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WIA Section 188

Disability Checklist
Training

Introduction to Element 5 –
Compliance with Federal
Disability Nondiscrimination Law
“Equal treatment”
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 5-2
“Nondiscrimination” vs.
“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 5-3
equal opportunity
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

5-4
General principles underlying
disability nondiscrimination laws
• Under these laws, One-Stop
recipients:
 should focus on:
the individual customer’s/employee’s
abilities
the 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 5-5
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

5-6
What Federal laws apply?
(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 5-7
What Federal laws apply?
(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
5-8
What Federal laws apply?
(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
32
Applies 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”) 5-9
“Handicapped” vs.
“Individual (or Person) with
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” 5-10
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
5-11
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?
5-12
Term to Know:
“Physical or Mental
Impairment”
Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more of the following body
systems:
• neurological • cardiovascular
• musculoskeletal • reproductive
• special sense organs • digestive
• respiratory (including • genitourinary
speech organs) • hemic and lymphatic
Source: 29 CFR 37.4, • skin
definition of • endocrine
“disability,”
paragraph (1)(i)(A)
5-13
Physical or Mental Impairment
(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)
5-14
Physical or Mental Impairment
(cont.)

Examples:
 Various types of • Cancer
impairments: • Heart disease
orthopedic • Diabetes
visual • Mental retardation
speech • Emotional illness
hearing • Specific learning
 Cerebral palsy disabilities
 Epilepsy • HIV
 Muscular • tuberculosis
dystrophy • Drug addiction
 Multiple sclerosis • Alcoholism
5-15
Term to Know:
“Major Life Activity”

• 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
5-16
Term to Know:
“Substantial Limitation”

• 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) 5-17
What constitutes
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

5-18
Must take “mitigating
measures”
into consideration
• Medication, devices (crutches,
prostheses), anything else that
mitigates (lessens) the effect of
disability
• You must take both positive and
negative effects into consideration

5-19
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)
5-20
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
5-21
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

5-22
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

5-23
Term to Know:
“Qualified Person with a
Disability”
• 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.) 5-24
Group Exercise:
Is this person protected?
Purpose:
 To identify when an individual is a “qualified
person with a disability”
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.
5-25
Any questions?