QUESTION: What enforcement authority does the Hawaii Disability Rights Center have?
ANSWER: Our core function is to monitor the facilities that exist for people with disabilities and the treatment provided to individuals with disabilities. We have advocates who routinely go to the Hawaii State Hospital and monitor the facility. We don’t have to announce that we are coming. We go there, and our advocates look around to make sure that no one is being mistreated.
We have the same federal access authority to go into virtually any care home or foster home where a person with a disability resides, or penal facility, to ensure that people are being cared for properly.
We don’t have as much enforcement authority as the EEOC (Equal Employment Opportunity Commission) or Adult Protective Services, but we do have the authority to access records if we have probable cause to believe that someone has been subjected to neglect or abuse. We can’t arrest people or fine them, but we can turn the results of our investigation over to people who can.
Q: What service does the center provide, and who qualifies?
A: We provide information, make referrals and offer education and training for people with disabilities, families, communities, legal professionals and service providers. It is estimated that about 180,000 of Hawaii’s citizens have a disability and are potential center beneficiaries. The services are free.
Q: What should employers know about the rights of disabled citizens?
A: In the workplace it’s basically the ADA (Americans with Disabilities Act) that protects people.
Employees can’t be discriminated against on the basis of a disability, and you can’t ask them if they have a disability during the hiring process. Employees with a disability have a right to a “reasonable accommodation,” and you can’t fire them if they can perform the essential functions of the job.
Q: What are the employer’s responsibilities if an employee with a disability asks for a “reasonable accommodation”?
A: The law requires the employer to engage in an interactive process, which is a fancy way of saying that you have to work with the employee to see if there is a way to make the situation work. If you are an employer and I come to you and make a request for an accommodation, you can’t just ignore it or dismiss it. The law requires that you negotiate with the employee even if you think it is too much of a hardship.
I’ve actually seen cases brought by the EEOC because an employer didn’t engage in the interactive process, even though the requested accommodation wasn’t really reasonable. An example of a “reasonable accommodation” would be allowing an employee to start work later a few times a week to visit the doctor, or it may be offering them assistive technology. The cost of the accommodation is generally absorbed by the employer, so if it is too expensive they may be able to argue that is too much of a hardship.
We recommend talking. The more people talk, generally, the more likely they are to reach an agreement. However, in the end, if the employer and the employee can’t agree, a court or the civil rights commission or the EEOC may make a determination after the fact.
Employment law has become a booming field, and lots of private attorneys get paid a lot of money to handle cases. You should know that employers who violate civil rights laws may have to pay the employee’s legal fees.
Q: Do employers have to hire people with disabilities?
A: The ADA and those laws only protect the person with the disability who is able to perform the essential functions of the job. There are myths out there that you have to hire the person with the disability. If the person is unable to perform the job, you don’t have to hire them or keep them on the job. The unemployment rate for people with disabilities is significantly higher compared to the rate of the general population.
Q: Can I pay a worker with a disability less?
A: Generally, no. However, the Federal Fair Labor Standards Act does provide an exemption to the federal minimum wage law. In certain limited circumstances, employers can rate workers with a disability based on the percentage of their productivity and pay them proportionately less.
Q: Give an example of a time that the center represented a person with a disability in a hiring discrimination complaint.
A: I had a case where my client was a blind social worker and the job description required a driver’s license. While driving is an essential function of the job for a truck driver, it isn’t for a social worker.
We filed a complaint with the Hawaii Civil Rights Commission and argued that getting around to see clients is essential to social workers, but how they manage it is generally up to them. In this case the client could take a bus or get a ride. It was determined that the blanket requirement of a driver’s license was disability-based discrimination, so the state removed it from its social work job requirements.
Q: What should landlords know about the rights of citizens with disabilities?
A: People with disabilities have the right to freedom from discrimination in obtaining and maintaining housing. The Fair Housing Act requires a landlord to provide reasonable accommodations and modifications to rules to qualified individuals with disabilities. Application of the Fair Housing Act depends on when the housing unit was constructed and may not necessarily apply to private dwellings. Tenants with disabilities have the right to keep legitimate service animals in their home as a reasonable accommodation. If they require an accommodation such as widening a doorway, you may be obligated to let them do it. While a landlord may have to allow a reasonable accommodation, they do not have the obligation to pay for it under the Fair Housing Act.
Q: Are citizens with disabilities allowed service animals in businesses or condos that have a no-pets policy?
A: Generally, yes. We get many service animal cases. Some cases are legitimate while others are legally questionable. Almost everyone understands the need for a seeing-eye dog, and no one would suggest that they can’t come into a restaurant or a “no pets” building. However, the cases get tougher if the disability is subtle (like a seizure disorder) or psychological. A legitimate service animal must be trained to perform certain tasks that assist you in addressing your impairments. It may not be enough if the animal just makes you feel better or offers emotional support. The Fair Housing Act is less restrictive than the ADA, so there have been some cases where pets that might not necessarily be allowed in a public accommodation might be permissible in your own home.