We would like to welcome everyone to the ADA Distance Learning program today. We have more than 95 sites throughout the United States participating in today''s session which is hosted by your regional Disability and Business Technical Assistance Center. This program is currently being real-time captioned through the Great Lake web site at www.adagreatlakes.org. We are thrilled to have with us during this annual call, John Wodatch from the U.S. Department of Justice and Chris Kuczynski from the Equal Employment Opportunity Commission. Hi John and Chris. John Wodatch and Chris Kuczynski: Hello.
This has become an annual session for us and we are excited to have both of you with us today especially as next week we celebrate the 10th anniversary of the Americans With Disabilities Act. Part of the goal today was to ask you both to come on board and give us a little bit of what your agency''s perspective is when we look back at the last 10 years of ADA enforcement, some of the ground breaking strides that we have made, some of the barriers that we have still encountered and some of the priorities in our outlook for hopefully the next 10 years under the ADA. So with that I would like to introduce our first speaker today is Christopher Kuczynski. He is the Assistant Legal Counsel and Director of the ADA Policy Division of the Equal Employment Opportunity Commission. Before joining EEOC, Christopher was with the Disability Rights Section of the Civil Rights Division of the Department of Justice, where he was one of the lead attorneys representing the government in the first employment discrimination case brought by the United States under Title II of the ADA, U.S. v City and County of Denver, which you might have actually read recently about in the news. We are thrilled to have you with us today Christopher. I''ll go ahead and turn it over to you.
Thank you very much, Jennifer and good afternoon, everyone. I want to start by giving some general information that I think tells us something about the successes that we''ve had at EEOC in enforcing and implementing the Americans With Disabilities Act in a broad way, and particularly by citing a few statistics. I normally don''t cite a lot of statistics on ADA and these are very general ones and are not necessarily up to the very minute, but this will give you some perspective on our enforcement efforts, which I think by in large have been very successful over the past eight years since we have been enforcing the law in July of 1992. Now, as you know, we get charges of discrimination filed by individuals and we investigate those charges and at some point sometimes settle charges of discrimination without the need ever to go to litigation or even to find cause to believe that someone has discriminated. Often a respondent will settle a charge of discrimination before we go through the formal process of finding that there was a violation. And in other instances we will find that discrimination has occurred and try to conciliate or try to reach some sort of settlement agreement with the respondent, again, prior to initiating any litigation. There are some cases in which we actually do have to file claims in the federal courts. The numbers that I''m going to mention to you give some perspective on the number of charges we''ve received, the number of resolutions that we''ve had at the administrative level prior to ever having to go to court and the resolutions and successes that we''ve had when we''ve had to litigate. We''ve gotten in the eight years that the ADA Title I provisions have been effective about 130,000 charges of discrimination. Now that obviously doesn''t represent numbers of lawsuits that we''ve filed. The number of lawsuits is a far smaller number, but we''ve had about 130,000 charges where individuals have claimed that they have been discriminated against in violation of Title I. Now, of those we have, in resolving those charges we have obtained, through the administrative process alone, approximately $300 million in monetary relief on behalf of individuals with disabilities, without ever having to go to court. Again, to give you some perspective of the 130,000 charges the number of times in which we''ve had to go to court in ADA cases has been about 300 or 350 cases. I don''t have the exact figure, it is probably around 350 cases in which we''ve actually had to litigate. What is interesting about our track record in litigation, I think, is that it is the opposite in a sense of what the track record has been for private plaintiffs bringing claims of employment discrimination under the ADA. That is, we have recent ABA, American Bar Association studies, that indicate that individuals or employees or individuals alleging discrimination, they may also be applicants, under the employment provisions of the ADA, lose in 95 percent of cases, about 95 percent of cases employers prevail. But in our litigation we have successfully resolved or gotten favorable decisions in 95 percent of cases. That is, in 95 percent of cases that we have litigated the charging parties on whose behalf we''ve brought suits have been awarded some relief, have actually prevailed either through a settlement of the case or through a decision in the case. A recent example, really excellent example of a case of which we took a matter to try trial and to a jury verdict and got an outstanding verdict was a case that involved pure disparate treatment in the case of disability. We think of accommodation cases under the ADA and certainly we have over 40 percent of our cases that involve issues of reasonable accommodation. But this was certainly a run of the mill disparate treatment case, an individual who was performing his job, who had mental retardation and whom the employer, a district manager at a Chuck E. Cheese establishment in Wisconsin, had ordered that the individual be terminated because in the district manager''s view the company doesn''t want "people like that working in its facilities." I think that is an indication that there is still a lot of work to do, that there is still outright discrimination against individuals with disabilities. And the other lesson to be learned, where such outright discrimination occurs, we will take enforcement action and were, in that case, successful to the tune of a $13 million jury award including compensatory and punitive damages. Now, ultimately that award was reduced to fit into caps that limit the compensatory and punitive damages that can be obtained in Title I cases. But I think that the decision sent a very clear message about a group of individuals who quite frankly are often under represented, persons with mental retardation and cognitive disabilities in the types of charges that we receive. So that is a recent success story about just one case that we brought to court and obtained a substantial verdict in. There are a lot of successes from the enforcement standpoint. We''ve had successes in a number of areas of the law. We''ve brought successfully cases or have resolved cases involving unlawful pre-employment disability related inquiries. These are cases that are important because they keep employers from getting information, medical information, about individuals that could be used to discriminate without ever considering the individual''s qualification for a job. Congress was very clear that it wanted employers to consider actual qualifications for jobs and not medical conditions that don''t bear on the ability of an individual to work. So those have been very important cases. Early on in our enforcement efforts we were very successful at eliminating many caps that were imposed on health insurance benefits for individuals with HIV and AIDS, that were the product simply of discrimination on the basis of myths, fears and stereotypes associated with that condition. We''ve done a number of cases involving reasonable accommodation issues, often very simple accommodation issues where an accommodation could be provided easily and without very much expense, but where employers for one reason or another have been reluctant and recalcitrant in providing things that would obviously work and enable individuals to have a job or to continue working if they are already employed. So there have been a number of successes in terms of our enforcement efforts. There are a number of challenges that we have encountered for the last eight years and that we are going to continue to encounter in the next ten years, I would daresay, of the ADA''s existence. And those challenges frequently are in the area of defining who is a member of the protected class, who is an individual with a disability? What does it mean to have a disability? And as you probably know, last summer the Supreme Court issued three very important decisions on this issue, Sutton v United Airlines, Murphy v United Parcel Services and Albertson''s v Kirkingburg in which the court basically rejected a position that the EEOC had put forward at that time for seven years that the determination of whether someone has a disability should be made without regard to mitigating measures. The EEOC had said that in determining whether somebody has a disability, if that person uses medication or other assistive devices you look at that individual without the benefit of those devices, without the benefit of the medication. And if the person would be disabled without the mitigating measures then the person would meet the definition of disability. The Supreme Court said precisely the opposite, that you have to look at any affects that a medication or mitigating measure would have in eliminating or reducing the effects of an impairment. So these are important cases because they raise serious questions about the coverage of certain groups of individuals whom Congress had clearly intended to cover under the law. For example, people with epilepsy that may be controlled, where the number of seizures is eliminated or certainly reduced in frequency and severity, Congress was pretty clear that people with epilepsy should be covered by the ADA, whether or not they are using medication to control the seizures. Likewise, individuals with insulin dependent diabetes, Congress was pretty clear that they were to be covered as well. These are groups that individuals with psychiatric disabilities, major depression, bipolar disorder who may be able to limit or quote/unquote control their conditions with medication are groups that are now at risk after these decisions, in terms of their protections under the ADA. What the EEOC did in response to these cases was to issue a set of instructions to its field offices to tell the field how to analyze charges of discrimination after Sutton, Murphy and Albertson''s where someone is using medication. These instructions have been a way of not analyzing future charges that we receive, but we have used the instructions as a model in reviewing, looking back at our pending charges and pending litigation to determine whether there are individuals that we can still argue are covered even after the Sutton, Murphy and Albertson''s decisions. What we are finding in many instances, is that we can argue that individuals with epilepsy, insulin dependent diabetes, psychiatric disabilities that are controlled with medication are still individuals with disabilities protected by the law. And one of the ways that we do that is we look to the very language of the Supreme Court''s decision. In the Sutton case in particular the court said that you need to look at whether someone has a disability on a case by case basis. And so the fact that someone uses a mitigating measure does not automatically exclude that person for coverage, any more than it would automatically include them. And so you need to look at each person''s limitations individually. The Court also said that someone who uses medication may still be substantially limited if the medication either doesn''t completely control the condition and there are still side effects or there are still limitations that remain, or if the medication itself imposes limitations in the form of side effects. And in fact, we''ve been able to very successfully argue or at least make the case that individuals who are using medication do not have conditions that are absolutely completely controlled or may have side effects that are themselves substantially limiting. We''ve seen some promising case law in the circuit courts in which courts have been willing to, for example, an individual with bipolar disorder whose condition was controlled to some extent with medication, but who had a chronic episodic condition, one that became sometimes more severe in certain instances, and at other times was actually under control. The court had concluded that a chronic episodic condition, one that sort of ebbs and flows, is one that can be a substantially limiting impairment, that is a position that EEOC has taken in its guidance in the ADA and psychiatric disabilities in 1997 and one appeals court has endorsed it, along with endorsing many other statements that the EEOC made in that guidance. We''ve also seen courts that have been willing to take an expansive view of what are major life activities. We have always said that our list of major life activities are only examples and they don''t represent an exclusive list, and we have seen the Supreme Court recognize that reproduction is a major life activity in the case of Bragdon v Abbot and therefore recognize that someone who is HIV positive, but whose ability to have children is limited by the risk of passing on the HIV infection to a child can be an individual with a disability because she is substantially limited in reproduction. We''ve had other courts that have recognized extending the language of Bragdon that in engaging in sexual relations, apart of whether it involves reproduction is also a major life activity. We''ve seen courts recognize major life activities, such as thinking or interacting with others, and sleeping, more nontraditional types of major life activities that are particularly important for individuals with psychiatric disabilities, whose limitations are not so much necessarily physical limitations but may involve cognitive processes. So these types of major life activities, thinking, interacting with others, and sleeping, are ones that are particularly important the courts have recognized. So we have seen even in the wake of the Sutton, Murphy, and Albertson''s decisions and the potential negative ramifications of those decisions that there have been some positive results in the case law, particularly in interpreting major life activities and in recognizing that substantial limitations may still persist, even if someone is using medication or assistive devices. We''ve had a lot of success I think in the area of reasonable accommodation where we''ve seen in recent years some very positive case law discussing the interactive process, and the obligations that both the individual with the disability and the employer have in having a conversation about appropriate accommodations. We issued guidance in 1999 on reasonable accommodation and undue hardship under the ADA, which was cited in one decision concerning the reasonable accommodation of reassignment no fewer than nine times with approval in a 10th Circuit decision called Smith v Midland Brake and in that case the court recognized that the recognition to make a reassignment exists where someone can no longer perform his or her current job because of a disability. The Smith case also recognized that the obligation is one that is broad in its scope, and that the employer has significant obligations in terms of assisting the individual in locating an appropriate vacancy. The court also recognized that reassignment means more than simply the opportunity to compete for a position. It means that if an individual is qualified for a new position the individual gets the job as a reassignment. So that was a very positive decision and a very, I think, positive use of our enforcement guidance, to reach a decision on a novel ADA issue. We''ve issued approximately 12 major pieces of enforcement guidance in the ten years since the passage of the ADA. Our technical assistance manual when it was issued was widely hailed for its common sense discussion of the law, but since then we''ve done a number of pieces of enforcement guidance that not only educate our investigators and attorneys in the field and are used by employers and individuals with disabilities to understand their rights and responsibilities, but that are also looked to, as I''ve illustrated, by courts in deciding novel ADA issues. One such very successful guidance has been the guidance that the Commission did on the effects of representations in applications for disability benefits on whether someone is a qualified individual with a disability under the ADA. Many of you may know that there was a trend in the case law where courts were claiming that if somebody made a representation in the benefits application that they were unable to work, that that would automatically bar them from bringing an ADA suit, claiming that they were qualified to perform a particular job, pointing out that the ADA rules and the rules for obtaining Social Security disability benefits are different and have different definitions of who is eligible and who is disabled. We pointed out that a representation in the benefits application would not in and of itself prevent somebody from bringing an ADA claim, a point which was very important for individuals with disabilities, who as the result of discrimination often find themselves out of work and in need of benefits to which they''re entitled. And our point was that individuals should not have to choose between obtaining benefits to which they are entitled and their rights under the ADA. Our enforcement guidance in the area of psychiatric disabilities, I think even though it generated a number of articles and a lot of negative press in which statements that were made in the guidance were mischaracterized or taken out of context, I think what the guidance did do was to spark national debate and discussion about psychiatric disabilities in the workplace and point out the fact that individuals with psychiatric disabilities are capable of working productively in all sorts of jobs, often with little or no accommodation or accommodations that have little or no cost associated with them. The guidance has been again approvingly cited by a number of courts, including the Third Circuit court of appeals in the case I talked about earlier, which is called Taylor v Phoenix School District and that was a post Sutton case that involved a question of whether somebody with bipolar disorder can demonstrate that she had a disability within the meaning of the ADA. What are the challenges ahead? And where are some areas where perhaps we''ve had fewer successes? Well, again, I think the mitigating measures issue is one where the courts, the Supreme Court ultimately, rejected our view and I think it does continue to pose challenges for us under the ADA, and arguing that people are protected not only under the first prong of the definition of the disability but I think we are also going to see a development of the case law under the record of prong of disability, where individuals are no longer experiencing substantial limitations because they are using mitigating measures successfully but where they will be able to argue that at one time in their medical history they had conditions that were, in fact, substantially limiting. So the record of a prong, which up until a year or two ago had gone largely unnoticed, may become a very powerful tool for both the agency to use and for plaintiffs to use in bringing ADA cases. We have a lot of challenges under the regarded as definition of disability, largely because the Supreme Court, I think, restricted how that definition can be used in the Sutton and Murphy cases in particular, but the court did leave room to argue that individuals are regarded as disabled where, for example, myths, fears and stereotypes are at the heart of what the employer is doing or in cases where an employer has made overgeneralizations about someone''s medical condition, based on information or misinformation they may have about the condition. These are cases where we may still successfully be able to assert regarded as coverage, but we have a significant challenge. One of the things the Supreme Court said in its discussion of regarded as in the Sutton decision was that employers can, in some instances, prefer individuals without certain impairments over people with those impairments, as long as the impairments don''t institute disabilities. I think one of the challenges for us is that we are going to need to find ways to identify and to challenge broad based or broad impairment based standards. We are going to need to find individuals who are actually affected or screened out by those standards or find some other ways to get at those standards before they result in the screening out of individuals with disabilities. We are beginning to see case law developments in the area of disability-related inquiries, in medical examinations of applicants to a greater extent but also to some extent of employees. This is a critical area of the law. I think after the Sutton, Murphy, and Albertson''s decisions as well. If employers are free to exclude or take adverse action against individuals based on impairments, as long as those impairments don''t institute disabilities, then I think it becomes more important than ever to ensure that employers are not getting information about individuals that they don''t need in order to assess someone''s performance. So I think that you can expect very soon to see the EEOC to issue more guidance interpreting the extent of an employer''s ability or inability to make disability related inquiries and require medical examinations of employees. We have already discussed this with respect to applicants and the next component of this is to talk about how these rules concerning disability related inquiries and medical examinations apply where somebody is already working. Again, this is an important issue because of the relationship of all of these issues under disability to developments in the field of genetics. It is clear that genetic information about individuals is going to become more widely available at a lesser cost than ever and it is going to be important to make sure that this type of information is within the confines of the ADA, that employers don''t have too much access to this kind of information. And indeed it is the kind of information, genetic information that is merely predictive in nature, it is not the kind of information that employers really do need in order to be assessing someone''s ability to perform a job, to currently perform a job. We can expect, I think, to see further developments in the area of reasonable accommodation. We''ve only just begun to see the development of the law on the issue of reassignment, on the issue of the interactive process, what the employer and the individual with the disability need to be doing as part of that process. And I think that we can also expect to see more development of the law on direct threat. Without going into the details of the case, we several years ago now brought a case against Exxon Corporation challenging its blanket policy of including people who have ever had a history or drug or alcohol abuse from certain designated safety sensitive positions. And that case required the Fifth circuit to interpret the meaning of the direct threat standard and the meaning of the job related and consistent with business necessity standard that are defenses where employers screen out individuals on the basis of disability. The court, in a word, interpreted standards in a way that was not in keeping with the way that the commission would have done, but only a couple of months later the very same Fifth Circuit issued a very favorable decision on the direct threat issue in a case called Rizzo v Children''s World Learning Center. In yet a third case the Fifth Circuit known for its conservatism on ADA and other issues has said that it needs to reconsider some conservative positions that it has taken on direct threat as it applies to individuals with insulin dependent diabetes. So I think it is significant to see coming out of the Fifth Circuit although the case law is not uniformly positive, to see at least a couple of decisions where the court is really emphasizing the importance of individualized assessment in direct threat cases. I think that we can continue to see development of the law on direct threat, specifically who has the burden of demonstrating direct threat and what type of evidence would be needed in order to establish it. At that, I think I''ve probably touched on the past, present, and tried to hint at what the future issues would be and I''ll turn it back to Jennifer for John''s discussion.
Great. Thanks, Chris. Real quick before we turn over to John. You definitely mentioned a buzz word that is getting a lot of media coverage, genetics.
Yes.
And do you see any cases, any region or geographical locations that this particular issue of employers having genetic information, because whether or not the person would have a disability could definitely affect a person''s benefit to receive health insurance through their employer, but do you see, ADA related or not, any areas or cases or complaints that people might want to keep an eye out on.
We haven''t seen much case law development in this area yet at all. I''m aware of one case out of the Ninth Circuit that involved an employer doing testing for certain type of genetic conditions at the post offer stage of employment. In that case the court said that what the employer was doing by seeking that genetic information at the post offer stage, although it did find a violation of the Fourth Amendment of the institution, the employer was a federal employer in that case, the court said that there was no violation of the ADA because the ADA, in fact, permits post offer inquiries into people''s medical conditions, as long as they are being done across the board to all entering employees in the same job category. That is the only case where I''m aware that the issue of seeking genetic information has specifically come to the court''s attention, but that certainly doesn''t mean that we shouldn''t be thinking about these issues and trying to identify the possible issues before they come up. In fact, as early as 1995 we said in our compliance manual section on the section on disability, long before, you know, this one case had gotten to the Ninth Circuit that an employer who discriminates against someone on the basis of genetic information that is merely predictive is regarding that individual as disabled. So what we are trying to do is stay ahead of the suffer on this and in that compliance manual section establishing out a position that if these types of cases get to court that someone would be able to argue.
Great. Thanks, Chris. Very interesting, definitely something for people to keep an eye out on. Shifting gears a little bit to Title II and Title III of the ADA, we''ll switch over to John Wodatch who is a civil rights attorney who spent more than 25 years in the Federal Government, specializing in the rights of people with disabilities. John is the Chief of the Disability Rights Section of the Civil Rights Division of the U.S. Department of Justice and was also one of the chief authors to DOJ''s ADA regulation and Section 504 regulation under the Rehabilitation Act. And John, we know that you have been very busy, especially with some recent cases coming to light in that, especially with discussion before the Supreme Court as well about the constitutionality of Title II. So if you could bring us up to speed where have we been and where are we going.
Thank you very much, Jennifer and good afternoon, everyone. I''m delighted to be with you all again. I would like to sort of talk about the last ten years and a little bit about the future. Let me begin with a little advertisement for our web site because of the tenth anniversary it is been redesigned and I''d like to draw your attention to it. There is a special tenth anniversary report called "Looking back on a decade of progress" that sort of summarizes some of the major achievements and if you''re at all interested in that I urge you to check it out. Also we began last Friday a series we''re calling "Faces of the ADA" and every day we''re going to profile a person with a disability with whom we''ve been involved over the past ten years and just discuss how the ADA made a difference in their lives. Last Friday was the story of Jenine Stanley and her ability to go to Hawaii with her guide dog. Yesterday we had the story of Casey Martin and his ability to play golf on the PGA tour with a golf cart. Today we''re going to have the story of Jeremy Ore, a child with severe disabilities who because of ADA disabilities was able to attend an after school child care provider because of the ADA. I would urge you to take a look at these stories. We''re doing that partly to counteract sort of the view in the press about some of the negative press that the ADA gets to show that it does make an important difference in the lives of every day Americans. In the past ten years that the ADA has been on the books I believe that the opportunities for equality, independence and inclusion have opened up in work places, businesses and governments across the country. Our focus at justice has been on fundamentals and one of the most fundamental issues for any citizen of this country is gaining access to basic institutions of government. We''ve worked with the local governments, big and small, nationwide to eliminate physical communication and policy barriers in law enforcement, town halls, jails, courtrooms and legislative chambers. For example, cities like Toledo, Ohio and Oakland, California, have signed far reaching agreements with us to open up their activities to people with disabilities. Toledo has a very comprehensive plan to remove barriers throughout city government, including the courthouse, police stations, fire station, parking garages, museums community and social service centers, cities parks, the Health Department and all the city''s administrative buildings. Those are you in Oakland are probably familiar with the police department''s agreement to take the necessary steps to ensure that members of the public who are deaf or hard of hearing can communicate effectively with police officers during law enforcement activities ranging from traffic stops to arrests to criminal interrogation. Similar agreement in Houston Texas. The city agreed to provide deaf and hard of hearing citizens with auxiliary aids they need to interact effectively with the police, the courts and the jail system. An example of that is a qualified interpreter will be called in any time a person who is deaf and needs an interpreter is involved in a major accident, is suspected of a felony, is under arrest, is being given a test measuring alcohol consumption or is giving a statement in that case. Hundreds of local governments and police departments across the country have ensured similar agreements to a wide range of local and government activities. Our nationwide initiative to ensure that 911 emergency services provide direct and equally effective services to TTY users, including people who are deaf hard of hearing and have speech impairments was a significant success. Compliance reviews resulted in the installation of a text telephone in every single call takers position in all 50 states. Access to civic life continues to be a primary focus of the department and I urge all of you to check out our ADA web site tomorrow for an announcement about the activities concerning municipal governments. Attorney general Janet Reno is going to be in Warm Springs, Georgia tomorrow participating in the Spirit of the ADA torch relay. I assume a number of you are in cities where the torch has been or is going to be and she is going to be there tomorrow and is going to be making an announcement about access to towns and cities. I can''t steal her thunder by talking about it today but stay tuned for that tomorrow. Another one of our primary goals has been to bring people with disabilities into the mainstream of the American economy. We''ve achieved greater accessibility in a wide variety of private sector settings, including, shopping, dining, recreation and leisure travel. From our early agreement with the Empire State Building to make the observatory accessible to a more recent one guaranteeing interpreters and assistive listening devices at Disney World we have sought to open the very heart of American society to people with disabilities. We''ve reached major access at major hotel chains such as Days Inn and Holiday Inn and restaurant chains such as Friendly''s and Wendy''s. Our agreement with MGM hotel theme park in Las Vegas Nevada is a good example of the comprehensiveness of our efforts. The MGM Grand will increase the number of guest rooms for individuals with disabilities as well as the number of guest rooms for individuals who are deaf or hard of hearing. They''re going to install visual fire alarms, make all the rest rooms accessible, lowering gaming tables and service counters, make the theaters fully accessible, make the swimming pools and spas fully accessible. I think the comprehensiveness of this and other agreements are essential if people with disabilities are really going to be able to have equal opportunity to enjoy the fruits of public accommodations. Back on the east coast. We reached an agreement with the City of New York and with the Yankees to increase the number of accessible seats at Yankee stadium and to adopt a ticket pricing and sales policy that gives a fair shot for persons with disabilities to attend a ball game. Also in New York City Radio City Music Hall has agreed to add wheelchair and companion seating, to reserve wheelchair seats until all other seats are sold and to discount a portion of the orchestra seating so that persons with disabilities will be able to purchase tickets at a range of prices comparable to those available to the general public. Accessible new construction is critical to ensuring that the future environment is an accessible one and we have been very aggressive in dealing with that. We''ve had litigation against architects and franchisers to ensure that everyone with a significant role in the design and construction process meets their ADA obligations. We have worked closely with persons with disabilities who are sports fans and through our agreements with the organizers of the 1996 Olympics in Atlanta have redesigned new sports stadiums and arenas. Literally the ADA has changed how sports arenas are built in this country. Now persons in wheelchair seating locations will have a comparable line of sight so that wheelchair users will be able to see the field even when spectators stand up during an event. Of course nothing is more fundamental than access to health care. The ADA provides that equal access to both government agencies and the private sector and that the care be provided in the most integrated setting appropriate. We''ve won large damage awards against dentists and hospitals that refuse to provide care to individuals who are HIV positive and have made major efforts to ensure effective communication in doctors offices and offices. Our agreement with 32 Connecticut hospitals is a model one. It establishes a statewide interpreter system to provide interpreters, and now the interpreters are provided seven days a week, 24 hours a day on one-hour notice. We are working with scores of hospitals across the country to solve similar problems and have access to health care for people who are deaf or hard of hearing be a priority. Now let us turn to child care, which is absolutely essential, not only for the proper growth and the development of children with disabilities, but also for working parents who need to support their families. The ADA protects children with disabilities from discrimination and admission to child care and guarantees reasonable modifications in policies, practices and procedures to allow full participation in child care programs. The Department has successfully pressed for reasonable efforts by child care providers to accommodate children with diabetes, asthma, food allergies and other disabilities requiring monitoring, medication or other assistance. In addition we have worked to establish important legal principles in the courts. Most significantly, the Supreme Court held in Olmstead v LC, that the ADA requires states to avoid undue institutionalization of persons with disabilities. The court found that unjustified isolation of persons with disabilities is by itself a violation of the ADA. Recognizing that unnecessary institutionalization brings with it a stigma of unworthiness and equal access to family and social interaction. There have been other precedent court rulings. Those prohibiting unnecessary inquiries into mental health histories by professional licensing entities, those that have said that architects are liable for their actions are those that I think are most noteworthy, along with the Supreme Court''s decision that all the activities at the state and local governments, including prisons and jails are covered by the ADA. But I think it is at the human level that the success of the ADA can truly and accurately be measured. After all, the goal of the ADA is to open up every day American life for individuals with disabilities. Let me read to you the words of Sherry Johnstone. We were able to get her son Jeremy a child with developmental disabilities, low vision and seizure disorders back into his after school program. He needed assistance in eating, walking, diapering and interacting with other persons. These are Sherry''s own words: The benefits that Jeremy received at Kinder Care were that he was treated like a normal child. Jeremy received the benefits of being included in the holiday parties and field trips. Jeremy attended the field trips and participated in other children''s parties at the center, even got invited to a few parties outside of the center. But I think as a parent the biggest benefit I received was in the day-to-day observation of his inclusion and acceptance by the other children during the time he attended the center. Whether it was the day he came to the table to join some younger children in a coloring project and one young girl remarked where is his walking chair, or whether it was when he was sitting behind the boys playing computer games and their suggestion that it was his turn to play. Jeremy was their friend and part of their day-to-day activities. I know Jeremy has made an impact on the children in his community because when we got to the store or public events or when he is attending public school some child will yell out "hey Jeremy how are you." I usually don''t even know or recognize the child but it is enough for me to know that they know Jeremy. Victories like these are very gratifying and yes, we have much to be proud of, but not all of the ADA picture for the past ten years has been so rosy, there have been setbacks. I particularly understand the frustration of those who on the ADA''s tenth anniversary still experience barriers to access as part of their daily life. Chris talked about the trio of Supreme Court decisions limiting the definition of disability. I have to admit I find the decisions immensely disappointing and we are still as Chris talked about, measuring the impact of these decisions and working to clarify and limit them as much as possible. But I still have the fear that a large number of those people who in 1990 we thought were subject to the ADA''s protections are now left uncovered. Similarly, the nations appellant courts have limited the scope of the ADA application to insurance policies. Some have held that the terms and conditions of the insurance policy are outside the scope of the ADA, others have broadly interpreted the ADA''s insurance exemptions and others have found that lifetime caps for AIDS discrimination do not institute discrimination. I have other ADA frustrations and I think I share these with people because I hear about these frustrations from them. Public accommodations in municipal governments that take steps to make their facilities successful, extend money, don''t follow the accessibility standards and do it wrong, businesses that know about the ADA but take a wait and see attitude, that is they wait until they are sued or approached before starting to do any barrier removal. The inexplicable, inability of designers to make even the most basic architectural changes correctly. We still see, ten years after the ADA was enacted too many bathrooms designed and built with narrow doors or unusable toilet stalls. And ten years after the ADA was enacted far too many cities have large areas with no curb ramps on the city streets and sidewalks. These barriers did take generations to create and it will take the continued dedication of all of us to remove them. Where do we go from here, what is going to happen in the next ten years? The major call on the ADA''s horizon the Supreme Court''s consideration of Garrett v the University of Alabama at Birmingham. The court will decide if Titles I and II are constitutional under the Fourteenth Amendment. So far most appellant courts have agreed with us and have upheld the ADA. Garrett is really a consolidation of two employment suits against Alabama state agencies, one involves the alleged discriminatory demotion of a registered nurse with breast cancer who took time off for radiation and chemotherapy treatment and the other involves a claim that the Department of Youth Services failed to make a claim to an individual with chronic asthma. Alabama has argued that because the ADA''s protections go beyond the equal protection rights guaranteed by the fourteenth amendment that Congress lacks the authority to subject Alabama to lawsuits under the ADA. Now because Alabama has no state laws with people protecting the people with rights of disabilities, people in Alabama will have no recourse for allegations discrimination if the state succeeds in the case. We at Justice believe that the ADA is constitutionally appropriate litigation to remedy the history of discrimination against people with disabilities. We will make a strong case in the Supreme Court, but the Supreme Court has recently held that the Age Discrimination in Employment Act is unconstitutional and make no mistake about the Garrett case, it is important. While these cases technically only address private suits for damages, the principle principles established in those cases may well decide the ADA as applicability to state and local governments. A cause for optimism though for the future comes from Americans continuing technology and information revolution. Advances in technology have removed barriers to people with disabilities and will continue to do so and then there is the Internet. The Internet plays an increasingly important role in American life. Municipalities and businesses are turning to it as an enormously efficient and effective tool with which to conduct their programs, services and commerce. In the decade since the passage of the ADA, the Internet has grown from a little known tool of researchers to a commonplace system used by many citizens for tasks ranging from the mundane to the complex in a nearly unlimited range of activities, including business, employment, education, shopping, leisure and recreation. Yet we must be vigilant as Internet applications grow more sophisticated many people with disabilities may be left behind due to inaccessible elements of sites even when they have the technological skills and equipment to use the equipment. Unless these technological barriers are removed or avoided many Americans will again face the barriers that led to the ADA passage. You should know that I remain optimistic about the ADA and the role that persons with disabilities with play in our society in the future. In the past ten years persons with disabilities have made tremendous gains. Just look around you. It is no longer unusual to see peoples with disabilities in the workplace, participating in town meetings, shopping at the mall, dining in restaurants, attending cultural and supporting events, but much remains to be done. When we passed the ADA, we as a society took upon ourselves a new task, the task was to eliminate barriers to opportunity for people with disabilities and to open up all aspects of American life to people with disabilities. That task remains undone, it is time now for all of us together to finish the job. Thanks very much and now I''ll turn this back to you Jennifer.
Thanks, John. I''m going to bring both Chris and John back in and we will take question and answers. Let us talk about Garrett and the University of Alabama a little bit to start with, John and Chris. I think it is kind of ironic when you mention that this is coming in a state that doesn''t have any state laws similar to the ADA that applies to the state, so the person wouldn''t necessarily have recourse in state court. And there is a lot of mixed feelings about, you know, which way the court might go with the new term in this case. So I''m going to kind of point the question back to you in terms of Title II enforcement. If the court rules that suits cannot be brought against states in federal courts will this lessen DOJ''s enforcement authority.
That is a good question. This case is about the Fourteenth amendment even though it is about whether private parties can bring lawsuits. If the court decides that the Fourteenth amendment does not provide a constitutional basis for the ADA, which they would need to do in order to rule against the ADA, that ruling would apply to us as well and would say that we couldn''t proceed using the ADA under the Fourteenth amendment. In wouldn''t be the end of our inquiry because when the ADA was enacted Congress said that it was supported by the commerce clause as well as by the Fourteenth amendment, and so we would then argue that the commerce clause, which regulates enter interstate commerce would provide the constitutional support for us. The recent Supreme Court decision on the Violence Against Women Act throws some doubt about whether we''ll succeed with that notion, but we''ll have to do that. There is a recent Seventh Circuit case that held the ADA unconstitutional under the Fourteenth amendment but said it didn''t matter because the ADA would be constitutionally supported by the commerce clause. If that is true we would be able to continue enforcement with state and local governments. We would certainly argue that whether we would be successful or not is unknown. So I think the short answer is even though the Supreme Court is going to hear arguments in the Garrett case on October 11th, we expect a decision by January, but it by no means will be the end about of the debate about the constitutionality of the ADA.
Thanks John, Chris, did you have anything that you wanted to add to that.
No, I don''t think I do. I think John explained it well.
Great thanks.
This is Tony Goldsmith the national access consultant. Unfortunately I didn''t hear part of the answer to that question because our question was being screened, but the real basis is is the pending decision by the Supreme Court going to only effect, to use the term, states class states or would it by necessity from the fourteenth amendment invalidation if that occurs effect political subdivisions of states.
Although the litigation is only about states it would also effect political subdivisions of the states because if the Supreme Court said there is no basis in the Constitution to support the law it would apply to local governments as well as state governments.
And the only other follow on to that is what happens with Section 504 at that point?
There has been some litigation. Section 504 is fourteenth amendment litigation but is also covered by the spending clause in the constitution. There is a case in the Eighth Circuit which held the Section 504 unconstitutional and there has been some other litigation but in all the other litigation Section 504 has been upheld. And it has always hard to be a prognosticator but if I were a betting person I would bet that Section 504 would be upheld.
Thank you very much.
Let us talk about Clint Eastwood goes to Washington. Mr. Smith goes to Washington, so did Clint Eastwood, and a lot of media coverage this spring. Clint Eastwood, famous actor and also a hotel/restaurant owner testified before congressional hearings in support of a 90-day notice requirement under the Americans With Disabilities Act. Of course there are certain opponents to that that argue that the law has already given Title III business owners ten years of notice to comply with the law. And recent media reports within the last week look to the fact that an ADA notification act, HR 3590, which would create a 90-day notice to a defendant before an advocate or attorney could initiate new litigation could be introduced before the end of the summer session of Congress. 90 days? Is this a good thing or a bad thing?
The administration opposes the ADA Notification Act because we don''t believe that this is an appropriate amendment. 90 days or even 30 days even though most attorneys would provide notice, there are in our view certain emergency situations, someone who might need an interpreter in a hospital situation, a testing accommodation situation or other emergency kinds of situations that this amendment would severely harm. Also, in my view the real problem that exists for people with disabilities is not the rush to the court but their inability to get attorneys who will take their cases and so I think it is probably this line of approach is the wrong one. On the other hand, I have read that it is being reconsidered. I think members of Congress who are pushing it, the hearing that was held there were some very good testimony by people with disabilities about the impact this amendment might have. I would expect if something does pass it won''t be 90 days, it would be 30 days and there would be some other amendments, but I think the organizations representing the disabilities rights community are actively opposing this bill and it is unclear what will happen in the short term. But even if nothing happens in this session of Congress, I would expect that we would see this issue come up again next year.
Thanks John. Chris, feel free to pipe in.
Well, you know, I think on a philosophical level I don''t think that this is an original point. It has been made before. I''ve read the point before in connection with Mr. Eastwood''s testimony and those who have opposed it. And the question that I tell people to think about with respect to this amendment is whether we would say that this is an appropriate thing to do in the area of race discrimination or gender discrimination or national origin discrimination or any other type of laws that we as the Commission enforcement it doesn''t directly direct our enforcement as Title I of the ADA, but I think it is important to ask that question. That we somehow don''t want to treat the ADA as if it is some sort of second class civil rights statute by saying that although we would never tolerate the argument that accommodation should be put on notice for 90 days with respect to other types of discrimination, it is somehow okay to do it in the context of disability discrimination. So I always tell people to think about whether we would find this to be an acceptable solution if the protected class were different, and usually the answer that I get is "no, this would be totally unacceptable thing to do if we were talking about race, gender, national origin discrimination." Likewise, I think it is a totally unacceptable thing to do in the context of disability discrimination where you have businesses that have been aware of their obligations now for ten years and really should be in a position where they''re not taking a wait and see attitude. This does let the business that has taken that wait and see attitude in a sense off the hook, at least for a time, if they haven''t made modifications that should have been made.
Which is an excellent point of comparing it to other civil rights laws.
Would both of you talk about what was the first case that went to court under the ADA under your jurisdiction, and reflect a little bit on what might have been differences in attitude at that time as compared to now.
Great. That is a wonderful question. Chris do you want to begin since I''ve talked for most of the time.
It is interesting because the first case and one of the more recent ones which I mentioned in my presentation are similar in certain respects in that in each case you had an individual who was already working, in fact, their work record was the best evidence of their qualifications for the job, who were fired because of out right egregious discrimination. They weren''t reasonable accommodation cases, at least the early cases I have in mind I don''t believe was. That case is a case against a company called AIC Security, which I think was the first ADA case under Title I that the EEOC brought to trial and to a jury verdict and in both cases as well the AIC and the Chuck E. Cheese case the plaintiffs won. Again, an interesting parallel between the two in a climate in which we see a lot of plaintiffs losing ADA cases. But that was a case that involved, the AIC case involved someone with brain cancer who had been a valued employee of a company for many years and who was terminated as a result of his condition. The Chuck E. Cheese case was again an individual who was successfully working in his job, providing services to, maintenance service or janitorial services to his employer and was fired simply because of discriminatory attitudes. I don''t know what that tells us about how far we''ve come that we have a case almost, you know, eight years or seven or eight years later that involves a similar type of egregious discrimination, but I think what it does point to is the fact that we still have a lot to do that as much as sometimes we are told that disability discrimination is really just a product of people not knowing what their supposed to do as employers and if you only give them the right tools and technical assistance that everybody will do exactly what they are supposed to do under the law. There certainly is some truth to the fact that there are employers who are in need of technical assistance and want to know their rights and responsibilities and when they know them carry them out. And we''ve seen a lot of evidence of that in terms of people who attend our technical assistance program seminars every year that our field offices sponsor. And the number of employers who attend those on a yearly basis is astounding and I''m sure that they all want to comply and that is the reason that most of them are there is to learn what their responsibilities are, but I think we also have to recognize that there is, there was seven years ago when the AIC case went to trial, and now real out and out discriminatory attitudes, fears and stereotypes associated with disability that we need constantly to be vigilant about and to be working to eradicate.
The the first case that we at justice brought to the court involved the Becker CPA review course about a course as I recall something like ten thousand students take this course to become certified public accountants. They take this case course to take this exam. We had a person who was deaf. They were refusing to provide sign language interpreters and other support services and we filed suit and a year and a half later ended up coming to agreement with them and they adopted a nationwide policy of providing interpreters and training staff and provided compensatory damages. We''ve been in touch with the plaintiff over the years in fact one of our phases on the ADA story will be his. I think the fall out on that is interesting. He went back and took the review course with a sign language interpreter and he passed. He became a CPA and what he has noted over time is that there are now many more deaf CPAs than there ever were before. So there has been not only a shift in the notion that people who are deaf can enter into this professional field but people are actually doing it, but one of the interest things he said to us was that being involved in the litigation made him a more assertive person and made it, as he described it, a better person and allowed his talents and skills to come through. So the experience enriched him as a person and represented him in his life, so I think it probably is a success story on two levels, both on the personal story for him and what it meant to him and how it changed him, as well as the number of people who are now in that field who are deaf.
Great. Thanks, John and Chris.
Hello, this is Kent with the Great Plains DBTAC. My question is for John. What I''m wondering is there are a wide variety of rural smaller cities and counties that are either installing or have installed or contemplating installing limited use, limited application type elevators and assuming that the elevators conform to the new ADAAG would that be a compliant means of providing program access to differing floors in smaller municipal buildings.
Okay. I assume you''re asking this because they are not allowed in new construction alterations now.
That is correct.
So would it be appropriate to use them in program accessibility issues. For existing buildings. This is certainly a question that first... I think the answer to that would be yes, especially... obviously it is very hard to do... to make any analysis in the abstract, but what I think you are asking is are they outlawed, somehow not use them and are the whole nature of program accessibility is usually dealing with the existing environment in very tough situations, and they are called LULAs I believe, right? If those are willing that can be used to make the second floor of an older building accessible I think we should be doing that, because the goal here is to provide access to civic programs for people with disabilities.
Okay thank you very much.
I''m calling for Governor''s State University. We actually have three questions. The first is if an individual with a severe learning disability demonstrates that he or she has the skills and ability needed to function in a position. However, in order to become employed as a regular employee he or she must pass a test qualifying him or her to be considered for the position, are there options, opportunities, procedures that should be employed by the organization in order to assist individuals so that he or she can be considered for employment?
Chris, do you want to take that first one and then we will come back to your next question, Gail.
I''m not sure whether the question is whether there is a requirement that you provide somebody training in order to take the test.
It is not to provide the training but what should we be doing in order to make sure that person can take the test and be considered for employment, if they have shown that they have the ability to do the job.
Well, the idea of administering the test is that the test measures what it purports to measure and not the person''s impairment, and so I don''t know the nature of the test, but certainly reasonable accommodation would need to be considered in administering the test, if, for example, it was a test that it required a lot of reading and the person''s learning disability necessitated him or her having someone to read the test in order to complete it successfully. That would be a type of reasonable accommodation that would enable the person to take the test. There is also the question of... around certainly that is something that an employer would need to consider, an accommodation that would ensure that the test measured what it purported to measure and not the person''s impairment. The second question is as to whether that test is used. Suppose that there is no way for the person to take the test without the test measuring his or her impairments, and so the person gets a lower score, a disqualifying score on the test. The question becomes can the employer use that test score to disqualify the person from the job. Well, it may be that in the case of someone with a learning disability who couldn''t take the test because of the learning disability and there was no accommodation that the employer''s would still need to consider whether that the person could, in fact, perform the essential functions of the job. It is not enough to say we have this test, that all qualified applicants have to take and they have to pass it. If someone can''t pass it or can''t take it because of a disability then the employer needs to consider is there an accommodation I can make in terms of considering other criteria that would enable me to determine whether the person can actually do the essential functions of the job. In other words, there should... the bottom line should be a sort of fit between the requirements of the test and the actual ability to perform essential functions of the job and if there is not that kind of fit and the test is screening the person out because of disability, then the employer''s going to have to consider ultimately, despite the test result, is this person someone who can perform the essential functions of the job, with or without reasonable accommodation.
Okay. I do have a faxed question here from the Region 3 DBTAC and that goes to ticketing policies, John, at theaters and places of performance and that and their requirement to address the needs of people with vision impairments who need tickets in specific seating areas. The caller is citing that this is not an issue of line of sight but rather a policy and procedure making modification to the policy to create access, similar to the availability of wheelchair seating. Just trying to get your read on what DOJ''s position on this type of issue is.
Well, as best I understand what you are saying we have never said that that ticket sellers have to create specific seating locations for people with vision impairments. We''ve usually dealt with it on the basis of, you know, ticket sales are usually first come, first serve and so a person with a vision impairment might be in some place as close to the stage as possible. It is an issue that has come up recently and I think it is one that we are looking at to see if we should have stronger policies than we''ve had, but we''ve only dealt with that on tickets being available on a first come first serve basis.
Hi John, hi Chris. This is Eve. In light of the ADA study that is showing that people with disability cases are losing their employment cases something like 92 percent of the time and in light of the fact that I fear the rate is as dismal in public accommodation cases and Title II cases, what are the government agencies doing to address that and what should the rest of us be doing to address that, to help them win more often.
Okay. For those of you who don''t know Eve Hill who is director of the Western Law Center used to work in the Disability Rights Section. There are a couple things that can be done. I think some of the losses that we''ve seen over the years come from people choosing cases badly. I think we have to bear some of the burden for not educating the bar and people with disabilities well enough on what are violations. Some of it has been on case preparation, some of it has been on the judiciary. I think the judges have been the least welcoming of the forms of government, really what we are talking about here is a social revolution and viewing people with disabilities as able to work and able to participate in every day life and I think courts have been reticent to buy into that. So I think that what we can do mostly is training people, working with the judiciary, trying to be involved more cases. We''ve tried to work on some cases as I discussed it is been helpful in in some cases and not in others. I also think the trend in the past year or two has been a little better in terms of a more enlightened judiciary but I don''t see a radical shift at this point.
Well, let me follow up. We do a lot of the types of things that John said, although budgetary constraints I think prevent us from doing a lot more outreach to plaintiffs groups and to individuals with disabilities. We just don''t, in a lot of instances, have not only the staff to do it but simply the resources to even send people to places to talk to some of these groups, but we''ve certainly tried to do that where we can within the confines of limited resources. I know that we''ve done some... made some attempts at educating the judges, the judiciary on the law. We maintain a very active amicus currae system in the courts and in fact it was hand in hand on the guidance that we did on representations and applications for benefits. Our amicus program also worked to really bring that issue to the forefront in reverse; that disturbing judicial trend that would have automatically barred people from bringing their ADA cases. I think that is an example of where it does work. Although I''ve seen some cases since that Supreme Court decision that have given me a renewed feeling that we still need to be concerned about those types of cases, but we''ve certainly tried to accomplish some things through our amicus program. We''ve sometimes worked informally with people who, plaintiffs who have been developing cases, not officially but we''ve been asked about questions or technical assistance or something like that. And also, you know, just trying to reevaluate, I think, as I had said earlier in my remarks, reevaluating our pending litigation and our pending charges to see what are the best types of cases that we can bring as an agency to get good precedent on conditions such as epilepsy, diabetes, things that we think should obviously be covered, situations where we can bring these types of cases in very favorable fact settings and develop in small incremental ways, you know, a body of case law that begins to recognize that some of these conditions are, in fact, not, you know, are still disabilities even after Sutton and Murphy. And then to build on that foundation of cases in the future to reestablish or establish coverage for other individuals as well.
One other thing I would like to raise, even though it is ironic for me to raise this with Eve asking the question. One avenue where there has been a much higher success rate is in the area of mediation. Both EEOC and Justice have mediation programs, although they differ, but it is an alternative to litigation and has a number of positive benefits and in our experience the success rate, and success rate meaning that the person with the disability who has brought the complaint originally is pleased with the outcome, has been at the 80 to 90 percent level. So I think we have to think more broadly than just think litigation in terms of the way to achieve appliance, because our goal is to open up American society to people with disabilities. Litigation is one tool, mediation is another.
Great. Thanks John and Chris. We have time for about one more question.
It is a pleasure to be here today and listen to you folks talk about the ADA. I have a question about a bill that is tried to be pushed through by Republicans it is called HR 3590, ADA notification act. I was wondering if you could explain what the bill''s about and what the effects could be if it gets passed and what we could do from stop it from being passed.
It would amend the ADA to require a person with a disability before bringing suit to give 90 days of notice to the entity that is going to be sued. Only applies to Title III so it is public accommodations, commercial facilities. And the idea is to give the business owner 90 days to try and come in compliance before suit is brought and if someone doesn''t do this, then the attorney who is bringing the suit, even if they prevail can''t get attorneys fees. They had hearings on the bill. It looked like it was dead but it has been brought back to life in the judiciary committee in the House. The disability rights community is opposed to this. The bill stems from a series of suits brought in California and in Florida. The complaint was that attorneys were just doing what they called drive-by suits and they would sue 300 people in two days or whatever and that this wasn''t what the ADA was about. It was enriching lawyers and not helping people with disabilities. And the problem is that the bill as written would have deleterious affect on the ability of people with disabilities to use the private right of action and in fact would reward those businesses who had fought off compliance for the past ten years. I know there are a variety of disability rights groups that are lobbying hard and working hard to keep the bill from being passed. I think NCIL and other organizations have taken the lead on that, if you''re interested in checking with them.
Great. Thanks for the question. That kind of goes back to what we were talking a little bit earlier and Chris had responded. His response to that earlier question when he was making a comparison of the ADA or disability population in comparison with other civil rights laws and other populations of protected classes. And so kind of as a wrap up question to both of you too, we would want to go back. The National Organization on Disability is scheduled tomorrow to release their annual results of their Harris survey, which concludes that there are still significant gaps between people with disabilities and other Americans. So I guess I would kind of turn it back to both of you. When it comes to enforcement by EEOC and by DOJ over the last ten years, in comparison to other civil rights laws of other protected populations, has the gap widened or has it narrowed? Are Americans with disabilities experiencing the same civil rights protection as other populations or do you feel that we still have a long way to go. Not that I would ever put either one of you on the spot.
I will start out. I certainly think that we''ve made enormous strides in the past ten years. I think... keep in mind I''m an optimistic person anyway, but I think that what we are talking about here, the ADA really is a social revolution that is going on in this country. It is really changing the way people with disabilities are included in society, how people with disabilities feel about themselves, how society in dealing with integration and inclusion in open up every day American life, but we are at the beginning of that and I think we''ve got to understand that there are barriers. Barriers still exist, attitudinal barriers still exist and it is going to take a concerted effort over time to do it. How we... you know, how do you measure this against the treatment of women in our society, the treatment of African Americans? I think there are differing degrees but I think you can say I have worked on those laws in those areas and I think you can say the same thing. We are making headway but there is still race discrimination in this country. There are still fields that women are denied access to. So I view this as our life''s work and it is something we are going to work on and work on every day and every day is going to be incrementally better, but we are nowhere near the goal of really living in a society where people can participate free from discrimination on the basis of race, color, national origin, sexual preference, gender and disability.
I think ironically a lot of the strides that have probably taken place are things that are not easily measured in terms of our enforcement efforts. The numbers that I quoted at the beginning of our discussion about the 130,000 charges and the amount of monetary damages we''ve obtained for people with disabilities are tell a story of those situations in which the employers initially did not comply with the law and where we had to get involved in order for something to happen. But there are countless stories, I''m sure, to be told about employers who have begun to see the ADA and reasonable accommodation as part of the fabric of their workplace and where we would never hear about a situation because, you know, our system tends to see those cases where problems have arisen. And we don''t have a way of really accurately accounting for the cases that we don''t see because the employer decided to comply, hired the individual with the disability, made the reasonable accommodation, without any need for a charge or litigation. Certainly I don''t think that there is a difference in terms of how our agency treats disability discrimination versus discrimination on the basis of any other protected status, that is, in terms of the number of charges that we receive and how vigorously we enforce the law. We certainly enforce the ADA as vigorously as the other civil rights law for which we have responsibility. I think that a lot of the barriers that people are still encountering that are different in the area of disability are those that have to do with the protected status issue that I spent a lot of time talking about, who is actually an individual with a disability. And by arguing that you''re an individual with a disability in this climate, particularly after Sutton and Murphy where your emphasis is so much going to be on your limitations, is it the even more difficult to avoid the Catch-22 that is always been a problem in the employment context of showing that you are qualified. So people with disabilities, I think, in establishing coverage particularly under Title I do face unique challenges in trying to make the courts understand that disability in terms of a characteristic in someone who has ability rather than someone who is seeking a benefit whom the courts would, you know, rather in a lot of cases attempt to exclude, and I think there are differences, therefore, in the way that courts view disability as a status versus race or gender. So there is a unique barrier there and also I think it is a little bit difficult to measure the progress that has been made under the ADA in ten years versus a longer history, although not a very long history under the civil rights act of 1964. So the comparison there is not a completely... it is not easy to make because we have had a lot more history in at least the courts dealing with race and gender discrimination, but I think that we have seen enormous strides both in terms of what we have accomplished in terms of our enforcement and outreach, as well as in the stories that we never hear about because discrimination never occurred.
Thanks Chris and John. We definitely thank you so much for taking time out of your busy schedules, especially with all of the celebrations. And I will turn it back to each of you for if you have a brief closing comment or maybe an verse rather wish for the ADA.
For all of the challenges that I have cited for the next ten years and beyond, I think John is an optimistic person, I guess working for him for three and a half years some of that has rubbed off on me. I am optimistic about where we are going and I''m personally very excited, just on a personal level the whole experience for me dealing with the ADA in the early years must be what dealing with the civil rights act was for people in 1964 and 1965 when the law was first being implemented and I think that we still have a law that is a very young law that still needs a lot of development and obviously our agency is going to try to be in the forefront of developing the law in.
I guess my perspective on this, since I''ve been doing this since the 1970s with Section 504 and I think I''ve been witness to immense changes occurring in our society in terms of the role of people with disabilities in our society, and I think changes are only going to come faster and I think we can look to the other civil rights movements. You can look to the role of women in sports in Title 9 and where we are now, compared to where we are before and I see now a generation of children with disabilities who are taking the rights for granted which in many ways is a good thing, but are not going to go back home and sit in the back room. I think that there are still problem areas we haven''t talked about today. We haven''t talked much about transportation and the need to have a paratransit system in this country that really does provide the same services for people with disabilities and we still have people with disabilities and institutions who should be in their communities receiving assistive services in their communities and living at home instead of being in nursing homes or institutions. So we have a lot of work cut out for us, but I think that the die has been cast and I don''t think any of us are going back.
Great. Thanks so much to both of you again for taking time out of your day to join us and celebrate the tenth anniversary. For those of you who have called in today we thank you for participating in today''s program. We hope that all of you will be back to join us next month, August 15th when we have our feature presenter Andrea Haenlin Mott, where she will be talking about union environments and the Americans with Disabilities Act. If you have more questions stemming from today''s presentation please feel free to call your regional Disability and Business Technical Assistance Center at (800) 949-4232. Thanks for joining us today we hope to have you back next month.