Hi and welcome to the ADA Distance Learning Series hosted by your regional Disability and Business Technical Assistance Center. This session is currently being real-time captioned on the Great Lakes web site at www.adagreatlakes.org You can log in and follow the links for real-time captioning. Today''s session is a special session of the series focused on the recent Supreme Court decision Garrett v. the University of Alabama. We are thrilled to have with us, Sharon Rennert. Hi Sharon.
Hi.
Sharon is an attorney adviser at EEOC and has joined us for previous Distance Learning Programs. Back in November many of you may have joined us during a session with Curt Decker and Sharon Masling of the National Association of Protection and Advocacy Systems where they reviewed the question of constitutionality currently before the Supreme Court. They gave us a mini civics lesson on the 11th and 14th amendments. Sharon Rennert has graciously agreed to join us today to discuss the recent Supreme Court decision in the Garrett case. She is going to review the case and we are going to open it up to questions from the audience. Sharon is going to first of all discuss the Garrett case then we will open it up for questions, and then Sharon is also going to discuss some of the ADA related cases the Supreme Court has agreed to hear in the next term. Once again we will open it up to questions for those upcoming cases as well. With that I would like to turn it over to Sharon, thanks for joining us. What can you tell us about the recent Supreme Court decision?
Well, hello to everyone that I assume is out there. I always worry that I''m actually just talking to my computer in my office. But then my computer will learn a lot over the next hour. I am glad you all had a mini civic lesson a few months ago so I don''t have to get into the technicalities of the 11th amendment and the 14th amendment. Let me start by saying that the University of Alabama v Garrett, the Supreme Court decision in that case, the only thing that it did was to say that individuals could no longer sue a state entity for monetary damages under the employment provisions of the ADA. That is all it said. Individuals could no longer sue a state for monetary damages under the employment provisions of the ADA. The reason I want to start by emphasizing that is that a lot of people have mischaracterized the Supreme Court decision. I''ve heard people say that after the Garrett decision states are no longer covered by the ADA. And that is not true. I''ve heard people say that EEOC can no longer investigate alleged discrimination by state entities. That is not true. So it is very important to understand exactly what the Supreme Court said and what we are now doing as a result of it. Let me briefly review the Garrett decision. It was actually two cases combined in which state employees had brought legal action against two different state entities and alleging violations of Title I of the ADA. What the Supreme Court ruled is that it sort of a matter of Constitutional law as to whether individuals can sue states for violation of federal law. This is not the first time the Supreme Court has looked at that issue. Quite the contrary, a year earlier the Supreme Court had looked at another one of the laws EEOC enforces, the Age Discrimination in Employment Act (ADEA) and had ruled that that statute did not allow individuals to sue states. That case was in Florida. So it really wasn''t a surprise to anybody when the Garrett case came along. We pretty much knew that the handwriting was on the wall. There was a shot that maybe we could convince the Supreme Court that ADA was different than the ADEA. But a majority of the Supreme Court, 5 to 4, did not see such a difference and said that like the earlier law, that when Congress adopted the ADA, it had not done anything to waive a state''s Constitutional right to immunity from individual lawsuits for money damages. What the Court said is that the Congress in adopting the ADA really had not identified that there was a persistent pattern of employment discrimination against people with disabilities by states. There was a very sharp dissent in the case in which Justice Breyer who wrote the dissent, put as an appendix a lot of the legislative history of the ADA, as many of you know Congress before adopting the ADA there were all sorts of hearings held across the country in which they gathered all kind of information, and basically Justice Breyer put it all in and said what do you mean majority, there was no record of persistent discrimination by states against people with disabilities. It is one of the longest appendices against any Supreme Court decision we have ever seen but to no avail. It did not persuade the majority. The majority said no way can individuals sue states for monetary damages. Now by monetary damages, what that means is that individuals cannot sue a state to get compensatory damages, punitive damages, they cannot sue a state to get back pay or what we call front pay. Front pay is where instead of getting reinstated to a job, you get money instead. That is front pay. The Court says no, individuals can''t sue for that. So that is the limitation that comes out of the Garrett case. What does that mean? Where are we? Well, first of all, states are still covered by all the requirements of Title I of the ADA. States cannot discriminate against qualified individuals with disabilities. They have an obligation to provide reasonable accommodation unless it is an undue hardship. They are still bound by all the rules about asking disability related questions and requiring medical examinations. So all the requirements of Title I still apply to states after the Garrett decision. If a state employee or an applicant for a state job beliefs he or she has been discriminated against in violation of the ADA, that individual can file charges, can continue to file charges with the EEOC. And the EEOC still has full authority to go in to investigate, to interview witnesses, to subpoena documents if it comes down to that, and to reach a decision. We still have the authority, if we find sufficient evidence, to rule that a state did indeed violate the ADA and then to bring parties together to see if we get a settlement. If we cannot get a settlement, then EEOC can still continue to refer these cases to the Justice Department and the Justice Department still has authority to bring a lawsuit against the states. If the Justice Department brings a lawsuit, it is not bound by the limitations of the Garrett decision. The Justice Department can sue a state for monetary damages. So all those things I said individuals can''t sue for, the Justice Department can sue for-back pay, front pay, compensatory damages, punitive damages. In fact, the EEOC and the Justice Department have been in consultation since the Garrett decision was handed down to see if together we might increase the amount of litigation that the Justice Department has been doing against states. In other words, recognizing that individuals now are going to have a more difficult time, they are far more limited in their ability to sue states for violations, that therefore it would be best if we use our resources where appropriate, that we should be suing states. Again the Justice Department is always going to get the cases referred from the EEOC which is why our two agencies have been in close consultation about what we can do. We continue to have as active an enforcement effort where states are in violation. Obviously we hope and expect that states after Garrett continue to recognize their ADA obligations-that they are not off the hook for any of those ADA obligations. Now, what else is happening as a result of Garrett? While I said individuals could not sue for monetary relief, individuals if they want can still sue state officials for what we call injunctive relief. Basically it is the things that are non-monetary. For example, that might cover reinstatement to a job. If I was terminated from my position for illegal reasons, than an individual might be able to sue a state official and if he or she wins that lawsuit, they are not going to get the monetary relief, but they might be able to get reinstatement. Or you might be able to sue to get a reasonable accommodation. Now there has been some legal discussion as to whether reasonable accommodation might come under monetary relief in terms of accommodations that might cost money, like if you need to buy a piece of equipment or a device. But lawyers looking into this think that the much stronger argument is reasonable accommodation of whatever type falls under the heading of injunctive relief. So individuals can go ahead and sue for that. Again they are not going to be able to sue to get the monetary damages, but they could still sue to get reasonable accommodation. It is not that individuals don''t have any rights to sue, they are much more limited that is for sure, but they still have some room there as well. What else? Well remember what is behind Garrett in terms of the constitutional interpretation by the Supreme Court is the idea that the states have not waived their immunity. Basically we start with the idea that states are not subject to lawsuits by individuals based on federal laws unless their immunity has been waived. In Garrett the Supreme Court concluded the ADA did not waive the state''s immunity. States on their own, however, could waive their immunity. Each state could look at this and they could pass their own law saying we are going to waive immunity. If they do that, then individuals can sue. Garrett won''t be a bar to the lawsuits for monetary damages. In fact we are starting to see some movement in that area. For those of you who are listening from the state of Illinois, you have already waived immunity in Illinois-at least according to the 7th Circuit Court of Appeals. The 7th Circuit looked at Illinois''s disability discrimination law and said the very fact that Illinois had enacted a disability discrimination law in which it was subjecting itself, meaning it was subjecting the state to lawsuits in state courts, therefore the 7th Circuit ruled, Illinois has waived its ADA immunity in state court. What that means is that in Illinois people can bring ADA lawsuits in Illinois courts, not the federal courts, but in Illinois courts. And they can ask for the complete spectrum of remedies in Illinois courts, including all the monetary damages. So in Illinois, as long as you bring your ADA lawsuit in state court, Garrett is not applicable. I understand that California currently has a bill pending in its legislature to waive its sovereign immunity in both federal and state courts. And Missouri I understand has a similar bill that would sort of follow Illinois, that it would apply to waiving their immunity in state courts. What does this mean? I think this is something to keep in mind not just with Garrett case but with other ADA related cases before the Supreme Court. I think we are going to see more action on a state level in response to some of these Supreme Court decisions. It is understandable why everybody focuses on the ADA and you focus on federal courts, but I think that there is a movement beginning in the states to try and address some of the limitations that are resulting from Supreme Court interpretations. And I think this is one example. Maybe there will not be as much litigation in a federal court against states, but that if we have got states that are passing these laws to waive their immunity even if it is in their own state courts, then the action is going to shift from federal court to state court on these kinds of matters. Something to kind of pay attention to and look out for. Local governments. With all this focus in terms of Garrett on state courts, it is important to remember that the Garrett case has no applicability to lawsuits brought against local governments. In other words, if a individual wants to sue a city or a county or a township or a municipality for violating Title I of the ADA, they are free to do so. Again they can sue for whatever they want because the Garrett decision only applies to state entities. That is an important thing to keep in mind here. Last couple of things to talk about and then we will open it up for questions on the Garrett decision. The Supreme Court only ruled in Garrett on Title I of the ADA. It did not mention Title II. As we all remember Title II covers state and local government entities. While mostly Title II the focus is on states as providers of services, in other words making sure those services don''t discriminate, employment can fall under Title II as well. What this means is at least for now it is possible for individuals to file a Title II lawsuit that alleges employment discrimination. Now, we are all kind of realistic. Given interpretation the Supreme Court gave to Title I, it is a little hard to see that they are going to come out differently on Title II. We fully expect this to be litigated. Now how quickly this case gets to the Supreme Court looking at whether states have waived their immunity under Title II, who knows how quickly that may come up. As I said, I think it is realistic to expect it will be litigated just the way the issue on Title I was litigated in Garrett. But that still may be a year or two or three. In terms of another avenue and another reason for state agencies not to kind of want to pull back from compliance with the employment provisions of the ADA. Another law that is still very much on the books is Section 504 of the Rehabilitation Act. Section 504 also covers employment and Section 504 was not affected by the Garrett decision. So there is another avenue for individuals to pursue their legal rights in terms of employment discrimination. Here again, though, I think you have to expect that it will be challenged, that even though Garrett did not rule on Section 504, similar constitutional issues could be raised in regard to Section 504 and whether states can be sued. Again it is not going to happen for at least a year, maybe two, maybe three, maybe longer. The thing here is for individuals and states to remember is that Title I is not the only game in town. When people come to EEOC to file charges, we are making sure that they know about Title II, that they know about Section 504, that they know about state discrimination laws. We are making sure they follow those avenues as well. Instead of people just focusing on Title I of the ADA, it may involve focusing on additional laws or other laws to pursue their legal rights. But the bottom line is states are still covered under Title I, they still have all the same legal obligations. How those are enforced changes slightly in terms of individuals not being able to file lawsuits for monetary damages. But EEOC is still very much into enforcing alleged violations, we are pursuing our charges and as I indicated, working more closely with the DOJ to see where appropriate that we should refer case to the Justice Department for litigation. Why don''t I stop there, Jennifer and I would be happy to answer any questions on the Garrett decision.
Before our first question, Sharon can I go back to Section 504 for a second?
Sure.
Can you clarify what that means when it comes to enforcement? Does that mean if I work for the state Department of Health and Human Services, that I could file a complaint with the U.S. Department of Health and Human Services EEO office or how exactly does that work?
In terms of Section 504, that is right. In terms of what you do to file your complaint is you file it with the federal agency that provides the federal money to the state agency because remember, Section 504 is triggered by the receipt of federal funds. If it is a state Department of Health and Welfare, then they are getting federal money from the federal agency and that is going to be the Department of Health and Human Services. Similarly if we talk about a state university, they are going to have funding coming out of the U.S. Department of Education, so a Section 504 complaint is going to be filed with the U.S. Department of Education. If you are not sure where to file, then you want to contact the Justice Department and they can then refer you to the appropriate agency.
Great, thanks Sharon.
This is Ric from the State of Indiana. Hi Jennifer, hi Sharon. My first question has to do with the waiver of state''s immunity you were talking about earlier. What else does that impact, that immunity waiving?
When a state is waiving its immunity it is only for one purpose. If I understand your question, if a state, for example, passes a state law to waive its immunity in terms of ADA, that is it. It is only waiving its immunity in terms of ADA, nothing else. If it wants to waive it for more than that, like I mentioned last year the Supreme Court looked at the Age Discrimination Act. Again, a state could waive its immunity so that it would face lawsuits for age discrimination. But it has to be specific. That was the point of the Court''s Garrett decision was ruling that Congress in passing the ADA, was not specific enough. Congress could have waived all states immunity. But the standard that the majority applied in the Garrett decision was very high in terms of saying what it would require for Congress to go ahead and waive all 50 states immunities. That was really the big argument between the majority and dissenters, the dissent thought Congress had done that and they showed all the evidence that they thought supported a finding Congress waived immunity. But five people in the majority said no. So at this point it is going to be state by state and states have to be specific.
Sharon I have an on line question here. It says in your opinion, do you believe a state entity mayor can voluntarily pay front and/or back pay knowing that the Department of Justice could go ahead and sue after EEOC had found the state violated Title I?
Nothing would prohibit a state from deciding as part of a settlement to go ahead and put in some damages. I mean the Garrett decision does not prohibit a state from agreeing to do that. Whether states will do that is another matter. But they certainly could.
Great. Our next question.
Rosemary at the City of Oakland. My question is after the Garrett decision, what is the current legal test of whether Congress waives sovereign immunity and is Section 504 likely to pass the test?
In terms of what the question about what is the test, I don''t know that I can give you a precise answer to that. The Garrett decision ruled that sovereign immunity was not waived under the commerce clause of the constitution. However, that is not the only constitutional provision at issue. Another one is what we refer to as the spending clause. That is what might affect Section 504. For those who are not lawyers and you know what is so important about these distinctions, it is hard to answer the question of what might happen when the Court looks at the spending clause versus how they looked at the commerce clause in Garrett. Will they apply the same standard? A different standard? What we can see from Garrett is that the Supreme Court has really set a very high standard of the kind of information and evidence that they believe is necessary to find that Congress waived immunity. Basically what the majority in the Supreme Court said is they almost basically applied rules of evidence from the Courts. This is what the dissent quite angrily reacted to saying wait a minute Congress is not a judicial body, why does the majority expect the Congress to follow the rules of evidence that a court has to follow? Congress is a legislative body. They are supposed to have more room, more latitude, to gather evidence. The Supreme Court in Garrett basically ignored that and said no, we are going to apply sort of judicial rules of evidence which are very strict, very high, and under that kind of standard Congress failed. It is reasonable to expect that a similar kind of standard could now be applied to other laws which could make it tough. ADA probably had more of these kinds of hearings to gather evidence than Section 504 ever had. For those who have been working in the field a long time, Section 504 never went through the kind of scrutiny and hearings that ADA went through. But whether the spending clause, the Court might look at the spending clause a bit differently than the commerce clause. I''m not a constitutional expert, so I don''t want to say exactly how that would come out. Should people be a bit concerned? Yes. But I also think it is premature to over react and think that Section 504 is no longer going to be valid. It is on the books, it is valid, it is enforceable and people should continue to use it.
I''m Susan Allen I work for the Illinois Department of Human Rights. You left the impression that an ADA case could be brought in state court. It was my understanding that the Illinois Supreme Court ruled in a Title VII case that such cases would have to be brought to the Illinois Department of Human Rights.
In terms of exactly how it works out, you may be right. I don''t want to contradict. But my understanding of the case and I don''t have it in front of me, the case I''m relying on, is Erickson v Board of Governors. After they go through the department, can they then go to court?
No, just under appeal. They won''t have any denovo rights.
As I said I''m going by research that was done. If there is a misstatement I certainly apologize, I don''t want to mislead. What I have in that case the 7th Circuit said that Illinois had waived its sovereign immunity as to ADA suits in state court.
That was the implication left. But the Illinois Supreme Court ruled in a Title VII case that because of the way the Illinois Human Rights Act was statutorily set up that cases of that nature would have to be brought to the Department of Human Rights for administrative relief.
And what would happen after you went through the Department of Human Rights?
It would just be on appeal, you would never have a trial or jury.
Okay. But then it would still be that somebody ultimately could get to state court to pursue their ADA claims; is that correct?
That is not clear. But I just thought I would bring that to your attention.
I appreciate this. Because this is a two-way street. When we are done with this call I will be looking into the Title VII case. But I think this is to me what it is pointing up is that people should be paying attention to what is going on in their state courts, that there is obviously going to be, there has been some activity and I suspect there will be more along these lines, to see what rights may be pursued through either state administrative agencies or state courts whether as trials or on appeal.
I had a question about Title VI case at the Supreme Court. Wasn''t the ruling that you would have to show an intents to discriminate that you couldn''t bring an adverse impact type of case under Title VI? And would that be the same under Section 504?
Since I''m not the Title VI and Section 504 expert I want to tread carefully here especially in light of what you brought up in your previous comment here. But in general, Title VI of the Civil Rights Act and Section 504 do use similar language. A court interpretation in one statute could well have an impact on the interpretation of the other statute. But I really don''t want to go into the specifics because those are not areas that I deal with directly.
Thanks for your question. You know Sharon, we never ask you easy questions.
I know you don''t.
Our next question?
Hello. This is Sandra it calling from Sacramento, California. And I''m one of those non-lawyer people.
Good for you.
This whole room is non-lawyer people, we are all nurses. I want to know what advantage a state gains by waiving their immunity to monetary damages in these suits? Why would a state want to do that?
One reason a state may wish to waive its immunity is because it doesn''t necessarily look good, since all states have their own anti-discrimination laws. For them not to waive immunity is basically saying, well, it is one thing for us to enforce these anti-discrimination laws, but when it comes to enforcement against us, we are very happy to have a special privilege. In other words, there is a sort of PR sense to all of this. I mean if your question is about yeah, why would you want to have lawsuits in which you may be found liable and you may have to pay money, you could say that against a state''s self-interest. But most states, since they also have state laws prohibiting discrimination, do have an interest in wanting compliance with their own state laws. And to the extent that you have really sort of now set yourself up a bit to say well, you know, do what we want you to do but not necessarily what we do, that may sort of cut against it. I think that that may be one of the things that disability advocates if they try to get state to waive immunity are going to kind of point to. Is that look, if you comply with the law, then nothing is going to happen to you. That is where the effort should be. But you are right, do they really wants to open themselves up, I think some of them are happy to be off the hook about it. That is why you had the Garrett case in the first place.
It all depends if it an election year, I guess. Thanks for your question. Sharon in just a second we will go into the upcoming cases that the Supreme Court has agreed to hear. We have one other on-line question here before we go into that. And it asks have you been able to see the impact of this case so far? I guess my question that kind of stems outside of that is do we see a lot of plaintiffs that have their white out right now and instead of suing the state directly they may be suing the director of their agency or something like that?
I actually can''t answer that question. I''m not aware that we have seen a sort of visible impact to this. So it may be too soon to tell. In terms of cases that were already in the pipeline, I mean in terms of any lawsuits that were pending, certainly Garrett is going to have an impact. Those lawsuits may have to be dropped completely if all they were looking for were monetary damages. Or maybe they are going to be configured to be suing for injunctive relief. So anything in the pipeline I''m sure there is some impact. In terms of new cases coming in, though, I don''t know one way or the other if we are seeing fewer cases, I think it is probably just too soon to tell. Our expectation is we should not see any drop in cases. Because nothing in Garrett affects us. So we have should have the same number of cases coming in against state agency we have always had. In terms of what happens in terms of courts it may be a while before we will see.
Thanks. Do you want to explain some of the cases that the Supreme Court has agreed to hear for the next term for us?
Sure. There are three cases that should be of interest to people who are interested in the ADA. All three of them involve the ADA. Let me review them fairly quickly and then I will be happy to take any questions about them. The first two I want to focus on U.S. Airways v Barnett and Toyota v Williams. The U.S. Airways v Barnett case, this is actually a fabulous case in terms of EEOC''s opinion about it. It is a great case out of the 9th Circuit Court of Appeal, the 9th Circuit is out west, California, Oregon, Washington state. It has marvelous stuff in there about reasonable accommodation. This case dealt with somebody who was a cargo handler for U.S. Airways and he had a severe back injury. When he came back to work all kinds of physical restrictions and basically couldn''t do his old job or didn''t appear he could do his old job with all the restrictions. He had the seniority to do a transfer into the mail room. He didn''t have quite the same physical requirements in that job. So he worked in the mail room. Everything went fine. Then under the seniority system, he was basically about to lose it because there were going to be employees with more seniority who could bump him out. He requested as a reasonable accommodation that he be allowed to stay in the mailroom. U.S. Airways for months didn''t bother to respond, when they finally did they said no, we are going to go with our seniority system. They put him on injury leave at that point. He continued to ask for reasonable accommodation, he came up with alternatives, one with lifting equipment so he could back to being a cargo handler, other was restructuring the cargo handling job. But U.S. Airways basically kept saying no, no, we are not doing any of that. Finally he was terminated. The 9th Circuit in what we call an en banc decision, every judge on the circuit, normally you get a three judge panels, ultimately everybody was involved and they had two major rulings in the Barnett case. The first ruling or set of rulings had to do with the reasonable accommodation process and the 9th Circuit was just great. In fact I think they really even went beyond the EEOC interpretation. They pretty much said it is mandatory that an employer has to engage in an interactive process. They are going to have to actively talk to a person who has requested reasonable accommodation. They really laid out a whole bunch of requirements in terms of this interactive process and where the Court thought that U.S. Air was really deficient in not responding and keeping this guy sort of waiting around. In terms of the reasonable accommodation process, the Barnett decision is really important. The Supreme Court is not reviewing that part of the decision. So whatever happens when the Supreme Court looks at Barnett, all of that is still going to be good law. Because the Supreme Court did not take the Barnett case to look at those issues. Rather, the Supreme Court took the Barnett case to look at a separate issue and that is U.S. Air had a seniority system. It was not a seniority system that came out of a collective bargaining agreement, but instead U.S. Air on its own initiated a seniority system. The issue the Supreme Court is going to look at is whether reassignment under the ADA will trump an employer''s seniority system or instead if the employer''s seniority system will trump anyone''s right to reassignment. What happened in Barnett is people with more seniority than Barnett wanted to come into the mail room job. If you went by the seniority system, then he would not have been entitled to keep that transfer job. So how is this going to play out? Now it is probably-as most listeners are aware, this whole issue of seniority systems has been litigated quite a bit but usually in the context of a collective bargaining agreement. This case is a bit different because there is no union involved here. As you are also probably aware, that the Commission has always said that seniority systems, whether they are in a collective bargaining agreement or the employer has initiated it on its own, that it can''t automatically trump someone''s right to reassignment. Certainly it is something to look at. It is certainly an important factor. But it does not per se bar reassignment. The EEOC has not been successful when it is litigated this issue in court. Almost all courts have disagreed with us. So how the Supreme Court is going to handle this, will it make a difference to the Supreme Court this was not part of a collective bargaining agreement, I don''t know. I''m not going to try to speculate. But that is what they are going to look at in Barnett case. In Toyota v Williams, another case looking at the definition of disability. Toyota v William is looking at disability. Ms. Williams had carpal tunnel syndrome and tendonitis and she too had had been sort of reassigned to a different job, if they wanted her to start doing things that really aggravated her impairment, her disabilities. There was a whole sort of contentious thing about what she was supposed to do in her job. Ultimately she was fired. But what happened when this case got into the Courts was a focus on did she have a disability as defined under the ADA. In the 6th Circuit Court of Appeals they did determine that she had a disability. It actually is a kind of confusing decision to read in many ways. It is not one that is easily followed. The 6th Circuit came up with an interesting sort of interpretation to determine she had a disability and consequently we are not quite sure what is going to happen when this case goes to the Supreme Court. We are not quite sure why they wanted to take this particular case. It is possible that the Court will look at the major life activity of working, although I think that you can really read the 6th Circuit decision that they didn''t get to the issue of whether she was substantially limited in working, but rather was she substantially limited in the major life activity of performing manual tasks. The 6th Circuit opinion did bring up working, which is why there is a lot of speculation that that is going to be a part of what the Supreme Court is looking at. But frankly it is sort of an unusual court of appeals decision and I think it sort of surprised a lot of people the Supreme Court would take this particular case. You know, we are concerned in light of what happened in the Sutton and Murphy cases a couple of years ago. You know, that the Court really narrowed the interpretation of disability in those cases and whether they are going to do so again. But know, we haven''t had the arguments, that is not going to happen until the next term which begins in the fall. And so I think it would be very premature to kind of speculate too much as to what we may end up with in this Supreme Court decision. The one thing I will say based on our history with the Sutton decision is that I think that any decision by the Supreme Court in this case is probably going to create more questions than it will answer. By that I mean if you look at what happened after Sutton, everyone at first thought well, you know, now it is a little more clear that if people successfully use mitigating measures then they are not covered. Look at what actually happened. What we have now ended up with is where these cases have to be litigated more, not less. Because now for each person who is using a mitigating measure, how well does that mitigating measure work? Is it really controlling those symptoms? How well does it control the symptoms? And what about side effects? Because the side effects may in and of themselves substantially limit a major life activity. So far from really knocking out a lot of people, as I think some predicted after Sutton, I think it just created more areas to litigate. And that would be sort of what I would expect to happen no matter how the Supreme Court rules in the Toyota case, is probably it will raise more questions and not lessen them. Last case I want to bring to your attention which is a slightly different kind of ADA case, because it is not directly dealing with the substance of the ADA but rather with the issue of mandatory arbitration. This is a case called EEOC v Waffle House. This is an issue that has been coming up in the courts for quite a number of years. A lot of employers don''t like getting into court. It is time-consuming, it is expensive. You never quite know what is going to happen, it is going to take a long time. There has been a trend to have first of all voluntary arbitration, which the EEOC has always supported. But then you have some employers that wanted mandatory arbitration. In other words, that an employee would agree that if there were any claims that came up concerning employment, that those claims would have to go to a mandatory arbitration and that the employer and the employee would be bound by whatever the arbitrator decided. That was it. I mean even if you were unhappy with the decision, you disagreed with it, you were agreeing in advance to be bound by this. The EEOC has long disagreed with mandatory arbitration. We are all in favor of voluntary arbitration. But we don''t believe that mandatory arbitration prevents us from enforcing the federal civil rights laws. This issue has been kind of bouncing around the courts and now it is going to go into the Supreme Court. Now what you may be aware is that the Supreme Court took an initial step this term in a case called Circuit City v Adams. That involved a gentlemen who applied for a job and got a job at Circuit City as a salesman. When he signed the contract to join Circuit City he agreed to mandatory arbitration. Eventually he thought he was discriminated against and he filed a claim under state law. It was not an EEOC case, it did not involve federal civil rights laws, it involved a state law. The Supreme Court when they ultimately took the case, ruled that he was bound by the mandatory arbitration agreement he signed when he joined Circuit City, that under the Federal Arbitration Act, he could not now sort of circumvent the agreement he had signed. He instead had to follow that agreement and be subject to mandatory arbitration. The Supreme Court in Circuit City did not get to the issue of well, what if it involved federal civil rights laws? And literally I think it was just one week after the Circuit City ruling came down, the Supreme Court announced it was taking the EEOC v Waffle House case, that is the case that does look at what happens where there is mandatory arbitration agreement and there is an allegation that a federal civil rights law has been violated. Waffle House involved an individual with epilepsy. He was hired by Waffle House. I believe within the first few weeks of his employment he had a couple of seizures and he was fired. In the Waffle House case, he signed his arbitration agreement as part of the application process. So even before he was hired, the mandatory arbitration agreement was part of actually applying for the job. The 4th Circuit Court of Appeals ruled when they got the case that the EEOC certainly still had jurisdiction, the 4th Circuit agreed that the EEOC was not bound by the mandatory arbitration agreement, we didn''t sign it. But that the employee did sign it and he was bound by it. So the interpretation was that the EEOC could investigate and could find cause even, but we were limited to injunctive relief. Here we go again. Injunctive relief versus the monetary relief. Basically the 4th Circuit said with mandatory arbitration, the individual would have to be bound by whatever the arbitrator decided in terms of individual specific relief. EEOC could therefore not pursue things specifically for the individual. What does that mean? We can''t get them back pay. We could not get them front pay. We could not get them damages. These are all specific to the individual. And in terms of ADA, I think that has to include reasonable accommodation. That is also specific to an individual. What can EEOC go after? We can go after sort of broadly injunctive relief. The sort of prohibition of not to discrimination in the future. We may be able to address things that would affect other people if you had some kind of workplace policy that would affect others, not just the one individual. That may be something that we can go after. But this is what this Waffle House case that is before the Supreme Court is going to look at, is what happens with these mandatory arbitration agreements when they also involve the federal anti-discrimination laws. One thing and then we will open it up for questions, obviously there is a lot of concern about mandatory arbitration agreements. But just as I said a few moments ago about the Supreme Court often creates more questions than it answers. One of the things that already we are seeing in the courts, you should really expect to see more of them, is looking at the agreements themselves even if the Court rules in favor of Waffle House. It is very important to understand that the next line of litigation is going to be well, how fair are the mandatory arbitration agreements? In other words, the Courts have agreed that it has to be that a person signs one of these agreements fully understand his or her rights. It can''t be a completely one sided deal. For example, we are already seeing litigation that is looking at how are arbitrators selected? And are these people really impartial? What are the time frames for filing? Remember under ADA you have 180 days and maybe as much as 300. How many days activate arbitration rights? Who pays the cost of arbitrators? What about the ability to discover evidence? It is much clearer in the administrative process, in the judicial process, you know, we know about who is paying. We know about rules of discovering evidence. How does this work? Because arbitration is basically a private process. It is very different. So that is going to be something that will be very heavily litigated and it is not clear how that is all going to come out or that there is necessarily a benefit for employers to kind of rush to mandatory arbitration. That a lot of employers there may be benefits to actually wanting to stay with the EEOC charge process and even if it comes to it with litigation, that it may not be so clear that they get tremendous benefits out of mandatory arbitration. A lot obviously is going to happen. We don''t know if they are going to take any more ADA cases, this is quite a lot. So stay tuned in a year from now we may be doing this again. With that shall we open up for more questions?
I think we have time for one or two more questions. We will be definitely be doing this session a year from now. I remember when I very first heard about the Supreme Court taking the Garrett case and the pit in my stomach that I got. You just helped in the first half of the session get rid of the pit, but I think I have it back again after hearing the upcoming cases. So I guess we are all going to be working on retooling our ADA desktop reference kits after this next term?
I had a question about if DOJ or EEOC prevails in ADA suit brought on behalf of someone who was discriminated against and was able to sue a state and win money damages, what happens with those money damages and do they go back to the original person who was wronged?
Yes. As far as I know, in other words if the Department of Justice is bringing a Title I lawsuit against a state and that can include damages, that the damages are not coming to us. I mean the damages ultimately will go to the individual.
Thanks Sharon. One more quick question.
Have there been any court decisions that acceptance of federal financial assistance amounts to a waiver of state immunity?
I don''t know. It is a good question, but I don''t know.
We will have to come back to that a year from now. Thanks for joining us today. For those of you joining us for the June session, don''t hang up I do have an announcements for a schedule change. Again Sharon you have been a wealth of information. If people out there ever have the chance to see Sharon present in person, I would always highly recommend that. She is one of the people out there working directly on the ADA that can put it in easy to understand terms and you certainly have done that for us today, thank you so much.
You are welcome.
I guarantee we will have you back to review those Supreme Court decision next year. You did a great job and really helped to demystify some of the media reports that had been out there. For those of you joining us for the June session with David Fram on the Documentation of Disability, we do have a scheduling note. Due to a scheduling conflict and our preference to present the scheduled guest speaker, rather than a substitute, the session will be presented live on Monday, June 4th at 9 a.m. central time. It will be rebroadcast on June 19th at 1 p.m. Central-2 p.m. Eastern, during the regularly scheduled session time slots. Participants can register for either the live session on June 4 or the rebroadcast on June 19th. Due to the scheduling difficulties with this particular session and how it affects the west coast, the Pacific DBTAC will not offer the live session for the west coast and Hawaii. Instead they will provide information on registering for the rebroadcast. If you are in the Pacific region, contact the Pacific DBTAC for registration information and to submit questions in advance. There is also additional information posted to the Great Lakes web site at www.adagreatlakes.org on how you can submit questions in advance for this session and how to register. If you have additional questions on the upcoming session or general technical assistance on the Americans with Disabilities Act please contact your regional DBTAC at 800-949-4232. Thanks for joining us today, we look forward to your participation in future sessions.