Ladies and gentlemen, thank you for standing by and welcome to the teleconference entitled "ADA Update: 17 Years Later." At this time all participants will be in a listen-only mode and later we will conduct a question and answer section. At that time, if you want to ask a question you may do so by pressing the 1 on your touch tone phone. As a reminder, this conference is being recorded today, July 17, 2007. I would now like to turn over the conference to Peter Berg from the Great Lakes ADA Center.
Thank you very much and welcome everyone to the ADA Audio Conference Series, a collaboration of the 10 regional Disability Business Technical Assistance Centers or DBTACs, also known as your regional ADA centers. The ADA centers may be contacted by calling 800-949-4232. You can get information about upcoming audio conference topics by visiting the ADA audio home page at www.ADA-audio.org. That is also where you find archives of past sessions and where you will find at a point in the near future, an audio recording and transcript of today''s session. Today''s session is one of the most popular sessions, annual sessions that we have. It is the ADA update, 17 years later. As usual we are joined by representatives of the U.S. Department of Justice and U.S. Equal Employment Opportunity Commission. Our first speaker is familiar to those of you who have participated in the audio conference series in the past. John Wodatch has over 30 years experience working with the federal government specializing on disability issues. He is a civil rights attorney and Chief of the Disability Rights Section within the Department of Justice''s Civil Rights Division. John is responsible for enforcement of Titles I, II, and III of the ADA and also is a key in the development of regulations and policy regarding the Americans with Disabilities Act, as well as the Rehabilitation Act. Joining us from the Equal Employment Opportunity Commission is Jeanne Goldberg. She is a senior attorney advisor in the Office of Legal Counsel. She assists the EEOC by interpreting and providing guidance on the laws that the EEOC enforces. She also provides technical assistance and training to stakeholders in the laws that the EEOC enforces. We will hear from first John who will provide us with an update regarding the Department of Justices enforcement efforts and other news that''s coming out of the Disability Rights Section. Then we will hear from Jeanne an update on EEOC''s initiatives enforcing the ADA and other guidance and what news is coming out of the EEOC. Following that we will have an opportunity for you participants to ask questions of both of our speakers. Prior to starting today, we had a coin flip and John won the coin flip. So we will start with John. I will turn it over to him.
Thank you very much Peter and good afternoon everyone. I''m delighted today be with you all once again. And to begin what I hope for all of you is a series of observances celebrating the anniversary with Americans with Disabilities Act. I thought I would take a couple of minutes to go over some of the activities that we''ve been involved with at the Department of Justice, give you a flavor of what we''ve been doing. I thought I''d do it by talking about a couple of issues. I thought I''d start with talking about barriers to access. A couple of events that we''ve had. Recently, in May, some of us went out to Las Vegas and held a press conference to announce two settlement agreements, one with the Mandalay Corporation and one with Cirque de Mississippi that resolved investigations that we had ongoing into accessibility issues at the Mandalay Bay Resort in Las Vegas and the Gold Strike Casino Resort in Tunica, Mississippi. They are both owned by MGM Mirage and they were issues involving new construction. These were buildings that were built after the ADA went into effect. Our involvement began from a complaint from a guest who uses a wheelchair, who fell in a shower of a designated accessible guest room at the Gold Strike because the shower controls weren''t correctly configured. So that started us off. I think it''s interesting to look at the scope of these agreements. The scope of the hotels. It is striking. The Gold Strike is a casino, includes a 31 story hotel with over 1100 guest rooms and suites. It has six restaurants, meeting and convention center, a theatre, and a series of concession shops. The Mandalay Bay operation contains a casino and three hotels. The Mandalay Bay hotel which has over 3200 rooms, one called the hotel which has over 1100 rooms and a Four Seasons hotel which has 424 guest rooms and suites. In addition this complex has two convention centers, an event center that can seat up to 12,000 people. More than 30 bars, restaurants, and snack shops. Two theatres, an aquarium, a swimming pool complex that included a sand beach and a wave pool, two spas, a wedding chapel and approximately 30 specialty shops. The scope of this investigation was really quite extraordinary. We entered into some settlement agreements that were fairly comprehensive. Basically, we were ensuring equal access with disabilities who wanted to participate in the entertainment and activities at these facilities. Some of the changes including dispersing the accessible guestrooms throughout all the classes of sleeping accommodations and making the rooms fully accessible. Ensuring that the guest rooms that were there for people who are Deaf or Hard of Hearing had visual alarms that were attached to the building''s emergency alarm system. Widening doorways in guest rooms, not only accessible rooms but the other rooms, to 32-inches of clear space. Ensuring that people with disabilities could make reservations for accessible rooms over the internet. Adding accessible seats and assistive listening devices to theatres and assembly areas, providing elevator access to all levels of the facilities and the restaurants in the facilities, adding accessible tables and booths to the restaurants, lowering counters and in some cases providing for equivalent facilitation at counters. Adding accessible features to locker rooms and dressing rooms and adding accessible parking spaces and fixing the signage for accessible parking spaces. In addition the company has agreed to train their employees on ADA compliance. We have a series of monitoring agreements they are going to report to us, and they paid $55,000 in civil penalties to the United States. At the other end, a smaller hotel, I will stick with hotels for the moment, in Charleston, South Carolina, a Hampton Inn. Again, as is often the case in these, the investigation was triggered by a complaint filed by an individual who alleged that during a stay at the hotel his mother was unable to use the shower due to lack of maneuvering space and lack of an accessible shower or tub. We didn''t, again it''s an agreement, by the way these agreements can be found on our website if you''re interested in seeing them in more detail and our website is ADA.gov. The hotel agreed to modify four existing designated accessible rooms and four additional rooms so that each one was accessible for people with disabilities. They agreed to modify toilet rooms in the hotel lobby to make them fully accessible. Ensure that there were accessible routes to and around the hotel, provide accessible parking and accessibility equipment such as TTYs, closed-caption TVs and visual notification devices for guests who are Deaf or Hard of Hearing. Now when we are dealing with barriers, it is not just hotels, another agreement you may have read about was done by our U.S. Attorney''s Office in Iowa, College Square Mall in Cedar Falls, Iowa, again the agreement can be found on our website. In this case it was an existing facility. It was under the obligation to remove barriers that is readily achievable to do so. We had done an investigation and found over 200 specific instances of problems in terms of accessibility. They included everything from the public common areas, tenant areas, parking spaces, accessible dressing rooms, public restrooms that had problems. The mall agreed to fix these. In fact during the course of our negotiations have fixed a large number of them. The agreement ends in a short period of time, it will be over by November of this year. They will have made all of the changes and they will pay a civil penalty of $40,000 in that case. Let me shift gears a little and move to another issue, which is effective communication. I am going to try and just hit the highlights in the major areas. We continue to get a lot of complaints from people who are Deaf or Hard of Hearing about the inability to participate in a variety of public functions because of the lack of sign language interpreters. We reached an agreement with a Fairfax Hospital that is in Washington, D.C. and Fairfax, Virginia. We got a complaint that the hospital didn''t respond appropriately to an incident involving a daughter of a woman who is Deaf. It''s an interesting case for us because it deals with the person who was getting medical care is not Deaf but her mother was with her and is Deaf. So this is about the obligation and ability of the hospital to communicate with the caretaker or the person accompanying the person to the hospital. The mother accompanied her daughter to the hospital''s emergency room. Her daughter was eight months pregnant and they had been involved in an accident, although the daughter expressly requested a sign language interpreter for her mother, they failed to provide one for five and a half hours after the initial request. Really forcing the daughter to act as an interpreter for her mother at a time when she was at a very difficult situation and received some quite distressing news about her pregnancy. The agreement is like a lot of our other hospital ones. It is very comprehensive. The hospital will agree to provide auxiliary aids to family members and companions as well as to patients who are Deaf when those auxiliary aids are needed to have effective communication, including the provision of Sign Language interpreters. To assess the needs of individuals with speech or hearing needs upon arrival at the hospital or at the time of an appointment is made to provide qualified interpreters within specific time limits. They also agreed to pay, in this case the patient and her mother a total of $55,000 in compensatory damages. We have other hospital agreements. We have one, I will just mention, I won''t go through it, we have one at Medicrest Hospital in New Orleans. That is also on our website if you want to take a look at one from that part of the country. They tend to be very similar. If you look at a number of these, they fall into patterns and they are sort of the provisions that we expect hospitals to follow. If you have been following us recently, last week we announced an agreement, a little bit different, with the Utah College of Massage Therapy. This is a for profit company that operates massage training companies in Utah, Nevada, Arizona and Colorado. We received a complaint from a Deaf student alleging that they had failed to provide a Sign Language interpreter for the classes. Although they eventually provided this person an interpreter, they made clear in correspondence he should not have been admitted in to the school because it was disability and the cost was unreasonable. Our investigation showed they had a policy over the years to deny Sign Language interpreters to qualified students. And the Utah college has agreed to adopt a new effective communication policy, post notices of the policy in its application materials and on its website, provide qualified interpreters when necessary and provide mandatory training to the employees on the ADA and on their policy. One other agreement in this area with the sheriff of St. Lucies County, Florida. This is dealing with qualified Sign Language interpreter. I mention this one to show that this is not just colleges and not just hospitals, but the whole range of public services covered by the ADA. Here we had a complaint where the sheriff''s office failed to provide an interpreter for an inmate who was Deaf for his 280-day imprisonment at the county jail. We had another complaint that the sheriff''s office used a deputy sheriff to interpret and that person was not qualified to be an interpreter. Here we had an agreement in which they agreed to establish procedures by which they will determine when they will need to provide sign language interpreters and have in place the process to provide them. Let me shift gears to another area that we continue to get a lot of complaints about and that is the refusal to admit persons with disabilities who use service animals, we are continuing to get a lot of complaints that hotels and restaurants and other places deny admission. Clearly these are violations of the ADA. There are a couple agreements on our website. One that I mention is Log Cabin restaurant in Tennessee. Here we had a complainant who had a mobility disability, alleged she was asked to leave when she attempted to purchase the meal because the owners objected the presence of the service animal. Again, clearly a violation. Again, they have signed an agreement that they will post a notice stating that they do not discriminate on the basis of disability and that service animals are welcome. They agreed to develop a policy on how they will treat service animals and to train current and future employees. One of the things that we find in these cases that is most important is to have a policy in place that''s written that''s really fairly simple and straightforward and that employees, particularly new employees are trained in the policy because there''ve a lot of staff turnover in these kinds of public accommodations. The other agreement I''d like to mention is a hotel, the Fort Wayne Country Inns and Suites in Indiana. Again it resolved a complaint by a person with a disability who was told she couldn''t stay at the hotel with an animal. After the woman repeatedly explained that the dog was a service animal, the clerk finally said she could stay, but she needed to use the back door so that other guests would not be disturbed by the animal. We investigated and this resulted in an agreement by the hotel, not to discriminate, to train future, current and future employees. I don''t want to take up too much time. I have a few minutes left. Let me just sort of update you. I have talked to you in the past about project Civic Access, our initiative to work with local governments to do comprehensive agreements to make their policies accessible. There have been, we now have 153 agreements in 143 communities. The most recent ones are in Louisiana, Kentucky, and West Virginia. They are on our website. What I wanted to mention to you today was, not those agreements so much because we have talked about those, but what we are calling our project Civic Access ADA Best Practices Tool Kit. If you follow our website, you will have noted that we have become, we have started issuing installments of what we view as a tool kit so that people with disabilities and local governments themselves can do the kind of investigation and come up with the kind of changes that we do under project Civic Access. We put installments of this tool kit out in December and February and May. There are six chapters up there so far. They are on ADA basics, ADA coordinator notice and grievance procedure, general effective communication requirements, 911 and emergency communications, website access and curb ramps and pedestrian crossings. If you look at those dates, you may realize that we''re due for another installment. While I can''t guarantee that that will be one in the next week or so, but we certainly hope the next installment will be on emergency preparedness programs. There may be some other announcements that we do next week involving the anniversary of the ADA. If we do them, they would be on emergency preparedness issues, we have been spending a lot of time on that. The idea, if you are unfamiliar with the toolkit, the idea is to create a technical assistance guide for local governments to enable them to have the materials necessary to do their own review of their facilities. So it will include policy statements, checklists, background materials, we hope that when we are done with this over the next year period after that, we will engage in a nation-wide training program on that, but right now, our focus is on getting a chapter or two out every couple months. We will continue to adhere to that strategy. I would just say keep an eye out on our website for that information. I''m usually asked about our notice of proposed rule making and what''s happening with our action on taking the new ADAAG, new ADA accessibility guidelines the Access Board put out in 2004. You remember a few years ago, 2004 we issued an advance notice of proposed rule making. We received over 900 comments on that. We have finished analyzing those comments and are in the final stages of developing a rule. Those of you who understand the federal rule making process know that it''s a very convoluted process. We submit a rule to OMB and they have 90 days to review the law before we can put it out for public comment. We are at the stage now just about to put it out OMB for their review. I would assume that by the beginning of next year we would hope to have out on the street a notice of proposed rule making that will deal with a wide range of ADA issues, not just adopting the ADA Accessibility Guidelines and making them standards and applying them, but also dealing with some of the ADA issues that have come across our desk over the past 17 years and trying to deal with those. Once they are out, we encourage all of you to take a long, hard look at them, provide written comments, you will be able to do it over the web. We will also hold several public hearings around the country on them when they are out there. Two things I want to conclude with. One, since I talked to you last, we have put out, last October, the Attorney General put out a five year report which if you are interested, talks about really the major activities of the division under the ADA over the past five years, it is available on our website, or you can call our ADA information line to get a copy of that document if you are so interested. I''d also like to just put in a pitch for the ADA.gov. If you are looking for information on what we''ve been doing or copies of consent to create lawsuits or agreements, copies of our technical assistance materials and ways to get copies of materials, it is the easiest and best way to keep informed with what we are doing. I also, as I was mentioning the Log Cabin Restaurant in Tennessee. I would like to give my regards to an ADA advocate who is out there and healing from recent surgery and I''d like to give my regards to Trish Farmer. Many of you know her. Send her my best wishes. I hope all of yours as well. With that I will turn this over to Jeanne.
Thanks John. I''m delighted to be participating today and excited to talk about the developments in EEOC''s ADA and outreach enforcement efforts over the past year. Since there''s a lot to discuss and limited time, I''m going to dive right in. First off, you all have hopefully received the EEOC handout for this conference call that lists all of our disability related publications. There are now more than 30 available on our website, EEOC.gov, along with the hyperlinks to access the documents directly. The newest publication on the list is in a section entitled "The ADA and Particular Types of Work" and that document is called "Questions and Answers, Health Care Workers and the ADA." We are particularly excited about the potential usefulness of this publication because health care is the largest industry in the American economy and because of the nature of the work there''s a very high incidence of occupational injury and illness. Even though they treat and care for the sick and injured, health care workers themselves therefore confront perhaps a greater range of the workplace hazards and stressors that might be out there compared to workers in other sectors. Ironically, the cases that we have reviewed reveal that health care workers who have an illness or injury often face unique challenges on top of those that might ordinarily exist because of societal misperceptions that qualified health care workers have to themselves be free from any physical or mental impairment. The document deals with really an incredible range of topics, everything from how to analyze whether a nurse is qualified in a situation where he or she seeks to be relieved of shift rotations or relieved from lifting patients as a reasonable accommodation to TB testing of applicants and employees, to how to analyze direct threat defense and safety concerns regarding HIV positive health care workers. So I would encourage you, anything dealing with anything related to ADA and the health care employment setting, to review that publication. EEOC also has one recent new publication that''s not on that list. It deals with both ADA and Title VII. It''s called "Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities." Although the federal EEO statutes do not prohibit discrimination obviously, only on parental or other caregiver status this publication on caregiving responsibilities explains circumstances under which an employee who has caregiving responsibilities might be subject to stereotyping due to discrimination that is prohibited by Title VII or to discrimination based on association with an individual with a disability. That is prohibited by the ADA. For example, let us say an employer refuses to hire a worker who is a parent of a child with a disability based on stereotypes that it would make the worker unreliable. That might violate the ADA. You want to take a look at that new caregiver responsibility publication that''s on our website if you want to get a better idea of how the association provision of the ADA can apply. Also EEOC has with respect to the federal sector, just issued our annual report on the federal work force. That''s also available on EEOC.gov. That covers the period from October 2005 to September 2006. As you know, this is a report which EEOC is required to prepare each year surveying EEO federal government wide. Particularly noteworthy about this year''s report with respect to disability issues is that it notes the continued decline in the number of individuals with targeted disabilities who are employed by the federal government. According to this new annual report, the general composition of the federal workforce has remained steady over the past decade. Overall, the representation of women, Hispanics or Latinos, blacks or African-Americans, Asians and American Indians or Alaskan natives has slightly increased, but the number of federal employees with targeted disabilities remains less than 1% of the total work force and that continues what has been a ten year decline. I should note that EEOC Commissioner Christine Griffin has started a program here at the EEOC called the LEAD initiative, which stands for Leadership for the Employment of Americans with Disabilities. To spearhead whatever additional outreach or technical assistance EEOC might be able to offer in order to help increase the number of individuals with disabilities employed by the federal government, and Commissioner Griffin''s goal, which has now been endorsed by the Office of Personnel Management Director Linda Springer this past winter is for all agencies to "get to 2% by 2010." 2010 would mark the 20th anniversary of the ADA. The goal is that all federal agencies would get to the point by that year in which they would have at least 2% of their employees be individuals with targeted disabilities. EEOC has been working with the Social Security Administration, which along with EEOC is one of only a handful of federal agencies that at this point has more than 2% employees with targeted disabilities to see what kinds of best practices can be jointly promoted to do focus groups, and to host training seminars to schedule a hiring authority and reasonable accommodation best practices, and so on. There is more information about this on the website on the LEAD initiative if you want to see how you might be able to get involved. Other topics, we are looking at in addition to affirmative hiring under section 501 of the Rehabilitation Act. In both the private and government sector, first the interplay between the ADA and employer performance and conduct standards. We get an abundance of questions continually from both employers and employees in both the private and federal sector about how employers can maintain and impose performance standards and conduct standards in instances where someone needs a reasonable accommodation, what is the interplay of the obligations, and so we are taking a look at the kind of technical assistance we may be able to provide in that area. Other issues that we are looking at are accommodation issues that arise for individuals with chronic or episodic disabilities and finally, ADA issues that arise with respect to employer wellness programs, which I am sure you have been reading in the papers are on the rise and are raising a lot of interesting and novel ADA issues for us to consider. Turning to our private sector ADA enforcement program. In terms of the bare statistics, I guess I should start with those. EEOC''s private sector enforcement program received 15,575 ADA charges for fiscal year 2006. That''s the highest number of private sector ADA charges that we have had since 2002. Although, I should note it is still nowhere near the high of over 18,000 charges per year that we were receiving in the late 1990s. In fiscal year 2006, EEOC settled over 1800 ADA charges prior to a finding. Plus an additional 866 charges that were withdrawn with benefits being paid to the charging party prior to a finding. And there were an additional 850 ADA charges that we made reasonable cause findings on. Of those 330 we conciliated. Turning to situations where claims could not be resolved through the administrative process, there are always a number of those. EEOC filed 42 new ADA lawsuits for fiscal year 2006 and among our inventory of pending ADA lawsuits we settled 50 of them in 2006. Fiscal year 2006. I wanted to give some examples of noteworthy ADA cases we recently settled just to give a flavor of the type of allegations we are seeing. So let me talk about for a moment the lawsuits we settled in 2006 or in the first half of 2007. First while you would think by 2007 we would not be seeing such cases anymore, once again this year we did have a number of cases that involved disparate treatment based on unhidden outright bias that doesn''t require much legal analysis to explain. One example is a case involving a Vermont Pizza Hut franchise that had employed a worker with Downs Syndrome for 13 years as a weekend dishwasher and helper. The manager told the employee''s Voc Rehab case worker that he decided he wanted someone "normal" to do the job and that "these people should not work." We settled that case against Pizza Hut for $55,000 as well as mandatory managerial ADA training. What else have we seen? Well as I am sure it is no surprise to you we continue to see a lot of hearing and vision impairment accommodation cases. As John said with respect to Title III as well as continually under Title I. Let me give you just three examples of such lawsuits that we settled during the last year. The first was a case against Sears Roebuck in Massachusetts involving a party who was profoundly Deaf. Hears only a few sounds through his hearing aids and primarily uses American Sign Language to communicate, he also reads lips and writes English. EEOC alleged that when he went to apply at the store for any available position, he was directed to a Human Resources specialist who then told him he is not qualified for any job at Sears because he is Deaf. We settled that case under a two year consent decree under which Sears is to pay $130,000 in monetary relief, add welcoming language to the welcome screen of it''s online and electronic application program stating an effort to make reasonable accommodations to known disabilities of qualified applicants and employees and the decree, interestingly, requires that for during the two years of the decree, the store when it advertises for any new position contacts a Cape Cod organization for the rights of the disabled to promote the advertisement for the new job opportunities. The second example, case that I wanted to mention, a hearing impairment case, against Spherion Corporation, a case in Texas which was against a staffing and outsourcing agency that allegedly refused to send job applicants who were Deaf for job assignments where they thought, the staffing agency thought that they might need reasonable accommodation in order to perform the job. We settled that case for $78,300 plus injunctive relief. A final noteworthy case in the hearing impairment category was against a research medical center. EEOC vs. Midwest Division RMC. This was an ADA claim that we brought on behalf of, I should say this is my hearing and vision impaired category. And this is a vision impaired clerical employee who was allegedly removed from the work schedule when the company learned about her degenerating vision condition, and she was not permitted to return to work and not given any accommodations she may have needed to return to work. The evidence in the case showed that the employee had actually done so much leg work on her own, including giving the company documents regarding the kind of adaptive equipment she needed and advising the company that the accommodations could be provided by Missouri Rehabilitation Services for the Blind, the state agency, at little or no cost to the company. She put the company in touch with her case manager and still they wouldn''t accommodate her. So this is some of the evidence that we had that the employee herself had gone above and beyond in the interactive process in what was anyway a straightforward accommodation situation. So we settled this case under a consent decree, The terms of which are the employer is going to pay $60,000 in damages, give training to senior human resource managers on ADA and designate one of the manages to handle accommodation requests and complaints of disability discrimination. Also, under the decree, and this is a feature we have been using increasingly, the company is going to have to provide EEOC with the names of applicants and employees who have contacted the company''s ADA designee and also report how any accommodation requests or complaints were addressed so that we can monitor the situation in terms of how they are responding to accommodation requests or discrimination complaints during the term of the consent decree. We also resolved a number of cases this year involving wheelchair use and accessibility. One of these was EEOC vs. Family Dollar Stores, a case we settled in South Carolina that involved an employee who was paraplegic. He was a part time stock clerk and he needed an accessible restroom facility. The employer did some renovation but refused to do more when it turned out that the restroom remained inaccessible. And he had a permanent catheter and a urine bag which needed to be emptied periodically and he ended up having to, because the restroom was inaccessible, during the ten months of his employment empty his urine bag out back next to a dumpster behind the store. On top of that didn''t have access to a sink to wash his hands afterward. The case was settled for payment of $69,000 in damages, annual ADA training for managers and distribution of a written procedure for managers and supervisors to follow in how to handle reasonable accommodation requests in the future. I also wanted to mention a number of lawsuits that we resolved this year involving leave for medical treatment or recuperation, particularly in the cancer context for refusing to allow someone to return to work following their leave for cancer treatment. Just as an aside before I talk about the cases, you may have seen a spate of articles this past winter about new findings by the American Cancer Society showing that cancer deaths have declined for the second straight year. Demonstrating a continuing dramatic increase in cancer survival rates. We now have more than 10 million cancer survivors in the United States. This is attributable of course I guess to the decrease in fatalities with fewer smokers and better treatments for a variety of types of cancers. These statistical trends may have significant implications over the long term for an increase in ADA charges and Rehabilitation Act complaints that we handle from cancer survivors. Alleging that they''ve been discriminated against, if not because of an actual disability then because of a record of a disability, a history of a past disability, post recuperation, or because they were mistakenly regarded as having a disability. Here are three examples of recent cancer cases that we resolved that raised this issue. The first is EEOC vs. Swift Transportation, a case we settled in Arizona this spring. That involved a trucking company employee that was denied one month of unpaid leave as an accommodation to recover from surgery for testicular cancer. As you know, the basic analysis there is does unpaid leave pose an undue hardship once the person had used their accrued sick and vacation time, used FMLA time if they are entitled to it, if they still need additional unpaid leave for the purpose of recuperation or treatment with the idea that they could return to work, would it pose an undue hardship. This case we settled for $95,000 in damages and a two year consent decree with annual ADA training, particularly on the interactive process, for the company''s employees. Another case was EEOC vs. Print South which was brought in the Eastern District of Virginia, settled in 2006. This involved an employee again who requested two weeks of additional medical leave to finish chemotherapy treatments. The transportation company case involved one month, this was two weeks, not the longest term certainly that you see discussed in some other cases. But again, the company denied it. We alleged there was no showing of undue hardship for the additional medical leave to allow completion of the cancer treatment. And the case was settled for $25,000 and injunctive relief. The final case I wanted to mention is EEOC vs. Five Cap, which was an ADA suit we settled this year in Western District of Michigan. That involved an employee of a Head Start program, and she was cleared following some of her cancer treatment to return to work by her physician even though she was still undergoing chemotherapy and radiation treatment for breast cancer. And the employer refused to permit her to return to work even though she was released with no restrictions because the employer, Head Start Executive Director apparently repeatedly stated that this employee did not need the stress of working in any position while undergoing cancer treatment. A notion perhaps benevolent, but a violation of the ADA nonetheless. We settled that case under a three year consent decree providing $60,000 in monetary relief and injunctive relief as well. We also continue to see denial of accommodation cases where the allegation is that individual is qualified to do the work but perhaps just not in the manner in which it has typically been performed and that is what is leading to the accommodation dispute with the employer and what we allege is an incorrect decision on accommodation requests. A good example from this year is EEOC versus Starbucks, a case that was settled in Washington state just this past June, that involved a claim on behalf of a Starbucks Barista who had bipolar disorder. She had worked at Starbucks for two years in this position, with the accommodation of receiving extra time for training and support. Extra time to learn how to make new products when they came on the line and extra training to get ready to be able to serve them and that was the accommodation she had for two years. But in her third year she was denied the continuation of that accommodation, because the new manager told her she was "not Starbucks material." We settled that case for $75,000 to the charging party and a $10,000 donation to the Disability Legal Rights Center in Washington State as well as ADA training for managers and supervisors. Now for a couple of minutes I just want to talk about, of course, we have had our share of lawsuits this year that we could not settle prior to issue a decision by the court. As to those, EEOC has had both some big wins and some big losses in the appellate courts. The first I want to mention is EEOC vs. Wal-Mart which was decided in the 8th Circuit this spring involving a job applicant for a cashier or a greeter position at Wal-Mart. He had cerebral palsy and used fore-arm crutches for short distance walks and a wheelchair for longer distances. Wal-Mart denied him the position and argued in response to EEOC''s ADA lawsuit that he was not qualified for the position because he would pose a direct threat to the safety of himself if he used crutches and stood for a long period of time, he would risk recurrent severe back pain or that he would pose a safety risk to customers if he was walking crutches which would make him double wide in terms of the width he took up in the aisle compared to someone who was not walking with crutches. The 8th Circuit ruled in favor of the EEOC that the EEOC could proceed to trial on this claim, and that a reasonable jury could find he was qualified to perform both the cashier and greeter jobs with accommodation. This was really sort of a battle of the experts. The evidence that the court cited that the EEOC had put in that a reasonable jury could use to conclude he was qualified and did not pose a direct threat was evidence that he could be accommodated in the greeter job by using an electronic scooter or similar device or in the cashier position by using any one of a combination of accommodations, a sit to stand wheelchair, or a drafting type of high stool with armrests for additional support and balance, a narrow wheelchair or that they could have removed several inches of the divider beside the check stand to accommodate a regular wheelchair, a head scanner or installation of a convex mirror. So again, what we are seeing here, like the Starbucks case I mentioned, with EEOC alleging, and in a number of cases courts stepping in to insist that employers make an effort to consider accommodation before leaping to the conclusion that an applicant is not qualified just because he cannot perform the essential functions of the job in the same manner that they have typically been performed in the past. Other big wins this year were EEOC vs. Heartway Corporation in the 10th Circuit, a case where a nursing home cook with Hepatitis C was terminated based on unfounded safety concerns. EEOC vs. Dupont in the 5th Circuit this spring affirming the jury verdict in favor of a chemical plant lab operator who was terminated because of the employer''s view that her walking restrictions would have made her unable to safely evacuate in the event of an emergency. A recent case just from July 6, just a couple of weeks ago, EEOC vs. Convergys in the 8th Circuit, a case in which EEOC prevailed on behalf of a charging party who used a wheelchair and worked at a call center and needed a reserved parking space or needed to be able to have a reserved workstation so that he could meet the employer''s punctuality requirements, because without a reserved workstation or without a reserved parking space it was taking him way too much time to get back from lunch or breaks or at the initial morning arrival time given the distance he had to travel in his wheelchair. Interestingly in that Convergys case, the court noted that the employee had himself thrown out a few different accommodation solutions to the employer as part of the interactive process. The court said that it''s of course the employer''s responsibility to explore accommodation solutions and noted that really all the employee has to do in the interactive process is give information as needed about the disability and about the limitations and what the problem is that seems to be posed. It''s the employer''s job to explore those accommodations, alternative duties, alternative positions, whatever it might be. Or as the 8th Circuit in this Convergys case said that actually by proposing a few ideas that the employee here, "exceeded what disabled employees at the initial stage of the interactive process must do." So that was very interesting to see. A great reminder about the emphasis that courts are placing on this interactive process. Really courts tending to rule for the employer when they can see that the employer engaged in some sort of objective fact gathering and some back and forth, and ruling against the employer when it looks like the employer just made a leap or a lurch to the conclusion that the individual was not qualified or posed a safety threat, and does not have appear to have paused to consider whether there were possible accommodation solutions. Of course now EEOC did have a couple of significant cases we lost in the appellate courts this past year, and I will just mention two of them in particular. The first was EEOC versus Schneider National, 7th Circuit, March 2007. A case where a truck driver who was diagnosed with a condition called Neurocardiogenic Syncope, which is a condition that can cause fainting, was terminated because the employer had a blanket policy of not employing any truck drivers who had Neurocardiogenic Syncope. Due to an earlier employee accident a number of years before involving an employee who had that condition. And EEOC alleged on behalf of the terminated truck driver that the condition is treatable with medication, he did not pose a direct threat, and he remained qualified under applicable federal safety standards. And in what seems to be a very unusual decision, the court held the 7th Circuit decision, that the employer did not regard this plaintiff as substantially limited in the major life activity of working, just sort of focusing first on that threshold coverage issue, that there was no regarded as issue here because the employer was not motivated by a mistake in belief about the severity of the condition or the risk posed, but rather simply chose to be excessively risk averse in light of the accident that it had had involving an earlier employer. My view is that this seems a bit counter-intuitive. If the risk is so small or non-existent then by definition excluding the employee because of the risk is based on a misperception about the degree of risk. It would seem really a classic regarded as type of situation. But it remains to be seen if other Circuits are going to join in this reasoning the 7th Circuit used here, limiting the regarded as coverage in this kind of case. The other decision EEOC lost this year that I want to note was in the 6th Circuit, was EEOC vs. Watkins Motor Line, involved a morbidly obese dockworker. And the issue that the appellate decision went off on was whether this individual even had a physical or mental impairment within the meaning of the ADA and before you even get to whether that impairment is substantially limiting in a major life activity. The court held that this morbidly obese employee had failed to establish disability because he had failed to establish that he even had a physical impairment. The court said that only in cases where the morbid obesity is shown to have a physiological cause can the individual show that the morbid obesity is a physical impairment within the meaning of the ADA. EEOC''s position that was rejected in this case was that the diagnosis of morbid obesity is the impairment. This just happens to be an impairment that the medical community diagnoses by a physical characteristic, which is having 100% over normal body weight. So that is out there, it remains to be seen whether other courts follow. Finally, this is the last thing I''ll address, and we''ll turn it back over to Peter for the questions. I wanted to note, although it is not a case that EEOC is involved in. There''s an important case pending rehearing before the 9th Circuit. And that is Bates vs. United Parcel Service. This case involves an issue that the Circuits are split or fractured on about how to analyze the situation where an employer voluntarily adopts a safety-based qualification standard, in other words not one that is mandatory such as the Department of Transportation rules for drivers of trucks weighing over 10,000 pounds, but rather an employer voluntarily decides to apply a particular safety based qualification standard, what is the ADA analysis that applies if the individual with disability is excluded by that standard. In the Bates case, UPS decide voluntarily to take, in fact, those Department of Transportation safety rules for drivers of trucks weighing over 10,000-pounds and apply them for good measure to trucks weighing less than 10,000-pounds. Specifically, to apply the rules for the big trucks and apply them to the small brown UPS package cars, which weigh much less. The legal issue is if you have a voluntarily adopted safety-based qualification standard like this and it does screen out an individual with disability. What does the employer have to show in order to defend the standard? Is it just that it is job-related and consistent with business necessity or something more? There is a variety of views on this among the courts. EEOC''s regulations say that if you have a safety based qualification standard that screens out a person with a disability, the employer must satisfy the direct threat standards. An individualized assessment of that applicant or employee and everything that goes along with looking at the objective medical evidence satisfying the direct threat standard as to that individual applicant or employee. Some courts have said instead, though, you can look at more generalized information. Perhaps if all or substantially all the people in that group who don''t meet the qualification standard would medically be deemed unsafe or it would be impractical to sort out the safe from the unsafe people it might be sufficient not to do an individual analysis. So this Bates vs. UPS case might be an important contribution to this ongoing debate among the courts on this issue. With that I''ll turn it back to Peter for the questions.
Thank you very much Jeanne and thank you John. We could spend the entire time getting information from both of you. At this time, we''re going to open it up to participants to ask questions. Following the instructions, we ask that you please limit it to one question because of the number of participants we have today, give as many people as possible a chance to ask a question. If you would keep your questions on general topics. If you have a question about a specific situation or issue that you are facing personally, I would encourage you to contact your regional ADA center or we can follow up with John or Jeanne as needed. So if we could get the instructions on how participants can get us questions at this point?
Ladies and gentlemen we will now begin the question and answer question. If you do have a question at this time, we ask that you please press the 1 on your touch tone phone to enter the queue. Once again to register for a question please press the 1 on your touch tone phone.
Last year we discussed enforcement of Civic Access agreement and one of them included the city of Burton, which is right next door. They have not met any of their compliance measures, they have not remitted one item in accessible format to yours truly in more than a year, and their ADA coordinator subsequently has been convicted of bribery and extortion. And also there has been no follow up with a promised on-site review and monitoring in the spring, it is now summer. That has not happened. I would also like to have a reader to read a brief paragraph and the city attorney to find a way to, they have no ADA coordinator at this point, at all
What''s your question?
Well when are we going to get some enforcement and monitoring. I would like to have, since I am blind and don''t have this in accessible format, just one paragraph read by the original complaint
I have the portion of this to read as the city''s, I guess current viewpoint of the city, does not have any discretionary money to spend on projects that would benefit very few of our residents in a relatively minor fashion.
Thanks for the question, we''ll let John respond to that.
Well, we do have this on our plate as something that we are supposed to do, and we have an investigator and one other person assigned to follow up. I think we are familiar with the complaint. I apologize for not getting it checked before this call, I didn''t realize that I would get a question at this level, to check and see when that is scheduled and I will get back to you by email, if you give me your email address I will let you know what the date of the agreement is. Clearly as to the statement that was just read, that we have an agreement with the city, they have agreed to make certain changes and to provide certain kinds of information. If they are not doing that, they are in violation of the agreement and also Title II of the ADA.
Alright. Can we get our next question please?
Okay, our next question.
Can you actually hear me? I want to make sure I am doing things right.
Yes, go ahead.
Okay. I am not sure if this is the right forum. Is there any update on where the ADA Restoration Act stands within Congress or is this not the correct forum for this question?
We had an audio conference on that topic back in, I believe, back in May with Andy Imparato from AAPD.
If that''s on your website, if that information is there I can look.
Yup, the audio conference as well as the transcript is on the ADA Audio home page, www.ada-audo.org.
I''m just going to chime in as long as there was a question on the ADA Restoration Act to also mention to make sure people are aware that also pending in Congress is the Genetic Information Non-discrimination Act which is HR-493, Senate Bill 358, which would amend Title VII of the Civil Rights Act of 1964 and several other laws to prohibit employers or health insurers from discriminating against employees on the basis of genetic information or test results. The bill actually did pass the House, April 25th by a vote of 420 to 3. The legislation awaits a floor debate in the Senate. There was an article in the Daily Labor Report July 10 saying a bill could come to the Senate floor sometime in July. That''s an update on the other piece of legislation in which folks on this call may have an interest.
Next question please.
Our next question.
Hello, can you hear me?
Yes, go ahead.
I''m calling from New Jersey. You spoke a great deal about the hotel accommodations for people with disabilities. One of the issues that we''ve run into is our hotels that are modernizing are putting platform beds throughout their hotels. People who are traveling with portable lifts cannot access the bed because the bed goes all the way to the floor. When you recommend accessible hotel rooms, I wonder if this is taken into consideration?
This is John. Thank you for that comment. We''ve, this has come up in a variety of places. There''s nothing in the ADA standards themselves that address this. I have raised this with the American Hotel and Lodging Association on this very point in terms of people who traveling with their own lifts. And have suggested to them that in the accessible, even if they are modernizing their hotels and are doing that in all the other rooms, they should not be doing it in the rooms that are designated as the accessible rooms. I think they are being made aware of it. If we get around to having our notice of proposed rule making, this might be something you might want to put in play formally. One reason hotels do it is it''s just easier to clean hotel rooms if they don''t have to clean under the beds. That''s why they do that. I think in terms of accessibility, it has a very negative effect, and I think it would be appropriate to have a policy under the ADA you couldn''t do that in accessible rooms.
Can we have our next question please.
Our next question.
Good afternoon. I want to know regarding EEOC charges for 2007 how many there were, how many people were regarding chemical sensitivities and for the breakdown of settlements and cases filed?
I don''t have that information at my fingertips, but it is available to you on our external website, EEOC.gov. If you go to the section that is entitled "litigation statistics", you can see the breakdown on the charges filed and there''s a place to click to see the breakdown by type of impairment. If you have any difficulty locating it, or finding what you are looking for, feel free to call me and I''ll give you my direct phone here, 202- 663-4693.
I want to comment also. Regarding a guaranteed access for handicap accessible room. I''ve been told there is no guarantee of one. I want to put that out there. I''ve been told that and I was very surprised. Regarding mobility issues, no guarantee of that when you make reservation. I don''t know if that''s accurate or not or within the ADA.
Mary, this is John. I have not heard that issue before. Just about every hotel chain and most hotels will guarantee rooms based on a variety of issues. We would certainly be interested in pursuing that issue. One of the most common hotel complaints that we get is the sort of a parallel to that, which is a person with a disability needs an accessible room, reserve one, and when they show up the accessible rooms have been rented out to someone else. That is the most common issue we have seen. I haven''t heard of people having trouble even reserving an accessible room.
I think they meant, this is the Grand Hyatt, they wouldn''t reserve it, because they couldn''t guarantee it. But if that''s what you need, then how would you know to come, you know what I mean?
That''s correct. And in fact, most of the, we have agreements certainly with the Holiday Inn chain and some others that sets up a system that not only allows the guaranteeing but provides information at the 800 number and local hotel number about what the accessible features are. That''s another problem. You often are dealing with someone who does not understand what an accessible hotel room is.
So the Grand Hyatt could do that then?
It certainly, usually our experience of is this is just a software problem they have and all of these major chains have a way to ensure that accessible rooms can be reserved.
Okay, thank you.
Can we have our next question please?
Go ahead with your question.
I have a Title III question in terms of civil penalties. At what level does civil penalties kick in? I have a situation where a complaint has been kicked down from just Department of Justice to mediation and at present, the plaintiff is asking for a monetary resolution. He''s asking for a certain amount of money to make the thing go away. I''d like to have information on at what point civil penalties kick in on these issues. On Title III issues.
This is John again. There are a couple issues here. In terms of money going to an individual, that is usually compensatory damages. A civil penalty is in effect a fine that goes directly into the federal treasury. In answer to your direct question, there is no standard, the statute talks about civil penalties to vindicate in the public interest, usually in egregious situations, courts or even in settlement agreements you can get civil penalties. Usually in a mediation you are talking about relief for an individual for emotional distress or out of pocket expenses or further hardships they''ve endured because of the alleged acts of discrimination. In mediation that''s a common thing. If you look even in our ADA mediation highlights that are in our website that describes them, Monetary payments that pass between the parties are a regular feature and there''s not any threshold that you have to be above, especially in a mediation, two parties getting together to agree on what they will do to resolve the issue that''s there. We often, the case I mentioned in a hospital had $55,000 in compensatory damages. Which went to the mother and her daughter for the emotional distress they incurred in the situation in the hospital, which is different than Mandalay Bay and Cirque de Circus which paid $55,000 that went to the federal treasury. So in mediation, because the US Department of Justice usually is not a party, there wouldn''t be a civil penalty, but there could be compensatory damages.
Alright, thank you. Next question please?
If you would like to register for a question at this time, please press the 1. We have a question from the Captioner.
Yes, can you hear me?
Yes. Please go ahead.
I have to go back in the writing to find it.
Alright, while the Captioner is locating that question, Jeanne, an email question was submitted and the topic was for job coaches and what type of access an individual because of a developmental disability, what type of access a job coach or an employer might be required to provide for a job coach of an employee with a cognitive disability or a developmental disability.
The type of allegations that we have been seeing involve allowing the job coach to be present for training, allowing the job coach to be present periodically to check in with or to observe the employee performing the work and discuss with the employee any issues to help the employee and make sure they are doing the work in accordance with the instructions that they employer has given, the job coach has been a part of and doing it properly, meeting standards. And also allowing the job coach to be present as needed with respect to any conversations about performance problems. And sometimes I suppose also sometimes party to conversations about disciplinary issues if there is an alleged conduct problem that the employer understands or should understand if the issue is in any way related to disability. So I think those are the main issues we see in reference to job coaches, presence in training and instructional periods, present periodically to check in on, monitor the employee''s performance, and present for the performance and conduct related conversations or meetings for disciplinary actions, performance appraisals, that kind of thing.
Excellent thanks, let us go back and see if the Captioner is ready with the question.
Yeah I think so.
Do we have the Captioner''s line back up?
Can you hear me?
Yes, go ahead.
It is a lengthy question, hold on a second, I am sorry. Every time I write something, it goes forward and then I have to find it again. So maybe go on ahead and I will find it again.
Ok, let us go to the next question.
Ok, just press 1 when you are ready again. Ok. Our next question.
I just want to know if you can describe when you talk about the federal government and having 2% of targeted disabilities. And what is that mean by targeted? And what are they and how do you figure out which ones are?
That''s a good question. The term targeted disabilities refers to certain severe physical or mental disabilities that the federal government has identified for special emphasis and affirmative action under Section 501 of the Rehabilitation Act, because they are the impairments that have historically been used to exclude qualified people with disabilities from employment. These are taken from the list that the Office of Personal Management has put together on its standard Form 256 which was last published in 1987. So the terminology might not necessarily reflect the prevailing current usage but with that caveat, here is what they are with the terms as they are listed on that form. Deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness and distortion of limbs and/or spine. And so these are the so called targeted disabilities that EEOC and the other federal agencies pay particular attention to in trying to promote the affirmative action requirement under Section 501 of the Rehabilitation Act.
Alright. Let''s see if the Captioner has her question ready.
Ok, we will go to the Captioner now. Go ahead.
This is for John on T2 requirements to maintain roads in a small rural town in California. Recently had a ramp built that ends at the street which is gravel, the street has a paved section, then about 50 feet of gravel and then pavement again. In asking public works to do something about it, which they are going to change the type of gravel that is there right now.
We lost the Captioner.
Captioner, press 1 again. Ok, go ahead.
Can you hear me? Ok. He is wanting to know because the pavement is breaking down, eventually it will all be all gravel. So my question is, do they have a duty to maintain the pavement? This is an area that get some snow and lots of ice in the winter.
This is John. Are we talking about gravel in the street?
Yes, I think they are talking about in the street.
My answer is likely to be different if we are talking about the street or public right of way where people are walking on a developed sidewalk. Certainly, where there is an obligation to have an accessible feature, is an obligation to maintain the accessible feature. And clearly we look to have public rights way that is stable, firm and slip resistant. But there are also is no standard yet that has applied. The Access Board is working on a standards for a public rights of way, so we would be dealing with this under a more general program accessibility requirement. But if we are talking about the street itself and not a crosswalk across the street, I think there might not be an obligation for the public entity to do anything about that because of the ADA. There might be an obligation for them to do it for other reasons but not because of the ADA.
Do you have the second question Captioner?
I will have to find it again.
Ok, so in the meantime we will move to the next caller.
Hi. We have a question for EEOC on website application process. Is there any attempt by EEOC to guide employers on the recruiting practices through the website?
Yes, we have a point person, a staff person who has spearheaded giving technical assistance to employers on that issue. So I can give you her name and phone number, it is Carol Miaskoff and her number is 202-663-4645. And she can tell you about the kinds of things we''ve seen employers doing and hopefully answer any questions you might have.
Are you seeing any charges around this area? Whether it will be the online application process or existing employees accessing human resources information on internal website?
I am not aware of a large number of charges on it. However, I know that we get a lot of questions about it. In other words employers in real time, prior to any charge being filed, trying to see what they might do in terms of before the fact, before any problem arises ensuring that they are compliant and that their online application is accessible. We have worked with DOJ on answering those questions but Carol would probably be the best positioned to tell you what the specific issues are that we are hearing about.
Ok, great. Can we have our next question please.
As a reminder if you want to register for a question please press the 1 on your touch tone phone. We have a question.
Go ahead with your question.
Thanks Peter. John, good to hear you. The question that one of our attender asked, is there a case law or a settlement agreement that clarifies whether a companion animal is a service animal?
This is John. I guess companion animal, there are a lot of terminology issues, phrase. If you are referring to something like an emotional support animal, as oppose to a service animal, I can tell you under the Fair Housing Act, there is not a distinction, and someone is entitled to have what might be an emotional support or companion animal in housing as a reasonable accommodation. Under the Air Carrier Access Act, there is some provisions for that very specific provision that you have to apply in order to avail yourself of that. But under the ADA, our interpretation under Titles II and III have been that a service animal has to be an animal that is individually trained to perform a service for someone, a task or a job, and just making someone feel better because of their existence is not that. That standard of ours has been misinterpreted to mean that we only apply the ADA to physical tasks, but that is not true. A seizure alert animal would be a service animal in our view. Animals that carry or fetch or any of those things are animals that would be covered. But just what has sometimes been called companion and emotional support animals in the department''s view are not covered by the ADA.
Covers training specifically?
Training, it''s not just the training, it''s the training to do a task. If there is a task they are trained to do then they are covered. That''s why the seizure alert animal is trained or can be trained to provide that kind of activity. So, it is really the function or task that the animal performs.
This is Jeanne. I just wanted to add that EEOC has not had occasion to address the distinction that John is making when it comes to Title I interpretation and enforcement. I don''t know whether or not the result would be the same under Title I. And I also wanted to add that you may be aware and should look into it if you have this issue arise. There are a number of state laws which have been passed, which have specific definitions of which types of animals might be, have to be accommodated and my understanding is that some of the state laws include definition that is broader than the Title II, Title III definition under the ADA that John just explained.
Excellent. Just surprised that it took until the final question in the session for service animals to come up John. I want to thank both Jeanne and John for participating with us today and providing us with their valuable time and their obvious expertise and knowledge on the ADA, so we thank them greatly. As a reminder, the audio recording and transcript will be posted to the ADA audio website in 10 to 14 business days. Also a quick reminder, the August session, the date has been changed. It will take place on August 7th, this session will deal with the ADA Implementation and Impact Study, the National Council on Disability (NCD) will be issuing those reports during their quarterly meeting which is being held in Chicago next week, on the morning of July 26th the anniversary of the ADA. NCD will issue those two reports and on August 7th we will have with us representatives from NCD as well as the Disability Resource Education and Defense Fund (DREDF) will participate on August 7th. Also, we have the topic posted for the September session. The topic will be Accommodating Diabetes in the Workplace, and we will have a representative from the CDC and an attorney from the American Diabetes Association joining us for those sessions. You can get those information on those upcoming sessions at the www.ada-audio.org website. If you did not have a chance to ask your question today, you can contact your regional ADA Center by calling 1-800-949-4234. And as always, I want to thank everyone for participating and we will see you all next month. Thank you.