Thank you, and good afternoon to everyone on this sunny July day, at least here in Chicago. I hope you are all having good weather wherever you might be. We have many people joining us this month; it is a very popular session from all over the country. I would like to welcome all of you to this session, which is our regularly scheduled session for July. We are in the 2003 wrapping up the 2003-2004 Audio Conference series. This is a collaborative and cooperative program with all of the 10 Regional Disability and Business Technical Assistance Centers across the country. On a monthly basis we provide a session for 90 minutes on a variety of topics of - related to the ADA. In July, we have traditionally celebrated the anniversary of the ADA.This year we are marking the 14th anniversary of the passage of the ADA, with the signing on July 26th. This is a popular session, which many individuals want to tune in to get an update on what is happening. We asked and invited some our representatives from the federal agencies who have primary enforcement responsibilities under the ADA to join us and talk a little bit about what has happened or what is going on right now. Before we start, let me cover a few things regarding the format for today''s session. I want to make sure you are aware of the fact that this session is being real-time captioned on the Internet. If you are interested in accessing this mode, go to our website at www.adagreatlakes.org and following the links for real-time captioning. Once you have connected you will be able to follow along during this method of communication including the question and answer period. After the session you want to go back and access the information from this session. All sessions are archived on our website, both audio as well as the text format. Many people use that information over time and in fact today I will be referring back to something from last year that one of our speakers said. That is a nice way that the transcripts can be used. I just want to remind you that our next month''s session in August. We are offering two session, a special session on August 10 are that will be a highlight and review of the upcoming to be released this Friday July 23rd revisions to the ADA Accessibility Guidelines and the Architectural Barriers Act by the US Access board. This is a precursor to adoption down the road and one of our speakers from the Department of Justice will be updating of the accessibility standard that is the enforceable standard with the ADA. That session is scheduled for August 10th, it is a special session, scheduled for 2 hours in length, which is longer than our traditional information. For more information, contact your local center or visit our website to get more information about that session. Our regularly scheduled session in August will be available on our regularly scheduled dates, we typically always offer them at the same time every month, so that is-I know, an issue, that session will be on the 17th and it is "What makes a meeting accessible" is the title. And we will be joined by June Isaacson Kailes who is Disability Policy Consultant and author of "A guide to planning accessible meetings" and an accessible guidelines is a speaker''s publication in response to many questions against about these types of accessibility issues. Again, more information on both of these sessions in August can be gotten from your regional center or from the web. I would like to not waste any more time so we can get to the meat of this particular session. Which is to focus on what is actually happening with the ADA 14 years later. So, as we start today, I would like to first like to begin by introducing John Wodatch, who is the chief of the civil rights division of the U.S. Department of justice. For many of you who have joined us month after month, John is it a very familiar name on the agenda, and his voice will be familiar to you. He has been working with the federal government for a very long time, actually since 1969 and he has been specifically with the department of justice since 1980, so he has gone through many different changes that have taken place in the programs protecting the rights of people with disabilities, including what we would call the kickoff and the ongoing implementation of the ADA itself. He has worked closely with the Disability and Business Technical Assistance Centers since 1981. We see him as a close colleague and someone who assist us in doing what we do. We appreciate his willingness to share his information. Without further ado, I will turn it over to you. And you can give us some updates. John, go ahead.
Thank you very much, Robin, that was very sweet and polite introduction, I appreciate it. Good afternoon, everyone, it is a delight for me to be here with you all today to celebrate the anniversary of the Americans with Disability''s Act. 14 years ago people from all over the country gathered on the south lawn of the white house to celebrate the signing of the ADA. Which I believe is the nation''s most important Civil Rights Law since this Civil Rights Act of 1964. The goal of the ADA is really quite simple. To open up all of American life to people with disabilities. Was for too long, people with disabilities were kept down by old ways of thinking and old ways of building things. People with attitudes made it hard for people with disabilities to get an education or job. Barriers in the environment created by human beings prevented people with disabilities from get where wanted go and build a better life. Much in the-has been accomplished in the last 14 years, I believe that attitudes are changing and barriers are coming down all across America. I think the message of the ADA is being heard. The message of the ADA is about freedom. Freedom to contribute to society, freedom to enjoy the incredible opportunity this society offers. But although we have accomplished much because of the ADA our job is far from done, we have a very long way to go. People with disabilities are far more likely than other Americans to be high school dropouts, to be poor, unemployed, underemployed. They are also far less likely than others in our society to own a home, to use computers, use the Internet or to vote. Because of these disparities, this administration created the new freedom initiative to take on these remaining challenges. We at the Department of Justice are part of the new freedom initiative, and we remain committed to the full integration of people with disabilities into the mainstream of American life, and it is our job not to rest until people with disabilities have an equal opportunity to contribute to and benefit from our free market economy. What I would like to do is talk about a couple issues we have been working with this year, in terms of our responsibilities under the ADA. I will start with me what is a very happy point, which is the Supreme Court''s decision this year in Tennessee versus Lane. I think you all know we have had a rocky road at the Supreme Court with some victories and some very difficult decisions. So it is always a good day when we can look back on a year in which we have a decision that goes in our favor. We continue what is for us a very intensive nation wide effort to defend the constitutionality of the ADA. In may the Supreme Court decided - I hope you all know by now - Tennessee versus Lane, which we view as a major victory. It upheld the right of individuals to bring ADA suits against states in cases implementing - implicating, I am sorry, the fundamental access to courts. This case does leave many challenges from the future, but I am frankly extremely pleased at the threat of serious damage to the ADA was avoided. The decision itself-because of this decision, private individuals, people with disabilities may now bring Title II lawsuits directly against state court systems for all appropriate relief, including monetary damages. In legal terms, in terms of the legal jargon of this case, gets very complicated. What the Supreme Court said was that the congress appropriately abrogated the state''s sovereign immunity, at least with respect to cases involving court access. Individuals will be able to sue state courts directly and not have to rely on the limited perspective relief offered by suing state officials in their official capacity under the doctrine of exparte young. The Supreme Court ruled that Title II was a proportionate response to the pattern of unconstitutional behavior congress had identified when it passed the law. In doing so, it pointed to the fundamental alteration of the undue burdens defenses in the ADA and also to the flexible nature of the program accessibility requirement. But have you to remember that in deciding the case the court adopted what is called an as-applied approach. It didn''t decide in a broaden matter whether Title II was constitutional or unconstitutional in all of its applications. However in our view in its decision it used a broad analysis in coming to it''s decision. And that broad analysis certainly gives me hope that the courts will rule in a similar fashion in other areas that implicate fundamental rights. The reason I say this is if you read the opinion, the court looked beyond just inaccessible courts in describing the harm that Title II was meant to address. It described a backdrop of - and I will quote here - "pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights." In doing this it looked at voting, it looked at commitment issues, institutional abuse and neglect, zoning, discrimination in prisons, public education and the administration of justice. This language will bolster our 14th amendment case for applying Title II to future cases that we are dealing with in the constitutional area, and, yes, there are now many more constitutional cases. Unfortunately, this is not a Supreme Court decision that puts the issue to rest. As a follow-up to Lane we have already been very busy. We have already filed briefs in 7 cases involving the constitutionality of the ADA. We have done these in six different states involving five different circuit courts of appeal. These cases come out of Georgia, Louisiana, New Jersey, Puerto Rico, Missouri and Texas. And they are at the court of appeals level, and they are in the 1st, 3rd, 5th, 8th and 11th circuits. In these cases, we are arguing that the Supreme Court in the Lane decision examined the historical record of unconstitutional discrimination against people with disabilities in the provision of public services in general. The Supreme Court in Lane determined it was sufficient to justify that this record was sufficient to justify Congresses enactment of the ADA. We believe that the Supreme Court''s holding in Lane applies to all areas of government services, not just to courts, and we are saying that in these cases. In these cases, they raise specific issues, including the unwarranted institutionalization of people with disabilities who could be more adequately served in community settings, providing accommodations for inmates with disabilities in our corrections systems. Students who were denied equal educational services in elementary and secondary schools, and the provision of appropriate educations to hard of hearing defendants in a civil case. But that is not the only argument we make in these cases, we also argue that in each of these court cases, even if the Appellate courts follow what the Supreme Court did in the Lane case and do an as-applied case, in other words, they are not going to say, we are going to rule the whole ADA is constitutional, we are going to look at the things in front of us. In each of these cases, we make the case that by examining the record of the issue at hand, and the record that the Supreme Court had - I am sorry, that Congress had before it, and the formal rights that are implicated that, yes, Title II of the ADA is constitutional in each of these cases. We are in the beginning process, so we will have to keep you informed. I would expect that states would continue to raise constitutionality issues in just about every case that is raised against the state agency. We have the 7 cases that I alluded to. We know there is more coming down. It is our goal to remain in each of these cases and defend the constitutionality of the ADA to the fullest. Let me turn now from the civic access domain to the private world. One of the things that we have been spending a good deal of time on is what we call the ADA business connection. And it is really an attempt to foster better understanding of ADA requirements by the business community to increase the dialogue and cooperation between the business community and the disability community but also mainly to have the business community, particularly small businesses, see people with disabilities as customers, an employees. Not a legal obligation, it is a business case. We have held a series of meetings where we have tried to make the business case, it is one of the things that is shocking to many businesses, is that people with disabilities in the country according to data from the department of labor have $175 billion in discretionary income. Now, I think most businesses have a missed perception, they think people with disabilities are disproportionately poor and they can''t be customers. And we are trying to dispel that. We have - so we bring speakers together from local businesses who are successful in reaching out to people with disabilities. And try to bring about a spontaneous interaction. The results have been promising. We have had these meetings in Boston, in - here in Washington. And Houston, Atlanta and most recently in Seattle and we have one upcoming in October in Chicago. And what we hope will come out of them, not necessarily involving the federal government, but good things will happen in Houston, one of the interesting things that happened was a three-way collaboration that happened on developing a website design. A business technology consulting form, and disability organization got together and are now developing a design competition that will encourage Houston''s businesses to create accessible websites. Another meeting participant who works for Hotel Corporation suggested to our company that - realized that their diversity advisory board didn''t include anyone from the disability community. And, so, for the first time she recommended that it include a person with a disability and suggested someone who had been at the meeting. So we hope - we are going to continue this - these meetings, we also have created on our website a destination for businesses that include documents in information they may need. The ADA guide for small businesses there. A lot of these small business don''t know about the information on ADA taxes credits. We spend a lot of time - particularly some of these small businesses don''t know they can get a tax credit. That eases the financial concern that they have about making changes to their physical plants and providing sign language interpreters and things of that nature. We also have created what we call ADA business briefs which are short documents on specific issues. What we learned in our TA activities is that the longer the document, the less use it gets. We are trying to, as much as we can as a group of lawyers, get things down in very simple language on a one-page document that their employees can look at, whether it is on something as simple as re-striping the parking lot and doing it right, or, you know, dealing with people who come to the store with a service animal. Communicating with individuals who are deaf or hard of hearing, we will continue to add to those, we are in the process right now of trying to expand this approach by working with the small business administration. We are trying to develop an online course aimed at small businesses, demystifying the ADA and putting them in touch with the right kind of resources. Okay, let me switch to Project Civic Access, which you have heard me talk about before. It is our effort, and it has been wildly popular with both local governments who benefit from compliance assistance from us and people with disabilities who can enjoy the tangible results of greater day-to-day access in their communities. Under this we go into a town, and instead of focusing on one little complaint we try to take a broader view and look at a variety of issues and ensure that public facilities whether it is a convention hall, town hall, arenas, court houses, libraries, polling places, parks and things like that are accessible. We are in phase two of this Project Civic Access. We have added additional issues as we have gone, spending more time now on accessibility of sidewalks, in the past we have not done that because it is really a primary jurisdiction of DOT, but we have tried focusing on that because of its importance. We have started looking at polling place accessibility. And government websites, local government websites as well as disaster response planning, and in the next couple weeks, if you are sort of watching our space, we hope to have an announcement of a large number of new Project Civic Access agreement that is we will be signing. Let me switch gears a little bit more to something that Robin alluded to. I think you may know those of you in - especially design professionals or people who worry about accessibility of new construction or alterations of existing facilities. The Access Board has - is nearing the end of a lengthy 10-year process to amend the ADA Accessibility Guidelines and to harmonize them with model guidelines and this Friday the Access Board will be publishing in the federal register new guide. Now, this guidance - the way the ADA has written it, there is a two-step process. The first step is the Access Board creates minimum guidelines; the second is the department issues standards. We are required to adopt accessibility standards that are in the words of the statute, consistent with the minimum guide lines and requirement issued by the Access Board. Once this done we now have to go through our own rule-making process. Our goal is to adopt parts A and C of the revised ADAAG that is going to be published this week. We are going to - we are still hopeful that we will be able to do it on the same day as the Access Board, but we have to go through a lot of governmental approvals and it may not work that we will do it this Friday, but we will be doing it fairly soon thereafter. We will be coming forward with a notice of proposed - an advanced notice of proposal, so we will establish our intent to adopt this. Well ask a lot of questions because not only does this have application to us in terms of adopting new ADAAG, but it also has implications for existing facilities, because under Title III of the ADA, requires entities to remove architectural barriers where it is readily achievable to do so. We look to the standards as guidance for what architectural barriers are, there is an interplay between the new ADAAG and the obligation to removal the existing barriers. I urge all of you to be aware that well be coming out for, with this rule making we will be taking comments on the web. So I urge all of you to send us your comments. Couple of things we are intending to do, over the years the Access Board has adopted a series of rules we have, including guidance for state and local governments, children''s facilities, recreation areas, play areas, well be announcing our intent to adopt those as well. One of the things that we will be doing is withdrawing the option for state and local governments to choose between UFAS and ADAAG, what the Access Board is doing is moving to one standard, so we are participating in that. We have been a member of the Access Board, we have worked closely with them in the development of these rules, we voted for the new ADAAG and we support them fully. Well be doing the 100 - 120-day comment period, I urge you to see that one coming out there and participate in the rule making. Let me quickly go through a couple cases. I have to - I can''t do this without giving you an update on the stadium-style theater cases. I think you are aware that we are involved in I think 7 separate pieces of litigation on the placement of wheelchair seats in stadium-style movie theaters. I am pleased to report to you that at the end of June this year, the Supreme Court agreed with us and agreed to let stand two court of appeals decisions on this issue. And in both cases, one was U.S. verses Cinemark which was in the 6th circuit case that was filed and the other is a case called Regal Cinemas versus Stewman, a case brought by a local disability rights group in which we participated. In both of those cases the appellate courts ruled in favor of the plaintiff''s argument and our argument as well that the quality of viewing angles must be considered in deciding whether sidelines for accessible seating are comparable to those offered to the general public. In both of those cases the plaintiffs challenged accessible seating that was located close to the scene, resulting in our view, and such extreme viewing angles that it produced physical discomfort and image distortion. Both of these court decision where important because it rejected an earlier decision in the 5th circuit in the Larva case was rejected which said that all the ADA requited that the seat must be unobstructed. In joining this case, the department argued the 6th and the circuits were correct in arguing that the ADA offers merely unobstructed sidelines and that we are-so these two cases are at least that doesn''t mean this is over, we are waiting still for a decision in the 1st circuit in the two cases we brought there. U.S. versus National Amusements, and U.S. versus Hoist. We are back now in the 6th circuit at the district court level in our suit against Cinemark. Now that the Supreme Court has decided at least not taken these cases, well go back and - in the 9th circuit in the case the United States versus AMC and move to the remedy stage of that case. So it is very active, but these cases in our view are moving in the right direction. Two, let me just mention two quick cases and I will turn this session over to Sharon. Two cases, I think I have discussed them at various times, one was a case against the Department of Public Safety in Mississippi where we alleged, and this was a referral from EEOC. We alleged that there was a refusal to accommodate a Cadet with diabetes at a training academy for new state troopers who was dismissed in our view from the Academy because of his disability. Despite his disability, which is diabetes, the Cadet had worked for other law enforcement agencies for more than 15 years and completed three law enforcement and military academies. In addition to using insulin he regulated his diabetes by exercise and by timing and adjusting his food intake. We originally took this case to make the case that someone with diabetes can be a person with disability. The case went off in a lot of different grounds but I am pleased to report we have entered in a consent degree. Mississippi agreed to pay monetary damage and change their policy on providing accommodations, train its officers on how to handle request for accommodations and incorporated an overview of diabetes and its curriculum for training of troopers and cadets. The other case that is ended was a case against Parkway hospital in Queens, New York, on Long Island. Where they agreed to provide sign language interpreter services to ensure effective communication with hospital deaf patient and their relatives. Pay $125,000 in compensatory damages to the family of the complainant who was a former deaf patient of the hospital and to provide a great deal of training. Both of these consent decrees can be found on our website and a lot of information about what we do can be found on our website at ada.gov. And I encourage you to take a look there for that and other activities. I would like to close by saying I think we can all be proud of real progress that we are making under the ADA and in ensuring that people with disabilities can achieve full access to American society. Serious problems remain, and I pledge to give you our full attention and energy toward meeting those challenges. Well increase our efforts to promote ADA compliance and to use our enforcement tools to the fullest. When someone is denied access to employment, cultural activities civic life because of disability, we believe that our lives are diminished. We cannot - as people afford to tolerate the continuation of these unreasonable barriers. I am a very optimistic man, I look forward to the day when people with disabilities achieve the birth right of all Americans to live independently with dignity together with friends and families in their communities. Thank you for listening, I will now turn it over to Sharon.
Thank you very much, John. And before you turn it over to Sharon, let me give our audience a little bit of introduction to Sharon here. We have today with us Sharon Rennert who is representing the Equal Employment Opportunity Commission. I know many of you just like John, Sharon is a very familiar voice to those who have joined us in the past and has done a number of sessions for us on a number of employment-related issues. She is serving as a senior attorney in the ADA division of the Equal Employment Opportunity Commission. And she has been with them for several years with lots of experience within the federal government as well. So I would at this point like to turn it over to Sharon so that she has an opportunity to give us input and feedback on what has happening with EEOC before we start to take some questions with our audience. Sharon please go ahead.
Thank you, Robin. And good afternoon to everyone out there. I can''t believe it is another year past, but what I want to do is give you a kind of quick review of some things that EEOC has been up to. And then as Robin indicated move into, I think the best part of this program, your questions. In terms of some of the ADA related projects that EEOC has undertaken in the past year. We like the Department of Justice keep trying to respond to requests for information that would be helpful, and unlike the Department of Justice, we have been unable to put anything down in one page. I guess we are just two for both. We have initiated fact sheets looking at specific disabilities and, therefore, specific issues that come up affecting individuals with those disabilities in the workplace. The first such fact sheet was issued last October focusing on diabetes. The next one that will be coming out will focus on epilepsy, and I don''t have an exact release date, but pay attention over the next couple months, I think that will be coming out. The next one after that one that is in the pipeline will focus on cognitive disabilities. So all of these fact sheets are information sheets that might arise for specific disabilities, around issues that may be qualified or around reasonable accommodation or if appropriate, direct threat questions that may come up. So you may want to be looking out for those fact sheets. We also issued again last October a fact sheet focusing on applicants with disabilities. And issues specific for those seeking jobs, what kinds of questions and issues come up, obviously looking at the pre-employment medical exams and disability-related questions, when can employers ask things, what can they not get into all of those kinds of issues. One focusing on applicants, obviously as John mentioned, despite progress with the ADA, we are well aware that unemployment and underemployment continues to be an issue. So we wanted to see if we could focus some attention on job applicants with disabilities. Before I get into some of our statistics in terms of our enforcement and litigation efforts, let me focus on what has developed throughout the legal system as an alternative to the litigation, and that is mediation. I hope all of you are aware that several years ago EEOC inaugurated its own mediation program. It continues to grow, and be more successful. In the past year we had the largest number of mediations actually conducted and resolution. But we are still not satisfied and trying to see if we can get this program to grow. Out of that experience with our own mediation program it focused our attention on mediation in general, and kind of access issues for people with disability to mediation programs. Be it for ADA-related issues or personally non-ADA issues. I mean, just like everyone else that you have housing disputes or other kinds of disputes come up. And that people with disabilities would have equal access to mediation. So in coordination with some of our colleagues, at the Department of Justice, we have been working with the National Council on Disability to look at coming up with some standards and guidance on accessible mediation. So that is something else that we have got in the works here. As with the Department of Justice, EEOC is also involved with the President''s New Freedom initiative. One piece of our involvement has been our small business program, focusing on getting ADA information to small businesses. Often they do not have the personnel, the resources to devote that larger businesses can to ADA issues. So consequently, more uncertainty perhaps about what the ADA involves, what their obligations might be. Where to seek information and so we have tried to design training and offer training specifically for small businesses. In the past two years our staff have conducted over 70 trainings geared to small businesses. We have gone to 28 states. If anybody out there is interested in the small business program, please feel free to contact us. You can go on our website eeoc.gov to get more information. We would certainly would be happy to see about putting on a small business program for you. People are always interested in sort of some numbers so let me not overwhelm you with them. Just a kind of snapshot about our charges and our litigation. The latest available information we have is for fiscal year 2003, which ran from October 1st of 2002 through September 30th of ''03. For fiscal year 2003, we received over 15,000 ADA charges, about 15,300 ADA charges. And that is sort of holding steady at this point. In terms of how many charges we resolved for that same fiscal year, it was a little over 16,000. Now, this is not a kind of - they come in the door and were able to resolve them immediately, but we have been trying to catch up with the numbers from previous years, so that partly accounts for why there were more resolutions and charges that came in. Also, we have some charges that get referred to us from our sister fair employment agencies from the states, people that may originally file with their state employment agency. And for various reasons they get referred to EEOC for investigation and resolution. So we end up - we ended up last year with more resolution. It is still a good thing. In terms of the kinds of impairments that people are filing their charges about, in terms of the sort of percentage out of total, these also seem to be fairly holding steady over the last few years, some of the major categories, mental illnesses which compromise a lot of different conditions, roughly 15% of our total of the mental illnesses, the largest one by far, there are people who have depression at around 8%. Diabetes represents about 5% of the cases being filed with us, heart conditions around 4%. Back when orthopedic impairments and this covers quite a range. It can cover paralysis, it can cover all kinds of spinal and disk problems, leg problems, but that covers almost 20% of our cases. Two of the figures I found most interesting, and I think they are reflecting a sort of post Sutton world. After the Supreme Court''s decision in 1999 on mitigating measures, which made it more difficult for people who use such measures to meet the ADA''s first definition of disability, we have seen an increase in our caseload of people who are alleging either that they have a record of a disability, or they have been regarded as having a disability. Both of those categories have certainly increased over the last few years, and I think that is attributable. Both to the Supreme Court decision and as we are all aware, in general courts have been fairly demanding, fairly strict in how they are applying that first definition of disability, judging whether people have a substantially limiting impairment. So I think we see some spillover of that and regarded it as categories. In terms of our litigation dockets last year, fiscal year 2003, about 12% of all the lawsuits that we filed were for ADA cases 46 cases to be specific. Which doesn''t include any appellate briefs or appellate cases that were involved. And these are all cases that we are directly litigating on behalf of a person with a disability. And our litigation continues to sort of follow a cross section of both disabilities and types of complaints. I was looking just earlier today at a snapshot of kind of cases that we have resolved this year, and they really run the gamut from employers that fail to hire people because of their disabilities, terminated people because of disabilities, failed to provide reasonable accommodation, harassment based on disability, and then the disabilities themselves. Everything from mental retardation, deafness, blindness, down syndrome, diabetes. So again, really running kind of a cross section. The last thing I wanted to quickly talk about before we go into your questions is the one Supreme Court case we had this past term dealing with the employment provisions of the ADA, and that is the case of Raytheon company versus Hernandez. Some of you may have heard me on other of these web casts talk about this case, but very quickly, if you are not familiar with it. This involves a case in which Mr. Hernandez was offered the opportunity to resign or be fired after he tested positive for cocaine in the workplace. He chose to resign. Under company rules, you show up under the influence of drugs and that is enough to immediately be dismissed. About 3 years later he applied to Raytheon to be rehired, and when they saw in his employment record that he had been dismissed for cause, for violating conduct rules, Raytheon said, well, we don''t want to hire you. Now, the other thing that Mr. Hernandez had put forth in his application for rehire, was information about his being in alcoholic anonymous. So that created a question, did they focus on that information that he was a recovering it drug addict or did they decide not to rehire him based on the fact that they knew he had been dismissed for cause? Mr. Hernandez filed a lawsuit ultimately in this case, alleging discrimination under the ADA. When it went up to the 9th circuit court of appeals, the 9th circuit ruled that they saw no problem that Raytheon might have a neutral rule that it does not like to rehire people that have already been fired for cause, but they said you can''t apply that neutral rule when the person is a recovering drug addict. And the reason that they were fired had to do with something coming out of their drug addiction. Ultimately the case got to the Supreme Court and the Supreme Court in a unanimous decision it was a 7-0 decision, two justices did not participate in the decision, so hence it was 7-0. But nonetheless unanimous, should basically, the analysis used by the 9th circuit was wrong. This case ultimately did not get into sort of major substantive issues as much as it really dealt with some legal technicalities if you will. And that is the difference between two theories of discrimination. One is disparate treatment where an employer is taking an employment action based on a particular characteristic; in this case it would be disability. Those are referred to disparate treatment cases. Your treating some different because of the disability. And the other type of theory of discrimination is called disparate impact, where you have a neutral rule, nothing on the face of that rule is singling out people based on disability, but nonetheless it has a disproportionate impact on people with disabilities. And what the Supreme Court said is that basically the 9th circuit court of appeals in analyzing Mr. Hernandez'' case got it wrong. That the 9th circuit used a disparate impact theory when the theory they should have used was disparate treatment. And that had everything to do with the fact that Mr. Hernandez never raised disparate impact as a theory about his case. It is up to the parties to raise what theory of discrimination if not for the court to decide that. So basically the Supreme Court was saying the 9th circuit should have followed what Mr. Hernandez offered which was a disparate treatment theory. And instead it substituted disparate impact and basically the Supreme Court said that you can''t do that. So they said that under the treatment theory everything in terms of Raytheon having a neutral policy and saying that because for the neutral policy we are not hiring. That is legitimate for Raytheon to do and the Supreme court said that leaves only one issue. Is basically Raytheon telling the truth, was it their rule that they just don''t rehire people once they have been fired for cause or was their real reason for not taking Mr. Hernandez back, the fact that they really did focused on the information that he was a recovering drug addict. So the Supreme Court sent it back to the 9th circuit and said, that is what you are going to have to look at. Earlier this year, the 9th circuit looking at just that said basically this case has got to go to trial. They said, there is conflicting evident as to the real reason Raytheon refused to rehire Mr. Hernandez, but it is not clear. In other words, whether they were using their neutral rule about not rehiring people fired for cause or whether it really had to do with Mr. Hernandez'' status as a recovering drug addict. So that is where the case stands last I checked on it. I was waiting to go to trial. What was the real reason that Raytheon refused to rehire Mr. Hernandez? At the end of the day in terms of this case, I don''t think that it moved us forward a great deal. I think that like John, a sigh of relief. There was the potential that the Supreme Court could have issued a broader ruling which could have been given us more narrow definitions of various things. So I think that at the end of the day the Supreme Court chose to kind of just rule on what may seem like legal technicalities may be a good thing for the ADA. So with that, Robin, I am happy to turn it back to you and to the audience.
Thank you very much both, John and Sharon. I think it is valuable information and it is nice to have some insight from both of you on these issues. I know that we have many questions coming from our audience and we like to get a chance to address you directly. At this time, I will ask Latiffe to come back on and give us some instructions on asking questions.
Thank you, Michelle. Ladies and gentlemen, if you have a question at this time. Please press the one key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the question cue, press the 2 followed by the pound key.
This is all very interesting; I am glad to be able to listen to what you had to say. I would like to refer back to what John was saying about the Accessibility Guidelines being amended and ask the question about whether section 508 is going to be amended along with those.
There is not a linkage between what the Access Board is doing with it is ADAAG rules and the section 508 guidance that they have out there. So that the Access Board''s 508 standards are untouched and still apply to the federal government, and if you are using them as a basis to deal with accessible websites, you should continue to go on ahead doing that. We are trying to get the state and local governments to focus on they are website accessibility and to take what we view as simple steps in order to make the website accessible. We are relying on certainly what the access board has done in terms of their 508 standards, but I know there is no change under discussion right now for those standards.
Probably one of the worst things the ADA did for us was trap us with having to going through the EEOC, having had the privilege of helping people going through the process. And then having to go through it myself I know first hand just how incredibly sorry the EEOC investigators are, and how the end result you get the letter to sue. The EEOC serves to do nothing but take six months of your life away. And I don''t know that there is anything that you can do or your federal agency cares to do to evaluate your response time to complainants or to evaluate your investigative procedures. I essentially don''t have a question, I just want to tell someone at the EEOC how incredibly sorry the process is.
Well, I am sorry for your experience with that, and unfortunately you are not the only one, and I do appreciate your taking this opportunity. I mean, I certainly invite people to get in touch with me if they are having disabilities with the offices. There are times that I have been able to intervene. Unfortunately, the process can take a while. We don''t have all the staff that we really do need to try to move these cases more quickly. But I will take what you said and report it to the responsible people here at EEOC.
I am the state equal opportunity compliance officer for the Illinois department of commerce and economic opportunity. We are the agency charged with the responsibility for overseeing the workforce investment act. And in the state of Illinois we have 26 local equal opportunity officers, all of which who need help with monitoring local training providers and their facilities throughout the state. So my question is what types of training is available for these local EEO officers that can maybe certify them so they can go out and make sure that they are training providers have facilities that are up to standard as well as being able to address issues like that.
Go ahead. I don''t know, DOJ or any training you have available. I know the Disability and Technical Assistance centers that are on a Regional basis have training available to assist and can go out and work with individual providers or work with the state for some kind of training, or something of that nature. However, we don''t have any kind of quote/unquote certification process, nor is there any real recognized certification process through the ADA system. But I am not sure if, John, you would have any other thoughts or...
Yeah, I don''t. We don''t have anything that comes close to that. Even in the extent that you are talking about of providing training for EEO officers of this nature. The one thing I am-I don''t know is, it may be that federal agencies that are providing some federal financial assistance for these programs may be, perhaps the Department of Labor. May have programs that would provide training, but I don''t know of any program that would provide certification in the sense that it is being discussed here.
Okay. Because it had come up into a meeting as to whether or not there was some type of entity out there that could train people to monitor facilities to make sure that they were compliant with section 504 and the ADA and so on and so forth. That is why I was just trying to check and see if there is anything that is recognized or at least the school of instruction that could be used.
No the only thing that is close to that is the state of Texas has a program where it trains some of the entities that review plans and new construction that is limited, but it is in that same-it is actually conducted by the state through its certification of occupancy of new facilities. But I am not familiar with any other program that does that.
And again, I would just say that the regional disability and technical assistance centers could be a resource for you. We have a curriculum where we train the individuals, and it is just beyond the physical access issue. It is a programatic access understanding the communication responsibilities and some of the other issues, policy and procedural modifications and such that may be needed by these entities to ensure that people with disabilities have access. You may want to contact or anyone may want to contact or explore training that could be available or developed using the expertise of the centers and more in collaboration, personally.
If I could support Robin on that, I think that the 10 disability assistance centers around the country are really incredibly good resources of information about not only what the ADA requires but best practices under the ADA and how to approach compliance to the ADA, and I think, you know, using them in this regard, maybe we can develop-we can come up with a pilot project that may be able to be duplicated in other parts of the country. I think it is a worthwhile idea you are bringing to our attention.
I would like to know what you do for big businesses. Do they get money from the government to help people with disabilities in the workplace? I felt five years ago, and I have a back problem and a memory problem. And I went back to work this year after on leave, and they cut me off of work, lack of suitable work, and I have termination papers at home. I tried going through the EEOC and going through the workplace without the harassment, and I can''t get anything done. Now I am left with no insurance. I want to know where they get their money from.
Well, this is John. Let me start, and I don''t know if Sharon has something to contribute from the other angle. In terms of-that are not, as I understand it any programs that are providing money to big business for there compliance with ADA or section 504 but there are a number of federal programs that are to support people with the disabilities in terms of seeking employment. A lot of the programs, obviously come out from the Department of Education, the State Voc Rehabilitation system. I now have a variety of services, if you go to them as a client they will provide a number of services to the business, whether it is the accommodation itself or in the support based employment nature, but that is sort of assistance, I believe the Department of Labor has some programs as well that work-that provide eventually, provide support to a business, because they have hired a person with disability. But that is the only guidance I can really give from my perspective on that, I don''t know, Sharon if you have a different perspective.
Yeah, the EEOC has no money that we give to individuals or to individual businesses to help with compliance here, and so in addition to the programs that John named for sure, the Office of Disability Employment policy within the Labor department also has, I think some assistance to offer. And again, in-to address any sort of particular problems that you have with EEOC, I certainly invite you after this broadcast, can you get in touch with me, and if there are things to do, then I am more than happy to see if I can address people''s particular complaints with the agency.
This question is for Mr. Wodatch. Approximately how long will it take for the DOJ to actually adopt the Access Board''s new guidelines? Thank you!
That is an excellent question, and I probably have no credibility for giving any answer for the question. I have been asked it over the years, we envision-this is sort of how we envision the time frame going. I think that the rough time frame is 2 years or so. After we issue, and I will give you some idea why it takes that long-well put out our announcement to inttend to adopt the rules, it will have a 120-day comment period so people can comment. Well then put together the final rule, say it takes us a couple months to do that, we will then issue a proposal rule that will have another 120-day comment period as well added on to that. There is a federal review. Once that is done, we go through that process again for the final rule and the final rule cannot only take 90 days at OMB, but can also go to 60 days to Congress before it becomes a rule. In our view, it is probably at least a two-year process for us to go from the first public statement of it to going to the two comment periods as well as having several public hearings as well those review processes.
Thank you very much. I know it is a complicated process, and it is something that some of us don''t always have patience for; we don''t understand why it just cannot be done.
Yeah, and what has happened, it is interesting when we did the ADA rules the first time around, we did them in a year. Which is what we had. But the difference between now, 1990 and ''91 and now, is there have been a number of federal laws that have been passed that require us to do a variety of things differently then we had done in the past. Both President Clinton and President Bush have issued orders that give us a few procedural hoops within a time period. We have to go through all of them before we can get to the point of having a final rule. Which is partly why the Access Board has been on this 10 year process to get to where they are now. We certainly think because Access Board has been through so much of the actual substantive issues that it should be easier for us to do this, but we still think it is at least a two-year process.
It regards sign language, particularly sign language interpreters, for doctors and appointments. Medicare and Medicaid don''t cover the cost the doctor has at some point. Some of the doctors have, but some of them also said no as they just have too many clients that are in that situation, and what can be done about that. Is that correct?
This is a question we deal with, not surprisingly fairly often. I guess the starting point for me is that Title III of the ADA applies to doctor''s offices as public accommodations which means the doctor''s office has an obligation under the ADA to have effective communication with their patients which would include the provision in a variety of circumstances for the sign language interpreter, my understanding of the Medicaid and Medicare rules is that specifically some states allow the cost of the interpreter to be covered, some states do not. Whether it is covered or not, the doctor still has an obligation to provide it and not to charge the person with a disability for the cost of the sign language interpreter. The one thing that you can pay attention to here is that there is a tax credit, it was passed at the same time as the ADA, many doctors'' offices are going to be able to avail themselves of this tax credit. The tax credit is a pretty useful thing for them. It can be used to pay to defray the cost of a sign language interpreter. So if a doctor''s office needs - we have packets of information about the tax credit, we will be happy to provide them to whoever needs them. They are on our website. But we also have packet that is we can send particularly doctors offices it works - a doctor''s office will always say to us, well, you know, I only charge 60 doctor dollars for a visit and the interpreter costs me 75. Our answer, that is true, but that is a cost you have to bear in terms of providing medical services to people who need sign language interpretation services, and that is why the tax credit is there. If the doctors is big enough that the tax credit won''t apply, the tax credit applies to a business that meets either one of two conditions, they have a million dollars or less in revenue annually or they have 30 or fewer employees, so if they have 30 or fewer employees, they can get a tax credit for the interpreter, if they don''t, they still can avail themselves of a tax deduction, an annual tax deducts each of these is annual so they can get recoupment each year they expend money for a sign language interpret.
I had another question on a different subject, is that okay?
Sure, go ahead.
Okay. We have been in Idaho, excuse me, have been having some questions with regard to pay phones accessibility and TTYs. So we sent a question off and did not get an answer. Well, we got an answer, but it is incomplete, really. The two questions we asked were who decides where to put phone booths, is it the telephone company or the business interest? The second question we asked was, what role if any does the business takes regarding control over the placement operation and upkeep of the phone. The reply that we got indicated that this particular telephone company was going to privatize by selling it phone booth operation to an individual who had formally worked for the telephone company. Does anyone have any idea where that leaves us. The telephone company is across the west, so does anybody know where that leaves us as far as providing TTY services.
Yeah, let me just start, this is where you get into legal jargon of my favorite legal answer which is, it depends. I have often been accused of when I am dead; my tombstone is going to say it depends. This issue has changed over time, and you know, it is sort of interesting to me, phone booths have almost disappeared from the urban scene here in Washington DC. Both with the with the growing use of cell phones. Sometimes the phone company, usually the phone company decides where to put them. And they decide where to put them, based on how much money they make out of them. However, if they are putting them in a place of public accommodation, so if you have a bank of phone booths that are in a hotel, then the Title II entity also has some obligations there, and the ADA guidelines have some provisions on, you know, where you have to have TTY''s and the new ADAAG that is coming out will have more explicit guidance on that, there is a joint responsibility that goes there, but in many places, public accommodations will ask to have public phones put in their business or near their business. And the phone company refuses because they don''t feel they are going to make enough money. So it is not a one-size fits all answer that you can do, in terms of this privatizing issue, this is a new one on me, there may be other people who can deal with that, but if the phone is placed on the side of a place of public accommodation that is covered by Title III, then it will have some responsibility. If it is just on the streets, then it is outside the role of Title III. I don''t know, Robin, if you have anything else to add to that, if you have any issues with that?
I think this has been discussed jointly around the country. That you have to take it case by case as to who is controlling and what negotiation in the outset you can do.
Have you heard of this privatization issue?
That has not come to our attention, privatization, no, no. Nobody has contacted us; it doesn''t mean it is not happening, no one has raised the questions.
If you want to give me an e-mail address, so I can forward you the message we got from the phone company if you are interested, either John or Sharon.
Certainly, my e-mail address is john.l.wodatch@usadoj.gov.
I wonder if Sharon could explain, as briefly as she can to the people the EEOC process based on an ADA issue. From once the complaint is received and accepted. I.e., mediation, to what, court?? How did Hernandez get where he got? I am sure people would like to understand that. .
Briefly, when somebody files a complaint. What we call a charge of discrimination under the ADA, with one of our field offices; basically, you will be interviewed by an investigator to get your side of the story to tell us exactly why you believe that your rights under the ADA have been violated. Next we will notify the employer that a charge of discrimination has been filed, and give the employer an opportunity to send in a statement of why the employer believes it did not violate the ADA. The next stage would be an investigation. So interviewing the employer relevant people at the employer, it may be a supervisor it may be hiring officials, it may be co-workers gathering any relevant documentation that can shed light on what happened. It may be getting medical information from the charging parties doctor or other appropriate medical people. So basically depends on what the allegation is, you know, that leads us to what kind of an investigation we have to do. We then sort of pull it all together and make some judgment, and notify the parties of our findings. If we do not find any discrimination from the evidence, then at that point we are issuing a right to sue letter, because at that point the individual if he or she chooses can go on to court. Alternatively if we do find that the evidence amounts to a discrimination by the employer, we bring the parties together to try to settle it in a process we call conciliation, we are successful, then that gets the appropriate release for the person who files the charge. If we cannot get a settlement at that point, then either EEOC has an option of filing a lawsuit on behalf of the individual or if we choose not to file a lawsuit and fortunately we don''t have the resources to file lawsuits in all of these cases, then we issue a right to sue letter to the individual so that he or she may now choose to file their own lawsuit. In terms of the Raytheon versus Hernandez case, we did find discrimination when Mr. Hernandez filed his charge with us. That was a case where we just chose not to file a lawsuit on behalf of Mr. Hernandez, so he received a right to sue letter, and he chose to file a lawsuit himself. I think that covers it.
Thank you. I know it is a complicated process, and people often wonder, you know, what happens with that complaint out there, where does it go. So I appreciate you giving some feedback and information how cases go through and how they may raise up to some place like the Supreme Court.
I am calling from the Chicago Lighthouse where people who are blind or visually impaired. My question has to do with the access to businesses. Recent years, there has been an increase in commercials on television that are inaccessible to blind people such as they will entice you to buy a product and say, call the phone number on your screen. Or write to the address on your screen. And I am wondering is there anything being done in the area to change this. To get them like they used to do to give the phone number, to give the address, so a blind person or anybody else can phone or write in. I think what one of you said at the beginning about their being the idea that people with disabilities don''t have any money to spend it has-it is demonstrated in this respect.
I will start answering that. Oddly enough, the ADA itself doesn''t apply to this circumstance. It doesn''t apply to the medium of television, and so there is no definite requirement that we have that can reach this. However, in terms of just good business sense this makes no sense whatsoever, because there is-what they are doing, they are obviously trying-they are in this to make money, and they are not reaching a large segment of the population that can spend money on their product. There are any number of studies, what we do with the ADA business connections is show what other businesses have found and Target and some of these other businesses who are leaders in getting people with disabilities to shop and use their goods and services, is that a lot of it is in outreach and advertising making people with disabilities know there is a product there and feel comfortable in going to buy it. So jaw boning is something that we can do. But there is no legal connection that we have that can say your failure to do this is a violation. But it certainly doesn''t make a lot of sense. It is such an easy thing to do. But we will continue to make that case. I will try to use that example specifically the next time I deal with an ADA business connection, because I think it is a good example of a simple thing that can be done. One of the things that we learned from one of our business connection meetings, a hotel chain realized that they didn''t-that they never captioned any of their commercials, and as a result of that, went back and started now captioning all of their commercials as-and deaf people who are at the meetings sort of talked them into that, I think this is a good idea, we will try to do it at least from that aspect.
Hi, my question is actually for Sharon. And it is regarding the numbers that we have heard on the court cases and the decisions, the ones that are in favor of the employer. Curious to know what kind of results you have seen in mediations, are they similar or do you have that information available?
In terms of EEOC mediations, we don''t currently break it down by the type of discrimination, so I cannot see which ones are involving disability in ADA as opposed to Title 7 and sex discrimination, race discrimination, what have you. Mediation is going to be very different than litigation, however. Mediation, it is the parties themselves that reach resolution. It is not a third party, a jury, a judge who is deciding a case. So it is a bit like apples and oranges, you know, the theory behind mediation is that if there is a resolution, it means both parties believe there is something in whatever they have come up with, so it is kind of that win-win type of situation here. In terms of our enforcement and our litigation. Our numbers or our percentages are not quite as drastic as the American Bar Association. I believe is what you are referring to that has been done the last few years. An annual review of the district court decisions on ADA and that have found overwhelmingly that employers seem to be winning those cases. EEOC''s percentages are not quite as extreme but there is also no question that even in both our charges, certainly in our charge system that still employers tend to come out ahead in greater percentages than those people filing charges. But it gets very complicated when you start breaking down this as to the reasons why. I mean, beginning with a lot of times people who file with the EEOC, we make the determination that they just don''t meet the definition of disability. And so you could say, well, you know, that is a win for the employer, but in another sense it may not be a true measure of the success of the ADA because these are individuals that were not intended to be protected by the ADA. Many people who will come to EEOC come because we are really the only place they can go to complain about things happening to them in the workplace, and a lot of times there are many things going on in a workplace that may be very unfair but not necessarily a violation of the ADA or one of the laws that we enforce. So it sometimes is sort of difficult to look at these sort of findings, and really know if we have got kind of a true measure of how well the ADA is working.
It is really problematic, because that is what the media seems to grab on and say, you know, well, look at how horrible the ADA is treating these folks with disabilities, because the vast majority of them are not winning in court. When I think that that actually says that most of the really bone head things that are happening out there are getting resolved before they get to court.
I think that is an excellent point. It is one that many of us with the EEOC have made about these studies is exactly that. It is a lot of cases are settled and throughout the process, I mean, many things as soon as somebody files a charge with the EEOC, we have a whole number of employers that will immediately choose to settle at that point. Or at some point during an investigation. Or if we do find discrimination that that is when they settle. And all the way up through litigation. Well file a number of lawsuits, shortly after we file we reach a settlement. There is all kinds of reasons that employers choose to take a case only so far, and then they are going to settle it. And those settlements and the cases behind them, that is not picked up in the studies. So I think that measuring the success of the ADA, if you only look at that sort of very small number of cases that have gotten to court I don''t think that tells nearly the whole story. One measure I use as I travel all over the country. And it is also probably imprecise in its own way, but the types of questions I ask employers. In the early days of the ADA, basic questions. Showing uncertainty and ignorance of the law, and also ignorance about people with disabilities, and about the whole idea of reasonable accommodation. Now as I go about, certainly I can still get some very basic questions, but the sophistication behind many of the questions that so many employers, certainly medium sized and large employers who now have a much better grasp of the law, about a much better grasp of the ideas of reasonable accommodations, of types of accommodations, of working with people with different disabilities. None of this is to say that discrimination has disappeared, it has not, but things that were much more commonplace 10, 12, 13 years ago. Now you don''t see nearly the same kind of sort of basic level that really we are into a lot more, if you will, postgraduate kinds of questions, and I think that is a measure of how much employers have absorbed ADA. How much they understand it, no doubt they still have a long way to go. But they are definitely is a noticeable change in their level of sophistication these days.
and their attitudes.
Yes. Thank you. We will take one more question before we wrap up.
With the anniversary of the ADA just days away - it is my pleasure to send congrats to all the staff at the DOJ and EEOC etc. Who have worked so hard all these years to continue to educate the public and work towards the progress we have today! As John said-we have come a long way, but we still have more to do! Here is to another year and more results!
Thank you very much.
Thank you.
Thank you very much. I appreciate that.
Nice to get the positives, the positives out there. Do we have one more question, please?
I have a question for Sharon. It is my understanding that a person who files a charge with the EEOC for ADA discrimination can choose if they so-if they so want to to-they can ask for a right to sue letter. If that is true, how long do they have to wait between the time they have filed a charge and the time that they can request the right to sue letter?
Individuals can request a right to sue letter immediately upon filing the charge. However, the local EEOC office can choose to hold on to the charge for 180 days in order to investigate and see if it can reach a resolution of it. If the EEOC office knows that it may be difficult to do that within the 180 days, or if they are, you know, understanding that you would really like to move into court, then they may go ahead and very quickly issue a right to sue letter. But it is the EEOC''s option to hold on to the charge for 180 days. Once you get to day one 180. At that point where somebody requests or renews a request for a right to sue letter, at that point we must issue it. We cannot hold on to it any longer. So you have an absolute right after 180 days to get that right to sue letter, prior to 180 days you can request it, but it can be granted only at EEOC''s discretion.
You say that is up to the local field office, they make that decision?
Yes.
It can vary from office to office then, is that right?
It might vary from office to office, yes, you are right.
All right. Thank you very much. And here is to another 14 years.
Thank you, everybody. And that does bring us just to about our conclusion of the session, I know there are people who have additional questions, and I know this is always the hardest part about these things is we know that we have to balance the various questions and the time and knowing that there are people out there and I appreciate your patience. Those of you that have questions that did not get asked and answered. John, you are a brave sole to put your e-mail out there. I am sure you will be broadcast, whatever, you may want to change that address.
No, no, no.
But just kidding. John provided his contact information. I know Sharon Rennert you said if people had questions they could contact you. I don''t know what kind of information you can provide to people.
I won''t leave John hanging alone, my e-mail address is sharon.rennert@eeoc.gov.
Great. Thank you very much. And again, if you have questions you may also look to your Regional Disability and Business Technical Assistance Center to get some information and assistance. We have a close working relationship with all of the Federal agencies including the Department of Justice, and the EEOC. And John and Sharon''s offices are on our speed dial. So we would be very much available and willing to assist you in getting your questions answered and assist in any way we can in your organizations, you can contact the 800 number at 800-949-4232. That is both voice and TTY. Again, just to remind you, that a transcript as well as an audio recording of this session will be available within the next 5 to 7 working days on our website at www.adagreatlakes.org. And also, links on many of the Regional Disability and Technical Assistance Centers and you can also do a google search, it seems to always show up. I encourage you to look to the other sessions that are offered. We will be introducing our 2004-2005 conference series in upcoming weeks. We will put an announcement out and be posting that in a variety of places, you will get to see the kind of topics that would be asked for next year. If you have ideas for topics, please let the people you signed up with today know. Whoever you registered with through your regional office. Let them, whatever thoughts you may have about additional topics, we are always welcome to those kinds of suggestions. Thank you, again. And we wish the ADA a 14th anniversary good year, and looking forward to many, many more, and many more accomplishments by all the Federal agencies and all the individuals working at the local state and national level. As we try to strive towards equal rights for people with disabilities. So, Thank you everybody and have a great day!