[blindlaw] Text of a pending complaint

[Rumpole]

Hi Kathy:

I must agree with the point of waiting to write a complaint until you cool 
off. I too learned that one through experience.

Like many on this list - I dealt with the issue of taking unwanted 
assistance. Mine came in the form of a well-meaning red cap in the air port 
at San Francisco when he insisted that the wheelchair he'd brought for me 
was there for my benefit and that I needed to use it.
I agreed and dropped my baggage into it with the statement: "Yes sir, that 
sure is a help - that bag is heavy. Have you ever led a blind person before? 
It's easy, here, I'll show you..."
And I didn't give the poor man a chance to argue. Poor guy - but it did 
work.

I would further agree that more training to BART staff from a recognized 
organization of some sort is the best way to go for something like this. At 
least, in my humble opinion it is.

Good luck Mark.

Ross A. Doerr Esquire

----- Original Message ----- 
From: "Kathleen Hagen" <khagen12 at earthlink.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Wednesday, October 25, 2006 3:40 PM
Subject: Re: [blindlaw] Text of a pending complaint


> 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
>>
>>
>>
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