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Tag: #FakingDisability

Unmasking the Mask “Debate”—a Message from Your Friendly Neighborhood Quadriplegic Civil Rights Legal Program Director

Photo of Kevin Williams, CCDC Civil Rights Legal Program Director, wearing a suit and seated in front of poster of Justice Thurgood Marshall with caption, “In recognizing the humanity of our fellow human beings, we pay ourselves the highest tribute.”

I have tried to follow what I can regarding everything that has been posted on the mask “debate” subject, but it is time-consuming to follow, and I already have two full-time jobs: (1) I am a civil rights lawyer for people with disabilities;  and (2) I am a quadriplegic which, as many people with disabilities know, comes with it a remarkable number of duties that easily occupy forty hours of my week (managing attendant care, fighting with benefits agencies over “work incentive” programs, managing attendant care payroll duties, addressing durable medical equipment issues and repairs, addressing accessibility issues and failures, dealing with multiple medical appointments with types of medical personnel about whose professions I wasn’t aware before my spinal cord injury, etc.– the usual stuff people with disabilities deal with).

As a quadriplegic for 34 years, paralyzed from the chest down and with limited arm and hand function, pre-pandemic, I had some complicated daily issues. The basic stuff, like getting dressed and getting out of bed. But, because of my quadriplegic hands which I like to call “paws,” I have great difficulty getting my Bluetooth (the only one I found that I can even work) and my glasses on and off independently without dropping them, breaking them or without making my glasses so filthy in the process of taking them on and off independently, I can’t use them. Now, given what I believe is a critical need (and now a duty imposed by Executive Order of the state of Colorado), I cannot get a mask on that loops around my ears on and off effectively. I can’t seem to find any other types of useful facial coverings that work either. I have tried many.

Combine this with the fact that I am an attorney who specializes in disability rights enforcement, and I have to say this whole subject has been very interesting and has become somewhat nauseating. Why? I’ll tell you.

There certainly are a multitude of different forms of masks with varying degrees and levels of protective capabilities and efficiencies. I think we at CCDC have seen and heard and read the gamut of reasons why people claim they cannot wear masks, and some of them even seem reasonable. Recently, for example, CCDC received an email message from a person who said he was an attorney who told us that because he had COPD, he was very upset by the CCDC mask policy which is posted on our website. He stated in his email that he certainly would never recommend anybody use our services because of what he alleged was a discriminatory policy. CCDC designed the policy to address the extraordinary and important healthcare crisis that affects many of our own staff and many people in the general public. As you might be aware, there is a pandemic that is killing people. People with disabilities are often the first to go. Also, has anyone heard the word “comorbidity?” It is a term that is all the rage in newspapers and scientific journals. It is also something that describes the disabilities of many people, including maybe even me.

And, in the case of the “lawyer” who sent the email saying he won’t refer anyone to us because of our “discriminatory” policy, here is what I would have to say about that if a client contacted CCDC regarding such an issue:

First, in order to prove discrimination on the basis of disability, we would have to prove (1) the alleged impairment an individual has (difficulty in breathing, for example) “substantially limits” a major life activity (breathing certainly counts as a major life activity, but how substantially limited is the individual’s ability to breathe as it relates to the COPD and what medical records and doctors we are going to need to be able to prove that to a judge or jury are all questions we must consider. (2) wearing a facial covering (as we are now required to do under Colorado law) somehow prohibits the individual from engaging in the major life activity of breathing (it is pretty unlikely that a mild impact upon the ability to breathe would create a case that would survive dismissal of a lawsuit); (3) is there any other accommodation for that impairment that might allow compliance with the state law mandate and avoid concern regarding the direct threat to the health and safety of others that might alleviate the problem (like a different type of facial covering designed in a way that helps the individual with the impairment and still protects others from getting a potentially life-threatening virus which is the goal here)?

Now, if I can assist someone and jump through all of those hoops, I still have to prove that allowing the individual to avoid wearing the facial covering does not pose a “direct threat” to the health and safety of the individual or others. That is going to require a lot of medical records, medical individuals and their sworn statements and testimony. It is also going to cost a lot of money and take a lot of time. CDDC’s Legal Program might consider taking this on, but what if we can’t prove everything I have listed? A case is not won by someone saying, “I have a disability, and your rule requiring me to wear a facial covering makes things difficult for me.” We need evidence. We need data. We need testimony that is credible. We need proof. AND we need to show the defense of public safety is not real. I would suggest that the evidence of how not wearing a facial covering and spreading germs has a substantial basis in scientific evidence to be able to combat a theory that absolutely no facial covering whatsoever would eliminate the direct threat. I can’t say I know the answer to this question in every case because other than email rants and social media rants and people who make unfounded claims without such evidence is all we have seen so far. If I had all of the evidence before me, I might be able to agree that an individual has a valid claim. Just saying you have a disability and saying that some activity required by law substantially limits you in engaging in one or more major life activities as defined by law is not sufficient to hold up in court, my friends.

Now let’s talk about me some more. I have a limited respiratory capacity (34 years of chest muscles that don’t work as well as having to have been on a ventilator once before after dying from sepsis and having to be resuscitated). I also have a highly compromised immune system as a result of repeated infections throughout my life. These are just a couple of potential comorbidity factors I deal with. Can you tell I really like that word?

Even before the recent Order, CCDC had a mask policy. As did the City and County of Denver. Many people at CCDC gave the mask policy a great amount of consideration. CCDC took into consideration an enormous number of viewpoints. As stated in the policy itself, CCDC always remains willing to update or make “reasonable modifications” to the mask policy and any other policy as needed to address changes in any factors like the availability of the types of masks out there as well as the extremely important need to keep our staff, members, clients and the general public safe. We certainly would not want to create a “direct threat” to the health and safety of our staff and others. Especially the community of people with disabilities we serve and those who run CCDC.

All of this work to create a policy has been done only to result in having extremely nasty insults hurled our way as a result. Luckily, “screaming” arguments usually in ALL CAPS through social media or some other quick and easy method that does not involve actual face-to-face communication with human beings (pardon the choice of words given the subject matter) which are rampant regarding the subject of wearing masks do not force CCDC to take a case or provide assistance without implementing a policy for the intended purpose of saving the lives of those we serve. I can’t help you with your legal claim if either of us dies from COVID-19.

Back to me again. What I have found that works best for me is the basic disposable mask that I wear all day long as a beard cover or chin cover most of the time. I have the good fortune of being able to work at home most of the time to avoid exposing you to the virus (or vice-versa), but there are all sorts of reasons why we all must go out for various reasons, sometimes unexpectedly. Therefore, I have to leave my mask on all the time. I call it my “beard cover” when it hangs below my mouth and nose so I can eat and drink. It is the only method I have found so far that works. I can use my quadriplegic paws to pull the mask up over my nose when I do have to go out. It is quite a look. Yes, it is uncomfortable. Yes, the loops hurt my ears, especially since I have only found one Bluetooth that works effectively for me without having to have somebody with me 24 hours a day and because I have to wear glasses as mentioned above which, along with the mask, rest on my ear all day. Contact lenses don’t work for quadriplegics. But, let us all remember, I am trying to save you from the germs I might have and not know about because this pandemic like other versions of COVID is tricky and doesn’t let you know you’re sick until you have already spread the germs.

Now, you might want to ignore the science that would prove the defendant’s case of “direct threat” if I had to sue on your behalf.  But I can’t bring a case for you unless I have a good faith belief in the claims I must prove and the defenses I must defeat. You are welcome to represent yourself pro se (meaning on behalf of yourself without a lawyer), and I wish you luck, but you still have to convince a court and/or jury of the types of facts I have discussed.

I want to make sure that CCDC would never discount anyone with an actual disability who is willing to engage in the “interactive process” with us regarding how to interact and not create a direct threat to themselves, our staff and others in the many activities CCDC might be involved with. This process is also required under the law for those seeking reasonable accommodations to laws, policies, practices and procedures. CCDC will always make reasonable adjustments and accommodations as needed to accommodate anyone’s disability. Remember, however, when you engage in the “interactive process,” you need to disclose what your disability is, how it substantially limits a major life activity, etc. You need to explain why you need an accommodation such as not wearing a mask. You can send more email messages in ALL CAPS to me if you disagree, but that’s the truth of the matter. Facts are stubborn things. Law is even more obstinate when you have to apply those stubborn facts if what one alleges is even a provable fact. You see, we lawyers have to prove facts. We don’t get to just say stuff to a jury or a judge in ALL CAPS! (Including underlining, bolding, italicizing and fancy fonts won’t sway your judge either, I promise.) We don’t win by doing so.

One of the “disabilities” people have claimed any mandatory mask policy violates includes, “I have to see your face because I read lips.” I do realize the type of mask I wear covers my mouth.

To begin with, CCDC’s policies allow multiple forms of communication that do not require face-to-face contact especially when initial meetings are involved.

In addition, we have had so many expert witnesses in so many cases involving deaf clients who have provided expert reports and/or testimony regarding the generally high level of the ineffectiveness of lip-reading.

Nevertheless, I do understand that the need to see facial expressions is helpful to some people with some communication disabilities. Of course, this assumes we can prove all the factors I listed above.

People have suggested wearing a “face shield.” Because I spent a great deal of time researching what kind of face-covering would work best for me to prevent you from getting my germs, I found out the problem with a face shield is twofold for me: (1) a face shield is really only effective when worn with a mask as well; and (2) I can’t find one that doesn’t just fall off of my head on a regular basis. The same is true of the chin cover I discussed earlier. For example, I was driving to a medical appointment and had my mask simply fall off my face into my lap as I was driving. (By the way, with adaptive equipment, for those of you who don’t know, quadriplegics can drive. For that matter, for those of you don’t know, quadriplegics can also be lawyers.) When I arrived at the medical appointment, an appointment at which I needed to be in close contact with medical personnel, I just used my quadriplegic paw to hold the mask up to my face and requested that the medical personnel help put the ear loops back around my ears. That is what I call a reasonable accommodation based on my disability under the circumstances. I assure you that the medical staff person was wearing a mask and other personal protective equipment at the time. I would not have allowed this to happen if that was not the case for the protection of both of us.

Consequences related to spreading the virus: Having been on a ventilator before, I do not want to subject anyone else to that experience if I can help it. And, as a matter of personal choice, I do not want to have to go that process again. That certainly does not mean that I will not continue representing, as I have, my friends, colleagues and clients who use various breathing devices in order to survive each day. (Many of them also have figured out ways to use facial coverings. ) It is amazing what a person with a disability can do when that person thinks through a problem that when solved might save someone’s life when that person takes a moment to think it through. Of course, that takes a little research and more time then screaming in ALL CAPS. That is what I find so personally annoying about people who say I have [fill in the blank] disability, and, therefore, I CAN’T wear a facial covering.  People with genuine disabilities are the most resourceful people I have ever met. We find ways to get things done that non-disabled people simply take for granted. Like…how to drive when you can’t use your lower extremities and have substantial limitations in your upper extremities. It is a facial covering, people! Figure it out! There are very few situations, if any, I have come across that lead me to believe that there is absolutely no face covering or some other reasonable accommodation that absolutely won’t work for almost all people — those with disabilities and those without — in almost any circumstance. When the goal is saving lives, putting up with some inconvenience and creative thinking is the better approach, in my view.

I believe CCDC has gone out of its way in establishing a policy that allows reasonable accommodation for anyone alleging they can’t wear a facial covering for any number of reasons. Again, we are always amenable to tweaking the policy, but the truth of the matter is, for most of our activities, there are many other ways to communicate without subjecting our staff (or anyone with whom CCDC members interact) to individuals who do not wear masks or vice versa. The same is true for all human beings in all circumstances. Work with your local independent living center or department of vocational rehabilitation. Be creative. Be considerate of others.

And please stop LYING!

All I can say is I strongly agree with a comment made by a fellow disability rights lawyer on a listserv: “The continued co-opting of disability laws for entitled political nonsense is frustrating, to say the least, and detracts from those who really do have difficulties and need accommodation.” Michelle Uzeta, thank you!

As an individual who has lived with quadriplegia for 34 of 53 years of my life, I have absolutely had it with fakers. You know who you are. You make the law that was so extremely hard-fought-for and has changed the lives of many of us with disabilities a joke. We are sick of you.

In general, if you inquired of any non-disabled individual what the worst thing is that could ever happen to that individual or a member of that individual’s family, the ready response would be “to become disabled,” as in paralyzed, blind, deaf, etc., and then have so many of these same individuals take advantage of disability-related accommodations that are truly needed turns my stomach.

By the way, when I say those rights were “hard-fought for,” I ask anyone who has never used a wheelchair because of the disability if they would be willing to become disabled and require the use of a wheelchair and then to hurl themselves out of that wheelchair in front of buses in the busiest intersection of Denver, Colorado to protest the inaccessibility of “public” transportation?

JUL 5 1978, JUL 6 1978. Demonstrators Sleep On the Job. Four demonstrators sleep in the street Thursday morning after spending the night blocking two Regional Transportation District buses near the corner of East Colfax Avenue and Lincoln Street. They were among about 30 persons who maintained an overnight vigil to dramatize the need for greater accessibility to public transportation for the handicapped. The buses, stopped and barricaded by about 30 persons early Wednesday, were freed Thursday morning. The barricade has served its purpose, said Wade Blank. Credit: Denver Post (Denver Post via Getty Images).

Or, how about the numerous individuals with disabilities who literally crawled up the steps of our United States Capitol during the “Capitol Crawl” to protest the inaccessibility of government buildings. These are the activities that helped get the ADA passed.

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"Capitol Crawl" photo of protesters with disabilities crawling up the Capitol steps in Washington, DC to protest the lack of accessibility and get the Americans with Disabilities Act passed.Photo of the “Capitol Crawl” showing protesters with disabilities crawling up the inaccessible United States Capitol steps in order to protest the inaccessibility for purposes of getting the Americans with Disabilities Act passed.

This is why so much fakery leads me to have an extraordinarily increased lack of faith in the ability of human beings to show any empathy. Most non-disabled people will readily say they would rather be dead than disabled. (I might have even said that or thought that way when I had the accident that caused my injury when I was 19. Now, I actually think incurring a disability was the best thing that ever happened to me, but that would be another very long post.)

Beyond that, historically, individuals with disabilities are always the “first to go” (I mean — to be exterminated) when supremacists of any kind try to eliminate anyone they feel does not meet their standards for supremacy as occurred during the Holocaust. Again, you can fact check me if you like before sending your email.

This, along with the current debate regarding racial inequity all serves to provide further evidence of what seems to me like an incredible moral decline in humanity. During my 34 years as a quadriplegic and my 23 years of law practice in the area of disability rights, here are just some of the highlights of what we continue to see happening here in Denver, Colorado (once awarded for being the most accessible city in the country for people with disabilities):

(1) Individuals with strollers who demanded and continued to demand that our regional transportation system allow them to use the designated wheelchair seating sections on buses as well as light rail trains sometimes falsely claiming that the individual or the child in the stroller has a disability that requires the use of the limited wheelchair seating sections.

(2) Individuals who are willing to click the magic box on ticketing websites that states that you or someone in your party requires the use of a mobility device in order for the non-disabled individuals to get front row seats at Colorado’s beloved Red Rocks Amphitheatre (at which the only available wheelchair seating and this historic concert venue is located at the front or back of the venue and could not be placed elsewhere without great difficulty). These fakers even go as far as to use the tickets themselves and dance wildly next to those of us who use wheelchairs and need to sit there, or resell them on some other website at highly inflated prices close to the time of the show saying things like “great front row seating tickets except you might have to sit with a bunch of people who use wheelchairs (read as “cripples”).” Or they simply buy up the entire front row wheelchair seating section preventing those of us who want to attend the concert from being able to do so.

(3) Individuals who borrow a relative’s vehicle with a license plate demarcating the vehicle as one that may park in an accessible parking space or simply borrowing or stealing placards demarcating the same in order to get closer parking spaces especially at times like holiday shopping seasons when the individual has no disability whatsoever that would require the use of such a license plate or placard uses it for the purpose of being able to park closer.

(4) People who fake the need for a service animal or emotional support animal which has become rampant and caused everyone to go online and get a “vest” or fake letter from an alleged medical professional saying they have a need for the animal when there are so many individuals who have a legitimate need and the training service animals are so important to the lives of so many of the people CCDC serves. (I think many of us will have a hard time forgetting the story of the “emotional support peacock.”)

And now, [drumroll, please!] coming to you from some of the greatest fakers in the world for no other reason than politics and the inability to give a moment’s thought to how to save another person’s life or keep the individual from going through extensive, complicated medical treatment that may have extraordinary lasting consequences:

(5) People who won’t wear masks or just don’t like wearing masks who pretend that they are protected by civil rights laws and privacy laws regarding disability screaming (incorrectly) “and you are not allowed to ask me what my disability is” when there is no real disability-related reason to do so. Or those who just refuse to think of the potential consequences:  I recently heard someone who is the 80-year-old relative of a friend say, “Everyone will think I’m a Democrat if I wear a mask.” Therefore, she refuses to wear a mask.

I certainly am not suggesting that there are not circumstances listed above involving an actual individual with a disability with a legitimate need, but we all know people are taking advantage. When people take advantage, it just inspires others to do the same or to believe that the accommodations that people with disabilities need are not real or are not needed. It also is a constant reminder of how despised people with disabilities are. So much so that there is an increasing number of people who simply don’t care and will do anything to take advantage of the necessary accommodations we do need. Even if it means possibly killing us.

People complain all the time that all of the “handicap parking spaces” are always empty even though I can never find a parking space that will accommodate my side-loading wheelchair ramp, so they use that as an excuse as to why they should be allowed to park there when there are no other spaces available.

I hope everyone who is using an alleged and fake disability as a reason for not wearing a mask stays well and healthy and survives this pandemic. You are doing your fellow human beings an enormous disservice. I also wish you well in surviving both this pandemic and the rest of your life without having to incur the types of disabilities you are faking to take advantage of our needed accommodations. Personally, I have absolutely no problem living life as a quadriplegic. What I do have is a serious problem with people who take advantage of laws that have changed my life and allowed me to help change the lives of other individuals with disabilities dramatically despite your utter inhumanity.

Kevin W. Williams
CCDC Civil Rights Legal Program Director
(720) 336-3584
kwilliams@ccdconline.org (any email messages containing ALL CAPS addressing the topics raised herein will be deleted immediately without being read)

P.S. And if this is what it takes to survive the pandemic, so be it!

 

Photograph of Kevin Williams with medical gloves stuck on his hands with toilet paper wrapped around his neck, a mask as described above on his face and a bottle of gin and a can of spray disinfectant in his lap.

 


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