[blindlaw] Text of a pending complaint

[Kathleen Hagen]

I'm responding to Steve Jacobson's definition here of "accommodation" and 
whether or not one has to accept an accommodation.

I am at home and therefore don't have the ADA in front of me and don't want 
to take the time to look the reference up on line, but "accommodation" 
refers in that sense to a "public accommodation".  Where I have most often 
seen this language-that a blind person does not have to accept a proffered 
accommodation-it has to do with such things as hotel rooms or other public 
accommodations where one or more rooms or places have been set aside for 
persons with physical access needs.  When a blind person comes in, the desk 
person sees "handicapped" and tries to assign you the accommodation whether 
you need it or not, and whether you want it or not.  That's the type of 
thing you do not have to accept.  It also applies when a program has been 
set up, for whatever reason, for people with disabilities separate from a 
regular program.  Since the ADA requires that every attempt be made not to 
segregate disabled persons by putting them in separate programs, a person 
with a disability does not have to accept such an accommodation.

With regard to the situation at hand in the BART, I think that the agents 
involved perceived, even if incorrectly, that Mark was not safe to wait for 
the train.  As others have said, not having the loudspeaker in working order 
would only be considered an ADA compliance issue if it went on for some 
time, or, if it could be shown that it happens often or could cause a 
problem in the foreseeable future.  With regard to the agents offering their 
arms, they do need training, as Steve said, to go outside their scripts to 
understand that a blind person who is using a dog is much better off 
following a person than being led by the person, and it might be 
constructive for someone to have that kind of training.  But I seriously 
doubt that any court or the DOJ would consider the offering of an arm, even 
if unwanted, an ADA compliance issue.  The agent and police officer would 
only reiterate that they thought Mark was creating a safety risk to himself 
or others.  While technically, creating a risk to self was deliberately not 
legislated into the ADA, just to protect against such patronizing attitudes 
as Mark described, we know that the courts have already allowed such 
language to be "interpreted" into the employment provisions.  So, in other 
words, if a perceived safety risk exists, and an employee doesn't act on it, 
and something happens, then that employee and the company might face 
liability.  So BART would take the risk of upseting a consumer rather than 
losing their job or facing a lawsuit, and the courts, I believe, would be 
sympathetic to that interpretation of their duties.

I guess what I'm saying is that I don't think the incident, frustrating and 
humiliating as it was, would in the end be found to constitute an ADA 
violation.  You could file a complaint and have it investigated, which would 
take quite a while.  What the DOJ is good at, though, is coming up with 
settlements.  Either through their assistance, or with the help of an 
organization like NFB or a dog guide users group, you might discuss with 
Bart providing training to staff that they not insist upon a guide dog user 
taking the arm of the agent.

My best advice to Mark would be to not do anything with the complaint for at 
least one week after writing it.  It's amazing, when you're calmer, how you 
can make your salient points more articulately and remove the emotion from 
the complaint.  I've learned this the hard way.
Kathy Hagen

----- Original Message ----- 
From: "Steve Jacobson" <steve.jacobson at visi.com>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Wednesday, October 25, 2006 11:59 AM
Subject: Re: [blindlaw] Text of a pending complaint


> Mark,
>
> I am not a lawyer, and I monitor this list as one of those who tries to 
> help Dave Andrews with technical problems.  However, not being a lawyer 
> does not prevent me
> from having opinions.  <smile>
>
> First, if I had experienced what you did, I would also have felt both 
> angry and frustrated.  Nothing I say here should be taken to mean that I 
> don't understand your
> feelings or that you shouldn't raise a fuss.  I also don't believe it is 
> always our job to understand the other guy.  Some of the responsibility of 
> the other guy is to
> understand us, especially when we are his or her customers.  Still, the 
> purpose of filing a complaint is to correct a problem or bring about 
> change.  Therefore, I'd like
> to point out a couple of things that I hope will increase the chances for 
> success.
>
> It is my understanding that nothing in the ADA implies that someone else 
> is responsible for your safety.  In fact, the NFB worked hard to get a 
> provision added that
> gives us the right not to accept an "accommodation."  Someone more 
> familiar with the law can probably point out where this can be found or 
> maybe you are already
> familiar with that part of the law.  Having said that, though, the public 
> doesn't have that kind of a view of the ADA.  To the public, the ADA 
> generally means they
> have to be careful of how they deal with us.  There is generally some 
> effort put into employee training that might mention the ADA, but the 
> specific message received
> will depend upon the training given and not the actual content of the law.
>
> The offering of an elbow is also a big deal in a lot of training courses 
> on dealing with blind people.  It is often portrayed as "the way" to guide 
> us.  There is too often
> no talk of the fact that we may prefer to follow, or that it might even be 
> awkward to carry a briefcase, control one's dog, and take an elbow.  It is 
> a mixed bag.
> Explaining in a training session to offer an elbow helps avoid someone 
> guiding us by pushing us, taking the end of a cane, or touching us in 
> other ways that invade
> our space.  However, I have seen more than once that offering an elbow is 
> a sort of script that people are told to follow.  When a blind person 
> prefers not to accept
> the elbow, the person offering it has no idea what to do because the 
> script has been thrown out.
>
> Finally, the public often understands less about guide dogs than even 
> those of us who use canes.  They think that the dog does all the thinking 
> and knows where
> everything is.  Therefore, the process of searching for the escalator is 
> probably one that would appear very alarming to someone who doesn't 
> understand the
> relationship between human and dog.  The assumption was probably that the 
> dog was somehow impaired, or possibly that you had been drinking.  In 
> fact, your
> description of being made to walk up and down the platform fits this 
> possibility in my mind.
>
> My point here, therefore, is to be aware of the fact that Kenny's training 
> might be at fault as much as he is.  The same might be true of the police 
> officer who clearly
> did not treat you as an adult.  Both may have thought you had been 
> drinking but were at least smart enough not to make that accusation, but 
> that could have had
> an effect as well.  If you complain about the individuals only, they will 
> get written up and a note placed in their files and that will be the end 
> of it.  However, if you
> raise questions about the training they received, even if they do deserve 
> a good deal of the blame, someone might take a look at the training that 
> is offered or
> whether there should be more training.
>
> Good luck!
>
> Best regards,
>
> Steve Jacobson
>
> On Wed, 25 Oct 2006 08:36:26 -0700, Mark BurningHawk wrote:
>
>>On re-reading, I apologize for my use of the terms "disgusting," and
>>"spineless."  They were too subjective, and I'm sorry.  Let me clarify the
>>salient points of why I posted this here:  I want to know what the ADA
>>*DOES* say about what measures such bodies as BART police or others have 
>>the
>>right to take,, and in what situations,,. The BART cop in this instance
>>stated, "Your ADA gives me the right to protect you," and I want to know 
>>if,
>>as I suspect, she's just full of it.  Second:  Was the BART station not in
>>compliance with the ADA because its voice announcement system was not
>>working, making it much more difficult if not impossible for me to know
>>which trains were arriving on what tracks.  This was the sole purpose of 
>>my
>>post.  I apologize again for the inflammatory nature of my remarks; I have
>>no wish to start a flame war or even an intellectual debate about 
>>anything;
>>I was merely looking for knowledge.
>
>
>>_______________________________________________
>>blindlaw mailing list
>>blindlaw at nfbnet.org
>>http://www.nfbnet.org/mailman/listinfo/blindlaw
>
>
>
> _______________________________________________
> blindlaw mailing list
> blindlaw at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/blindlaw
>