We''re at the top of the hour at this time, and it''s approximately 1:00 o''clock p.m. central time which means I should have a corresponding time in whatever time zone all of you are in. I want to welcome you to our legal issues webinar series. My name is Robin Jones and I''m the director of the DBTAC Great Lakes ADA Center. This program is being brought to you by the ADA National Network and is coordinated by the DBTAC Great Lakes ADA Center. In a moment I''ll introduce our speakers, but let me go through some logistics for today so we know what is going to be happening. We have individuals today connected through the webinar system and listening now through your own computers. We also have individuals who for one reason or another are unable to access the system, so are listening to us through telephone. Those of you that are listening through the telephone; hopefully you have gone forward and downloaded the copy of the presentation from today so you''re able to follow along on the slides. Those are available in your account when you logged into the ADA-audio .org. If you''re registered for the session and you log in using your user name and password, you should be able to see the materials and be able to down load them for viewing purposes. For individuals who are using captioning, you will be able to ask questions directly through the chat area as will everyone else in the system. Those of you on the telephone, you will need to send us an e-mail to ask a question since you don''t have access to the system. You can do that through two -- any one of two e-mail addresses. One is ADATA@adaGreatLakes.org the other one is ADA conferences, one word, at ADAGreatLakes.org and we''ll relay your question to our speakers today. At the conclusion of this session, we will be sending you out a link, an e-mail and link to an evaluation. Your input and feedback is very important to us, so we ask you take the time to fill that out. It shouldn''t take you very long. It''s an online survey, so just follow the link in the e-mail. Again, everyone should have access to the materials from today. If you''re registered, you can log into your account again and access or down load those presentation materials. We do not have any supplemental materials that go along with today''s presentation other than the actual PowerPoint presentation from our speakers. So I''m going to go ahead today and introduce our speakers. And just so that we''re all on the same page here in relationship to what we''re doing, hopefully everyone is logged in because you are here for the EEOC and the ADA session. We have three speakers who will be joining us today, and our first is Barry Taylor and then we have Alan Goldstein, both from Equip for Equality and I''ll give a brief introduction in a minute and Deborah Hamilton an attorney with the equal employment opportunity office in Chicago and Barry will do a more formal introduction of her once I turn the microphone over to him. Briefly, you can access the full bios for Barry and Alan on our website at www.ADA-audio.org by just clicking on the legal webinar series and choosing speakers. Barry has been with Equip for Equality since 1996 and the legal advocacy director at Equip for Equality. He has extensive experience in a variety of ADA cases and issues and leads up a team of attorneys at Equip for Equality dealing with ADA as well as other issues. Alan is a senior attorney at Equip for Equality and has been actively involved in ADA litigation. He also coordinates our Illinois ADA project, which is our affiliate for the state of Illinois under our grant doing a variety of activities, training, education and technical assistance in the state of Illinois. So without further adieu, I''m going to turn the session over to Barry. Barry, you can go ahead and introduce Deborah, our guest speaker and I''ll have you take it from there.
Great. Thanks, Robin. We''re really pleased today to have Deborah Hamilton join us today. Deborah is a trial attorney for the EEOC in the office in Chicago, and has extensive experience working on discrimination issues, including litigation under the ADA. In fact, she is part of the team that is involved with the largest resolution by the EEOC on one ADA case, so she''ll be talking about that case, as well as others. She''s been with the EEOC for nine years, so she has a lot of experience and has seen things evolve over the years. In the past what we''ve done is have Alan and I talk about some of the litigation developments, but since the EEOC is a major player with respect to ADA and title 1 for employment, we thought it would be great to have a speaker from the EEOC give their perspective on the ADA, explain how their role fits into the ADA litigation and explain how their cases work. I''ll turn it over to Deborah and she''s going to speak primarily and stop and take a break. With time remaining Alan Goldstein from our office will give a perspective of working with the EEOC and maybe some tips for employees that -- to supplement what Deborah''s saying. With that, I''ll turn it over to Deborah. Thanks.
Thank you, very much, Barry. I''m happy to have the opportunity to speak with this group. The EEOC welcomes this opportunity. Today I''m just going to walk all of those who are listening through some of the basics of the EEOC and our role and talk specifically about a group of cases I personally have worked on that I think illustrate the breadth of the EEOC''s enforcement under the ADA. I really encourage all of you listening to get involved with the conversation and send us questions, let me know what''s on your mind because I want to be sure that I talk about the issues that are most important to you. Id like to begin with an introduction to the EEOC process. What we do and how we do it. As Barry said, we are a critical player in compliance with the ADA under title I. Of course, the EEOC does not only enforce the ADA. Our enforcement responsibilities extend to enforcing all of the federal laws that prohibit discrimination in employment. We enforce Title VII of 1964, the Equal Pay Act, the Americans with Disabilities Act, the age discrimination employment act, and most recently, we''ve added the genetic information nondiscrimination act which has some interesting overlaps and intersections with the ADA. So the ADA, as I''m hoping that all of you know, protects individuals who have disabilities. It prohibits most medical inquiries prior to a job offer being made, and it requires the disabled applicants and employees be provided with a reasonable accommodation where doing so would not cause an undue hardship to the employer. This is really a critical point because people often think that failing to engage in discrimination simply means treating all employees the same. What''s important to know about the ADA as a starting point is that it''s not just about treating employees with disability the same way that other employees are treated. Instead, it''s recognizing that an employer may have the duty to make specific changes to the way work is done, or to the work schedule if those changes are quote unquote reasonable anticipate would enable the disabled employee to perform the essential functions of the job. We''ll get into this in more detail, but I think it''s important to lay out how the ADA requires more than treating disabled employees as all other employees are treated. I also wanted to specifically say a few words about GINA. The genetic information nondiscrimination act prohibits genetic discrimination in the workplace. This is a very new law. It just took effect in November of 2009 and it forbids using genetic information when making employment decisions. It restricts an employer''s ability to acquire genetic information and limits disclosure. It''s a very new law and we really don''t know yet exactly what the case law is going to look like under GINA. Genetic information is any information regarding an individual''s genetic tests, the genetic tests of an individual''s family members, and any diseases, disorders or conditions of an individual''s family. And family medical history is included because this information is often used to determine what diseases or conditions an individual is pre-disposed to get. As I mentioned, it''s a very new law and up until April of 2010, we at the EEOC had only received about 80 charges from individuals alleging discrimination under GINA. In order to make the law come alive, I want to give you all an example For example, there''s a woman who claims that she was terminated after her employer discovered that she was genetically pre-disposed to breast cancer. She went for genetic testing after her sister was diagnosed with breast cancer, and then had a double mastectomy as a preventive measure. When she returned from surgery, she was given fewer responsibilities, demoted, and then fired. So this is the type of situation where we are now able to take action under GINA. We''re going to shift gears now and talk a little bit about the EEOC process, so you know what statutes the EEOC enforces, but the question is how do you get to the EEOC and what happens when you get here? The way that you get to the EEOC is usually an individual comes in and files a charge. Under most of the statutes that are enforced by the EEOC, the filing of a charge is mandatory. So an individual cannot proceed to litigation without filing a charge with the EEOC. And the exception there is that''s not true under the EPA. But once an individual files a charge, both the individual and the employer are generally, in most cases, offered the opportunity to try to resolve the charge via mediation. Mediation is a separate process, entirely separate from litigation taken investigative side of the EEOC. And many, many charges that are mediated do, in fact, resolve themselves that way. You can see that''s the little section of the chart that''s on the left-hand side of the chart, individual files a charge, is offered a chance to mediate and many, many cases are resolved that way. And a process that''s entirely separate from the EEOC''s other enforcement investigative efforts. And we do have trained mediators on staff who conduct the mediations. If a case doesn''t resolve during mediation, and there are certain cases that are not offered the chance to mediate, there will then be an investigation. EEOC has many trained investigators on staff. Usually the first step in investigation is that the EEOC will issue an RFI, which stands for request for information. They''ll have the employer to provide certain information and will interview the charging party. Different types of charges get different levels of investigative scrutiny. A charge can, after a very short investigation, either be withdrawn, closed, in which case a right to sue letter will be issued to the charging party. Once the charging party gets the right to sue letter, it triggers the time frame for the charging party to go file a claim in federal court. Then, after -- if that case doesn''t proceed along that path, it can also proceed to settle, to be resolved during the investigative process. This is different from mediation. Once a case is in investigation, the Vetter can agree to facilitate settlement or a negotiated resolution of the charge. Many charges do settle in that manner. But then there''s another set of charges for which the EEOC may issue a cause finding. A cause finding means the EEOC has conducted an investigation and found cause to believe that there''s been a violation of the law. It''s very important to note that neither a cause finding nor a no cause finding is ultimately binding on a federal court. So even if the EEOC says, yes, we think discrimination happened, or, no, we don''t think it happened, that does not determine what happens when you go into court. It does reflect the results of the EEOC''s investigation, but it doesn''t ultimately determine what happens. Once there''s been a cause finding, the parties can go through a statutorily mandated process called conciliates which is an effort to try to solve the case, which means resolution. The hope is if EEOC finds a violation, there will be a negotiated resolution which will save both the parties and the EEOC time and expense from ultimately litigating. If the parties are not able to reach agreement via conciliates, there''s conciliates failure and you can see in big red letters there''s two options. The EEOC can litigate or, again, the EEOC can issue a right to sue letter and the case could be referred out to a private attorney for litigation. EEOC only files suit in a very small number of cases, only one in ten of cause findings are litigated by if EEOC. So I hope this has given you a little bit more clearly of an idea about what happens in the EEOC process. Again, there are many opportunities to try to resolve the issues along the way. I''m going to say a few words about each of the stages of the process in a bit more detail as we move along. As I mentioned before, mediation is an available as an alternative to the investigation and litigation processes, and it''s a way to resolve disputes before an investigation gets involved. A mediator is a neutral party to the dispute and helps the party negotiate a fair and reasonable solution. And Equip for Equality has a mediation fact sheet that may be helpful to you if you''re considering the mediation process. It''s important to know the mediators are trained experts. They are experienced in both mediation and EEOC law, and in that way, they may be able to offer parties something the parties couldn''t simply do themselves. We often find that both sides come in with an entrenched view of the facts and the mediator can''t say who''s right or wrong, but they can explain to both sides this is what it''s going to look like if you go forward, this is what an investigation requires, this is what it involves and they can educate both sides about the law. In most cases, both sides are facing some risk. The plaintiff may feel that they have a very strong claim, and the employer may also feel they have a very strong claim. But as any experienced litigator knows, nothing is 100%. And the mediator can add value by making both parties aware of the risk. Just because an employer and employee haven''t been able to work out a resolution by themselves is not a reason to reject the idea of participating in the mediation process. It''s also important to note the mediation process is confidential. It''s completely voluntary. If either party -- if the employee or the employer says they don''t want to participate, then that''s it and the case will proceed to investigation. So it is not a mandatory process. It''s an entirely voluntary process. There''s no financial cost to participating in mediation, and mediation has actually a very high success rate. As you can see, in 2008, 72% of the cases in mediation reached a settlement. It''s also important to know that agreements reached mediation are enforceable in court. We''ll come back to this when we''re talking about what the EEOC requires in settlement because it''s a little bit different. When the EEOC actually litigates a case, we require what''s called a consent decree. That''s a process where the court is involved in monitoring the parties'' compliance and retaining jurisdiction. With a mediation the parties reach an agreement and if one of the parties doesn''t comply, the other party has to go in and enforce the agreement so there''s not a judge who''s already involved. There''s no open and ongoing proceeding as there is with a consent decree. But it still is an agreement that''s enforceable in court. Now I want to talk a little bit about EEOC investigations. I''m sure that all the employer representatives and employees have probably been frustrated and wondered what is the EEOC doing? I filed my charge, I haven''t heard from them. What is going on? So, first of all, it''s important to understand that EEOC does have a large workload and things may proceed slowly. You need to prepare yourself for that. At the same time, the investigative process is taken very seriously and done with great deal of attention and care. So what I want to talk about here are what both employers and employees can do to try to make the investigative process more effective. An EEOC investigation is not limited to what''s alleged in the charge. That means that the EEOC can follow up on any discrimination that''s uncovered in the course of an investigation. A frequent situation that happens is an employee will come in and say I believe the employer improperly denied me a reasonable accommodation, so they''ll file a charge on their own behalf. Then the EEOC will ask the employer to give us some more information about, for example, all of the employees who have been accommodated at that facility or who''ve requested accommodations at that facility, and the employer will complain, hey, wait a minute, the individual wasn''t complaining about discrimination against everyone at this facility with a disability, they were just complaining about discrimination against them, why are you looking at this? It''s really important to understand the EEOC can select whether a class was discriminated against, even on an individual charge. Its also important to know that the EEOC can issue a subpoena if the employer fails to provide requested document or witnesses. So failing to cooperate is really not a good option. If the EEOC has to go in and enforce a subpoena, what was previously a confidential investigation will become a public subpoena enforcement proceeding. The fact that a charge has been filed is generally confidential but not if EEOC has to go to court to enforce a subpoena. And, obviously, EEOC, we believe we can fulfill our duty to investigate charges more effectively if we get better cooperation from an employer and simply refusing to cooperate is something that causes us great concern. We do go to court and enforce subpoenas against employers and it''s obviously something that we think resources could be used more effectively if we had better cooperation. With regard to EEOC investigations, we want you to know out there, employers and employees, that there is a statutory obligation to tell the truth and it''s not just an obligation to avoid making false statements. It''s also an obligation to avoid concealing or covering up material fact. This means when you get a request for information for the EEOC, you need to look at it thoroughly and respond carefully and respond completely and fully with the knowledge that you have. In terms of the work of the EEOC, we''ve been receiving an average of almost 90,000 charges a year. Cause Findings are made only on about 5% of all charges, so that''s a very small number. As I said before, this doesn''t mean that no discrimination occurred with regard to no cause findings. There can often be many reasons for a no cause finding. Sometimes people will request a right to sue very early on before the EEOC really has done very much of an investigation, we don''t know what''s there. Sometimes the EEOC, we can''t do a full investigation of every charge, we may only look at something in a more cursory manner so a No Cause Finding does not mean no discrimination occurred. It just means the EEOC''s investigation didn''t reveal it for a variety of reasons. And out of the Cause cases that we look at, only about one in ten is actually litigated by the EEOC. So you''re lucky, your chances of facing litigation by the EEOC are small. We''re not a large federal agency. We''re small. We have a small budget. We try to get a lot of bang for the buck for the taxpayer, so we try to litigate cases that we think are significant and will push the law forward and we also try to serve a public education mission through our litigation and through efforts like this in reaching out to all of you. In terms of the EEOC and our ADA statistics, I thought you all might be interested in seeing this chart which shows a little bit the type of role that the ADA plays in our enforcement efforts. As you can see, the number of ADA cases that we''ve been receiving has been steadily increasing. I would expect that to continue particularly since, as I''m guessing you all know, the ADA was amended recently and I think with the amendments there was more public education effort on the amendments also, we hope, will now make it easier for individuals with a disability to get relief from the courts. So I think that may lead to more individuals coming forward, but even prior to the passage of the ADA amendments, you can see that the number of ADA charges we were getting is increasing. I was hoping you could see at the bottom of the slide the amount of monetary relief EEOC has been obtaining through ADA claims has been increasing. I think what this does suggest is that courts, juries, employers are becoming more sensitized to the role of the ADA and are recognizing, listen, we have some problems here, we need to resolve them. How are we going to resolve them through settlements, through jury verdicts? The amount of monetary relief we''ve been able to obtain for claim ants has been increasing. I''m not going to say more about the chart. There''s a lot of detail here. I''m happen to answer questions and explain any particular categories if those are of interest to all of you out there who are looking at the chart. Here I want to offer a little advice specifically for the employers and employer representatives out there listening. If you do find yourself one of those approximately 5% of employers facing a cause finding, what should you do? This is often a point in time when an employer starts to panic and also all kinds of accusations, unfortunately, do get leveled at the EEOC. So I want to run through some of the common reactions and try to, I hope, change your thinking a little bit about some of those issues. What we frequently hear is that Cause Findings are the result of investigator bias. As soon as we send out a letter saying EEOC has found cause to believe you employer X have violated the ADA, I guarantee there will be a call to the investigator''s supervisor to say the investigator didn''t do a good job and they''re biased against me. And what we want to tell you is it''s really very unlikely. Our investigators at the EEOC work very hard and have more than 150 cases to work on each year. They''re not likely to single out a particular employer and say, that''s it, I''m going after you. Then, of course, if it''s not investigator bias, we immediately get told by the employer, the investigator is wrong. It just didn''t happen. I didn''t do this. Of course it''s our view that this is very unlikely, and investigators are very well trained and experienced, and cases do go through two to three layers of view before cause finding. Our view is obviously if you get a cause finding the most likely result is because it''s you, the respondent, the employer, broke the law. And what we want to say is you have a great deal of control over investigator bias and investigator error. So I''m going to offer you a few quick tips on how to do that. With regard to investigator bias, you need to treat the investigators with respect, don''t condescend to them; don''t try to go around them. Treat them the way that you want to be treated, and then you can assure yourself that a finding isn''t because they''re biased against you. With regard to investigator error, which is the second possible reason or complaint that we often get about cause findings, you can help investigators avoid making errors. Don''t blow off responding to the investigation. This is your chance to prove your company acted appropriately and according to the law. You can''t present or -- it''s more difficult, obviously. You''re not likely to change the EEOC''s mind after the cause finding has been issued. Present the evidence at the time it''s requested. And if you try to present new arguments later in litigation, that can be used as evidence of pretense against you. So it means doing a thorough investigation at the time that you get the charge. And in most cases, the investigator will not find cause. Then we have five quick tips for getting investigators to the right outcome. They''re obvious, but I''ll state them. Provide supporting documentation, provide your responses in a timely fashion, supplement your prior submissions when necessary, conduct a thorough investigation of your own, and cooperate with the investigator. Now what if you do get a cause finding? You''re going to ask yourself am I going to be one of those one in ten cases that the EEOC chooses for litigation. Right here at the time that you get the cause finding you have a chance to engage in conciliation discussions. And that''s another chance to resolve the case. At this point in time the EEOC is going to be looking to see does the company have a good policy against discrimination, do they take complaints seriously, are they asking for meaningful relief. Or offering -- excuse me -- is the employer offering meaningful relief. On the next slide, if you do find yourself actually facing litigation, you should know that you can''t bury the EEOC. We might be slow, but we will stick with it, and we will fight back, and that scorched Earth discovery annoys us and costs your company a lot of money. Abusing the charging party or claimants during discovery just makes us mad and can make your company look bad. We''re almost always willing to talk settlement. If we talk earlier on it seems like we''re often able to reach a settlement that is more agreeable to both parties, less money''s been expended in legal fees. We don''t want you to attack the agency or the investigation. The law is very clear that challenging the investigation is not legitimate during the litigation process. And just as a reminder, never, ever retaliate against the charging party, claimants, or witnesses. Because then you can find yourself dealing with a retaliation claim in addition to the other claims. I want to point out a few unlawful and unsuccessful litigation strategies. We at the EEOC do not resolve cases if they have a no rehire clause, a clause where the employer says that they will never rehire the charging party, and the charging party agrees never to reply. It''s our view that this is sort of peremptory retaliation, and also that by agreeing to this type of clause the employee may be giving up employment opportunities that they can''t even foresee, in this day and age with mergers and sales, it''s just too broad a clause. We don''t agree to it. So you should know that. Then we also don''t resolve cases in situations where an employer has reached out to the charging party and tried to settle the case out from under us. And the courts have been clear that we have to agree to a settlement in order for a case to be resolved with the EEOC. It''s not sufficient that a charging party may think the relief is significant enough. As I mentioned before, endless discovery that''s not the way to get rid of us and finally, the sue-first strategy. We''ve had the occasional situation where an employer will actually file suit against an employee because they filed a charge with the EEOC. It''s also very clear that that''s against public policy, and can form the basis of a retaliation claim under the statutes the EEOC enforces. Now things to expect if you want to settle a lawsuit with the EEOC as I mentioned earlier, we settle cases through the entry of a consent decree. You''ll be expected at minimum to post a notice for your employees setting forth the terms of the decree, to keep records and make reports to the EEOC, and to provide training to employees or managers, and finally to pay compensation to the victims. We don''t engage in confidential settlements or signed general releases. And as part of our public education mission, we do issue a press release when we file a suit and when we finish a suit. Now I want to move away from talking about the EEOC''s process and what to expect in dealing with us, to some of the cases that we''ve been litigating under the ADA. As Barry mentioned, I myself have done a lot of ADA litigation, in particular EEOC''s recent large settlement with Sears. I''m going talk about this Sears case and four other cases that have been litigated by the Chicago office. The reason I picked these cases is I think they help to illustrate the breadth and depth of EEOC''s ADA litigation, and they give all of you an idea of the type of claims that are out there, and they also illustrate the fact that the EEOC looks at claims against large employers, small employers, and brings claims on behalf of people who find themselves in very different work situations. So the cases I''m going to discuss are EEOC versus Sears, EEOC versus SUPERVALU, EEOC versus Olson Staffing, EEOC versus Americall, and EEOC versus Swift''s Hotel. And we''ll go through each one in a little bit of detail. I''m going to focus most on Sears because I know it the best, since I''ve just recently completed litigating under it, and also because I really think it has some significant lessons for both employers and employees and their advocates. So starting with EEOC versus Sears the charging party was an employee named John Bava, who was a service tech for Sears. He was injured on the job when he fell down the stairs, and as a result of his fall, he suffered a series of injuries, knee, back, and ankle. He also had type 2 diabetes that was worsened because of his significant recovery period. And his treatment included surgery and knee replacement surgery. So he was somebody who had a variety of health issues. I''ll have a slide here that explains in more detail the Consequence of his physical or mental impairment. No one really doubted that he had a physical or mental impairment. And we at the EEOC also felt it really wasn''t in doubt that he was substantially limited in major life activities. He couldn''t lift, he was unable to walk more than two blocks at a time, and he couldn''t sit for long periods without severe pain and had to alternate standing and sitting. As -- and as a result of looking into Mr. Bava''s claim EEOC filed a lawsuit that was not only on behalf of John Bava, but also was on behalf of a class of other employees. All of these employees were employees who were on worker''s comp, which means they were injured on the job, and it was actually quite common for them to have injuries like Mr. Bava''s. So people who worked in relatively physically demanding jobs like service tech who got injured on the job and often suffered from back, knee, those types of issues. And EEOC contended that Sears unreasonably terminated employees who were unable to return to work after their disability leave expired instead of evaluating employees on an individual basis and considering reasonable accommodations. I want -- as a result of the litigation EEOC did reach a $6.2 million settlement agreement, and we distributed that money to class members who were terminated pursuant to the worker''s compensation policy. We determined the claimant''s eligibility by looking at the extent of their impairment, their ability to return to work, and whether or not Sears made any attempt to return them to work. We found 253 class members who received an average award of $23,600. And Sears was enjoined from discriminating against employees on the basis of disabilities, and from retaliating against employees. What I''m going to go into in more detail is lessons that can be learned from EEOC versus Sears. What''s significant about the intersection between ADA and worker''s comp. It''s actually an area where we find that a lot of mistakes are made. Because what many employers do is they hire a third party administrator to run their worker''s comp process, and then somehow that worker''s comp process is disassociated from the ADA. So employees who are on worker''s comp are in fact routinely providing the employer with information about their medical condition. But the employer is not complying with its obligations to engage in interactive process under the ADA because they''re somehow -- they''ve got that employee in the worker''s comp box, and they''re not thinking about the fact that they need to accommodate the employee under the ADA. And it''s also a very important message for employees and their advocates that when you''re in the worker''s comp process you need to be clear about the fact that you are also engaging in an interactive process under the ADA whether you intend to or not, and whether you use those words or not. So some pitfalls to avoid when an employee is injured at work the employer must consider both the worker''s comp obligations and the ADA obligations. And it''s really my view after litigating this case that if you separate the ADA from worker''s comp. You''re very likely to run into problems that you just cannot do that. If anyone is administering worker''s comp for you as an employer you need to be sure that they''ve also got an awareness of the ADA and they''re communicating that information to those who are administrating the ADA. And the other thing is that worker''s comp laws may use different standards from the ADA to determine whether an employee is disabled. So merely the fact that an employee is being regarded as being totally disabled under the worker''s comp statute doesn''t mean that they aren''t able to return to the ADA -- excuse me -- able to return to work with an accommodation under the ADA. So it requires just a real awareness of the fact that you''re operating in two different statutory regimes. Now I have some specific advice for plaintiff''s lawyers. It''s really important -- and other plaintiff representatives. I know many people out there who may be advocates for the disabled who may not be necessarily lawyers. But you may find yourself at times having communications with the employer or on the employee''s behalf. And it''s just really important to realize that communications with you may constitute part of the interactive process under the ADA. That means you need to have an awareness of the fact that the information you''re communicating to the employer might be used by the employer for evaluating whether or not the employee should be returned to work, and also that statements that you''re making about the employee''s ability to work may be attributed to the employee not only for purposes of worker''s comp or for whatever other purposes you intend them, but also for ADA purposes. In particular, in the worker''s comp regime you need to consider the impact of worker''s compensation discovery responses on ADA claims. So we did see circumstances where employees who were part of the worker''s comp system were asked in discovery can you work. The employee answers no. We interview the employee and the employee says oh, well I meant I couldn''t work in the job I had. And what we find and what we think happens is that plaintiff''s lawyers and others who are counseling employees about the worker''s comp process are not themselves thinking about the ADA. So they''re just thinking that these questions pertain to the job that the plaintiff held or that the employee held prior to the time that they''re injured. And we just want to urge all of you to really take a broader perspective on that. And then when you do reach the point in time that you reach the resolution of a worker''s comp claim you need to be very careful about the release that an employee signs. And it may be entirely appropriate for the employee to give up claims under the ADA, but it may not be. So we just want to be sure that you''re engaging in an explicit analysis of what''s appropriate. I want to now offer the same type of advice from a different perspective to defense lawyers. Worker''s compensation leave is not a substitute for appropriate accommodations under the ADA. In our view, this was one of the problems that Sears suffered from. They regarded the fact that these employees were being offered essentially what was paid leave under the worker''s comp regime as an ADA accommodation. But the point is that may or may not be sufficient under the ADA. If an employee has said they want to return to work, they''re capable of returning to work, and there is another open position that would enable them to do so, the fact that the employee is on leave and receiving pay may not be sufficient if they''re getting a reduced wage than what they would receive if they were able to return to work in the alternative position. Defense lawyers, you want to look carefully at the interaction to systems. Then we frequently see that employees are required to obtain a full duty release prior to returning to work. There is no way that this is okay under the ADA. And yet -- excuse me -- we consistently see this, in particularly disability plan benefit documents. Documents will say that an employee must be fully released. And our view I can''t think of a circumstance where that would be lawful under the ADA. Finally, prior to terminating any employee on worker''s comp leave an employer must consider whether that employee can return to work with an accommodation. And what we hope is that the Sears case will really lead both advocates for employees and those who represent employers to recognize that they need to look carefully at the interaction between the worker''s comp system and their ADA obligations. So I''m happy to talk in more detail about the resolution of the Sears case if that''s of interest to you. I do think there were some important policy changes and procedures that were put into place that you may want to discuss. But now we''ll talk a little bit about a case that''s on-going, that''s similar in certain ways to Sears, but a little bit different. This is a case that EEOC is now litigating against SUPERVALU, which is a major grocery store owner, has been the owner of the Jewel Osco chain, and the case that EEOC brought against SUPERVALU also has to do with the interaction of a leave policy and the ADA. But it''s not limited to employees who are on worker''s comp leave. So there are five charging parties, five different employees came to the EEOC and complained, and it''s five charges that form the basis of EEOC''s lawsuit. Each one has some different facts. I''m not going to go into all the facts of each of the charging parties, but you do have the slides in front of you and you can look a little bit at them. And what you''ll essentially see is what formed the allegations of the complaint. EEOC''s view that with regard to employees on leave, SUPERVALU was essentially failing to bring these employees back to work when they could be accommodated and was instead terminating them at the end of their leave period. And it was both employees who were injured on the job at work and employees who were injured off the job elsewhere. So we can shift on the next slide which is also a slide that goes into the nature of the charging parties. I''m going -- I am going to just let you know in detail that EEOC alleged two different claims in the SUPERVALU case. The first is the one I just mentioned, which was the refusal to allow qualified employees with a disability who are on authorized disability leave to return to work if they have any work restrictions, and terminating them if they reach the one year mark on leave. I just want to say a little bit about this, which is that it is correct that many courts have said it''s entirely appropriate for employers to have a limited leave period, and employers are not required to offer employees indefinite extended leave as part of the reasonable accommodation process. And that''s true. But what the courts have not said and where employers seem to get confused is that you can just terminate someone at the end of their leave period. You can''t do that. You have to look and see if there''s any other accommodation that would enable them to return to work. And what I think is that somehow employers think oh, well I''ll offer 52 weeks of leave. That''s a very long period of time. That''s enough. If they''re not 100% ready to come back to their old job, forget it. But that''s really not what needs to happen. Instead, leave can be part of a process that allows an employee to recover sufficiently, that they''re then able to come back with another reasonable accommodation to either their job or to another alternative position. And I think this is partly about understanding what it is that the ADA requires, which is often it might not just be one accommodation, it might be leave in connection with something else that enables an employee to return to work. So that''s the first claim. Then the second claim that I wanted to mention in SUPERVALU is that we''ve also challenged the fact that we believe SUPERVALU refused to allow qualified employees with a disability tso be assigned temporary light duty work unless they were injured on the job. So litigation is on-going and we''ll see how this turns out. But it is obviously a case where we feel strongly, and we do think that there are some significant parallels to Sears. I want to shift gears from these big class-action cases to talking a little bit about some of the case that we''ve done on behalf of individuals, which again shows that EEOC litigates different types of cases on behalf of different types of people. This is a case that EEOC brought against a staffing firm, and the reason that I chose this was I thought that in the work environment in which we find ourselves now, we see an increasing desire by employers to bring in individuals on a temporary basis using staffing firms, to use contingent employees. And it''s just really important to recognize that just as the employer who actually has the employee on site has an obligation to comply with the ADA. So does a temporary staffing firm or supplier of contingent workers. And that therefore people who work for these firms and employees who go to these firms need to be educated about the ADA and need to be educated about their compliance obligations, and also for employees that they can make complaints if they feel like the staffing firm is serving as a barrier to jobs that they might be qualified for. So that''s what I wanted to say, that is I think the important lesson from the Olson Staffing case. If you look on the next slide you can see that we did settle this case with Olson Staffing. And one of the things we thought was really important about this settlement was both the injunction against further discrimination on the basis of disability, and the requirement that Olson provide training, because a temporary staffing firm does serve a unique role as a gate keeper. And so they may really be able to effect individual''s access to positions. So we always look for that in our cases, but we obviously felt it had particular resonance here. As you can see, on the next slide the ADA requires that temporary employment agencies evaluate job applicants with disabilities on the basis of their ability to perform with or without reasonable accommodation the essential functions of the job for which they are being considered. It prohibits agencies from defining -- from declining to refer a qualified individual because of a disability. And it gives an agency that has reason to believe that one of its clients is discriminating an affirmative obligation to take reasonable steps within its control to remedy that discrimination. So it is not okay for a staffing agency to just say well, my client didn''t want to hire anyone with a disability, so I didn''t want to do that either. That''s not a defense customer preference; the courts have recognized that''s not a reason. The next case that I wanted to talk about is EEOC versus Americall. I thought it was an interesting case to draw your attention to. This is more a classic employer-employee relationship. We have a charging party who had been -- who was blind and who applied for a position. In the position the charging party needed to bring her guide dog. And shockingly, the employer responded by saying the facility is not conducive for a Seeing Eye dog. And I think one of the things this tells us is that we''re still operating in an environment in which employers unfortunately really do have a great deal of ignorance about the needs of disabled employees in the work place, and may just be very reluctant to do anything that''s different than the normal work environment for every employee. And this brings us back to the point that I started with, is that a reasonable accommodation may require an employer to do something for a disabled employee that they do not do for other employees. And so it''s really about engaging in a dialogue with the employer to make the employer understand that and to reach agreement on what can work. Obviously, it has to be something that will allow the business to continue to function. But there''s a great deal of range. If you look on the next slide you can see EEOC obtained a really substantial monetary settlement in this case, $200,000. And again, significantly, the EEOC was able to get the defendant to pursue a cooperative relationship with the Chicago Lighthouse for people who are blind or visually impaired to help promote employment opportunities for blind and visually impaired individuals with the employer. And again, we do view this as a really significant accomplishment. It''s a way that a case that, you know, is brought by one individual ends up opening up work place opportunities for a wider group of people, and we hope helps to educate employers about their obligations. And you can see a little bit more of the -- of the detail of the settlement provisions which do reflect the things that I mentioned before, that the EEOC looks for notice, the posting of a notice regarding the settlement of a lawsuit, the training of supervisory managerial and HR personnel, recruiting and training employees regarding disability, discrimination, and the duty to accommodate disabled employees. The final case that I want to talk about is a case that we brought against Swiss Hotel. This is an interesting case because it involved harassment on the basis of disability. This is actually something that is not explicitly prohibited in the ADA, but I do think that the case law is pretty clear that discrimination on the basis of disability is not limited to just the denial of employment opportunities, but employees with disabilities are also protected from harassment and from being singled out and subject to treatment that is hostile because of their disability. And this is one of the things, when an employer has an obligation to provide an employee with reasonable accommodation or when an employee stands out they are in a vulnerable position. So I think here it''s very important to recognize that the employer has an affirmative obligation to educate not just human resources personnel but also anyone who is in its work environment about their ADA obligations, and those obligations include failing to create a hostile environment on the basis of disability. So you can see here that we allege that the defendant, Swiss Hotel, violated the ADA by allowing the harassment of an employee with a developmental disability, and two supervisors specifically called the employee retarded. And then ultimately the harassment got so bad that the employee''s job performance suffered, and it was our view that the termination that then happened was really a result of disability discrimination. The employee''s job performance was fine until he started being harassed, and then he couldn''t perform. Then he was terminated. So it was our view that this was because of his disability. Again, this was another significant monetary settlement, $90,000, and further requirement to continue to train employees, and again, post a notice informing employees of the lawsuit and the settlement. So now that we''ve discussed these five different cases you might say well, what can we learn, what does this tell us about the EEOC''s enforcement efforts under the ADA. And I think what we can see is what was reflected in the statistical chart, that we do have disability discrimination remains a significant issue for many employees. There are a range of employers who unfortunately have not yet come into compliance with the law that we''re still in need of significant educational efforts. But the good news is that we have been able to get some really meaningful results, both in terms of monetary relief and injunctive relief provisions. So now you might wonder where the EEOC is headed next with regard to ADA compliance. And as I mentioned, we -- I know that you all know that the ADA was recently amended. So part of the EEOC''s responsibility is to come up with rules under those amendments. The EEOC has issued proposed rules under the A D triple A. And it''s my understanding that the topic of your next webinar in this series is going to be about ADA amendments and about litigation under the amendments. But I think just as that''s what you''re seeing is effecting the disability community more broadly, that''s also what''s going to be effecting the EEOC''s litigation agenda and litigation priorities. So just to get you excited about what''s coming next, you can see the ADA amendments act highlights, we removed the Sutton requirement for mitigating measures so that means mitigating measures do not have to be considered in determining whether an individual suffers from a disability. And maybe even more importantly is that the amendments are explicit about the fact that they want to shift the goal from whether an individual is QUID, Qualified Individual with a Disability, to whether discrimination occurred. There is an emphasis on the broad coverage of individuals, and we were told, hey, EEOC courts, the interpretations of the term substantially limits were too restrictive. There''s really an affirmative desire to bring more people into the protections of the act so as a result, major life activity has been defined more broadly. And Number six there''s been an elimination of the substantial limitation requirement for regarded as claims. We''ve also clarified or congress clarified that an impairment that is episodic or in remission is evaluated when it''s active, and we''re -- the courts were directed to interpret the ADA as a remedial statute liberally. And the rehabilitation act was amended for consistency. So I think what you''ll see from the EEOC is active litigation under the ADA and new and increased litigation, obviously, under the ADA amendments act. So obviously, this is an area where EEOC is committed to continuing to litigate, and we hope to continue to get significant results. So I think that Alan wants to make some particular comments about how the EEOC and [Inaudible] work together and also perhaps some additional advice for all of you out there listening.
Okay, thank you, Debra, that was an excellent presentation. I think that hopefully was very help for all of the people participating today. I just wanted to speak briefly -- Equip for Equality, we collaborate with our local EEOC office in a number of areas, and I think it could be a model for other disability advocacy agencies looking to do something similar. First off, our agency, we have a training department and do a lot of trainings, both for people with disabilities as well as employers and service providers and government agencies, and the EEOC has us listed as one of their approved ADA trainers, as Debra mentioned. Often -- we''re almost always in EEOC settlements, training is a component of the settlement, and employers can satisfy that component by having equal [Inaudible] equality or another approved trainer come out and give trainings. I just want to add also, I think training is probably the most important thing that employers can do to prevent issues from arising under the ADA. I know our agency, more than half the cases we see often involve a new supervisor who comes in and doesn''t want to continue the accommodations that were in place or otherwise engages in conduct violating the ADA. And we think that training for new hires and periodic training for all staff is a way to avoid ADA issues from arising. A second area we have of collaboration is when people file pro se, meaning without an attorney, the EEOC sends them information when the case is assigned, if accepted for mediation. And we are listed as an agency that can represent the charging party through the mediation if they have a disability related issue. And other legal services organizations in our area are also listed for issues arising under other of the work place laws that the EEOC enforces. After the investigation process, if Cause is found by the EEOC, which Debra mentioned is in about 5% of all the cases, the EEOC will actually refer the person to our agency so we can talk to them even before the right to sue is issued. If conciliation is unsuccessful and looks like that''s where it''s going, this gives us an opportunity to speak with the charging party and investigate the possibility of representing them. And we''re able to do this before the very strict, very quick 90-day timeline in which the notice of right to sue is issued, the charging party has 90 days from receipt of that to file in federal court or the case is barred. So we''re able to then talk to the charging party before the right to sue is issued, which gives us a little more time, and generally we like to have the party get the EEOC file, which you have to wait for the right to sue to be issued in order to obtain, but the time [Inaudible] the charging party investigating is very worth-while. And the fourth area is as Debra mentioned, the EEOC doesn''t -- when they file a case on behalf of a charging party the employer cannot just buy out the charging party and then make the EEOC go away. The EEOC will continue in their representation of the case on behalf of the EEOC even if the charging party decides to settle or something like that. And often in cases what happens is EEOC files a case on their own behalf and then the charging party has a right to intervene in the case and file a motion for intervention so that their interest as an individual are represented as well. And we had a case where that happened, and we intervened on behalf of the charging party. So in effect, both the EEOC and the charging party were plaintiffs, and I have to say working -- I worked with one of Debra''s colleagues, working with the EEOC was a great experience for me. The attorneys there, the attorney I work with, are just highly trained, very easy to work with, very knowledgeable, and I think it is a very good relationship from both our ends; we ended up resolving our case with a good resolution. It was nice to have the power of government on our side, and it was an excellent experience from our end, and we received a good result for our client. And so if agencies are interested in doing that, it involves speaking with different departments of the EEOC. You can speak on the person in charge of mediation, to see if you can be listed for mediations, you can speak to the person in charge of investigations to see if you might get referrals if cause is found, as well as [Inaudible] to people involved in training, if you want to be an EEOC approved ADA trainer. I have some practical tips for employees. Debra covered both ends, tips for employees and employers, but we have a few more we wanted to put in here. One, on the job always remember medical conditions do not have to be disclosed unless that''s part of the application process after a job offer is extended but really, not unless reasonable accommodation is needed or if there might be performance problems. Because often we find people disclosed with well intentions just to let their supervisor know they have a disability. And often that has led to problems. Maybe people disclose and immediately get promoted, but they don''t call our agency. We hear from people that disclose they have a bipolar condition, and they''re terminated soon therefore. Even though they didn''t need accommodation, they didn''t need to disclose, the disclosure had negative consequences. So employees need to be careful about disclosure. And if an employee feels that they are being discriminated against it is very important to document any requests for accommodations or for medical disclosures, any harassment, retaliation, or just poor treatment, if they feel they''re being treated differently than other employees. Make sure you know your employer''s procedures and policies and follow those. If an employer asks for medical information that they are entitled to, employers do get limited medical information when the disability or need for the accommodation is not obvious, and employees have an obligation to provide that information if it''s warranted. So make sure you comply with those requests. And we also often recommend that people request a copy of their personnel file, which you are probably entitled to under your state law. and then tips for employees once they''re at the EEOC. One, make sure you list everything possible in the charge of discrimination. You need to exhaust any claims you have. So if it''s not listed there, you might not be able to sue in federal court later. In addition, retaliation is under a separate title of the ADA under Title IV, and the EEOC form has a separate box for retaliation in addition to disability discrimination. So if you''re claiming retaliation it''s important to make sure that that retaliation box is checked as well as the box alleging disability-based discrimination. Don''t miss the deadline for filing. If there''s also a state agency in addition to the EEOC you have 300 days to file the ADA claims. If there is no corresponding state agency the deadline is 180 days. These days are fairly firm, so leave yourself plenty of time. We encourage people to take advantage of mediation if both sides agree. It is voluntary, but we find it''s very beneficial. And I have to say my experience has been similar to the statistic Debra gave. I think she said 72%, and I would say probably about 2/3 and 3/4 of the cases we mediate were able to resolve. EEOC asks for information just like employers; make sure they provide it, employees as well. Always be prompt, courteous, and responsive when dealing with the EEOC and provide any information they request. And once we receive the right to sue that is your first chance to look at the complete EEOC file. We advise people to request it immediately, it often takes a week or two to get that file and the 90 days is running at that point. So we encourage people to do that immediately upon receiving the notice of right to sue, and of course make sure that you don''t miss that 90 day deadline for filing in federal court once receiving the notice of right to sue. The next slide we have some resources. Of course the big host of our program, the [Inaudible] ADA center and is a great resource, the Equal Opportunity Employment Commission has great guidance for employers and employees, I always encourage businesses to read EEOC guide as first step in understanding any ADA issue. There''s other DBTAC assistance centers listed there, our agency Equip For Equality and the job accommodation, another excellent resource for employers and employees investigating accommodations. Sometimes people will disabilities know what accommodation would help. Sometimes they don''t. And when you don''t the job accommodation network can be a great resource, and just to put a little plug on it, will be co-presenting with Jan at the U.S. Business Leadership Network conference coming up in September. But we encourage everyone to look at Jan, if they have questions, and when I have an employer who says oh, we couldn''t find any accommodation that will help them and we looked and we looked, my next question is well, did you contact the job accommodation network. And I feel if they hadn''t they probably didn''t do their due diligence in terms of investigating accommodations. So that was all I had. I want to thank everyone for participating in today''s session. The next session is going to be September 29 which will be litigation under the ADA amendments act, and we hope you join us for that session. And there''s also an evaluation form which is indicated on this slide, I think information on that will be sent to participants. And we have about 15 minutes left, so I''m going to turn it over to Robin, if you want to facilitate any questions that people might have. We encourage you to talk or to type in any questions you might have. They sometimes come fast and furious; we''ll do our best to keep up with them.
Thank you, Debra, and Alan, and Barry, for your informative session and a lot of ground was covered today. Let me just clarify Alan''s comment, that individuals are not able to talk or speak in answer -- asking their questions. You would need to type your question into the box, the chat box, and it will then be reflected for people. I see we have at least one question that''s already been asked, and I''m sure some more will come. I have un-muted the text area, so anyone can now type in there. If you''re someone listening on the phone, again, just to review, you can send us an e-mail with your question at adaat@adagreatlakes.org -- all one word, .org, or adaconferences -- all one word -- @adagreatlakes, and we will convey it to our speakers. So at this time I see we do have some questions. I''ll release the microphone, and I''ll let Alan, Debra, and Barry take a hand at any of them that have been given. Also, to somebody who''s asking about a copy of the Power Point presentation. The Power Point''s been available to all of you before the session. It''s posted on the web site. You should have received an e-mail telling you how to access all of the materials for this session. It is posted under your account, so if you log into the www.ada-audio.org web site, you go ahead and log yourself in using your e-mail, typically, as your user name. And whatever password you gave yourself. You should then under manage your account have access to the session materials, and they are posted there in both PDF and RTF format for you to download. So that''s how you would get a hold of those for there. So I''m going to go ahead and release, and let others take these other questions. Thank you. Go ahead and try again.
I see that we''ve received a question about when an applicant seeking an ADA reasonable accommodation faces an overly broad reviewing committee, such as staff members or committee members with no known skill with dealing with physical or mental health issues, and no neutral forum exists, what does the ADA have. And I would say here I personally haven''t dealt with this in litigation. But one of the things is that an employer has an obligation to create an interactive process that''s effective. It''s not sufficient for the employer to simply create a committee and say oh, we have this committee. If you want a reasonable accommodation you have to go talk to them and then for the committee to be, you know, such a large group of people that they can''t effectively consider things or that they''re breaching employee''s privacy concerns, and that they''re never offering effective or meaningful accommodations. So I can''t say that I''m familiar with litigation of this type of issue, but what I can say is that if you think the process is not working, that''s an absolute critical thing to document and put down your concerns, say I really want to have a conversation with you about appropriate accommodation, the group is so large, I''m concerned about my privacy, I don''t know that there''s anyone in the group who has any experience, and try to work it out. At the same time, there''s not specific, that I''m aware of, prescribed rules as to who has to conduct the interactive process. So you also have to try to find a way to work within the process that''s been set up. So it''s a little bit of a balancing act. But obviously employers don''t do this. If you really want to create a system that works for your employees, we urge you to create a system that is not so intimidating or so large that employees wouldn''t come to you use and it.
Thanks, Debra. We''ve also -- thanks, Debra looks like we also have a question about the SUPERVALU case. Can you clarify SUPERVALU''s alleged failure to provide temporary light duty. Did they already have a light duty policy in place or are you saying all employers are required to provide temporary light duty. In many cases it seems that light duty means [Inaudible] essential job functions.
In the SUPERVALU case they did have a light duty program in place, and they would -- they actually I think would dispute this, because obviously discovery is on-going. So I want to be careful about what I said -- about what I say here. What I''m going to say is actually to speak more generally, and simply to say that as -- in order to comply with the ADA an employer is not required to get rid of the essential functions of any job. That is absolutely clear. At the same time, it''s certainly EEOC''s view that an employer can''t modify positions for one group of employees at some sort of endless rate and then not make any modifications with employees with disabilities who fall into another group. So I do think this area of what''s called light duty or temporary alternative work or temporary duty, it''s actually one of the most complicated areas and it''s very difficult, because it is clear that there are certainly things that employers can do for employees on worker''s comp, but they aren''t then obligated to do for employees who had disabilities, but who weren''t injured on the job. So it is a really difficult area, and you have to look specifically at the details of each of the programs that have been set up in order to determine the employer''s obligations to open it to other employees.
Great, thanks Debra. And Alan is doing a great job of answering some additional questions that are coming through. The most recent question was about reassignment questions, where people can no longer; because of a disability, work nights and want to work days, and the only open position is a position that has lower hours or lower rates of pay. And Alan''s response to that, and certainly Debra can join in because he''s quoting the EEOC guidance, is that first employers should look at lateral positions for reassignments that are at the same rate of pay, same status, same hours, and only look at positions of lower status and pay if the comparable position is unavailable any additional thoughts on that, Debra?
Needless to say -- needless to say, I absolutely agree with the EEOC guidance. And this does reflect my experience in Sears, which is that it is true, when an employer, especially an employee with skilled technical skills, gets injured on the job. It may be that there are not open positions that will pay at that same rate. But one of the things that we find is that employers will then use that as an excuse to say oops, there''s nothing the employee could do. And at that point in time it''s really the employer and the employee need to have a dialog and they need to look and see what are the open positions. And one other thing to consider is that an employer may need to look at open positions at a different fashion. We often find a lot of resistance to this, that employers assume it''s only at the same facility, but that''s not true. So when you''re looking at lateral positions it might not just be what''s open at that store, that location, it might be that what''s open, you know, in that region and in other locations, and that may open up some new opportunities at the same pay grade.
Great. Thanks Debra. There was a question on the phone and Alan responded in writing, but because it was over the phone the folks what asked the actual question I think can''t read that. So Alan, why don''t you reiterate what the question was and your response, and then if Debra has any additional thoughts she can chime in.
Okay, thanks Barry. I''m going to try to summarize the question because it''s rather lengthy, and involves someone who needed time off from work for a medical condition, they were a new employ e, not eligible for FMLA, and while off from work were told that the position will not be held open and that she was terminated. She provided a doctor''s release saying she''s able to return to work, and even though the position was still vacant and the employer was doing a job search the employer would not let the client resume her job duties. And my response is in my opinion unless the employer can show it was an undue hardship to allow leave to keep the position open, and then the termination may have been discriminatory. Even someone who''s been at an employer for less than a year or otherwise doesn''t quality for FMLA leave, they''re still entitled to ADA leave, as long as it''s reasonable. In this case, it sounds like the amount of leave needed was not very long. So I think the employee in that case might have a strong case. I wanted to address one more issue going all the way back to the first question, with the -- sounds like there was a job accommodation committee who reviews at accommodation requests. We see that sometimes with employers, a lot of federal employers have that as well. And often, they''re effective. I just want to raise one more issue, though, that''s important to keep in mind, is that confidentiality is also an issue in ADA cases, and according to the EEOC only employers or management staff who need to know about medical issues should be involved in accommodation decisions. It''s quite possible the accommodation committee is people who -- is a group of people who need to know about the accommodation issue. But if it gets too wide spread, there may also be confidentiality issues.
Great, thanks, Alan. There was a question earlier that Alan answered. I want to make sure those who weren''t able to read the chat box, saw that we were just wanting clarification on contact information for the provider that provides information on job accommodations. And that is the Job Accommodation Network, they actually have a new web address that Alan put into the text box, it is www.askjan.org. It looks like we have another question, a couple more questions on the phone. We''ll try to get as many as we can. I''ll read out the questions so everybody can know what the question is, and then see if Debra has any thoughts on these. With the employer knowing that the EEOC will almost always bend to settlement and-or not even reach cause finding, doesn''t this do less to prevent discrimination? The employer may think I can easily get away with this, with the perception that the EEOC is a quote, unquote, puny or lenient enforcer or watch dog. I''m sure Debra has some thoughts about that.
Absolutely. I don''t think we''re puny. What we do have to do is obviously there are just resource issues, that means we can''t litigate every [Inaudible] case and also that we can''t even necessarily fully investigate every charge that we get. But that''s why we -- I did want to reach out to you today and show you the breadth of the kinds of cases that we do. So no employer can ever be assured no, the EEOC is not going to litigate against me, the EEOC is just going to accept my explanation. But -- it''s also been our experience that litigation serves some really important values, but settlement also serves some important values too, in terms of resolving the situation, allowing both the employer and the employee to move forward. And there are also lots of cases that we will settle publicly, and we''ll then use them as part of our public education mission. So litigation is a part of what we do to try to educate the public about their ADA obligations, but not everything.
Great, Debra. Thank you. And I just -- from our perspective too, when cases are resolved in the EEOC process, those aren''t necessarily puny settlements. They are some really significant results that get our clients, and as advocates, we''re not going to resolve a case just to get it over with, we''re going to get what we think we can get for the employee that''s fair. And so I think that -- the fact that some cases are settling through mediation or conciliation does not mean that there''s not strong enforcement. It just means that the parties have agreed that this is the best way to go for this particular situation. We''re getting close to the end, I''m going to read one more question and then have Debra answer it, and then if we have more time we can go further. But this may be the last one. It says what kind of documentation does the EEOC want to see as part of an ADA investigation regarding accommodation?
This is a great question, because frequently what we find in the accommodation process is that it can be all verbal conversations. And so we''re really dealing with people''s recollection of events. And when we may be asking about the recollection of events that took place a year-and-a-half or even two years ago and what we need are the details. It can be really difficult. So we certainly think it''s very appropriate for employees or their representatives to set out in writing, listen, this is my situation, this is what I think I need, or to say after a meeting this what happened, this is what was agreed upon or an agreement wasn''t reached. It is really important to document the process as its ongoing, because usually in an interactive process there''s many conversations, there''s not just one. And it can become hard, yet important to distinguish the details of who said what and when.
Great, thanks. And Robin did clarify on that web address for Ask Jan, I guess they''re not necessarily using W W W any more, she put in the text box It''s HTTP://askjan.org, forward slash, that would be. Robin, since we''re at the end I''m going to sort of turn over to you, indicate whether we can do some additional questions or if we need to wrap it up. And if there is time for additional questions, I''ll let you read those and turn them over to Debra.
That''s really up you guys. We can''t go too much later, because we do have a captioner, and they have time constraints as well, we want to make sure it''s fully accessible. I just want to make sure that all of our information has been conveyed to everybody. I see that Alan responded in writing, and again, just to make sure that folks on the phone have access to that information, he''s responding to a question about a doctor''s letter, and his response is a doctor''s letter like that may write a person out of a job by showing them unqualified. So I don''t think it''s a good tactic. People need to perform essential functions with or without reasonable accommodation. And that was in response to a question earlier related to a doctor''s note indicating it may benefit to allow the employee not to perform the essential functions in total. So just wanted to make sure that is problematic, just to make sure everybody gets access to that information. Alan, I don''t know if you want to take -- I know there''s a question here about EEOC cases will litigate one out of ten disability cases all our PC cases, not sure exactly what that comment is related to, and if Alan, your response is related to that or not. So I''m going to turn it back over to you, because I really don''t want to manage your questions because you are tying them together and jumping all over the place. And I think it''s best if you guys decide when you want to wrap up from the questions perspective.
Okay, I do know that Debra has another obligation, so she''s not able to stay past the hour -- the bottom of the hour. So she''s going to need to go. What we''re happy to do as we''ve done in the past is that people can send e-mails to us, and if they are [Inaudible] specific, we''re happy to follow up with Debra and get her perspective in if he. And so Alan''s e-mail is Alan@eqipforequality.org and mine is Barryt@eqipforequality.org . I''m not familiar in that question, that Robin was referring to, what PC cases is standing -- I don''t know what the PC acronym is meaning. So -- and so I''m not sure exactly what they''re saying. But I think when Debra was talking about EEOC litigating one out of ten cases that are filed under the ADA or she was talking about one out of ten that all charges. And Debra''s clarified for me that the one out of ten statistics is for all charges that are filed with the EEOC and not just ADA cases. Probable cause Okay, that''s what you''re saying there whether they''re probable causes or not. So yeah, I think it is one out of ten, all probable cause. Not one out of ten probable cause ADA cases. So thanks, everybody, for clarifying that. So I think with that we''re going turn over to Robin to do any final comments and thanks very much for joining us. And if you have any follow up questions, feel free to let us know.
Great. Thank you, Barry and Alan and Debra, again, and just want to remind people that you will be receiving an e-mail if you registered for this session with the online evaluation form and the link. We do, again, value your feedback. You again should have had access to the Power Point presentation through your sign in process. You received an e-mail with those instructions earlier related to that. If you did not get at that information please contact our office either by telephone, 877-232-1990, both voice, TTY, or via e-mail at adaconferences, all one word, @adagreatlakes.org. Again, thank you very much for your participation; we welcome you to join us for our next session which will be the last for this fiscal year. Our fiscal year ends in September. We''ll then be announcing a new series for the next fiscal year. But the next session is September 29 and it''s litigation under the ADA Amendments Act, and again, our speakers will be Barry Taylor and Alan Goldstein, but we will also be joined by Brian East who is a senior attorney with Advocacy Inc. We welcome you to join us, and we are offering SHRM, S-H-R-M, credits as well as UIC continuing education for anyone who''s interested and desires those. We also have CRCC credits. So look at the web site for that information and follow through with your requests and we''ll grant those to you if you are a registered participant and have participated for the entire session. Thank you very much, and everyone can now disconnect from the session. To do that, just go ahead and close your browser. This session will be archived and available within ten business days on the same web site, www.ada-audio.org. Thank you, and good-bye.