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Technical HousekeepingHandouts and archiveat Infopeople.org
Content comments and questionschat at bottom of screen
Technical questions“HELP” at bottom of screen
[email protected] event ID: infopeople (212) 651-8060
Evaluation sent to you
http://www.infopeople.org/training/webcasts/
Disability Accommodations for the
Public
Instructor:
Mary Minow, J.D., A.M.L.S.
Infopeople Webcast Series 2: Third Thursday
Thursday, March 20, 200212:00 noon to 1:00 p.m
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AGENDA
• Informal Questions• Overview of Laws • Physical Barrier Cases• Access to Information Cases
.
Legal Disclaimer
• Legal information
•Not legal advice!
.
Technical HousekeepingHandouts and archiveat Infopeople.org
Content comments and questionschat at bottom of screen
Technical questions“HELP” at bottom of screen
[email protected] event ID: infopeople (212) 651-8060
Evaluation sent to you
http://www.infopeople.org/training/webcasts/
.
INFORMAL QUESTIONS
• Letters to Department of Justice (DOJ) from libraries, Senators
• Not legal precedent, but may be persuasive
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Public Libraries: Books on Upper Floors
…if a public library's open stacks are located on upper floors having no elevator, as an alternative to making the upper floors accessible, library staff may retrieve books for patrons who use wheelchairs as long as the aides are available during the operating hours of the library.
John L. Wodatch, Dept. of Justice 1995 http://www.usdoj.gov/crt/foia/tal660.txt
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Bookmobiles Wheelchair Lifts?
Library may install wheelchair lift or give program access by using aides to locate and retrieve books.
John L. Wodatch, Dept. of Justice 1993http://www.usdoj.gov/crt/foia/tal434.txt
State Library of Ohio
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Public TTY Phone?
Response: Standards require provision of a public TTY only when the facility provides four or more public pay telephones.
Deval Patrick, Dept. of Justice 1995http://www.usdoj.gov/crt/foia/tal663.txt
Richardson Public Library (TX) patron requestedTTY pay phone
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Public TTY Phone? ASCLA Guidelines
3.2.2 A text telephone (TTY) should be available at each main service point, for example each reference desk, in each library. TTYs must be provided for use by deaf staff members and at least one TTY should be available in each library for public use.
American Library Association. Association of Specialized and Cooperative Library Agencies. Guidelines for Library and Information Services for the American Deaf Community (2002)http://www.ala.org/ascla/lssps/guidelinesweb.html
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Unlicensed Service Dog?
No licenses required for service animals - ADA II and III
Local licensing laws do not apply
Stanford Free Library (NY)patron needed service dog
Bill Lann Lee, Dept. of Justice 1998http://www.usdoj.gov/crt/foia/tal748.txt
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Service Dog FAQ
Service animal?Trained to help person with disability
Where can it go? Anywhere patron can go
Is library responsible? No responsibility to take care of dog
What if dog is dangerous? May exclude animal if direct threat to health or safety based on that particular animal
DOJ Service Animals FAQ at:http://www.usdoj.gov/crt/ada/qasrvc.htm
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Overview of Federal Laws
Architectural Barriers Act (1968) Buildings using federal funds must comply with federal accessibility standards 42 U.S.C. Sects. 4151 et seq.
Rehabilitation Act Sect. 504 (1973)Prohibits discrimination in programs receiving federal funds; Regulations are specific than Title II, and include requirements for colleges and universities 29 U.S.C. Sect. 794
Americans with Disabilities Act (1990)42 U.S.C. Sects. 12101 et seq.
Telecommunications Act of 1996Requires public and private to provide communications in accessible formats 47 U.S.C. Sect. 255, 251(a)(2)
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ADA Applies to State Library Agencies… For Now
TREND TOWARDS STATE IMMUNITY FROM FEDERAL CIVIL RIGHTS LAWS
Age Discrimination Employment Act (ADEA) -state government immune
Kimel v. Florida Bd. of Regents (2000)
ADA Employment–state government immune from $ damages
Univ. of Alabama v. Garrett (2001)
ADA Title II – case scheduled before Supreme Court March 2003 –disability advocates persuaded California to withdraw its appeal at last minute
Medical Board of California v. Hason
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ADA applies to California State Library Agencies
AB 677 (2001)
Amended California Govt Code Requires the state to comply with the same nondiscriminatory obligations that apply to its political subdivisions, contractors and other recipients of state financial assistance.
Cal. Gov. Code §11135; response to University of Alabama v. Garrett, 531 U.S. 356 (2001).
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California LawUnruh Civil Rights Act
Cal. Civ. Code, Sect. 51Blind and Other Physically Disabled Persons
Act Cal. Civ. Code Sect. 54
Unfair Competition LawCal. Bus. Prof. Code Sect. 17203
FacilitiesPublic funds
Cal. Gov. Code, Sect. 4450 et seq.
Private funds (facilities open to the public)Cal. Health & Safety Code, Sect. 19955 et seq.
http://www.dsa.dgs.ca.gov/UniversalDesign/
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Sect. 508: Electronic Access
Rehabilitation Act Sect. 508
require that electronic and information technology purchased or used by federal agencies must be accessible for use by persons with disabilities (1998)
applicable to the states though
Assistive Technology Act of 1998
29 U.S.C. § 3002
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Americans with Disabilities ActPublic vs. Private Libraries
Title IIState and Local Govt
(public ownership)
Title III Public accommodations (Private ownership)
public libraries, public schools, public universities
Most private libraries, private schools, private universities
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ADA StandardsPublic vs. Private Libraries
Title IIState and Local Govt
Title III Public accommodations
Dual standard based on date of facility: Facility access orProgram access
Remove barriers when “readily achievable”easily accomplishable and able to be carried out without much difficulty or expense.
ADAAG or UFAS standard ADAAG standard (see handout)
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Must Branches be Accessible?
Three branches inaccessible – all built before 1992
Branches offered “very limited services” (books, magazines, children's programs) 20 hrs/wk
Main library “full service”
Patron lost: All programs “accessible” at Main library
Orangeburg County Library (South Carolina), 6 NDLR (LRP) 233 (1994)
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Title II and III Complaints
• Must be filed with Dept. of Justice within 180 days of discriminationwww.usdoj.gov/crt/ada/adahom1.hom
– OR
• May also be enforced through private lawsuits in federal court
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Physical Barrier Cases
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ADA: Public Buildings
On or after January 26, 1992Facilities must be accessible
Before January 26, 1992 Programs and services must be accessible Alternate methods such as bookmobiles, home delivery, staff aides
28 C.F.R. § 35.151(a), (b)
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Rehabilitation Act: Recipients of Federal Funding
On or after June 3, 1977 Facilities must be accessible
Before June 3, 1977Programs must be accessible
34 C.F.R. § § 104.22 and 104.23
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California Facilities Must Be Accessible SINCE OVER THIRTY YEARS
AGO!
1968+ Public funds
Facilities must be accessibleCal. Gov. Code, Sect. 4450
et seq.
July 1 1970+ Private funds
Facilities open to the public must be accessible
Cal. Health & Safety Code, Sect. 19955 et seq.
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Santa Cruz Library Re-cementing was an Alteration - 1978 Calif. Atty Gen Op.Branch library built 1930s
Early 1977 City poured new concrete over cracked steps, porch, walkway; replaced handrails $2,337.00
Triggered accessibility requirement
– some flexibility to meet requirements
61 Op. Atty Gen. Cal. 555Opinion No. CV 78-35 (December 22, 1978), Citing Calif. Govt Code Sect. 4456, 4451
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Under ADA Patron Must Show: QID
Need not show library had intent to discriminate
Qualified Individual
with Disability?
Patron Denied Services, Programs
Discrimination because of disability
42 USCA § 12132
Physical or mental impairment
Substantially limits major life activity
A record of such an impairment, or
“Regarded as having such an impairment.”
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Under ADA Patron Must Show: Denied Program
Qualified Individual
with Disability?
Patron Denied Services, Programs
Discrimination because of disability
42 USCA § 12132
Title IIState and Local Govt
Title III Public accommodations
Facility access or
Program access
Remove barriers when “readily achievable”
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Libraries: Affirmative Defense-Fundamental Alteration
See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164
FundamentalAlteration
e.g. put lights on during scary Halloween program
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Libraries: Affirmative Defense -Undue Burden
See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164
FundamentalAlteration
Undue Burden
Burden on agency
All resources available considered
Written statement by agency head
or designee
Action to ensure maximum benefits to people with disabilities
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Case: Patrons Sue Carlsbad over Library Restrooms, Elevator, Drinking Fountain (and other city facilities)
Carlsbad: not qualified because they didn’t formally request services before filing lawsuit
Court: Patrons do not need to request services before filing suit
Qualified Individual
with Disability?
Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).
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Under ADA Patron Must Show:
Qualified Individual
with Disability?
Patron Denied Services, Programs
Discrimination because of disability
Title IIState and Local Govt
Facility access or
Program access
Remodeled 1995
Court: remodeled areas ADA compliant
Drinking fountain non-ADA despite manufacturer’s representation
Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).
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Common ADA Errors in New Construction and Alterations
www.usdoj.gov/crt/ada/errors.pdf
Don’t rely solely onarchitect
Common errors listedon handout
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Undue Burden to Fix Restroom Right Now
FundamentalAlteration
Undue Burden
Restrooms remodeled
Men’s restroom clearances technically correct due to existing physical restraints.
City showed that upcoming remodel would fix this
Shonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Calif. 1997), aff’d without published opinion172 F.3d 876 (9th Cir. 1999).
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Ramp Installation
Settlement agreement to resolve access problems at library. The city took lead responsibility for installing a ramp to make the entrance accessible.
Dept. of Justice 1998 Status Reporthttp://www.usdoj.gov/crt/ada/aprjun98.htm
Natchez, Mississippi
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Library’s essential programs
Doors
Parking Accessible route Restrooms Alarms Drinking fountains Entrances Signage
Public Library Program Found Accessible
Town of Seekonk (MA) 3 NDLR (LRP) 87 (1992)
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Public Library Program Found Accessible
Town of Seekonk (MA) 3 NDLR (LRP) 87 (1992)
Additional programs
Technical services Reference services Children's roomStacksReference materials Computer cataloging system, Computer employment search systemComputer magazine search system
were accessible.
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Public Library Program Access: Failed
Program Access: Book lendingLunching With BooksSummer reading
program for childrenNational Library Week
AILEDno parkingno accessible routesidewalk curbs no restrooms
Tombigbee Regional Library (MS) 2 NDLR (LRP) 16 (1991)
Built before 1977
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Public Library Program Access: Failed
AILED Steep stairs to basement that had
children's area, meeting room and non-fiction books
Inaccessible restroomAdded disabled parking after
complaint filed
Seaford Public Library (NY) 1 NDLR (LRP) 227 (1990)
Built before 1977
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Library in Temporary Location Must be Accessible
ailed to notify
patrons that library will retrieve items for patrons
DoorsParkingAccessible routeRestroomsAlarmsDrinking fountainsEntrancesSignage
Wheelchair height circ deskNo public meeting room
and no adult programs are being but children's crafts programs and storytimes
Attleboro Public Library (MA), 4 NDLR (LRP) 106 (1993)
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Orangeburg Library Failed in These ADA Requirements:
disseminate information to patrons about ADA protections
28 C.F.R. Section 35.106
designate ADA Coordinator 28 C.F.R. Section 35.107(a)
adopt grievance procedures for ADA complaints
28 C.F.R. Section 35.107(b)
Orangeburg County Library (South Carolina), 6 NDLR (LRP) 233 (1994)
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Access to Information Cases
Both Title II and Title III libraries
must ensure effective communication to patrons, providing auxiliary aids and services.
Both must provide reasonable modifications for patrons unless it would create an undue burden or a fundamental alteration.
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Case: Student Wanted to Use Library’s Special Collections In Another Location
Student with bronchial asthma requested materials in room with open window without carpeting
OCR-student was not “handicapped person” under Sect. 504; stable
University not obligated to alter special collection rules
Kent State University, 1 NDLR (LRP) 33 (1990)
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Case: Student Wanted to Use Library’s Special Collections In Another Location
Student with bronchial asthma requested materials in room with open window without carpeting
OCR-student was not “handicapped person” under Sect. 504; stable
University not obligated to alter special collection rules
Kent State University, 1 NDLR (LRP) 33 (1990)
Qualified Individual
with Disability?
NO
Case by case –next person with asthma MIGHT meet this hurdle
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Patron with Mental Impairment Limited to One ILL per Week
Sec 504 claimPatron made 1-20 requests
per dayLibrary board limited him
to one per week Office for Civil Rights:
burdensome effect on other services
Library won
Caldwell Public Library (OH), 4 NDLR (LRP) 162 (1991)
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Patron with Mental Impairment Limited to One ILL per Week
Sec 504 claimPatron made 1-20 requests
per dayLibrary board limited him
to one per week Office for Civil Rights:
burdensome effect on other services
Library won
Caldwell Public Library (OH), 4 NDLR (LRP) 162 (1991)
Undue Burden
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“Digital Accessibility”
• User doesn’t rely on sole sense to receive information
• Prime directive: Separate CONTENT from FORM
• If presented visually, present it in audible or tactile format
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Does the ADA apply to digital resources online databases
and web sites?
Yes. The ADA applies to the information and services in libraries, just as it applies to the physical buildings.
Section 508 sets electronic information technology guidelines, both in creating and purchasing electronic information.
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Sect. 508: Electronic Access
Rehabilitation Act Sect. 508
require that electronic and information technology purchased or used by federal agencies must be accessible for use by persons with disabilities (1998)
applicable to the states though
Assistive Technology Act of 1998
29 U.S.C. § 3002
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Web Content Advisory Guidelines
Examples• Priority One - use ALT tag for images(otherwise its "[IMAGE]" to screenreader)
• Priority Two – identify target for links
• Priority Three – keyboard shortcuts
http://www.w3.org/TR/WAI-WEBCONTENT
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OCR Letter: Cal State LA(April 1997)
– Blind students claimed library services provided to others during semester break inaccessible
– Analogy: existing construction vs. new construction and renovations
– Ad hoc to approach IT access resulted in denial of access – the University’s method of administration resulted in discrimination
California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)
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Are Public Universities and Colleges Held to the Same Standards
as Public Libraries?
OCR – university library purpose is to enhance curricula
May not condition access to microfiche based on academic need if nondisabled students have access
California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)
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Purchasing Choices
At a minimum, a public entity has a duty to solve barriers to information access that the public entity's purchasing choices create
California State University – Los Angeles. Complaint No. 09-97-2002199 NDLR (LRP) LEXIS 525 (April 7, 1997)
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Library Hi Tech February 1, 2002
• 28 articles on electronic resources and accessibility – from websites to databases to screen readers
»Available through Ebscohost
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California Community Colleges Chancellor’s Office
Suggests vendor contract language:
"Vendor hereby warrants that the products or services to be provided under this agreement comply with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194. Vendor agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services which is brought to its attention. Vendor further agrees to indemnify and hold harmless the __________ Community College District, the Chancellor's Office of the California Community Colleges, and any California community college using the vendor's products or services from any claim arising out of its failure to comply with the aforesaid requirements. Failure to comply with these requirements shall constitute a breach and be grounds for termination of this agreement."
CA Community Colleges Chancellor's Office, Legal Opinion M 01-17http://www.icdri.org/legal/Ccommunity.htm
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Public Libraries and Patron Preferences
“In determining what type of auxiliary aid and services is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.”
– 28 CFR 35.160(b)(2)
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Public Libraries and Patron Preferences: Analysis
Preferences need not be honored if the library can demonstrate that:
another effective means of communication exists;
the preference would result in a fundamental alteration of the program;
or
the preference would result in undue financial and administrative burdens
-- Analysis, 28 CFR 35.160(b)(2)
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Title III (Private) and Websites
Despite overwhelming arguments to the contrary, first court case on issue says website is not a concrete place of accommodation
So ADA doesn’t apply
Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (SD Fla. 2002)
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ACCESS CHECKERS
Bobbyhttp://www.cast.org/bobby/
TIdyhttp://www.w3.org/People/Raggett/tidy
Tomhttp://lunch.ncsa.uiuc.edu/tom/
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Summary
Both Title II and Title III libraries
must ensure effective communication to patrons, providing auxiliary aids and services.
Both must provide reasonable modifications for patrons unless it would create an undue burden or a fundamental alteration.
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What You Should Know About Public Employee
Liability and Immunity
Instructor:
Mary Minow, J.D., A.M.L.S.
Infopeople Webcast Series 2: Third Thursday
Thursday, April 17, 200212:00 noon to 1:00 p.m
.
Technical HousekeepingHandouts and archiveat Infopeople.org
Content comments and questionschat at bottom of screen
Technical questions“HELP” at bottom of screen
[email protected] event ID: infopeople (212) 651-8060
Evaluation sent to you
http://www.infopeople.org/training/webcasts/