Welcome to the ADA Distance Learning series hosted by your regional Disability and Business Technical Assistance Center. We are sorry for the late start this afternoon, it seems that we had a traffic jam with everybody calling in at the same time. So, we are catching up. We are excited to have all of you joining us this month as we are going to talk about the Application of the ADA to Temporary Employment. Joining us today is Adele Rapport of the Detroit office of EEOC, hi Adele
Hi
Thanks so much for joining us today, I hope the weather is a little bit warmer up there, starting to warm up. We are excited to have you with us today because the application of Title I to temporary employment or where businesses might use leased or contingent workers can sometimes be an awkward situation. We are happy to have you with us to answer some of the questions we often get. We often get questions like who is responsible for providing reasonable accommodation, the staffing agency or the client? Where should the request initiate? And what happens to the in circumstances of short term employment?. So we are glad that you can join us. For those of you that might be interested this session is currently being captioned on the Great Lakes web site, www.adagreatlakes.org where you can submit questions on line as well. With that said I''m going to turn it over to you, Adele, if you could talk to us a little bit about temporary employment and the application of the ADA. And also since we do have your EEOC expertise with us today, we are hoping you can talk a little bit about the recent Supreme Court decision in U.S. Air v. Barnett. With that I will turn it over to you.
Okay. If I have time I will also maybe talk about some other recent Supreme Court cases, the Williams case and Waffle House case, because I think those are important, too. I''m speaking just as a member of the bar essentially and as a field attorney. The government speaks through its guidance and in that regard we do have our own web site, www.eeoc.gov which has all of our guidance on it. We have issued guidance on contingent workers generally on December 3, 1997 and it is listed in descending chronological order. If you go through the guidance it is about five, six down to get the original guidance on contingent workers. Then December 27, 2000 we issued specific guidance on how the contingent worker issues interplay with ADA obligations. So I would recommend both of them to you. I will touch on the highlights and talk about some of the cases we have handled, some of the practical applications we have seen in the workplace as far as the application of the ADA to contingent workers goes. The issue involving contingent workers are very important to the commission because it affects a large number of employees. I think that the statistics are that there are about 2.3 million contingent workers that is a 100 percent increase since 1991. Manpower is now, for example in Michigan, larger than GM. That just gives you a example of how many jobs are affected by it and the futurists that I have heard speak have predicted there will only be more contingent kind of employment in the future. That is one of the reasons why this is an important issue. Another reason is that many experts on disability issues have indicated that it is absolutely necessary that people with disabilities be able to get into the contingent market. Oftentimes that is the only market they can work in, if they can''t work full time they need a part-time position. They may not be able to get that at an employer that needs to employ people in full time capacity, but they may be relegated to contingent market. It is also a good entry point for people who haven''t had an opportunity to be employed in the past. Other articles I have seen have suggested that the poor economy will result in many employers laying off full-time workers and then just bringing in contingent workers as they need them. So for the present time, there is probably going to be an increase in the use of contingent workers as well. Then a phenomena that we have seen in Michigan, I don''t know that my peers have seen it in other parts of the country, but there are some disreputable leasing companies who will go to employers and say we can make you invulnerable, you will no longer be responsible for complying with the civil rights laws because we are going to be responsible for all of your employees. So the employers hire these companies and they lease all of their employees through this company and then are shocked and dismayed to find that charges have been filed against them and that because of the nature of the employment, the fact that they control the location, the hours worked, the tools worked, the projects done, they limit the employees to working only for them. But they are also employers. This came up in a case we had where we were investigating ADA violations. This employer, the leasing company, had a doctor that was doing examinations of employees and was basically going to the stack and anybody who didn''t have what it considered to be a normal physical profile was rejected. So it rejected people with diabetes, people with epilepsy, people with back impairments, knee impairments, pregnant individuals, and said none of the people were qualified for the jobs. It did not do a individual assessment. It did not consider the possibility of accommodation. We investigated this employer and told them, you know, you have violated these obligations and the employer was shocked to learn it had any obligations under the ADA at all. They are probably not the only client this particular company has gone after, I''m sorry I can''t give you the name because we ended up resolving the case short of litigation. But there are probably other clients that they have sold this bill of goods to they engage in this practice with, while we were able to control them for a limited period of time, they are probably not alone, there is probably other companies doing that sort of thing. We think it is very important that we investigate cases. When we have people file charges with our agency, if they are in a contingent work arrangement, sometimes they come in and they intend to just sue their employer, say, for example, the auto manufacturer. If they are contingent worker, we always have them file a separate charge and do a separate investigation of the staffing agency as well. Because as far as the EEOC is concerned, both entities are liable under the ADA from start to finish, from the application process on through potential discharge claims. We have litigated a case in fact successfully again Add staff and General Motors on behalf of a individual who was HIV positive. He was very typical of the kind of contingent employment that we have where a individual is employed for a long-term, for years. While they are being paid by Add staff they are working at GM premises doing the same job, essentially the same hours, the same vacation time, the same assignments, same rotations as the employees who are nominally working for GM. We had no trouble establishing that Add Staff and GM were the employers, this individual mentioned he was HIV positive and thereafter all of a sudden his performance which was considered excellent became not so good and he was discharged. We were able to get a good result and litigated against both successfully. I think GM tried to get out. I think there was some understanding that Add Staff paid the settlement. I think they may have had some contingent arrangement with GM that they would be responsible for any lawsuits filed as a result of any employees placed on their premises. I guess that doesn''t matter who pays, both of them could have been liable. If Add Staff hadn''t been able to make the payment we could have gotten it from GM, that is typical of the kinds of cases we see involving people with disabilities. Both the employers point to each other and say I''m not the employer, this one is, and they end up both being liable. In our view, the long-term employment cases are much easier because it is easier to find both the contingent employer and the placement agency liable for failure to hire. In our guidance we talk about the fact that the staffing agency is primarily responsible for ADA accommodations in the application process. That is generally going to be true, they are the ones who will be having the facilities that have to be accessible where people will fill out initial applications to get into the pool or the roster of individuals who could be placed, they may have the applications, so they have to make those applications available in accessible formats. They may be doing pre-employment testing, they may be administering the testing and they need to make accommodations in the testing or provide some alternative test format. They will be on the front lines in terms of learning about an applicant''s potential need for an accommodation when they are actually doing the work. However, when I speak to employer representatives, I always make clear to them that they have an obligation to make sure that all the entities that they contract with are complying with the ADA, so that if for example, an auto manufacturer was using a certain staffing agency and it knew that that staffing agency was not providing accommodations in testing, by providing testing formats or additional time for a person with a learning disability to take the test. And they continue to use that staffing agency, after having received complaints about that, then they too would be liable. I think that in most cases while it would be certainly a factual inquiry, there is going to be some ability to make the employer liable even in the application process because of the strong language in the ADA that says that you cannot contract out your discrimination, you can''t contract with someone who is discriminating against applicants or your own employees. We can also in the long term placement cases hold both liable for failure to accommodate. We make it clear in our guidance that if a individual needs an accommodation, that both entities are responsible for assuring that accommodation is met. So it may be easier via contract or whatever to have staffing agency provide certain accommodations. For example, if an individual needs a special computer, a JAWS system, the staffing agency may want to have that computer available so whatever site they place an individual at, they will be able to use that particular computer and be able to do their work in that fashion. However, issues that involve access to a facility or access around a working site, modifications to a certain working site, would have to be done by the employer. If the employer doesn''t do it, that doesn''t mean the staffing agency is off the hook because we make clear both in our general contingent worker guidance and in our ADA guidance that the staffing firm has an obligation to bring the ADA to their client''s attention and to pretty much insist their client comply with the ADA to the extent they can. If they have made a good faith effort to try to get the accommodations in place and their client has refused to do it then we don''t hold them liable, we expect them to place the individual in the next available job for which they are qualified. They can''t avoid liability simply by pointing to the employer and saying it is their facility there is nothing I can do to make sure they provide a stool in that facility or provide wheelchair access in that facility. We do expect them to make an effort to deal with their clients in that fashion. I thought there would be a lot of objection to that particular provision, but shortly after we came out with that guidance I was at a meeting which was attended by the general counsel of Kelly Services. He said he thought our contingent worker guidance was spot on. He thought that it was very consistent with the law and reasonable and he didn''t object even to that particular provision. Although it will obviously increase the burdens on the staffing agencies and probably create some tensions between them and their clients. I think that is probably the most controversial aspect of the contingent worker issue, who is responsible and what happens if someone doesn''t have the ability to actually control what happens vis-a-vis an accommodation. What are their obligations? Also, with the long-term employment situation, you frequently have situations where a individual wants to be reinstated. Obviously that won''t necessarily come up with the short term situations. But in the long-term situation a person could be working as contingent worker or a leased employee for years and years and years doing the same job. And if they need to take time off for medical leave related to their disability, they probably want to be reinstated back to that job. The obligation to reinstate them would be both on the employer and on the employee unless they can demonstrate an undue hardship and also discharge, as there was in our HIV case against Add Staff and General Motors. If the employer discharges the employee from that particular work site, even if the staffing agency immediately places them, which didn''t happen in this case, but even if they did, the employee would still be able to sue the employer for the loss of the job and the staffing agency for the loss of the job if they preferred to have that particular job. It is similar in say the sexual harassment situation where if a contingent worker is placed on a site and is sexually harassed on the site and they complain to the staffing agency, they may not want to be transferred. If they are transferred as a remedial action, then they would still have a right to try to seek reemployment through litigation at the employer and sue the staffing agency because the staffing agency tried to avoid the situation by transferring them somewhere they didn''t want to go. Also, as with all of our cases, we look at both entities'' requirements of providing an equal employment opportunity for that employee on that site so they work under the same terms and conditions of employment as all other employees. For example, if a contingent worker has a hearing impairment and needs a interpreter, the employer has an obligation to provide a interpreter not just for work related issues, but if any training is provided, if any staff meetings are available or mandatory or even voluntary for individuals to attend and any other work related issues. The interpreter would have to be provided and both entities would have an obligation to see that was done.
Let me ask you right there, because I have this situation right now that I am using a temporary agency and the particular one that we use is very adamant that anything, any issue that you might have should be directly taken up with the staffing agency itself and not one to one with the employee. So what happens in that type of situation where let us say you have a contingent worker that might be a long-term placement, and all of a sudden they need a request for a reasonable accommodation where does EEOC see that should be taking place? Like one to one with the business or the employer or should they be going to the staffing agency or how should that work?
Well, we would feel that both of them would be responsible. I would say either. That it may be that the employer has a contract with the staffing agency that says that you are responsible for providing any accommodations needed by the employees you place here. If that is the case, it probably wouldn''t be unreasonable for the employer to say please contact the staffing agency because they are responsible for providing that accommodation, if you have a problem getting what you need, let me know. Because they are liable for it. But I don''t think there is anything wrong with them deferring initially to the staffing agency. Because if the staffing agency goes ahead and provides the accommodation a problem with that. If the staffing agency doesn''t, then the employer has to take it up. But if you are in a situation where you are representing an employee, I would have the employee advise both, tell the contractor/employer I need this special adaptive device for my computer in order to do my work or I need a interpreter for this training that is coming up next week. Then also talk to the staffing agency about it. Then take the position, I don''t really much care between the two of you which one provides it but I need it next Saturday. Does that answer your question?
Yes, thank you.
All right. One problem that we have seen is with referral agencies is as I described with that doctor scenario, he thought he was doing a favor for this company by eliminating everyone he thought they wouldn''t want to hire. The company may or may not have known what the doctor was doing. But they were nonetheless liable because the doctor is their agent. They sent all these applicants to the doctor, he was doing the screening, they were responsible. We have a case against Advantage Staffing which we are shortly going to resolve, where they were conceding to employer preferences, which were wide ranging. The employer said they wanted women for certain jobs and men for other jobs, they didn''t want any "Detroit residents" which was explained as African-Americans, and they didn''t want anybody who had a history of a back impairment for other jobs. Now obviously the back impairment implicates the ADA and both entities were liable under those circumstances, both the employer that said to the agency don''t send me anybody with a back impairment, and the agency which complied with that request. The agency might have felt pressured to do it, I think that the manager told our charging party that everybody does it, so maybe they wanted to stay competitive by being discriminatory. For some reason it seems to be easier for employers to discriminate indirectly in that fashion. It may be one thing for them to have a qualified applicant with a disability come to their door showing all of their ability for them to turn that person away and say I''m not going to hire you because of your disability. That is pretty cold. But to have to tell a placement agency don''t send me anybody with a disability, and let them do the dirty work is a little easier. That is I think just psychologically, I think that is why it happens more often in that context. I have been told by some employers that they have concerns that they have had to deal with placement agencies which were not letting them know that they were screening out people with disabilities. They were just doing it because they assumed the employer wanted that. Employers have told me the same thing about doctors, outside doctors they have hired they have had to educate them that they want to comply and they expect to see all kinds of applicants. They don''t want that kind of prescreening done. That impresses me. You know a responsible corporate citizen recognizes this is a problem. If they are only getting Caucasian people coming in and they are just wondering why am I not getting African-American applicants, why am I not getting anyone at all with a disability applying here? They took the initiative to make sure their contracting placement agency understood the law, and was complying with it and understood that they expected them to do that. So I think that is the best way for employers to avoid liability is to lay down the law in that respect to anybody that wants their business in terms of contingent workers. I think, mentioning that if the employer refuses on the other hand, sometimes there have been issues on simple issues like allowing a dog, the staffing agency has to take issue with their own clientele and tell them they need to accommodate them, place them on notice ask make that good faith effort. Of course a long-term placement are much like any ADA case so all of our guidance on reasonable accommodation and everything else applies there. The more difficult situation is when you have short term placements. I don''t know what the percentage, because I haven''t read in some time the materials that, but it seems to me what we have seen in terms of charges is most of the employees are in long term placements. But then again, there are many many jobs that are short term placements on short notice where the employer needs somebody right now for a two-week period and they need them to work intensively for a two-week period. That will pose a probe if the applicant or potential employee needs an accommodation but it will take some time to get the assistive device to make the facility accessible, to obtain an interpreter, let us just say you need somebody right now and you can''t get a interpreter for a couple of days but you need the person to start working Monday. What we say in our guidance is that under those circumstances you may be able to demonstrate undue hardship. If it is short notice and a short-term position, you just have to make sure that the individual is placed in other positions. On the other hand, if a person wants to have that kind of a job, let us just say they are an account temp or paralegal or legal temp and they want to work sporadically part-time they want to be able to say yes or no to certain jobs but don''t want a long-term placement, that is what they choose to do. Maybe they may need to do that because of their disability. If the staffing firm knows that regardless of what job they do, they are going to need a certain adaptive device, then that device should be available. So that they will have it when an employer calls and says I need an account temp to start Monday, the device will be available, and they can go and do that. I think the only situation where we contemplate that it is okay, that it would be an undue hardship, is if a special situation because of the particular employer''s work environment, that you couldn''t anticipate and needed the person right away for a short-term assignment, in that case you might be able to demonstrate undue hardship. The other issue, just to mention is the inquiry issue. That is problematic in the short term situation as well because you can''t create a pool of qualified applicants. Let us just say that one of the big services like Kelly wants to have a roster and they want to be able to place people. Unless you have a specific job you are going to place somebody in that you are contemplating them for, or just that an employer is going to hire 15 people to do various assignments requiring engineering cad sign skills, that would be a specific enough job offer and you are going to consider this person for that job. At that point you can make inquiries, the full blown post offer, pre-employment inquiries, but they can''t recreate a pool of qualified applicants by having everybody regardless of whether there is any job available that they might be able to do or contemplated for, just submit point blank to a full blown physical and inquiries. So what they need to do if an employer does require, I don''t think most of them do in short term assignments, if they do require somebody submit to a full blown medical examination before they can be placed, that is problematic in a short-term situation. In long term you can do it, General Motors needs somebody to do CAD design, they always require a physical before, so you have got this job, I will place you in this job contingent on you passing the physical. That would be the same as any ordinary employment offer. If it is a short-term situation they need somebody on Monday there may not be enough time to do the physical at the appropriate time when it is legal to do it. So we do deal with that issue to some extent. For example, if an individual working in health care and the agency knows that any hospital in the city is going to require that you have a test showing that you don''t have hepatitis or tuberculosis. So they can tell the pool of applicants if you want to be placed in any of these positions just be aware these employers will require certification that you are hepatitis and tuberculosis negative. You might want to get that in advance so you will be ready for any short term placement we may have available for you. They haven''t asked whether the person is or isn''t, they have just put them on notice they need that certification and that will shorten the time frame so that individual will be placed in that short term position. I think that is all I wanted to say on the contingent worker placement because I wanted you to ask me any specific questions you might have. I know I''m starting to run into my time frame here, I wanted to move into Barnett. Did you want to take questions now?
Hi, this is Will with southeast DBTAC. I was wondering, what kind of outreach has been done to these temporary placement agencies regarding their obligations? I mean it sounds pretty in-depth and I''m just curious as to how many agencies actually know the depth of their obligations?
You know, that is interesting. I obviously have worked with Kelly Services which is a major employer here. And I have required training on these requirements in the cases and resolutions that we have had either internally or through litigation for the other entities. But I haven''t really made a concerted effort to try to get to them. But that is a very good idea to go to Intech and some of the ones I haven''t sued yet and educate them on this. I think it is generally known, the general counsel for Kelly was talking at some conference or something discussing EEOC guidance, I think they are aware of it. One thing I''m concerned about, if you have any ideas on this, I''m not sure how to reach the workforce. You know, it is one thing to talk to employers about their obligations but if they are not complying with them how do I reach the contingent workforce to talk to them about their rights?
Yes. The nature of temporary employment for employers it seems to me has always been that if they don''t like something that a worker is doing or they are not fitting in personality wise or whatever, that they can call the agency and not have the person come back. That is part of the attractiveness for employers. But it seems to me that in some of the things that you were saying Adele, that sort of takes away from or changes the nature of temporary employment for employers if they have individuals with disabilities there that they could be accused of, well, you just don''t like me because I''m a person with a disability.
Well, if it really is a personality conflict it really wouldn''t be any different than if the person was a permanent employee. I think there are many things employers like about contingent workers. I kept talking about auto manufacturers, they all use a large number of contingent workers because to the extent the union will agree to that they don''t have to give these folks the kinds of benefits they are paying the union, they don''t have to deal with just cause dismissals, they couldn''t get rid of someone because of their personality if they are protected by a union contract. They can get rid of someone if they don''t like their personality even under the civil rights laws. You could make an argument it really was because they had a mental disability and there were some quirks associated with that that the employer didn''t like. But that advantage, maybe that is why I was talking initially about my concern that some of these disreputable organizations are over selling what they can do for the employer because they cannot protect them from the ADA.
Good, thanks for your question. Adele, why don''t you talk a little bit about the Supreme Court cases and then we will open it up to some general questions about both.
Okay. There were two cases that came down recently I will talk about the most recent one first, which was decided April 29, 2002 that is the U.S. Airways v. Barnett case. I want to talk about two aspects of the case because only one aspect was appealed and I think the more compelling aspect was not appealed and is still good law. In Barnett the individual had a cargo handling position, he injured his back and he invoked a seniority rights and was transferred to a less physically demanding mail room position. They did not have a collective bargaining agreement but had a seniority system, a non-contractual seniority system and there were sort of the positions were open to contract like bidding just like a contractual system except it wasn''t part of a collective bargaining agreement, it was just a process they went through. Well he learned that some employees who were senior to him wanted to bump into that position, which they had a right to do. He asked his employer if he could remain in the position notwithstanding the lower seniority as an accommodation, he made some other proposals about assistive devices, exploring whether assistive devices might help him do the job he had before or transfer him to another position. They let him stay in that job for five months, and they never got back to him in terms of his requests for accommodation, instead they said no, never mind, get out of here. They said your seniority isn''t sufficient so you don''t get to keep this job. Well there were two issues that arose in the 9th circuit, the first one which I think is more important is the interactive process requirement. There is great language in the 9th circuit opinion in the Barnett case about the duty to engage in interactive process. What they said was that the employer couldn''t just say to him, no, never mind, we are not going to consider it. They had to consider what he had suggested, they had to explore that, that once they were aware that he had a disability, and a need for an accommodation, the duty to engage in that interactive process was mandatory. They used very strong language on that. Now that particular part of the decision was not appealed. So that is still good law. There is a lot of courts all around the country that are finding this duty to engage in interactive process. The issue is has now become who dropped the ball, whether in this case the court felt the employer dropped the ball because they did not respond to the employees inquiries, sometimes the employee drops the ball by not following up with the employer''s suggestions, not providing medical information or something like that. But that has become a very hot topic and the law is developing in that one limited area very favorably, I think under the ADA. Now the issue that did go up to the Supreme Court was is it a reasonable accommodation to request that you be given a position that you don''t have a seniority for, what is the definition of a "vacant position." What the court said is that in the ordinary course it would be an undue hardship or would not be a reasonable accommodation to give an employee a position that they don''t have a seniority for that someone with more seniority wants. They talked about the expectations of the other employees, that is a legitimate thing the employers are doing. The court didn''t say that that was true in every case, they said as a matter of fact there may be situations where it is appropriate for an employee to keep a position even though they don''t have the seniority. And that the employee has a right to prove that fact situation. It was not a real clear decision, the dissent Scalia and Thomas, no surprise, wanted to say if a employer has a policy, a neutral policy and it happens in fact to effect a person with a disability, too bad. The policy rules, the policy shouldn''t have to be changed, that was expecting too much of the ADA. It is not Affirmative Action statute. Of course the court did not adopt. Some of the dissenters thought the seniority should bend particularly if it is not contractual seniority, not a collective bargaining agreement, these people don''t have a contractual right that can be imposed on the employer so this employee should be able to keep his job regardless of the seniority. They compromised by saying in the ordinary course seniority rules, except that in some cases you can show that it doesn''t. We have litigated a case with a fact pattern I think that is along the lines of what the Barnett court was thinking about. We sued General Motors and United Auto Workers because a individual with depression needed to be on first shift otherwise he went into major depression. The second shift late hours and everything caused him to slide into a major depression. We ended up settling the case and we demonstrated they made exceptions to the seniority rule which was in a collective bargaining agreement for people returning to work from Workers'' Comp injuries, students doing summer work, for other individuals who requested hardship assignments because of school, family situations, whatever, and we also demonstrated that he had borderline seniority and from time to time there were people who had less seniority than him on that shift and he would find out and then he would say hey, you know these three guys have less seniority than me I want to be back on that shift. We demonstrated that seniority may have been in the contract, but it really wasn''t the rule and that it wouldn''t, in other words, hurt to make an exception in this case so he could remain on that first shift. He wanted to transfer to another plants where he had sufficient seniority to maintain the first shift assignment, but we did require that they pay close attention to the seniority and if for some reason he was bumped to the second shift that they engage in interactive process, they consider transferring him to another facility where he could maintain the first shift or giving him a hardship assignment to that shift and making sure they let us know if they were going to do that so we could come in to force them to keep him on shift. That is basically the Barnett opinion, it does cut back on the EEOC''s position. It certainly was our position that the individual, that seniority did not rule I think we had a strong basis for that because of the language of Title VII. There is a specific provision in Title VII that says that seniority will not be affected by that statute and there is no such provision in the ADA. So the legislative history I think supported our view that even with a collective bargaining agreement, the ADA should override the seniority rule. But the Supreme Court obviously didn''t agree with that, so whether it is a collectively bargained seniority system or a seniority system that is just done as a matter of practice, ordinarily, a person will not be able to take a position that they don''t have the seniority to take. So that is Barnett. The other case that came down recently is Toyota Manufacturing v Williams and that was a disability status case. Just to give you a little background, it is a 6th circuit case, from our jurisdiction. There was a case out of the 6th circuit also against Toyota, McKay v Toyota, where the court held that the individual was not substantially limited in the major life activity of working even though she could not do heavy to medium manufacturing work. She could not do any kind of repetitive work so she couldn''t do anything that required heavy lifting or anything like that, she also couldn''t do any kind of data entry or anything like that because she couldn''t do repetitive working or anything that required twisting. She had a 10 lb. lifting restriction. The court said she wasn''t limited in the major life activity of working. That was very disappointing. Well, after that comes Williams v. Toyota Manufacturing, same 6th circuit. The court in a similar case where the individual had limitations because of carpal tunnel syndrome and a variety of other problems like that, she was limited in terms of the manual tasks that she could do at work. And the court said, they kind of ignored what she was unable to do at home and focused on the work area and they said that manual tasks at work was a major life activity and so they said that she was disabled. The Supreme Court reversed that which was not a surprise to me. They said in order to establish disability status for protection under the ADA, you look at activities that are central to daily living and doing those kinds of manual tasks was not central to daily living. They are more interested in whether a person can do laundry, household chores, brush their teeth, basic hygiene functions, that sort of thing. The message of that case is that many people, for example people who have severe back, hip impairments, people who have had kidney removal, people with MS, instead of looking at what kinds of manual tasks that they can''t do at work, we have always looked at what they can''t do at home. When I interview people to find out about disability status I ask who does the laundry, who does the cooking, cleaning, can you do any of those things, can you shop for food? Do you have to have somebody bring food to you, can you get the food yourself? Can you clean? Do you need assistance getting in and out of the bathtub? These kinds of questions if answered the right way will establish the person is substantially limited in activities central to daily living as opposed to looking at work. The Commission has long said in establishing disability status you should stay away from working as a major life activity. The final case I just wanted to mention very briefly is a Waffle House opinion. The only thing I''m going to say about that is in Michigan in particular, many employers have applications that have an arbitration agreement right in the application, the employee signs it they agree they won''t go to court, they will arbitrate their claims. Circuit City v Adams about a year ago, the Supreme Court held that employee is bound by that agreement. If they get a dispute they are not given a reasonable accommodation two years later they have to arbitrate their claims, they can''t go to court. They can file a charge with the EEOC but they can''t go to court. The issue that remained is what about the EEOC? We had two cases in the 6th cases and now a third where we established that we cannot be barred by an arbitration agreement. So even if the charging party has signed, the person we are suing on behalf of has signed an arbitration agreement saying they would arbitrate, we can still bring a claim in federal court and still get back pay, compensatory, punitive damages, reinstatement and whatever we think is appropriate. There was a split in the 2nd circuit in New York said that all we could get was injunctive relief. But the Supreme Court said no, the EEOC even if somebody signs an arbitration agreement, we as government agency did not sign it, we are not going to be bounds by that arbitration agreement and we can go into court. So all of the people who are barred from proceeding themselves need to know that they, if they want to go to court they should file with the EEOC. While we can''t handle all the cases we have discretion about which ones we will choose, we can go forward to go to court notwithstanding their arbitration agreement. Actually a lot of these cases have come up, that was a disability case, the Waffle House case was a disability case and the case in Michigan where the person signed a arbitration agreement, the court held, even though he had a job coach sign it and didn''t understand the terms of it, the Michigan Supreme Court said he was bound by it. I think that was a good result in terms of giving people access to the courts. Any questions
We had a question about the member of our audience was wondering about the special computer program the Jaws? Can you give more information on that.
I''m not a tech know wizard, but we have one here, we have a trial attorney who has a vision impairment. I think the commission for the blind was hired as a contract to install it. But it is a program that reads documents to her.
If you call your regional Disability and Business Technical Assistance Center, I will give the number at the end of the session, they can get you to the resources in your area that can get you more information on that. Thanks for your question.
Yes. Actually we have two questions, the first relating first back to the certification process that you discussed. Our question is if an applicant is told that a certification will be required and the applicant takes the test before being offered a job, just to have the certification available, who pays for the test? Does the staffing firm reimburse the applicant if she or he is hired?
That is interesting. We didn''t really deal with that in the guidance. I always talk to them about the importance of these practical issues. If it was a situation where a person was applying for a job in the ordinary course, just take the contingent thing out and the employer said, I want you to take a physical beforehand, normally the employer would have to pay. So I think an argument could be made that if the staffing firm is saying that you need that in order to be placed through us, that they would pay.
Okay. And the second part of our question goes to U.S. Airways v Barnett. In that opinion, did it also state that if they had found that there were exceptions to the seniority policy that it became an arguable issue and that seniority could actually be bended based on the fact that they had made previous exceptions to their own seniority policy.
They basically suggested that. They used the legal phrase rebuttable presumption. They said an employee can show special circumstances weren''t defining the accommodation is reasonable. The plaintiff has to show they exist. The court observed the showing could be made or the employer retained the right to change the seniority system unilaterally, exercised it frequently, there by reducing employee expectations the system would be followed. The court said that the plaintiff could show the system already contains exceptions such that one further exception is unlikely to matter. And they said this wasn''t intended to be an exhaustive list. I gave you the example of the GM-UAW case because I think that is exactly along the lines of that general language that the court was talking about.
With regards to arbitration, if an employee at point of application signs an arbitration agreement and something occurs that triggers arbitration and at the end of the arbitration process that employee is not satisfied with the decision made by the arbitrator, it doesn''t winds up in his/her favor, does that employee have any other recourse except to go to EEOC?
No, that is a very interesting question. They don''t have any other recourse generally. You look at the specific arbitration, courts won''t over turn an arbitration agreement unless it is contrary to public policy. They have even reinstated sexual harrassers who have been discharged following arbitration who have had collective bargaining agreement. So the chances of getting anything over turned by a court are slim to none. But you can go to the EEOC. The interesting question that comes up from that, let us just say the person gets $5,000 from the arbitrator and their back pay loss is $100,000. If they go to the EEOC there is some language in the Waffle House decision which is enhanced by the dissent that suggests that the EEOC could go forward and get $95,000 for the person even though they have already gotten $5,000 from the arbitrator.
A second part to my question relates to collective bargaining agreements, I need some clarity here. Doesn''t the ADA supersede any type of collective bargaining agreement?
That is what our position, the commission''s position has always been. As I said I thought we had strong support in the legislative history for that because the legislative history said the duty to accommodate under the ADA is a much stronger duty, it is a higher burden for the employer than the duty to accommodate under Title VII, because it has a religious accommodation provision but it has seniority agreements supersede language and the ADA does not. We have lost that argument, we have briefed it all over the country and lost the collective bargaining argument time after time. The courts have pretty much said the collective bargaining agreements override. But they have really only said it in the context most of them have been in the context of seniority systems. If you have a collective bargaining agreement that has provisions in it other than seniority, like certain policies who does what kind of work, what the hours are, what the shift times are, and an employee needs an accommodation that would be contrary to that kind of a rule, I don''t think the courts will be so careful to protect those agreements. But right now the law is pretty favorable to unions and employers on collective bargaining agreements and the ADA.
Thank you.
Thank you so much, great questions, lots of questions out there. Unfortunately we are coming to the end of our hour. Adele thank you so much for joining us today, taking time out of your busy schedule up there in Detroit.
My pleasure
We greatly appreciate it. I think some of us are thinking we need to get you your own Title I radio talk show to take more questions we very much appreciate. If you are ever in the Detroit area, look Adele up. Thanks to all of our sites for joining us today. We were excited to have you with us this month and hope you will join us again next month on June 18 when we will have Shelley Sandow of LCM architects she will talk about design issues for children''s environments. Again if you have any questions about today''s session or about the ADA in general or upcoming sessions, please call your regional DBTAC at 800-949-4232. Thanks for joining us today, we hope to have you back next month.