiring a state to make additional expenditures would fundamentally alter the service it provided. (Deaf Watch Newsletter plans to release it's official position on this landmark case on January 3, 1999. Position letter will be available on website for reading after release.) ---- TRAIN KILLS DEAF JOGGER IN COLORADO CASTLE ROCK, Colo. (AP) -- An 82-year-old marathon runner jogging along a railroad track was killed by a train, which he couldn't hear because he was deaf. Charles McFerron, a veteran of a dozen marathons, was struck Monday while he was out on his daily training run. Police said the train's engineer spotted McFerron, locked the brakes and sounded the emergency horn and siren. But although traveling at only 43 mph, the train of four engines and 117 empty coal cars couldn't stop in time. McFerron, of Salem, Ore., was visiting niece Martha Peck in Castle Rock, about 40 miles south of Denver, during a six-month road trip that included marathons and family visits. ``He was never slow about doing anything,'' his son, Charles McFerron Jr., said from his home in Salem. ``When he did stuff, he went all the way. He wasn't your typical retiree in any way, shape or form.'' He said his father's deafness began shortly after he retired from a savings and loan at age 65. But he added: ``When he was a boy, his mother used to yell at him to stay away from railroad tracks.'' A spokesman for the Burlington Northern/Santa Fe Railroad, which owns the train and tracks, said the road bed and wooden ties absorb vibrations. ``When a train is coming, you can usually feel it bearing down on you if you have spent a lot of time around trains,'' spokesman Gus Melones said. But if someone was walking or jogging, ``it would be very difficult to sense a train coming.'' The railroad track runs in front of the home of McFerron's niece. ``We've lived by these tracks 2 1/2 years, so they're always something we're cautious of,'' said her husband, Bruce Peck. ``We told him to watch out for trains.'' McFerron was training for a marathon in Alabama. His wife was to join him there, and then they planned to travel to Gainesville, Fla., to visit relatives, followed by another family visit and marathon in Oklahoma. Despite his deafness, McFerron went caroling at a nursing home the night before his death. ``Don't try talking to me,'' he said at the nursing home. ``I'm deaf and can't hear you. But have a merry Christmas.'' AP-NY-12-16-98 1031EST ---- SKATCHEWAN COURT OF APPEAL QUASHES LATIMER EXEMPTION November 23, 1998 People with disabilities are expressing relief that the Saskatchewan Court of Appeal has quashed the constitutional exemption granted to Robert Latimer last year. “Today’s decision sends a strong message to the community that the criminal law will protect the lives of all Canadians,” stated Hugh Scher, Chairperson, CCD Human Rights Committee. “This decision is welcomed by our community because it demonstrates that the Canadian legal system does not weigh the severity of a child’s disability in its judgment of whether and how to judge the actions of her murderer,” stated Eric Norman, CCD Chairperson. The Saskatchewan Court of Appeal has sent an important message to other parents of children with disabilities. The decision upholds the deeply established legal tradition that parents do not enjoy an unlimited discretion with respect to the treatment of their children. The Court’s decision has upheld the state’s role in protecting vulnerable children. This is particularly important to maintain the safety of children with disabilities, who experience more abuse than nondisabled children. “Since Robert Latimer’s first trail a number of other children and adults with disabilities have been murdered,” stated Laurie Beachell, CCD National Coordinator. “It is imperative for the safety of people with disabilities that the deterrent force of the law remain.” From: CCD For more information contact: Hugh Scher: 416-515-9686 Laurie Beachell: 204-947-0303 Jim Derksen: 204-786-7937 (evenings) Catherine Frazee: 416-924-5502 Lucie Lemieux-Brassard: 514-943-3995 Gregor Wolbring: 403-220-5448 Paula Keirstead: 204-943-6099 Mel Graham: 204-947-0303 Pat Danforth: 306-537-2236 Robert Richards: 306-347-8423 ---- INACCESSIBLE HOTELS SETTLE DISABILITY PROBE WASHINGTON (AP) -- The Holiday Inn and Crowne Plaza hotel chains will guarantee reservations for rooms accessible to disabled customers and pay for mediation of their complaints under a groundbreaking agreement that settled a Justice Department investigation. Almost 2,000 hotels are covered by two agreements announced Wednesday by acting Assistant Attorney General Bill Lann Lee of the civil rights division and executives of Bass Hotels & Resorts, an Atlanta-based subsidiary of the British firm Bass PLC, which owns, operates or franchises the hotels. ``Travelers with disabilities will be able to make reservations for rooms, instead of having reservations about whether the room will be there,'' Lee told a news conference. Disabled people had complained that accessible rooms they had reserved in advance were not available when they got to the hotel. ``They were giving guarantees, but the guarantees weren't any good, which can be a disaster for a family vacation,'' said John Wodatch, chief of the disability rights section. Lee praised Bass for going beyond the requirements of the Americans with Disabilities Act to create ``the first nationwide mediation program of its kind. We hope it will serve as a model for all other businesses.'' The department is investigating three other hotel chains and 200 individual hotels based on complaints filed by disabled people under the act, Wodatch said. In addition to the two agreements with Bass, 19 franchise-holders who operate individual hotels in the chains signed separate agreements to modify their facilities so disabled people can use them more easily. Wodatch said 10 to 15 other individual hotels in the chain are expected to sign similar agreements within 45 days. ``Each of the settlements resolves complaints involving fundamental issues like getting in the door, using the bathroom and having access to the telephone,'' Lee said. Some hotels lacked accessible entrances, bathrooms with grab bars and maneuvering space for wheelchairs, or closed captioned televisions or telecommunication devices for the deaf, the department said. ``We want all guests to feel welcome and comfortable,'' said Bass chairman Thomas R. Oliver. Since 1993, the department has received 48 complaints about hotels in the Bass chains, Lee said, noting that they were concentrated among the hotels that are modifying facilities. Bass agreed to pay $75,000 to be divided among the 48 people who complained, Wodatch said. The company will spend an additional $75,000 over the next three years to set up a mediation program using 430 mediators from the Key Bridge Foundation who are trained in the disabilities act to resolve complaints about access. Explaining the significance of the mediation plan for Bass and any other companies that follow its example, Wodatch said, ``We hope mediation will allow the chain to deal with complaints independent of the federal government.'' Melanie Brandman, a Bass vice president, said if disputes cannot be resolved at a hotel or regional service center, then mediation will be available nationwide ``at no cost to the guest.'' Bass is conducting an inventory of accessible rooms and equipment in its hotels so its national, computerized reservation system will have complete data on what is available for reservation, Ms. Brandman said. The system, largest in the U.S. hotel industry, handles 25 million calls a year. The company also agreed to train its hotel employees in disability act requirements and keep an architect knowledgeable about the law on staff to assist franchise-holders in renovations. The agreements will not force an increase in room charges, Ms. Brandman said. The hotels covered by the agreements operate under the Holiday Inn, Holiday Inn Express, Crowne Plaza and Staybridge Suites names. AP-NY-12-16-98 1513EST ---- DEAF MAN FILES $1 MILLION LAWSUIT AND URGES BOYCOTT OF RADIO SHACK STORES A Call Against Radio Shack Deaf Man Urges Boycott After Bad Experience By Tom Jackman Almost totally deaf from birth, Michael Gannon was accustomed to communication troubles with clerks and cashiers when he went shopping. Still, nothing prepared him for the incident at the Radio Shack store near Tysons Corner. Gannon, who reads lips and speaks almost flawlessly, entered the store to buy batteries for his hearing aid. A misunderstanding, which began when Gannon was asked for his phone number and Zip code, escalated when the clerk didn't realize that Gannon couldn't hear him. Without warning, Gannon says, the clerk punched him in the face, tackled him and sent him crashing into a glass display case. The incident left Gannon with gashes, bruises and internal injuries. Radio Shack fired the clerk, who later was convicted of assault. But when Gannon asked the company for an apology and help with his medical bills, which he said total more than $10,000, Radio Shack refused. Gannon filed a $1 million lawsuit last year against Radio Shack's parent company, Tandy Corp. Now, he and his attorneys are trying to stir up support for a boycott of Radio Shack stores, saying that even though the company sells products for the deaf, it does not train employees to deal with deaf customers. The attack was emblematic of the problems faced by deaf people in everyday situations, Gannon said. "It's not just a misunderstanding between a deaf person and a clerk," he said. Tandy officials declined to speak about Gannon's lawsuit or the company's service toward deaf customers. In court filings, Tandy denies liability in Gannon's claims of assault and battery and negligence. The company's local lawyer, Ralph N. Boccarosse Jr., of Fairfax, said he is sympathetic to the obstacles deaf people face in stores. "It may very well be a realistic problem," he said. But Tandy does not train its employees to handle deaf customers, and "I don't know that there is anyone in the retail industry that does," Boccarosse said. Gannon, a 39-year-old physical trainer from Reston, said the trouble began shortly after he entered the Radio Shack store on Leesburg Pike on a Friday night in August 1995. His brother and a friend waited in the car outside. Gannon grabbed the batteries, then placed them on the counter with a credit card. He said the clerk, Donald M. Boseman, 43, asked him for his telephone number and Zip code, but Gannon refused because he had given it to the store before and was in a rush. Then Boseman questioned Gannon's signature. Gannon said he grew impatient and snatched the receipt back from Boseman. The clerk then turned his face away, and Gannon could see that he was muttering but couldn't tell what he was saying or asking. Finally, Boseman held out the bag of batteries, Gannon reached for it, and "before I knew it, I got punched in the face." Gannon said that he was dazed from the assault and that when he asked what had happened, Boseman stormed around the counter and drove him into a glass display case. Boseman testified in Fairfax County Circuit Court that he had arthritis and that it was painful when Gannon snatched the receipt from his hand. Boseman testified that when Gannon reached for the bag, "I felt threatened. I didn't know whether he was going to rob the store or whatever and I just tried to protect myself." Boseman could not be reached for comment and his attorney did not return telephone calls. A store employee testified that Boseman attacked Gannon without provocation. The judge found Boseman guilty of assault and sentenced him to 45 days in jail. Boseman appealed, was again found guilty, and was sentenced to 10 days in jail and a $1,000 fine. Gannon said he is a reluctant crusader. "I'm not thinking about being the next Ralph Nader," he said in an interview. He said, however, that he had never visited a store that showed sensitivity to deaf customers, although about 10 percent of the population is deaf or hard of hearing. Advocates for the deaf say most nonhearing people have stories of shopping tribulations, from humorous to horrible. Phoebe Hamill, president of the Potomac chapter of the Association of Late-Deafened Adults, recalled buying do-it-yourself plumbing tools, then returning to the store to ask for help. "The people remembered me as a problem and were reluctant to wait on me, knowing I had further questions," Hamill said. "I dashed out of the store and broke into tears and decided plumbing repairs were not for me. I'm white but I thought that this is how black people probably used to feel." Cheryl Heppner, executive director of the Northern Virginia Resource Center for Deaf and Hard of Hearing Persons, said that such situations are "a big blow to your self-respect, the fact that you can't communicate with somebody." She added, "If people go through that experience often enough, they get so they don't want to go outside the house." Accommodating deaf customers is easy, Heppner said. Clerks need only face the customer, so their lips can be read, or have a pad of paper and pen ready for the customer to use. Heppner said she has offered her services to the Fairfax County Chamber of Commerce to help train employees, but has had no takers. 12/12/98 -- The Washington Post ---- NAD ESTABLISHES CONSUMER ADVOCACY COMMITTEE The National Association of the Deaf has established a Consumer Advocacy committee to work on the following tasks for 1998-2000: 1) to gather and modify (or create) ADA materials that are for Deaf and hard of hearing consumers; 2) to help NAD set up a speakers/trainers bureau; and 3) to make recommendations, if requested by the NAD Board of Directors, about having a double income tax exemption for Deaf and hard of hearing people. The committee needs volunteers to work on these tasks. "Meetings" will be conducted via email or fax. Please contact Lisa J. Berke at email ljb9r@virginia.edu or TTY 804-295-8871 if you are interested in volunteering your time to serve on the Consumer Advocacy committee. If you don't really have the time to volunteer but have consumer ADA materials that you think are excellent for Deaf and hard of hearing consumers, please mail them to Lisa at her address listed below. You can also share your comments with Lisa about any of the three items listed above. Thanks! Lisa J. Berke, Chair NAD Consumer Advocacy Committee 104 Diamond Road Troy VA 22974-3248 ---- OHIO PUBLIC UTILITIES COMMISSION LAUNCHES RELAY SERVICE EDUCATION PROGRAM Don't Hang Up On Relay Service - (COLUMBUS) -- The Public Utilities Commission of Ohio is asking Ohioans to be patient and stay on the line when getting a call from the Ohio Relay Service. Deaf people... and those who have difficulty speaking... are sometimes unintentionally mistaken for telemarketers, so lots of people hang up on the service. P-U-C-O says that for the more than 40-thousand mostly deaf people in the state who use the service, just ordering a pizza can be difficult... because people don't listen to the phone call long enough to find out who is calling. Yahoo! News - Ohio - December 28, 1998 ---- NEZ'S CYBER MALL SUPPORTS THE DEAF COMMUNITY Nez's Cyber Mall is a fundraiser project that will help support the newly created Orange County Deaf Advocacy Center. This mall has been designed with accessibility in mind. All commissions generated by sales activity within this mall will be used to support the Orange County Deaf Advocacy Center. Nez's Cyber Mall can be found at: Http://www.i-sphere.com/eyedeaf/deafmall.htm ---------------------- Letters: Dear friends, I'm glad I can send you the news, that in Czech republic was officially recognized Czech Sign Language as the first language of the Deaf people and CSL was recognized as the equal language as a spoken Czech Language is. In the beginning of June 1998 the Czech Parliament passed a bill of Czech Sign Languare law. Czech Sign Language was officially recognized as a language of its own. On the preparation of this law participated the Czech association of the organization of the Deaf and hard of hearing people ASNEP. According to this law the Czech Deaf people have the right to use a sign language in a public services as the hearing people are using the spoken Czech language. The Deaf people have a right to get 24 hours sign language interpreter's service in a year for free. In this amount isn't included the interpreting in a comprehensive, secondary and high schools and Universities. There is not included the interpreting in a trial. According to Czech Sign Language law the Deaf children have the right to get education in a Czech Sign Language. In this law is written, that parents of the Deaf children have the right to attend the sign language courses for free. Czech Sign Language law open the way for a development of Czech Sign Language and has given to the Czech Deaf people opportunity for a better and easier participation in a public life. With the best regards, Romana Mazerova the chief editor of the magazine of the Deaf and Hard of Hearing people "Gong" ---------- Disability Rights Advocates (DRA), a non-profit law office which works to protect the civil rights of people with disabilities, is currently investigating a nationwide retail store for employment discrimination against people who are deaf or hearing impaired. We are looking for people who use American Sign Language who would be willing to assist us with our investigation as testers. We are willing to pay $100.00 for your assistance. If interested, please contact: Rowena Gargalicana Disability Rights Advocates e-mail: rowenag@dralegal.org 449 15th Street, Ste. 303 Oakland, CA 94131 ============================================================== DEAF WORKERS OF ORANGE COUNTY Orange County, California Richard Roehm President Internet : Deaf@activist.com Deaf_Workers_OC@usa.net Website Nesmuth@worldnet.att.net Http://www.i-sphere.com/eyedeaf/dwoc.htm =============================================================== Circulation Information Direct Email subscribers : 51 Indirect Email Subscribers : 33 Feel free to redistribute this newsletter in it's entirety and if you are planning to add a mailing list as a subscriber then let me know for my records. 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