Importance of Voting from a Slightly Different Perspective

Importance of Voting from a Slightly Different PerspectiveA Friendly Reminder from Your Civil Rights Legal Program (“CRLP”) Director 

CCDC has always been amazing in its get-out-the-vote efforts. This year, it has assembled a get-out-the-vote team that is bigger and stronger than ever. As the Director of CCDC’s CRLP, I just want to remind you of one of the many reasons why or vote makes a difference.[1] Attorneys who enforce civil rights laws protecting the rights of people with disabilities almost always must bring cases in federal court.

Enforcing your civil rights as a person with a disability or the family member or friend of a person with a disability depends on the judges who get nominated and appointed to federal courts.

If you are a voter (and if you are a CCDC member, we sure hope you are), it is incredibly important when voting to recognize the role that voting for Senators plays in the appointment and confirmation of federal court judges. Federal Judges are appointed by the President of the United States and confirmed by the Senate. Nearly everyone who votes and follows politics knows this is true for the United States Supreme Court. But the same is true for all federal court judges.

So why are we talking about federal court?

Almost all laws that protect the civil rights of people with disabilities are federal laws. The ADA is just one of many examples. Federal courts have jurisdiction over federal laws.

Here is the Constitutional basis for why you will want to consider the position of the Senators you want to vote for:

Presidents appoint all federal Judges, no matter whether they are federal district court judges, Tenth Circuit Court of Appeals judges or Justices on the Supreme Court. In Colorado, the Tenth Circuit is the court where appeals from the federal district court are decided. You can find this all in Article II, Section 2, Clause 2 of the United States Constitution. This is known as the Appointments Clause which gives the President of the United States the power to appoint all federal judges with the “advice and consent” of the U.S. Senate (meaning the Senators vote on whether to confirm the appointed judge or not). So almost all cases disability civil rights lawyers bring to enforce your rights as a person with a disability are filed in the federal court. The judge who is assigned to hear the case is a judge who is appointed by the President and is confirmed by the Senate.

There is a state law known as the Colorado Anti-Discrimination Act (“CADA”) that also provides civil rights protections for people with disabilities. Although CCDC and our state general assembly have done a great job of amending this law to improve it to protect your civil rights. This includes CRLP attorney Andrew Montoya’s work with several bill sponsors to amend the CADA with the passage of HB21-1110. This bill made it clear that government entities and agencies cannot discriminate against people with disabilities. It also makes Colorado the only state that requires that government entities are required to make their websites accessible for people who are blind. But even with the improvements made to the CADA, it does not yet allow for all of the opportunities that most federal laws provide to protect the civil rights of people with disabilities. There are some laws that protect the rights of people with disabilities might be Individuals with Disabilities Education Act (this is just one example) that do not have a similar section in the CADA. For the time being, most disability civil rights cases will remain in federal court.

It is now time to cast your primary ballot. On that ballot, there are United States Senators running. Currently, the incumbent, Michael Bennett, is seeking another six-year term as one of your two Colorado United States Senators. He has two challengers. Of course, after the primary election voting is complete, the current Senator will have only one challenger for the general election.

So if disability civil rights causes are important to you, it is really important to find out what the candidates think and have done with respect to disability civil rights. You can look at their websites and research information about them. CCDC cannot tell you which candidates we believe you should vote for, but lawyers who bring these cases need your help. Does the candidate seek to enforce civil rights for people with disabilities? Is it something they are concerned with? Do they have a history of the subject? Those Senators who want to see the ADA and all of the other federal laws that protect our civil rights as people with disabilities enforced are far more likely to look to confirm judges who want these laws enforced.

If you can’t find information about the candidate’s disability civil rights record, contact their offices and ask. Let them know that you are a constituent who cares about the civil rights of people with disabilities and tell them why it is important to you. Then ask to find out what the candidate’s beliefs are about protecting the rights of people with disabilities. Choosing Senators who believe in the enforcement of our civil rights helps your lawyers help you.

Primary ballots are due June 28. The general election is on November 8. You have time to help your lawyers help you enforce the civil rights of people with disabilities.[2]

[1] For those of you who don’t know, I am a person with a disability.

[2] One other helpful piece of information you should consider when voting for Senators (and the President when the time comes) is what vacancies there are on the United States District Court for the District of Colorado as well as vacancies on the Tenth Circuit Court of Appeals. This means it is helpful to know if there are openings on these courts that need to be filled by the President’s nomination and the Senate’s confirmation. One website for finding this information is the United States Federal Courts Vacancies website available at https://www.uscourts.gov/judges-judgeships/judicial-vacancies.

Written Testimony in Opposition to HB 21-1035, “Expecting Mothers’ Relief Act” | Testimony from Kevin Williams, CCDC Civil Rights Legal Program Director

On March 16, 2021, Civil Rights Legal Program Director Kevin Williams submitted written testimony on behalf of CCDC and himself in opposition to HB21-1035. That day, the House Public & Behavioral Health & Human Services Committee voted unanimously to postpone this bill indefinitely.

To read the testimony, visit the Written Testimony of the Colorado Cross-Disability Coalition in Opposition to HB21-1035.

RTD’s Light Rail Ramp and High Block Policy Change

Investigation date: March 23, 2021. The CCDC Civil Rights Legal Program wants to hear from you regarding whether you have had problems boarding or getting off of light rail trains because people other than those who use wheelchairs and mobility devices are using the ramp and high block to enter and exit the accessible light rail lead train. RTD has had a policy for a long time that requires that the ramp and high block be used only by people who have in their words “legitimate mobility devices and mobility impairments.” See RTD Light Rail High Block Access policy posted on its website which currently reads:

THE BIGGEST CHANGES OFTEN CAN COME FROM SMALL PACKAGES

CCDC mourns the passing of Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg

Julie Reiskin, CCDC Executive Director

Kevin Williams, CCDC Civil Rights Legal Program Director

There are no appropriate expressions to describe the magnificence of this Supreme Court Justice except to say she got the message. Justice Bader Ginsburg believed strongly in the words engraved on the front of her work home for 27 years, “Equal Justice Under Law.” Words you cannot miss when entering the United States Supreme Court building. Justice Bader Ginsburg believed in equal justice under the law, most notably for women, but, more importantly, for everyone. In her personal opinion and those she authored for the court, Justice Bader Ginsburg understood that “We the People” means all people – not only rich white men who have prevented so many people, different from themselves, from attaining equal justice under the law.

Justice Ginsburg left this world on September 18, 2020, at age 87, after a long fight with pancreatic cancer. She left this country with changes in the law that will be remembered forever; changes that must also be preserved.

For nearly 200 years (1789-1967), the Supreme Court looked something like this:

There is a reason the Supreme Court looked like it did. It is called “discrimination” – a term and its insidious effects we at CCDC are familiar with, as was Justice Bader Ginsburg, a.k.a. “The Notorious RGB.” Justice Ginsburg understood discrimination because she lived it. She graduated as the highest-ranking female student in her class from Cornell University. She then enrolled at Harvard Law School as one of only nine women with approximately 500 men, eventually serving on the Harvard Law Review. At one point the Dean asked all nine women the same question, “Why are you at Harvard Law School, taking the place of a man?” 

Ginsburg transferred to Columbia Law School when her husband, Marty Ginsburg, a tax lawyer, took a New York City job. At Columbia, she became the first woman to be on two major law reviews: Harvard and Columbia. In 1959, she earned her law degree at Columbia, graduating joint first in her class. 

Achieving such high honors should have led to a great career with a New York City law firm. However, Justice Ginsburg could not find employment. She explained it this way: despite her extraordinary academic achievements, she had three strikes against her: she was (1) a woman; (2) Jewish; and (3) at that time, had a young child. The expected norm in the late 50s and early 60s was for her to be her child’s caretaker. These combined factors meant finding a job with almost any law firm was nearly impossible. In 1960, Supreme Court Justice Felix Frankfurter, based on her gender, rejected her for a clerkship position. 

In 1963 she became a professor at Rutgers Law School, despite being told that she would be paid less than her male colleagues because her husband had a well-paid job. These experiences led her to co-found the Women’s Rights Law Reporter, a law journal focused exclusively on women’s rights.

It was not until 1967 did the look of the court begin to change with the first Black man named to the Supreme Court – Justice Thurgood Marshall. It was another 26 years before the first woman would be appointed when in 1981, President Ronald Regan nominated Justice Sandra Day O’Connor.

In 1993, 206 years after the Supreme Court’s establishment, President Bill Clinton appointed Justice Ginsburg. The United States Senate confirmed her by a 96–3 vote on August 3, 1993.

In 1972, Ginsburg co-founded and was General Counsel of the Women’s Rights Project at the ACLU. From 1972 to 1974, she participated in over 300 gender discrimination cases. Famously, she successfully argued 5 out of 6 gender discrimination cases before the Supreme Court, claims brought on behalf of both women and men, demonstrating that gender discrimination is harmful to both. 

It wasn’t until Ginsburg’s work in Reed v. Reed, 404 U.S. 71 (1971) that the Supreme Court extended the Equal Protection Clause of the Fourteenth Amendment to women. It prohibits any state from denying “any person equal protection of the laws.” She calculated her winning method by following the strategic approach of Thurgood Marshall, taking a step-by-step approach to challenging gender-based discriminatory laws under the Equal Protection Clause.

Justice Ginsburg was a true believer in equality for everyone. She authored the majority opinion in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) demonstrating her strong commitment to the equal rights of people with disabilities. This landmark decision holds that people with mental disabilities must receive treatment and services in the most integrated setting appropriate to the individual’s needs. This decision established one of the most critical features of the Americans with Disabilities Act (“ADA”): preventing the needless institutionalization of people with disabilities capable of living in the community. Also, this decision recognizes that undue institutionalization qualifies as “discrimination.” 

In reaching this conclusion, joined by a plurality of the Court, Justice Ginsburg relied heavily on the findings and purposes of the ADA including Congress’ determination that 

[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem . . . discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization.

The disability community has long hailed the Olmstead decision as acknowledging the simple yet historically unrecognized reality that people with disabilities should live in “Our homes, not nursing homes!” The Olmstead decision is also the very purpose of the political action disability group ADAPT. ADAPT members are friends and allies of CCDC, people who have spent their lives protesting unnecessary segregation and isolation of people with disabilities. Justice Ginsburg’s opinion in Olmstead was the U.S. Supreme Court’s first recognition that people with disabilities may no longer be incarcerated in nursing homes and other institutions when, instead, living in the community is the appropriate answer. The Olmstead decision remains one of the most important Supreme Court decisions ever reached regarding the end of unnecessary discrimination against people with disabilities. It also demonstrates Justice Ginsburg’s understanding of one of the most crucial of the ADA’s promises – that all people, regardless of perceived differences, are entitled to the same opportunities and equal protection under the law. It was no longer permissible to hide and keep from public view, people with disabilities. CCDC cannot thank Justice Ginsburg enough for this critical ruling. She was a true believer in equal and social justice for all people. 

According to Justice Ginsburg:

When I’m sometimes asked “When will there be enough [women on the Supreme Court]?” and I say “When there are nine,” people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.

It may well be said that Justice Ginsburg’s dissenting opinions are also essential expressions of all people’s equality. Justice Ginsburg has stated publicly that one of her proudest professional moments came when authoring the dissenting opinion for Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). The claim was regarding unequal pay for equal work. Upon retirement, Lilly Ledbetter discovered the pay discrepancy. However, the majority opinion held that Lilly Ledbetter did not raise her claim within the 180-day time frame to bring a claim. Justice Ginsburg made clear in her dissenting opinion that the ongoing disparity in payment between women and men is not something that is discovered paycheck by paycheck. Therefore, the 180 day period in which the majority found had expired was insufficient to ensure proper compensation for such pay disparities. This case led to Congress passing the Lilly Ledbetter Fair Pay Act of 2009, signed into law by President Barack Obama. 

CCDC Executive Director Julie Reiskin could not agree more with Justice Ginsburg’s famous quotation, 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”

The importance of Justice Ginsburg’s passing is a stark reminder to all of us an issue Kevin Williams has been raising with CCDC members and people with disabilities for years:

“Everyone knows that all Federal Court judges and Supreme Court judges are appointed by the President and confirmed by the Senate’s advice and consent. If you don’t think voting matters, you’re not paying attention.”

As of right now, there are less than 45 days until the next presidential election.

The immediate question for all voters and constituents should be whether the current President and Senate should push through this lifetime appointment now or wait until the next presidential election? The last time a Justice died was in 2016 – ten months before the presidential election.  Senator Lindsey Graham, chair of the Senate Judiciary Committee, said the following before the 2016 election shortly after the death of Justice Antonin Scalia:

“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, “Let’s let the next president, whoever it might be, make that nomination.”

He then repeated, 

“And you could use my words against me, and you’d be absolutely right.”

Also, Senate Majority Leader Mitch McConnell echoed Senator Graham’s comments in February 2016:

“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next President may also nominate someone very different. Either way, our view is this: Give the people a voice.”

However, on September 18, 2020, within hours of her death, both senators said they intended to fill the seat left vacant by Justice Ginsburg’s death. Any nominee President Trump puts forward will receive a vote on the floor of the United States Senate.  

CCDC ENCOURAGES OUR MEMBERS to call both Colorado Senators and ask them to wait until after the inauguration and then have an appropriate vetting process.

Contact Senator Cory Gardner

Contact Senator Michael Bennet

No one knows what will happen between now and November 3, 2020, but CCDC encourages you to vote. See Colorado Voter Q & A from CCDC. Your vote counts! Why, when individual voters do not vote for Federal Court judges? It is simple: 

• Federal courts and judges under federal law hear civil rights cases for people with disabilities.
• The president appoints federal judges.
• The Senate confirms the appointment through their power of “Advice and Consent.”
• Therefore, the protection of people with disabilities is in the hands of the President and the Senate.

We will miss Justice Ginsburg for her wisdom, passion for equality, humor, and contributions to the Supreme Court, particularly in equal rights for all people for the last 27 years. 

We continue to ask you to vote on or before November 3. Colorado mail-in ballots will arrive on or around October 9th. In short, voting remains highly important if for no other reason than to ensure the judges throughout the federal court system, including the Supreme Court, are appointed by a President who holds your same values and will nominate the federal judges you want. 

Vote as if your life depended on it. It just might.

Call our Senators and demand a reasonable, thoughtful process for vetting our next Supreme Court Justice.

Contact Senator Cory Gardner

Contact Senator Michael Bennet

Jury Trial Protocols 6/30/2020

Jury Trial Protocols

The U.S. District Court for the District of Colorado has adopted the following protocols for conducting jury and bench trials in the Arraj and Rogers Courthouses in Denver during the COVID-19 pandemic.

SUMMONING AND SCREENING OF POTENTIAL JURORS

• Anticipating a higher rate of excused jurors, the Jury Division has increased monthly jury pools by approximately 40%.
• All potential jurors will be informed of the courthouse mask requirement and urged to bring their own mask. Disposable masks will be available for those who show up without a mask.
• During the week prior to their expected service, potential jurors will be contacted and screened for factors that would automatically excuse the potential jurors from service. These factors include:
  • Currently experiencing any symptoms of COVID-19, including a fever, cough, shortness of breath, or recent loss of the sense of taste or smell;
  • Having had close contact in the last 14 days with any person who has been diagnosed within the last month with COVID-19;
  • Having been asked to self-quarantine by any doctor, hospital, or health agency; or
  • Recognized by the Centers for Disease Control (“CDC”) as a person at higher risk for severe illness from COVID-19.
• On their reporting day, jurors will be directed to an outdoor station to ask them again about the above-listed factors before they enter the courthouse.
• A separate security line will be established for potential jurors in order to promote social distancing and provide for orderly entry into the courthouse.
• Juror check-in will occur in the Arraj Jury Assembly Room, which will allow appropriate social distancing for approximately 50 potential jurors.

JURY SELECTION

Civil Trials:

• Courtroom A201 (the ceremonial courtroom) will be used to conduct voir dire.
• Jurors who are physically able will walk from the Jury Assembly Room to the ceremonial courtroom by stairs instead of elevators.
• Jurors will be seated in the gallery of the ceremonial courtroom, which will accommodate 22 jurors with adequate social distancing. An additional five jurors may be seated in the jury box, and four more jurors may be seated in front of the jury box, if necessary.
• Because the gallery will be occupied by the jury, spectators will not be permitted in the ceremonial courtroom. An audio link will be provided to allow members of the public to call in and listen to the proceedings.

Criminal Trials:

• Courtroom A201 will be used to conduct voir dire.
• Jurors who are physically able will walk from the Jury Assembly Room to the ceremonial courtroom by stairs instead of elevators.
• Jurors will be seated in the gallery of the ceremonial courtroom, which will accommodate 22 jurors with adequate social distancing. An additional five jurors may be seated in the jury box, and four more jurors may be seated in front of the jury box, if necessary.
• Voir dire may be conducted in two rounds, if necessary. In such case, peremptory challenges will be exercised at the conclusion of both rounds against the entire qualified venire.
• A VTC link will be established between the ceremonial courtroom and the Jury Assembly Room so that the jurors seated in the Jury Assembly Room can follow along with the voir dire questions asked in the courtroom.
• Because the gallery will be occupied by the jury, spectators will not be permitted in the ceremonial courtroom. An audio link will be provided to allow members of the public to call in and listen to the proceedings.

EMPANELED JURIES:

• Trial will take place in the assigned courtroom of the presiding judicial officer or, in the discretion of the presiding judicial officer, in the ceremonial courtroom.
• Jurors will sit in the gallery of the courtroom.
• Jurors with sight or hearing issues will be seated towards the front of the gallery.
• Jurors will be instructed to report to an alternate courtroom each morning and at the conclusion of lunch breaks, which will serve as the jury deliberation room.
• Beginning on the morning of the second day of trial, and on all mornings thereafter, jurors will be required to call the assigned courtroom deputy before 7:30 a.m. if he or she is experiencing any COVID-19 symptoms.

TRIAL PROCEDURES:

• Everyone in the courtroom must wear a mask.
• Masks may be removed for purposes of identification in-court and for the purposes of briefly allowing the jury to see the witness’s or party’s face by way of introducing the person to the jury.
• Attorneys and witnesses are encouraged to experiment with different styles of masks prior to trial so that they choose a mask that protects others, but also allows them to be understood more easily when speaking into a microphone.
• Two laptop computers will be set up in the jury deliberation room, which will allow an attorney to conduct a witness examination via VTC without a mask.
• Witnesses may testify in the courtroom with a mask or via VTC from the jury deliberation room without a mask.
• Attorneys may ask questions in the courtroom with a mask or via VTC from the jury deliberation room without a mask.
• Attorneys should address the court and the jury from the table where they are sitting and avoid use of the podium.
• Attorneys should speak from the same microphone for the duration of the trial and avoid touching the microphone. Microphone covers will be provided and changed out during the lunch break and before each day’s trial session.
• Exhibits should be presented electronically or, if necessary, with the document viewer, to avoid passing out or touching paper.
• The Court has procured a two-way electronic transceiver system that will allow private encrypted conversations between people speaking in a quiet voice.
• One pair of transceivers will be offered to criminal defense counsel and the defendant to facilitate confidential communications between the two while in court and still allow for social distancing.
• A second set of transceivers, set on a separate secure channel, will be provided to one attorney for each side/party, the presiding judicial officer, and the court reporter in order to conduct bench conferences.
• Attorneys are encouraged to bring their own ear buds with microphone (male-end plug) for greater comfort and cleanliness when using the transceiver system. Criminal defense attorneys should also bring a set of earbuds for the defendant. Bluetooth is not supported by this system.
• Bench conferences may be conducted using the transceiver system described above. At the judge’s discretion, the judge, one attorney for each side/party, and the court reporter, all wearing masks, can move to the jury deliberation room and/or hallway behind the courtroom to conduct bench conferences without using the transceiver system.
• Parties shall have one, or at most two, witnesses in the witness waiting areas at any one time. Witnesses waiting to testify shall observe proper social distancing and wear masks.
• Because the gallery will be occupied by the jury, spectators will not be permitted in the trial courtroom. An audio link will be provided to allow members of the public to call in and listen to the proceedings.

Bench Trials:

• Bench trials will be conducted in accordance with the trial procedures outlined above adjusted for the absence of a jury.
• Pursuant to the discretion of the presiding judicial officer, members of the public and other spectators will be permitted in the gallery of the courtroom. Spectators may only sit in designated locations in the gallery and must wear masks. In the alternative, an audio link will be provided to allow members of the public and other spectators to call in and listen to the proceedings.

GENERAL COURTROOM RULES:

• All entrants to courthouses must abide by the entry requirements specified in General Order 2020-10.
• Masks must be worn at all times within the courthouse.
• Elevators are limited to two passengers at a time.
• Public bathrooms are limited to two occupants at a time.
• Each person must maintain at least 6 feet separation from other people.
• Hand sanitizer and wipes will be available in all courtrooms.
• Courtroom cleaning protocols have been enhanced; all high touch surfaces will be disinfected regularly.

Adopted by the Court on June 30, 2020.

Click here to download the Original “Jury Trial Protocols” on PDF

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?

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.

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.

ON THIS MEMORIAL DAY, LET US REMEMBER! | A message from Kevin Williams, CCDC Civil Rights Legal Program Director

As many of us know, Memorial Day (formally known as “Decoration Day”) exists for the purpose of remembering, i.e., memorializing, those brave human beings who have died and fallen in combat to protect true and real liberties of this Great Nation! To all of them, so many of whom returned to our country as people with disabilities, on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, many veterans with disabilities are housed (basically warehoused) in veterans’ homes and are dying from the current pandemic at rates far higher than the general population of humans who have the ability to shelter at home. To those great veterans with disabilities and others warehoused in these institutions without any reprieve, on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, the current pandemic affects everyone in ways that none of us could ever imagine. However, people with disabilities who remain the most vulnerable population across the globe and yet who fight for justice with incredible courage and tenacity, on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, ADAPT, certainly one of the greatest and most powerful leaders in the disability rights community dating back to 1983 in Colorado with its roots dating back to 1973, when 19 young people with disabilities incarcerated in nursing homes for most of their lives, said no more and moved into their own apartments. Once in the community with other human beings, they realized there were many barriers — inaccessible public transportation, restaurants, stores, and so many other places. In discussing ADAPT, we cannot forget Wade Blank, a champion of social justice and social change who worked at Heritage House, the place of incarceration where our 19 friends and colleagues with disabilities (many who are no longer with us) were trapped against their will, who helped them in their insistence that they be in their homes and not nursing homes. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, so many people who are currently warehoused in nursing homes across this country and those who work in those nursing homes are dying at a rate far higher than the rest of us were able to shelter in our own homes as a result this pandemic and the fact that no assistance appears to be being provided. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, ADAPT went on to challenge Denver’s Regional Transportation District (“RTD”), the largest “public” bus system now including light rail and commuter rail services in the Denver metropolitan area. Of course, RTD did not think the “public” included people with disabilities. After countless meetings and negotiations between ADAPT members with disabilities and RTD that went nowhere the now-famous “Gang of 19” staged a two-day protest blocking one of the busiest intersections in downtown Denver of Colfax and Broadway, people with disabilities blocked buses with their bodies, getting out of their wheelchairs and lying in the street. This action eventually led to RTD making all of its buses have wheelchair lifts. Denver was the first city in the United States to do so as a direct result of this protest. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, ADAPT and so many people with disabilities, in the great tradition of protest movements for civil rights of Black people, women, the LGTB community and so many other human beings who sought equal treatment and civil rights under the law, those people with disabilities crawled up the United States Capitol steps, many abandoning their wheelchairs behind them in order to demonstrate the struggle of inaccessibility and unequal treatment to get Congress and President George H.W. Bush to enact the Americans with Disabilities Act (“ADA”), on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, the Colorado Cross-Disability Coalition (“CCDC”) was formed by people with disabilities in 1990 bring the promises of the ADA to and ensure they were enforced in Colorado. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, CCDC, and solidarity with so many like-minded disability rights advocates and activists across the country and worldwide, with its mission to ensure social justice for people with disabilities of all kinds, has made major changes on the impact of the lives of people with disabilities in Colorado and throughout the nation. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, attorneys across the country and those who work for CCDC’s Civil Rights Legal Program have spent decades of our lives devoted to the simple principle that people with disabilities are people entitled to the same liberty and justice enjoyed by all human beings. It does not always take a village to solve a problem even though that is a good approach; often, unfortunately, it takes a lawsuit! On behalf of CCDC and all of the hundreds and maybe thousands of attorneys who understand that simple principle, once again, I say, LET US REMEMBER!

As many of us know, CCDC in solidarity with disability rights groups throughout the country, are steering people with disabilities and those in power in the right direction, recognizing the humanity and quality of all people to maintain life, liberty and the pursuit of happiness in the face of this pandemic that is killing us for reasons that make no sense. On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, there are people in this country who seek to take advantage of those accommodations that are necessary in order to provide equality of opportunity for people with disabilities, but we reject and have exposed and stopped your inhumane attempts to do so. The last thing anybody claims they ever want to be is a person with a disability, but so many non-disabled people are willing to try to take advantage of the necessary accommodations people with disabilities need for equality. On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, there people today in this country who claim to have a disability as the reason for not wearing a mask to protect the health and safety of all of us, those with disabilities and those without. There may be legitimate disability-related reasons for not wearing a mask, but to those of you who are doing so illegitimately, we shame you. What you’re doing is despicable and will not be tolerated. On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, “The economic shutdown related to COVID-19 has complicated the lives of Colorado people with disabilities, who find their routines upset, their jobs at risk and their quest for affordable, accessible housing more difficult.” On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, on this Memorial Day, often-called the unofficial “First Day of Summer,” “This ain’t no party, this ain’t no disco, this ain’t no foolin’ around!”[Lyrics from “Life During Wartime.”© David Byrne, 1979. Talking Heads, Fear of Music album and featured in the 1984 film Stop Making Sense]  Our friends, our loved ones and our colleagues are dying in large numbers. The death toll in the United States will most likely reach 100,000 as of the end of this hallowed Memorial Day! On behalf of CCDC, once again, I say, LET US REMEMBER!

— Kevin W. Williams, Civil Rights Legal Program Director, Colorado Cross-Disability Coalition. Memorial Day, May 25, 2020. Permission to share and distribute widely because we need to remember and continue in the proud tradition of disability rights activists all over the world and fix this calamity as soon as possible and save ourselves! We SHALL overcome!

READ THE PDF VERSION, CLICK HERE

PART 3: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA

Please see Part 1  and Part 2 for other important related information.

THE FOLLOWING PROVIDES AND EXPLANATION OF THE LEGAL BACKGROUND REGARDING DISABILITY DISCRIMINATION THAT MAY OCCUR BY PLASMA CENTERS, INCLUDING CSL PLASMA:

According to their website, CSL Plasma states the following with respect to “Who Can Donate?”

Anyone in good health, 18 or older, who weighs at least 110 lbs, have had no tattoos or piercings within the last 12 months, meets our eligibility and screening requirements, has valid identification and a permanent address is eligible to donate plasma.

To maintain high health standards, a member of our medical staff gives every potential donor a screening examination, and gathers medical history information. This is for the donor’s safety as well as the quality of the product that will be made from plasma, and we assure the utmost respect to donor privacy.

Both the requirements regarding “good health” and the required “screening examination” may very well discriminate against people with disabilities, even though they may have been put in place with the best of intentions. These phrases often serve as buzzwords for disability discrimination. For example, what does “good health” mean and who gets to decide? Also, as explained below, “screening examinations” may screen out letting people with disabilities donate plasma even when an individual’s disability has nothing to do with the ability to provide a plasma donation safely.

Plasma centers like CSL Plasma are places of public accommodation under the Americans with Disabilities Act (“ADA”) and the Colorado Anti-Discrimination Act (“CADA”) and are not permitted to discriminate on the basis of disability.[1] As such, CSL Plasma cannot refuse to allow you (if you are an individual with the disability) to donate and receive payment for doing so on the basis of disability except under very limited circumstances. If you have already contacted a CSL Plasma center in the past and have been denied the ability to donate plasma based solely on the basis of your disability or if you call now to try to make a donation, here are some key things to remember:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ow/ns, leases (or leases to), or operates a place of public accommodation.[2]

Both Title III of the ADA and the CADA apply to the owners of public accommodations and/or businesses that lease a place of public accommodation or operate a place of public accommodation, although the CADA refers to “any person” who discriminates whereas the ADA only applies to entities that discriminate, not persons.[3] You should also be aware that Title III of the ADA prohibits an entity from engaging in contractual, licensing or other arrangements that result in discrimination on the basis of disability as well.[4] The CADA is intended to apply all of the same standards and defenses as the ADA.[5] As a result, it is possible, for example, that the CADA incorporates standards pertaining to contractual licensing and other arrangements that result in discrimination. Title III of the ADA prohibits many forms of discrimination some of which are very direct and others are much more subtle.

And now for some minutia or “getting in the weeds” of ADA Title III and CADA claims:

An individual or class of individuals on the basis of disability cannot be denied the equal opportunity to participate in plasma donation; nor can an individual or entity like CSL Plasma use “standards or criteria or methods of administration” that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others (for example, a standard that prohibited all people who are blind or deaf or who have any other form of disability that is not specifically related to the individual’s ability to donate plasma).[6] Title III also prohibits imposing “application of eligibility criteria ” that screen out or tend to screen out an individual with the disability or any class of individual with disabilities from participating in plasma donation and prohibits failing to “make reasonable modifications in policies, practices or procedures” when such modifications are necessary to afford an individual with disabilities and equal opportunity to participate in plasma donation or due to a failure to “provide appropriate auxiliary aids and services” (like sign language interpreters if necessary for effective indication) in order to participate in plasma donation.[7] Modifications of policies, practices and procedures under Title III of the ADA may also include requiring that a plasma center not discriminate against an individual with the disability who uses a service animal.[8] Under the CADA, an individual with a disability has the right to be accompanied by a service animal and even a trainer of a or an individual with the disability accompanied by an animal that is being trained to be a service animal is permitted to have the service animal in or service animal in training in any place of public accommodation.[9]

In addition, plasma centers are required to be fully accessible to people with disabilities if they are newly constructed facilities under the ADA if they have been altered or renovated in a significant way, and they must remove architectural and communication barriers when doing so is readily achievable which means without difficulty or expense (like installing accessible parking spaces and ensuring that equipment and rooms are made accessible when doing so is not complicated or expensive).[10] The CADA also addresses design and construction issues with respect to the requirements that it be construed to apply the same standards and defenses available under the ADA reference above and also in its remedial provisions.[11]

For people with mobility disabilities, there is specific guidance issued jointly by the United States Department of Justice, Civil Rights Division, Disability Rights Section and the United States Department of Health and Human Services Office for Civil Rights (“Joint Guidance”). This guidance addresses requirements related to the accessibility of medical equipment and also the need to accommodate individuals with such disabilities. See “Americans with Disabilities Act: Access To Ethical Care for Individuals With Mobility Disabilities.” Here are just some examples that relate directly to this guidance as well as prohibitions set forth in the policies of plasma clinics regarding transferring individuals with mobility disabilities:

• • Question: I don’t want to discriminate against patients with disabilities, but I don’t want my staff to injure their backs by lifting people who use wheelchairs onto exam tables. If my nurse has a bad back, then she doesn’t have to help lift a patient, does she?

Staff should be protected from injury, but that doesn’t justify refusing to provide equal medical services to individuals with disabilities. The medical provider can protect his or her staff from injury by providing accessible equipment, such as an adjustable exam table and/or a ceiling or floor based patient lift, and training on proper patient handling techniques as necessary to provide equal medical services to a patient with a disability. (See Part 4 [of the document] for more information on this equipment.)

• • Question: What should I do if my staff do not know how to help a person with a disability transfer or know what the ADA requires my office to do? Also, I am unsure how to examine someone with spasticity or paralysis.[12]

To provide medical services in an accessible manner, the medical provider and staff will likely need to receive training. This training will need to address how to operate the accessible equipment, how to assist with transfers and positioning of individuals with disabilities, and how not to discriminate against individuals with disabilities. Local or national disability organizations may be able to provide training for your staff.[13]

Therefore, it might very well be considered discrimination on the basis of disability if a plasma clinic has a policy or standard that requires an individual who uses a wheelchair who wishes to donate plasma to be able to transfer herself to a device such as an examination table or chair used for plasma donation independently and without any assistance from the staff working at the plasma center.

Furthermore, it is very important that plasma centers do not discriminate on the basis of myths, fears, and stereotypes associated with disabilities as often occurs with respect to people with cognitive or psychiatric disabilities.[14] Therefore, if a plasma center prevented someone during its screening process from donating plasma because of fears or stereotypes related to the individual due to a condition that causes muscle spasms, seizures or psychiatric disorders, all of these actions may constitute discrimination under Title III. Likewise, if a plasma center refused to allow someone to be a plasma donor because the individual had a psychiatric disability based on a fear that the individual might attempt to donate plasma without having taken his or her medications might very well constitute discrimination on the basis of disability.

There are exceptions to all of the forms of discrimination that are prohibited under Title III of the ADA set forth above, but they are very limited. For example, if allowing the individual to donate plasma would cause an “undue burden to the plasma center, or if the individual somehow constituted a direct threat to the health or safety of others even if the behavior that caused that direct threat was related to disability and could not be accommodated reasonably, the plasma center may refuse to allow the individual to donate plasma. Even when a plasma center falls under the ADA provisions addressing newly designed and constructed facilities, there might be an exception for full and complete accessibility if it is structurally impracticable to make the facility accessible and in compliance with the requirements for the Standards for Accessible Design. There may be other disability-related reasons why an individual might not be able to donate plasma (for example, if an individual had some blood-related disease that would interfere with providing plasma, this might constitute an exception). Nevertheless, as said, the exceptions are very limited. As an example of the limitations on the exceptions, making a  determination as to whether allowing an individual with a disability to donate plasma constitutes an undue burden for the facility at issue, many considerations must be made like determining resources and capabilities of any parent company involved with the facility in question. Another example relates to the structural impracticability defense related to designing instruction. A public accommodation like a plasma center would have to prove that the conditions under which the facility was built made it almost nearly impossible to build it in for compliance with the ADA if it falls under the newly designed and constructed facilities provisions.

Therefore, as set forth in Part 1 of this Alert, please let us know if you have experienced discrimination on the basis of your disability by CSL Plasma, or, as set forth in Part 2 of this Alert if you wish to contact CSL Plasma and donate plasma, and you experience discrimination on the basis of disability as a result, please do contact Kara Gillon at the email address or telephone number listed in Part 1 of this Alert.

[1] 42 U.S.C. § 12181(7)(f) (defines “public accommodation” to include the office of a healthcare provider or other service establishment); Colo. Rev. Stat. § 24-34-601(1)(defines “place of public accommodation” to mean a place of business engaged in sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering sales to the public or public facility of any kind whether indoor or outdoor); Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1234 (10th Cir. 2016) (holding that a similar plasma donation center is a public accommodation under the ADA).

[2] 42 U.S.C. § 12182(a); Colo. Rev. Stat. § 24-34-601(2)(a) (referencing the prohibition of discrimination on the basis of disability by any “person” defined elsewhere in the statute, Colo. Rev. Stat. § 24-34-301(5)(a), as including limited liability companies, partnerships, associations, corporations and other entities similar to those identified in Title III of the ADA).

[3] Id.

[4] 42 U.S.C. § 12182(1)(A)(i)-(iii).

[5] Colo. Rev. Stat. § 24-34-802(4); Colo. Code Regs. § 708-1:60.

[6] Id. §§ (b)(1)(A)(1) & (b)(1)(D).

[7] Id. §§ (b)(2)(A)(i)-(iii).

[8] 28 C.F.R. § 36 302(c)(1).

[9] Colo. Rev. Stat. §§ 24-34-803(1)(a) & (2)(a) & 24-34-804(1). Both the ADA and the CADA place some limitations on the use of a service animal (and/or under the CADA a service animal in training). 28 C.F.R. §§ 36.302(c)(2), (4), (5) (the animal must be in the control of its handler, the animal must be housebroken and public accommodations are not responsible for the care or supervision of service animals); Colo. Rev. Stat. § 24-34-803(4)(requiring that a service animal or a service animal in training must be under the custody or control of the individual wh the disability or the trainer).

[10] 42 U.S.C. §§ 12183 (applicable to new construction and alterations) & 12182(b)(2)(A)(iv) (applicable to the requirement of existing facilities — those designed and constructed before the enactment of the ADA — to remove structural and communication barriers when doing so is readily achievable).

[11] Colo. Rev. Stat. §§ 24-34-802(b)-(c).

[12] A similar analysis would be applied to a blood donation center or plasma donation center.

[13] The guidance provides direct contact information for the ADA Website and the US Department of Justice as well.

[14] 28 C.F.R. pt. 36, app. C at 706 (a person who is not allowed into a public accommodation because of the myths, fears, and stereotypes associated with disabilities would be protected under the ADA as would an individual who was denied services because the public accommodation feared a psychological condition constituting a disability might result in problems if the individual was not medicated properly).

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PART 2: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA

Please see Part 1  and Part 3 for other important related information.

CCDC MEMBERS, IF YOU HAVE NOT ALREADY ATTEMPTED TO DONATE PLASMA TO CSL PLASMA (See all locations set forth in Part 1 of this Alert):

• DO YOU NEED TO EARN MONEY? (Silly question, we know.)
• DO YOU WANT TO SAVE LIVES BY HELPING YOUR FELLOW COLORADANS? (CCDC members are always the first responders when it comes to helping others.)
• DO YOU WANT TO HELP CCDC WITH A DISABILITY DISCRIMINATION WITH AN INVESTIGATION BY DONATING PLASMA OR TRYING TO DO SO? (We need your help to determine what, if any, discrimination on the basis of disability is happening.)

What could be better than that? A trifecta. CCDC members and friends, would you like to earn up to 400 extra dollars per month[1] on an ongoing basis and provide an enormously needed service to help others in need? Why not donate plasma? Currently, plasma centers are designated as a “Critical Business” that will remain open for purposes of making donations under the current Colorado Order and PHO (see Part  1 of this Alert for links to these orders) as well as under the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency[2] because their services are needed desperately by those who need plasma. In addition, CSL Plasma advertises that it is taking extreme precautions to follow all COVID-19 protocols in order to ensure the safety of those of you who want to help others who desperately need donated plasma.[3] CCDC certainly wants to ensure that all of its members and our families, friends and colleagues stay safe and healthy. Finally, CCDC wants to make sure that CSL Plasma is not discriminating against people with disabilities and needs your help to investigate whether this is happening.

We all know everyone is struggling both with worries about their own physical health and the physical health of their friends and family, and we all are dealing with economic circumstances that also provide us all with a great amount of stress. For many, economic problems are enormous.   On top of the physical health and economic concerns that weigh heavily upon all of us, our current circumstances are affecting many people’s mental health as well.

One way we can all benefit others as well as earn some income during these stressful economic times is to donate blood and plasma. Because people are staying at home, they are much less likely inclined to provide needed donations of blood and plasma to those centers that will make it available for life-giving and life-sustaining procedures for so many people throughout our state.

Several recent news reports provide some examples regarding medical needs in Colorado, and plasma donations are needed now more than ever.[4]

CCDC is investigating CSL Plasma, because there is reason to believe that this entity is discriminating against people with disabilities and preventing them from donating plasma as a result. Even though people with disabilities want to do their part and help others as well as earn needed income in the process, they might be turned away from doing so for reasons resulting from disability discrimination that could very well violate the Americans with Disabilities Act (“ADA”), the Colorado Anti-Discrimination Act (“CADA”) and possibly other disability rights laws.

You can earn up to $400 for donations each month and help save other people’s lives in the process. Even though you might have already received or soon will be receiving a tax refund and/or a stimulus check, for many of CCDC members with disabilities, this additional money can really help especially those on lower incomes and those who are currently not working because of the pandemic. By doing so, you can provide a potentially life-saving service for so many people who are either hospitalized or have conditions requiring them to need plasma transfusions for reasons that may or may not be related to the current pandemic. This needed service for others can help CCDC members with disabilities with their needed extra income.

So, by donating plasma, you can serve three very meaningful purposes: (1) You can help yourself make it through these difficult economic times; (2) you can help others who so desperately need plasma to survive; and (3) you can help CCDC with its investigation regarding whether this plasma center is discriminating on the basis of disability. This is an extremely rare win-win-WIN situation!

So many CCDC members (many of home live on lower and fixed incomes) who have always stepped up to help others in need in the past have asked us at CCDC, “What else can I do to help fellow Coloradans during this horrible and unexpected crisis?” This is one more critical time and one more urgently needed way to help. This very well may be the most critical time we have ever seen with respect to all of us needing to help each other. Clearly, donating needed plasma will help others stay alive as we all work to help each other get through the pandemic together.

Furthermore, CCDC has become aware and is very concerned that the entity that runs these plasma centers may be discriminating against people with disabilities who want to serve others in helping to donate plasma. We have reason to believe that these plasma centers may be prohibiting many people with disabilities, solely on the basis of disability, from donating plasma.

As set forth in Part 1 sent earlier, please let us know immediately (1) if you have tried to donate plasma at one of the Colorado centers listed in Part 1 And available on the CSL Plasma website for Colorado locations, and, in doing so, if you have been denied the ability to donate plasma for a disability-related reason (the appropriate contact information and what information you should provide is all set forth in Part 1); or (2) if you would be willing to try to donate plasma to assist others and earn some income during these trying times.  You can find the plasma center near you in the state of Colorado and contact the facility of your choice if you would like to donate plasma. Their website provides other useful information you will need as well.

[1] Please keep in mind not every payment will be $400.00. That is the maximum amount an individual might receive for donating plasma in a given period of time. According to the CSL Plasma Frequently Asked Questions page:

You can get paid up to $400 each month by donating life-saving plasma. This is applicable for eligible, qualified new donors. Fees vary by location. In addition, you can also receive points (called iGive) for your donations. iGive points can be redeemed for extra cash deposited (loaded) right to your reloadable prepaid card. Check with your preferred CSL Plasma donation center to see if they are participating in any other special promotions.” In addition, The U.S. Food & Drug Administration (FDA) regulations state that the maximum frequency you can donate plasma is once in a two-day period – and, no more than twice in a seven-day period.

[2] See CSL Plasma Corona Virus page and Safe Passage letter; as stated in Part 1 of this Alert, CSL Plasma centers also fall under the “Critical Business” exception to the Stay at Home Order executed by the Colorado Governor and as described by the Colorado Department of Public Health and Environment in its implementation of the Order § III(C) which excludes businesses engaging in healthcare operations and provides a non-exhaustive list, including businesses like blood banks and other healthcare operations like plasma donation centers.

[3] CSL Plasma “Our Message to Our Donors.”

[4] See, e.g., “Denver man with rare disease is asking people to donate blood during the stay-at-home order,” Denver Post, https://www.thedenverchannel.com/news/coronavirus/denver-man-with-rare-disease-is-asking-people-to-donate-blood-during-the-stay-at-home-order (last visited Apr. 7, 2020); “Local family seeks plasma donor for life-saving COVID-19 treatment,” Fox31 Denver, https://kdvr.com/news/coronavirus/local-family-seeks-plasma-donor-for-life-saving-covid-19-treatment/ (last visited Apr. 7, 2020); “Colorado hospital calling for donors to help with experimental, ‘promising’ coronavirus treatment: Convalescent plasma treatment is being used at Children’s Hospital Colorado,” ABC News, https://abcnews.go.com/Health/colorado-hospital-calling-donors-experimental-promising-coronavirus-treatment/story?id=69951910 (last visited Apr. 7, 2020).

This three-part Alert will be followed by Part  3, the final installment of the Alert pertaining to the applicable law and how disability discrimination might occur related to those who wish to donate plasma. Part 1 sent earlier explains who to contact and what information you should provide if you feel you have experienced disability discrimination as a result of contacting CSL Plasma.

⇐Part 1                    Part 3⇒

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PART 1: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA

Please see Part 2  and Part 3 for other important related information.

HAVE YOU EXPERIENCED DISCRIMINATION ON THE BASIS OF DISABILITY AND ATTEMPTING TO DONATE PLASMA TO A CSL PLASMA CENTER IN COLORADO BECAUSE OF YOUR DISABILITY?

For example, were you denied the opportunity to donate plasma and receive payment for doing so for a disability-related reason? If so, our Civil Rights Legal Program needs to hear from you as soon as possible. Please contact Kara Gillon at ccdclpa@ccdconline.org or (303) 660-8254. Email is best as the Colorado Cross-Disability Coalition (“CCDC”) staff are all following the current EXECUTIVE ORDER D 2020 024, AMENDING AND EXTENDING EXECUTIVE ORDER D 2020 017 ORDERING COLORADANS TO STAY AT HOME DUE TO THE PRESENCE OF COVID-19 (“Order”), entered April 6, 2020, as well as the UPDATED PUBLIC HEALTH ORDER 20-24 IMPLEMENTING STAY AT HOME REQUIREMENTS (“PHO”), dated March 26, 2020, and issued by the Colorado Department of Public Health & Environment. Most of us are working at home unless otherwise necessary. CCDC is permitted under these orders to have staff in the office, but we are working at home unless otherwise necessary.

WHAT DO WE NEED FROM YOU? We need to know as much precise information as possible which may include the following: (1) when you made the contact with any of the CSL Plasma Centers located in Colorado (the previous link provides all addresses and other necessary contact information, also listed below); (2) all reasons why you believe you were discriminated against on the basis of your disability; (3) who you talked to and when and what was said.

Leave a good time to contact you (again preferably by email) and your name, telephone number, email address and whether you are a CCDC member already.

If you would like to become a CCDC member, membership is free and can be extended to any individual who believes in social justice for people with all types of disabilities. You can become a member easily by logging on to the CCDC Membership Website Page. By becoming a member, you may elect to receive important information regarding all activities of CCDC which are especially important in light of the current pandemic.

This is Part 1 of three parts to be included in this Alert.

Part 2 of this Alert will provide you with information regarding whether you would be interested in being a plasma donor which accomplishes three important purposes: (1) Assisting individuals who are in desperate need of plasma donations received those donations during this time of crisis; (2) helping you obtain some additional needed financial resources during this economic crisis; and (3) assisting CCDC with its investigation of this issue and the possibility of disability discrimination.

Part 3 of this Alert will provide you with the legal background for the types of disability discrimination individuals might be experiencing as a result of attempting to donate plasma at CSL Plasma centers.

WE ARE CONDUCTING AN INVESTIGATION AND NEED TO HEAR FROM YOU AS SOON AS POSSIBLE.

Colorado CSL Plasma locations:

Arvada
11651 W 64th Ave Suite B1
Arvada, CO 80004
Ph: 303-425-9959
Fax: 303-423-6464
Mon-Fri 6:30am-7pm; Sat/Sun 7am-5pm
Map This Location
Donation Center Details

Aurora
690 Peoria St. Unit M
Aurora, CO 80011
Ph: 303-363-0095
Fax: 303-363-6732
Mon-Fri 6am-8pm; Sat 7am-3pm; Sun 6am-6pm
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Donation Center Details

Colorado Springs
5506 N. Academy Blvd
Colorado Springs, CO 80918
Ph: 719-284-3258
Fax: 719-387-9767
Mon-Fri 7:30am-6pm; Sat/Sun 9am-3pm
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Donation Center Details

Evans (Greeley)
3505 11th Avenue, Unit #1
Evans, CO 80620
Ph: 970-330-3558
Fax: 970-330-1807
Mon-Fri 7am-8pm; Sat-Sun 7am-7pm
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Donation Center Details

Ft. Collins
1228 West Elizabeth Street, Suite D-3
Ft Collins, CO 80521
Ph: 970-484-2248
Fax: 970-484-2568
Mon-Fri 7am-7pm; Sat-Sun 7am-3pm
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Donation Center Details

Grand Junction
2650 North Avenue
Grand Junction, CO 81501
Ph: 970-233-7947
Fax: 970-241-3511
Sun-Fri 6am-7pm; Sat 6am 5pm
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Donation Center Details

Northglenn
11874 Washington St
Northglenn, CO 80233
Ph: 303-515-7621
Fax: 303-255-1471
Mon-Fri 6:30am-7pm; Sat-Sun 7am-5pm
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Donation Center Details

Part 2⇒                         Part 3⇒⇒

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