Disclaimer
The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.
Introduction
In this episode, I am continuing my revisited look at Title II of the Americans with Disabilities Act (Title II). As a reminder, Title II primarily covers state and local governments.
In this episode, I will be covering topics I haven’t covered before as a part of the Demand Our Access project. So, I will not be discussing effective communication and service animals. For information about those topics, please check out the episodes previously posted to the Demand Our Access website.
In this episode, I am also not covering topics that primarily tell state and local governments how to comply with Title II. The Roadmap section will tell you exactly what will be covered in this episode.
Comments and Questions
As always, I want to hear from you. To share your comments and questions about the material covered in this episode, or general thoughts about Demand Our Access, you can contact me by completing the contact form on the Demand Our Access website. If you would rather email, send your message to Jonathan@DemandOurAccess.com.
Citations
To make the material easier to follow, I will not provide citations to sections of law. The links to the relevant sections of law will be included when this episode is posted to the Demand Our Access website.
Roadmap
In this episode, I will cover the following topics:
- Discrimination prohibited
- Illegal use of drugs
- Retaliation and coercion
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Personal mobility devices and personal services
Continuing Our Look at Title II
Discrimination Prohibited
Even though the discrimination that is prohibited under Title II is largely in the law to tell state and local governments what they should be doing as a starting point for complying with Title II, it’s important for us (as disabled people) to understand what our local governments are supposed to be doing to include us.
The material in this section is a bit dense. So, I have tried to summarize it in a way that communicates what you should know while leaving out a lot of legal language.
Qualified Person with a Disability
The definition of a qualified person with a disability is found in the Definitions section of Title II. I’m including here, because the Discrimination Prohibited section repeatedly references qualified people with disabilities.
Defining a Qualified Person with a Disability
Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
I know I said I wouldn’t include a lot of legal language, and I generally will not. I included the exact definition of a qualified person with a disability because it’s a definable term that’s used throughout Title II.
All of that legal language can be simplified down to this:
A qualified person with a disability is a person with a disability who, with or without an accommodation or modification, can participate in the activity or program they wish to join.
If you want to swim and there are no physical limitations associated with your being able to swim, you are a qualified person with a disability for the purposes of taking swimming lessons. You are qualified to take swimming lessons even if you need an accommodation to take swimming lessons.
No Disability Exclusion
A state or local government cannot, based on our being disabled, prevent us from participating in its programs, nor may it deny us the benefits of its services. This is true even if the program in which we choose to participate or if the service we wish to benefit from is administered completely by a third party or jointly between our government and a third party.
If your local government contracts with a company to provide its water bills, the water bills they provide must be accessible. The government cannot say that they aren’t responsible for the inaccessible bill because they contracted with a company to process them.
4Types of Discrimination
In order to stay away from things that may be confusing, I’m not going to cover all the types of discrimination listed; instead, I’m going to focus on the ones I believe are most likely to be encountered by you in your dealings with your local government.
Afforded Opportunities
Local governments cannot provide us an aid or service that is not as effective in affording us an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided people without disabilities.
If your local government offers barbecuing lessons and the goal of the lessons is for each person enrolled in the lessons to independently barbecue a steak and vegetables by the end of the lessons, you (as a disabled person) cannot be told you will cook the steak on the stove. If you were told you would need to make your steak on the stove, your local government would be denying you the opportunity to obtain the same result and to reach the same level of achievement.
Maybe you would agree to use a gas grill. Maybe you would agree to use different cooking tools. But at the end of the lesson, you need to have the same opportunity to learn how to grill your steak and vegetables. That is the only way you could have the chance to obtain the same result and reach the same level of achievement offered to participants without disabilities.
The Provision of Different Aids and Services
Local governments cannot provide you with aids and services that are different from the aids and services provided program participants who are not disabled unless the provision of different aids and services is necessary to ensure the aids and services you are provided are accessible.
Returning to the example of the barbecuing lessons: it would be acceptable for a local government to provide you a talking meat thermometer instead of providing you a meat thermometer that doesn’t talk. The different thermometer is clearly necessary for you to tell the temperature of your meat.
Participation in Advisory Boards
Local governments must make accommodations to enable people with disabilities to participate in their advisory bodies and their public boards. This requirement is not limited to those bodies they may establish to get input from the disability community. It applies to all of their advisory bodies and public boards.
If you have an interest in joining your local government’s taskforce on the selection of a new public portal to process tax collections, your local government is required to ensure you can fully participate.
Most Integrated Setting
Local governments are to provide those of us with disabilities the opportunity to participate in the most integrated setting possible. This means they cannot establish a group for hikers with disabilities and force all disabled hikers to participate in that group. If you, as a person with a disability, wish to participate in hikes open to the general public, your local government is required to follow the provisions of Title II and accommodate you to the best of its ability and with certain limitations.
Separate Programs
Local governments can offer the disability community separate, segregated programming. A good example of this is wheelchair basketball. Since it would be very difficult to make traditional basketball games accessible to someone using a wheelchair, wheelchair basketball is a good accommodation for a local government to offer.
Completely Different Programming
Nothing in Title II prevents local governments from offering programming that is entirely created for those of us with disabilities.
For instance, a local government could establish a goalball program for those of us who are blind or low vision. This is true even though there is not a goalball program for the general community.
Choosing Facilities
Local governments cannot choose facilities for events that are not accessible to those of us with disabilities. Sadly, this is a part of Title II that is violated on a very regular basis.
Eligibility Criteria
Local governments cannot use eligibility criteria that screen out or tend to screen out those of us with disabilities unless the eligibility criteria being used is necessary for the provision of the service being offered.
Returning to our example of the barbecue lessons, the local government couldn’t say that eyesight is necessary for someone to safely barbecue. So, a requirement that people participating in the barbecue lessons need to be able to see would result in the local government establishing eligibility criteria for the barbecue lessons that would screen out anyone who is blind and potentially lots of people who are low vision. Since eyesight is not necessary to barbecue that eligibility requirement would be illegal.
No Surcharges
I’m sure I have said this before, but it’s worth repeating: local governments cannot charge those of us with disabilities for the cost of the accommodations we need. This rule applies to even a portion of the cost. The cost of our accommodations is completely the responsibility of the local government.
Legitimate Safety Requirements
Local governments may impose legitimate safety requirements. But those safety requirements must be based on actual risks. Mere speculation about those of us with disabilities and/or disabilities is not permitted. Neither is developing safety requirements that depend on stereotypes of those of us with disabilities and our disabilities.
If a local government has safety requirements related to a particular program, it must approach each case by using an individualized assessment. This means that even if someone else with the same disability as you cannot meet the safety requirements for a particular program, you must be given the chance to demonstrate you can individually meet those safety requirements.
Illegal Use of Drugs
Current use of illegal drugs is not protected. Local governments can discriminate against someone for actively being a drug user.
Local governments can discriminate against someone for previous drug use with the following exceptions:
- If you have successfully completed a supervised drug rehabilitation program
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If you have otherwise been successfully rehabilitated
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If you are currently participating in a drug rehabilitation program
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If they erroneously believe you are using illegal drugs
Rehabilitation Services
Local governments cannot deny rehabilitation services to someone currently using drugs if they are qualified for services. Drug rehabilitation services may deny coverage to someone who uses illegal drugs while in the program.
Drug Testing
Local governments can administer reasonable policies, including drug testing, to ensure someone is not using drugs while participating in a drug rehabilitation program.
Alcohol and Marijuana
I don’t want to get bogged down in this, but I do think that people should know alcoholism is considered a disability under the ADA.
Marijuana use, even used of medical marijuana, is not covered by the ADA.
Retaliation and Coercion
Local governments cannot discriminate against someone because they opposed a practice made unlawful under Title II. Nor can a local government discriminate against someone for filing a complaint under Title II, testifying in a proceeding related to a Title II violation, or otherwise assisting in the investigation of a local government’s violation(s) of Title II.
No one, public or private, shall coerce, intimidate, threaten, or interfere with any individual in any exercise or enjoyment of any activities, programs, and services offered by a local government. Nor may anyone coerce, intimidate, threaten, or interfere with an individual who is filing a charge of discrimination under Title II or otherwise assisting in the investigation of a charge under Title II.
All of this means you have a right to hold your local government accountable when it violates your rights. It also means that anyone can assist in the investigation of a complaint under Title II without facing retaliation and/or coercion from the local government.
Personal Devices and Services
Local governments do not have to provide people with disabilities personal mobility devices that would enable us to participate. Personal mobility devices are things, like wheelchairs, that we are supposed to have for ourselves.
Local governments also do not need to provide services that are strictly of a personal nature in order for us to participate. This means they don’t need to help us eat or use the bathroom in order for us to participate.
Let me be clear: when I say they don’t need to help us use the bathroom, I am strictly talking about the act of using the bathroom. They must help us find the bathroom. They don’t need to help us use the bathroom.
Conclusion
That completes our continued revisited look at Title II for this time. Thank you for listening. I very much appreciate your support.
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