"The ADA does require us as people with disabilities and as advocates to be bringing these cases. I always tell people there's no "ADA police" that are going around and citing violations-- it is really incumbent upon us as a community to be bringing these cases, to be making good law, to be pushing the envelope, to be educating and bringing awareness to these issues."
Rachel Weisberg is a supervising attorney for Equip for Equality, a protection and advocacy center in Illinois. On this edition of Ask About the ADA, she explains how some ADA complaints are resolved, highlights some of the most recent important ADA cases, and tells us how the law pushes us to be problem-solvers and advocates.
NortheastADA.org
"The ADA does require us as people with disabilities and as advocates to be bringing these cases. I always tell people there's no "ADA police" that are going around and citing violations-- it is really incumbent upon us as a community to be bringing these cases, to be making good law, to be pushing the envelope, to be educating and bringing awareness to these issues."
Rachel Weisberg is a supervising attorney for Equip for Equality, a protection and advocacy center in Illinois. On this edition of Ask About the ADA, she explains how some ADA complaints are resolved, highlights some of the most recent important ADA cases, and tells us how the law pushes us to be problem-solvers and advocates.
NortheastADA.org
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JOE ZESSKI: Hello, everyone. Welcome to Ask About The ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it might apply to your everyday life. I am Joe Zesski, the program manager here at the Northeast ADA Center. On this week's edition of Ask About The ADA, we're joined by a special guest Rachel Weisberg, who I'll introduce more in just a moment.
We're going to talk about her work and how it impacts implementation of the ADA. This is going to be an interview style form. And I'll be joined today by our producer, Grace Fairchild, student worker here at the Northeast ADA Center.
And with that being said, let's dive in to the interview. First of all, Rachel, welcome to the podcast today. Thank you for joining us.
RACHEL WEISBERG: Hi. Thanks so much for having me.
JOE ZESSKI: For those of you who may not have heard of Rachel Weisberg before, she is someone who has been a speaker, an advocate, and has had many different roles during her career. Rachel, can you tell us a little bit about yourself for those people who may not be familiar with you?
RACHEL WEISBERG: Yeah, of course. Hi, everyone. I'm, as Joe said, Rachel Weisberg. I am a lawyer at Equip for Equality. Equity for Equality is the protection and advocacy agency for the state of Illinois. And I have a special love and connection for the ADA network.
Before I went to law school, I actually worked as an ADA Technical Assistance Specialist with the mid-Atlantic ADA center for a few years and then went to law school. And I did a few things right after law school. And I've been at Equip for Equality for about 10 years now.
GRACE FAIRCHILD: So can you talk a little bit about your role at Equip?
RACHEL WEISBERG: Sure. So I am a supervising attorney. And I also manage Equip for Equality's employment rights helpline.
So what that means is I get to do a little bit of a lot of different things, which I really, really like. So in one part of my job, we at Equip for Equality have, again, what's called the Employment Rights helpline. And at the helpline, our goal is to give applicant's, job seekers, employees with disabilities information about their rights and their options and their employment situations.
And the philosophy of the helpline is that there's a time and a place for a lawyer to go in and write a lawyer letter or file a lawsuit. But in so many situations, it's better for us, as the lawyers, to stay out of the picture. And that's especially true in employment situations. And so we help kind of counsel people behind the scenes, which I really, really like.
I also do a number of my own cases, so anything from representing people, again, kind of giving self-advocacy assistance to representing people by sending letters to filing lawsuits. One thing that I've spent a lot of time on in my last decade at Equip for Equality is we represent a class of incarcerated people who are deaf and hard of hearing in a case against our Department of Corrections. And so that's an example I think of a big case that we've been working on over the last decade. And then I also manage a number of other attorneys on our civil rights team who do everything from employment cases to access to businesses to community integration. It's really great to see kind of a broad spectrum of the types of ADA cases that we're able to bring on behalf of our clients.
JOE ZESSKI: I think that a lot of times people are a little more familiar with the straightforward process of filing ADA complaints with federal departments, like the Department of Justice or the Equal Employment Opportunity Commission. A lot of times though people are not as familiar with how ADA advocacy or action can work outside of sort of those more official channels. Could you sort of walk us through a little bit about private lawsuits, how they may develop, what the process might look like, or the other route that you mentioned or touched on a little bit with writing advocacy letters and taking that type of approach? Could you maybe just talk a little bit more about each one and how they separately develop?
RACHEL WEISBERG: Yeah. Absolutely. So one thing that I like about being a lawyer is that it forces us to be creative and strategic and recognize. We always say in the ADA world we have to do an individualized inquiry and everything's a case by case basis.
JOE ZESSKI: Very true. Very true.
RACHEL WEISBERG: So I'm going to use that same analogy to just being a lawyer. Generally, there's not one solution that's going to work for every client in every situation. And lawyers have different approaches to cases as well. So what we Equip for Equality try to do and my personal philosophy, again, is it's great for lawyers to stay out if we can.
So what we like to try to do is counsel people. Let's say there's a situation where somebody needs to ask for a reasonable modification or a reasonable accommodation. That might be a situation where we give advice and maybe review the letter that our clients are going to write on their own.
But then, of course, there are situations where the bad thing has already happened. So we get a call from a client who's already been fired or has requested a reasonable accommodation and it's been denied. And there's really no way that the employer is going to change their mind. Or maybe somebody went to a business, and the business refused to provide an interpreter or kicked somebody out with their service animal. Again, the bad thing has already happened.
Well, then we need to think strategically about what's the best approach to this situation. And sometimes, again, in some situations, we-- and a lot of it depends on what the client is ultimately trying to achieve. So, for instance, we've had a lot of clients over the years who are deaf and need an American Sign Language interpreter perhaps at a medical office. So
Let's say that client asked for the interpreter. The doctor's office said, I can't afford it. I'm not going to do that. Then they call us. And so we have to decide how do we want to approach the situation.
We could do anything from sending a letter to the doctor and say, hey, doctor, perhaps you didn't know there's this law out there called the Americans with Disabilities Act. You, as a doctor, are a place of public accommodation. You need to provide auxiliary aids and services necessary for effective communication. And what that means here is providing a sign language interpreter and we can site all sorts of cases and Department of Justice guidance.
And if our client says my goal in this case is to be able to go to that doctor and have effective communication then sending a letter is just going to be a much faster, much faster resolution. And anyone who's had any interactions with the legal justice system knows that the wheels of justice move very, very slowly. So if somebody just wants to go to the doctor, then us sending a letter is going to be the quickest solution, but there's, of course, times where that doctor says, I don't care that you're sending me a letter.
Lawyer person, I'm still not going to provide it. I still think I don't have to. And there's times where the client says I'm actually not that interested in going back to the doctor. I just feel like the doctor violated the law. And I want to file a complaint about it.
So in that situation, we're kind of taking things up a notch in the level of type of intervention we want to engage in. Then we can decide, do we want to do one of the things that you mentioned, Joe. Do we want to file with the Department of Justice? Do we want to file with our local human rights commissions?
Here in Illinois, we have a State Department of Human Rights. We also have some local commissions at the Chicago and Cook County level, very similar across the country, or do we want to actually file a case in court? And so there's different considerations that we would always take.
And, again, a lot of it goes to, what does the client want? What are they looking for? Do they want to return?
And those are the different factors that kind of help us decide what we want to do next. That was a very long answer. Did that answer your question?
JOE ZESSKI: Definitely. Definitely did.
GRACE FAIRCHILD: Yeah. And I think that's really interesting. And it sort of plays into a question that I have for more from a policy perspective.
So we've talked about how sometimes the Department of Justice or the EEOC will take on some of these cases, but then sometimes they don't, but there's still a valid ADA complaint to be litigated. So can you kind talk about the overall role of private litigation in the overall enforcement of the ADA?
RACHEL WEISBERG: Yeah. I mean, you know, I'm saying a lot about how important it is for people to resolve cases without litigation, but I want to make sure that I'm really emphasizing that litigation is also crucial. That's why we have all of these different tools, because if I'm going to write a behind the scenes letter or I'm going to send a demand letter, it's going to be a much better and more effective letter if I can point in sight different cases that have come out and say, you don't want to be like that person, or you don't want to be like that business. Why don't you do the right thing here, you don't get those cases. And you don't get those decisions, unless there's litigation, unless we have court decisions.
So, Grace, you're absolutely right that the EEOC, Department of Justice, they bring so many cases. The work that they do is phenomenal, but they are two agencies and, as you said, not have the resources to bring all these different cases.
And so there's a really robust private bar out there. There's both the private bar. And as part of the PNA network, there are PNA lawyers across the country bringing these types of cases. And I think we're all working on behalf of our clients, but with the goal of advancing the ADA, and disability rights laws, and again bringing cases on behalf of our client and making sure we're getting good results, but also with an eye to making sure that we're advancing the law as well.
GRACE FAIRCHILD: And I think that flexibility of the ADA has just always been really interesting to me that it can both be federally enforced via complaints but then also civilly enforced.
RACHEL WEISBERG: Yeah. And you know, it shows that the ADA does require us as people with disabilities and as advocates to be bringing these cases. Like I always tell people there's no quote unquote "ADA police" that are going around and citing violations.
It is really incumbent on us as a community to be bringing these cases, to be making good law, to be pushing the envelope, to be educating, and bringing awareness to these issues. There are some challenges in it. I'll just throw out one thing is one difficult part of private litigation is, as folks probably know under Title III of the ADA, there's no there's no remedy for money or monetary relief if you're bringing a claim purely under the federal ADA.
And so what that means is if you're bringing a case in court and you don't have the right to get monetary damages, you have to show that you have standing to ask for something in the future. So you have standing to ask for what's called injunctive relief. So if you say, I want to have this interpreter in the future. I want to be permitted in this business with a service animal in the future, or I want this business to make architectural modifications, you have to show that you have what's called constitutional standing to bring that. And that's unfortunately where a lot of Title III cases fall short, because the courts will say, well, we're not really sure that you want to go back.
And if we don't know for sure that you want to go back to the store, then you don't have the constitutional ability to bring this case. And, therefore, we're not even going to look at whether discrimination occurred. So that's a real challenge I think in pushing the law and also just getting lawyers to bring these types of cases. So I guess that's one difference, I think, between DOJ bringing the case and us as private lawyers bringing the case.
GRACE FAIRCHILD: Right.
JOE ZESSKI: One way that I think a number of people may know you is if they ever have attended the ADA symposium, which is a national event. For those of you who aren't familiar, that's held every year during the summertime, where the ADA National Network puts on a major conference to talk about different ADA-related issues. And Rachel and Equip for Equality have often presented at the conference. During those presentations, you often talk about recent ADA cases that might be of interest or of note. Could you maybe highlight just a couple of those more recent ones for us that you might think of as something that people should be aware of or keep in the back of their minds as having recently come down through the system?
RACHEL WEISBERG: Yeah. Absolutely. But I am going to give a disclaimer that I always struggle to put my top ADA cases in an hour and a half presentation. So there's a lot of disclaimers that I will choose a couple, but there are any other ones out there.
JOE ZESSKI: Exactly. We're not holding you to this is the top two or three. This is just some of interest.
GRACE FAIRCHILD: Just the Rachel highlights.
RACHEL WEISBERG: The Rachel highlights. OK. Well, I will share a few then. So I'm going to start with an employment case.
And I will say that it's been exciting to see as more and more people with intellectual and developmental disabilities move into the competitive integrative workspace. We're seeing corresponding more and more cases on behalf of people with intellectual and developmental disabilities. And that's been exciting to see cases about job coaches and all sorts of issues that haven't been heavily litigated before.
So one case that is new that folks may have heard about just because it was a really incredible result, but this was one of those cases that was brought by the EEOC. Its EEOC versus Walmart stores. It was a case brought in Wisconsin, and the employee had Down Syndrome and worked as a part-time sales associate at Walmart for about 15 years, and she was really successful.
There's no assertions that she was unable to do her job. Her performance was absolutely not an issue. And contributing to her success was the fact that she had a set schedule. So she had some predictability in her life.
But lo and behold, in 2014, Walmart obtained a new scheduling process. And instead of being able to schedule people for their preferred shifts, shifts were automatically generated and spit out through this computer program. Well, this was really difficult for this employee.
And, again, she was a long time solid employee. And so she had asked if she could have go back to her own her old schedule as an accommodation. Walmart denied that request. And then ultimately, she was fired for absenteeism, because she wasn't able to adjust to this new shifted schedule.
So the first thing that happens in a lot of cases is that employers file all sorts of motions and try to get rid of the case. And so that's what Walmart did here in 2020. There was a good decision where the court said, Walmart, we're not going to allow you to get rid of the case. We're going to deny what's called summary judgment.
We think that there's enough factual issues here that a jury should hear the case. Well, fast forward just a few months ago, I think it was in July of 2021. There was a jury trial in this case.
And the jury awarded-- they found that this was discriminatory, they found for the EEOC and this employee. And they awarded, and I'm not misspeaking here, over $125 million. And that is a huge number.
I've actually never seen that high of a number in a case. And I will say that number is, if it hasn't already, it will be reduced. Folks may know that there are what's called statutory caps, where for damages, for punitive damages and emotional distress, it's capped based on how large the employer is.
So here the Walmart would be capped at $300,000. So it'll definitely go down, but it's to me an incredible decision, saying the jury here really got how unjust this is. We've got this great employee, and she just needed this reasonable accommodation to be able to continue doing her job. So that's definitely one of my top Title I highlights of the year.
JOE ZESSKI: And that's a big one too. A lot of times the kind of questions that we get here at the Northeast ADA are about employment. And often people think reasonable accommodations necessarily equal a cost and money to the employer.
It's not often the case. A lot of times it is simple changes or modified occasions, like this with Walmart. It's a matter of scheduling that really was at heart the issue of the case
RACHEL WEISBERG: Yeah. Absolutely. So moving on to Title II, I'm going to just highlight something that is like really hot off the press. And it may be changing. If you listen to this podcast, a month from now the world may have changed a little bit.
GRACE FAIRCHILD: Breaking news.
RACHEL WEISBERG: Right. Welcome to the world of the ADA and COVID-19. But just a couple of things that I think have been really interesting, one is across the country there have been a number of different states that have banned masking in schools or banned masks.
Well, there's been a number of different disability rights, organizations, together with some other organizations that have filed lawsuits across the country, saying that these masks bans are actually in violation of the ADA. And the reason that they make that argument is that we have the ADA, which says that we want to enable students to be able to go to school. And they may need to go to school. If certain students have certain disabilities that put them at a higher risk of contracting COVID or having severe consequences if they do contract COVID, then if their school is not allowed to require masks or even allowed to require masks in their particular classroom as a reasonable accommodation, then that's going to be discriminatory against these kids with disabilities.
So as of today, there have been a number of cases filed. And I wanted to just highlight that in Iowa there was a decision by the court granting what's called a TRO, a Temporary Restraining Order that essentially said-- before we even dive in-- again, the wheels of justice are slow-- but before we even dive in and have a whole case, we're going to automatically say, Iowa, you cannot ban masks in school, because of the severe repercussions that this could have on kids with disabilities. So kind of hot off the press, I think that case came down just last week. But an interesting way that the ADA is being used in the COVID world.
JOE ZESSKI: Yeah. Certainly, COVID is one of those areas where the changes come little bit fast and furious, but something that we talked about internally here at the Northeast ADA and also on the podcast too is that, although, COVID and how the implementation around it develops quickly, the ADA itself still doesn't really change. It's about trying to apply the law to individual circumstances and trying to think through the process of the law itself. It is a law that is very much a case by case kind of analysis.
It requires a case by case analysis. Actually, that's something that the III of us talked about before we started recording today's episode. And it's still true. COVID is another complicating factor, but the process sort of still remains the same, trying to think through how the law applies.
RACHEL WEISBERG: Yeah. Exactly. I mean, and so much of the ADA is taking these foundational principles and applying them to new situations.
GRACE FAIRCHILD: I just have a couple of questions left. So you spoke about how the ADA was being applied with Iowa's that was banning mask mandates in schools. Are there any other ADA applications during our pandemic times that you think that we should be thinking about?
RACHEL WEISBERG: Yeah. I'm just going to go through a few. And, again, these are-- they're all just such interesting and new questions. So the first is COVID-19 itself a disability?
There's been a number of cases that say, if there's somebody who has a pre-existing disability that puts them at higher risk of getting COVID-19, then they're covered by the ADA, of course, but what about COVID-19 in and of itself? So that's definitely something to think through. I mean, what we know so far is that COVID-19 is an impairment.
And so depending on how substantially it impacts you, it might rise to the level of a disability. We also have guidance from the Department of Justice and the Department of Health and Human Services that says that long COVID can, again, based on the severity of it be a disability under the ADA. So that's one huge topic that we're still looking at to decide something to, again, apply these traditional ADA principles in this new world.
Other questions in terms of Title I in the employment provisions is the question of, well, what about things like telework? What is COVID-19 and how folks have adapted to this changing environment? How does that impact telework as a reasonable accommodation?
Historically, courts have been somewhat skeptical about remote work as an accommodation. But I think that that's an area where we're going to see a lot of growth and a lot of changes for people with disabilities. Kind of going along in the employment world, there's a lot of questions about what disability-related questions can be asked.
So can employers ask if people are vaccinated? Can they require proof of vaccination? And the EEOC has said, well, generally. Yes but, of course, again, applying those reasonable accommodation principles, if somebody cannot be vaccinated because of a disability-related reason, then we're probably going to go through that traditional ADA reasonable accommodation requirement.
And I'm just going to keep going. So like in the Title II worlds, some of the other questions that we are asking are, well, how do these traditional ADA principles apply to voting? One again huge kind of silver lining that we saw was all across the country there is a huge change in the different state and local governments providing accessible vote by mail.
And that's something that there's been a couple of cases over the years. But in the last year, because so many more people had to vote remotely to be able to stay safe, we've seen so much progress being made and ensuring that vote by mail ballots are accessible for blind voters who can now often vote privately and independently, which, of course, is so critical and so important. We've also seen some really interesting issues in the world of health care. So issues about a no visitor policy. It's like a very traditional.
We have a rule, but do we need to modify it for somebody with a disability. So do we have a no visitor policy, but what about someone who really needs the visitor to be able to communicate or be able to understand their treatment? And then in the Title III world, what about these again, these rules about masking? Do they need to be accommodated, or do they not need to be accommodated?
And that's something where we've seen some issues of direct threat and undue hardship and undue burden being played in. So you know, it's not surprising the ADA is such a broad law. And COVID-19 has impacted everything about our world. So it's not surprising that we're seeing the ADA trickle into all sorts of issues over the last year.
GRACE FAIRCHILD: That's really interesting. I hadn't even thought about the voting application. That's really interesting. So as we start to wrap up here, what is something that you wish more people knew about the ADA as a law? That's a great question.
RACHEL WEISBERG: Well, one reaction that I wish more people would have. And this was something that actually the director of the mid-Atlantic ADA center taught me when I was an ADA technical assistance specialist. And, you know, she always said that people should just never say no. And the idea is that sometimes people ask for things, and need accommodations, and need reasonable modifications.
And I think that we would all do a lot better at complying with the law and advancing the law if we never just said no. Even if something seemed like it wasn't possible, or wasn't going to work, instead of saying no we just said, let's think about it. Let's explore it. Let's engage in an interactive process and work together and see if we can find a solution, because oftentimes there are those solutions.
And I think that businesses and employers get themselves into trouble when they just automatically default to no. So I'm not sure about whether that's about the law, but maybe about someone's reaction to a request. I would just say never say no. I always say like let's explore that.
GRACE FAIRCHILD: No. I think that's an excellent answer. I think that describes the flexibility of the law and the interactive process and how it's really pretty solution-based.
RACHEL WEISBERG: Yeah. Absolutely. And I mean, that's one of my favorite parts of this. It's forcing us to all be problem solvers and to put together a piece of a puzzle. And know only when we all work together and think creatively can we develop solutions.
GRACE FAIRCHILD: Very true.
JOE ZESSKI: And I think this is a great place for us to wrap up for our conversation today. Something that we typically end our podcast with is saying, let's continue the conversation. And it sounds like certainly we have a lot more to talk about.
Rachel, again, thank you for joining us today and being a part of our podcast. We know you have a very busy schedule. We both appreciate it very much.
GRACE FAIRCHILD: Thank you.
RACHEL WEISBERG: Of course. It's my pleasure. It was great talking with you and with everyone listening.
JOE ZESSKI: Thank you. And, Grace, as always, thank you for being a part of it too and for all the work you do on the podcast. Again, this is the Ask About The ADA podcast, brought to you by the Northeast ADA Center. If you have questions about the Americans with Disabilities Act, or about the podcast, please feel free to reach out to us.
You can visit the website NortheastADA.org, send us an email. You can call us if you're in the New York, New Jersey, Puerto Rico, or US Virgin Island area by calling 1-800-949-4232. And, of course, you can always find us on social media, Instagram, Facebook, Twitter, LinkedIn, the whole gambit.
Thanks again to Rachel and to Grace. And as always thank you also to Peter Quinn of the YTI media team for helping to finish off editing the podcast. We look forward to you being with us again in the future. And thank you all. Let's continue that conversation.