ADA Audio Conference

Good day, ladies and gentlemen, and welcome to the Great Lakes ADA Center’s Disability Law and Policy, Present And Future conference call. At this time all participants are in a listen-only mode. Later we will conduct a Question and Answer Session, and instructions will follow at that time. If anyone should require assistance during the conference call, please press star then zero on your touch tone telephone. I would now like to turn the conference over to Miss Shelly Kaplan, you may begin.

Thank you very much, Operator and good morning or good afternoon to everyone depending on where you are in the country. Thank you for your participation in today's very important topic, “Disability Law and Policy, Past, Present and Future.” I also want to extend a thank you to Robin and the Great Lakes DBTAC for allowing me, Shelley Kaplan, Director of the Southeast DBTAC, to serve as your moderator for today's session. As most of you know who have participated in the past on these monthly calls, this program is a collaborative of the national network of ten DBTACs, your regional ADA Centers also known as simply the DBTACs. The ADA Audio Conference series is offered monthly and covers a variety of topics related to the ADA.

Today's session as you know is entitled “Disability Law and Policy, Past, Present and Future.” And we are so privileged to be joined by our featured speaker, Dr. Peter Blanck from the Burton Blatt Centers on Innovation at the Syracuse University. I will introduce him in just a moment. I just wanted to let you know that individuals are joining us today using a variety of mediums including telephone, streaming audio on the internet, and realtime captioning. A written transcript of this session will be created, and edited, and posted to the ada-audio.org website along with the digital recording of the session, usually within about 10 business days following the conclusion of our program today. The program is archived with all of the handout materials that you hopefully downloaded in preparation for today's session.

The format for today will be as follows: Dr. Blanck will speak for about 45 minutes. At the conclusion of his presentation there will be an opportunity for everybody to ask questions. Depending on how this goes he might stop in the middle and make sure that what he is presenting is clear and ask for questions. So we will just take that as it goes and see which way we want to proceed, we’ll leave it open and a little bit flexible for today. When it comes time for asking questions the Operator will provide us with instructions. And depending on the number of questions, we may not be able to address all of your concerns today, but we certainly do if that becomes the case encourage you follow up with your question to your own regional ADA center at 1-800-949-4232.

So let me begin today’s session by introducing Dr. Peter Blanck. I have the privilege of calling Dr. Blanck my colleague, my mentor and most importantly my friend. The Southeast DBTAC is a project of his Center, and he serves as the Principal Investigator. So along with all the other roles he plays in my life, he is also my boss. He is also a university professor at Syracuse University, which is the highest ranking -- highest faculty rank granted to only eight prior individuals in the history of the University. He chairs the Burton Blatt Institute and he holds appointments at Syracuse University Colleges of Law, of Human Services and Health Professions, and of Arts and Sciences, the School of Education, and the Maxwell School of Citizenship and Public Affairs.

As many of you already know, Dr. Blanck has written extensively on the Americans with Disabilities Act and other related laws. He has received many grants, studied disability law and policy, only one of which being the Southeast DBTAC. He represented clients before the U.S. Supreme Court in ADA cases, and he has testified before Congress. He has provided extensive pro bono legal counsel regarding the recent Target case, and just last week he addressed the Knesset in Israel. So needless to say, his work has received national and international attention. He is also a board member of the National Organization on Disability, the Disability Rights Law Center, and the Disability Rights Advocates. He is a trustee of the National Institute for People with Disabilities Network, and you can read more about his rich and diverse background on not only the BBI website but his bio is also posted on the ada-audio.org website.

His recent articles are included on your resource sheet that was prepared for this session. So we do urge you after the call if you want to read more about the work that he has done, please to download some of his recent and past work including two case two articles he wrote for two law review journals.

So Peter, from the sunny south, I welcome you, from the snowy area of Syracuse, and I turn the program over to you.

Thank you both for that most generous introduction. It is a great privilege to work with the DBTAC organizations and to be associated with people like yourselves, Shelly, Robin, and so many others who have had such a tremendous impact on the lives of so many people, and I have been privileged to work with people like yourself, many people around the world now on issues that really go to basic civil rights, on issues that increasingly go to attitudinal discrimination and economic empowerment, access to facilities and social participation.

I was a young lawyer and social scientist, and I will never forget my first case I was involved with under the Americans with Disabilities Act soon after it came out. I was working with the EEOC and the local Protection and Advocacy as an expert, and the case involved a young man named Don Perkle. And Don, who is a man with mental retardation, intellectual disabilities, physical disabilities, is nonverbal as well, was working at a restaurant chain called Chuck E. Cheese, which is a well known restaurant, pizza place with the big mouse, Chucky. And I don't have little kids any more or grandkids yet, so that is the place you want to be if you have those on a Saturday. And Don was doing a great job, and all of this is in the trial transcript, and one day a regional manager showed up and basically said to the local manager, fire that guy, I don't like the way he looks. And as a measure of -- by the way, Chuck E. Cheese is not, I have no reason to think it was an otherwise bad organization or had any particular systemic malice against people with disabilities or not, this seemed like a rather foolish approach in this particular case, and to their credit the local staff said if you fire this guy, we are going to quit in protest.

For whatever reason the regional manager decide to do terminate Don, and the staff did quit in protest and eventually interestingly they became witnesses for the government and Protection and Advocacy. The interesting thing was all of this could have been avoided because Don was a man who was proud of his work. He was loved by his staff, and all he wanted to do was go to work like any other person and to be a taxpayer. And so there was a trial, and I testified, and others as well, and to make a long story short, in four or five days the jury came back, this was in Madison, Wisconsin, and found $70,000 or $80,000 in back pay for Don Perkle, and everybody was very happy, and Don was very happy, and his family, and so forth, and interestingly, it was kind of one of those almost once in a lifetime kind of events. The jury then came back and decided it was going to award $13 million in punitive damages to Don so that this sort of attitudinal discrimination would never occur again in their community.

Of course there are caps on what under the Americans with Disabilities Act on how much money actually a plaintiff can retain and so forth, but it was quite a statement because it was the largest jury verdict to that time under the Americans with Disabilities Act. Interestingly, there was a motion filed by the defense counsel subsequent to that, basically saying to the effect that how could a person with intellectual disabilities enjoy this much money and spend this much money and know the fruits of this case, and needless to say a motion was filed by the counsel and the government suggesting that he would enjoy every cent of that money, whatever was left after the ADA limitations, and the judge upheld the verdict. The reason why I mentioned that case initially is because it had such a lasting impact on me that I have seen over and over again, and that is the terrific attitudinal discrimination that drives so much of what we are seeing under the Americans with Disabilities Act.

The title of this talk is "Past, Present and Future", I think, and this sort of attitudinal discrimination is not new. Anybody who has a family member who is a person with a disability or is a person with a disability themselves, knows the historic longstanding attitude and discrimination that people with disabilities face. In my own work interestingly I have been very fortunate to work with the a Nobel laureate named Robert Fogel, who is an economist, and he has a big shop at the University of Chicago, that has been studying 50,000 Union Army veterans after the Civil War, basically from cradle to death. But I was particularly interested in conceptions of disabilities even before there were notions of disability rights and the evolution of disability law and policy which very much began after the Civil War which of course sadly there were millions of hurt veterans and disabled veterans and so forth.

But the interesting thing we find from those studies is that so many of the -- so much of the attitudinal discrimination that was found then is still true today. And so much of the medical model that was actually defined by the Civil War pension system, that is disability as an incapacity to perform manual labor which is very much like current Social Security type models and other sorts of workers' compensation type models are true today. After the Civil War, the Civil War pension scheme was supposedly open to all veterans with disabilities and yet in our empirical studies, just as we find today, those particularly penalized, they got much lower awards even controlling for disabilities severity, were people with mental disabilities, people from different ethnic origins, and particularly black Civil War veterans, many blacks, about 186,000 African-Americans fought in the Union side in the Civil War and there was terrific discrimination against them in the pension scheme.

The medical model of disability which many people on the call are familiar with, grew out of that time period. We have had many advances and declines sometimes in disability rights after great wars. As you know, after the First World War, we had the first National Vocational Rehabilitation Act which then led into Social Security, which then led into more modern conceptions of disability, but which were still very much based on medical conceptions of disability. And as this audience knows, with the passage of the Americans with Disabilities Act, there was an attempt to focus on the social implications of discrimination in a rights based model.

That is sometimes the social environment is just as disabling as the attitudes or the persons with disabilities themselves, and obviously if you look at the case Tennessee versus Lane, the example of the access to the courts which we heard the United States Supreme Court heard a couple of years ago, it was all about a person, for example, who uses a wheelchair getting into the courthouse to have his or her day in court. It was nothing particularly disabled about that individual in terms of his or her participation or ability to participate in the courtroom, it was just society's barriers were built up that prevented that.

Now, in my own work and Shelley please feel free to jump in or steer me in a particular direction, one of things that I tried to focus on with my colleagues, many colleagues all over the country is this attitudinal discrimination. After the Americans with Disabilities Act was passed, there were many people in the disability community themselves who felt very strongly and appropriately so, that this was purely a civil rights act and a pin head professor like myself who also happens to be a lawyer maybe empirical research is not the best thing to be doing. I mean this is a basic civil right and it doesn't matter what the evidence-based practices are with regards to the empirical nature.

Interestingly today we have come 180 degrees, and Shelley as you know everything is focus or we have a terrific focus on evidence-based practices which drive policy. One of the first studies I was fortunate to do was with Sears Roebuck after the Americans with Disabilities Act was passed, and that was studying thousands of workplace accommodations to test the simple assumption by many people, that we were trying to disprove that workplace accommodations were costly and that they inhibited business, they even put, some said that even put businesses out of work. Interestingly in our studies there, again, that was much as much an attitudinal fallacy, Shelley, as it was an empirical incorrect statement. And we found, not surprisingly, that many people with disabilities who were qualified not only could participate effectively in the workplace with workplace accommodations but of course added terrific value to the work place environment itself. I will never forget with the Sears report early on at the time Sears owned Allstate Insurance and for some reason they had a big actuarial department, and they had a lot of people with vision impairments, low vision, blind and so forth, and they were trying a test to basically at that time it was sophisticated, today it wouldn't be technologically sophisticated to pair an Alba Braille display board with voice activated so people could enter the actuarial data in a voice-activated way. And of course most people on the phone will know that this was a universal design solution as well as an accommodation, and interestingly not only do the people who the accommodation was geared to increase their productivity and make less mistakes and so forth, pretty soon everybody without visual impairments was crowding around them saying how come they are having less hand-sprain, carpal tunnel, making less errors, having greater productivity, and of course the lesson is that this accommodation led to a universal design approach which had benefits which far transcended the particular accommodation, had economic benefit to the business as well.

Now today's environment is still very challenging. There is a very -- there is some very fine lawyers I work with out in California named at a shop called Disability Rights Advocates. There is a lawyer there named Sid Wolinsky, some of you may know, and he basically says he has enough cases still under the ADA to last 100 years. And I guess in some ways it is true and it is both positive and perhaps a challenge. It is a positive in that people are asserting their rights more dramatically and of course it is a challenge in that people are still having to assert their rights positively, and there still is discrimination that goes on.

An interesting case that I am involved with now which Shelley alluded to as co-counsel pro bono is a case against Target stores. Again, many of these organizations interestingly, I have no bone to pick with them, they are otherwise probably exemplars in their communities but perhaps like anybody, like any human being or any entity, there may be a blind spot, at least that's the position we take, and their particular blind spot, sorry for the pun, is most felt by our client which is the National Federation for the Blind. And in this case against Target, it is basically about to what extent does the Americans with Disabilities Act cover cyber space? And it is a very interesting and important problem of course because when the ADA was passed, nobody had a sense of what this internet was about and what it was covered and so forth, but in the mid-1990s myself and a couple of others, Judy Brewer, and a few others testified before Congress on a very interesting focused question, at least it was interesting to a legal academic at the time, and that was the Americans with Disabilities Act under the Public Accommodations Provision, Chapter 3, Title III, says places of public accommodation are covered, and the question really, the legal question as well as the policy question was, does a place include cyber space?

Can the Internet be covered as a place of public accommodation under the Americans with Disabilities Act? Now, it was very hotly debated at the time, and there were very fine experts on either side talking about why it should or should not be covered both in terms of its feasibility and in terms of just whether or not it made sense from a statutory reading because it wasn't clearly laid out in the law, but fast forward a couple of years, and there were a number of cases as you know involving America Online, one case involving Southwest Airlines, and basically the courts had been very reluctant to conclude that the Americans with Disabilities Act covered cyber space absent a clear decision or absence some clear language from Congress of course in the writing of the law.

The Target case which is now a class action lawsuit both under California law and under Americans with Disabilities Act, as I say, I am pro bono, one of several co-counsels, the lead counsel from Baltimore, Dan Goldstein, Larry Paradis from Disability Rights Advocate, and other leading well Snyder Wallace law firm, all working together to try to address this particular question. And the interesting thing is that for the first time we got a ruling, a preliminary ruling from Judge Patel in the Federal District Court in California that if it can be shown that there is a nexus between the physical location of Target stores and the internet, then that internet function could be covered by the Americans with Disabilities Act.

So, for example, my mother who may order her medication or others on the web or shop on the web or go to a bridal registry or what have you, and then they go pick up those items from Target or have them delivered to them and so forth, where it can be shown that there is a intimate nexus, so-called nexus connection between those activities, this could be covered under the Americans with Disabilities Act which is a, it is a very important finding. And now of course the class has been defined by the Judge and the next question will be to go to trial and to try to prove that in fact that this nexus exists, and that is still a ways off.

The interesting thing to me also among other things is this whole area of cyber space is so blown out now, the digital divide is something we have talked about, we understand that people with disabilities as well as people who use English as a second language or people in other countries, that they do commerce over the web. They do telecommuting over the web. They do telemedicine over the web. They do distance learning and training over the web, so to exclude a large portion of our population from this medium in this day and age of course both seems silly from an economic point of view and also discriminatory under the Americans with Disabilities Act.

Now the next generation cases in this area which I think will be very interesting which hasn't been brought yet is of course the purely virtual site, that is the website that has no connection to a store and we know there are book sellers and other sorts of sellers around the country that really don't have any stores but have that virtual connection. Are those entities covered under the Americans with Disabilities Act? We have a little guidance perhaps in this area, it is a little bit like a law school exam, but it is fun to try to push the envelope here a little bit. There are probably many of you who are aware that there was a case decided under Title III of the ADA, a physical access case, against Norwegian Cruise Lines, and the Supreme Court several years ago, the United States Supreme Court several years ago decided importantly, that the Norwegian cruise line ship which was a company in another country and doing business in another country and so forth but when it docked in U.S. waters, it was either Houston or New Orleans, and they took on passengers from U.S. waters, that the Americans with Disabilities Act did apply and, for example, passengers coming on who used wheelchairs, the company had to provide accessible state rooms and access to other activities and so forth. It was a very important case in some ways from an international law point of view because it basically stated that when other countries’ companies come into our shores or into our waters, then the Americans with Disabilities Act would cover them.

The relevance to cyber space, of course, is perhaps the French wine maker in south of France or the British suit maker or cane maker or whatever you say in England who is selling virtually in U.S. “cyber waters” just like the Norwegian cruise case, then arguably you would think that the next line of cases might say that those individuals or those entities are covered by the Americans with Disabilities Act as well. And the reason, Shelley, please probe me if you want me to talk more about this, and I know we will have a lot of questions afterwards, but the reason I am mentioning and focusing on the technological accessibility at the length I am doing in particular is because of the terrific impact that technology and accessible technology will have for people with disabilities to participate in society both in employment as I have said, in access to civic and social activities, from voting, to taking cruise ships to whole sorts of social activities.

Peter, I think that is, it is a such an important topic, and it is growing certainly in the calls that we receive at the DBTAC Centers especially with now in the employment arena with so many companies going with e-recruiting.

Right.

You can walk into a store and there is a kiosk which is not accessible, and that is how you apply for a job. When you look to see what benefits employers have, it is all online, and as you mentioned, the training occurs online, so my point is just to say that the calls on this subject are beginning to significantly increase to the DBTAC Centers.

That is interesting. And you know, I know one of the things we talked about, Shelley and Robin, was the status of this ADA Restoration Act which is a bill that has been, is either circulating or has been proposed or, Shelley, you probably know the status of it, which basically would undo some of the Supreme Court decisions with regard to the definition of disability, for example, mitigating measures and so forth. I am sure it is probably somewhere in the Congress right now, it hasn't gone to any formal vote or conference or anything. But I am not sure, Shelley or may be Robin, you can correct me, I don't believe there was anything in there about web accessibility as covered under the Americans with Disabilities Act. Do you recall, Shelley?

Not to my knowledge. Robin, do you recall?

No, there isn't. It is strictly really addressing the issues of the definition of disability.

The definition of disability. Yeah. The only case that I am aware of, and I don't want to jump around too much, Robin, which we talked about of course is the Huber, the Wal-Mart case which the United States Supreme Court has granted cert, is going to hear arguments in this case and decide the case. And that is the Eighth Circuit case. Correct me again if I am wrong, Robin or Shelley, which basically said that for under a reassignment accommodation the person with the disability needs to be the most qualified individual for that particular job which many in the disability community and other readers of the ADA seem to think is not a correct reading of that provision. Did I get that right, Robin? Or Shelley?

Yes, you did.

Yes.

So that is the pending case and Target we have talked about. Do you want to take a couple of questions, Shelley?

Sure. We can stop. Operator, just stand by.

Take a couple of questions because I hate to just talk so long and not get a feel for what people are interested in.

Very good. Operator, if you would give the instructions for questions, that would be great.

Thank you. Ladies and gentlemen, if you have a question at this time, please press the number 1 key on your touch tone telephone. If your question has been answered and you wish to remove yourself from the queue, please press the pound key. Again, if you would like to ask a question, please press the number 1 key at this time.

Great. I also want to remind you that participants that are connected using streaming audio on the internet, you can submit your questions online by following the instructions that were provided to you when you registered.

Our first question, your line is open.

Hi, thank you. I am curious, are you familiar with the recently certified first ADA class action against UPS which they have appealed to the Third Circuit?

I know the UPS cases involving people who are hard of hearing out in the Ninth Circuit, but say a little bit more about this particular case.

This is very recently. It was certified as a class. They have appealed again. It was certified in Pennsylvania. They have appealed to the Third Circuit, and in as I understand it, it is the very first ADA class action certified in this country.

I think there have been other ADA certified classes before that. It might perhaps be in the Circuit. For example, in the Ninth Circuit several years ago there was a certified class action against Macy's and federated stores to require them to make their aisles wider so people who use wheelchairs can get in and out of the stores, and I believe that the plaintiffs prevailed in that case. But it is certainly, it is probably an important development. In this case in the Third Circuit what is the nature of the complaint?

Is that they, it is basically policy and practice discrimination, in other words, if anyone is injured out of work, they do not accommodate them at all. They just eliminate them, they terminate them, they don't even try to provide any reasonable accommodations. They across the board just say everybody is not a qualified person with a disability. The whole hinge again I guess that kicks over to hopeful the Restoration Act will change the language, is they say listen, you are not a qualified person with a disability, and we are not talking to you, you are done. As opposed to let us engage in an interactive dialog, so they don't take the next step. They find, their position is, if they determine they are not qualified, they don't have to continue any process of engaging in any conversation. That seems to be the crutch of the complaint as I understand it.

And Robin or Shelley, you can correct me if I am wrong, but my understanding was other Circuits have held, I think it is the Ninth Circuit, that there is a good faith obligation to engage in the so called interactive process.

Absolutely. You will see that they have been pretty consistent and strong on that, that in of itself it might not constitute an ADA violation but they are encouraging everybody to engage in the interactive process for obvious reasons, that the person with the disability typically knows what accommodation would be effective.

You know, I don't know about this case that you are referring to, but it is a very important problem. In our research on work place accommodations, for example, about 80%, maybe a little less, a little more, of all accommodations we studied were for injuries on the job; very few were for hiring, very few were for promotion, and other sorts of activities, benefits, and the ironic thing is that companies spend hundreds of millions of dollars in risk management and return to work and wellness programs and it always befuddled me, maybe the caller can help me, I am sorry I didn't get your name, why not invest in those individuals. It is so much cheaper to accommodate them and try to get them back into the work place than to go through the whole hiring process again and just keep turning people over and over.

I think a lot of it is the nature of the business. You know, you don't want somebody who is 50 years old that had a on the work injury that has some work restrictions, when you can hire someone else to do the same exact work for $9.50 and you are paying somebody you know $30 an hour. And it is I think it is really don't want to have to do that. They don't have to want to accommodate one, then they have to accommodate all. You have to be able to lift, push, pull up to 70 pounds, and across the board the job descriptions say that. It is pretty across the board there if you can't actually perform physically, you are done, you are not entitled to any kind of work. We can't accommodate you at all, and they won't accommodate. That is pretty much what I understand from that class.

It is a pretty extreme position. Go ahead Shelley.

Yes.

Great discussion. I know we have other callers the line. We can certainly talk about this one issue all day long. But we appreciate the comments and certainly the DBTACs will be following the development of the UPS case. So, tune into our websites at adata.org for updates as they become available.

For anybody interested in more information on the ADA Restoration Act, we encourage you to check out AAPD’s website because they have a page on the ADA Restoration Act and keep us updated on how it is moving and currently the headline is introduced with bipartisan support in both the House and the Senate. So tune in to the AAPD website for updates.

Shelley, I am sorry to interrupt, but just as a footnote also, it is very interesting to me just as a reader, that on the AAPD website there are also, there was a questionnaire with regard to disability issue that the candidates all responded to, and that is very interesting reading as well. Have you seen that?

Yes, yes, thank you for bringing it up, very good. Alright, Operator, next question, please.

Thank you. Again, ladies and gentlemen, if you have a question please press the number 1 key at this time.

Alright, do we have any question from the Captioner or online questions?

There are no questions coming from the phone line.

Okay.

Is there e-mail questions?

No, we don’t, not right now.

Okay.

All right.

Should we keep moving forward, then?

Yes, please go ahead.

So another area that we have been working at, at the Burton Blatt Institute, and I know Robin and many other DBTACs are working on this as well, is this whole idea of well you have these attitudes about disability, we just heard about the UPS case. What is it in a company's corporate culture, what is it in a corporate culture that facilitates or hinders basically the employment of people with disabilities?

I have been working in this regard with my colleagues, Doug Kruse and Lisa Schur, two stellar economists, labor economists, researchers from Rutgers studying thousands of individuals with disabilities at different companies. One study we studied 30,000 individuals with disabilities at different companies, but 30,000 of individuals and a subgroup of individuals with disabilities and the basic finding from the large empirical study was that we could predict with some certainty promotions, wages, advancement, of people with disabilities as a function of perceptions of the company whether it was fair, whether it was open minded, whether it was flexible and so forth. And that was very interesting to us because of course so much of what the DBTACs do is on the proactive policy side. Robin and Shelley, correct me if I am wrong, and that is to work constructively with businesses and government and so forth to try to identify constructively economically viable ways that employers can work with employees with disabilities and others.

This led to a research grant from ODEP, which is the Office of Disability and Employment Policy, which we are very proud about. Again, with a whole consortium of fine schools from around the country, from Cornell to Rutgers to University of West Virginia, the JAN folks down there, and we are basically conducting case studies of corporations, to try to understand this issue of corporate culture. But the exciting thing for me as a researcher, and I hope this will have practical impact Shelley, for Robin, yourself and others who you know disseminate this information is, we have been asked to come up with a valid and useful and practical protocol so that companies and advocates and DBTACs and others can benchmark themselves. That is how do you come up with a way in which people can measure the openness, the flexibility, and the advancement opportunities for people with disabilities in large organizations and we are just beginning to work on that issue as well.

This is part, Shelley, as you know of a larger shift in focus away from what has been called the employment labor supply side where basically you try to push people with disabilities with particular characteristics into jobs, to focusing on the demand side which is much more focused on what the companies can do in terms of the social model that we talked about earlier that make economic sense but to get people with disabilities into the work place. So that is accommodations, that is job matching, that is studying corporate culture, that is developing job descriptions that have universal design applications. And this work is funded by NIDRR which of course funds the DBTACs as well. And we are very excited about looking at those demand characteristics. Again which are to help break down these attitudinal barriers that often exclude people with disabilities from the work place. We are done with that chapter, let's see if we have some questions.

Great. I just wanted to make a comment that I know that we talked about this before, that employers seem to be on the whole even though they are interested and are actively hiring people with disabilities, very reluctant to open themselves up to an examination of their policies and practices. Whether it be a fear, what we hear is a fear that that maybe they are doing something wrong and they are going to get reported or that it will open their doors and they will have a flood of people with disabilities trying to apply for positions.

So how do we, what suggestions can you give us as we talk with employers, how to dispel the persistent myths in terms of what we know about the benefits of hiring people with disabilities and the cost of reasonable accommodation if they won't let us get in and really examine the policies? Any advice you can give us as we talk to employers?

Well, that is a very good question, a complicated question, and certainly there is no magic bullet for that. I can just tell you about my experience, and that a lot of it has to do with developing a basic trust with regard to many employers see this as an opportunity, often times it has to come from the CEO on down.

So for example, at Sears, Ed Brennan was the Chairman of the Board at the time, and why was he interested in this area? Because he had a granddaughter with cerebral palsy. Lee Scott, who is the chairman of Wal-Mart which recently has made some advances in this area, has a nephew who works in a Kansas City store with mental retardation or Down's syndrome, and he has been sensitized to these issues. And I guess on some levels it really is a personal commitment, it is not just about doing the right thing because these are still business men and women driving at these large corporations, but I think it is an understanding that people with disabilities, like anybody else, when they are qualified, and when they want to work and are capable of working, can contribute to the economic bottom line, and it is good for the company and it is good for the country.

Interestingly, for years there has been this debate over as you guys know whether or not the ADA has resulted in basically positive declines in the unemployment figures for people with disabilities. Some people argue that since the ADA was passed actually the unemployment figures for people with disabilities has increased. Of course you need to look at that data very carefully, and Doug Kruse again and some others when you look at, for example, the subgroup of individuals with severe disabilities who want to work and who are capable of working, however you define that for the moment, many would suggest that their employment rates have increased actually since the ADA was passed.

The problem is again as everybody on this phone knows, the ADA is just a piece of a larger disability policy framework, and if you don't have accessible transportation or if you don’t have adequate healthcare, or if you don't have a computer that is accessible or a web that is accessible, it is very difficult to get into employment or to get into public places or to vote or participate and so forth. So there is a lot of other systemic issues that have to change to of course enhance the social participation of people with disabilities. I do think that President Bush of course made strides, made good strides with regard to the New Freedom Initiative. And now there is an opportunity for the next President, whoever he or she is, to focus on perhaps continuing this legacy. The new President, for example, hopefully will sign or at least have on his or her desk the ADA Restoration Act. The new President, him or her, will make a decision that the U.S. should sign hopefully to the U.N. treaty, the new U.N. treaty on the U.N. Convention on People with Disabilities.

So there are a lot of opportunities for advancement, and just like the CEO must provide leadership of a company, I think there are terrific opportunities for the next administration to provide leadership as well, Shelley.

Very good. Thank you. Operator, we would like to open the lines up again for questions.

Thank you. Ladies and gentlemen, if you have a question at this time, please press the number 1 key on your touch tone telephone.

Shelley, this is Robin. I have a question from the online participants. It is specifically related to tax benefits and as a policy issue, what can be done or what could be done to modify or change the existing tax incentives for employers with related to reasonable accommodations, the specific comment here for this individual is that time and time again we hear from employers that the tax credit is not worth it, and they don't go through the process. How can we get it changed so that businesses identify it as something more valuable and actually be used for a reasonable accommodation?

That is a very important and good question. My colleagues, Michael Morris, Jeanette Hartwig and others are working on these questions of tax policy and incentives for employers, and implementing these incentives.

I think I recall when I was in Iowa, there was a study done by maybe Professor Sandler or some people in Iowa. They had just passed a small business tax credit for accommodations, the legislature had just passed that, and as the caller suggested, after a year or two maybe four employers took advantage of the tax credit. It was geared towards small employers. And you have to wonder, I think, as the caller correctly says, what is it about this policy that employers would just basically pass on this money? Is it cumbersome? Is it not worth the while? Are there not people with disabilities that they're hiring who it is applicable for? And I think there is a lot of work that can be done in the area, a lot of empirical and policy work as well, and I think that it is an under utilized aspect of disability policy at this point, particularly given there are so many people with disabilities living in poverty or just above the poverty level who with some minor accommodations and some benefits to the employers to make those could constructively and effectively be in the work place.

So it is a very good question, and I guess, Shelley, on our website we can refer the person to the Law Health Policy and Disability Center website, the Asset Accumulation and Tax Policy Grant, which has a lot of answers to these specific questions, and we can certainly make that available, that link.

Yeah. That is very good and I will look that up in a moment. I know that when the DBTACs do quite a bit of work in terms of increasing awareness about the tax benefits, we find that people simply are not aware of it. And perhaps that might be one of the reasons it is under-utilized.

So for those of you who are in the arena of providing information and you are a resource to your own local communities, make sure you in your outreach efforts, let people know about it. I know we just moved to a new location, and the landlord that was doing the renovation was about as disability savvy as any landlord I have ever run into, and yet he was unaware there actually were some tax benefits out there for the barrier removal that he undertook. So, do your part. I think you can all help do your part in increasing awareness about the program that exists while work is going on to see what other kinds of research can be done to improve the existing program. While I am looking up the website for the tax asset information, Operator, do we have any questions?

Yes. Our first question, your line is open.

Yes, could you please talk a little bit more about the demand side of employment? I understood that to be changing the resources that are available for people to do the work and secondly could you talk a little bit about the Walgreen’s initiative and its experience so far?

Yes. Those are very good questions, and on the demand side first, as I said, historically most research focused on the supply side, and this new project called Demand Side Employment for People with Disabilities is basically to look at several areas. One, I have mentioned work place accommodations. Second, I have mentioned corporate culture which is a component of that study as well.

There is a very fine team working out of the University of Illinois, who is a partner in our project who is focusing in this area, for example, on building a huge database of job descriptions to enhance the ability for employers to match jobs to people with disabilities. Now, this is not a new concept. I am sure companies like Manpower and others are working on these initiatives, but the whole focus is to really try to open up the employer's ability to attract and retain qualified workers.

The Walgreen’s initiative I have only heard about, I haven't studied directly and maybe the Caller can provide more information on that initiative, but I did hear that it is a very important initiative and Walgreen’s has made a new commitment to this area, maybe you can say a little more about it?

My line is still open. That is about all I know. I saw a news release about it six months ago and haven't seen anything since.

Shelley or Robin? Do you know anything about Walgreens?

Yes. Let me start, and I know Robin is doing a research project on this, but Walgreen’s, when they opened up a new distribution center, it actually in our region in Anderson, South Carolina, they worked very closely with our One Stop and the Employment Security Commission to really staff that new distribution center with people with disabilities.

Again, Peter, as you said, there is always that personal connection and the, I guess, the manager of this particular distribution center had I believe a child with a disability, so there became the sensitivity and the awareness. And I know Robin, you were doing a research project looking at the success of this disability initiative, so I am going to turn it over to you to describe that.

Sure. For those of you on the line who may or may not be that familiar with the Walgreen’s Project, the Walgreen’s has made obviously a commitment to hiring people with disabilities, and they are targeting as Shelley said the distribution centers, but it really started out with I think to look at how they do business and they started out trying back to our discussion of internet accessibility, Walgreen’s like many companies and corporations recruit online, and so one of the issues was that they had to look at their website and recruitment process to look at how they could gear that process to people with disabilities and ensure that that process was fully accessible.

So if you visit their website in their Career Section, you will see a lot of things on the website in the hiring process that you don't see typically in other corporate entities in this area. So that when you, you will find video accompanying the written information, some audio that you can have it speak to you as well as, be read to you and such, so that the simplified language and information so that the overall findings are with the internet that when you simplify information it is better for everybody who uses the information as far as even navigation and things of that nature.

So as Shelley said, they started with the recruitment process, but that also included a significant investment into their architectural environment as well because they had to look at the distribution center and how it was structured architecturally to make some changes in retooling of their machinery and their workstations and things of that nature to be able to accommodate a broad array of people with disabilities and looking at the jobs and the skills and break down the skills of those jobs. They are now moving into also expanding the hiring initiative to their local stores. That is a little harder because local store hiring is governed by the local management of that store where the distribution centers, there aren't as many of them obviously and you can target them more specifically or directly in that hiring and recruitment process. But the goal of Walgreen’s is to really try out different methods and means of recruitment, education of their staff which obviously becomes part of it for sensitivity and things of that nature.

But really identify those jobs and those areas within the company where people with disabilities would be successful, and this is from management on down. They are not strictly just hiring people with disabilities in their manual labor positions and things, but they actually are targeting and looking to hire people in their management and middle management positions as well. So one of the things that we are doing is looking at some of their programs and looking at it from a best practices perspective what, can other companies potentially learn from the things that Walgreen’s has done.

Robin, this is Peter. That is very interesting. What was the impetus really for them to do this?

There is actually a story about it on their website. Shelley is right in that it is very personal. The actual Vice President of Walgreen’s for distribution who manages the distribution centers has a child with a disability who was in going through middle school, high school arena, and recognizing that the career options and the opportunities were limited, that there were a lot of barriers out there for employment, and so he went to the corporate management above him and at the same level as him and said that Walgreen’s is a huge employer and could do something about this problem. So, it really was his brain child and has been his impetus and he has really been able to influence management very high up and all the way through Walgreen’s to take this on as a good thing and good business sense.

Very interesting.

Great. Great. Well, one of the roles of the DBTAC is to, as we find promising practices is to get these out to the public, so please stay tuned, check the adata.org website often and as soon as information becomes available, it will be posted for your viewing.

While my colleagues were talking I urge also everybody if you are interested in the Asset and Tax Policy Project that Peter referred to on your resource sheet is the url for the Burton Blatt Institute website, the bbi.syr.edu website. And if you will select on the left navigation “Projects” and scroll down, you will find information with additional links to the Asset Accumulation and Tax Policy Project which again is also funded by NIDRR that funds the DBTACs. Very interesting information, and then so I urge you to check that one out.

Operator, are there any other questions in the queue at the moment.

Yes, ma’am. Our next question, your line is open.

Thank you. I am calling from Minnesota. I was also interested in the demand side discussion that you just had, and I was wondering if you could say anything about when that protocol for corporations to self-measure their openness might be available for review or use? And also where can I read more about some of the things you described, the universal design applications, the corporate culture, the work accommodations, those kinds of things?

With regard to the second question, if you look at the Burton Blatt Institute website which is http://bbi for Burton Blatt Institute dot syr for Syracuse dot edu (http://bbi.syr.edu), all our publications and that information is available free, and delighted to send you more stuff. It should all be in accessible formats if we practice what we preach.

With regard to the ODEP project and the NIDRR related project on employment demand, I mean on the corporate culture and protocol, so the way this project is working is from a social science point of view and a practical point of view, obviously we want to have a protocol that is easily administered, and we know tests, what we hope we are testing, that is the validity of the scale. So we are in the process now, this is a several-year project, and we have really just begun. We are in the process now of serving several of our large corporations based on this large questionnaire that we have developed which talks about a lot of these issues. We talked about to try to get relationships between these questions basically like fairness in a company and the tendency to provide accommodations and so forth. And then once we have that large information that is just beginning to go out now, then we will analyze that and try to come up with basically a shorter form of that large questionnaire which can be written in a more practical way that companies and other organizations can use. I hope that will be ready, what are we on, winter now? Hopefully later this spring, but one of the challenges of course working with companies is many times it is a moving target as you know, and many of them are well meaning and of course very proactive, but people change, people move, there are a lot of logistics involved, and so forth. But we are very excited about the project and I do hope to have some more information in the spring on that.

And your other question was about employment demand? I think that is on the website as well. As a matter of fact, I think the whole grant proposal is on the website which lays out all the different projects and the initiatives that I talked about.

Yes, Peter, it is all, I am just looking at the website now, and it is all there.

We are particularly interested by the way, in that area, for example, on how people with disabilities fare in times of downsizing. We are interested in hiring, of course, but we are also interested in promotion and advancement patterns. We talk a lot about people with disabilities who are excluded from the work place or who are fired basically or not accommodated.

Unfortunately we need to focus a little bit more of course, on the career advancement of many people including people with disabilities because all of us are going to have challenges, physical, social, family, whatever, as we age, and as we move through an organization, and we are trying to understand better those progressions patterns and what are some of the barriers and some of the challenges in that area, and of course you all read about the report, maybe it was a year ago now, Shelley, about the federal government which traditionally is perhaps the largest employer of people with disabilities, and there was a decline in basically people with disabilities working for the Federal government, and we need to understand of course in the public sector as well what the trends are and what barriers may or may not exist.

Very good. Thank you.

How are we on time, Shelley?

We are doing well, doing well. We have about 25 more minutes. Operator, any other questions in the queue?

Yes, ma’am. The next question, your line is open.

Hi, go ahead.

Hi, Shelley, how are you?

Good. Long time no hear.

A fine leader in this whole area. I am surprised you will have a question. You usually have the answers.

Well, I have a couple of fill in the parts of answers for you, Peter.

I should have known.

On the Walgreen’s initiative, it actually came from one of their VPs, a gentleman named Randy Lewis who has a son with autism and one of the nice benefits was as they redesigned the plant and some of the electronic equipment, what a surprise like some of the other cases you referred to, it made it easier and more efficient for everybody else.

Great.

They are a long way however from full implementation, and not only in their distribution centers but since we are here in the Chicago area and have access to corporate and the stores, a lot of the things that were alluded to earlier are far from reality from our perspective.

Also, I wanted to point out we have a major initiative here called Disability Works which is the Chamber of Commerce and other folks. And they have recently finished a study with DePaul. And one of the variables they looked at was career advancement in three industries, and interestingly enough to throw into the social matrix and for our friends who may be in the advocacy world, part of the problem is a lot of folks with disabilities

never ask. They are so happy having a job that that component came through pretty consistently, not that management sees them as promotable or not promotable, but often they don't ask for training, they don't ask for advancement. They are locked out for some of the internet issues you talked about. Those are my throw-ins.

My real question is back to the corporate culture. As an agency who every day is working with folks with a variety of disabilities, assisting in full time and part-time, in volunteer, in competitive and supported, and customized employment, I am really curious what your hypotheses are about the corporate culture because if we have to wait for every corporation to have a CEO or senior VP who is directly impacted by disability in their family to begin to change the culture, I will have four more lifetimes before we get this done.

So I am just curious what you are hypothesizing is out there, what other anecdotes you have that we can try to start using tomorrow in this agency?

As always, very good questions and comments. I would say that this initiative grew out of, of course, the elusive business case, so-called business case for the hiring of people with disabilities which has been as you know thrown around for years that it makes economic sense to employ people with disabilities, that there are spillover positive effects for people without disabilities in terms of injury prevention, in terms of work place design, all the things you mentioned.

Our basic hypothesis was that we could predict those companies based on this criteria in which people with disabilities would advance and would retain employment and would be accommodated. And that would be a function of these best practices which we were hopefully collecting. Now, whether that can be done yesterday, that is a tougher question. What ODEP I think in a very positive way Richard Horn and others and the staff there who you know are trying to accomplish and we are trying to help them is to try to come up with a more standardized way to benchmark as you said, a more practical way, more robust way so it is not just the corporate CEO exemplars that are driving this issue.

In our own studies, as you know, for example, with Doug Kruse not only is there great variation as the function of the CEO, in the large multinationals we are studying, there is great variation across the divisions and the sites of the companies as well. So from a trickle down point of view, obviously the CEO has to drive a lot of it, but a lot of the real world implementation as you know has to be done at the local level, and we have to figure out a way whether it is through this protocol or not to make that hands-on information available to those folks so they can manage that process and so that importantly they can understand that an effective management of that process will lead to their own career advancement as well, perhaps you can correct me or add to it. I am sure, and I think I know there are some companies of which supervisors’ own evaluations and advancement and bonuses and so forth are based on how well they manage diversity within their units which increasingly may include people with disabilities. Are you aware of such approaches?

I am aware of such, and I think you just used the key term that some of us are beginning to pay attention to, which is to make sure within the corporate culture that when they talk about diversity, disability is a component. And I think there are still companies where that is not part of the agenda item when they hear about diversity. So I think that is another strategy for all of us to be using is to get diversity to be a much broader topic from the corporate culture to move forward.

One other suggestion, from the anecdotes that we do have, and Shelley knows we use this decades ago, I always believe we need peer to peer contact. So I think as you build your anecdotes and your success stories, it is those people you want talking to their peers about why it was a good business decision to hire and what the accommodations look like. They know what you are going to tell them. They know what I am going to tell them. They know what our employment staff are going to tell them, but when they hear it from peers, my experience is they pay much greater attention.

Yes. With regard to your first point about diversity, you come back and raise a very important issue as well. Several years ago I was invited to London to a financial, large financial investment bank, and they put a question to me, actually it was very interesting, and the question, was, is disability appropriately an element of our diversity strategy?

And many people are divided on that and maybe, you can help us flush that out here. Many people both in the disability community and in the gender community or in the African-American community, there is not a consensus that disability is necessarily a part of diversity strategy, and I wonder what is your view on that, not to throw the question at you or back to Shelley or Robin, but is it appropriately an element of a diversity strategy in the traditional sense that we think about or is it really just part of a larger business strategy with regard to workforce supply, demand, and qualified workers? Or maybe they are all intertwined.

You know we had that Gruder case, the Supreme Court case involving affirmative action at the University of Michigan where many large companies and the armed services chimed in, in amicus briefs, basically saying that diversity was a crucial element of how they functioned. And interestingly you guys on the phone, correct me if I am wrong, in that major affirmative action case talking about diversity, I don't recall ever seeing a mention of the word disability, which is arguably one of the largest minority populations depending on how you conceptualize it out there.

So, as usual you put your finger on a very important topic. I don’t know that I have a good answer other than what I just conveyed. Would you add anything?

No. And I think I would love to have a follow-up with you and some other folks. I do believe that diversity is part of the agenda we have to use, but I don't think it is a singular bullet agenda. I think we have to take multiple strategies, but I think it is a mistake not to play it into the diversity agenda as that gets more and more fanfare in HR corporate offices.

Yes.

Great point. Thank you so much. We will be interested in the follow-up dialog and see what we can glean from that as we deliver technical assistance and training programs as a DBTAC.

I should say, Robin, with folks like previous Caller and others on the phone, it is exciting for me because I always learn as much or more from talking with you guys and listening to these things as I could ever convey, and it is really a great honor that there is such strong interest in the DBTAC network to bring people together like this.

Great. Thank you. Operator, are there any further questions in the queue?

I show no further questions in the queue.

Great. Well, in about the 15, 20 minutes remaining, Peter, can I turn your attention to some of the new paradigms in disability research? I know we have hearing a lot about participatory action research in terms of getting people with disabilities involved in every aspect of the research. I know people understand the concept but don't necessarily implement it well.

Here at the Southeast DBTAC we have people with disabilities on our leadership council so that they are actually designing the questions that need to be asked, and as the research comes out looking - they are involved in actually implementing the research and then looking at the new materials we develop to make sure it is understandable. All this is to say that we want to if we are going to invest dollars in research we want to make sure that it is meaningful and the outcomes change policies and practices where necessary.

So if you could speak to that a little bit as well as some of the experimental research efforts that BBI is involved with, that would be very helpful.

I am delighted to do that, and I also if there is time would be very interested in previous Caller, yourself, others views on the pending Huber case, the Wal-Mart case, we talked about that briefly but I think there are very strong implications there. And it would be interesting to just have a few words about why the court took that, why you guys think that, and what the potential implications of that case could be.

But with regard to participatory action research and experimental research, one of the things that we are trying to do like many others at the Burton Blatt Institute is to create practical, usable, valid information. Participatory action research is certainly not new to us. There is no great rocket science associated with it. It is basically changing the paradigm so that people with disabilities are the designers, the participants, the drivers of research in a way that really hasn't been the case in traditional, social science research. Usually people with disabilities have been the subjects or the people who have been observed.

With regard to experimental research, that is another interesting area. You know, the EEOC for many years would do testers, as you know, people who would go out typically in the race area, race discrimination area, and you would have the same resume but perhaps African-American applicant and Caucasian applicant and see what the differences are with particular organizations. The EEOC and again correct me if I am wrong, I don't think it has been particularly aggressive in testing so-called sending out testers in the disability area.

One of the experimental studies that we are working on, experimental study basically means you are giving up real world generalize ability, but you are having more experimental control, you are really focusing more on the research question, and why would we do that? We would do that because at the same time it is building up practical benchmarking tools as we talked about. There is a lot of lack of basic social science research on attitudes and stigma and other sorts of areas so basically in one of our experiments in the employment demand grant which was talked about earlier, I forgot about that, is basically doing EEOC testing but randomly assigning people to judge applicants, for example, who may use a wheelchair or not, or may who have a sensory impairment or not, to really try to get a handle on the magnitude of what we are talking about here and to make a really compelling case. If it is the case, you know, with basic social science research that there are these longstanding attitudinal barriers, we can measure them, we can isolate them, we can manipulate them importantly as a function of other characteristics, salient characteristics, like whether or not they know the person or the person is familiar and so forth. Just like the CEO is familiar with the niece or nephew that has a disability that as was talked about or the Vice President of Walgreen’s who has a daughter or son with autism.

So there is a need at least for some of us who are the more pin head researchers as well to really focus on these basic social science aspects, and this is really part of a broader research agenda that we are working on. There are many, many ways to touch different pieces of this elephant, and I hope through these paradigms, the participatory action research, Shelley, and the experimental research we will begin to help advance that dialog. I should say lastly that as a social science researcher and others on the phone we may take for granted that there is a literature in this area, but there actually is very, very few studies which have looked at these issues from the perspective that we and others are now trying to look at, and without that developing that body of research, it is difficult to then jump so quickly to the applied research as well, but as the previous Caller and others correctly point out, the future was yesterday, and we have to do both, and we have to do it at a time when there is an ADA Restoration Act out there and when there still is a terrific pushback to many of these issues in the disability arena.

All right. Thank you.

I know we have a few minutes left but I would be interested, Shelley, and I am sorry and if there is no interest we can drop it. Does anybody have anything to say on the Huber case and the Wal-Mart case and the implications of it?

Well great, let's turn our attention the last few minutes to this case just for the benefit of the audience.

This is Huber versus Wal-Mart stores. This is as you know, we didn't have a case go up to the Supreme Court last year, but we just got notification that this particular case will be going up to the Supreme Court, and I understand that they will hear oral arguments on this case in the spring of 2008 with hopefully a decision by July of 2008.

Did I summarize the facts correctly?

Sure. Go ahead.

Did I? We talked about it briefly.

[ Laughter ]

Or may be Robin, are you there? We will make you work a little bit. Robin, do you want to? You know this case well.

No. I think you did a good job of summarizing it. I think that you had the major points there.

Yeah, see the basic issue of the case right now is that when you have somebody with a disability who’s prevented from performing the essential functions of his or her current position because of the disability, and then you have a vacant equivalent position for which the employee is qualified, as you know, one of the reasonable accommodation is to move somebody to a vacant position for which they are qualified, the question becomes does the ADA require the employer to reassign that employee to that vacant position even when there is a more qualified applicant? And that I believe is the actual issue of the case at hand.

Well, I mean we all have heard this issue before, but that is really a, that is a tough one I will tell you that. I mean we all know how we think it should come out.

Right.

But from a legal analytical point of view, I guess the question is what is it, what language in the EEOC regs or in the ADA itself would justify that outcome? That is, that the reassignment would trump for an otherwise qualified individual would trump somebody who is even more qualified to do that job?

Right, especially when you have a seniority kind of -- I guess it is a unionized thing and there is a seniority system in place.

Yes, now we have had a case like this before in the collective bargaining environment, right, and I am trying to wrack my brain. Somebody on the phone knows the name of that case was–what, Sandra Day O’Connor wrote the decision.

Are you talking about Barnett versus U.S. Airways?

No. Well, maybe. Was that Sandra Day O’Connor wrote the decision? Basically, there had to be a legitimate collective bargaining agreement. I think Barnett was not collected bargaining.

Yeah, Barnett was not collective bargaining.

It goes way back. But they kind of punted in that case an issue that is very much related to Huber. Is the Wal-Mart case a collective bargaining agreement involved? Probably not, because it is non-union, right?

I don't see that in any of the write ups I have. I don't see any mention of that.

So this could be now the this replay of this case in the non-union setting because I am sure I am just blanking on it, there was a Supreme Court case in the union setting for reassignment earlier on. You should know that.

Operator, can we open the lines and see if anybody has any information?

Please.

Ladies and gentlemen, if you have a question or comment please press the number 1 key at this time.

This is like a law school exam.

[Laughter]

Let me see here. I can look it up.

Again, ladies and gentlemen, if you have a question, please press the number 1 key. And our first question, your line is open.

Go ahead.

Do you have the answer?

I don't have the answer but what good is the provision that the person can transfer to a vacant position if they don't have that right?

You get an A plus. That is the question. What is the whole point of the ADA if they don't have that right?

And it is a case which comes full circle, it is a Gruder case in many ways. It is the meritocracy idea, now the best person for the job versus whether or not this civil rights law can allow this accommodation for a person who would otherwise be out of a job. What you said, really is the tension that this Supreme Court, left and right, is going to talk about. There will be some Justices that will immediately bristle and say how can it be that a civil rights law should exclude the most qualified person from the job? I don’t care whether the other person has a disability or not. How can that be?

We currently have I guess a split in the Circuit Courts. We have two U.S. Circuit Courts of Appeals, the Tenth and the District of Columbia that have held that in factually similar situations the ADA requires the employer to reassign the employee to the vacant equivalent position. But then in two other Circuits, the Seventh and Eighth, they tell that the ADA does not require reassignment but only requires employers to permit the employee to compete with other applicants for the position. So we have Courts interpreting differently.

I guess then it is not really an accommodation.

Pardon?

I guess then it is really not an accommodation in some ways, it goes to the question of what is really the accommodation, is the ability to compete for that job which doesn't seem like much of an accommodation or the ability to take on that job. And you could see how employers would you know kind of shake their heads and say what is this law telling me, that I can't put the most qualified person in this position?

But on some level, and maybe you have more thoughts, you have to argue that the social political judgment that was made in the Americans with Disabilities Act is clear and that trumps this other meritocracy approach. But the problem is I don't know how clear the language is in the ADA itself, although Robin and Shelley, you might know in the EEOC regs for this particular situation. I would have to look it up but is there a particular EEOC interpretive guidance on this issue?

I believe there is. But the other I mean the other argument that might apply is that the argument used in affirmative action that an applicant is qualified, therefore eligible for the promotion, and not necessarily the best qualified.

Right. It meets a threshold level of qualified.

And then you can take affirmative action.

And there can always be somebody who is more qualified. The problem is if you start talking affirmative action before this United States Supreme Court, I think it is a non-starter.

I do, too, and that would not be a very popular argument to make with the affirmative action lobby either.

No, but I do think you said something that is very important, and that is why couldn’t it be the case, the person can do the job and is qualified, so and if the job description is what the person can do, does it matter that the next person can do more, you know what I am saying? And the employer would say so you are telling me my job description says “has to type 100 words a minute,” and this person with a disability can type 100 words a minute, and you are telling me that I can't hire a person who can type 150 or 140 or 130 words a minute without a disability?

Right.

The person with the disability is out of work if he or she can't get that job.

And arguably, I am just being devil's advocate, you can make the case that the same is true for the most qualified person, you know.

Not, not if they were competing for that job when they didn't have one in the first place or if they were looking for a transfer. They have a job that they can go back to or they are not in that job pool.

Okay, so your position is the reassignment for the person with the disability is the only option, really?

Right.

And the other person, now, if it is a job that pays more and the other person wants it, how do you cut then?

I would say that the ADA trumps the promotion, but you are not taking something away from the other person. Or if the person with the disability doesn't get the job, you are taking away their job.

You can make that argument. Go ahead.

I will leave it at that.

What do others think?

Operator, are there any other questions or comments in the queue?

This is Robin. I have a question from the online but it is a different vein.

Okay, we can move if you want, we only have a couple minutes left. But I would just say that the Huber issue is something we should all pay particular attention to and I know there is going to be amici briefs filed and I know, here we are looking at it carefully as well. But, you make some very good points.

I am looking at the EEOC Guidance on Reasonable Accommodation. And there is a question, it says must an employer provide reassignment if it would violate a seniority system? But they don't go into any other explanation that I can see based on you know, they don't address the question of if somebody is more qualified.

And we have had that case. We talked about it, that is the O'Connor’s decision but the name of the case I forget. But I guess we haven't had the case in the non-union setting yet.

Right. Right. Well, we only have a few minutes left. I want to thank everybody for all their comments and questions.

Peter, do you have any closing remarks that you would like to leave the audience with about a blueprint for the next 25 years regarding -

Oh, wow.

Disability policy?

That is a whole other talk. I am still obsessing on, I am going to lose sleep on unless I can remember the name of that O’Connor decision, tonight I will find that and we can post that Shelley if you want.

Okay fine, let us know.

No. I mean, honestly I wouldn't want to pontificate at this point. I think we have covered a lot of interesting ground.

I think the dialog is very important, and I would like to be in a position, Shelley and Robin, if you agree, to participate with other people or yourself perhaps maybe in the spring once we have more data back from the employment demand grant to share that with the folks to try to work together to come up with approaches to research and policy change that are meaningful, particularly in light of the fact that we are going to have the presidential campaign gearing up and particularly in light of the fact that we will have a new administration that will take a fresh look at many of these issue.

That would be great.

I will say thank you to you, Shelley, and Robin, the DBTACs for the amazing work that you guys do, and it is just an honor to be a part, smart part of a dialog with so many great people working together.

Well, and thank you, Peter for sharing your time and your knowledge with us. We learned from the work you do, and we appreciate being able to share the experiences that we have with the states that we serve. We are very fortunate that we have had 18 years at this point to work with our states and learn from everybody in terms of where the ADA is working and where do we need to go back and rethink some of the issues and where are some of the policies that still create barriers. And we are just fortunate that we have folks like you in our world to learn from.

It is a great honor. Thank you, both, very much.

Thank you. This concludes today's ADA Audio Conference program. I think we have been given a lot of food for thought, and you may have some questions that you are thinking about over the course of the next few days, so please give the DBTACs a call and if we don't have the answer we will certainly do our best to do some research and find a response to you. You can give us a call at 1-800-949-4232.

Remember that the today's session will be posted within the next 10 business days on the ada-audio.org website. And we hope that you will join us next month for the session which will be held on January 15th, and the title of that program is Best Practices in Design: Balancing Local, State and Federal Requirements to Ensure Accessibility. Robin has quite a lineup of speakers including two architects and John Wodatch from the Department of Justice, as well as the Deputy Commissioner from the Chicago Mayor's Office on People with Disabilities. So sounds like a very interesting session, and we hope that you will join us.

So, thank you again for being with us today. We encourage you please to complete the evaluation form that was given to you per when you registered and to submit that evaluation form per the instructions. That was all provided as part of today's materials. With that I wish you a good day and a very happy holiday.

Thank you, ladies and gentlemen. You may disconnect.