Welcome, everyone, to the 2004-2005 Americans with Disabilities Act (ADA) Audio Conference Series. The series is a collaborative effort of the 10 Regional Centers. You can reach your Center by calling-today''s session is being real-time captioned on the Great Lakes website. You may visit the Great Lakes website at www.adagreatlakes.org. And also to let you know that archives, audio archives as well as the text of past sessions are available on the Great Lakes session. Also to let you know that you can contact your Regional Center about upcoming Audio Conference Sessions including the December 14th session that will entitle Emergency Preparedness for People with Disabilities. Well have Elizabeth Davis from the National Organization on Disabilities join us. To discuss the executive order signed by the President this past summer forming a task force within the Department of Homeland Security addressing the issue of Evacuation Procedures for Individuals with Disabilities. Again you can get additional information from your Regional Center by calling 1-800-949-4232. As for today''s sessions. Those of you who are regulars to the ADA audio conference series should be familiar with Sharon Rennert. She is a Senior Attorney Advisor within the ADA section of the Equal Employment Opportunity Commission. Sharon is always generous with her time to participate on the Audio Conference Series and is generous with her time in assisting the 10 Regional ADA Centers. Good afternoon, Sharon, how are you? Excellent. We will hear from Sharon, she is going to give us an update on the efforts of the Equal Employment Opportunity Commission (EEOC). Following Sharon''s update. Well then begin our question-and-answer session and we''ll bring Ben in shortly to provide you information on how to get in line to ask those questions of Sharon. As for now, we''ll turn it over to Sharon for her update.
Thanks, Peter. Good afternoon to everyone that I will take on faith is out there, it is not just Peter and myself having a dialogue this afternoon. As Peter said, basically, you all really set the agenda for this afternoon''s program with your questions, and I''m really looking forward to that. Before we get to that, just a very brief update on things going on here at EEOC just in case anyone has missed it, give you a sense of what we have been up to in terms of the ADA. In the last few months we have put out a number of new publications, want to make sure everyone is aware of them. All of these publications are available on our website which is www.eeoc.gov. The website was redesigned a while ago in response to some very helpful critiques from folks like you, and so once you go to our home page you are able to click on something that says Disability Discrimination, and I think that makes it easier for you to get to our various ADA related publications. But we have put out a couple of new publications addressing Specific Disabilities. About a year ago we put out one addressing Diabetes in the ADA. And since then we have added one on Epilepsy and our newest one that came out just a few weeks ago on Intellectual Disabilities. Fact sheets looking at various ADA related issues as they concern Individuals with Mental Retardation. And the Epilepsy and Intellectual Disability fact sheets like the Diabetes one are really written in Plain English. They are geared both to Employers and Individuals with Disabilities. And we really try to address some real world situations. We also took a bit of a different tact in our latest publication, which we did with the FDA, looking at how the ADA applies to Restaurants and other Food Service Employers. So taking a specific industry, if you will, a type of workplace and looking at ADA issues from that perspective. Obviously, one issue being when certain Disabilities might disqualify Individuals from working around food. And understanding what Disabilities may be affected in terms of Food-born transmission and looking at a lot of myths and stereotypes in that area. That is another fact sheet that if you are not familiar with you may want to take a look at. The commission also last month published an interim report on best practices for the employment of People with Disabilities in State Government. This project was part of the EEOC''s participation in the President''s new Freedom Initiative. And it undertook to look at certain States, and to examine best practices that these State Governments had used to recruit and retain and promote Individuals with Disabilities. And we put out an Interim Report, the final report will be published in October of 2005. But looking at the first four States that had come on board, the ones we have had the most time to really focus on, and they were Florida, Vermont, Maryland and the state of Washington. And the report looks at such things as Recruiting and Hiring, providing Reasonable Accommodation, protecting the rights of Individuals with Disabilities, and then some practicing that could not be neatly categorized but certain things that we wanted to note that were creative and provide approaches that were really geared to increasing the Employment of People with Disabilities. So the Interim Report is also available on our website. And like I said, we are going to do a second and final report to be published about a year from now, next October. And the final thing I wanted to make sure that people were aware of is a project that we did called-or the Commission has done called Youth at Work. And again, it can be accessed through our website. This is not specifically focused on the ADA or Youths with Disabilities. But rather the Commission recognizing that a significant percentage of the workforce are made up of Young People, and some particular issues that can come up with Young People that they are not always familiar with what their rights are or they may be very tentative speaking up if their rights are violated, put together on our website something that was really geared to Teenagers or Young People in their early 20s who may be in their 1st or 2nd jobs and in some Industries, may even be Managers and may be supervising other people and to acquaint them with the laws enforced by EEOC including the ADA, really keeping it at a level to be understood and to provide some basic information so that they know what their rights are or what their Obligations may be, they are Supervising or Managing Other Workers. And it is very interactive, there is a quiz that people can go through. I wanted to bring it up. For anybody out there, that may be working with Young People with Disabilities, that may be something you want to share with them, let them know that that is there on the website. That may be of more interest or particular interest than a lot of the other Fact Sheets that are specifically about ADA. They may go to those fact sheets afterwards, but that is something to keep in mind. The final thing to say is everyone is well aware, we have just come through an Election. And in terms of the leadership here at the EEOC, as an Independent Federal Agency, one way that we are distinguished from cabinet agencies like the Department of Justice or the Department of Labor, is that the Four Commissioners, we should have Five, but at present we have Four Commissioners, they all serve set terms and those do not necessarily come to the end, just because the President''s term of office ends in January. Which means that they will be able to continue serving as long as their terms are going. And we have not had any information changes in terms of the present make-up of the Commission. There is one vacancy. We hope that there will be somebody coming on board. By law, the make-up of the Commission has to be divided between Republicans and Democrats and so the slot that is vacant will be going to a Democrat, but no word that any of us have had as to when that will occur. So in terms of any new Initiatives, any Major New Programs that may be undertaken, it is a little too soon. Everyone is still meeting and caucusing at this point. The best thing I can tell you is to stay tuned. I think things will probably stay on the course they have been for the last few years, we assume the new Freedom Initiative will continue. Stay tuned and any Major things that are happening in terms of the EEOC certainly should see up on our website. With that, Peter, I''m happy to turn it back to you on the phones and see what questions people have.
While we allow those calls to sign up, we had some e-mails into the center. This one deals with the issue, ask the question, is an Employer required by law to make a determination as to whether or not someone meets the definition of Disability under the ADA when a request for a Reasonable Accommodation is made. And additionally, if an Employer does not make a determination but instead does provide an Accommodation, are they regarding that Individual as having a Disability under the Third Prompt.
Excellent question. In terms of the first question, an Employer is not required by the ADA or by its Sister Law, the Rehabilitation Act to determine if an Applicant or Employee has a Disability as defined by the ADA before the Employer provides Reasonable Accommodation. An Employer has obligations to determine if the person has an ADA Disability. However, the Employer has a right to determine if it is an ADA Disability where it is not obvious. By obvious, that you can''t tell by looking at the person, that their Impairment is severe enough or appears severe enough to likely be an ADA Disability or you don''t already have information from the Individual that establishes it is an ADA Disability. So under that circumstance where you-as an Employer you don''t know, you certainly have a right as part of the Interactive Process, when someone requests Reasonable Accommodation to ask questions about the Medical Condition, to ask for Medical Documentation that would help establish that it is an ADA Disability. But that is a choice that the Employer makes. Now, as to the second question you asked, if the Employer decides not to ask questions or request documentation, but simply decides to give an Accommodation, could the Employer ultimately be found to have regarded the person as having a Disability by virtue of the fact they gave the person an Accommodation? And the answer to that is emphatically no. An Employer cannot be found to have regarded somebody solely on the basis that they gave somebody an Accommodation. The Commission has stated that every court that I am aware of that has looked at that issue has stated that an Employer cannot be found to have regarded somebody as having a Disability solely on the base is that they honor a person''s request and give them an Accommodation. If we think about it, it would be certainly a tremendous incentive for Employers to Grant Accommodations if they were going to potentially be accused or found to have regarded somebody that it would mean that the process would alwys now have to include a formal establishing that it is a Disability. I think the ADA does not mandate that, I think it takes away a lot of the flexibility and informality that we have tried to encourage that is in everyone''s interest. And so the EEOC and the courts formally have reassured Employers and tried to send a message to Individuals that are regarded as claims just will not rest on the fact that somebody has received an Accommodation.
Thank you. Section 1630.2 of the rule covering title one says that the existence of an Impairment is to be determined without regard to mitigating measures such as medicine or assistive or prosthetic devices. Yet, I understand there has been a recent court case that found just the opposite. Could you give us a status of that.
The questioner is looking at the EEOC''s regulations, the section dealing with how you treat mitigating measures as part of a determination of Disability and what you were reading from is the original regulation that was published back in 1991. But that regulation or that part of the regulation was effectively overruled by the Supreme Court in 1999. In a case called Sutton versus United Airlines, in which the Supreme Court disagreed with the EEOC''s interpretation of the ADA and said that in deciding whether a particular Individual meets the definition of Disability, you do indeed look at mitigating measures, assuming the person uses it. If they don''t use it, then obviously, there is nothing to assess about a mitigating measure. If a person is using a mitigating measure, you look at what impact that is having and the impact could be positive, it might ameliorate or lesson to a certain extent the impact of a medical condition. On the other hand, the mitigating measure itself may have very serious side effects that alone could be substantially limiting a major life activity. In fact the EEOC amended that regulation you were reading from, so I''m going to hope that it is a very old copy you were looking at, so that anybody going on our website today or requesting a paper copy of our regulations or if you go into a law library, which should print updated versions, that section you were reading from is not there any more. Precisely because of the Supreme Court decision in Sutton versus United Airlines.
Right. Then you can visit the eeoc.gov website or contact your Regional ADA Center to get an updated copy of the Title 1 regulations.
And in addition, because that discussion of mitigating measures was also found in our Technical Assistance Manual, it was found in a couple of our Enforcement Guidances, we published addenda to those as well. So anybody who has something that was put out prior to 1999, if you haven''t updated it, you may want to, as Peter said, you can go on our web site. Or you can contact the EEOC Publications Center to order hard copies of these documents and all of them now contain the addenda to make it clear that Sutton changed the interpretation of the Law.
Yes, I''m an Individual with a Disability. I''m not affiliated with an agency. What happens if a person applies for like a Case Manager Position working with People with Disabilities and it says that you have to be able to drive, and it is not an Agency that has been so helpful in Providing Transportation such as an Independent Living Center and you are looking. And when you go to apply, go through the application process. How can that be negotiated if the person needs a Personal Assistant in order to help them get around?
Okay. The question about it, if the job announcement says that you must be able to drive for this particular position, and where due to a Disability you are not able to drive, then what you would want to do is first of all, where it is not clear, and I think it is always visible even if you think you understand what the job entails, to definitely bring up the issue. That I notice that you say driving is a requirement. Can you tell me why one needs to drive, what is the purpose of it. How frequently.
The positions that I have searched for are like Case Manager Positions where you would work in a group home, and you need someone there to be able to take the clients to the doctor. If they need to go in a hurry, and that kind of thing. And my ideology for handling this up until this point, I have not been hired, okay? But I would have somebody at call in case something happened would be able to transport me and the client from point a to point b.
I certainly think you can present your proposal to an Employer, but from what the Employer has to also figure out is weather it is in the terms of the ADA and an essential part of the job that a person be able to drive. And so somebody who is working in a group home where I will assume some of the driving may be to get people to jobs, it may be able to get them to doctor''s appointments or the market. It may also be, as you were suggesting, it may be emergency situations, depending on, is it you will serve by yourself in the group home. Are there going to be several Case Managers working at the group home? Does every one of them need to drive or could one person be exempt from it? And so in terms of the understands understanding that you can get from the Employer of what really is the job requiring? Where might you be able to suggest would it be possible to use a personal assistant or, you know, to take a taxi or a company-or accompany somebody on a bus, potentially. But the Employer, too, is going to have to consistent with the ADA, make an assessment about whether they believe it is an essential duty of the job that the Case Manager position you are interviewing for, does that case manager himself or herself absolutely have to be able to drive? And over the phone, there is no way that you and I can kind of come up with one answer, I can imagine some positions where it might well be an essential job duty to be able to drive yourself. On the other hand I can imagine some positions where it might not be. There may be a variety of ways, not just a personal assistant to do the driving, but as I said, taking a taxi or a bus with the person. From your perspective as an applicant to fully explore what those options are, if you don''t feel the-and make sure that the Employer understands with you what you feel are options and if the Employer disagrees, that you try to get the Employer to explain his or her point of view. And if you are still dissatisfied with that, you feel that it is possible to do this job, it is not essential that you be able to drive, then your final option is to contact the EEOC.
In Greensboro, North Carolina. We have two questions. I''ll try to make it two parts so you can get both. A person with a significant Disability, if they are turned down from an agency like Vocational Rehabilitation, getting assistance in finding a job, what recourse would they have, and
Can you-are you-do you have a speakerphone, if you could pick up the handset, you are breaking up a little bit.
I''m not sure, I''m being that somebody''s being referred or helped by a vocational Rehab Agency.
Okay. If a person with a significant Disability is denied help by an agency in seeking Employment-the other part of the question is, if you are a person with significant Disability. Go on job interviews and you are qualified in your field, but they tell you they have hired someone with more qualifications, do we know-and you know they are being denied the job.
Let me take the second question, because I may still have to get clarification on the first. In terms of the second one where you have been denied a job and told that the person that the Employer picked was a better Qualified Candidate. But in your heart of hearts you think that it really was Discrimination based on your Disability, at that point I mean, there may be a couple things, one certainly, you can kind of press the Employer for what were the qualifications that the person hired had that you did not. I mean, to see if you can find out some specifics, because maybe that is true. And maybe there were some things that the successful candidate had in his or her background that the losing applicant did not. And I think that the more specificity the Employer can provide, potentially the more likely it is that it truly was a decision based on the relative merits of the candidates. If, however, the Employer is not very specific and is kind of evasion and you still believe in your heart of marts that it really was a Discrimination-a Discriminatory Decision, then the Individual has an option to contact the EEOC and File a Complaint. In terms of how easy or difficult it will be to learn whether it was Discrimination or not, obviously, EEOC''s going to want to find out and compare the Qualifications of the two people. Sometimes these are close calls, and it might well be Discrimination, but we may be hard pressed to find Evidence. Sometimes there just truly are some tough calls to make between two Qualified Candidates, each one has different strengths, so somewhat apples and oranges. So it may be at the end of the day, EEOC cannot find Sufficient Evidence to find Discrimination. On the other hand, we are going to interview the hiring officials. The success of the person who was ultimately hired. We will look at everything in terms of the comparison of them. And there have been cases where we have agreed with the person filing the charge, that, yes, this had nothing to do with relative merit and had everything to do with choosing not to hire someone because of a Disability. There is no guarantees as to what is going to happen, but certainly, a person who feels the Discrimination is likely should contact EEOC. As to your first question, what I got was that somebody is using Vocational Rehabilitation Agency to help them find a job. But I''m afraid I didn''t hear the question.
Yeah, let us try one more time, see if we can get the rest of that question.
Okay. The question was, if a person with a significant Disability is refused help by an Agency like VR what can they
Okay, okay. So if someone with a significant Disability is refused assistance by a Vocational Rehabilitation Agency, chances are that is not going to be a Title one ADA issue, in terms of Employment. The only way at least off the top of my head I could see an Employment Personally an Employment situation is if the Vocational Rehabilitation Agency is solely going to work with this person like an Employment Agency. And since the ADA-since the Employment Provisions of the ADA extend to Employment Agencies or Organizations acting as Employment Agencies, then certainly that can include Vocational Rehabilitation Agencies. And potentially, there may be a Title 1 ADA issue there. But more likely, I would think it could be picked up under Title 2. But there may not be any ADA connection either. I mean, I don''t-not knowing the reasons that somebody is turned down, not knowing what the mandate is of the specific Vocational Rehabilitation Agency. I don''t know if there were legitimate grounds to turn somebody down. So it may be that it is not an ADA issue, it may be something else. But to the extent there is an ADA issue, I''m thinking it might be Title 2 of the ADA, which applies to State and Local Government Programs.
Thank you for your question. I want to get another e-mail question dealing with the Toyota versus Williams Case. And the Supreme Court in their ruling talking about someone being substantially limited in manual tasks, central importance to someone''s daily life. And how would an Employer apply that. And additionally the question asks about would typing and filing be considered central?
What you are raising, the supreme court decision in Toyota versus Williams from a couple years ago, which focused on the major life activity of performing manual tasks, and the question-just from all of our perspectives, I think we can all start in our heads coming up with a lot of things that are performing manual tasks, there have to be hundreds of different things that could fall under the heading of that is performing a manual task? But the question that confronted the Supreme Court, that confronted EEOC, confronted lower courts, what does it mean to be substantially limited in this major life activity, when you could have literally hundreds of manual tasks, which one do we look at? Are there only certain ones? Do you look at all of them? Do you have to make determinations based on every manual task you could possibly think of? So in the Toyota case, the Supreme Court said no. That in defining or clarifying the major life activity of performing manual tasks, the Supreme Court said that you want to look at tasks that are of manual tasks that are of central importance to people''s daily lives and the Supreme Court itself went on to give some examples, they talked about performing household chores as an example of a manual task or manual tasks that are of central importance to people''s daily lives, household chores. Bathing and brushing your teeth. Perhaps is a kind of-taking it a step larger, sort of personal hygiene kinds of manual tasks. Those two are viewed as manual tasks of central importance. So to the Supreme Court, those are the manual tasks that one would assess and if somebody is found substantially limited in performing those types of manual tasks, then that is a person who has met the ADA definition of Disability here. So how would Employers apply this? An Employer that has determined whether someone has an ADA Disability. Going back to an earlier question, if someone has requested Reasonable Accommodation, and an Employer''s not clear, if the person has an ADA Disability, and so as part of the interactive process wants to make a determination, then if the person is indicating problems performing manual tasks, then the Employer would be asking questions whether of the Individual or of the appropriate Health Care professional who works with or treats this Individual to-would be asking questions to get a sense of precisely what manual tasks or what types of manual tasks is somebody either unable to do or severely or significantly restricted in doing. And the idea is then that the Employer would sort of be putting it together here to say, is it like household chores and bathing, brushing your teeth, personal hygiene. A lot of the things that the people in their daily lives need to be able to do this in order to function, to move about in their life. Or are we talking about certain manual tasks that are just too specific, too minimal, that you may have one little limitation here, but that cannot be considered something that is of central importance. Obviously, there is some work to all of this. And that is why a lot of Employers would prefer sometimes just to go ahead and discuss the accommodation being requested, because obviously it has to be approached very seriously, and thoroughly and carefully if an Employer is going to make this assessment. The Supreme Court gave a certain amount of clarification, but there is no definitive list that has been created by EEOC or other courts of what are those manual tasks that are of central importance. And so clearly, an Employer is going to have to proceed carefully, cautiously thoroughly. You don''t want to do, if you are going to undertake this kind of assessment, you don''t want to do a kind of surface or skin the surface-skim the surface. That is not going to be helpful. In terms of two specific manual tasks that you raised, Peter. Typing and filing, shortly after the Supreme Court decision in Toyota, actually, I guess it preceded it, but the case then continued. There was a case out of California, and it ultimately went to the 9th circuit court of appeals, which covers the western states. A case called Thornton versus Mcklatchy. And it involved a reporter with Carpalton syndrome, who had difficulties typing and writing, like handwriting, and the EEOC got involved in that case as an amecus. Meaning that we did not represent the reporter, but when the case went to the 9th circuit court of appeals, that we submitted briefs supporting the reporter, that the handwriting and the typing were manual tasks of central importance to people''s daily lives, that in terms of the presence of computers in everybody''s life and all the other devices that I''m very technologically backwards, so I don''t have all these things but black berries and PDA''s and all the way that-all the ways that people have to be able to type things, and the same thing with handwriting, that it is not obsolete yet, even if computers have proliferated. And so the writing checks and other things that people are doing, and for this-so we said, these are of central Federal Importance, when we looked at specific facts of this reporter, how in our view, the facts supported that she was severely restricted in performing both of these. This was the argument that this reporter was making and we joined with her in making to the 9th circuit. She lost. It was a split decision, it was 2 to 1. There was a very forceful dissent that agreed with miss Thornton and agreed with the EEOC consider that being able to type and being able to write were a central of importance and the facts of her case supported that she was substantially limited. But by a 2-to-1 majority, 9th circuit ruled differently. The majority ruled that typing and handwritten were not of central importance, they said it was very important in her particular field as a reporter, but they did not find it particularly important to most people''s daily lives. I think this is a case that-a situation that will be litigated again. I don''t think we have heard the last of it. I think from EEOC''s perspective, we have taken a position that we view typing as something that is of central importance. And while we will obviously honor in the 9th circuit their ruling, it doesn''t necessarily bind us in other circuits. Filing, that is not one that I think the commission has looked at. I''m not sure that as I think about it, that I would classify filing as something of central importance necessarily. The activity itself of filing. Again, obviously, for some people, that may have a huge impact but I''m not going to say initially that it strikes me as falling in the same category as household chores, personal hygiene, that all by itself standing alone, that filing could be viewed as a central importance. So that one, I''m not so sure about.
CIL''s in general need to hire a certain minimum (over 50 percent) percentage of staff with Disabilities. How does this impact on the pre-hiring, interviewing, and post-hiring process? Can the Center ask the applicant if they have a Disability?
Thanks. Okay. In terms of where you have an Organization that wants to hire People with Disabilities. How can they fulfill that goal and yet be consistent with the ADA''s rules governing pre and post offer questions? And I''m sure everyone listening well knows, prior to making any kind of job offer, an Employer is prohibited from asking Disability related questions. Now, one exception to that is when the Employer is undertaking affirmative action, and our guidance on Pre Employment inquiries and Medical Exams explains the requirements for an Employer that is undertaking affirmative action, what steps it must go through in effect to have a legitimate affirmative action program. But that may be potentially one possibility here, but there is a conflict that outside of the realm of affirmative action, even though an Employer has the best of intentions and desires here, if it asks straight out, do you have a Disability? Clearly, that is a Disability-related question. And it would be Illegal pre-offer. If anybody wanted to come and complain to the EEOC about it. The ADA does not take into account the Employer''s motives, it is a very strict rule. It is just we don''t care in effect what the motive is or the reason behind the question. It is the pre-offer. It is prohibited. Post offer, obviously, you can ask all the candidates chosen, you know, any time you would ask anyone offered a job for a particular position if they have a Disability, you know, that is fine to do post offer. But what do you do Pre-offer, you can''t really asking directly without violating the ADA and risk someone filing a Complaint against you. And yet you want to honor your goal to hire People with Disabilities. One thing that you certainly can do is you can advertise. You can advertise wherever you publish announcements about the job vacancy that your goal, your wish is to hire People with Disabilities, that you can make sure that you are advertising as widely as possible or targeting your advertising where you feel you may have the most success of reaching people with Disabilities, so they are well aware of your job and your goal to hire People with Disabilities. You can put it on the job applications you can put it on the Job Announcements. You can certainly state it if you interview people. But it is a fine line, because as soon as you ask the question, I mean, somebody might now volunteer that they have a Disability. And again, if they volunteer they have a Disability; you still can''t follow up asking all kinds of questions about the Disability. I mean, you have got the information now that they are reporting to you that they have one, but again as an Employer, you really have to focus on in this pre-offer period is the qualifications for the job. And information about Disability may incidentally come out if somebody talks about their job experiences or their Educational Experiences or why they think they are the best candidate for a particular position. So it may incidentally come out. But it is a little bit of a bind. We have heard this from other Centers and other Organizations that want to hire People with Disabilities and it is that we understand the goal and the motive but there is no formal exception in the ADA to address it. So as an Employer, you need to tread a little carefully hear.
Ms. Rennert, the new guideline for the Food Services Industry release by EEOC at the end of last month, tell us how this guidelines will help us to better Comply with FDA the Employment ADA Provisions?
If I understand the question in terms of our Fact Sheet on how the ADA applies to Restaurants and Food Service Employers, one of the reasons that we decided to put this out is that sometimes it is difficult to take the general rules of the ADA and apply them to specific kinds of jobs or specific work places. And so in an attempt to take the general ADA rules and we''ll go ahead if the EEOC and we''ll apply them and show how they work in restaurants in food service workplaces, the kinds of jobs that obviously exist in restaurants, so we''ll use those examples of people who are servers, are cooks, who bus tables, the dishwashers, you know, well use all those kinds of examples to illustrate the ADA rules, obviously, as I mentioned earlier, the ADA does have rules about certain types of Disabilities that can be transmitted through food, that are identified as being transmitted through food, and what an Employer can do if somebody has one of those. What about if they don''t have one of those Disabilities that the Employer is still concerned about trans-ability or just the public is perception if they were to find out that somebody had a certain Disability. So what we are hoping is that-with this fact sheet is by making clear how the ADA applies, I think we hope a number of things can happen. One is, to make Employers better aware of their responsibilities. Better aware of how the ADA works in this area. We hope they are educated in terms of not being so quick, perhaps to dismiss the possibility of people with different Disabilities being able to do different kinds of Restaurant and Food Service work. Obviously for those people who currently work in these types of workplaces or are applying for jobs in these kinds of workplaces we hope that the Fact Sheet gives them more specific information on what their rights might be. What Obligations they might have. In terms of the kinds of Reasonable Accommodations that may come up here, so we really try to write it, I think with two audiences in mind here. And we hope that we succeed.
It was a timely release. I believe that was released on a Thursday. And the following day I was able to provide that to an Employer in the Food Service Industry to address his ADA question. So we put that to immediate use. Could we get the last question from the Captioner, please.
If folks are still not aware of Sutton, is it possible for EEOC to consider preparing a Fact Sheet on Mitigating Measures?
I can certainly raise that issue here about putting out a particular Fact Sheet just geared to Mitigating Measures, one thing that we do have on our website that we put out shortly after the Sutton decision in 1999. It was actually not done as a Fact Sheet for the public. It was done for EEOC Investigators and Attorneys. Obviously what the EEOC did in Sultan in overruling the interpretation, the Commission had to act fairly quickly to get out information to our Investigators across the country, to our Attorneys about what to do. Obviously we had all kinds of cases in the pipeline, and we had to make sure that they were appropriately processed, taking into account the Supreme Court decision, and we needed to give them guidance. That guidance is available on our website. And it is caused it is a kind of long, unwieldy title. Because as I said, we didn''t write it as a Fact Sheet. But it says Instructions for Field Offices, Analyzing ADA charges after Supreme Court decisions addressing Disability and qualified. So if you go on to our website and you get to where all our the ADA publications are, look for something that says instructions for Field Offices. In there, that is where we address the Sutton Mitigating Measures Decision. That is where there is quite a lot of information about what the Supreme Court said, but how do you apply it. And we give a lot of concrete information that while it is certainly useful for EEOC staff, I certainly am well aware that Employers are using it. That organizations representing People with Disabilities are using it. Because we basically said, let us be sure whether a mitigating measure has really taken someone outside the ADA''s protection, that Mitigating Measures don''t always Mitigate, that the Sutton Case involved two people who wore eyeglasses, and that eyeglasses are not necessarily representative of the range of Mitigating Measures and even the fact that some people wear eyeglasses and it solves their problems and other people can wear eyeglasses and still be legally blind. Even wearing glasses. So we really kind of looked at a wide range of Mitigating Measures, we proposed all the questions. You would have to ask a person to find out how well they are Mitigating Measure is working. So there is already somebody out, and I would refer people to it. Whether we would do an update or repackage it, or put it more in a format of a Fact Sheet, that is certainly something that we can explore here.
I''m representing several staffing services. My question is basically, I think you have answered it already, if we have a Disabled person coming in seeking a position, can we inform the Employer by request of the job seekers that they have a Disability? If they ask us to let the Employer know ahead of time with the idea that they don''t want to waste your time going out there in case the Employer has a problem with it. I just want clarification on it, please.
That is tricky, I mean, where you are a staffing firm, and I understand your question, somebody is saying, look would you please tell the Employer I have your client who might be there potential Employer, that I have a Disability because I don''t want to waste my time if they are not going to be interested in me. You are in a very tough spot, and I would say you have to think about this, because even though they are giving you permission, first of all, as a staffing firm, you are certainly covered by these ADA provisions. And in terms of being able to disclose that at this point in the process, where clearly is there is no job offer from the client on the table at this point. Because of your relationship with this client, with the Individual and your coverage, I think it is highly risky if you actually do tell the Employer that this person has a Disability. Again, even though they have given permission, even though again, the going back to almost that previous question, the motive may be legitimate ones, you want to honor what this person is asking of you. And yet that may put you in a bind. So in terms of-I mean, I understand people not wanting to waste their time, I''m getting that, what is the reason, if it is discriminatory, that this client is going to turn down this person just because they have a Disability, and there isn''t a legitimate reason, that is a problem, and it is obviously a problem for the Individual. It could be a problem for a staffing firm that acquiesces in that. If there is a need for Reasonable Accommodation or other appropriate kinds of discussions? That may be something that can and should be happening, there is room to have those discussions consistent with the ADA. I would not suggest that you announce ahead of time that somebody has a Disability.
Great. And again for the staffing agent, it could be problematic to continue to work with or associate with an Employer that is known to discriminate.
I would want to ask this Individual, why are they asking me to do this. I basically would go back to them and take it from there.
Yes, I work for a state agency who works very closely with the Independent Living Center and area, and the situation that we have is, they have basically been firing or Demoting Individuals with Disabilities for no apparent reason. One case in point a middle-aged, woman who is blind and with some hearing Impairment, been on the job for 7 years and now has been demoted, and basically, I have been working closely with her, and she is always exceeded the goals that we require of them in this particular area, and I know since February, she has not been given accessible equipment in order to do her job yet she still exceeds her goals, now it appears that they have demoted her, and possibly are trying to remove her from her position. I do know since February in this same Facility they have fired, demoted or forced out 12 of their 30 Employees who have Disabilities. What can we do-me, personally, if anything, and secondly, what can the EEOC do or recommend?
Well, these Individuals, if they want can File Complaints, what we call charges of Discrimination against this Organization. If they choose, I mean, the EEOC basically operates only when somebody files a Complaint with us. We really don''t have Jurisdiction just to go into an organization because we have had some information. There are very rare circumstances where what is does is done. And we have to have a lot of fairly reliable information for us, sort of proactively, to initiate an investigation. That is done in very rare circumstances, the bulk of our investigations are triggered only when somebody Files a Complaint. If you work with this woman or other people and you want to suggest that things may not be right, and they may want to take it to the EEOC, and to remember there are time lines for filing complaints that is not open ended, I believe it is Illinois and I believe it will be 300 days, but I tell people, even if you are only thinking about contacting the EEOC find out how long you have, so you is don''t miss out on the deadlines for filing.
Hi, thank you. I have a question with a case I''m involved with, it involves a huge Technology Company, and we represent an Employee who needed to have the database made more accessible for works with screen reading software. They move very slowly, the court finally ordered them to engage in the interactive process, we started looking at accommodations for the database, and during this process the company announced that they are instituting a new database nationwide, which is even more inaccessible than the old database. And now because they did not include any accessibility enhancement, installation or purchase phase. They are saying it is too expensive to accommodate him now, we should look at assigning him at the Employer''s request to a different job. We feel they still need to look at him accommodating him in his present job. Plus they have a duty to investigate the purchase and installation phase. I was wondering what your thoughts are.
Without-I always want to be careful where there is a sort of active case going on, because I''m obviously getting just certain bits of information. But I think that obviously, there are lots of issues around making databases technology accessible. An Employer that knows that there is a request pending, that chooses and it may be legitimate business reasons to be changing the database here, that it would be an amazing thing to sort of, especially when you say sort of a big company and nationwide, that is a very huge undertaking and an expensive undertaking, to do it solely to avoid providing accommodations sounds a little-it doesn''t sound quite right. But where they do have something on the table. And they don''t investigate accessibility issues, it would be the same thing like if you know you have an Employee who uses the wheelchair and you are moving your offices, and you move into an office that is completely inaccessible to someone who uses a wheelchair. Once you have people or staff who have certain Disabilities who have made requests to you for certain kinds of accommodations, it is very important for Employers to make sure that all the appropriate people within their organization know this, and keep it in mind so if you are moving buildings or you are changing your databases, you are not going to undermine the ability of someone to get an accommodation. Whether it is too late at this point. I don''t know. I don''t know if there is an undue hardship argument to be made here now in terms of trying to make it accessible if the database system is already installed. There is just too many unknowns here, so depending on where things are at, the Individual can explore reassignment if that is the only thing left to-they can still keep their requests in there and push for it, they can also explore reassignment so they can keep working at something. They can also file with the EEOC. But there is just too many unknowns for me to say, I''ll tell you anything more than that.
What if there is a situation in which an Employer has certain times when their Employees are required to drive and they do provide company vehicles for Employees, but a person is hired who has a Visual Impairment and as part of their Reasonable Accommodations, they agree to pay part of the wages of the driver. But they say the driver cannot drive company vehicles, is that okay?
Okay. Let me make sure I understand, the Employer is willing to subsidize the cost of a driver for someone who because of a Disability can''t drive themselves, but the Employer does not want that person using a company car?
Yes.
So they want the Employee to rent a car or-is that what this is?
Or use their own vehicles. Or use the driver''s vehicle.
and the Employer''s reasons for not wanting the driver to use Company Vehicles would be what?
Because the driver is not Employed by the Company.
To do that. These are one of those gray area issues, one thing I would tell an Employer to explore. This is somebody not necessarily Employed by the Company. Is there a way to give a contract in effect to this person, a very limited contract, would that solve the problem if the letting them use the company vehicle as opposed to looking for alternatives vehicles to drive. That would be one thing to think about. Is there not necessarily to hire them as an Employee. But do a contract with them. In terms of the idea if the Individual has their own car. I would encourage the Employer as part of the accommodation, some kind of reimbursement for mileage. Obviously, there is the wear and tear on the car. There is gas, there is all of those things, and I think that to the extent that that is should be part of the accommodation as well. Again, other Employees are not having to use their own vehicles, they can have access to the Company car, they are not presumably on their own dime, filling it up with gas or oil or all those things, so some kind of mileage reimbursement, if you are going to do that, but some way that, in terms of-I think that you do have to address something about the vehicle issue and not simply the reimbursement for the driver, because what I''m gathering is that the driving itself is not the essential function. If it was, then this Individual needs to be able to do it. And so the driving may be important in helping perform an essential function, but once you are kind of at that stage. Then I would want to brainstorm on every possible way to get this person from point a to point b, that the Employer can do without causing undo hardship. That is why I''m wondering about doing a contract with the person or as I said, looking at reimbursing for mileage, the person or the driver will use his or her own personal vehicle.
Question on the definition of a disability under the 3rd prong. Can you kind of explore that for me, I do some trainings for Employers and stuff, this one always gives me a hard time. Is there maybe some examples of some different things that you have come across that would fall under that heading of that definition?
The regarded as definition, when I''m doing training, I kind of like to refer to it as making mountains out of mole hills. The idea here is that if you are into the 3rd definition, it means we are not dealing with someone who has a substantially limiting impairment. We are not dealing with someone who has a record that at one time they had a substantially limiting impairment. You could be dealing with someone who has a mild impairment. That is all they have ever had. They might have another a very mild limp. They walk a lot, they ski, and they have a slight limp. They have Impairment, you know, but it really doesn''t impact them all that much. It doesn''t prevent them from doing the things they want to do. Or very, very modestly it has an impact. But the Employer makes a mountain out of a molehill. The Employer sees this limp and assumes all the worst things. Oh, my gosh, you have got a limp like this; you can''t walk at all you can''t stand at all. I don''t care what you say to the contrary, you are going to end up having an injury and then I''m going to have Worker''s Compensation costs to pay. I''m sure you must take lots of sick leave because of this. It is the idea, the making a mountain out of a molehill. If the employer remains calm, and gets objective information, that basically shows, no, it is a mild limp and it doesn''t impact all that much, if at all. Then there is no reason there has to be ADA Disability here. But if the Employer overreacts and it really comes up where an Employer is not getting objective information, if the Employer had objective information then-objective information, then the assumption is, they wouldn''t be overreacting, they would understand how mild this situation is. Which is why the ADA places a lot of emphasis on if an Employer has doubts or concerns, that there really are ways to ask those questions consistent with the ADA so an Employer doesn''t overreact. So the regarded as is really about an Employer making assumptions, thinking the worst, acting without the benefit of objective information. The more an Employer gets objective information that addresses their concerns, their fears, whatever assumptions they are playing with that really either provides them with solid information, yes, this is serious, or know, it is not. If we are talking about regarded as. The information should always be showing it is not serious, it really is a serious Impairment, then it should be falling under the first definition.
Are there plans to prepare any ''guides'' for other Industries such as Health?
At the moment, no. Again, these are things that we are constantly talking about. I think that the food and drug administration had really approached us about doing the restaurant guide. I think that was the genesis of it. So at the moment, no, we don''t have specific Industries or workplaces in mind. But I take notes in these phone calls, and so I have just put down the Health Industry with a question mark, and I''ll be happy to explore that with other people here.
About how many charges of failure to Accommodate has the EEOC received that have been based on an Employer not placing the Employee on a noncompetitive basis in an alternate vacant position for which the person is qualified if the Employee cannot be accommodated in their usual job? Do you believe that many Employers are Accommodating Employees in this?
I think the question is about reassignment. Let me start answering what is come in. And it is that I don''t know how many charges we have received on failure to provide reassignment. In terms of, I know we do post the numbers of charges we have received and we do list charges that are alleging failure to provide Reasonable Accommodation. In terms of being able to take it the next step and break down, well, what type of Accommodation, I actually don''t know. I am sure just by working on any number of cases, obviously, there is going to be a significant number of those failure to accommodate cases that do involve a failure to make a reassignment. But I wouldn''t even try to hazard a guess as to how many. But that is obvious, it is a big issue that comes up in our cases, we know it is a big issue by the questions that comes in from both Employers and Employees with Disabilities. There is still a lot of confusion about reassignment and what it entails. So I''m not surprised that we definitely have charges involving them.
I had a question regarding ADA and supported Employment. I work with the supported Employment Agency, and just in general terms if you say outloud that you work with a supported Employment Agency, automatically the person knows, if they are familiar with Supported Employment at all, they know you are working with a person with a Disability. That is one of my questions, is that something that should be presented when job pitches go out at first to assist people connecting with Employers. My other-my second question is regarding ADA and the relevance of Supported Employment versus Shelter Employment? And our State, for instance, in North Carolina, the Division of Facility Services offers, the only vocational license that they offer, is an ADDP license, which is in essence a workshop license. There is no supported Employment License. There is a way to go about that, but it is not what typically is the norm. And so, we hear quite often from people in our Agency that when they go through VR, often times they hear things like, you know, your family member isn''t ready to work in public yet, things of that nature. Or information on assessments - tend to be presented based on what we are hearing in ways that seem to be deficit based. And so I guess my question is, relative to the Olmstead case and things be restricted with Residential Services, where does the ADA fit in terms of Employment Services?
well, I think that terms of your second question that wire going to ask Peter -because I really think as you are describing the question, and especially when you bring up the Olmstead case, we are probably talking about title two of the ADA, State and Local Programs, which is the extent there is a private program, 2 could be title 3 of the ADA. And it is not probably going to be something the EEOC can address under title one, the Employment Provisions as you said it-set it up. So it really is about listen out for when the Justice Department is doing this program and get first in line with your question. But to your first question about, what do you do when you announce, hey, we are with a supported Employment Agency, kind of the cat is out of the bag, and this is where I have to tell people that the EEOC understands and is not expecting-we don''t think congress, when it wrote the ADA was thinking to try to interfere with the kind of work you are doing and the type of clients that you are serving. And I think that the to the best, I think the best way to approach is it is obviously you have to announce who you are working, who you are, and who you are working on behalf of. And that the Emphasis as much as possible is the ability to do the job, which is exactly what it ought to be, and if all that is done, I mean, it is not like people are running to the EEOC to file Complaints that supported Employment Agencies are violating ADA, that they are disclosing information about Disability inappropriately. I mean, in that kind of a situation, you are right. You are going to have to say a certain amount. I think that in other-for other types of Disabilities and other kinds of Agency, whether Vocational Rehab Agencies or whatever. Where we have encouraged the Individual as much as possible will be representing him or herself. As far as I know, that is really the model that people are going to. 20 years ago, a lot of people were almost kind of taken by the hand and really you had somebody doing the Inter-application process for you and really doing a whole lot. Obviously, there is still a role to play, but as much as possible, getting the individual really involved in looking for that job, in being out there to promote themselves, the more that is happening, then the agency doesn''t really even have to worry, are we kind of-crossing a line in terms of obligations with the ADA. But I think that-understand that the goal here on all sides is about getting Employment, and we do not have lots of charges coming in from People with Disabilities saying, this Voc Rehab Agency or this supported Employment Agency was unlawfully disclosing information about Disability, you know, as long as the Agency discloses only what needs to be disclosed and really is focusing on the job qualifications, I think that most agencies are going to do just fine.
Thank you for the question. And our "Ask the Department of Justice (DOJ)" session is coming up February 15th. Look out for that one. Can we have our next question?
Tom Glenn again from the Richmond Center, given our materials seem to be out of date. The rule indicates that blanket exclusions such as saying a person must be able to tend to be not allowed if that is the case.
Blanket exclusions are dangerous, and yes, that has not been overruled so yes, they are still dangerous, I think it is important to remember that ADA is very much in the courts now, and obviously the most significant court decisions are those issued by the Supreme Court when the Supreme Court rules, that is it. And everybody including EEOC must follow what the Supreme Court lays down, so to the extent that you ever hear about Supreme Court decisions, impacting Title one of the ADA, always advise check back with EEOC, check back with our website. Obviously, if we need to make changes we are going to post differences, if you don''t see anything else in there that has changed, it is because that is still the-the good law to the EEOC. But as I said, be aware that there could be more changes, depending on what the Supreme Court does in future years.
My question is regarding information I''m working with Consumer and her medical records were accidentally faxed to her place of Employment, and several medical and psychological issues were documented on these medical records. It sat in the fax tray to see for a day and a half to two days before someone told her medical records were in the fax tray. That was four months ago, since then she has been harassed, demoted and work responsibilities have been taken away. And she has been added additional duties, which has exacerbated her medical condition. The hospital called to apologize obviously because of the Health Insurance Portability and Accountability Act (HIPA) Act but how do you think it will be handled? I referred her to file a Complaint with the EEOC or at least to investigate. Do you that they will be able to prove somehow or related to the fact that the medical charts were left in the fax tray that she is having all these employment concerns today?
If it is a pending charge and is going to be investigated. And in terms of obviously it would appear we could get confirmation from the hospital that they sent these documents, we may be able to get them from the Employer, obviously we''ll interview a lot of-you are implying a lot of people saw them. They were there for a day and a half. We would obviously be looking at how she was treated before those recording were faxed versus what happened after; there was a noticeable change in behavior after those records were accidentally faxed. So, you know, all of that would be part of the investigation. How that all comes out I don''t want to venture a guess over the phone. By the way, despite the apology from the hospital, there may also be-I am not an expert on HIPAA, the medical privacy act but that may be another avenue that this woman wishes to follow. That clearly, something went very wrong and that these materials were sent.
All right. Excellent. Thank you for the question. As usual, with the interesting and relevant topics, we can''t always get to all of the questions, for those of you that did not get your questions asked or answered, I would encourage you to contact your Regional ADA Center, and also contact your Regional ADA Center regarding upcoming sessions, including the December 14th session, Emergency Preparedness for Persons with Disabilities, where Elizabeth Davis from the National Organization on Disability will be with us. Also, one other note, runs March, April and May, please contact your Regional ADA Center to get information about that at 1-800-949-4232. Additionally, in about 7 to 10 days, the audio archive of this session as well as the text transcript will be available on the Great Lakes website at www.adagreatlakes.org. I want to thank Sharon Rennert for giving us her time in the Audio Conference and for providing the ADA Centers with her excellent assistance. Thank you very much, Sharon.
You are very welcome.
And thank you to all of you for participating, we look forward to seeing you in December, have a good afternoon.