Webcast 3 20 03

Technical Housekeeping: 

Technical Housekeeping Handouts and archive at Infopeople.org Content comments and questions chat at bottom of screen Technical questions “HELP” at bottom of screen help@horizonlive.com event ID: infopeople (212) 651-8060 Evaluation sent to you http://www.infopeople.org/training/webcasts/

Disability Accommodations for the Public: 

Disability Accommodations for the Public Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com mm@librarylaw.com Infopeople Webcast Series 2: Third Thursday Thursday, March 20, 2002 12:00 noon to 1:00 p.m

AGENDA: 

AGENDA Informal Questions Overview of Laws Physical Barrier Cases Access to Information Cases

Legal Disclaimer: 

Legal Disclaimer Legal information Not legal advice!

Technical Housekeeping: 

Technical Housekeeping Handouts and archive at Infopeople.org Content comments and questions chat at bottom of screen Technical questions “HELP” at bottom of screen help@horizonlive.com event ID: infopeople (212) 651-8060 Evaluation sent to you http://www.infopeople.org/training/webcasts/

INFORMAL QUESTIONS: 

INFORMAL QUESTIONS Letters to Department of Justice (DOJ) from libraries, Senators Not legal precedent, but may be persuasive

Public Libraries: Books on Upper Floors: 

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

Bookmobiles Wheelchair Lifts?: 

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 1993 http://www.usdoj.gov/crt/foia/tal434.txt State Library of Ohio

Public TTY Phone?: 

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 1995 http://www.usdoj.gov/crt/foia/tal663.txt Richardson Public Library (TX) patron requested TTY pay phone

Public TTY Phone? ASCLA Guidelines: 

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

Unlicensed Service Dog?: 

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 1998 http://www.usdoj.gov/crt/foia/tal748.txt

Service Dog FAQ: 

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

Overview of Federal Laws: 

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 1996 Requires public and private to provide communications in accessible formats 47 U.S.C. Sect. 255, 251(a)(2)

ADA Applies to State Library Agencies… For Now: 

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

ADA applies to California State Library Agencies: 

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).

California Law: 

California Law Unruh Civil Rights Act Cal. Civ. Code, Sect. 51 Blind and Other Physically Disabled Persons Act Cal. Civ. Code Sect. 54 Unfair Competition Law Cal. Bus. Prof. Code Sect. 17203 Facilities Public 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/

Sect. 508: Electronic Access: 

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

Americans with Disabilities ActPublic vs. Private Libraries: 

Americans with Disabilities Act Public vs. Private Libraries

ADA StandardsPublic vs. Private Libraries: 

ADA Standards Public vs. Private Libraries ADAAG or UFAS standard ADAAG standard (see handout)

Must Branches be Accessible?: 

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)

Title II and III Complaints: 

Title II and III Complaints Must be filed with Dept. of Justice within 180 days of discrimination www.usdoj.gov/crt/ada/adahom1.hom OR May also be enforced through private lawsuits in federal court

Physical Barrier Cases: 

Physical Barrier Cases

ADA: Public Buildings: 

ADA: Public Buildings On or after January 26, 1992 Facilities 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)

Rehabilitation Act: Recipients of Federal Funding: 

Rehabilitation Act: Recipients of Federal Funding On or after June 3, 1977 Facilities must be accessible Before June 3, 1977 Programs must be accessible 34 C.F.R. § § 104.22 and 104.23

California Facilities Must Be Accessible SINCE OVER THIRTY YEARS AGO!: 

California Facilities Must Be Accessible SINCE OVER THIRTY YEARS AGO! 1968+ Public funds Facilities must be accessible Cal. 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.

Santa Cruz Library Re-cementing was an Alteration - 1978 Calif. Atty Gen Op.: 

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. 555 Opinion No. CV 78-35 (December 22, 1978), Citing Calif. Govt Code Sect. 4456, 4451

Under ADA Patron Must Show: QID: 

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.”

Under ADA Patron Must Show: Denied Program: 

Under ADA Patron Must Show: Denied Program Qualified Individual with Disability? Patron Denied Services, Programs Discrimination because of disability 42 USCA § 12132

Libraries: Affirmative Defense -Fundamental Alteration: 

Libraries: Affirmative Defense -Fundamental Alteration See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164 Fundamental Alteration e.g. put lights on during scary Halloween program

Libraries: Affirmative Defense -Undue Burden: 

Libraries: Affirmative Defense -Undue Burden See 28 C.F.R. § 35.130(b)(7); 28 C.F.R. §§ 35.150(a)(3), 35.164 Fundamental Alteration 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

Case: Patrons Sue Carlsbad over Library Restrooms, Elevator, Drinking Fountain (and other city facilities): 

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).

Under ADA Patron Must Show:: 

Under ADA Patron Must Show: Qualified Individual with Disability? Patron Denied Services, Programs Discrimination because of disability 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).

Common ADA Errors in New Construction and Alterations: 

Common ADA Errors in New Construction and Alterations www.usdoj.gov/crt/ada/errors.pdf Don’t rely solely on architect Common errors listed on handout

Undue Burden to Fix Restroom Right Now: 

Undue Burden to Fix Restroom Right Now Fundamental Alteration 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).

Ramp Installation: 

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 Report http://www.usdoj.gov/crt/ada/aprjun98.htm Natchez, Mississippi

Public Library Program Found Accessible: 

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)

Public Library Program Found Accessible: 

Public Library Program Found Accessible Town of Seekonk (MA) 3 NDLR (LRP) 87 (1992) Additional programs Technical services Reference services Children's room Stacks Reference materials Computer cataloging system, Computer employment search system Computer magazine search system were accessible.

Public Library Program Access: Failed: 

Public Library Program Access: Failed Program Access: Book lending Lunching With Books Summer reading program for children National Library Week AILED no parking no accessible route sidewalk curbs no restrooms Tombigbee Regional Library (MS) 2 NDLR (LRP) 16 (1991) Built before 1977

Public Library Program Access: Failed: 

Public Library Program Access: Failed AILED Steep stairs to basement that had children's area, meeting room and non-fiction books Inaccessible restroom Added disabled parking after complaint filed Seaford Public Library (NY) 1 NDLR (LRP) 227 (1990) Built before 1977

Library in Temporary Location Must be Accessible: 

Library in Temporary Location Must be Accessible ailed to notify patrons that library will retrieve items for patrons Doors Parking Accessible route Restrooms Alarms Drinking fountains Entrances Signage Wheelchair height circ desk No 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)

Orangeburg Library Failed in These ADA Requirements:: 

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)

Access to Information Cases: 

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.

Case: Student Wanted to Use Library’s Special Collections In Another Location: 

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)

Case: Student Wanted to Use Library’s Special Collections In Another Location: 

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

Patron with Mental Impairment Limited to One ILL per Week: 

Patron with Mental Impairment Limited to One ILL per Week Sec 504 claim Patron made 1-20 requests per day Library 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)

Patron with Mental Impairment Limited to One ILL per Week: 

Patron with Mental Impairment Limited to One ILL per Week Sec 504 claim Patron made 1-20 requests per day Library 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

“Digital Accessibility”: 

“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

Does the ADA apply to digital resources online databases and web sites?: 

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.

Sect. 508: Electronic Access: 

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

Web Content Advisory Guidelines: 

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

OCR Letter: Cal State LA(April 1997): 

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. 09-97-2002 199 NDLR (LRP) LEXIS 525 (April 7, 1997)

Are Public Universities and Colleges Held to the Same Standards as Public Libraries? : 

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. 09-97-2002 199 NDLR (LRP) LEXIS 525 (April 7, 1997)

Purchasing Choices: 

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. 09-97-2002 199 NDLR (LRP) LEXIS 525 (April 7, 1997)

Library Hi Tech February 1, 2002 : 

Library Hi Tech February 1, 2002 28 articles on electronic resources and accessibility – from websites to databases to screen readers Available through Ebscohost

California Community Colleges Chancellor’s Office: 

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 01-17 http://www.icdri.org/legal/Ccommunity.htm

Public Libraries and Patron Preferences: 

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)

Public Libraries and Patron Preferences: Analysis : 

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)

Title III (Private) and Websites: 

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)

ACCESS CHECKERS: 

ACCESS CHECKERS Bobby http://www.cast.org/bobby/ TIdy http://www.w3.org/People/Raggett/tidy Tom http://lunch.ncsa.uiuc.edu/tom/

Summary: 

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.

What You Should Know About Public Employee Liability and Immunity : 

What You Should Know About Public Employee Liability and Immunity Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com mm@librarylaw.com Infopeople Webcast Series 2: Third Thursday Thursday, April 17, 2002 12:00 noon to 1:00 p.m

Technical Housekeeping: 

Technical Housekeeping Handouts and archive at Infopeople.org Content comments and questions chat at bottom of screen Technical questions “HELP” at bottom of screen help@horizonlive.com event ID: infopeople (212) 651-8060 Evaluation sent to you http://www.infopeople.org/training/webcasts/