[blindlaw] Text of a pending complaint

[Sharon Mandel]

PLEASE REMOVE ME FROM THIS LISTSERV THANK YOU!

-----Original Message-----
>From: Kathleen Hagen <khagen12 at earthlink.net>
>Sent: Oct 25, 2006 7:43 PM
>To: NFBnet Blind Law Mailing List <blindlaw at nfbnet.org>
>Subject: Re: [blindlaw] Text of a pending complaint
>
>Steve,  The provisions regarding accepting or not accepting a provided 
>accommodation is specific to the public accommodations language of the ADA, 
>so it would be harder for a hotel, which is clearly defined as a public 
>accommodation, to insist, although frankly I don't know why anyone would 
>argue about being assigned to the first floor, unless it was next to the bar 
>or something.  You could raise an argument then that the hotel is trying to 
>foist upon a person with a disability a room of lesser value in a noisy area 
>of the hotel based on their disability.  There was a housing case about a 
>decade ago in which a real estate agent was trying to sell property near an 
>airport, and thus not desirable property in terms of value, to a deaf couple 
>because they wouldn't be able to hear the noise anyway.  The court found 
>that the value of their proprty was greatly diminished should they try to 
>sell it and it was discrimination.
>
>I could go on and on about the employment provisions, where I think the 
>safety issue has been particularly misused, but I'm getting over the flu and 
>don't want to exorcise myself further.
>Kathy
>----- 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 3:42 PM
>Subject: Re: [blindlaw] Text of a pending complaint
>
>
>> Kathy and Angie,
>>
>> Thank you for explaining how refusing accommodations and safety are 
>> separate issues.  I must say, though, that I find this aspect of the ADA 
>> to be depressing.
>> While we can argue the techniques being used, it sounds as though there is 
>> some validity to the claim that the ADA gives BART at least some right to 
>> treat Mark as
>> they did, given their claim that they were concerned for his safety even 
>> though we know that wasn't the case.  Even if he proved his capability, 
>> they could arguably
>> assume he was not safe until the proof was shown.  This does seem to 
>> support the contention that pushing for training and directing comments at 
>> BART makes
>> more sense than concentrating on the individuals.
>>
>> Couldn't a hotel claim that a blind person must accept a given room, on 
>> the first floor for example, for safety reasons countering our right to 
>> refuse?  Has that ever
>> been tested?
>>
>> On Wed, 25 Oct 2006 16:12:45 -0400, Rumpole wrote:
>>
>>>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.
>>>>>
>>>>>
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>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
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>>>>>
>>>>
>>>>
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>>>>
>>
>>
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