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Frenchie
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Posts: 183

« Reply #40 on: May 24, 2008, 11:20:54 PM »

[M]y point is does the Americans with Disabilities Act of 1990 apply to us? I would think yes.

Interesting question, but I'm not sure why it would.

The ADA, by its own terms, applies to employers, state and local governments, and public accomodations.

It does not appear to cover volunteer groups, clubs, or associations. 

And the Executive Branch of the Federal government is not covered by the ADA (but may be covered by other "ADA-like" regulations.)

You are correct in that the Executive branch is not covered by the ADA, but it is covered by the Rehabilitation Act of 1973 and in particular section 504 which is quite clear on the subject:
http://en.wikipedia.org/wiki/Section_504_of_the_Rehabilitation_Act

However, the term "disability" is defined by the Act as a person that has a physical or mental impairment that substantially limits a major life activity.

So the question becomes, does ADD/ADHD qualify?  I don't think the answer is as simple as having a diagnosis of the condition.  The person having the disorder would need to have it so severely as to meet the definition of "disability" under the act and that can be a pretty difficult bar to hurdle.

However, from the sound of this particular instance, the parents have already come forth and identified the condition and it could be construed that they have already requested "reasonable accommodation" based on the condition and that CAP has already accepted and accommodated the cadet.  This may obligate CAP to continue to accommodate the cadet.

That's just my $0.02 worth.  I'm no lawyer, but I did stay at a Holiday Inn Express last night.

Actually I have an extra duty as a federal EEO counselor, so I do have a bit of experience with these issues.  The legal questions are best avoided if at all possible, because when you go down that road, nobody wins (except the lawyers).

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DC
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« Reply #41 on: May 25, 2008, 12:29:41 AM »

 
Quote
I'm no lawyer, but I did stay at a Holiday Inn Express last night.
;D Sorry, couldn't resist...
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Eclipse
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« Reply #42 on: May 25, 2008, 01:32:32 AM »

Having had to deal with this situation on a number of occasions, I can tell you what I was told by NHQ lawyers about
3 years ago.

As written and defined, the ADA does not apply to Civil Air Patrol, however our leaders saw fit to sign a letter to congress indicating that while they are not bound by the law, CAP would follow it anyway.

Make of that what you will, and if anyone can substantiate different than I wouldn't argue it.

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Frenchie
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« Reply #43 on: May 25, 2008, 04:11:27 AM »

Having had to deal with this situation on a number of occasions, I can tell you what I was told by NHQ lawyers about
3 years ago.

As written and defined, the ADA does not apply to Civil Air Patrol, however our leaders saw fit to sign a letter to congress indicating that while they are not bound by the law, CAP would follow it anyway.

Make of that what you will, and if anyone can substantiate different than I wouldn't argue it.

The Rehabilitation Act is the law CAP is bound by.

CAPR 36-2

...

e. DOD Directive 1020.1, Nondiscrimination on the Basis of Handicap in Programs and
Activities Assisted or Conducted by the Department of Defense, is the basic implementing directive for DOD compliance with the Rehabilitation Act of 1973, Section 504. It states that no qualified handicapped person in the United States shall on the basis of handicap be excluded from participation in, denied the benefit of, or otherwise subjected to discrimination under any program or activity conducted by the Federal Government or receiving Federal financial assistance.
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mikeylikey
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« Reply #44 on: May 25, 2008, 04:26:12 AM »

^ Reading that without the rest of the paper sitting in front of you, you could assume it to mean, the Military is required to let in handicapped people.

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MIKE
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« Reply #45 on: May 25, 2008, 04:35:28 AM »

^ Reading that without the rest of the paper sitting in front of you, you could assume it to mean, the Military is required to let in handicapped people.

I'm off to the mall tomorrow to go see the MA NG recruiter.  Coming soon... PFC Johnston.  ;D
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Mike Johnston
Frenchie
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« Reply #46 on: May 25, 2008, 06:27:07 PM »

^ Reading that without the rest of the paper sitting in front of you, you could assume it to mean, the Military is required to let in handicapped people.

No.  There is such a thing as lawful discrimination.  The FAA isn't required to hire blind controllers.  The airlines have a mandatory retirement age for pilots.  You have to be able to do the job even if you are given an accommodation.
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Eclipse
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« Reply #47 on: May 25, 2008, 07:08:33 PM »

Having had to deal with this situation on a number of occasions, I can tell you what I was told by NHQ lawyers about
3 years ago.

As written and defined, the ADA does not apply to Civil Air Patrol, however our leaders saw fit to sign a letter to congress indicating that while they are not bound by the law, CAP would follow it anyway.

Make of that what you will, and if anyone can substantiate different than I wouldn't argue it.

The Rehabilitation Act is the law CAP is bound by.

CAPR 36-2

...

e. DOD Directive 1020.1, Nondiscrimination on the Basis of Handicap in Programs and
Activities Assisted or Conducted by the Department of Defense, is the basic implementing directive for DOD compliance with the Rehabilitation Act of 1973, Section 504. It states that no qualified handicapped person in the United States shall on the basis of handicap be excluded from participation in, denied the benefit of, or otherwise subjected to discrimination under any program or activity conducted by the Federal Government or receiving Federal financial assistance.


We are not part of the DOD.
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Hawk200
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« Reply #48 on: May 25, 2008, 08:42:20 PM »

You have to be able to do the job even if you are given an accommodation.

A lot of people seem to forget that.
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Frenchie
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Posts: 183

« Reply #49 on: May 25, 2008, 09:47:09 PM »

Having had to deal with this situation on a number of occasions, I can tell you what I was told by NHQ lawyers about
3 years ago.

As written and defined, the ADA does not apply to Civil Air Patrol, however our leaders saw fit to sign a letter to congress indicating that while they are not bound by the law, CAP would follow it anyway.

Make of that what you will, and if anyone can substantiate different than I wouldn't argue it.

The Rehabilitation Act is the law CAP is bound by.

CAPR 36-2

...

e. DOD Directive 1020.1, Nondiscrimination on the Basis of Handicap in Programs and
Activities Assisted or Conducted by the Department of Defense, is the basic implementing directive for DOD compliance with the Rehabilitation Act of 1973, Section 504. It states that no qualified handicapped person in the United States shall on the basis of handicap be excluded from participation in, denied the benefit of, or otherwise subjected to discrimination under any program or activity conducted by the Federal Government or receiving Federal financial assistance.


We are not part of the DOD.

Be that as it may, CAP still receives money from DOD and as such is required to comply with DOD Directive 1020.1 so long as it wishes to continue to receive those funds.  Even if DOD 1020.1 didn't apply (which it does), CAP is still required to comply with Section 504 which says the same thing.
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jimmydeanno
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« Reply #50 on: May 28, 2008, 09:53:35 PM »

Or we could just look at our own discrimination policy/reg...

Quote from: CAPR 36-2
3. Definitions. For the purposes of this regulation:
a. “CAP Member” See CAPR 39-2, Civil Air Patrol Membership.
b. “Complainant” means one who identifies a possible violation of CAP’s nondiscrimination policy, and brings it to the attention of the Equal Opportunity Officer (EOO) or a person in a position of leadership or authority.
c. "Complaint" means a written document listing facts and circumstances specifically alleging a violation of CAP’s nondiscrimination policy.
d. “Investigation” means an authorized, systematic, and detailed examination to uncover facts and determine the truth and validity of a complaint.
e. Qualified Member with a Disability” means a CAP member with a disability who, either with or without reasonable accommodation, can perform the essential functions required by a CAP program or activity that such CAP member desires to participate in.

Quote from: CAPR 36-2
c. All Commanders:
(1) Are responsible for implementing and enforcing CAP policies, procedures, and directives prohibiting discrimination, as well as DOD Directives 5500.11, 1020.1, and AFI 36-2707, throughout their respective commands.
(2) Will ensure that the CAP Nondiscrimination Policy is briefed annually to all members within their respective commands.
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If you have ten thousand regulations you destroy all respect for the law. - Winston Churchill
Frenchie
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Posts: 183

« Reply #51 on: May 29, 2008, 12:01:55 AM »

Or we could just look at our own discrimination policy/reg...

This is correct, however the penalties for disobeying a policy/reg are usually minor and limited to the person violating that policy/reg.  The penalty for violating a law can be a lawsuit filed in federal court or a formal complaint filed with the DOD office of civil rights (which can eventually result in an Administrative Law Judge hearing).

The bottom line is, one should be very careful giving a cadet (or senior member) the boot who may be interpreted as having a disability.  The wing/region legal officer should be consulted before such action is taken rather than trying to sort out complex legal questions at the squadron level.
« Last Edit: May 29, 2008, 12:13:41 AM by Frenchie » Report to moderator   Logged
Eclipse
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Posts: 29,662

« Reply #52 on: May 29, 2008, 02:28:00 AM »

The bottom line is, one should be very careful giving a cadet (or senior member) the boot who may be interpreted as having a disability.  The wing/region legal officer should be consulted before such action is taken rather than trying to sort out complex legal questions at the squadron level.

 :clap:

Absolutely, with the only caveat being that you should go to the Wing CC and let him decide if Legal or anyone else needs to get involved.  Its his problem if things get sporty, and he should not hear second hand from Legal.

As a corporate officer it will also be up to him to decide if an compensating processes or adjustments to the activities are appropriate and reasonable.

No one should be denied an opportunity based strictly on any arbitrary discrimination, but the other side of this is the experience for the rest of the group or activity.

Its got to be fair to everyone involved.

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