At this time I am going to go ahead and introduce our speaker today. This is an open dialogue with the Equal Employment Opportunity Commission and our presenter is Joyce Walker-Jones who is a Senior Attorney with the Equal Employment Opportunity Commission. She is considered a senior advisor in the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act or GINA as its said in short, policy division at the U.S. Equality Employment Opportunity Commission in Washington. She is responsible for helping draft commission regulations and policy guidance interpreting Title I of the Americans with Disabilities Act (ADA) and Title II of GINA. She started a career at the Equal Employment Opportunity Commission (EEOC) many years ago as the writing attorney office of federal operations and served as special assistant to former EEOC commissioner and former chair advising them on issues relating to all of the EEO laws. Since joining the Office of Legal Counsel in 1997, she has been the drafter of two ADA guidance policies and many technical assistance documents including documents for employers and others for veterans explaining how ADA applies to veterans with service connected disabilities. Shes also made hundreds and I can verify for many of those presentation on the ADA and more recently also been doing work in the area of GINA to a variety of different audiences including human resource professionals, EEO counselors and investigators in the public and private sectors. I am going to go ahead and turn over our microphone at this time to Joyce Walker-Jones. Go ahead Joyce.
Thank you Robin. Good afternoon, Im going to start with sort of a brief update on what''s going on at the commission, what our focus is with respect to the ADA and then talk about a few of the cases we either litigated or settled. I will start with the big news. The end of this month the commission will only have four commissioners. Many of you probably know that we are governed by five commissioners. Right now there are three democrats and two republicans. The commissioner, always follow the party that''s in office. So right now because it is democrat we have three democrats and two republicans. At the end of this month we are losing a commissioner. Commissioner Ishimaru is resigning. His term is not up until July but hes resigning effective end of this month which will leave us with four commissioners. Two democrats: chair Berrien and Feldblum, and two republicans: Barker and Lipnic. It remains to be seen how this will really impact us, obviously. Ishimaru has been with us for a long time and very familiar and a big advocate of all we do. With having only four commissioners it means when things go up for vote it could very well be a tie vote. That may impact the kind of policy documents we are able to issue and other important matters that require a commission vote. Also, in terms of big news in terms of fiscal year 2011 we had a record almost 100,000 charges with 25% of those being ADA charges. We also had a record reduction of backlog and record mediation resolution. Over the past years though we have had four commission meetings that touched on ADA. We had one on mental disabilities, one on caregiver and pregnancy, one on leave as a reasonable accommodation and one on disabled vet. As for the disabled vets, that''s part of our emphasis, as an outgrowth of the meeting we had in November. In February we issued our two guides, we originally issued two guides: one for employers and one for vets in 2008. Almost four years to the date, we reissued those guidance and the big emphasis is on explaining how changes stemming from the ADA amendments act made it easier for veterans with a wide range impairments, including those that are not often well understood including those such as traumatic brain injuries and PTSD to transition to civilian employment and get needed accommodations. Also in February two of my colleagues and I participated in employment conference for severely injured Army personnel at Fort Belvoir sponsored by the Armys Department of Wounded Warriors Program. So we are continuing our efforts to reach out to disabled vets and a large part of that because a lot of the veterans who are returning don''t know that the ADA applies to them. They don''t see themselves as disabled. The military culture is very different. So they don''t see themselves as disabled and therefore may not know that they are entitled to reasonable accommodation. It is we have to convince it is not a privilege. It is not preferential treatment. It is about leveling the playing field. We have had some pretty successful settlements. We filed a lawsuit against Wal-Mart which was settled for $275,000. That was a reasonable accommodation case where Wal-Mart fired an employee after cancer surgery. Because he requested an accommodation and his accommodation be that not be required to cover a 20 minute break in the shipping department because it would require manual lifting. We did not have to go to litigation because that case was settled. Were going to I think that''s where our emphasis is going to be a lot. I don''t think that there will be as many cases where we are filing trying to establish the person has a disability but more cases, you know, getting to the merits of the complaint which is the whole purpose behind the ADA Amendments Act. Let''s not focus on whether or not the person is covered. Lets focus on the alleged allegations and in many cases the alleged allegations is denial of accommodation. In another reasonable accommodation case we sued American Telegraph and Telephone (AT&T) alleging that it fired a Customer Service Rep who requested an accommodation in the form of finite leave of absence to receive interferon treatment for hepatitis C. In that case although AT&T approved her four month leave of absence it fired her two days after she returned, again, without restrictions claiming that her use of approved leave violated attendance policy. Reasonable accommodation requires modified no thought attendance policy and in that we meeting that we had on leave reasonable accommodation this was a big focus, you know, explaining to employers while they may have no fault leave policies, they have to modify those leave policies if it is not undue hardship for a person with a disability. We settled a suit for $125,000 against human development alleging that the facilitator fired a Prevention Intervention Specialist because of her severe obesity even though she was able to perform the functions of the job. During the litigation the court denied the employer''s motion for summary judgment holding that severe obesity may qualify as a disability regardless of whether it was caused by a physiological order. We had offered expert testimony of a renowned obesity researcher that employees the employees disorder was a result of a physical disorder or disease and was not caused by lack of character or will power. But the court reasoned that neither the EEOC nor the fifth circuit have never required a person with a disability to prove underlying basis of their impairment. I think this will apply to disabilities caused by drinking or smoking. It doesn''t matter whether or not the person willfully engaged in behaviors that lead to the disability. The focus will be on whether or not regardless of how it came to be that person has a disability. We won a victory in one of our first disability discrimination lawsuit taken to trial concerning bipolar disorder. In this case the young man was diagnosed with bipolar disorder while in college and was forced to leave school. Although he was hired by a store and swiftly promoted to store manager he was fired when he requested a short leave to adjust to new medication for bipolar disorder. Again, I think this emphasis where in cases like this we are not litigating whether or not the person has a disability but whether or not they were denied an accommodation. However on the topic of whether or not a person has a disability we have filed Amicus brief in the 11th circuit as a port of the plaintiffs appeals from the district courts finding that his back condition was not a disability. That case Mazzio versus Cola Resolutions, their the plaintiff had a degenerative disk disease and herniated disk with nerve root involvement which caused pain to radiate from his lumbar spine down his right leg. The condition affected his ability to walk, run, bend, and sleep and lifting objects weighing more than 10 pounds. He was fired after he told his supervisor that he needed time off for surgery and that probably he would need restrictions on lifting for three to five months after he returned to work. The district court granted summary judgment to the employer on the grounds that the plaintiff failed to proof he is disabled or that the employer regarded him as disabled, reasoning that his back condition was transitory because his post surgery restrictions were only expected to last three to six months. The court did not address whether this condition was minor. We argue that the plaintiff had a physical impairment, a herniated disk, that substantially limits both the major life activities of lifting and his neurological function. We emphasized when determining whether impairment is substantially limiting, the analysis requires comparing to most people in the population considering difficulty, effort or time it takes to perform the major life activity, the pain experienced when performing the major life activity, the length of time the major life activity can be performed and/or the way that impairment affects operation of major bodily functions. We argued this based on our regulations that say when looking at substantial limiting, you know, there are nine rules of construction and we also talked about condition, manner, duration. So we use what we said in our regulations and our argument as to why the district court was wrong. And here the plaintiff presented evidence from his doctor who said that the plaintiff''s ability to lift objects weighing more than ten pound was likely permanent and the plaintiff testified that he experienced back pain for years and sometimes wore a back brace. Given those facts we reason that since most people in general population are not limited in ability to lift objects weighing ten pounds, they do not use a back brace, and do not experience periods of severe pain that require prescription medication, injection treatment or eventual surgery. We felt that the plaintiff proved his back impairment was substantially limiting. We also explained that even though the plaintiff was not substancially limited in lifting every day, the ADA clarifies that the relevant inquires whether the condition when active substantially limits a major life activity. Now episodic conditions can constitute a disability. And finally we pointed out that the court did not address the effect of the plaintiffs back condition had on its neurological function. He had a nerve problem and failed to acknowledge that employer may only be the regarded as claim by showing that the impairment or the perceived impairment is both transitory and minor. In this case the court said that the employer did not regard the plaintiff as being disabled because his back condition was transitory. We disagreed that it was not transitory that it was a persistent problem. Even if it was transitory, the courts, you would have to show that it was also minor and the court, the district court, ignored that requirement and in this case we found that it couldn''t be met anyway because his back impairment again, given the fact that he sometimes wore a brace and was in severe pain and took prescription medications that the pain radiated down his leg and affected his ability to lift but this was not a minor impairment. So I think this is probably a good segway to any questions you may have, particularly if you have questions about the definition of disability or the term substantially limiting or reasonable accommodation or whatever you have. So with that I will take questions.
Ladies and gentlemen on the telephone if you have a live question you would like to ask you can press the star and then 1 key on your touch tone telephone to cue up for a live question. Press the star and then 1 key to cue up for a question.
While we are waiting, I see I do have a question and the question is: if an employer provides technology for employees to use such as e-mail and calendar system and systems that are accessible to employees who use assistive technology available, does EEOC have a position or have there been a cases where employer duly purchases or contracts for an inaccessible system denying a disabled employee the use of tools provided by other employees. If the accommodation offered to compensate for an inaccessible tool or separate systems do not integrate with the primary calendar system, for example, could this be analyzed as denying an employee the tools needed to do their jobs? That''s a long question. The gist of it is if the employer changes systems and then it has to make that same technology accessible to a person because of a disability, otherwise they are not giving them equal benefits and privileges of employment. And it is the only way they can show that they could not do that is by showing that it would be an undue hardship. Or it would unduly costly or that it would involve, you know, changing the way things are normally done. But the fact that it is providing this technology to put -- to the employees in general it probably cannot show that it would be too costly to make whatever adjustments it needs to make the technology available to a person with a disability. And the other question was, you know, have there been any cases where an employer purchased such equipment and did not provide it. I am not aware of any cases. I am sure that there have been. I am not aware certainly of any cases that we have filed. But that is certainly our position always that if you are providing technology or changing technology, then you have to make that technology accessible to a person with a disability, absent of undue hardship.
I would jump in. I am familiar with some issues that have come before us, a P and A in our particular region, that dealt specifically with an issue of employer and some technologies that they had purchased and there were problems associate with it. I know they never ended up actually with a case law but they did have a settlement with that employer because it is an ongoing issue. We do hear these things on a regular basis. Employers are purchasing new equipment or upgrading what they currently have or hiring new employee and make an argument that they cannot make the technology accessible as a reason not to hire somebody without looking at what would that take to do that. I think it is easier to sometimes to just say no than doing those things and don''t always recognize that it is something that they really need to take in to consideration in their procurement process. If they are going to by something new or putting out contracts, or anything of that nature that issues should be front and center. They don''t wait until they have an employee who happens to work for them but should anticipating in their purchasing that these issues need to be accessible.
That''s a good point and another point that employers ignore is that the person may already have his or her own software. They may have a policy that no one can upload software that''s not sanctioned by the business. And so they have said you can''t upload your own and it is too expensive for us to pay for it. As an accommodation they may have to modify that policy to saying they can''t afford to buy the software. They have to allow the person then to bring in his or her own software and have it uploaded so that they can have access to all the information that everyone else in the office has access to. But as Robin said --
Smaller employer --
Exactly.
If I am a large corporate entity, make --
Or the federal government.
Yes. It is definitely a point for sure. Any questions on the phone that we can cue in at this time?
We sure do. We have two questions. We will take our first question.
Okay. I had a situation a couple of years ago where I was employed by a major corporation and went through the training and got the first paycheck, I.D. everything was good. I am a person who uses a wheelchair and the functions of the job everything was great...was told to report in on Monday for the first actual day doing the job. I reported in and was told that I could not come on the property because they were going to hire somebody. I was disabled and they couldn''t see that I could do it. Everything they said I couldn''t do, I told them I could do and ended up saying well, it is a big building. You might have to go 20 miles back and forth to do the work and your batteries probably wouldn''t last, so sorry. I filed with the EEOC. They took the packet, called me back in a couple of weeks and said that the company that I worked for said they didn''t know me. And so they handed them my packet back unopened and said sorry. What should I have done?
This sounds very odd to me because usually it is an investigation and intact process where, you know, you sit down with someone and tell them exactly what happened and they get the information from employer and the contact information and, you know, whatever the statements that you have supplied. And then, you know, they go to the employer with this information and give the employer a chance to respond. So it seems -- but what should have happened it appears they should have come back to you for any evidence that you may have. Certainly said you received a paycheck. They should have asked for a stub or whatever other information you might have had or documents to show that you in fact, did have contact with this employer and, you know, that you were in fact, offered a job and that you were paid for it. So I am kind of -- the situation that you are explaining that they just handed your packet back and said that the respondent says it doesn''t know you.
They took all that information and I did show them. I gave them a copy of my check. I gave my I.D. And all the evidence that I was an employee and the letter from the company it accepted me as an employee in my contract. But what the EEOC said was unless the company admits wrong doing they cannot open your packet and investigate. They have to have the company admit that they were a part of it.
That sounds a little bizarre to me and it seems like you certainly need a follow-up. I would suggest that you either, Robin, is there someone you can contact to follow up with this?
He can always go to his ADA center at the regional level to see to if they can assist with individuals that they may know at the regional EEOC office because it seems to me it is more of an issue of whatever was happening at that regional EEOC office that you would have gone to. So I don''t know if you have had contact yet with your ADA center but I would recommend that you contact them at 800-949-4232 and see if you can get some assistance in following up with that regional office. And that''s -- a follow-up question to this issue of filing a complaint somebody on online had asked a question from the time that complaint is received at your offices how long should it be before someone receives an initial response from an EEOC office?
I can''t give you an exact amount of time certainly. If you go to our website, www.eeoc.gov there is a lot of information on charge process filing and it sort of walks you through and explains the process. You will have a contact number for the regional office. You can certainly call them. I mean I think if it has been a day or two, I think you need to wait a little longer. But if you filed a complaint or, you know, gone through the intake process and it has been a couple of weeks and you should call and find out what the status is. I can tell you that most of our regional offices they are working furiously and we are understaffed as I said we got a record number at least in 2011 of 100,000 charges. We don''t have nearly enough investigators to take care of those charges but someone should be able to give you a status of your complaint. There is a question online and this is an interesting question. Is there any benefit or detriment to revealing the disability during the interview process? What the ADA regulations says during the interview process, during the application stage the employer is absolutely prohibited from asking any information about a person''s disability. And the reason for that is obvious, because obviously if somebody reveals they have a disability and they don''t get the job. They don''t know if it is because of a medical condition or because somebody else is more qualified. What Congress said and this is true with the old ADA before it was amended. Congress said that pre-offer employers you don''t get a chance to ask about any medical conditions. You can only ask post offer if you ask all entering employees in the same job category the same question that requires a medical examination. The exception pre-offer is if a person discloses that they has a disability, then the employer can ask whether the person needs a reasonable accommodation to do the job and if so, what type. But cannot go off on like now that you have opened the door I want to ask all questions about your disability. And this is happening we find out with a lot of the disabled veterans who are coming back. A lot of them either have obvious injuries and the same standard applies, even if somebody has an obvious disability or injury or as the gentleman said earlier he is in a wheelchair. If you go in for an interview and in a wheelchair, the employers can''t start asking questions about that unless they believe that you will need an accommodation to do a job. Certain jobs don''t open the doors for those kinds of questions because there is no reason why a person in a wheelchair couldn''t do that job. But with disabled veterans their injuries are obvious. So employers think they can ask questions about their injuries and how they got injured and another question we find out that disabled veterans if they disclose that they were in active combat duty. A lot of employers start asking questions about do you have flashbacks, have you been diagnosed with PTSD. All of those questions are illegal and unlawful under the ADA. When I did my presentation at Fort Belvoir to wounded veterans, one veteran said his that he voluntarily disclosed to his supervisor that he was severely burned during active duty. And he and the supervisor had become friends. His burns were not obvious. They were not obvious to, you know, the eye because they were mostly under his clothes, although he was severely burned. The supervisor thinking that he was doing, you know, just shared the information with another manager. Well, then a promotion became available and the supervisor told this manager that oh, you know, Charles is an excellent employee but he was severely burned and that''s affected his mobility. So the manager where the new job was didn''t even consider Charles for a position based on this information that his current supervisor had shared with them. So in that question even though not unlawful under the ADA that the employer was not initiating the questions sometimes it is a detriment, because once you put it out there that you have a disability, you know, it is likely or it could be likely that that information could subsequently be used, you know, against you. So we always caution that it is a very individualized thing. There may be reasons why a person feels that they should disclose. I know that there are people with epilepsy who have seizures who disclose because they want the employer and their coworkers to know what to do or mostly what not to do if they have a seizure. People voluntarily disclose because they are undergoing cancer treatment. So maybe they want to explain why they, you know, have no hair or why they, you know, looking particularly thin. So it is an individual choice as to whether the individual discloses. But the ADA puts strict restrictions on whether employer can ask about disabilities or medical conditions.
Joyce, many people when we have the conversation I know this is beyond what the EEOC can comment on. They will often say that, you know, they found this to be advantage to discuss their disability upfront with their employer and others saying no. What you are trying to say legally there is no obligation. But whether someone does or does not disclose it I think is something that probably has a lot more complexity to it.
It does.
In regards to the position of the employer to the obvious nature or the non-obvious nature of the disability. I don''t think there is any hardened fact on that one.
It is very individualized and there may be very good reasons why a person wants to disclose. I guess we will just caution there is no obligation to disclose until you need a reasonable accommodation. Because employers sometimes come back and say the minute that somebody asks for accommodation say it is soon after they are hired employers say why doesn''t the person tell me they had a disability and obvious answer is because they wouldn''t be an employee if they told you that a person had said they had a disability. So employers sometimes believe that they need, you know -- that they have a right to know this upfront particularly when someone needs a disability. When the ADA says only have to disclose at the point you need accommodation. If you need an accommodation on Day One of your employment that''s when you have to disclose that you have a disability and you should not be penalized for not disclosing that during the application process.
Thank you for the discussion. John, do we have any questions on the phone hanging out there right now?
Yes, we do have a few questions. We will take our next question. Caller your line is open.
Hello. I am here within audiblee. I do have a current case going on and --
We are getting a lot of feedback from your phone.
And, you know, so right now I am in a current case. But what I am -- my question is that during the time at the very beginning among several things that happened during that time that I was working there I was -- I had went ahead and processed my application for schedule A and through the human resources department. And so the human resources department was privy to my disability through the schedule a forms, et cetera. However I was not going to disclose my disability to my supervisor in the department that I was working with for fear that discrimination would possibly happen. And that''s just unrelated to my disclosure of my medical condition became available to all the employees in my department because someone there that I knew from school disclosed my disability to everyone at work. So my question is when I very first came in to the department they had through the orientation process and we saw a film and it was telling all employees that under no, you know, condition would you be able to install software or any other type of equipment or bring in any equipment to the job that this was a procurement violation. And that you were not allowed to do so. So at that point I was like whoa, if I wanted to install certain parts of equipment on my computer, you know, to help me with my job, I am not going to be able to. So I went to my supervisor because I didn''t know who to go to to ask, you know, about this question even though I really didn''t want him to know that I had a disability. And I went to him and I said, you know, I have this question. Would it be okay if I brought in equipment to help me with my job, you know, that I have a disability, I did not disclose the disability at that time, and didn''t really even wish to tell him about it. So I was told at that time he denied me and said no, I could not install any equipment, et cetera, on the computers. That it would be procurement violation. So at the time later on I found out that I could have gotten equipment on the machine but this was long after that happened. I guess my question is what''s the burden of proof when something like this happens in court because the film says this, you know, the video computer video says this but, you know, and I wrote a note about that at the time around the time not too long after it happened. What is the burden of proof in court in regards to that.
I am sorry, Robin are you talking? I am getting a lot of noise in the background. Even though there is a general rule or policy that employees cannot install equipment on or software on their computers, an employers can have those policies they have to modify those policies when someone with a disability needs a particular program or, you know, needs software because of their disability. Now the issue is at that point you have to disclose that you have a disability and you need, you know, an accommodation. In which case then the obligation is either the employer has to provide that software or program as we said earlier it is going to be a procurement issue. It is going to be something that the employer can do. So even though the employer might say you can''t install it yourself, the employer then has to purchase it and install it or purchase and install an equally effective program or software. So you can''t as a person with a disability just come in and say I need this for my disability and I am just going to install this software. Because that''s a violation of, you know, workplace rules that apply to everyone. They can have those workplace rules. They have to make an exception or a modification for a person with a disability and once you said I need an exception to that, you have to let them know that you have a disability. So I guess the short answer is you can''t just do it and keep your disability to yourself because that''s a breach of the policy. However employers can''t just apply the policy, you know, across the board and not make exceptions for a person with a disability. Robin do you want to add anything to that?
I think it goes back to what -- you had the question earlier about the technology and things. Again as an individual, you know, if you want that, that''s a reason able accommodation that you are requesting. You at that point would have to disclose the disability to have that dialogue of it being an accommodation.
There is a question about reassignment to -- and the question is the EEOC guidance speaks to reassignment of vacant positions are equivalent in terms of pay, status and other relevant factors, e.g. benefits, geographical location or if no equivalent is vacant reassignment to a lower level position if the individuals qualify. I have been debating the extent of equivalent in this context beyond equivalent compensation package, location and shift what are the relevant dimensions for equivalent? And that''s a case by case sort of determination what is equivalent obviously like you said pay, status, responsibilities, you know, the essential functions, are they equivalent. You know, whether or not in terms of yes, a location can be equivalent. I think that they are going to be more cases that are decided. There aren''t a whole lot of reasonable accommodation cases because a lot of times we never go to a reasonable accommodation because the court felt that the person didn''t have a disability. Now thats going to be easier, I think we are going to start to see more that there are more decisions out there perhaps this is something that the EEOC will provide more guidelines on determining what''s equivalent. The best I can say it is sort of that it is a sort of case by case situation. I think you have identified some of the factors that you look at and, you know, depending upon the workplace there may be other factors that are relevant. One of the examples was a custodial worker who has lifting restrictions cannot be accommodated in this current position. Assuming he is qualified would a clerical position with similar compensation be considered to be equivalent? That''s not so much a matter of equivalent is whether or not he is qualified for a vacant position. So, obviously in the clerical position and custodial position are not equivalent in duties. Its more like is theres a vacant position for which he is qualified If theres not, if he cannot be accommodated in his current custodial position. So one of the things you will have to do is determine whether lifting something that is an essential function of the custodial position. If it isnt and thats just a minor function, then the question would be could he be accommodated in the custodial by having someone else do the lifting if its not a fundamental duty. Another question would be whether or not the lifting can be done by some other means. Does he have to physically lift it? Is there some kind of equipment that would lift for him? The other -- because a lot of times employers get hung up on how a job is done instead of what needs to be done? So I think first you have to evaluate what it is he is supposed to do, what the fundamental duties of the job are and if it turns out that he cannot do that job then you have to look at other jobs for which he may be qualified. That are vacant and as I said in that sense you are not looking for the position that''s equivalent to his -- to the duties of a custodial position. You may be looking at a position that''s close in pay, close in hours. Close -- equivalent in location to where his custodial job is.
In those two scenarios that the person laid out, it may be that this person might be thinking about well, putting somebody from a custodial in clerical is that really equivalent and you are saying that''s not the analysis that you would use there. Because the equivalent would be, is there an equivalent position within the realm of the custodial arena? And in this case, when he is not able to do this work due to his disability you are then looking for other positions that are vacant that would have the other factors like the equivalent compensation and as we know, promotion is never required as a reasonable accommodation.
Right. It is qualified for that job. You don''t have to train the person to become qualified but can that person do the job even though it is not, you know, the same as a job he was previously doing. Okay.
Thats that trickiness of whats equivalent in that regard. You are really talking about the areas where the person worked in as an equivalency factor.
Great. Do you want to take another question online before we go back to the phones?
Hmm, lets see what do we have here.
What is EEOC''s position on light duty and/or return to work programs as they relate to the ADA?
Well, the position, I mean light duty is -- can be a form of reasonable accommodation. And I know the Postal Service uses light duty. A lot of times there is a light duty for -- they make a distinction between people who are injured on the job or off the job in terms of get limited or light duty and thats fine, thats their internal workings. But when the person needs an accommodation because of a disability then the question would be whether or not that person is light duty an effective accommodation to let that person come back to work and maybe for a period of time not have to do, you know, maybe the lifting or the walking or, you know, maybe whatever other functions that job requires, would that be an accommodation. Yes, it would be accommodation if it would not pose an undue hardship. So any light duty programs or return to work programs in the ADA context you are looking at them as to whether or not they would be a reasonable accommodation. So we always say that, you know, the employers can require a person to come to work as opposed to giving them leave as a reasonable accommodation if there is a way for them to return to work, you know, within their restrictions if they need them or returning to work with some limitations is an effective accommodation. Always looking at return to work and light duty programs in terms of how it fits within the reason able accommodation analysis.
Great and John do we have any additional questions on the phone that we can intersect at this time.
Yes, we will take our next question.
I work with the Indiana Canine Assistant Network, I am the Director of Client Services and we have recently placed a service dog with a 24-year-old young man who uses a motorized wheelchair. He has juvenile rheumatoid arthritis. He has worked in his job for three years. He informed his employer that he would be getting a service dog and the employer didn''t mention any issues at the time. However has now become reluctant to have this young man have his dog with him at work. We have pulled the EEOC notice 915.002 and I am a little confused as to whether or not the dog, whether or not the dog has to provide service that directly relates to Michael''s job or does the fact of simply that the dog provides service enough to qualify for the reasonable -- as a reasonable accommodation.
The question would be having the dog would eliminate a workplace barrier. It doesn''t have to relate directly to, you know, the functions of his job. If, for example, the dog alerts him, I don''t know what his disability is but if the dog alerts them that he is about to have a seizure, that''s a situation where the dog -- having the dog doesn''t help him do the central functions of the job but it does overcome a workplace barrier and in that case it would be reasonable accommodation absent undue hardship to let him have the dog. EEOC under Title I we are talking about eliminating workplace barriers as opposed to service animals or pets or animals that are comfort animals. In Title II and Title III context we get cases or cases arise that are about whether or not a person can have an animal as a comfort animal to rise the plane or to get certain housing. And EEOC in Title I we are talking about doesn''t help overcome a workplace, you know, barrier. And if the answer is yes, then you have to consider whether or not allowing him to have the service dog is a reasonable accommodation.
Is that something -- what the dog specifically does is allow him access to the workplace when access is -- access to the handicap buttons to the building are blocked by a delivery or equipment. The other thing specifically that the dog does is prevent him from having to ask a coworker or another human being for assistance if he drops something or needs something that''s too heavy for him to manage with a reacher, needs something like that delivered to him or picked up off the floor. So our contention was that the workplace barrier is the need for -- to interrupt another coworker in order to do something that the dog can do for him.
Well, I mean the workplace barrier really is the fact that he can''t reach something if -- if he drops it on the floor or he can''t be alerted to something in the workplace that he couldn''t himself observe. So those are the barriers. And then the accommodation becomes is the dog an affective accommodations or are there other effective accommodations. So we have always said that generally an effective accommodation is not requiring another employee to assist, you know, a coworker. You know, somebody can voluntarily assist someone a need but would it really be an effective accommodation to have another coworker always there. I mean obviously if the person drops something, you know, you can''t anticipate when that is going to happen. Obviously if he has dog all the time the dog is there and can retrieve items. So the question would be is there another effective accommodation or is having the service dog the only effectively accommodation to overcome the workplace barrier. Do you have anything to add Robin?
No. It is a question we get all the time. I mean we get a lot of calls related to the issue of service animals in the workplace but I think your analysis and the guidance that been given by the EEOC I think it goes case by case.
There is a question online. Considering the recent case discussed on obesity do you feel it is a condition that employers should consider qualifying as a disability that warrants reasonable accommodation? I think it is going to be a case by case basis. Obviously like any other disability it can constitute a disability and it sort of irrelevant if the person doesn''t need something in the workplace because of it. It is an analogous to people who have diabetes or epilepsy or cancer they know they have a disability but theyre not asking for anything in the workplace. If the person with obesity needs something because of his or her obesity, say, for instance, the person cannot the job requires a lot of walking and the person can''t walk and is asking for a motorized scooter or the person is asking for a larger cubicle then you have to answer the question whether this person''s obesity is a disability. Prior to the amendments we always said severe obesity which I think was defined 100 pounds over, you know, whatever the established weight, the guidelines were for your weight and height. If the person exceeded that by 100 pounds then that person was considered to be severely obese. I think a lot of the questions will be in this case, the case that I mentioned it seems there was an acceptance that the person had an impairment because of the obesity and in other cases it is like obesity is the impairment. It will be interesting to see how courts look at that. Its sort of analogous to alcoholism and what''s the underlying impairment for alcoholism and many studies say that alcoholism is the impairment. I think that might be the same analysis or approach to obesity. It is not that the person has a neurological condition that it caused the obesity or there is a major bodily function such as thyroid impairment. I think there will be cases as it appears in this case the impairment is obesity and when you are looking at that you are looking as a person substantially limit in obesity in a major life activity. If there is an underlying problem and physiological problem then you look at this person is substantially limited, you know, the thyroid function is substantially limited. If there is no physiological underlying problem you look at whether the person is substantially limited in walking or standing or lifting or caring for, you know, himself. You look at that other list that we always looked at in determining whether that he is substantially limited. The short answer we are going to see more cases, I dont know, It is going to be a fact specific, an individualized analysis. In some cases there will be a finding and, you know, because I don''t think that there is going to be a cutoff where unless we go back to that standard of saying that if a person is 100 pounds overweight and I don''t know that we will do that given the broaden definition of disability under the ADA but I think it will be a case specific kind of analysis. I think in the cases that have been brought there is no question that the person severely obese. So the real issue is whether moderate obesity or are we going to look at BMI or I think that it is probably safe to say that, you know, for the millions of people out there that wish that they can lose 20 pounds or, you know, 25 pounds or even maybe 40 pounds that those are not going to be cases where there is going to be a finding of disability.
That''s a tricky one. It is interesting to see them getting to the point that we are dealing with them since we know that they have been there before never been able to pass that disability threshold prior to ADA Amendments Act (ADAAA). I have a question submitted by e-mail. This one is what factors should an employer consider if an employee with a mental health condition provided documentation that states they have a medical condition that impacts their ability to perform any work, meet deadlines and interact with others. Most recently another doctor provided updated medical documentation indicating that they perform all the essential functions without an accommodation.
So there it seems like there is a situation where there is a conflict of medical.
Yes, they provided documentation that states they have a medical condition impacting their ability to perform work and interacting with others but most recently a separate doctor, same situation provided updated medical documentation indicating that the person can perform all essential functions without an accommodations.
How much time lapsed between the two documents? Obviously it seems like the first document says the person is unqualified because they can''t do any work even with accommodation, then that person is unqualified. But now has a person received treatment? Has a person been taking medication that''s effective? I think in the area of mental illness that it does change. People go from being unable to work to being able to fully be present and do a job without accommodation because the effectiveness of the medication makes that possible. If there has been -- hasn''t been a lot of time, I think the employer then has try to reconcile those two documents which may mean sending with the person''s permission sending a list of very specific questions to the doctors that provided maybe to each of the doctors that provided the information asking them to clarify, you know, the document to explain, you know, why it is Dr. A feels the person can''t do the job. What is the job? What is it about this person''s condition that makes you believe that he can''t do any job or, you know, can''t perform any of the functions of the job as the other doctor who says the person can or you may need to send a person to get a tie breaker and we say that in our document on inquiries and exams where employer, you know, has two conflicting reports that the employer may want to send the person to another doctor for a different assessment.
And I think what you were saying originally I think -- and I think this is where employers need to really open their minds a little bit more it could be that this person''s condition at this point is not limiting them. Maybe they have had, you know, a remission or something of that nature. And so now they are able to -- doesn''t mean that later on they might have a relapse and need to have things considered differently but I think that each instance in each situation the employer should evaluate separately. If there is last year you see this and this year you received something different. I think employer needs to look at those and really examine what''s going on and go back and look at the individual and see what they are performing and how are they performing and a good indicator is looking at how the person is doing in the position or in the job.
That''s an excellent point or talking to that person. Part of the interactive person would be to talk to the person and say we have these conflicting medical reports. Can you provide some clarity and employer may be able to make a determination based on what the employee also says. You shouldn''t discount the employee''s own assessment of his or her abilities.
Follow up to that, dealing with issues associated with mental illness what factors should an employer consider when an employee threatens suicide but then provides a doctor''s note that stress on the job was the reason for the threat for suicide. That the doctor provides a note indicating that stress on the job was the reason for the statement of threatening suicide.
Okay. Direct threat questions are really, really tricky ones and you know it has to not just a sort of passing threat but a significant risk of harm. You know, do you have to -- and it becomes difficult because it is -- some people say I am going to kill myself and they have no intentions of killing themselves. Other people may say it and they do. And I think that that is a tricky thing you have to figure out whether this is, you know, is this a threat you really have to take seriously. We say that direct threat applies to risk to others as well as to self. And I think you have to take in all the factors. Again we give a list of four factors eminence of harm, whether or not, you know, if you look at our guidance on inquiries and exam, they are factors that we talk about in terms of whether or not this is a -- you really do have a belief about direct threat. And I think you have to look at whether or not, you know, you know, what the stress was that contributed to the person making the comment. Is that stress still the same? Has that stress been removed? Again this is a kind of situation that I think you have to talk to the employee to try to assess whether or not, you know, that that the person really present poses an actual direct threat. By looking at, you know, maybe the person will say I really yeah, I do really feel like that. You know, or maybe the person has attempted suicide before. I think those are factors that you have to look at but if the person says no, I am really frustrated and I said that but I didn''t mean that literally then maybe that''s not a direct threat situation.
Context Joyce with the fact that and again because we don''t know the context of because this is somebody submitting it, but let''s say that the employer has a policy by which employee threatens suicide and they are referred to the employee assistance program or they have other actions that are part of their course of action with any employee whether mental illness or not but then this employee bring back this note and says that my disability made me do that. Would the employer be held viable based on the action took based on the person''s statement?
That is, you know, the question that can''t be answered and that''s what is behind obviously a lot of employee''s concern that the issue of liability and obviously the ADA doesn''t speak to liability. The ADA only speaks to whether or not you can take action based on your belief that a person can''t do the job because of a medical condition or your belief that the person poses direct threat and, you know, the ADA says that''s standard is pretty high. And so, you know, pretty much it is just that once the standard is met even if the employee turns out to be wrong and the person didn''t pose a direct threat, but met the standard they really did have a reasonable belief based on objective evidence that this person -- that the threat of suicide was real was legitimate and they took action by removing the employee then the employer is not going to be liable even if the person later comes back and says he should have known that I was kidding and I have said that a hundred times before and I have never done it. The issue always is does the employer have to wait for the accident or in this case for the suicide to happen. Of course, not! ADA doesnt speak to liability; the ADA speaks to whether or not employer, you know, meets the standard. And so if the employer can show that, you know, I had reason to take this seriously based on this objective evidence, so therefore I removed the person. I sent the person for EEP and I told the person that she couldn''t come back to work without a note from her psychiatrist explaining it was okay for him to come back to work. In those situations employer is not going to be liable.
Back to the phone. Operator, do we have any questions?
We have one question. Caller your line is open.
Hi. We attended a conference here in the Midwest ADA conference which I think you were the guest speaker on EEOC and you mentioned a court case in the 7th circuit that applied to job reassignment in terms of identifying vacant positions whether the person could be moved ahead of others that may also be qualified for those positions. I am wondering were you able to identify that case out of the 7th circuit that applied to job reassignment?
I think I did but I don''t have it in front of me. If you can send me e-mail or anyone else whose questions I didn''t get a chance to answer or I didnt answer thoroughly or you didn''t like my answer if can send e-mail to Joyce.Walker-Jones@eeoc.gov and I will look for this case and email to you. The issue there is in the 7th Circuit, they have said you don''t have to give the job to the person with the disability, reassign the person with a disability a job you can consider that person''s qualifications along with other applicants. The EEOC''s position is that no, the person with the disability trumps other applicants in terms of reassignment and the 7th circuit said no. They have to be the most qualified and the EEOC says the person has to be qualified. But I can get that case for you. E-mail address is Joyce.walker-Jones@eeoc.gov.
Any other questions?
Okay. So we have another question here. I see related to has EEOC every litigated any cases that would have involved individuals that may have been deaf who were seeking opportunity to be working in a position such as a forklift operator but they were denied that because the employer had an unwritten policy that it was unsafe for persons who are deaf to operate a forklift?
I am not aware of EEOC cases where we have litigated but what we have said is that''s really a qualification standard issue. Employers have, you know, some qualification standards that are written and other qualification standards that are unwritten. But if an employer apply a qualification standard they may have to show, you know, and it excludes the person with a disability show that it is job related and consistent with business necessity and that either that the job cannot be performed or the standard can''t be met with a reasonable accommodation. And in a lot of cases, the employer, we see this come up with in terms of blanket exclusions, you know, where there have been cases where employers have said no deaf person can drive a certain vehicle or truck or, you know, and I guess, you know, operate a forklift. And in those cases generally blanket exclusions except in the very small number of cases are always going to be -- can''t always be challenged because they require that employer do an individualized assessment. So they would have to look at -- they couldn''t apply this policy to all people who are hearing impaired or all people who are deaf. If a person who is hearing impaired or deaf but has experienced, you know, operating a forklift operator the employer would have to show that first of all, the standard is job related consistent with business necessity and have to show that either the person can''t do the job or would pose a direct threat. Even with an accommodation. And most cases it fails because even with, you know, we are successful in terms of getting Department of Transportation to change its requirements for deaf drivers or drivers with diabetes or with epilepsy, so blanket exclusions whether their written or unwritten are generally going to fail.
Thank you. Back to a question that explores a little bit more the issue of service animals or other types of animals in the office. I know you are aware of the fact that the Department of Justice''s regulations under Title II and Title III defines what a service animal is and also very specifically defines emotional support or comfort animal is not considered or qualified as a service animal but that''s very specific to Title II and Title III. There has been confusion about the definition of service animals under Title I and about not emotional support animals could be an employment accommodation. Could you address how EEOC is defining service animal and I know you talked about that already, that more specifically the issue of emotional support or other types of animals in the workplace as an accommodation.
I know that under Title II the Department of Justice implement or enforces Title II or Title III. I think that the regulations out there saying that the service animal only include canine and small horses is that right?
Miniature horses yes.
EEOC hasn''t as of yet followed those guidelines. I think that there have been some cases in the federal sector where there were other animals that were considered service animals. So the issue is that it has to be a service animal. And it has to overcome a workplace barrier. As in the person described the dog who can pick up items that the person dropped. I think it is clear that that dog is performing a service that overcomes a workplace barrier. I think it is more difficult in terms of, you know, emotional support because you first of all, you have to identify the barrier. What is it about the workplace that creates this barrier? Because it is like personal use items and I know that the -- the advocates of service animal people, you know, argue that it is not, you know -- it is not the same. But the ADA says in terms of Title I the employers don''t have to provide personal use items which are described whatever a person needs on and off the job then that''s -- it is not a barrier that''s created by the job and usually it is like where I need a personal assistant, you know, 24/7. So that''s not -- that''s something the person needs on and off the job. It is not because of, you know, that there is something about the environment that creates that need. And I think with service animals obviously in the case example of someone uses something that somebody uses, you know, on and off the job, too. But the environment in which the person works means that, you know, again if the person -- the barrier is not being able -- if the person drops a pin that he needs to do the job or the computer mouse falls off the table, then that is a barrier that is in the workplace and I think that that''s why I said in that instance, you know, that it is not providing emotional comfort. It is providing a service that the person can do -- to do his job. I don''t know in terms of the argument, I guess there can be arguments made that there is a barrier created by some particular stress in the workplace and that, you know, the animal provides, you know, a way to overcome that. I just don''t know. I mean this is a really sticky issue. I think it is sort of case by case. I don''t think there is a bright line necessarily, you know, to draw in saying well, this crosses the line. The statute, the regulation really define service animal. I am talking about how we analyzed as to whether or not, you know -- and generally as far as I know it has bee -- in the federal sector there have been a few cases, I don''t know if it was a monkey or pig, some other animal. But unfortunately I am just not able to give you sort of a bright line between, you know, service animal and emotional support animal and what is a barrier and what is not a barrier in the workplace. In the case that I discussed I thought with the dog who provided the function of picking up items or alerting the person to obstacles, that was easier case. I think that there are probably some that are murkier than that, particularly when it comes to dealing with stress or anxiety in the workplace.
Do you foresee that the EEOC would be putting on any guidances or statements to that end or do you think it is just one of those things that it is still case by case but not able to lend itself to technical assistance in this area?
You know, it certainly is possible; It certainly may be something that we address, you know, if we update, you know, our -- any of our existing guidances, for example, the guidance on reasonable accommodation. It is possible that we may do more with providing some kind of guidelines to service animals. I mean as I said who knows what we are going to be doing given that we are going to be a four person commission pretty soon and if it is considered policy, obviously it will have to be voted on by the commission. But it is certainly -- it is certainly possible that given the questions that we are asked that we can do something, even technical assistance guidance that falls short of being policy.
Obviously because you have done work in the area have veterans. We are seeing more and more veterans coming back with emotion for post traumatic stress and things of that nature. Where do you think that falls in in regards to workplace?
I think that''s a good question and I think that it, you know, I think again it is going to be an issue of whether or not the service animal and I think for the post traumatic stress is an excellent example where we are going to have to analyze whether or not this is a, you know, an emotional support animal or a, you know, service animal in terms of I know post traumatic stress, for example, there are people can''t a -- a lot of them cannot deal with sudden noises or movement. And, you know, in some cases maybe I know of a case where they said that the employer attached a mirror outside this person''s cubicle so that the person was aware when somebody was approaching because he didn''t like being approached from the back. Another employer turned the or give the person a work space where he faced the corridor. So he could see people coming so he wouldn''t have to be approached from the back. But it is quite probable that someone may have a dog for that purpose that alerts him to sudden movement or, you know, noises. And I think that, you know, again that''s going to be a case by case situation. With service animals a lot of times we get in to sort of dualing disabilities that a person, not so much the employer is questioning whether or not, you know, the animal is a service animal or whether it remove the barrier but what about the person who has an allergy to, you know, to dogs or has, you know, asthma. Or has, you know, phobia that could be considered a disability. And what the ADA says you can''t sort of pick and choose. You can''t put both employees names in hat and pull one out and say we are going to accommodate this person and not that person you have to accommodate each employee absent undue hardship. So it could be that if the person is allergic to dogs the person who needs the dog that would be an effective accommodation, employers have to look at is there any way to separate these two employees work spaces such that the person who has the allergy or phobia doesn''t have to come in contact with the dog or is there another accommodation that other than a dog that would be an effective accommodation. These are hard questions that I think one of the things that we are going to see more again we are going to see more case law because these are the ones that are going to reach the courts and this will have to give us guidance or EEOC may decide to step in and give more guidance.
Definitely, 20 years down the line you would have thought we would have had more answers than we do now. We will take another question and then go back to the phone because we are getting down to the end of the time here. Question on voluntary disclosure and whether or not it is legal for an entity to do voluntary disclosure. So, for example, you have an employer who wants to get a baseline on how many employees with disabilities that they do have to look at how do we know if we are making progress in our hiring and such and I think are all aware of the issues of requiring somebody to disclose and such. But from a personal note or from our region we do get several calls from local government entities or others who are looking to do some kind of voluntary disclosure process with their employees. Can you speak to that, the legality and any position that EEOC would have on those particular issues?
This is an area that I am not terribly familiar with. I know we have gotten some questions and I know it is not a breach of confidentiality and they provide this information in aggregate and we have X number of employees who are deaf and X number of employees who have visually impaired. It does become a breach if these employees can be easily identified. Certainly if it is a small employer it is going to be pretty obvious maybe who the employees that are referenced but if it is aggregate information then that''s not a breach. I think also that this information can be employed in many cases under the freedom of information act that they can get this information. I think in terms, I am not sure about and maybe you know Robin about EEO 1 reporting requirements. Is disability one of those requirements?
Yes it is. I think the question is can they actually ask individuals to --
Voluntary disclose?
Yes.
I am sorry. Yes. We have said that employers can ask employees to voluntarily disclose if they are, you know, want the information because they are trying to either increase the number of people with disabilities to find out how they are doing in terms of, you know, accommodating or advancing people with disabilities. And it has to be voluntary though. And it has to be -- we say that the person, you know, you can''t require the person to, you know, disclose his or her name and sort of can''t be any penalties for a person failing to disclose but yes, if an employer is either doing it because they have, you know -- they are under a federal or state mandate for affirmative action or if they are voluntarily trying to develop an affirmative action program to benefit people with disabilities.
Gets down to the process they use for that voluntary disclosure that''s more of an issue in regards to how they are ensuring confidentiality and/or animinity for that information. Operator do we have another question?
Sure, we have another question.
Hi, just a clarification point. You said earlier light duty is a form of a reasonable accommodation. I was reviewing your guidance yesterday on this issue and it actually said that light duty is not required by the ADA. I guess I am wondering many I reading an old guidance?
No, its not required. Im sorry let me clarify. To the extent that the employer has a light duty program or limited duty program they don''t have to develop one but it is to the extent that they already have one they have to consider whether or not allowing somebody to work in light of limited duty would be a reasonable accommodation. They do have to consider, you know, whether or not they can accommodate a person''s restrictions regardless of whether they call it limited duty or light duty as an accommodation but to answer your question. No, there is no requirement for employer to create a light duty position. There is a requirement for the employer to consider whether or not they can meet the person''s restrictions absent undue hardship, you know, regardless of what they call it and there is an obligation to consider if they already have a light duty or limited duty program whether or not allowing a person with a disability, you know, to work in that capacity is a reasonable accommodation. I hope I didn''t confuse you even more. That was the answer that I had intended to give. There is no requirement to create one to the extent that the employer already has one they have to consider whether or not allowing somebody with a disability to work in that program would be a reasonable accommodation absent undue hardship. Robin you have anything to add or explain it better?
No, I think did you a good job. We are kind of getting down to the wire. I do want to have -- have you respond to one comment that was made online of somebody who is reacting to our discussion earlier to the service animal in the workplace. The specific issue is when an employer -- employer does not get to decide whether or not a service animal is an effective accommodation as we understand the law. This individual is saying how they understand the law. Please clarify this issue because as it sounds to Ms. Joyce Walker-Jones that she is carving out new law here with her statement. I don''t know if you want to clarify or maybe there was a misunderstanding of what you were saying.
I don''t certainly intend to be carving out new law. I mean that''s certainly way above my pay scale. What I said was that and I may be misunderstanding the question. The person is saying the employer --
I think that they are interpreting the way it was said. They are saying as they understand the employer does not get to decide whether a service animal is an effective accommodation.
Yes, employer -- the employer gets to -- if a person is requesting to have a service animal in the workplace, employer does get a chance to determine whether or not that that''s an effective accommodation absent -- that the request is a reasonable accommodation first of all. And that the employer has to provide it absent undue hardship. Service animals are like any other accommodation. Employers should give sort of consideration to the accommodation that the person has requested. And if in this case the person is requesting the accommodation of being able to bring the service animal. Employers should look at that absent undue hardship should allow a person to bring a service animal. However, if the service animal is not the only an effective accommodation and then like any other accommodation the employer gets to provide an alternate accommodation that''s equally effective. So if the accommodation that employer says no, you know, we can, you know, we can eliminate the barrier in some other effective manner then it is like any other accommodation. That''s always been the law.
I think that the confusion is because it is so much emphasis in change in Title II and Title III and more emphasis on necessarily change but clarification of service animal and questions can''t be asked and can''t be denied etc. that there is a lot of confusion in those regulations under Title II and Title III of applying to specific entities versus what an employment relationship is.
Exactly. I understand. So whoever has a question out there if you want to send me an e-mail, you know, with your very specific question that I will try to give you a very specific answer. If there is still confusion, you know, maybe in writing I will be able to provide an answer that''s easier to understand or, you know, to make that clear. But as Robin says I think there is confusion because of the differences in how service animals are looked at under Title II and Title III as opposed to the employment context.
Definitely. Okay. Thank you. We are at the bottom of the hour. One more time to give Joyce''s e-mail for those that did not hear it before. It is Joyce.Walker-Jones@eeoc.gov. My error on that. So thank you very much Joyce for your comments and your willingness to take questions on the cuff. Also very difficult when you are in this kind of medium and can''t see people, the bodily language that goes into that. I want to thank you for participating in today''s session and your discussion and submission of questions. We apologize that maybe not all your questions were answered in the time frame available and Joyce has made her available by e-mail. It is Joyce.Walker-Jones@eeoc.gov. I invite everyone to participate in next month''s session which will be held at May 15, 2012. That topic is being prepared Inclusion of People with Disabilities in Emergency Planning. Our speaker is Jessica Mitchell with FEMA and we invite all of you to join us next month. You can register online at www.ADA-Audio.org. This session is being recorded and we will be placing the archive on our website at www.ADA-Audio.org and we invite you to come back and listen to it if you are interested or refer others to the session. So again, thank you Joyce for your time and effort and at this time we will discontinue our call. Thank you everyone and have a good rest of your day. Okay. Ladies and gentlemen this does conclude your conference you.