Thanks for joining us today for the ADA Distance Learning Program. This session is hosted by your regional Disability and Business Technical Assistance Center. Today''s topic is Unraveling ADA Resolution Options. We are fortunate enough to have with us today Barry Taylor from Equip for Equality, the protection advocacy organization for Illinois, hi, Barry.
Hi Jennifer.
And Peter Maida from Key Bridge Foundation talking about mediation. Hi Peter.
Hi Jennifer.
Thanks for joining us. This is such an important issue that really comes to light, especially with the recent Supreme Court decision. I want to kind of give a disclaimer to start out with so that you are aware, we have a special session that was scheduled for May 22nd, at the same time it is called the "Supreme Court Docket: Demystifying the Garrett Decision." We will have Sharon Rennert from EEOC with us next month. She will talk specifically about Garrett decision. If you want more information on that, log into the web site at www.adagreatlakes.org. Look for that upcoming session. This session is being real-time captioned. We have posted some references on mediation and different ADA Resolution Options up on the web. So you will want to take a look at those on the Great Lakes web site as well. What we are going to do for today''s call is, first I will ask Barry to come on and talk a little bit about what some of the ADA resolutions options are as far as administrative complaints, litigation and what some of the remedies are. Then I''m going to ask Peter to join us to talk about the DOJ mediation program that Key Bridge works in partnership with. Barry, I''m going to turn it over to you, then.
Thanks, Jennifer. As Jennifer mentioned, Equip for Equality is the protection advocacy for the state of Illinois with people with disabilities. So people are aware there is a protection advocacy agency in every state. If you are interested in contacting your agency and don''t know what agency that is, you can call our national association at 202-408-9514. Or go on their web site at www.protectionandadvocacy.com That will give you a link to your individual agency. Today we are going to talk about resolution issues under the ADA and other laws. When you decide to address a problem in the workplace it is a very individual decision. Oftentimes people if they file a suit or administrative complaint it can make things worse in the workplace. That is really only something the individual can decide. When we work with folks, we often try to see if we can resolve through negotiation first before filing any type of administrative or litigation complaint. Because litigation can be expensive, time-consuming and very stressful. And oftentimes stress can exacerbate somebody''s disability, so they need to think long and hard before they go forward. Then again, discrimination can be stressful, too, you need to make sure also that you protect your rights. There are certain statute of limitations that we will talk about, and if you don''t move within a certain period of time, you can lose your rights. So all that needs to be factored into making your decisions on what to do when you have a problem involving disability discrimination. The first issue I want to talk about was covered entities under the ADA. Who is liable under the ADA? There are two issues I wanted to bring up. One is under Title I for employment. We get a lot of questions on which employers are covered. The main question that used to come up that has been resolved within the last few years is how do you determine if an employer is large enough to be covered by the ADA. The definition of employer states that you have to have 15 or more employees for each working day for 20 weeks within the current or preceding year. The question would come up, how do you know if there is 15 employees? What if you have a business that has more than 15 employees, but only 12 working on a particular day? Maybe a restaurant that is slow on Mondays has 12 employees that day. Are they covered under the ADA? The Supreme Court answered that question in 1997 in a case called Walters v. Metropolitan Educational Enterprises. The Supreme Court said as long as the entity has at least 15 employees on its payroll, it doesn''t matter whether or not there are actually 15 people working on a particular day. So really looking at payroll records you should be able to resolve the issue of whether or not the entity is covered under Title I for employment discrimination. If you don''t have 15 employees, even under the payroll records, you should also consider looking at your state law. For instance, in Illinois, you only have to have one employee to be covered under our state law, the Illinois Human Rights Act. The other thing as far as being covered by the ADA I wanted to focus on was Title III. The first issue is a lot of times people think that the public accommodation also has to have a minimum number of employees. So saying, you know, if a place isn''t accessible to the public, say it has stairs getting into a grocery store, does that entity have to have 15 employees to be covered under Title III? That is clearly not required. Mom and Pop grocery store that has five employees would be liable under Title III or subject to suit even though they don''t have 15 employees, if there is an employment discrimination issue for that particular business, they would have to look at whether they have sufficient number of employees. But you don''t look at the number of employees for Title III, only Title I. Also under Title III, you have to show you are covered under one of the 12 categories considered public accommodations like places of lodging, service establishment and such. That really hasn''t been controversial or litigated except the issue of people filing insurance discrimination claims. There have been some courts that have said that Title III is only applicable in the insurance context to physical access to the insurance office. Other courts have said no, it actually goes to the actual policy and access to the policy for people with disabilities and potentially if they cap one disability differently than another. So you need to check what your court in your jurisdiction has ruled on for insurance, whether or not your particular issue is covered under Title III. The next thing I wanted to discuss was looking at differences between the ADA and local laws that cover disability discrimination. Sometimes the state law is more favorable than the ADA. And sometimes the ADA is more favorable. So looking into those issues before you file can be very important. For example, in 1999, as many of you know, the Supreme Court stated that if you used medication or an assistive device, that has to be factored in in determining whether you are substantially limited in a major life activity and therefore covered under the ADA. But many state laws do not have that requirement and do not require you to take into account whether or not somebody uses an assistive device or medication or any other mitigating measure. So if you are a person who uses a mitigating measure that makes it so you are not substantially limited, you may want to consider filing under state law as opposed to the ADA. Conversely, the ADA can sometimes be more favorable than state law. An example is perhaps you are looking for reasonable accommodation of reassignment to a vacant position. Well, that is a remedy that is contemplated under the ADA. However, many state disability laws do not have that as a possible reasonable accommodation. If that is the issue that is important to you, that you wanted to address in the workplace, you would want to go under the ADA and not under state law if that is not available there. Then sometimes the state law and the ADA both are not going to be helpful. Then you might have to pursue other options. For instance insurance in some context, as I mentioned before, are not an option under either federal law or state law. In Illinois we have under state law a decision that says that insurance is not a public accommodation. So to address insurance discrimination, people may need to address other options like legislative options, negotiation, public policy remedies, those types of things. The next thing I wanted to mention is the exhaustion of remedies because oftentimes you can''t go straight into court, you have to go through some sort of administrative process. That is called exhaustion of remedies. Under Title I for employment, that clearly is an area where you have to go through an administrative process before you can go to court. Under Title I you have to file with the EEOC prior to going to court. I''m going to explain it a little later about the actual administrative process with the EEOC. Let me focus on a couple of the other titles first. Under Title II and Title III, the general rule is you do not have to file a complaint with an administrative agency, you can go straight to court. But you don''t have to. You can also file with the administrative agency. You have a choice in that particular context. However, there are a couple of exceptions that you should be aware of. One is under Title II some people file when they are going under Title II, which is state and local government, if they are filing an employment discrimination claim against the state or local government employer, some courts have said that Title II does not cover employment and that your exclusive remedy under the ADA for employment even when you are suing a public entity, is under Title I. In that case you would have to go through the EEOC and exhaust your administrative remedies. That is not the law in all courts, but some courts have that. So you need to look at that. If you are in a jurisdiction that has come to the decision that you can''t file employment discrimination claims under Title II, and you want to go into federal court or you are already in federal court one option to consider is to file under Section 504 which courts recognize does not require an exhaustion of remedies before going into court. The other potential exception to going straight into court under Title III is at this point only a potential exception, but it is one we need to be aware of. There is a bill that has been introduced in Congress in the House of Representatives called the ADA Notification Act. The bill number is HR 914. It was introduced in March of this year by representative Mark Foley of Florida. Currently the bill has been referred to the House Judiciary Subcommittee on the Constitution. Essentially what that bill would require is that instead of being able to go straight into court under Title III and file your complaint, you would have to give the potential offending entity, the business that you believe is violating Title III, you would have to give them notice of your concern that they are violating Title III. They would then have 90 days to correct that problem. You would not be able to file suit until that 90-day period had expired and they had not remedied the problem that you had given them notice of. That is a bill that, as I said, is still in subcommittee posture, but both people from the business community as well as from the disability community are watching this bill closely because it would substantially change how you can bring litigation under Title III. Potentially any time you bring any kinds of legislation about an act other components of the act could be addressed and talked on to legislation. So that is one that I think people need to watch carefully, both from the business side as well as from the disability community perspective. I want to turn real briefly to the issue of statute of limitations. Under the ADA for Title I, the general rule is you have to file your claim for discrimination with the EEOC within 180 days, that is what the statute says. However, many states and local government entities have their own anti-discrimination laws. The EEOC has entered into what are called "work sharing agreements" with these agencies. The EEOC calls these agencies "fair employment practices agencies." The concept is that rather than duplicating efforts and having these state and local entities investigate a claim the EEOC is also investigating, they will share the responsibility for investigating. One entity will take the lead. In cases where there is a work share agreement, you have 300 days instead of 180 days to file your charge either with the state agency, the local agency or the EEOC. If you are not sure, you might want to contact your local EEOC office and find out if they have a work share agreement with an entity in your state to find out if you have 300 days or 180 days to file your charge with the EEOC. Under Title II and Title III, you have 180 days to file either with the Department of Justice or with the agency that addresses the particular area of law that you have raised. For instance, if you have a complaint about education, you could file that with the Department of Justice or you could file it with the Department of Education Office for Civil Rights. Unlike the EEOC where the time period, either 180 days or 300 days, is very strict, under Title II and Title III the time for filing can be extended beyond the 180 days by the federal agency investigating upon a showing of good cause. Now while there is that flexibility, I really caution people that they should try if at all possible to file within 180 days because whether they find good cause or not is obviously very subjective and discretionary. But in the event you are after 180 days and you still want to file you would want to show the agency why there is good cause you haven''t filed within the 180 days that is typically required. Another thing to remember is that unlike Title I where you don''t go into federal court until the EEOC gives you what is called a "right to sue letter," under Title II and Title III, the time for you to file in federal court does not toll or doesn''t stop just because you have filed within an administrative agency under Title II or III. So if the administrative agency, Department of Justice or the other agencies that are investigating are taking a while, you need to remember that you have a statute of limitations period to file in federal court that does not stop just because you filed with a federal agency. So the next question is what is the statute of limitations to file under Title II and Title III in federal court? Well there is not an exact answer to that question because there is no federal statute of limitations period for filing under either Title II or Title III. Courts have said when there is no expressed statute of limitations you are supposed to select the statute of limitations for a state cause of action that is most analogous to your claim. Oftentimes what courts have done is looked at the general statute of limitations for personal injury actions which in many states is two years. However you need to be able to research that in your particular jurisdiction and find out what courts have said as far as what would be the appropriate time period for a Title II or Title III claim in federal court. A good rule of thumb, though, is to make sure you don''t wait until the last minute and file as soon as possible. Doing research ahead of time I think is very, very important to know what your options are. I wanted to move real quickly to two more issues, one to review the EEOC administrative process in more detail and then talk about possible remedies under the different titles. First of all the EEOC administrative process. Once you file your charge, the EEOC will do an investigation and get information. If some reason they have not made a determination as to whether there is evidence of discrimination within 180 days of you filing with them, this 180 days is different than the other one, this is after you filed. If they haven''t made a decision within 180 days you can ask for a right to sue letter and the EEOC will issue that to you. Then you have 90 days to file in federal court. However, be aware that once you get that right to sue letter the EEOC will most likely close their investigation. Again you only have 90 days to file in federal court. If you don''t file within that period of time, you will most likely lose your rights under that particular Title I claim. If the EEOC does complete its investigation and does not find substantial evidence of discrimination, again you would get a right to sue letter at that point and have 90 days to file suit. Even if you aren''t able to obtain an attorney to file suit in federal court, you would still want to go ahead and file something with the court. Many courts have pro se complaints you can file on your own. You can ask for the judge to appoint an attorney. While you are not obligated to receive an attorney, it is within the judge''s discretion to appoint an attorney in particular cases. It may be a situation where an attorney can be appointed for you, it is discretionary with the judge. If the EEOC does find substantial evidence, the EEOC will try to resolve the problem of the charge you have filed through a process called "conciliation" where they work with both sides trying to develop some sort of resolution. Both parties have to consent to conciliation. If conciliation fails the EEOC can choose to file suit on its own or if they decide not to file suit they will issue the charging party the right to sue letter and once again you have 90 days to file that claim in federal court. The EEOC also has a mediation process they do typically at the beginning when you file your charge. They select what cases they think are appropriate for mediation. Participation in the mediation is voluntarily so if either party declines, the claim is treated like any other charge. There is no cost for mediation to the parties. The EEOC typically uses in-house and external mediators for their mediation. Peter will be talking about the DOJ mediation process in a few moments. But the people who do the mediation are separate from those who do investigation at the EEOC. If the mediation fails, the investigators would not have information about things that were disclosed during the mediation. Let us finally turn to the issue of remedies under the different titles. Under Title I of the ADA, again employment, you have a variety of remedies, both monetary and actions that the Court can impose upon the other side, including hiring the person who was not hired because of their disability, reinstating the person who was fired because of their disability, giving a promotion to someone who was denied promotion because of disability. You can also get back pay for wages lost and front pay for wages you would be able to earn in the future. You can also get the Court to provide a reasonable accommodation that was wrongfully denied. You can recover your attorney''s fees, expert witness fees and court costs. You can also get what are called compensatory and punitive damages. Compensatory damages would be for actual monetary losses or future monetary losses, losses for mental anguish, pain and suffering inconveniences. Punitive damages would be awarded if the employer had acted with malice or reckless indifference, some sort of bad act towards the person with a disability or by their employee. The total amount of compensatory and punitive damages is limited by the Civil Rights Act of 1991. It depends on the size of the employer. So if you have an employer between 15 and 100 employees, that amount would be capped at $50,000. If it is between 101 and 200, it would be capped at $100,000. If over 200 but less than 500, it would be $200,000. If in excess of 500 employees, the maximum amount of compensatory and punitive damages would be $300,000. One note is you cannot receive punitive damages under Title II. For Title III damages, it is important to remember you are only entitled to injunctive relief, some sort of change the business has to do, for instance putting a ramp in and making a supermarket accessible that has stairs currently, or providing an interpreter when a doctor has not provided a interpreter. That would be injunctive relief provided under Title III. You are not entitled to any monetary relief under Title III. Although you can try sometimes to add a state claim in your federal lawsuit that does provide for monetary damages. Now you can always settle a case for monetary relief, but a court will not impose monetary damages under Title III. Even though you don''t get monetary damages, you still can recover attorney''s fees and costs under Title III. If your claim is money damages under Title III you may want to look at your state and local laws because they may provide for that as an option instead of the ADA. One final point the Department of Justice can also bring suit under Title III. They can get civil penalties awarded against the public accommodation. $50,000 for the first violation and $100,000 for any subsequent violation at the discretion of the judge. The good faith of the public accommodation is a factor the judge would look at. The Department of Justice suits can also request compensatory damages for the individual that claims the discrimination. Even though an individual suing on their own behalf can''t get compensatory damages, potentially the Department of Justice could get that for the person that was the victim of discrimination. Jennifer I will stop for now and be available for questions after Peter''s presentation.
Peter Maida coordinates the mediation program with the Key Bridge Foundation that has partnership with the Department of Justice. Peter, can you tell us a little bit about what is mediation, how exactly do you get issues brought before you that have requested mediation? What is the time frame?
Thank you, Jennifer. I just want to say that I''m delighted to be here. I want to say a few things about mediation in general. I hope to cover those issue, if I don''t-if you just remind me. Mediation, as everyone knows, is a rather informal way of resolving a disagreement that people may be having. Generally what the Department of Justice does is when someone has a complaint or has a writes to them either formally filing a complaint or just simply writing a letter, what the Department of Justice will do is ask them if they have any interest in mediating. If the individual has some interest in mediating, then the Department of Justice will call us and ask if we have a mediator in a particular location. The program that we have has approximately 500 mediators spread throughout the country. As I was beginning to say, mediation is an informal way of having an impartial third party meet with the individuals when it is possible to work out some resolution. It is important to remember in this program that the Department of Justice underwrites that the mediation discussions don''t involve whether one complies with the ADA or doesn''t comply with the ADA, but rather how is an individual going to comply with the ADA. Before the call began, I was asked if I was going to talk about mediation in general. I think I''m really not, but I would want people to understand that this is a very important issue and there is some disagreement among mediators as to the role of the overlay of law. In this particular program that is under written by the Department of Justice, individuals can''t go into mediation with the idea that the law will not be implemented. So when a respondent, for example, a person against or agency against whom a complaint has been filed, when the respondent either refuses to go into mediation or refuses to comply with the law, we are not enforcing the law, but what we are saying is that the grounds rules are set. The parameters are set. And the parties have to operate within those parameters. Just as in any area of mediation. For example, in family mediation, a mediator would not participate in a mediation where the parties agreed that what they would not do is consider pensions as marital property. That would be the mediator participating in something that is unethical for the mediator to do that is encouraging individuals and supporting them in not implementing the law. So in this particular program, the Department of Justice is interested in implementation. So as I said, to get back to where I was, when the individual contacts the Department of Justice, they are given the opportunity to participate in the mediation program. They are generally sent a packet of materials that explain mediation. They are given our phone number and they can call us up before they sign something else that they receive, which is a release letter, that yes, they would be interested in going to mediation and they would like to have the records released to the entity against which they file the complaint. If an individual or even agency, sometimes have complaints brought by DBTACs and ILCs, if that party is interested in going ahead, they sign the release form, it gets back to the Department of Justice, the Department of Justice then send a letter to the respondent and indicates a complaint has been filed alleging a violation of the ADA and that this individual has chosen to go to mediation. They will they get our number to call and we also then, if we don''t hear from them, will call them. So after that particular process of filing a complaint, agreeing to mediation, assigning the case to the Key Bridge Foundation, then once having received the case we call both parties up. Sometimes there are more than two parties, but we call the parties and discuss with them mediation. Answer any questions that they may have. And particularly deal with the idea of what expectations people have about mediation. Although I''ve been a mediator for about 23 years, I don''t think mediation is useful in all circumstances. I think people need to know what to expect out of mediation before they would select mediation as an alternative. I will talk about the expectations. Based on the questions that we are asked, for example people will ask how much will it cost? The Department of Justice totally underwrites this particular program, which means that parties don''t have any cost associated with agreeing to participate in mediation. Another question often has to do with well, what if the mediation doesn''t work? Do I give up my rights? Individuals do not give up their rights when it comes to agreeing to participate in mediation. If the mediation works, fine. If it doesn''t work, the complaint goes back to the Department of Justice. Then this leads me to the third question, well, what does the Department of Justice do with this? It really depends. Although mediations, what goes on in the mediation process is confidential. We don''t share that with the Department of Justice nor do they want to know what goes on. There is a class of information that we actually have to share and the parties are informed about this. For the Department of Justice to pursue an investigation they really do need to know why didn''t the mediation work? Not necessarily that the details of that, but actually tell me what the parties, what role the parties played in the mediation not working. Some of the possibilities are these: One the respondent refused to mediate after they agreed to meet for mediation. In an instance like that, the Department of Justice will investigate. We are told and we can share this information, that they are up to investigating 100 % of the category of cases that are turned back. Another cause for investigation would be if the individual respondent would agree to mediate, but if they refused to comply with the law. If there is a refusal to implement the ADA, the Department of Justice will investigate. Those I think are our two major categories of reasons for why the Department of Justice would investigate. On the other side, Barry spoke about the remedies available. The Department of Justice understands the law, obviously, and is aware that if a complainant were to go to mediation and were to demands $300,000 from the other party, and the other party were to refuse, the Department of Justice will not keep that case open. The Department of Justice, I must beforehand say I''m not a spokesperson for the Department of Justice, but this is the way the program operates. The Department of Justice is interested in the implementation of the law. If there is some disagreement about what is allowable under the law, that will be cleared up. If a complaining party wants something that is not available as a remedy under Title III, the Department of Justice will close that case. Now this leads us to a very interesting property of mediations. That is in mediation you can ask for anything you want as a complainant. You can simply say, well, I would like to be paid $10,000 plus I want injunctive relief. Remember the issue with the Department of Justice is there is implementation of the ADA. So someone may ask and we have had a number of complainants who have a reason for asking for monetary payment, either because there is a medical facility involved and there were expenses incurred, or because the other entity thought yes, indeed the discussion supplied by the complainant was a valid one and they would be willing to pay a certain amount of money. We had one case where the respondent agreed to pay the complainant $90,000 when the case goes back to the Department of Justice like this, we don''t share the agreements with the Department of Justice at all, but we have to write case summaries. When we write a case summary for the Department of Justice that said the respondent agreed to pay the complainant $90,000 or $10,000 or $20,000, the Department of Justice is dumbfounded because this probably would not happen if the case were investigated by the Department of Justice. It would be under unusual circumstancing that this sort of thing would happen. So mediation provides a real opportunity for individuals. But back to expectations, again. One of the downsides to mediation that I think some complainants experience is that they have to participate with and communicate with the individuals against whom they have filed the complaints. For some individuals there is a bit of unequity, unfairness to this, why should I be expected to do anything, I didn''t break the law. Mediation is based on collaborative work. If a complainant doesn''t think that that is going to happen or is really uncomfortable with it, I wouldn''t advise them going into mediation. There are other alternatives and Barry spoke about other alternatives. One would have to look into some of the other alternatives, because this is an absolute essential piece of the mediation. Even if you are not in the same room with the individual, there has to be some element of communication going on. Also, to understand the role of the mediator is very important. The mediators in this particular program have received a training. I would admit to anyone it is a minimal training, it is a day training on the lap-that is relevance is for mediation. But our mediators have to walk a very fine line. They must be impartial. Sometimes that impartiality strikes complainants the wrong way and also respondents. There is some thought that as a mediator you need to tell the other party what to do. When that expectation is prominent, the mediation is not successful because mediators are very much aware that is not their role. They recognize when the law is not being implemented, they will do everything they can to get people informed. This is one of the reasons we ask individuals if they are coming to mediation that they bring people who understand the law so that at least they have a good chance of knowing what is reasonable, what is not reasonable, what the mediator can and cannot do and so forth. I think those expectations as far as what goes on in mediation are important. Something that I would like to add, although it is really not an expectation, is that once we assign a case to a mediator and most of our cases are done face to face, we have as I say, 580 mediators throughout the country. When a person files a complaint we check to see if we have a mediator there. In many instances we have a mediator there or close. We can actually spend travel money for the mediator to get to where the parties are located. We, however, don''t end our involvement. We actually as a organization are a party to the mediation. I say that in a way we are not in the mediation but we are aware of what is going on in the mediation. We provide technical assistance to the mediators. Mediators call us before, during and after mediations to ask us questions. We do not allow an agreement to get by us where there is non-implementation of the law. I gave the example earlier in a conversation of where, and you have this happening and I won''t mention the state where this happens, but it happens in quite a few states, where a person, owner of a restaurant, a complaint has been filed, they meet in mediation not necessarily in our program but let us say they do. The restaurant owner will indicate well, if it is going to cost me $5,000 to put a ramp in, why don''t I give you the $5,000 and why don''t you just not come back again. Here is $5,000. If something like that were to reach our office, and all of the agreements come through us, we would simply turn it back to the mediator and say you have to try again. Individuals need to be informed that you can''t buy your way out of implementation of the ADA. The ADA is about implementing implementing certain changes in the place of business and so forth. Our supervising and monitoring cases assures that when a case has been successfully mediated there is implementation of the law. Now, again bringing up another issue, and that is well, what if a person files a complaint against an entity and that entity is going to deal with that particular issue? But what if the entity is in violation of other aspects? Well, the parties can bring this up. If the parties don''t bring it up within the mediation, we are focusing solely on the complaint. This is what the Department of Justice wants to have resolved. This doesn''t mean that an individual can''t go back or that someone else might not go back into business and say look, you don''t have signage. We find that individuals who file complaints, many of these complaints are specific to their disability. So one person with a disability will not be attuned to exactly other areas in which an entity may not be in compliance. As an organization it is not our role to do an investigation, to go to that place and see where are they not in compliance. The very successful mediations are the mediations in which individuals decide they are going to do everything and that does happen.
Peter could we open it up for questions?
Have I gone too long?
No. I think what happens you bring a couple legal minds together to answer some questions and now we have got even more questions.
Okay.
Peter and Barry, not that I would ever put the two of you on the spot, but let us get to the issue of when time is of the essence, that becomes such a critical component to any type of resolution. Let us say, for example, I am a parent of a child with a disability and I''m trying to register them for an after school program that is going to happen tomorrow or next week-within a very short period of time. And that child needs an accommodation whether or not it is a sign language interpreter, or maybe transportation that is accessible. And the entity is telling me no, we are not going to provide that. When time is of the essence, what would you recommend in that type of situation? Definitely under the proposed bill in the House again with the 90 days notification requirement, it would in essence mute any type of resolution right there. I would have to wait 90 days and then my kid misses the field trip or the program. What could I look for in that type of situation as far as remedy?
I will start and if Peter has additional comments. I think you certainly highlighted one of the concerns that the disability community has about the ADA Notification Act, is that it would certainly cause a delay and not give an entity an incentive to address disability issues until they received that notice. But at least the way the law currently is, you do have the option of going straight into court. And under the law you can file a motion for temporary restraining order which not only means keeping an entity from doing something or making them do something proactive, then a preliminary injunction which could allow something to be done like giving a sign language interpreter or providing extra time to somebody who has an exam that they are taking for the bar exam or something like that. We have done a case where we not only filed a complaint but we also filed a motion for a temporary restraining order for that person to get the accommodation right away. That is one of the options you have when you go into court.
Is that something that I, Mrs. Joe Smith can do or do I need an attorney to do that for me?
Well, I think the better practice is to have an attorney if at all possible. There are certain pleading requirements you have to do when you file these types of motions for injunctions. It is not an easy thing for somebody to do without legal training. There are again people who can assist sometimes at certain courts but in general that is a pretty complicated legal maneuver that an attorney would be the best person to assist with.
Thanks. Our first question?
Mike from the California Department of Rehabilitation. Good morning. This is probably for Barry: You have mentioned work sharing agreements for state level fair employment practices agencies, for example in California here I know that it would be fair employment and housing agency. That is to do with employment issues. But what about physical access issues? For example no ramp, no parking, etc. Are their work sharing type agreements for non-employment issues?
I''m not aware of any off the top of my head. Again there may be people who are aware of this, maybe Peter knows this. My understanding is these work share agreements are between the EEOC which would be limited to employment. Perhaps the Department of Justice has a work share type of arrangement that I''m not aware of, but it is not one I have heard of. You would need to go straight to state law or federal agency or federal court. I don''t think there is a collaborative process going on currently.
Thank you.
Thanks for your question. Our next question.
Hi, this is Joanne. You mentioned that the Department of Justice can bring suit under Title III and they could get monetary damages. How would that happen? Is that at the discretion of the Department of Justice or does the person who filed have to ask for that?
It really depends on the situation. The DOJ when they file are filing on behalf of the government, they have a number of remedies they can try to seek. One listed in the ADA and supporting regulations is to get compensatory damages for victims of discrimination. And that really would depend on the particular situation. What individuals had actually been individually damaged in the case. Sometimes the Department of Justice will actually bring litigation proactively without actually having a individual complaining but just be aware of maybe an architectural situation that was built that wasn''t in compliance. So it would really depends on the posture on how this case was presented to the Department of Justice and their view on what would be an appropriate remedy. A person can always intervene, when the Department of Justice brings a case or vice versa a person can file a suit and then the Department of Justice can intervene. In those context they each have their own remedies as laid out under the law.
Even if a person is filing themselves, they can''t ask for monetary damages, they might want to mention it in the complaint so the DOJ could look at it?
I don''t think they could recover under their own complaint. The DOJ could request it if they file or intervene in the case. But you as a individual are not entitled to direct relief based on your own complain-irect monetary relief based on your own complaint.
I have an on line question here. This is for Peter. Peter, can you give us some kind of time frame of once a person files a complaint with DOJ and requests mediation, how long does it take for that to get assigned and for them to actually start meeting with the mediator?
Yes. I''m afraid we can''t move as quickly as I think one would have the ability to do in court. Although most people think the Court is slow. Someone files a complaint and within a week the Department of Justice by and large today, I don''t mean two years ago or even a year ago, but today the Department of Justice will get back with them. When they send their release letter in, it takes about a week and a half to two weeks for the Department of Justice to contact the respondent. At that particular point we are on the phone with them. That is recent development. At the max, a month and a half. Probably average might be a month. But it is very fast. With the case of the woman with the child, we have had that case. Many times. And it is after the parties have decided to take the child out of the program that they are filing the complaint. I don''t think we can act that quickly in a complaint like that.
Thanks. Our next question?
Kelly of Woodrow Wilson Rehabilitation. This question is for Peter. Peter, what is the background of the mediators, counselors, lawyers or what?
I''m glad you asked that. That was one of the topics that I didn''t cover. These mediators in our particular roster have had at least, this is in 1994 at least two years of experience. They are all over the board as far as their profession. Some are attorneys, some are not attorneys. Some are counselors. Some are accountants and so forth. They have worked in the area by and large of civil rights. Civil rights mediations are not unusual for them. They have worked in mediations where attorneys represent clients. We think they are a very good collection of individuals who, I think, do very well in these kinds of complaints. Not all mediators can work in this substantive area of practice.
Peter, mediators have a professional criteria; isn''t that right?
You mean guidelines?
Right. For example, if I just took a three hour seminar on conflict resolution, I couldn''t hang a sign outside my door that says "mediator."
Even if you didn''t take that you could hang a sign out saying you were a mediator. The standard customary standard has been a 40-hour mediation training. Then continuing education. No state regulates this except in state courts. Where they want to refer cases to individuals, they say you must have this, you must have this. But individuals can mediate simply by calling them mediators. That is changing, but at this point it is so.
Well I have another on line question I think this is to put Barry on the spot again. This is from a person that is having problems with a bar association and working with attorneys that are refusing to provide sign language interpreters. What would you recommend in that type of situation?
Well I think what is really important, this goes to your earlier question, too, Jennifer, is to try to resolve it before you do file. Oftentimes what we do is write a letter and especially in situations where the ADA is real clear on that you do have to provide auxiliary aids and services and quote to people what the law is. Make sure they are aware of their obligations under the ADA, oftentimes the situation can be resolved that way. People with disabilities and family members can certainly write those letters on their own. You asked before if you needed an attorney. Certainly those cases don''t require an attorney. Sometimes having an attorney write the letter or cc-ing the attorney can be helpful as well. Again, if you can''t resolve that type of situation, expeditiously, and you have a bar exam coming up I think the primary remedy is to go into court and seek some sort of injunction for the court to make an order prior to that actually happening. I mean the most important thing in these types of situations is to act as quickly as possible So if you realize there is going to be a problem, typically that problem becomes apparent when you register. Or when you initially are seeking to take an examination. Let them know of your accommodation needs. And as much lead time as you can give to this yourself and the Court, the better.
Great. Thanks Barry. I''m going to turn it back to each of you in a second if you have a brief closing comment for us. I think I heard some key issues come up to make sure that people are aware of. One who their protection advocacy organization is in their state. Two, even more importantly, what their state law is or their state equivalent ADA is. And three, the other advocacy organizations within that state to help connect to those resources in the event that they are either looking for assistance, filing a private right of action or even identifying the mediation program with a Key Bridge Foundation and the Department of Justice. So with that I''m going to turn it back to each of you if you have a brief closing comment and I will ask you to Barry and Peter when we hang up, for you not to hang up. So Barry, do you want to go first?
Sure. I think it is important for people to really look at what options they have before they move forward once they can''t resolve it on their own and find out which would be the best forum for this them, whether it be state agency or working with the EEOC or the Department of Justice or going into court. The statute of limitations are particularly the most important thing to look at so you don''t lose your rights. That obviously is a loss that can''t be recovered. And also to realize that when you do file any kind of litigation or even an administration agency you are putting your disability at issue. And potentially providing information about your disability you may not want to do. You have to make a decision whether that is something you are comfortable on doing. Whether there are provisions on confidentiality and the extent of discovery, it is at issue because you are placing at issue by saying you are being discriminated against. Thanks to Jennifer, I appreciate being part of the conversation.
Thanks Barry. Peter, last closing comments?
Yes. I think people should think carefully about choosing mediation. We have a great deal of confidence in it here. We have seen it work well. When it is done well it really does work. Anyone who is listening to this, we give out free advice about mediation. If you want to call us at 800-346-7643 please do. We will discuss the mediation alternative with you so you can make a decision about your clients as to whether you would advise that or not. I reiterate thanking you very much. It has been a real pleasure being here.
Thanks so much Barry and Peter for joining us today. You have been a wealth of information. I''m sure there are more questions out there. I would advise people if they do have more questions to contact their regional Disability and Business Technical Assistance Center at 800-949-4232. Also look at the Great Lakes web site for the resources that we have posted for you on the session that web address is www.adagreatlakes.org. Just a teaser for the upcoming sessions. Again a special reminder of our session on May 22 with Sharon Rennert from EEOC, Sharon is going to be talking about the recent Supreme Court decision from the Garrett case. And she will also be talking about some of the upcoming ADA cases that the Supreme Court has recently agreed to hear for the next term. So that should be a pretty interesting session May 22nd. On May 15th we have Mike Paciello from WebAble. Mike was the creator of the Web Accessibility Initiative. He has written a book and he is going to talk about accessibility and web sites. So that should be a very informational presentation. And on June 19 back by popular demand, we have David Framm from the National Employment Law Institute. David joined us about a year ago talking about the definition of disability. He is going to be talking this time about documentation. What can an employer ask for as far as documentation of your disability? On July 17 we are excited to have back with us for the third year John Wodatch from the Department of Justice. He is going to give us an ADA status report, talk about some of the Supreme Court decisions. Certainly the Casey Martin decision that we are waiting for. And some of the other priorities that DOJ has been working on over the last year. So I would encourage you all to check the Great Lakes web site at www.adagreatlakes.org for the upcoming sessions. If you have additional questions contact your regional DBTAC at 800-949-4232. Thanks for joining us today. We hope to have you back next month.