Hello. This is Robin Jones and I am the Director of the Great Lakes ADA Center and I am welcoming you to the program for the ADA Audio Conference Series in November of 2007. This is second in our series for this particular year and we are going to be pleased to have Sharon Rennert from the Equal Employment Opportunity Commission join us. In a minute I will introduce her. But first let me just start by saying that the ADA Audio Conference Series is a program that is sponsored by the network of ADA centers across the country also known as Disability and Business Technical Assistance Center, is coordinated by our office but it is a joint effort of all of the ten centers. So we welcome you from wherever you may come from across the country, and it may be a morning for you or it may be the afternoon, but thank for giving time to this particular topic. This session, the Ask the EEOC, is one of our most popular sessions. We have held it for several years on a repeated basis because people tend or seem to want an opportunity to have a one-on-one time with someone from the Equal Employment Opportunity Commission to have your questions answered. So the primary content here today is going to be an opportunity for you to ask questions of Sharon. She will be giving just some brief comments about the EEOC and things that are happening at the federal level, but the majority of time today will be with all of you. So once she is completed with her comments, we will turn it over for the question and answer period. Please note that we have people joining us today using the telephone, also using some technologies such as streaming audio on the internet, as well as real-time captioning on the internet. So we ask when you ask your questions to please make sure you speak directly into the phone so it can be as clear as possible for everybody to hear, and talk as slowly as you possibly can, again so everybody is able to hear. This program is being recorded, a written transcript of this program will be created in both the audio recording as well as a transcript will be posted to the www.ada-audio.org website within ten days after the completion of the session. The audio recording is up sooner than the transcript because it takes a little bit longer to get that done and reviewed. So without further ado I will go ahead and introduce our speaker today and then I will turn over the session to her. I am pleased to welcome as I said Sharon Rennert, she is the Senior Attorney Adviser in the Americans with Disabilities Act Division, Office of Legal Counsel within the Equal Employment Opportunity Commission. She joined the Division in January of 1992, so shortly after the passage of the ADA and about the time that the employment provisions of the ADA were kicking in. Since 1993 she has served - during 2003 she served as the Acting Director of the ADA Division. One of her responsibilities is the development of the Commissions policy interpretations of the ADA and she has worked on every commission policy interpretation and guidance that they have given throughout the last 15 years or so. She has also worked on many of the ADA Technical Assistance documents. As part of the session today, you should have received a copy of all the EEOC, listing of all the EEOC policy guidances and technical assistance documents that are available on their website. Hope that document is useful for you in identifying those that might be of use to you, and giving you an idea of where you might be able to find those on the Equal Employment Opportunity Commission website. She was also a drafter of the guidance on reasonable accommodation and offers particular expertise on this area under the ADA. She specializes in providing employers with practical approaches to ADA compliance and she regularly consults with the EEOC investigators and attorneys on ADA charges and litigation. She also works with EEOC federal sector staff and administrative judges on the Rehab Act complaints as well related to disability discrimination. She has written and delivered several ADA training programs for EEOC staff and conducts numerous seminars and workshops for attorneys, human resources professionals, risk management professionals, and persons with disabilities. She has been a featured speaker here on our Audio Conference Series as well as the ADA Symposium which is an annual event sponsored by the network of ADA Centers as well. She received her law degree from New York University, School of Law and she has received many different awards and things for the work that she has done. So I think you will find the information that she has to give to you today, if you are not familiar with Sharon, to be very valuable and useful information. So, without saying any more, Sharon, I will go ahead and turn over the microphone to you.
Thank you, Robin and hello to everyone out there. Well, I think Robin you said it all and that probably was more than enough. Before we get to the questions which is the purpose of this afternoons session, what I do want to say before we open it up for questions is to alert everyone to something that will be a change at EEOC that may affect many people, and that is that for the past approximately three years, EEOC was operating a call center, a nationwide call center to handle the phone calls, the e-mail inquiries coming in from individuals with disabilities, from the public, from employers, from people who were seeking information, advice from EEOC including for those wanting information on filing charges. Anyways, we had a nationwide call center that will cease operation on December 20th. At that point what is going to happen is that, on an interim basis, our field offices across the country will be handling those phone calls and e-mails. Eventually what we are going to have in 2008, will in effect be an in-house call center but we need some time to make that transition and unfortunately it won''t be quite ready on December 20th. So the reason I bring it up is for those who call in after December 20th, maybe to remember that EEOC will be operating on something of an interim basis to get to your questions, to get you to the right person as quickly as possible. There could well be some delays, so on behalf of the EEOC, I do ask for people''s patience, we do not have an exact date at this time when our new what I call in-house call center is going to be up and running. They need to obviously hire and train those people and get them set up. And so it could still be a while after December 20th before that is all in place. I just want people to be aware. I hate when people call us and we are not answering as quickly as you hope, that is the reason for that. In terms of ADA, as Robin said, I understand you do have our most current list of all of our ADA related publications. And I do encourage people to consult our website periodically, because usually we add two maybe even three publications a year, but that is kind of an average. And we are never quite sure when something else is going to get approval and will go online. But every so often to check to see if there is a new publication there I think is beneficial. We are just beginning the new fiscal year for the entire federal government that began on October 1. Unfortunately, once again, as has been true for I don''t know how many years now, we begin the new fiscal year without a budget. Congress has not completed work on the budgets for this current fiscal year, and as a result we are operating under what is called the continuing resolution. It basically just keeps us at the same funding level that we had with no increases of any kind. And we have actually been doing this now for a couple of years. So the impact is that is our budget has in effect declined, it has not reflected any growth. We are ever hopeful that Congress will work on the appropriations. As some of you may know, the Senate appropriations bill this year included quite a significant increase, about $50 million for EEOC. The House, while it also had an increase for our budget, was considerably less than that. So there would have to be some reconciliation of the different numbers, but certainly if we can get a significant increase, most of that money has already - the Chair of the EEOC, Naomi Earp has indicated her priority is to hire more people in our field offices. We recognize the great need, we recognized we have been unable to fill a lot of those positions these past few years because of funding freezes. And so the goal is to hire as many new investigators and related staff in our various field offices which would benefit everybody but including those who file ADA charges. So that is my quick update on here at the EEOC. So, Robin, at this point if there are questions awaiting, let''s go.
Great. Thank you.
Thank you. Ladies and gentlemen, if you have a question at this time please press the one key on your touch-tone telephone. If your question has been answered or if you wish to remove yourself from the queue, you may press the pound key. Again, if you have a question, press the one key at this time. One moment.
Sharon, one of the questions that came in, in advance was a question related to the charges and the numbers of the charges. And so obviously someone may have been looking at the Equal Employment Opportunity Commission website where you have some data and stuff related to the charges and things under the different laws the EEOC enforces. Any comments or anything in relationship to that issue of concerns that somebody has that, why is enforcement so low for complaints, or at least a perception of the fact that the enforcement rate is low?
Certainly. If I understand what the questioner means by the enforcement rate being low, what I will interpret that as and I hope I am correct is, why is it that our cause findings may be low? As I hope people are aware when EEOC receives a charge and we do an investigation that we sort of see through all the way to the end, there is one of two results. We either issue a cause or a no-cause finding. And what that means is that either we feel we have sufficient evidence we had gathered and assessed to say there is cause to believe that discrimination occurred or alternatively that based on the evidence gathered in our assessment, we find no cause to believe that discrimination occurred. And I know this has been a concern for a long time, about our cause rate and looking at our numbers, I see the last full year, and again we do it not by calendar year but the governments fiscal year, the last full fiscal year that we actually have statistics is 2006. It is a little soon, 2007 just ended September 30th. So I am sure our data people are busy trying to get those figures together. But as of fiscal year 2006, our cause rate was 5.6% which actually is pretty much holding steady the last two, three years, it has been sort of 5.5% and 5.6%. What we tend to look at though, is not just that number, that percentage, we look rather at a couple of other categories that also would suggest that the charging party at least had a certain level of success in filing a charge. The two other categories that we look at is, one it is called Settlements. A settlement is where there is, just as the name implies, is a settlement between the charging party and the employer or the union, whoever is the party that the charge has been filed against. There has been a settlement EEOC was involved in negotiating that settlement, and we will oversee that the settlement is carried out, but it is done before we complete our investigation. In other words, EEOC has not made any finding of either cause or no cause. Instead the parties have decided that they want to settle. And that can be done for any number of reasons, it can well be that an employer might see the handwriting on the wall, that is a very likely EEOC at the conclusion of its investigation will go - will find cause, will fine on behalf of the charging party. And rather than wait for that moment, the employers say oh no, lets go ahead and work on a settlement right now. That for fiscal year 2006, 12% of our ADA charges achieved settlement. And that is actually going up, over the past few years it sort of started out in the 4% range and then slowly it is going up, and in the fiscal year 2005, we were at 11%, and now fiscal year 2006 we are at 12%. So clearly employers and individuals filing ADA charges, more of them are choosing and quite successfully to settle this before we actually complete our investigation. Then we have another category called Withdrawn with Benefits. Now what that means is that a charging party has chosen to withdraw his or her charge before EEOC has completed its investigation. But they are withdrawing because the charging party is getting something from again, the employer or whoever the charge was filed against. So hence, withdrawn with benefits. The difference between this category and the settlement category is EEOC is not involved at all. We are not involved in negotiating it, we will not be involve in enforcing whatever agreement the charging party has reached with the employer. It is strictly between those two parties and the charge is always in the control, if you will, of the charging party. That individual has the right to withdraw the charge at any point he or she wishes. So for fiscal year 2006, 5.8% of our charges fell into that category. So again a charging party saw some benefit to withdrawing the charge because they were getting something from the employer. And again, many reasons that the charging party can choose to do this, that charging parties want to move on with their lives, that they feel that they are getting whatever they were seeking from the employer or at least enough that makes it worthwhile not to pursue an investigation any longer. And so they choose to accept what the employer has offered to them and simply withdraw the charge, so many reasons behind that. Now if you put those three categories, Settlements, Withdraws with Benefits, and where EEOC concludes its investigation and fines on behalf of the charging party, finds that there was reasonable cause to believe discrimination occurred, if you put those three categories together for fiscal year 2006 that amounted to almost 25% of our closures, 23.4% to be exact. And again, that is a slight increase over the previous year, it is going up a bit. Now, it is still fair if people want to say, fine, that is still maybe just under 25%, but that still means that 75% of these cases did not necessarily go in favor of the charging party. And that is true. There again can be a variety of reasons for that, including that in EEOC analysis, many are not meritorious. We find either people do not fall under the definition of disability, we do not find sufficient evidence of discrimination, whether it be harassment or failure to hire or failure to promote. There are also reasons aside from sort of the substance of the charge where we may end up dismissing, such as charging parties just stop cooperating. In essence, they have lost interest, and so they are not willing to pursue with us. Again, that is their right, but again, that is a reason that we will not have a successful outcome there. I also think it is important to point out when people look at the ADA charges, it is interesting to do a comparison with our other civil rights laws and learned that the percentages are not very different. I quickly went on to see what happened in fiscal year 2006 with Title VII of the Civil Rights Act. That is the sister law to the ADA that prohibits discrimination on a number of bases such as race, gender, color, national origin, and religion. I think I got all of them. And it is very interesting to make the comparisons cause as I said the ultimate percentages are pretty much identical in the same fiscal year when you add it up the numbers of cause findings, settlements, and withdraws with benefits, for Title VII, it came to 22.5%, in comparison with the ADA''s 23.4%. If you went with no cause findings under Title VII it was at 61%, for ADA the same year, 60%. So in terms of where the ADA is placing in relation to the other civil rights laws, pretty much the same kind of experience, not significantly different. Robin?
Great, thanks for that. I think that a lot of times people don''t understand those statistics or what they actually mean because when they are presented, they are pretty much you know kind of flat numbers, without a lot of explanation behind it. I think some people also might be reacting depending on where they are getting their information and what they are looking at. Sometimes you see articles but for example, the American Bar Association which has done this study over you know several years, you know I think their most recent one identifies that you know, where they are looking at the EEOC charges and as well as the cases in the courts, that you know, 94% I think the last statistic, were ruled in favor of the employer. And I think there was slightly less than that when they did the analysis of the EEOC data as far as ruling in favor of the employer but people I think react from those kind of statistics as well again not always knowing what is being reported there and what the reasons are for some of those things.
Point taken. Yes, I guess EEOC has never attempted to do what the American Bar Association has, which is to look at litigation in general but yes, that statistic of over 90% employers are successful in court, that is looking at all ADA litigation not simply EEOC.
Right, not just the EEOC. But Title I you know obviously that individuals take outside of the EEOC process and using their own attorneys you know to file in there, so. Okay, Operator, questions from audience?
Yes, yes, we have a question from Caller. Your line is open.
Good afternoon. I am the ADA coordinator and I deal with an issue recently that I have never had to deal with before. I have an employee who was in one location and has a severe mobility disability, was requesting to transfer within that building to another position, rather than being moved with his department to a different building which would be much more difficult for him to access. Here the thing is, the building he is in, he has in the building parking, the building that he would be going to would be surface parking, we dont own any parking lots and he would have to walk a great distance to get to that building. And the issue came up that I made the recommendation that, since there were vacancies that he could transfer to that would be equal to the position that he had, that it would be reasonable to do so, I was then was asked to identify whether a portal-to-portal EPA issue would entered - would receive the ADA in providing these accommodations and I had never heard that before. I had dealt with portal-to-portal, meaning that we had employees for accommodations to get into buildings, and we have dealt with accommodating those, I never had it from the standpoint of an EPA Act. And so we are checking into it and we feel that there isnt anything but I thought I would just ask the question.
I am sorry, can you clarify when you say, I thought I heard you said EPA Act?
Pardon me, the EPA, not Environment Protection, I am sorry.
Let me try answering from the EEOC.
Are you talking about Employee Assistance?
No, I am sorry, I am missing this one. It is, wait, wait, wait, Equal Pay Act.
Oh, Equal Pay Act.
Alright, I guess I am not following how the Equal Pay Act is coming into play here. My understanding is you have somebody whose disability involves severe mobility limitations, and in the department, the entire department this person works for is moving to a different building which would involve significantly more walking once the person reaches, it sounds like that they are able to drive, because I thought you said parking lot but it is an open air parking lot, right now I gathered there is a closed one, and with less walking to get to his office but now they could be exposed to the elements, a longer walk in this open air parking lot, and whether or not, granting a reassignment, the individual sounds like has put in for a reassignment wanting to stay working in the current building, not move with the rest of the department. And when you talk about portal-to-portal I am going to translate it in the way I hope make sense and would be applicable. The issue has come up from time to time under ADA and the reasonable accommodations obligation where an individuals difficulties are not so much once they are in the workplace, once they are actually in their office or their cubicle, their work station, wherever it is that they do their job and then moving around in the facility, but rather something about getting to the workplace. And if I understand this situation is not so much about getting from the home to the office or to the building, but rather once arriving at the building there is apparently quite, for this individual, a long walk that with the disability is quite problematic. Generally EEOC''s view has been and I think pretty much the courts have held to this, where the problem really begins once you reached the employer''s premises then there is a potential reasonable accommodation issue. The employer has chosen the building, has chosen therefore whatever parking goes with it and that may be limited if you choose the building, you get the parking that goes with it, but nonetheless, that is something the employer has chosen to do, and now that choice is posing what appears to be a significant problem for a certain employee. So in that sense, here is the person that has asked for a reasonable accommodation and they have chosen reassignment. Now, nothing would stop an employer from exploring, well wait a minute, is there anything that can be done as an accommodation that would still allow this person to stay in his current job, move with his entire department to the new place? And to sit down as part of an interactive process to be really clear what the problem is. And then that means being sometimes pretty specific. And from an employers perspective really understanding precise nature of the problem to then see is there something that might be worked out as an accommodation so this person could still move with his department to the new building. To the extent that nothing can be worked out that would be considered reasonable accommodation, or if the employer can come up with a legitimate reason that would constitute undue hardship, then there would be an issue about whether the person could be reassigned. Now if both sides, employee and employer wish to start with reassignment, that is fine as long as that is the choice that both of them made, then you don''t have to explore accommodations to enable the person to move with the rest of his department. But that should be a joint decision that you want to sort of skip that step and go straight to exploring reassignment. Of course the thing with reassignment, it is always a certain amount of risk for an employee about whether there is a vacant position at pretty much the same level as the current job the person holds, that they are qualified for, all the kinds of the rules that we know go with reassignment because if there isnt an appropriate job, then the person literally could be left out in the cold. So again I think employees understanding fully what it means to start looking for reassignment.
Well, in this case, the reassignment is a similar position for this person. The job titles are exactly the same, there are vacancies, so that is not an issue. They actually have said that they would be willing to do the reassignment, but they don''t want to do it for a number of months until they can fill the vacancy that would create for the department. And in my looking at the departments numbers, doesn''t show to me that they are losing one person would drastically cause them any undue hardship. The other part of this is the portal-to-portal issue. In the Equal Pay Act is there anything at all that talks about portal-to-portal?
Again, I am not sure what the relevance is of the Equal Pay Act here.
Well, it was brought to my attention. I have never had heard it. And I have dealt you know like I said, with ADA I have dealt with accommodations.
What I am happy to do is, if you get in touch with Robin and the people putting on this audio conference after it is over, I am happy to go into more of the specifics and get you the other information.
Okay, great. Thank you.
You are welcome.
And that would be the best way to do that would be to contact the Regional DBTAC at 800-949-4232, and they can connect you, get you connected.
Alright, thanks. Next question, please.
Thank you, our next question. Your line is open.
Okay, this question comes from an institution of higher education. Can you comment on where the responsibility rests to make reassignable accommodations for a student participating in a required internship, or co-opt at a business site off-campus. For example, a pharmacy student whose internship is at a commercial or hospital pharmacy; who has the responsibility to provide the required reasonable accommodations, the educational institution or the pharmacy?
Tough question, because this potentially could be raising issues not only under Title I of the ADA, the employment provision, but also under either Title II or Title III. It is a higher educational institution, and depending on whether it is public or private institution then that could implicate either Title II or Title III. I am making an assumption that the internship is either a required part of the curriculum, in other words that the individual must successfully complete an internship as part of the requirements for graduation, and if not, a formal requirement, then something that is either strongly encouraged, or something that is you know that many in this case, pharmacy students do as part of their training to become qualified pharmacists. And so in terms of who has an obligation here, that depending on how these internships are arranged, are they just for educational credit, is somebody getting paid, or is somebody being paid instead or something of both? How much does the educational institution do in choosing the pharmacies and overseeing the work that these students to do? There may be obligations under as I said either Title II or Title III of the ADA, in terms of making sure that this internship is accessible to this person, that if there is needs to be certain modifications because of the disability, then as I said that may still be a responsibility of the educational institution. In terms of the pharmacy, they may also have a Title I obligation. Again the fact that it might fall under what is called an internship would not necessarily preclude Title I coverage here. It is never quite as simple as saying, well either you are a full-time employee or you are something else. And if you are something else then, then it is not an employment issue under the ADA. I would have to have more facts to try and figure out whether, indeed the pharmacy too, might have some obligations here in terms of accommodations. Now the question raised, reassignment, and not knowing what the disability is, what the potential problems and obstacles maybe here, in terms of whether at a particular pharmacy, those might be resolved, whether those are things that would be true at all the pharmacies that maybe participating with this internship program. Again, without that kind of specific information, it can become really hard to figure out. Again to the extent that this is more than a hypothetical situation and there really is something going on here. Just like with the last caller, if you take Robin up on the offer of calling that 800 number to the DBTAC to provide more information, and then I could also bring in my colleagues at the Department of Education, which would enforce Title II or Title III as it regards institutions of higher learning that in terms of any obligations that may be on the educational institution as well here. Because certainly bottom line we would not want to see a situation where a pharmacy student with a disability is being denied an important part, core part of the curriculum, because there were not the necessary modifications and recognition of limitations due to the disability.
That is a tough one. That is one that gets asked a lot. That whole issue of internships that are often a key part of educational programs, but not all internships are alike. So if you think about med schools and things of that nature where you are actually an employee as well as still being part of your educational process. So it does have a complicated one, that I would recommend that that probably needs a little bit more ferreting out. Next question, please.
Yes, our next question, your line is open.
ADA Coordinator with the Minnesota Department of Human Services. I understand that an employer must reasonably accommodate a disability. My question is to what extent must an employer accommodate the manifestations of a disability and I am thinking about the Gambini versus Total Renal Care case, in which a bipolar plaintiff had disruptive and even insubordinate behavior, just short of been threatening in the workplace, and the court held that that behavior was part and parcel of the disability resulting in a wrongful discharge. Can you, I mean the case, I am conflicted about the outcome there. I am all for the extension of the protection of the ADA, but I am having trouble dispensing advice to my supervisors and managers on how much must be tolerated.
Yes, that is a really excellent question here. And you know, going back, that was a very difficult case to kind of go through. And I would you know tell people who really need to get into cases to read it carefully because I am not sure it is quite as extreme in sort of insulating certain behavior connected with the disability as a first reading might suggest. But be that as it may, I think generally under the ADA, both in terms of EEOC''s interpretations and generally in terms of court interpretations, there has been no sort of black and white cutoff between a disability and the behaviors that might result from that disability. So in other words, with somebody with bipolar disorder, and yes, there are certain symptoms that can cause certain behaviors that, that is all part of the disability. That is true. But the other thing that is true in most courts and the EEOC is that just because it is part of the disability that does not mean that there are different standards of conduct or behavior that we are going to apply to a person with a disability versus one without. Generally what the EEOC has done in looking at this is to say, look, if there is a standard of behavior, standard of conduct that an employer sets up for everyone in this workplace, and if the employer thinks about it and is called upon, would be able to explain to somebody, here is the business necessity behind it, here is why we must have certain kinds of conduct from everybody without exception. Then the EEOC''s view is someone with a disability must follow that standard of conduct. And if somebody, due to a disability did not follow it, then the employer would be free to take appropriate disciplinary action. So to give you some concrete examples to illustrate, in both our guidances on psychiatric disability and reasonable accommodation, the EEOC identified several types of conduct standards. For example, no violence, no threats of violence, no stealing, no destruction of property. And EEOC said outright, all of those are based on business necessity. Employers of all kinds cannot have a functioning workplace without those kinds of bedrock conduct standards. Those apply to people with disabilities as well as those without. And so somebody who due to a disability might well lets say, threaten someone okay, and it could be shown that they in affect could not help it, it really was because of the disability. But in EEOC''s view and I think in most courts view, the employer would still not have to tolerate it. That is just unacceptable behavior. And so, from an ADA perspective, what EEOC is trying to encourage here is that oftentimes if these problems are going to come up, it doesn''t sort of suddenly flare up out of nowhere, and it certainly isn''t the common experience that it is sort of the most extreme. Rather there are usually some incremental steps that occurred, some incremental behaviors that people sort of notice that maybe you know it is common human nature, we dont want to pay attention, you kind of sweep it under the rug, you hope it doesnt happen again because they are difficult situations. But rather than kind of sweeping it under the rug, a better approach is to deal with it head-on, and to talk to the person. If the person is saying, look, it is because of my disability, then the employer has a right to say, you know and let''s assume for a moment that that is true, it is because of the disability. That alright, understand that, but to say it is still unacceptable behavior. And this is where reasonable accommodation could come into play. The employers saying if I have to provide an accommodation so you don''t violate our conduct standard, then that is something I can do as an employer, but it is not accommodation to overlook these violations. And it is not accommodation to excuse such violations. And again, EEOC was really clear on that. Again, you can consult both our guidances on psychiatric disabilities and our guidance on reasonable accommodations. So I think for most employers it is about whatever the conduct rule is. Know that you really can say, there is a business necessity reason behind it, that you do apply it to everybody. You know, be very careful if there is only sort of selective enforcement. That for example, comes up sometimes where say somebody with Tourettes Syndrome to as a result of Tourettes Syndrome, might swear from time to time or speak more loudly from time to time or make certain noises, and where employers have say, oh, you know you can''t swear in our workplace, and EEOC goes in to do an investigation and finds out people are swearing all the time and nothing is happening to them. You cant kind of have selective conduct standards. But clearly certain kinds of jobs, say ones where you are serving the public, where yes, an employer might well have a rule that, no, you dont swear at the customers, however much one feels provoked. So somebody with Tourette''s Syndrome may not be qualified for that job. It is not about saying well, because you have Tourette''s we will excuse you and you can swear at the customers. That is the kind of a job setting where absolutely the conduct standard about how you speak and how you present yourself where it would be enforced for all people, would absolutely be fair for an employer to do. Okay.
Thank you very much. Next question please.
Thank you. Our next question, your line is open.
Hi. One of our participants was dealing with a situation where an individual had used up all of their conventional leave and had used up family medical leave and had an additional illness requiring them to be out of the office. The question is, when you are approaching that as a reasonable accommodation, what are the factors that one would take into consideration? And can you give us an idea of where the train would end in that kind of situation.
In terms of what an employer wants to think about, and again, it is always nice when I can refer people to our documents on, do consult our guidance on reasonable accommodation where we discuss the overlap between the ADA and the Family and Medical Leave Act, the FMLA. What happens in this kind of situation where someone has exhausted all of their conventional leave as you said and they are about to exhaust their FMLA leave. And in terms of whether the employer must grant them additional unpaid leave, and that is what it would be at this point is unpaid leave. The thing to really focus on or certainly one of the primary things for any employers to focus on is, what has been the result of this person''s absence up until now? I am not sure that the implication of the question is if the person has just taken a huge block of leave as opposed to doing it more intermittently, but in either case what is the consequence of this employees absence? And you can certainly look at all of the conventional leave that has been used as well as all the FMLA leave. Is it that we barely notice the person was gone? You know yes, there were some problems, but we were able as an employer to deal with them without too much difficulty. You know, whether that involves postponing certain things, whether it involves switching some employees around, having people fill in a bit more. You know again, not that there has been no impact at all but the impact has still been rather mild. Also you need to know how much more leave is the person asking for. Is the person, for example, let''s say that they have used up, the FMLA leave is 12 weeks, so they have just about reached that 12 weeks limit. And now, they are saying I need another 12 weeks of leave, so that would be 24 weeks in total. So looking at how the impact has gone the first 12 weeks, but then projecting out a bit based on that, what might we see if we granted the next 12 weeks of leave? What would happen? You know, if it is going to show that yes, we have been able to cover things. But for example depending on the type of employer, we are heading into the holiday season. For certain kind of employers this is the busiest time of year that they have coming up. This is when its everybody has to work, often times for certain employers people must work overtime because this is where employers will do the lions share of their business for the year, this is where they make most of their money. And so the ability to provide 12 weeks up till now, okay, you know you have managed, but this is like the very worst time, that may be undue hardship, it just cannot be done. On the other hand, for certain kinds of employers that may not be as sensitive to the season, depending on what the person''s job is, depending on how big the organization is, it is not that another 12 weeks will have no impact, but again, not enough that it really rises to the undue hardship level. In terms of your second question, you know, basically when is enough, enough? And sort of how do you know? The only way an employer can know is by doing the kind of assessment that I am talking about, is really taking objective facts, sitting down with the appropriate manager, other people who may be involved with this, of really getting specifics about what the impact is, projecting out over the next period that the employee or employees doctor is identifying as you know the additional leave. And you really have to put it all together. I have certainly seen situations where employers have been able to grant one or two or even three extensions, but they get to the fourth one, and now, no, now that they get to undue hardship. For some employers it is the very first request for extension and they are able to show undue hardship. But it really is important to get the best information from the employee, or the relevant health care provider, how much more leave are they estimating is needed, what is that estimate based on? Again, more than just a number, as an employer you are entitled to understand what is behind it. So if the request was for 10 extra weeks or 12 extra weeks or 5 extra months, you know, what is behind that? And how reliable is it you know? Can that be counted on? Because the one thing that has become I think clear with the ADA is that an employers obligation to provide leave as an accommodation does not extend to providing what we have come to call indefinite leave. And indefinite leave means really no solid idea when someone is coming back. You know, it could be in a few weeks, in a few months, maybe never. You know it really isn''t something that can be pinned down. Which is different say from a doctor who says well, they might be able could return any time between January 1 and March 1, that is not indefinite, that is simply a range. But it is really where the thing is, a doctor is saying, I just don''t know when. And courts have pretty much been uniform that at that point, an employer''s obligation to provide leave would cease.
Thank you very much, that is a tough one too. Next question.
Thank you. Again, if you have a question, please press the one key on your touch-tone telephone.
We have a question that came in online for you, Sharon. So I think I will go ahead and give that to you at this point in time here. A question about federal agencies following the EEOC guidelines, by implementing affirmative action plans, can EEOC actually audit an agencys affirmative action plan similar to the way that other federal audits might be done?
There is an audit process. I am not tremendously familiar, so I am going to be very careful at this point cause I certainly don''t want to give out misinformation. To the extent that somebody has a question about, that what I prefer to do, Robin, is for you to have that person contact me so I can put them in touch with our office of Federal Operations. The EEOC has a separate office, separate from mine that just deals with federal agencies, and they would be the one to deal with the affirmative action plans that agencies are required to have, and therefore with any kind of audits that would be done. That would not be something, since ADA does not have any affirmative action requirements. That is why it certainly is something that would not come from my office. So rather than misspeak, I would rather put your caller in touch with somebody else.
Sure, not a problem. Another question that we have came in online is related to whether or not a person, an employer would need to potentially hire another person to perform part of someone''s job when something might be deemed an essential function because there is no other staff among whom that task could be distributed. The example that this person gave is, let''s say we have a teacher with an ADA related disability, one that would meet the definition of disability under the ADA, who has limited stamina. She requested her employer to provide her an aide to take materials on and off the shelves in her classroom, make copies in the copy room which is down the hall, and do other physical classroom tasks. The superintendent says that there is no other staff among whom these tasks could be distributed. Is the school district or would the school district be obligated to hire potentially another person or an aide of some type to do these tasks for the teacher if they are unable or having great difficulty doing them due to their disability?
I think with limited, go back a little bit here. I think the first thing that has to be determined for any job, your example or any job, has got to be a clear understanding of what the essential functions of that position would be. Because as we know under ADA, everyone including people with disabilities, must be able to perform the essential functions. The only particular job functions which an individual with a disability might be exempted from performing would be those that we usually call marginal functions, to contrast them with the essential functions. And so in a situation like this where due to an ADA disability, the person has less stamina well it makes sense. And in fact, this is the kind of accommodation we often used as example to employers is where stamina is low due to a disability. One type of reasonable accommodation to look at would be removal of the marginal functions. Obviously it would make sense you want the person to focus on the essential functions. Those are the most critical ones. And so any marginal functions, can they be reassigned to other staff? But that begs the question, what are the essential functions? And in the example of a teacher who is asking for some kind of aide, well the first thing I always would tell an employer in this situation, is that really needs this part of the interactive process, to really sit down and find out very specifically, what is it that the teacher had difficulty doing? How often does the teacher have difficulty doing these things? I think you mentioned about taking material on and off the shelf in the classroom. Well, I am wondering if, is it possible the shelves are so high that yes, it requires more stamina maybe having to get up on a stepladder. Is it that if the shelves were lower or somehow those materials were brought to a lower site, could the teacher access them without anybody''s assistance? Similarly, I think you said something about making copies in the copy room. Well, how often does that come up? What is it that needs copying? And getting a real sense of how many steps away is it exactly, where the difficulties are coming? And I think you have to go through each and every task and go into that level of detail before we even get to this issue, is the school going to have to hire somebody else? Because some things that may turn out, there are other accommodations that can be made that potentially could still allow this teacher, with a limitation, I am not talking about ignoring them, but rather ways to get around the limitation, short of having somebody else do it. So that then you come up with a group of marginal functions that you say, yes, there is no other way to handle it, these would need to be reassigned. The next thing is to look at the statement that there is nobody available. I can''t know what that is based on. That may be based on a very in-depth assessment, but it may not be. And I think it is very important for an employer to know, again, based on now a real solid understanding of what is it we be asking somebody else to pick up on. Is there a way that the current staff could assist and maybe splitting it amongst various people? It wouldnt be just one maybe even not two people, but maybe there would be several people. For example, with the photocopying, it turns out some of it would be other teachers might be photocopying the same thing. Well you know, if I am another teacher, instead of making 30 copies of something, can I make 60 copies and then share it with this other teacher. So that might be another possibility. I don''t know enough when you said something about performing other physical classroom tasks. If there are things like the photocopying, then again you know, making sure they are marginal functions. But when we talked about teachers, for example if we are talking about an elementary school teacher, I might imagine certain tasks that may be would be described as physical that might end up being essential functions because of the grade level that is being taught. That clearly teachers who have to interact with kindergarteners and first graders or second graders where you may be down on the floor and you are playing, you know, if that is what we are talking about, then those may well be essential functions. And so you would have to assess very carefully. Two final points, I think the questioner brought up about, if there are no other staff amongst to whom the tasks can be distributed. Well, that really is one of the factors that EEOC identified in helping all of us to determine what is or is not an essential function. But again, it would really need to be carefully done to reach the conclusion that there are no other staff amongst whom the task can be distributed. I think that is critical about making sure that is a true statement, what supports that statement. Who is it that the teacher may have in mind, who is available to help out, is that someone that the school principal has considered or not? And finally, cause now I have not tried to dodge it about hiring somebody. If something is a marginal function, then by definition, it is to be reassigned unless undue hardship can be shown. But if by definition it is a marginal function, then I think the employer needs to think carefully about, is it really going to be necessary to hire somebody? And if so, what are we talking about? Somebody coming in for an hour to do something or somebody coming in eight hours everyday, I can''t imagine it would be as much as that, in order to determine that there is undue hardship. Merely saying we think we may have to hire a part-time worker to pick up marginal functions that would be undue hardship. Again, like any undue hardship defense, the employer has to be prepared to show what is behind that and not simply the fact we have to hire somebody. And whenever its coming into hiring people, I really tried to work with the employers to make sure they really considered every other possible option before they go there. And if they get to hiring somebody, make sure they really are documenting why it is so many hours per day or per week and what the cost would be and how they assess that that would be undue hardship. So I cant say it is a blanket statement, it may not come down to hiring a part-time aide, but there is so much more I think behind this question that I would really encourage the person who sent it in, to really take time and explore all that and not just focus right away on the potential to hire a part-time aide.
And I think that really is an important issue, is that that may be one option, but there may be other options. I was saying you know, trying to keep your mind broader and the fact that there may be many potential accommodations, whether they are reasonable is a case-by-case issue.
And often times employees themselves sort of set up by what they asked for. And I don''t know if that is true here, but I certainly have seen situations where I have had teachers asked for, you know please hire a part-time aide or to take it out of an educational setting, other settings, where the employee themselves have put that forth as well, hire somebody. And I think employers are not limited by that. I mean I always tell employees they too should think broadly. Don''t sort of narrow what the options may be. You just want your limitations met. How that is done, you know that could end up being a variety of ways. So you don''t want the employee to too quickly narrow what the discussion is around. But an employer shouldn''t feel constrained by it either, and should feel free to say, well, lets wait a minute, lets see what the limitations are, and lets see if there are other options other than hiring somebody.
And truly if an employer engaged in an interactive process that would be part of that.
Absolutely. It should be, it should be.
Okay. I have another online question, which is: What is the time frame in which the EEOC must respond to a formal complaint, and do any of the time frames coincide with the courts of law time frames? So when you can file a complaint or when the courts would have any constraints of time frames?
I certainly don''t have information to answer what the time frames would be in the courts. And I am going to interpret that this is a question dealing with the private sector, not the federal sector. They each have different.
I would assume thats also that is true, private sector.
Okay, because there are different time frames. So, I can''t answer in terms of the courts. In terms of the private sector, EEOC has 180 days after a charge is filed, in which its in essence our prerogative to hold onto it, to investigate and to try to reach a resolution. Now if EEOC for whatever reason is unable to reach a resolution by Day 180, then a charging party the person who filed the charge, is entitled to ask for what we termed A Notice of Right to Sue. Basically through whatever communication, through a letter, through an e-mail, I mean you know make sure it is something that you can document, but you are entitled to say, by my count it has been 180 days and I would now like the right to go to court. And at that point, EEOC must let it go. We have had 180 days, and we cannot justify holding it any longer, so at this point we would give A Notice of Right to Sue, which every charging party must have before he or she can go to court. So if somebody say at Day 90, tried to file in court, the court would dismiss it immediately, it is too soon. But, and similarly, if 180 days go by and you don''t have the actual Notice of Right to Sue, a court is going to be looking for that, so you want to make sure that you ask the EEOC office that has your charge after 180 days, please, give me a Notice of Right to Sue. And at that point the individual has 90 days in which to file a lawsuit and people need to keep that in mind. For example, when I have been contacted by charging parties, and I will say well if you are thinking about getting a lawyer, you might want to do that first, and then ask for the Notice of Right to Sue. If you get your Notice of Right to Sue, then the 90-day clock is ticking, and if you have problems finding a lawyer and now you are at Day 88, you are not going to get an extension. So sometimes it makes more sense to get the lawyer first, if that is what you want to do, and then ask for the Notice of Right to Sue.
And just for clarification, some people because their states may have agreements under their state laws with the EEOC, there may be a longer time frame available in certain states for filing?
For filing with the courts? Or EEOC?
With the EEOC.
Well, okay, in terms, I think what you are referring to here is, filing of the charge. So before we ever get to removing a charge from EEOC and allowing someone to go to court instead, yes, there are two different potential time frames. We start with 180 days, 180 days after the alleged discriminatory event, whatever that is. As soon as the individual knows or should have known that there was this alleged discrimination occurring, now we got a clock ticking, you have 180 days to file with the EEOC. Or, if you are in a state, or sometimes it is a city or county, excuse me, it is not just states we look at, that has an equivalent anti-discrimination law, then instead of having 180 days to file, you have 300 days to file. You actually get a longer period, and either you are going to choose to file with the EEOC in those 300 days or with our sister agency, if it is the state agency or a city agency or a county agency. And EEOC has work sharing agreements with almost all of them as to, well who is actually going to do the legwork or who is going to actually investigate this charge? And sometimes the said state agency will send it to EEOC and sometimes the EEOC sends it to the state. So that can differ. But the two things that any individual thinking of filing needs to keep in mind is either 180 or 300 days. And what I tell people because I don''t have it memorized across the country is I will always tell people to find that out first. Easy enough, call our local EEOC office wherever the person is located. Know whether you have 180 or 300 days and then you can work from there. But you got to make sure, you file your charge within either one of those time frames or else you lose the right forever either to file a charge or to go to court on that matter.
Is the state then bound by the same time frame in regards to responding to a charge as the EEOC processes for the number of days and things?
You know, I don''t actually know, Robin.
Okay. I just wanted to make sure I was exploring that question fully for that person.
I can try to find, I mean it would make sense, but again I don''t want to mislead people. I don''t know. You know because again, I mean they certainly would be to the extent, say it is ADA, I don''t see that it could be any different. But state laws we wouldnt control, so to the extent of state law would perhaps set up something different. Now a lot of states have tried to follow the federal law and that makes sense but this is going to get way too confusing to have totally different timelines going here. So my guess is they are probably similar in most places. But without checking it individually, I don''t want to say.
Sure, okay, great. Any other questions, please, from the audience?
Yes, our next question, your line is open.
I have a question, an employee has visual disability and cannot drive in the darkness. The employee is requesting to be able to arrive at work and leave work during daylight hours this winter. The employee''s commute is approximately 40 to 45 minutes each day. The employee''s job duties are not conducive to working at home. Any comments?
Yes, my first comment is I would sit down with the employee, and as an employer, I would say, you know I don''t believe that your job allows you to work at home. I mean I don''t think there are elements of your job that are capable of being performed at home, clearly you do because you have made this request, so tell me why. I mean, that is where I would want to begin this, is where an employer has such a radically different view than the employee and based on your question, they are irreconcilable. I mean one is saying in essence I can do it from home, and the other side saying, no, you can''t. Well, only one can be right about that. So, I would use the interactive process to start there. I mean I am skipping over what I think most people now know about the interactive process is that certainly an employer would be entitled if it wanted to seek documentation verifying that this is an ADA disability, a disability as the ADA would define it. Certainly the idea of what this would fall under is kind of partial telecommuting. EEOC has recognized that as a possible reasonable accommodation, it is not asking for full days, it is not even asking on an annual basis, it is just taking cognizance that days are shorter in the winter months and so asking for that period to partially telecommute. And here again understanding exactly what the essential functions of the job could be, here too could be an example where marginal functions could come into play. Assuming that the person could do all his work in the building and the office setting, during daylight hours, but what would be left out, would be marginal function, then under an ADA analysis, the reasonable accommodation to avoid the whole telecommuting issue, would be you drop the marginal functions for the winter months. Now again, this is you know supposing there are marginal functions, this is supposing there would be no undue hardship. Doing this, this is just sort of the brainstorming about what might be other ways to address this problem. It can end up being a combination of things. I certainly see lots of examples where it is not one accommodation but it could be two, three, four different accommodations. And sometimes by giving multiple accommodations you avoid what seems extreme, like here you know, every day for a few months, altering the hours you are in the office. If you can work out, again knowing precisely the problem and again knowing what are the essential functions, the marginal functions, it may be possible that with one or two additional accommodations maybe instead of five days a week doing this sort of partial telecommuting, maybe it is only going to be two days a week. Maybe it goes down to zero days a week because you can fill in with other accommodations. So I think that there is a lot more information that needs to be here. But nothing wrong with asking an employee, you tell me, I mean you know I am maybe missing something. What is it that you could perform at home and how would you do it? How would you get the work home? How would you make sure it would get back into the office in a timely way? Is it that there is equipment that wouldn''t be there that the employer is concerned about? Is it about so much, so many files and documents would have to be taken home? Clearly in this day and age with all we hear about things with computers getting mishandled or misplaced, if there are sensitive files, making sure that those could be protected at all times, if there is talk about removing things from the office. So lots of different issues I could see that would have to be discussed before you could even begin to say whether it is possible to grant this particular accommodation or any other one.
Yes, I think telecommuting or any of these issues when you talk about potentially even looking at a reduced work day.
Yes and that is I mean a reduced work day is even more extreme because then you are talking about somebody who is working less than whatever you would define as full-time and then that can have all kinds of implications potentially for salaries, potentially for benefits. Again, I think always with accommodations, you try not to go to the more extreme things unless that is really the only way to address something. And again with something like this, that could only potentially be a few months, you hate to kind of set up something far more extreme like reducing the hours over all.
And I think the other thing is like when the work needs to be done, if I have a 40 minute commute, which means that my telecommuting would have to happen outside of those you know time frames. Well, you know my job is such that I have to operate and do my job within the hours of operation of the organization, that will have another impact.
Well again, I mean there are some things that depending on what like, you know if you have to do things only during certain hours because that is when the public is going to call you, you know, it is no good for you to say, I will be available at 8 o''clock at night but you know the public doesn''t contact us at 8 oclock at night. Those kinds of things as I said you really have to get into the nitty gritty of the job, the purpose of the job, who does this person work with, who do they work for, what they do. All of that has to be done before you can even begin to try and intelligently discuss what may be viable accommodations. And that is before you ever get into, is there any undue hardship on the employer? I mean the first thing you want to know if there is something that looks as though it might effectively meet the need of the employee. At that point then it is fair for an employer to say, it may be your need, but here is where it is not, not only not meeting my needs but it is really more than that, it is causing undue hardship.
Okay. Any other questions please?
Thank you, our next question, your line is open. Robin Jones : Go ahead.
Yes, I have a question, where you have an employee who has a psychiatric disability and it is recommended that they have a job coach work with them to kind of help them get the hang of doing the job. But the employer has a problem with this because of the confidential aspect of the job, for example, confidentiality of either like student records or medical records or things like that. Do you have any thoughts on how that could be addressed?
Yes, I think that the organization providing the job coach should be brought in because my understanding with the job coach is the same understanding that I have around sign language interpreters, that they must maintain the strict confidentiality. And that you know I think maybe the employer needs to understand that this person sort of their professional standards and ethics require that. Because that is a legitimate concern that the employer is raising, is that apparently this individual with a disability has been hired to do a job that involves confidential records. It may be that the confidentiality is even required by law. So the employer''s interest in this is reasonable and understood. So I think the first thing is to really have the employer talking with ideally the potential job coach but also the organization that would be providing the job coach. In terms of talking quite directly and bluntly about the confidentially concerns and I hope that the employers concerns can be met, that it is not necessarily something that can''t be dealt with, so that this individual can have the job coach, can deal with the records appropriately, and that the job coach in no way is going to compromise that confidentiality.
Thank you. Next question please.
Thank you, our next question.
Hi. We got a call this morning from an individual who works for one of our state agencies and the job deals with confidential information again. This individual employs his own personal care attendant, and he was recently asked to have a query check on his personal care attendant. How would one appropriately address that situation?
I am sorry, what did the employer asked to be checked with the personal care attendant?
Criminal record check.
I am sorry, okay, a criminal record check. And why does the employer want this?
Because the PCA may wind up being exposed to confidential information.
And do they have all other employees or people who working in the organization, do they all have those kind of checks as part of their job?
Their employees, yes, but this individual is not an employee of the agency, they are an employee of the employee''s.
Well, I guess I mean, what I would first want to know is, why would this individual potentially be exposed to confidential information? Is it that it can''t be walled off or where I am imagining the personal attendant coming into play in terms of assisting the employee with a disability, I don''t necessarily see that it has to be with the files all right there or not, you know with the employee first moving files away, covering them up. That, instead of doing this criminal background check, instead approaching it from a different angle, that this personal care attendant in no way can get access to this information. I don''t know whether the personal care attendant only comes in at certain times of the day to assist this person, or whether this person is going to tag along the entire day? It would certainly seem as if they are coming in only at designated moments, that there should be a way to make sure that they would never see the confidential files. So I again, I am wondering if it is premature to go to, you know, can we require a criminal background check for someone who is not our employee as opposed to, certainly holding the employee responsible, this is confidential information, you are not allowed to share it with outsiders which would include your personal attendant, that there is no reason your personal attendant should need to see this. And instead sort of between employer and employee, discussing how can we insure that at all times the information will remain confidential and out of reach to the personal attendant.
My understanding of the situation is that the personal needs are much more extensive and the attendant really would be around pretty much all day.
Well, I still would want to know why is it that the personal attendant would have, I mean where is this information? Is it just scattered around the office that the personal attendant couldn''t help but see it because the files are everywhere? And is that really how it needs to be done? I mean I would still want to explore more information before I mean, can the employer require it? I don''t know that they, whether they can or they cannot, as you pointed out, it is not their employee. And in terms of saying ultimately this would be a requirement, that before we even allow your personal attendant into the workplace we have to have a criminal background check, I am actually not sure what that accomplishes. Because you could do all that and it is fine, and arent you still compromising confidentiality by letting this person see files they are not entitled to see because they don''t work there. So it still seems to me one way or another, it keeps coming back to, you know, is there a way to protect this information and keep the personal care attendant out of it, and as I said not knowing exactly what the personal care attendant does, that the employee will always have time before using the services of the attendant to make sure that you know, the computer screen is turned off, files are pushed away. That you know again, it would become as if the employee just carelessly took a file and left it in a restaurant. That the employee is the one that would have the additional obligation here to ensure the confidentiality is maintained and if it at any time the employee through negligence or carelessness say allowed the attendant to have access to it, then that would be treated no differently than finding out that an employee took one of these confidential files and simply carelessly left it at a restaurant for anybody to look at.
Thank you, that was very helpful.
You are welcome.
Thank you. Again if you have a question, please press the one key on your touch-tone telephone.
Sharon, we have a question online submitted here as we are ending our day here. Another one, this is an individual about parking. And a question related to the fact that you have an employee parking lot that is a health-care providing facility but it could be any facility I guess. And you have an employee parking lot that is further away than parking lot that is used by visitors and such, and you have within that employee parking lot, accessible parking spaces as would be required by the statutes and things of that nature, and you also have visitor parking which also has designated accessible parking areas. And the employee has a placard from the state and has a designated you know, parking permission or whatever to use accessible parking spaces and wants to park in the parking area that is designated for visitors versus the area that is designated for employers, employees. And the employer is saying that those spaces that are designated for the visitors needs to be maintained as available for visitors, which are typically short term coming in out, maybe for an hour or two whatever versus using for the entire day, to meet the need of the individuals that would be visiting. Issues there related to accommodations and such for the employee. You know again, this is the information submitted does not talks about, only talks about the fact that the person has a placard from the state, and we do know that eligibility for a placard is different than what might meet the definition of disability under ADA or state law for accommodations. But, that is the question.
Well in that is an important place to start, Robin, because there are times that I think it is important as an employer to perhaps explore what the disability is and to be explaining to the individual that the fact that he or she has this placard does not necessarily mean that what the individual has would qualify as a disability under the ADA. And that frankly is a very confusing concept, and understandably so for many people. It is you know, hey, I have been told I have a disability, what do you mean now you are telling me that I don''t? Also it is probably people, yourself included Robin know better than I do, to the extent that certainly there can be state law that you know, ADA Title III requirements for I think you said it was a healthcare provider, anybody covered under Title III as a public accommodations certain requirements for accessible parking spaces. You have to have so many for however big the parking lot is whatever. And I actually think that the employer would have a legitimate issue about an employee where the employer knows it is an employee who is taking one of those spaces. In essence that may put the employer at risk of liability that it is actually not providing sufficient accessible spaces as required under Title III. Now if it is quite a large parking lot, and you know in addition to meeting the Title III ADA obligation for parking spaces, if there is room to put another accessible space, not one of the visitor''s spaces, but rather a space that is accessible for this employee, and again, it goes back to understanding why this person needs it. What the precise limitation is. Not that they may have an accessible space, but that a designated space could be allocated closer than where most employees park. That again, if a disability means that this person has a much more difficult time traveling the length of the parking lot or wherever the employees are parking, and that, that is the reason they need to be closer, and yes, they have looked at the visitor parking. But again, if we could put a parking space much closer and it would be reserved in essence for this employee, and if that can be done, sometimes people, again, we want to maintain confidentiality, so you don''t necessarily you know put up a sign with the employee''s name. You might put up a sign that references, say the employees license plate, as a way to try to you know not violate the confidentiality. But there you might be able to provide an accommodation. Again not what the employee asked for, but something that may well meet the medical needs. And that is always the touchstone. And that is why it is so important to be using the interactive process for an employer to make sure he or she is clear, tell me what your need is, don''t fixate employee on the visitors spaces, tell me why the employee parking doesn''t work for you, explain why your disability necessitates something else, but be open to, if it is not the visitors space suppose we put you right at the end of the visitor''s spaces or we put you on this side of the parking lot, or anything that would get you closer to the building. If that meets the medical needs, there is your reasonable accommodation.
Yes, obviously parking is a huge issue that comes up all the time and has a lot of complexities when you talk about meeting the definition for a placard or a license plate designation versus meeting the disability and what that means if I am at a restaurant versus when I am in an employment situation where parking is you know it is a privilege, not necessarily as a right too. So case-by-case analysis issue there as well obviously. What if the scenario was in this case this person identified, lets say the employer had an area for executive parking that was different than general employee parking. Would they be required to consider that area being able to be used by somebody who needed it as for a disability even though they did not qualify for as an executive?
Generally the way the EEOC has been approaching parking is that it is a benefit of employment. Not all employers provide it to begin with. And then as this example illustrate, they are providing parking, they may make distinctions. And in this case, the distinction is that the executive get the more desirable places and regular employees get the less desirable parking spaces. By looking at it as a benefit of employment, reasonable accommodation does not entitle you to additional or different benefits. And benefits can be like you know, if an employer gives two weeks of paid leave, reasonable accommodation is not well, you give them three or four weeks of paid leave, no, you get the same benefit as everyone else. Here an employee who is not an executive, well, they get a certain benefit, they do get a parking space but not in the same desirable place as the executives. Therefore I think that the way that this would most probably be looked at, is no, the employee with the disability would not be entitled to insist, just give me a parking space where one executive is and make the executive take the less desirable place with all the other employees. Rather, accommodation would be looking at getting the most appropriate space in the regular employee parking lot for this person. But you would have to confine to looking within the regular employee parking lot. So for example, again, if it is usually first come first served and we are dealing with let say something that is severely restricting mobility, what would be the space that could be again reserved for this individual designated only for his or her use that is closest to the building? That would be the most accommodation that this employer could provide. If the employer chose to assign this person to the executive parking lot, that would not be viewed as reasonable accommodation, that would be viewed as something outside the law. Employers are entitled to go outside the law, but I can understand why an employer is going to be reluctant to do so, because we could all imagine how quickly other employees would be asking similarly you know, can you please give me a spot in the executive parking lot? So I think the employee with the disability needs to focus on what exactly my need is, what would be the best available space in the regular parking lot to meet his needs, and then is there anything else as supplemental accommodation that might be possible in this situation. But it is not going to be necessarily the perfect solution that the employee is seeking.
Okay, great. Well, thank you very much and we have gone a little bit over but I think that the information and the questions today were very diverse and a lot of different things there. I want to think Sharon, for your time and for responding to the questions in many areas that people had questions about today. I hope this information was useful to people. As I indicated earlier, the transcript as well as the audio recording will be available on the www.ada-audio.org website. I do encourage people who didnt possibly have their questions answered today or get a chance to ask their questions, to contact their Regional ADA Center at 800-949-4232 for additional follow up that is both voice and TTY on these issues. I also invite people to join us for our December session which will be next month on December 18th. And that particular session will feature Peter Blanck from the Burton Blatt Institute at Syracuse University in New York and the topic of that is Disability Law and Policy, Present and Future. This particular session will look at previous research efforts and look at role of research policies and law in advancing the civic, economic, and social participation of persons with disabilities. I invite you to go to the website to look at the full description of the session and consider joining us next month. We will have a guest moderator, Shirley Kaplan, who is the Director of the Southeast ADA Center, next month as well. So I again, invite you to look at not only our December session but also our full year and complement of sessions which cover a variety of different topics. So again, thank you very much for joining us. Again, thank you Sharon, for your time and effort today. And I hope everyone has a good day and a good rest of their weekend holiday upcoming. Thank you very much.
Ladies and gentlemen, thank you for your participation in todays conference. This concludes the program, you may now disconnect. Have a great day.