Feature Story from Special to ReclaimCivilRights.org
Andrew J. Imparato, President and CEO, American Association of People with Disabilities
October 23, 2007
This essay is the first in a Long Road to Justice companion series focusing on concrete steps the Civil Rights Division should/can take to strengthen and revitalize each of its Sections. Each essay is written by a civil rights advocate who specializes in a section's enforcement priorities. Click here for an overview on the priorities of each section.
The Disability Rights activities of the Department of Justice have historically enjoyed bipartisan support under Attorneys General Richard Thornburgh and Janet Reno. In recent years, the Department's Civil Rights Division launched a successful "ADA Business Connection" series of forums designed to bring together business leaders and disability advocates to build a stronger case for accessibility and disability as a diversity issue for businesses. The disability community sees the Department of Justice as the guardian of the most important civil rights laws and the Attorney General of the United States as a conscience for the government and for the country when it comes to ensuring equality of opportunity and full participation for Americans with disabilities of all ages.
Civil Rights Training for People with Disabilities and Their Families
When the National Council on Disability conducted research examining federal enforcement of disability civil rights laws by multiple federal agencies in the late 1990s, they discovered an overwhelming theme – that people with disabilities and their family members are the ones who are actually enforcing most of our nation's disability rights laws on a daily basis. When parents know their children's rights under the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act, they are in the best position to make sure that those rights are honored and implemented in their children's daily lives. When disabled workers know their rights, they are the ones who can advocate for the appropriate accommodation to improve their productivity and job effectiveness. When passengers and customers know their rights, they hold accountable transit agencies, places of business, manufacturers, and service providers.
Recognizing the inherently limited role of the U.S. Department of Justice and other federal enforcement agencies, the Disability Rights Section should invest in a system of high quality training that can be delivered in multiple formats and multiple languages and in contract with a cadre of community-based trainers who can instruct an army of private attorneys general. This is the best way to ensure that the law has meaning in people's daily lives, and this is the most cost-effective use of federal enforcement resources. This training is particularly critical for young people with disabilities who are transitioning into adulthood and the work world, as well as for newly-disabled people who are adjusting to their new status and lifestyle.
Holding the Government Accountable
The United States government has a legal responsibility in all three branches to conduct its business in a manner that is accessible to all Americans. This means securing everything from physical access for people using mobility aids to communication access for people who use interpreters or captioning to written materials in alternate formats for people who need large print, Braille, or audio versions. It also means accessible electronic and information technology – including websites that receive federal funding or the public presence of government agencies on the internet. On a more basic level, it means fostering a culture in federal buildings that welcomes people with a wide range of disabilities and building a federal workforce that prioritizes basic training in how to accommodate and follow the lead of disabled customers and stakeholders. The Disability Rights Section and the Attorney General should play a larger role in 1) researching the extent to which the federal government has complied with accessibility requirements; 2) working with the disability community to establish priorities for improving access; and 3) developing and executing a plan to make the federal government a true model for the U.S. and the rest of the world.
Perhaps most importantly, the federal government needs to develop a plan to recruit, retain, and promote a workforce that truly reflects the scale and diversity of the working-age disability community in the U.S. According to the U.S. Equal Employment Opportunity Commission (EEOC), federal workers with targeted disabilities left the federal government between 1993 and 2003 at a rate seven times the general reduction in the federal workforce during the same period. The Disability Rights Section should work with the Office of Personnel Management, the EEOC, the Office of Management and Budget, and the White House to investigate what is behind this disturbing trend and to recommend concrete actions federal managers can take to restore the Federal government's historic leadership role as an employer of choice for people with significant disabilities. Expanding paid internships and fellowships for disabled students and job seekers is one important way to enhance the pipeline of qualified disabled workers into the federal workforce. Another valuable strategy would be to establish a mentoring and career development program to help federal workers with disabilities advance their careers.
The U.S. Department of Justice has oversight responsibility regarding federal agencies' procurement and deployment of accessible electronic and information technologies. It should be monitoring and reporting activities necessary to assure federal government compliance with the requirements of Section 508 of the Rehabilitation Act. While specific federal agency compliance with Section 508 is enforced through the complaint and procurement processes particular to each agency, the Justice Department is responsible for issuing periodic reports on compliance with these requirements across agencies generally (29 USC 794d(d)(2)). This reporting function, required biennially, has consistently fallen behind schedule and is well over four years past due. With regards to the need to monitor federal agency compliance with Section 508's Internet accessibility requirements, data collection from the General Services Administration is already complete and simply awaits evaluation.
The Department should muster resources to complete analysis and publication of these findings and undertake the biennial collections and reporting that people with disabilities deserve. Absent this reporting, the Department should explain to the public – formally and in great detail – why no reporting is necessary. The need for clarification from the Department on its Section 508 responsibilities is even more pressing given that the U.S. Access Board is currently "refreshing" the Section 508 standards. The Department's efforts would be most welcome in that venue.
Priorities for Enforcement
Enforcement of civil rights requirements is especially needed in the areas of access to higher education and access to voting, as widespread noncompliance with accessibility requirements persists in both these areas. There is also great need for stronger leadership on the issue of access to long-term services and supports in non-segregated settings for people with significant disabilities. Moreover, the Department is long overdue in applying its authority to enforce civil rights protections in IDEA for children with disabilities upon referral from the U.S. Department of Education.
One of the most significant rights that must be made available to all Americans is the right to vote and participate fully in the political process. Historically, the Disability Rights Section at the Department has taken the lead on accessibility of polling places and the Voting Rights Section has taken the lead on accessibility of election equipment. Neither Section has made it a priority to ensure that communications delivered by political candidates and materials produced for voters are delivered in formats that are fully accessible to people with sensory and reading disabilities. Moving forward, it is essential that the Department consolidate the voting issues under one Section, address a wider range of issues, and enforce federal civil rights laws more aggressively so that all people can vote privately and independently to exercise their rights of citizenship.
There are many opportunities for the Department to show more leadership in enforcing technology accessibility requirements. Consumers with speech and hearing disabilities report that some entities refuse to take phone calls that are made through the various forms of relay service. The obligation to accept relay calls by places of public accommodation is enforceable under Title III of the ADA, 42 U.S.C. §12181, et. seq. Title IV of the ADA requires that various types of relay services be made available to people with hearing and speech disabilities (see 47 U.S.C. §225). The civil rights of persons with hearing and speech disabilities are denied when entities hang up or refuse to take relay calls. DOJ should research the steps it can take to remedy this denial through public information campaigns in specific business sectors. This will encourage the return of calls via relay service, and promote investigation and enforcement of consumer complaints received in this area.
Most ADA regulations involving reasonable accommodation are limited to currently available assistive technologies and devices. When accessibility is tied to technologies that have or are becoming obsolete, reasonable accommodation is often late or deemed not applicable when a new technological infrastructure is installed or applications are bundled in business process reform. Put simply, innovation in technologies may not address the needs of employees or customers with disabilities. For instance, the shift in educational services, retail sales, medical services, and other services to the internet results in the internet versions of these activities not being specifically mentioned in the law. This leaves customers and employees with disabilities behind – a process that is accelerating and unlikely to lessen.
When policy fails to keep pace with technological advances in product and service delivery, people with disabilities are abandoned, left to use outdated technologies that no longer suit their environment and activities, or to witness innovations from which they cannot benefit. People with disabilities thus become victims of technology discrimination as the scope of "reasonable accommodation" may not extend to these innovative business processes and infrastructure. The Department of Justice should convene a working group to explore how reasonable accommodation of disability should be understood in light of new technologies.
