August 4, 2010 the Equal Employment Opportunity Commission (EEOC and the ADA

Slide 1: Welcome to the 2010 
Legal Issues Webinar Series
The content and materials of this training are property of the DBTAC - Great Lakes ADA Center and cannot be distributed without permission.  This training is developed under NIDRR grant #H133A060097. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at adaconferences@adagreatlakes.org or toll free 877-232-1990 (V/TTY).

Slide 2: The Equal Employment Opportunity Commission (EEOC) and the ADA
Presented by:
Deborah Hamilton, EEOC Trial Attorney &
Alan Goldstein, Senior Attorney, Equip for Equality
August 4, 2010
This presentation reflects the views of the author(s) and does not necessarily reflect the views of the United States Equal Employment Opportunity Commission

Slide 3: Introduction to the EEOC Process

What we do and how we do it

Slide 4: Laws the EEOC Enforces
•	Title VII of the Civil Rights Act of 1964 “Title VII”
•	The Equal Pay Act “EPA”
•	The Americans with Disabilities Act “ADA”
•	The Age Discrimination in Employment Act “ADEA”
•	Genetic Information Non-Discrimination Act

Slide 5: Types of Discrimination
ADA
	The ADA protects individuals with disabilities.
	Prohibits most medical inquiries prior to a job offer being made.
	Requires that disabled applicants and employees be provided with reasonable accommodations where doing so would not cause an undue hardship on the employer.

Slide 6: Types of Discrimination
GINA
	The Genetic Information Nondiscrimination Act prohibits genetic discrimination in the workplace.
	This law took effect in November, 2009 and forbids using genetic information when making employment decisions, restricts an employer’s ability to acquire the genetic information of employees, and limits the disclosure of genetic information.
	Very new law.  Developing body of case law.

Slide 7: Types of Discrimination
GINA (cont.)
	Genetic Information is any information regarding an individual’s genetic tests, the genetic tests of individual’s family members, and any diseases, disorders, or conditions of individual’s family.
–	Family medical history is included in the definition of genetic information because this information is often used to determine what diseases or conditions an individual is predisposed to.

Slide 8: GINA Claims
•	As of April 2010, it has been reported that the EEOC has received over 80 charges from individuals who have alleged they have been discriminated against because of their genetic information. 
•	Illustrative of these charges is Pamela Fink, who claims she was terminated after her employer discovered she was genetically predisposed to breast cancer.
•	Fink went for genetic testing after her sister was diagnosed with breast cancer. Fink had a double mastectomy as preventive measure; when she returned from surgery she was given fewer responsibilities, demoted, then fired.

Slide 9: The EEOC Process
Individual files a charge; Mediation; Resolution
Investigation; withdrawal/closure/right to sue letter; no cause finding/right to sue letter; settlement; cause finding; Conciliation; conciliation failure; EEOC Litigation Right to sue letter potential referral to private attorney
Slide 10: Mediation
•	Mediation is available as an alternative to the investigative and litigation processes and is a way to resolve disputes before an investigation begins.
•	A mediator is a neutral party to the dispute and helps the parties negotiate a fair and reasonable solution. 
See Equip for Equality Mediation Fact Sheet

Slide 11: Mediation
•	Facts about Mediation
–	Mediators are trained in mediation and EEOC law.
–	The mediation process is confidential.
–	Participation is completely voluntary.
–	There is no financial cost to participating in a mediation.
–	In 2008, 72% of the cases in mediation reached a settlement.
–	Agreements reached in mediation are enforceable in court.

Slide 12: EEOC Investigations I
•	EEOC investigation is not limited to what is alleged in Charge.
–	Can follow up on any discrimination uncovered 
–	Can investigate whether class was discriminated against even on individual Charge

Slide 13: EEOC Investigations II
•	EEOC may issue subpoena if employer fails 	to provide requested documents or 	witnesses.
•	 If employer does not respond to subpoena, 	EEOC may have it enforced in Federal 	Court.
•	Fact that Charge has been filed is 	confidential during investigation -- unless 	EEOC has to go to court to enforce subpoena.

Slide 14: EEOC Investigations III
YOU HAVE TO TELL THE TRUTH
	
	18 U.S.C. §1001 provides that any person who makes a false statement or submission or who conceals or “covers up” any material fact in a matter before the EEOC may be subject to criminal penalties including imprisonment of up to five years.

Slide 15: EEOC at a Glance
•	EEOC has been receiving an average of almost 90,000 Charges per year.
•	“Cause” findings are made on only about 5% of all Charges.
•	Approximately 1 in 10 “Cause” cases are litigated by the EEOC.

Slide 16: EEOC and ADA Statistics
  		FY 2005 	FY 2006 	FY 2007 	FY 2008 	FY 2009 
RECEIPTS 	14,893 	15,575 	17,734 		19,453 	21,451 
RESOLUTIONS 	15,357 	15,045 	15,708 	16,705 	18,776 
RESOLUTIONS BY TYPE 	  	  	  	  	  
SETTLEMENTS 	1,685 	1,812 	2,037 	2,079 	2,065 
  		11.00% 	12.00% 	13.00% 	12.40% 	11.00% 
WITHDRAWALS W/BENEFITS 	846 	866 	1,005 	1,058 	1,217 
  		5.50% 	5.80% 	6.40% 	6.30% 	6.50% 
ADMINISTRATIVE CLOSURES 	2,691 	2,452 	2,861 	2,889 	3,358 
  		17.50% 	 16.30% 	18.20% 	17.30% 	17.90% 
NO REASONABLE CAUSE 	9,268 	9,077 	8,968 	9,760 	11,174 
  		60.40% 	60.30% 	57.10% 	58.40% 	59.50% 
REASONABLE CAUSE 	867 	850 	837 	919 	962 
  		5.60% 	 5.60% 	5.30% 	5.50% 	5.10% 
SUCCESSFUL 	338 	0 	322 	362 	408 
  		2.20% 	2.20% 	2.00% 	2.20% 	2.20% 
UNSUCCESSFUL 	529 	520 	515 	557 	554 
  		3.40% 	3.50% 	3.30% 	3.30% 	3.00% 
MERIT RESOLUTIONS 	3,398 	3,528 	3,879 	4,056 	4,244 
  		22.10% 	23.40% 	24.70% 	24.30% 	22.60% 
MONETARY BENEFITS (Millions)   $44.80 	     $48.80 	             $54.40 	$57.20 	$67.80 

Slide 17: FACING A CAUSE FINDING: Advice for employers
•	If you find yourself facing a cause finding, you should ask yourself, how did I get here?

Slide 18: Cause findings may be the result of:
•	1.	Investigator bias.
		(Very unlikely - investigators have more than 150 cases to work 	on each year, why pick on you?)
•	2.	Investigator error.		
		(Very unlikely – Investigators are well trained and experienced.  	Cases go through 2-3 layers of review before a cause finding.)
•	3.	Respondent broke the law.
		MOST LIKELY
EMPLOYERS HAVE A GREAT DEAL OF CONTROL OVER THE FIRST AND SECOND CAUSES!

Slide 19: Investigator “bias”
•	While investigator “bias” is very unlikely, investigators do have to make inferences and credibility findings.
•	Investigators are humans.  As such, their critical reasoning may be affected by their emotions.
•	THEREFORE:
•	Treat investigators with respect
•	Do not condescend to investigators
•	Do not try to “go around” investigators
	(In other words, treat them the way you would want to be treated.)

Slide 20: Investigator error
	Put responding to the investigation at the top of your “to do” list.  Do not “blow off” the investigation.
•	This is your chance to prove your company acted appropriately and according to law.
•	If you try to make a new argument or present more evidence after a cause finding, you’re too late.
•	Evidence or arguments that you try to present during litigation that were not presented during the investigation may be used against your company as evidence of “fraud” or pretext.

(Remember, in 19 cases out of 20, the investigator will not find cause.) 

Slide 21: Tips for getting investigators to the “right” outcome
•	Provide supporting documentation – employers should provide this with position statements.
•	Provide responses and witnesses for interview in a timely fashion. 
•	Supplement prior submissions when necessary.
•	Conduct a thorough investigation of your own.
•	Cooperate with the investigator.
•	
Slide 22: Tips for avoiding litigation
•	Do the right thing: draft and disseminate a policy; train employees; take complaints seriously; insure policy is followed.
•	Do NOT ask, “What can we get away with?” but, “What should we be doing to comply with the law?”
•	Come to an agreement with EEOC during conciliation. (Also, use pre-investigation mediation and try to settle before a determination.)
•	Know the difference between conciliation and settlement talks.

Slide 23: Tips for dealing with litigation
•	You can’t “bury” the EEOC.  “Scorched earth” discovery just annoys us and costs your company a lot of money.
•	Abusing the charging party or claimants during discovery just makes us mad (and can make your company look bad).
•	We’re (almost) always willing to talk settlement.  The earlier you settle the less your case will cost, in both legal fees and pay-out to claimants.
•	Attacking the agency or the investigation will only waste time and run up your legal bills.
•	Never EVER retaliate against charging parties, claimants or witnesses.

Slide 24: Unlawful and Unsuccessful  Litigation Strategies
•	Insistence on a No-Rehire clause.
•	Attempting to “Buy-off” the Charging Party and other class members.
•	Endless discovery.
•	Sue first.

Slide 25: Tips for settling a law suit with EEOC
•	The Chicago District Office “settles” cases through entry of Consent Decrees.
•	You will be expected, at a minimum, to post a notice for your employees, setting forth the terms of the Decree; keep records and make reports to EEOC; provide training to employees and/or managers; pay compensation to the victims.
•	EEOC does not engage in confidential settlements, EEOC claimants do not sign general releases.
•	EEOC issues a press release when it files a suit, and when it finishes a suit.

Slide 26: EEOC Litigation Under the ADA 
•	Recent Case Report from the Chicago District Office

Slide 27: Five Recent Cases
•	EEOC v. Sears (filed 2004, settled 2010)
•	Employees on workers’ comp leave
•	EEOC v. Supervalu (filed 2009)
•	Employees on disability leave and denied light duty
•	EEOC v. Olsten Staffing (filed 2008, settled 2010)
•	Employees placed in temporary jobs
•	EEOC v. Americall
•	Employees given reasonable accommodations
•	EEOC v. Swisshotel
•	Employees being harassed and wrongfully terminated

Slide 28: EEOC v. Sears – The Facts
Northern District of Illinois - No. 04 C 7282
•	Charging Party was John Bava, who was a service technician for Sears. He was injured on the job when he fell down 14 stairs. As a result of the fall, he suffered knee, back, ankle, and wrist injuries. Additionally, he was diagnosed with Type II diabetes, which was caused by significant weight gain brought on because of his long recovery period. His treatment for injuries sustained in the fall included wrist surgery and knee replacement surgery for both of his knees.

Slide 29: EEOC v. Sears – The Facts
Northern District of Illinois – No. 04 C 7282
•	Consequences from his fall include:
•	Receiving injections in his knees to remain limber, and taking pain management medication on a daily basis.
•	Unable to bend, squat, or kneel.  
•	Substantially limited in his ability to lift 
•	Unable to walk more than 2 blocks at a time
•	Cannot sit for long periods without severe pain, and must alternate sitting and standing

Slide 30: EEOC v. Sears – The Allegations Northern District of Illinois - No. 04 C 7282
•	The EEOC alleged Sears maintained an inflexible workers compensation policy and failed to reasonably accommodate disabled employees.
•	EEOC contended that Sears unreasonably terminated employees who were unable to return to work after their disability leave expired instead of evaluating employees on an individual basis or considering reasonable accommodation that would possibly allow employees to return to work.

Slide 31: EEOC v. Sears – The Settlement Northern District of Illinois - No. 04 C 7282
•	EEOC reached a $6.2 million settlement agreement with Sears. 
–	EEOC looked for class members who were terminated under Sears’ worker’s compensation policy. EEOC determined claimant’s eligibility to participate in the settlement by considering, among other things, the extent of their impairments, their ability to return to work, and whether or not Sears made any attempt to return them to work.
–	The EEOC found 253 class members who received an average award of $26,300.
•	Sears was enjoined from discriminating against its employees on the basis of disabilities.
•	Sears was enjoined from retaliating against employees who file any claims against discrimination under the ADA.

Slide 32: Lessons Learned from EEOC v. Sears
The ADA and Workers’ Compensation

Slide 33: ADA Pitfalls to Avoid in the Worker’s Compensation Process 
•	When evaluating an employee who is injured at work, employers must consider both worker’s compensation obligations and the ADA.
o	Employers whose ADA and worker’s comp processes are completely separate are likely to run into problems.
•	Worker’s compensation laws may use different standards from the ADA to determine whether an employee is disabled.
o	An employee who is totally disabled for worker’s comp purposes may be entitled to able to return to work with an accommodation under the ADA.

Slide 34: For Plaintiffs’ Lawyers
•	Communications with you may constitute part of the interactive process required under the ADA.
•	Consider the impact of workers’ compensation discovery responses on ADA claims.
•	Evaluate the scope of the release that an employer proposes in connection with any worker’s comp settlement.

Slide 35: For Defense Lawyers
•	Worker’s compensation leave is not a substitute for appropriate accommodations under the ADA.
•	An employer may not require an employee with a disability to obtain a full-duty release prior to returning to work.
•	Prior to terminating any employee on worker’s compensation leave, an employer must consider whether that employee can return to work with an accommodation.

Slide 36: EEOC v. Supervalu - Facts
Northern District of Illinois - No. 09 CV 5504
•	There were 5 Charging Parties who allege discrimination by Supervalu on the basis of disability
–	CP suffered a work related injury that impaired her back. She was placed on leave and restricted from lifting more than 20 lbs. by her physician. Instead of engaging in the interactive process, CP was terminated by Jewel although she could perform the essential functions of her job as a cashier.
–	CP repaired and test drove forklifts and suffered from a seizure disorder. Because of his disorder he received a note from his doctor stating that he could not drive. He requested a transfer but was told he could not work unless he received a release to return to his full work duties. 
–	CP was on leave for 11 months after getting back surgery. He was released to work by his doctor as long as he didn’t lift over 25 lbs. CP received a letter from Jewel stating he could not perform the essential functions of the job; he was then terminated at the end of his leave.

Slide 37: EEOC v. Supervalu - Facts
Northern District of Illinois - No. 09 CV 5504
•	There were 5 Charging Parties who allege discrimination by Supervalu on the basis of disability
–	CP worked as a produce clerk and injured her are while on duty. She gave Jewel a note from her doctor which stated she could return to work as long as she didn’t work as a cashier, or a job which required similar repetitive movement. Jewel terminated CP and the end of her 1 yr leave, although she requested to return to her previous job as a produce clerk.
–	CP injured her back while on duty and was temporarily placed in a light duty position, from which she asked to be removed because of pain. She was placed on a 1 yr leave and at the end she received a note from her doctor stating she could return to work if she avoided heavy lifting, stairs, and standing for too long. She asked to return to work but was told she couldn’t unless she was released to full duties.

Slide 38: EEOC v. Supervalu
 Northern District of Illinois - No. 09 CV 5504
•	Jewel-Osco, an entity of the national grocery retailer Supervalu, is alleged to have violated the ADA by :
–	Refusing to allow qualified employees with disabilities who are on authorized disability leave, or who are eligible for it, to return to work if they have any work restrictions, and to have terminated them if they reach the one-year mark on leave.  
–	Refusing to allow qualified employees with disabilities to be assigned to temporary light duty jobs unless they were injured on the job. 
–	Litigation is ongoing.

Slide 39: EEOC v. Olsten Staffing - Facts
Western District of Wisconsin - No 08-cv-565
•	The Charging Party, who was profoundly deaf, sought a job on the production line through Olsten Staffing, a temporary employment agency. Olsten decided not to refer CP for a job because it believed that it would create unsafe working conditions.
•	The staffing agency was concerned that: CP would not be able to hear the presence of forklifts and risked being hit by one
•	CP was qualified for the job and could communicate with co-workers through notes and gestures.
•	Job qualifications included:
•	Occasionally operating a forklift
•	The ability to lift 50 lbs.

Slide 40: EEOC v. Olsten Staffing
Western District of Wisconsin - No 08-cv-565
•	The EEOC alleged that Olsten Staffing had violated the ADA by:
–	refusing to refer a deaf job applicant for temporary employment as a production worker despite his meeting all the actual qualifications for the job. 
•	The settlement included:
–	An injunction against further discrimination on the basis of disabilities
–	A requirement that Olsten provide training to its employees concerning the ADA and report any further complaints of discrimination to the EEOC for the next two years

Slide 41: EEOC v. Olsten Staffing
 Western District of Wisconsin - No 08-cv-565
•	The ADA:
–	 Requires that temporary employment agencies evaluate job applicants with disabilities on the basis of their ability to perform, with or without reasonable accommodation, the essential functions of the jobs for which they are being considered.
•	Prohibits agencies from declining to refer a qualified individual because of his disability 
•	Gives an agency who has reason to believe that one of its clients is discriminating against one of the agency’s temporary employees in any phase of the employment relationship (including hiring and referral), an affirmative obligation to take reasonable steps within its control to remedy that discrimination 

Slide 42: EEOC v. Americall - Facts
 Northern District of Illinois - No. 04 C 5554
•	CP had been blind since birth, applied for a TSR job with defendant in December 2002. 
•	She passed a "pre-screen" by telephone and was invited for a "group interview, " which she attended with a reader and her guide dog.
•	 Although she successfully completed a grammar and listening examination, and the interview went well, defendant rejected her for the position, explaining in its rejection letter that the "facility is not conducive for a seeing eye dog.”

Slide 43: EEOC v. Americall Northern District of Illinois - No. 04 C 5554
•	EEOC alleged Americall, a telemarketing firm, violated the ADA by:
–	failing to hire the charging party for a telemarketing service representative because she was blind and used a guide dog. The rejection letter included a statement that the "facility is not conducive for a seeing eye dog." 
•	The settlement included:
–	$200,000 in monetary relief, consisting of $191,000 in compensatory damages and $9,000 in backpay 
–	An agreement by Americall to to pursue a cooperative relationship with The Chicago Lighthouse for People Who are Blind or Visually Impaired to promote increased employment opportunities for blind and visually impaired individuals at Americall 

Slide 44: EEOC v. Americall Northern
•	The Settlement included:
–	An injunction against discriminating against any qualified employee or applicant with a physical disability in violation of the ADA, and from failing to reasonably accommodate employees or applicants with physical disabilities 
–	A requirement that Americall post a notice about the lawsuit and the settlement and also provide training to all of its supervisory, managerial, HR (including corporate HR), recruiting, and training employees regarding disability discrimination and the duty to reasonable accommodate disabled employees. 

Slide 45: EEOC v. Swissôtel - Facts
Northern District of Illinois - No. 08-5131
•	The CP was a 30 year old male who was born with mental disability which impaired his intellectual abilities as well as ability to interact socially.
•	CP was employed as a steward and his job duties involved washing dishes and cleaning floors, duties which he had performed satisfactorily in previous positions.
•	CP was repeatedly harassed by his supervisor and was called “retarded”, sworn at, and called names and embarrassed in front of other employees.
•	The harassment worsened after CP reported the incidents to HR. CP was often scheduled for back to back shifts and a result from this scheduling was CP fell asleep in the locker rooms and then was subsequently fired.

Slide 46: EEOC v. Swissôtel 
 Northern District of Illinois - No. 08-5131
•	EEOC alleged Swissôtel violated the ADA by:
–	Allowing the harassment of an employee with development disability. Specifically, two supervisors repeatedly called the employee “retarded.”
–	Terminating the employee because of his disability.
•	The settlement included:
–	$90,000 award
–	A requirement to train all Chicago based employees in the ADA
–	A requirement that the employer post a notice informing employees of the lawsuit and settlement

Slide 47: What do these cases tell us about EEOC’s ADA enforcement efforts?
•	Breadth of issues being addressed
–	Number of persons affected
–	Range of types of violations
–	Range of employers
•	Significant settlements both in terms of monetary relief and injunctive relief provisions.

Slide 48: Where is EEOC headed next with regard to ADA compliance?
•	ADA Amendments Act of 2008
–	The Notice of Proposed Rulemaking for the ADAAA was published in the Federal Register for a 60 day comment period in September, 2009.
•	Topic of your next webinar in this series

Slide 49: ADA Amendments Act Highlights
•	Removes Sutton requirement for mitigating measures;
•	Shifts focus of inquiry from whether an individual is a “qualified individual with a disability” to whether discrimination occurred;
•	Emphasizes the “broad coverage of individuals”;
•	States that the EEOC & courts' interpretations of the term "substantially limits" were too restrictive;

Slide 50: ADA Amendments Act Highlights
•	Defines "major life activity" more broadly, including major bodily functions; 
•	Eliminates the “substantial limitation” requirement for “regarded as” claims;
•	Clarifies that an impairment that is episodic or in remission is evaluated when active;
•	Directs the courts to interpret the ADA as a remedial statute, i.e., liberally; 	and
•	Amends the Rehabilitation Act for consistency. 

Slide 51: EEOC Role and priorities moving forward
•	Continue to see active litigation under the ADA from the EEOC as the law under the ADA Amendments Act is developing.

Slide 52: Equip for Equality Collaborations with the EEOC
•	Equip for Equality (EFE) has formed a collaboration with the EEOC in several areas:
•	EEOC-approved ADA Trainer for businesses
•	Pro-se Charging Parties are provided information about EFE for mediation.
•	Where cause is found in pro-se filings, employees are referred to EFE for possible representation.
•	EFE has also intervened in a case where EEOC filed suit.

Slide 53: Practical Tips for Employees
On the job:
•	Medical conditions do not have to be disclosed unless a reasonable accommodation is needed 
•	or unless the employer has a reasonable basis for believing there are performance or safety issues.
•	While employed, document:  Reasonable accommodation requests, medical disclosures, harassment, retaliation, disparate treatment,…
•	Know and follow procedures and policies.
•	Provide medical information when appropriate.
•	Personnel Files:  Feel free to add information or request a copy.

Slide 54: Practical Tips for Employees
At the EEOC:
•	List all possible claims in the Charge of Discrimination
•	Make sure the box is checked if retaliation is involved.
•	Do not miss the deadline for filing 180 / 300 days.
•	Take advantage of mediation, if available.
•	Promptly and completely provide requested information.
•	Treat EEOC staff with courtesy and respect.
•	After receiving the right to sue – request the EEOC file immediately and don’t miss the 90-day deadline.

Slide 55: Thank you for your attention today
The EEOC and the ADA 

Slide 56: General ADA Resources
•	DBTAC: Great Lakes ADA Center: www.adagreatlakes.org;  800/949 – 4232(V/TTY)
•	Equal Employment Opportunity Commission (EEOC): www.eeoc.gov 
•	ADA Disability and Business Technical Assistance Center: www.adata.org 
•	Equip For Equality: www.equipforequality.org; 800/537-2632 (Voice); 800/610-2779 (TTY)
•	Job Accommodation Network: www.jan.wvu.edu

Slide 57: Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
September 29, 2010
Litigation Under the ADA Amendments Act 
Session Evaluation
	
Slide 58: Your feedback is important to us
Please fill out the on-line evaluation form at:
http://ada-conferences.August42010.sgizmo.com

Slide 59: The EEOC and the ADA
The End
Presented by:
Deborah Hamilton, EEOC Trial Attorney &
Alan Goldstein, Senior Attorney, Equip for Equality
August 4, 2010
Equip for Equality is providing this information under a subcontract with the DBTAC - Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability  of Rehabilitation and Research Award No. H133A060097.