Which Hat Are You Wearing? A Guide for Members of the Southeast DBTAC ADA Leadership Network Revised 2008 Guided by a cross-section of individuals with and without disabilities representing disability, business, and government entities, the Southeast DBTAC works with its ADA Leadership Network to expand and strengthen ADA capacity within the Southeast Region. Members of this network serve many roles professionally and personally. Because our mission is to facilitate voluntary compliance with the Americans with Disabilities Act of 1990 (ADA), these members do so in accordance with DBTAC policies. The Southeast DBTAC is funded by a federal grant. We do not monitor or enforce the law. We also do not engage in any type of lobbying or advocacy activities. Federal funds are divided between the regional office in Atlanta and its network of state and local affiliates in eight states—Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee—in order to carry out core functions essential for long-term voluntary ADA implementation. These core functions are information dissemination, technical assistance, training, public awareness, and capacity building. Affiliates are staffed by experienced disability advocates, who have both professional and personal experience with disability. As private individuals, people working for the DBTAC and its affiliates may take a variety of personal actions to encourage ADA implementation in their communities. However, for purposes of the DBTAC program, DBTAC Information Specialists and other DBTAC staff are required to provide unbiased –or advocacy-neutral—information about the ADA. As Sergeant Friday said on Dragnet, “Just the facts, ma’am; nothing but the facts.” When is it Personal Advocacy and when is it DBTAC Technical Assistance? When working for or representing the DBTAC in any way, Information Specialists must separate their advocacy from unbiased technical assistance. They must, in short, be able to wear two hats—the Personal Advocacy Hat and the DBTAC Technical Assistance Hat. Giving accurate and complete responses to ADA inquiries is important when helping others understand and comply with the ADA. And, as a DBTAC Affiliate, staff must remain neutral in their delivery of information and technical assistance activities. They strive to ensure that information and technical assistance encourages voluntary compliance with the ADA. They do not threaten, coerce, or otherwise intimidate callers into compliance. Does this mean that the DBTAC and its staff cannot take any actions to facilitate voluntary compliance? No. In fact, all of the core functions are intended to facilitate implementation of the ADA. It is essential, however, to realize that some methods are considered informational and educational, while others methods are considered confrontational and intrusive. Informational and educational activities include: * Answering questions from the general public * Providing targeted materials as reference * Conducting educational programs * Performing on-site visits to provide requested technical assistance * Promoting alternate dispute resolution (ADR) Activities that may be considered confrontational and intrusive include: * Civil disobedience * Protests and demonstrations * Boycotts * Peer pressure * Filing lawsuits * Face-to-face confrontations * Media blitzes * Phone calls to targeted entities Remember—your role when wearing your DBTAC Information and Technical Assistance Hat is to provide factual information—not to take advocacy actions. When you are providing unbiased technical assistance, you are not taking sides or suggesting that a person take any specific action. As a technical assistance provider, you are providing individuals with accurate and up to date information on the ADA that helps them make informed decisions. Remember, too, that the entities with responsibilities under Titles I, II and III of the ADA are just as much our primary customers as people with disabilities who are protected by the ADA. Providing Quality Services The ADA is about making decisions. Therefore, your responses should help others make informed decisions about the action steps they will take to comply with the ADA. Here are some guidelines to help you. * If you communicate properly that the ADA is civil rights legislation and benefits everyone, and if you direct people to the appropriate ADA materials, you will provide a great service. If, on the other hand, you answer ADA questions without also explaining the appropriate legislative context or make statements without a solid foundation of knowledge on your part, or if you let your personal agenda influence your response, you can create much misunderstanding and resentment of the ADA. * Don’t let yourself be drawn into situations where people are forcing you to make decisions for which they need to take responsibility. Please remember that you are not a judge or jury who can render a decision. Nor are you in a position to tell people what is "readily achievable" for them, or what the proper "reasonable accommodation" for an employee is. You also are not the one to decide what program modifications or barrier removal a public or private entity has to take. * Your greatest contribution to ADA implementation will be to respond to inquiries by providing answers that are directly supported by the written materials in your ADA Reference Library. Remember this maxim: "If you can’t point to it in print, don’t say it." Our experience at the Southeast DBTAC has been that many, many people are reluctant to make their own ADA decisions. You should continually reinforce to people that they must gain a basic knowledge of the ADA for themselves and then couple that knowledge with common sense and good faith efforts to comply with this civil rights legislation. Responding to ADA inquiries requires a highly specific thought process. It is very important to recognize that there is a certain sequence of questions you must ask in order to arrive at the correct ADA answer. You will find the following outline a great help when you are answering ADA questions, so please take some time and familiarize yourself with the key points. And remember, the Southeast DBTAC is only a phone call away! To help you think through a particular issue, you can always call our Technical Assistance Coordinator or submit a question to the affiliate listserv. 1. Verify that the ADA applies. Too often people are afraid to ask or challenge someone’s claim that they have an ADA issue and do not verify that the ADA actually applies. If an individual is involved, first establish that the person has a disability that meets the standard as defined under the ADA. Many situations arise where people say that they have a disability but their condition does not qualify as a disability for purposes of ADA protection. Not only should you know and be able to explain what qualifies as a disability under the ADA, but you should also let people know that in situations where a disability is not obvious, it is permissible to require verification of their disability status. If a business, employer or public entity is involved, you should first establish that the entity is covered and actually has obligations. For example, a private employer with fewer than 15 employees would not have to provide reasonable accommodation under the ADA (however, individual state laws may differ and have a lower threshold). On the other hand, a public employer, regardless of the number employees, would have to comply with the requirement. 2. Get the facts. Be sure you have all the facts. Ask the caller lots of questions. Be sure you understand as many of the circumstances surrounding the issue as possible. A common problem we all run into is listening and then responding to a problem -- only to find out later that the situation does not qualify under the ADA! Another related problem is that many people misuse the ADA to accomplish something for their personal agenda or to make unreasonable requests. This illegitimate use of the ADA makes the ADA less effective for those people with legitimate conditions for which the ADA was enacted. 3. Determine Which Title Applies After assuring that a situation does qualify for ADA protection, you need to determine which of the five Titles applies to the question. Determine whether the issue is an employment issue, a Title II or Title III issue, etc.—or is not an ADA issue at all. Remember in particular that there are critical differences in the ADA between the requirements for Title II and Tile III. The key in determining if an issue falls under Title II or Title III relates to the ownership of the entity that is alleged to have committed a discriminatory action against a person with a disability. Is the entity a private for profit or nonprofit business or corporation? If so, then it is a Title III issue. If the organization in question is a public school, city or county operation or receives significant federal financial assistance from of a state, city, or county, then it is a Title II issue. Don’t let funding sources obscure your analysis of ownership. Many private entities receive federal, state, or local governmental funding but that does NOT change their status as a Title III operation. 4. Gather Appropriate Materials and Resources Once you have identified the relevant ADA area of the question, pull out the appropriate reference materials and turn to that particular section. If you do not recall quickly where to find the answer, tell the caller you will research the question and call back. Always call back if you make such a promise! Give the answer you have found in the materials and give the answer without embellishing it. Most people simply want an answer, not a lecture. 5. Document your Calls And finally, each time you provide technical assistance, remember to complete a Contact Summary Report. This report is an invaluable tool for reconstructing issues you discussed and for completing your monthly reports. These reports are compiled annually be the Southeast DBTAC for inclusion in our Region’s activities. ___________ Note: The information contained in this document was written and edited by Shelley Kaplan, Director and Sally Weiss, Materials Development Specialist, of the DBTAC: Southeast ADA Information Center. The content was generated during a discussion, facilitated by Julia Sain, Director, Disability Rights & Resources of North Carolina during the Southeast DBTAC’s annual regional Affiliate meeting and revised in 2008 based on feedback received by participants enrolled in the eight-week moderated version of the DBTAC’s ADA Basic Building Blocks online course. The Southeast DBTAC is one of ten centers in the U.S. funded by NIDRR of the U.S. Department of Education, Grant # H133A060094. Which Hat Are You Wearing? Page 4 of 5 DBTAC: Southeast ADA Center (Southeast DBTAC) 1419 Mayson Street, Atlanta, GA 30324 Phone: (404) 541-9001 (v/tty) or (800) 949-4232 (v/tty) Fax: (404) 541-9002 Email: sedbtacproject@law.syr.edu Web: www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094