Saturday, July 21, 2012

Disability Discrimination: A Story in Three Parts: Part 2

Part 2: Is Patience a Virtue in this Case?

In attempting to resolve ADA concerns, I always try to approach denial of accommodations or discrimination based on disability using a "teach before tort" approach.

So, that's why, rather than simply filing an ADA complaint against TechSoup Global in early 2012, I decided to try to connect with TechSoup professionals further "up" the chain of responsibility" Perhaps, I thought, the person I had worked with was simply clueless about how the ADA works.

And so, I engaged on a six month email-based dialogue resulting in over 60 pages of emails.

I found out several "bosses" and also the name of the attorney serving TechSoup, and I included them on all emails.

I also connected with an attorney at the National Association of the Deaf, and she connected me with an attorney at DREDF, (Disability Rights Education and Defense Fund) located in California (since that is where TechSoup's headquarters is located and where their 501 C 3 federal designation is filed.)

These two attorneys helped me understand some of the legal precedent and received copies of all email correspondence as we moved on. Our hope was either to help TechSoup change its approach to disability discrimination (so that discrimination stopped) or, through dialogue and email documentation, to prepare a case either for court or for a Title III federal ADA complaint with the US Department of Justice.

Obviously, I hoped for the first outcome, but decided to proceed even if it meant a court case. Webinars are fast becoming a critical means of conveying information and the issue was "ripe" for creating case law through carefully developed cases addressing this as an issue of national importance.

In my emails to TechSoup, I asked questions but also offered TechSoup specific examples of how other entities have implemented the ADA by providing captioning of webinars. Over the next six months, I corresponded with TechSoup almost weekly, sending examples, recommending research and resources, providing links to companies that provide captioning services, pointing to webinars that are captioned, and even suggesting several webinars and websites specifically ABOUT the ADA and accessible electronic media. Even when TechSoup's staff person pointed out that "TechSoup won an award for accessibility for the disabled" (2006, I think), I refrained from saying "Well, what, did you forget how to do it then??!!" and instead suggested that this issue, of choosing not to discriminate against a deaf person requesting a basic reasonable accommodation- captioning of a live webinar- might be a good way to demonstrate TechSoup as a leader.

Even as this prolonged conversation was evolving, I worked behind the scenes in consultation with attorneys interested in the case. I reviewed prior similar cases. I looked at how various federal circuits have treated similar cases. I weighed the pros and cons of a federal ADA complaint with the US Department of Justice against the pros and cons of filing in the state of California.

I realized that, if this was to come to a lawsuit or ADA complaint, we would be helping to create a better future for others who have disabilities...who perhaps simply gave up if TechSoup denied them their rights... or who gave up when others discriminated against them on the basis of disability.

But, I'll be perfectly honest. In my heart, I kept hoping that somehow those with whom I'd been corresponding for months would somehow "see the light"....

Did they? Please read Part 3, next week, and find out!

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