Welcome, everyone, to the annual ADA audio conference anniversary update session which we hold in July, my name is Peter Berg, I'm the project coordinator for the Great Lakes ADA center out of Chicago.
The ADA audio conference series is a project of the ADA National Network, which is funded by the U.S. Department of Health and Human Services, administration on community living, National Institute on Disability, independent living and rehabilitation research. You can always reach your regional ADA center by calling 800 949 4232.
These ADA anniversary update sessions are always some of my favorite sessions, because it gives us an opportunity to bring to you some folks from the Department of Justice and from the EEOC agencies that the ADA National Network has had, long standing relationships with that we in the ADA National Network truly appreciate, we truly appreciate the time that they provide to us in presenting and getting ready for the sessions.
You can find full bios for today's speakers on the ADA audio website, ADA audio.org, but just as a brief introduction, from the U.S. Equal Employment Opportunity Commission, EEOC, we have Sharon Rennert, senior attorney advisor, and we have two presenters today from the U.S. Department of Justice, Disability Rights Section, Office of Civil Rights. Both of these individuals are deputy chiefs within the disability rights section. We have Amanda Maisels and Elizabeth Westfall. The program for today, we will get some brief updates from Sharon and Amanda and Elizabeth. Once they are through with updating us on what is going on at their agencies, we will then have an opportunity for a question and answer and we will give instructions at that time to how, on how you can ask those questions. I'd like to turn it over to Sharon Rennert of the Equal Employment Opportunity Commission at this time. Sharon?
Thanks very much, Peter. Welcome to everybody participating today. In terms of giving you an update on the EEOC, basically like many federal agencies, this is a kind of in between year for us by which I mean that we are awaiting new leadership at the EEOC, just about three weeks ago the president nominated Janet Dillon to become the new chair of the EEOC. Her nomination now goes to the senate for consideration.
I have no idea when the senate is going to take up her nomination so can't even begin to predict when she will be coming to EEOC. But in the absence of a new chair that basically means that the commission is not undertaking new initiatives at this point, rather that we look to frankly the bread and butter issues of taking charges, discrimination charges, processing those, always the mainstay of what goes on here at the EEOC.
With regards to the ADA, although we are now coming up to the end of the current fiscal year, that will be the end of September but I think it is worth noting for the prior fiscal year, 2016, ADA again constituted a significant portion of charges filed with the EEOC and then lawsuits that the EEOC pursued.
In terms of charges, basically the ADA came in third, almost 31 percent of all charges filed in fiscal year 2016, were ADA charges. Only charges alleging race discrimination or retaliation came in higher than the number of ADA charges. This has been slowly increasing, and now it seems to be holding steady in that sort of 30, 31 percent range, near as I can tell for the current fiscal year we will probably be in the same neighborhood, when we finally can tally all the numbers. Because of the sheer number of charges we get, the total last year was over 91,000, a lot of the focus is on trying to decrease the backlog that we have. So a lot of effort is going in to making sure we can get to people's charges as quickly as possible to do an investigation, and reach a conclusion. So that we actually brought our backlog down last year, we are hoping to make further dent in it this year as well.
In terms of lawsuits filed, again ADA is up there, sort of right behind title 7, were ADA lawsuits last year, a total of 36 lawsuits. That is well over a third of all lawsuits the commission filed last year.
As always, we look to sort of take up a number of different issues, look to have representation of various disabilities, when we consider which lawsuits to bring ourselves. We do not have the resources to bring lawsuits in all cases, where we do find cause for discrimination, when we investigate the charge, where we cannot achieve a settlement between the parties. So we do have to consider which ones we think are most worthy to pursue litigation.
Again, I think we are looking to represent quite a cross section of disabilities, including psychiatric disabilities, and also the various issues that come up, but probably not too surprisingly many involving failure to provide reasonable accommodations of various kinds.
The last thing I wanted to make mention of, because for segment of both disability community as well as employers, there continues to be a lot of interest in EEOC's regulations regarding wellness programs, that is under both the ADA and Gina. The AARP filed a lawsuit challenging the validity of those regulations. The district court did not decide to hold up the effective date of the regulations. AARP had asked the court to do that. The court decided no. But the court did feel that AARP's lawsuit was worthy of going to the merits of the case, and recently, in the past couple of weeks, there were oral arguments. So now we await the judge's decision, and again, no idea when that will be coming. But in terms of the regulations, they are implemented. They are in effect. And certainly it's EEOC's hope that the judge will agree that the regulation should continue. So Peter that is really my update at this point.
All right, thank you very much, Sharon. Why don't we go ahead and turn it over to Amanda and Elizabeth at this point.
Hi there, this is Amanda, from the disability rights section, thank you so much for having me on the call today. I am going to talk about some of our general enforcement work that we have accomplished over the past year or so. And after I give my remarks, Elizabeth is going to talk more about some of our Olmsted community, integration enforcement work. It's a nice segue following on Sharon's comments. One of the priority areas of our enforcement has been employment. As most of you know the Department of Justice enforces title 1 of the ADA against state and local government employers whereas the EEOC files lawsuits against the private employers. I'd like to highlight a few of our title 1 enforcement accomplishments, just this past March. We resolved a matter against the Washington metropolitan transit authority, our metro system in D.C. The department's complaint in the case alleged that they extended a job offer to an applicant as an elevator parts supervisor, but then withdrew the offer upon learning the applicant had epilepsy. The complaint alleged they failed to discuss with the applicant how his disability might affect his ability to do the job if at all or whether there were any available reasonable accommodations that would enable him to do the job.
We resolved this case with a consent decree, under which WMTA will institute new policies to ensure that employees and job applicants with disabilities won't be discriminated against and will have the opportunity to confer with WMTA about any limitations from their disability as well as opportunities for reasonable accommodation in the workplace. WMTA will ensure supervisors are fully trained in the policies and also paid $175,000 in compensatory damages to the applicant. I'll just mention that this and the other matters I'm going to talk about all started as charges filed with the EEOC that the EEOC investigated.
The second agreement from February of this year was an agreement with the City of Philadelphia, to resolve allegations that the city failed to consider reassignment for a sanitation worker who had a heart attack and was subsequently placed on a 20 pound lifting restriction. The city, when the sanitation worker could not perform his job, because of his heart attack, instead of considering a reasonable accommodation, including reassignment, they terminated the employee.
Under our agreement, the city will develop policies and procedures to ensure that where appropriate, reassignment is a considered reasonable accommodation, will train staff on the ADA, offer to reinstate the charging party and pay him $90,000 in back pay and damages. The past fall we entered into another agreement with the city of Florence, Kentucky and this resolved pregnancy and disability discrimination allegations under both title 7 and Title 1 of the ADA, title 7 of the Civil Rights Act of 1964 of course.
According to the Department's complaint, Florence discriminated against two pregnant police officers by denying both officers' requests for light duty. The department alleged that Florence had previously had assigned light duty positions to employees who were temporarily unable to perform their regular job duties regardless of why the employee needed light duty. In April 2013 within months of one of the police offer's pregnancy related light duty request, Florence had limited light duty to employees with on the job injuries. Florence also required that employees with non-work related illnesses or injuries demonstrate that they had no restrictions before they could return to work.
Under the consent decree Florence agreed to adopt new policies that allow accommodations including light duty for pregnant employees and employees with disabilities, establish an effective process for receiving and responding to employees' accommodation requests and discrimination complaints and ensure the proper maintenance of employee medical records, which must be kept confidential. In addition Florence will train all supervisors, administrators and other employees who participate in making personnel decisions related to light duty and other accommodation requests made pursuant to Title 7 of the ADA. Florence also agreed to pay 135,000 in compensatory damages and attorney fees as well as restore the paid leave that the officers were forced to use.
Just so you know, all of the agreements and accomplishments that we are going to talk about today are available on our website at ADA.gov. We also have additional resources and technical assistance documents on there as well.
Another priority area that has been an area of focus is education. We all know that education has the potential to serve as an equalizer in our society including for people with disabilities. One of the actions that we brought last year was again for the Miami University of Ohio. We intervened in a private lawsuit alleging that the University, Miami University of Ohio, which is a public university, violated the ADA by using technologies that were inaccessible to current and former students who had vision, hearing or learning disabilities. Miami University was not ensuring that individuals with disabilities could interact with their websites and learning management systems, including accessing course assignments, textbooks and other materials, to ensure that individuals with disabilities had access on an equal basis with students who do not have disabilities.
Last fall we entered into an agreement to resolve our lawsuit, and Miami University agreed to make significant improvements to ensure that the technologies across all of its campuses are accessible to individuals with disabilities, including reforming its technology procurement practices and ensuring that its web content and learning management systems comply with the web content accessibility guidelines or WCAG 2.0 AA standards which are the industry standards for web accessibility.
Steps like this are crucial because without accessible course materials, individuals with disabilities are deprived of a full and equal opportunity to participate in college life and to benefit from the technologies of higher education.
We had another university settlement agreement with Princeton University under Title 3 of the ADA and this is notable for providing valuable guidance on colleges' and universities' obligations with respect to students with mental health disabilities who need accommodations or who may have a crisis that requires a leave of absence. This agreement clarifies a university's obligation to reasonably modified policies, practices and procedures including leave and re admission policies, to ensure that students with disabilities have an equal opportunity to succeed.
We have also worked on matters involving elementary school or secondary school education, such as this past March we resolved a complaint that alleged a school district had excluded three brothers from school after learning that one of their relatives had HIV. The school district said that the boys could not return until they produced HIV test results.
In response to literally worldwide press attention, the school district then allowed the boys back in school after a few days exclusion. Our agreement will ensure that no other children in the district or their families will experience this. The district agreed to develop nondiscrimination policies, revise contagious condition policies to reflect current medical understanding of HIV, train its staff on Title 2 of the ADA, and pay the brothers $50,000.
Amanda, hold on. We lost our captioning here for a second. So if you can just hold on.
Appreciate the patience of all of our participants. We have lost the captioning at this time. In order to provide an inclusive presentation, we need to have the captioner up and running. So appreciate your patience and the patience of the speakers while we get this resolved as quick as possible. Thank you, Amanda. Go ahead and resume.
Great. I was finishing the Ridge school district matter included $50,000 in compensatory damages.
Another ongoing case we are working on is against the Gates tri light school district in New York, and this is to ensure that students with disabilities can use their service dogs in school. In this case we alleged that the school district violated title 2 of the ADA, when it refused to allow a student with a disability to attend school with their service dog, unless their family paid for a separate handler for the dog. The dog performed many tasks related to the student's disabilities, including alerting to seizures, preventing her from wandering and providing support so she could stand and walk independently.
This lawsuit follows on prior work in this area including a settlement with Dell Rand township school district in New Jersey. The department firmly believes that individuals with disabilities and their families are entitled to choose how they and their children manage their disabilities.
We have also worked on voting issues, and we launched an ADA voting initiative in 2015 in partnership with our U.S. Attorneys offices around the country, to increase polling place accessibility for individuals with disabilities around the country. Since that time, we have surveyed approximately 1300 polling places across the country to assess polling place accessibility and ballot accessibility. Our resolutions can be found on our website, including recent settlement agreements with the City of Chicago, Palm Beach County, Florida, and a Pierre county in Virginia. This initiative is ensuring that voters with disabilities can vote at the polling place near their home alongside their neighbors and friends just like all other voters.
Another priority area is transportation. As many of you are aware, is a key issue for people with disabilities. Last year, the disability rights section reached an agreement with Greyhound bus lines which serves more than 3800 destinations, and more than 18 million passengers each year across North America. Our agreement resolved allegations of disability discrimination in intercity bus transportation for with individuals with mobility disabilities. With our Greyhound settlement, we help ensure that people with disabilities have an equal right to travel freely across the country.
The alleged violations included failing to maintain accessible features like lifts, failing to allow passengers with disabilities to board or exit the bus at rest stops, and failing to allow equal access to make reservations on line. While passengers without disabilities were able to complete reservations on line, passengers who used a wheelchair were directed to call in to make reservations and were charged an extra fee.
Under the terms of the consent decree which we are currently in the process of implementing, Greyhound is reforming their policies, and individuals who experience disability related discrimination while traveling or attempting to travel on Greyhound buses during the previous three years may be eligible to receive a monetary award. In addition, Greyhound agreed to pay a total of 300,000 amongst specific individuals identified by the department who experienced ADA violations. Greyhound also has paid a civil penalty to the United States in the amount of $75,000.
A few other matters include, in the area of corrections, a recent resolution included an agreement with the Ohio Department of Corrections to remove architectural and programmatic barriers to access for persons with disabilities. We also had a recent agreement with the Arlington County, Virginia Sheriff’s department to ensure effective communication for arrestees and inmates who are deaf or hard of hearing.
A few months back we filed a statement of interest, like an amicus brief, in a case brought by an individual against a county homeless shelter. The brief clarifies the homeless shelter's obligations under title 2 including obligations to make reasonable modifications. The plaintiff in the case was admitted to a county shelter, and she requested a standard bed because she couldn't get up and down from a floor mat unassisted. Instead she was assigned to sleep on an elevated floor mat. That evening, shelter staff told her to come outside for a resident count, and she fell and injured herself while trying to stand up from the floor mat. While being treated at a hospital, the shelter staff decided she was medically unfit for the shelter and banned her indefinitely from staying there. In our brief we explained that the one of the benefits or services offered by the county was providing residents with a safe shelter, so the county had to provide qualified residents with disabilities the same opportunity.
She told shelter staff she needed a lower bunk bed because she physically could not get up and down from the floor mat. If being assigned to the floor mat with no bars to grasp rather than the regular bed with a metal frame put her in an unsafe situation, she would not have an equal opportunity to gain the same benefit from the county's program as residents without disabilities.
As to the county's assertion that she was medically unfit to stay at the shelter because residents were required to sit and stand without assistance, we explained that the county was required to consider whether she could sit and stand without assistance and thus meet its criteria if she were provided the requested modification, namely a bed with a standard height. In short we clarified that qualification for purposes of title 2 must include an assessment of available reasonable modifications.
Finally, we have also, another area of focus has been healthcare. We have had an initiative called the barrier free healthcare initiative for several years which is a partnership with our U.S. Attorneys offices. This month, the department entered into a settlement agreement with doctor’s hospital at renaissance which is in Texas. This agreement resolves allegations that the hospital failed to provide effective communication to two parents while their daughter was receiving monthly chemotherapy treatments. One parent is deaf, and the other has hearing loss.
Under the settlement, among other things, the hospital will adopt policies and procedures to ensure that individuals with hearing disabilities receive appropriate auxiliary aids and services including qualified interpreters when necessary, provide technology for individuals with hearing disabilities in patient rooms, such as TTYs, visual notification devices, telephones with volume controls and telephones that are compatible with hearing aids, provide televisions with closed captioning capability and provide training to its staff.
Another agreement from this past April was with the building associates in Michigan to ensure that patients with mobility disabilities can access their physician's office. Under the agreement the owner of the office building agreed to provide accessible parking and accessible route, accessible doors and accessible rest rooms, among other modifications.
Lastly, this past January, the department entered into an agreement with Overlake Medical Center in Washington State. This agreement resolved allegations that the hospital failed to provide an ASL interpreter to a woman who is deaf during the scheduled birth of her child. The complaint further alleged that the hospital excluded the woman's partner who is also deaf from the delivery room, because the complainant's mother, who was attempting to interpret, was counted by the hospital as her children companion. As a result of the settlement the hospital agreed to adopt policies and procedures to ensure that individuals with hearing disabilities receive appropriate auxiliary aids and services, including qualified interpreters when necessary, provide training on auxiliary aids and services, pay 125,000 to the complainant and her family members, and pay a $75,000 civil penalty to the United States. The department reached a related resolution with the complainant's obstetrician who allegedly failed to provide an interpreter during several prenatal care visits. Thank you. I will turn it over to Elizabeth.
Hi, this is Elizabeth Westfall with disability rights section at the U.S. Department of Justice. Thanks for having me. I would like to discuss some of the section's Olmsted work which has resulted in broad systemic relief for people with mental health disabilities and people with intellectual and developmental disabilities. For those of you who are not familiar with Olmsted, I’m referring to a 1999 Supreme Court case called Olmsted versus LC that found that unnecessary institutionalization of people with disabilities is discrimination under the ADA. The civil rights division Olmsted work including investigations, lawsuits and statements of interest otherwise known as amicus briefs in over 50 cases in 25 states, as well as technical assistance documents that are located on the ADA.gov website.
We continue to fulfill the promise of the ADA in this area. Our Olmsted efforts incorporate issues that are key to full participation of people with disabilities in all aspects of community life, requiring states to provide services in both residential and employment settings that are integrated within the community. Our Olmsted employment services cases seek to ensure that people with disabilities have opportunities to work alongside their nondisabled peers, family and neighbors. Integrated employment enables people with disabilities to earn fair wages, access equal opportunities for advancement and achieve social and economic independence. So now I want to turn to updating you on our employment services cases.
In 2013 and 2014 the department reached agreements with the state of Rhode Island, to resolve our allegations that the state's employment services system unnecessarily place people with IDD in or at risk of entering sheltered workshops instead of integrated jobs in the community, and that that violated the ADA. We resolved similar allegations against the State of Oregon in 2015. In Oregon our agreement with the state requires the state by 2022 to provide from now until then integrated employment and transition services to a total of approximately 6,000 youth and adults with IDD in order to enable them to work competitively in the community. The agreement provides relief to two target populations, first adults with IDD who worked in a sheltered workshop on or after 2012, and second, transition age youth with IDD between the ages of 14 and 24.
The agreement recently got under way. In February 2017, the independent reviewer issued her first report on Oregon's implementation of the agreement for calendar year 2016. The state reported to the reviewer that as of October 2016 it provided supportive employment services so that 130 adults, new workers who worked in sheltered workshops, had obtained competitive integrated employment in the community.
Our agreements with Rhode Island are more mature. They require the state, they started in 2013 and 14 and require the state by 2024 to provide relief for approximately 3250 adults and youth with IDD in the form of supported employment services and integrated day services.
To date as a result of our agreements, over 560 individuals who received disability services in Rhode Island have secured integrated employment, competitive employment in the community. Some of these individuals who obtained these jobs had spent decades doing tasks for sub minimum wage in segregated settings. I want to end with a wonderful story of a particular individual who benefited from our agreements in Rhode Island.
He is named Jerry D'agostino and he is receiving services that are designed to support integrated activities and competitive work. Jerry graduated in 2010 from a high school in Providence, Rhode Island, where he earned well below minimum wage for doing, engaging in rote tasks like sorting and assembling, packaging jewelry and buttons and the like. With supported employment services provided under our agreements, Jerry now works as an assistant chef providing food service at a day care, with ever increasing responsibilities.
He started working two days a week, and his employer was so impressed with his work, that Jerry was promoted to work five days a week. And he is one of many, many dozens and hundreds of success stories. I also want to end by pointing to our employment services guidance, related to Olmsted, which is on the Olmsted page of ADA.gov.
In conclusion, on behalf of the Department of Justice, I want to thank you for inviting us to share with you our efforts to secure ADA compliance. We look forward to your questions. Thank you so much.
Thank you very much, Elizabeth and Amanda, for your update there, appreciate it greatly. At this time, for those of you in the webinar room, you can submit your questions in the chat area, and I would like Ashley, if you could come and give telephone participants instructions on how they can ask questions at this time.
Thank you. Ladies and gentlemen, if you have a question at this time, please press star, then 1 on your touch tone telephone. Your question has been answered and you wish to remove yourself from the question queue, press the pound key. That is star then 1, one moment while we wait for questions to queue.
While we do that, Sharon, two different questions I'm going to throw at you. Someone, a participant who is thinking about or considering filing a charge wanted to know if you could explain, describe the charge filing process with the EEOC. The person wants to know, do they have to go in person to an EEOC field office, and can they do it by phone, by mail? Once the charge has been filed, what then takes place, and then separate question had come in, asking where did that go? If you have any update or any information about the approximate time it takes for one of the field offices to clear a charge once it has been filed.
Okay. Let's take those questions in turn. In terms of filing a charge, what I always recommend is to start by going to the EEOC's website. www.eeoc.gov.
If you scroll down, there is going to be a link to click on about filing charges. That does provide an overview of the charge process of what will be happening if you do want to pursue it, if you want to start by making an inquiry. Nothing is official unless and until a charge is actually filed and you signed it.
You can start the process, get some more information. A lot of it can begin on line. You don't have to go in person to an office or over the phone. Oftentimes when people do phone, they are going to be directed to the website to begin. There is always a preference, I guess we are somewhat old fashioned, if possible, as you progress through the process, to meet you in person, but obviously, we realize that is inconvenient for all kinds of reasons, not least because we don't necessarily have offices near where people are located.
So, for that reason, actually, relatively few of our charges do people actually come into the office. If they want to, if it's convenient, then yes, we encourage that. But you begin on line. Then you will progress to having to obviously fill out paperwork that really goes through what your allegations are, whether in person or over the phone, you will talk to somebody that we refer to as an intake officer, basically somebody to get your story.
What I always encourage individuals is, to really think through, I'm a very visual person. I like to have notes in front of me. But try to a certain extent to organize your thoughts. Think of it that you are one among, honestly, thousands of people contacting the EEOC. Obviously, these are sensitive matters, they can be emotional matters to people. We understand that. But where you kind of just flood an intake person and sort of jump around, I mean sometimes people have stories and they say, well, this all began three years ago, and they want to tell us all kinds of things and they will jump back and forth. The easier you can make it for the intake person to really understand the crux of what you believe to be discrimination that helps your situation, your case. It is to your benefit.
That is why I tell people, do think about maybe writing some notes to yourself, it doesn't have to be all printed out or, but basically, a way to help you tell the story of what happened. In terms of how long it takes, that is a difficult question to answer, because there really can be quite a difference from office to office, in part it will also depend on the evaluation of the strength of your case, that things that may look to be most egregious where there does seem to be a lot of evidence right off the bat of discrimination occurring, may get a bit higher priority in terms of investigation.
But I tend to tell people think of it as a first come, first serve, meaning that when you are comfortable with the idea that you are going to want to file a charge or you are at least serious about pursuing it, the sooner, the better, because you are basically going to take a place in line. Unfortunately, in no office do we have the staff where I can tell people, oh, yeah, within a few weeks we will be investigating your charge. It just doesn't happen.
The sooner you contact, the better. Be mindful that there are time lines to file, a minimum 180 days. But in certain locations, up to 300 days. Again that information is available on our website. It depends where you live. It depends if your state or city has a law comparable to the ADA. You want to know what your deadline is. The clock starts ticking when you become aware of what you allege was discrimination. So again, I advise people to focus on that initial, initial, so you know what time frame you have so you are not coming right up against it when you decide to file.
That is great, thank you very much, Sharon.
Keeping along the lines of complaint filing, Amanda and Elizabeth, if you can address this participant's question. The participant commented that they had heard that individuals can file with a U.S. Attorney’s office, within a particular district. Is that in fact true, and do you know what if any advantage would there be to, say, filing a complaint in the western district for the U.S. Attorney’s office, versus filing directly with the disability rights section in D.C.
This is Amanda. We do have quite, we have a lot of U.S. Attorney’s offices who work actively with us under our U.S. Attorney program for ADA enforcement, but not every single U.S. Attorney’s office does.
So I would say that for the U.S. Attorney’s offices who have staff there who are actively working on civil rights matters, you could file a complaint in your, with your local U.S. Attorney’s office, and they might decide to investigate it. But if your U.S. Attorney’s office does not have a civil rights contact, and not all of them do, I'm not sure what they would do with it, they might pass it along to us.
I don't know that there is any clear sort of procedure for the U.S. Attorney’s office. If you file a complaint directly with us, we have an intake process. We go through all of our intake and decide, are we going to pursue it, are we going to, ask the U.S. Attorney’s office to pursue it. We can't pursue every complaint. We close and notify the complainant of that.
That is great. Another participant, then I'll check the phones for any questions there, the person asked, please provide an update on the expansion of the definition of disability.
I'll try to expand on that a little more and first go to Amanda and Elizabeth. Then Sharon, I have a follow up question related to this for you. But Amanda and Elizabeth, the Justice Department within the past couple years updated the title 2, title 3 regulations, reflecting the changes in the ADA Amendments Act. If you can comment, have you seen any impact where the expanded definition, returning to congress's original intent on who is to have protections and then the focus should be on whether discrimination took place, have you seen any impact in your enforcement or your activities as a result of that?
Yeah, this is Amanda. I think Sharon will be able to answer that too, but I think absolutely, that the ADA amendments act has absolutely had an effect on the protection for people with disabilities. I think it's probably most significant in the title 1 context. And that is really where the case law developed, so problematically.
So I think it absolutely does affect our ability to bring matters on behalf of people with disabilities, where before the ADA amendments act we might not have been able to bring some of those cases. I think under title 2 and 3 it has an impact but probably not as significant as the title 1 work.
Thanks, Amanda. Sharon, to that question, someone else had asked, we are nearly nine years since the effective date of the ADA Amendment Act, and arguments over whether or not someone fits within the protected status of being a person with a disability has gone away for the most part. Related to that, you had mentioned in your remarks at the beginning that reasonable accommodation was an area that, where you are seeing charges being filed. What other areas are being, where you are seeing charges, as opposed to in the past, that the definition or dealing with the definition of disability.
Let me start with the definition of disability and then I'll answer that, where the charges are coming in.
Again, we have absolutely seen the impact of the ADA Amendment Act, in particular, in employment, as noted, that the wide range of disabilities that now are covered, the courts are finding it more, finding disability more easily. The number of cases where the employer and the plaintiff aren't even arguing about it, that employers concede something is a disability. The mistake in terms of litigation that I think I sometimes see is where a person with a disability and her lawyer may take it little too far, by which I mean that where courts are saying no, we don't find a disability, too many times it's because the individual really didn't put in evidence of disability. It was kind of, here is my condition, and that is it, I rest. Courts are saying, they understand the ADA Amendment Act doesn't require nearly as much evidence as before. But you have to still be able to show based on the terms of the ADA impairment, substantial limitation in a major life activity. And again not an onerous burden, you don't have to have a lot of evidence but you have to provide something.
That is my caution, in terms of litigation. When you are in the workplace, when as an individual with a disability, say you are requesting accommodation and as part of the interactive process an employer seeks information from you or might ask for documentation from your doctor, again to show that it is an ADA disability, employees who say no, I've told you, here is my condition, and it is, and kind of citing to the ADA Amendment Act, and again when I'm working with individuals with disabilities, I say remember that employers are entitled to that information, and again not about your entire medical records, but sort of saying, no, I'm just going to tell you what my condition is, and that is enough. Again, that isn't perhaps the most advisable way to proceed, and to provide, again, consistent with the law, it's not obvious, what is the major life activity, and some sense of what it is that is causing the substantial limitation in performance of the major life activity.
So again, some sort of evidence coming in. In terms of the kinds of cases, sort of if we are not focusing on as much does the person have a disability or not, I think clearly the failure to provide reasonable accommodation is probably the single greatest allegation that we see, in part because it involves so much. These days the accommodations are so wide ranging, what kinds of limitations because of disabilities, impact of limitations given the kind of job, the types of accommodations available potentially. So that is an area that still sort of contains lots of issues, lots of potential problems, from an employer perspective still about recognizing when an individual is requesting accommodation, remembering no magic words, and so very important to understand when there is a request before them, to be open to all kind of potential accommodations. As I like to say, the list of what can be a reasonable accommodation is so great, and so long, compared to what we know are not forms of accommodation. It's a much smaller list to go through.
So really important for employers to kind of be broad minded, to be open to thinking about what would solve a particular problem, to be prepared to engage in what we have come to call the interactive process, as I like to say a fancy term for talk to each other, listen to each other, the individual and the employer, to understand the problem, to understand what the solutions could be, most accommodations in one way or another tend to involve job performance, so how would the accommodation permit appropriate job performance. One of the things that I like to encourage both employers and individuals to consider are trying out accommodations on a trial basis. It can be a very helpful tool, where you can't really tell up front whether something is going to work. It may or may not. There isn't definitive evidence one way or the other. Sometimes there is reluctance on the part of an employer, on the part of an individual, to try out something, but everybody can win, with a trial period. It's for a certain length of time, maybe just a few weeks, to see if something can work. It can sometimes be very surprising what works, what doesn't work, but before you kind of commit to an accommodation for a longer period, trial period, a lot of employers, individuals with disabilities, are very pleased to have that kind of tool.
In terms of other kinds of issues that we see, can be termination issues often that is tied to a failure to accommodate that results in termination. Failure to hire can still come up, EEOC is pursuing a number of lawsuits in that area. And harassment, a reminder to employers, we think about harassment a lot in the context of sexual harassment or racial harassment, but harassment can and does exist in connection with disability, and again for employers that ought to be a part of your harassment policy, should be including disability harassment, training should include a focus on disability harassment, and that management, as it would quickly pursue an allegation of racial or sexual harassment needs to move promptly, if there is an allegation of disability harassment.
Great, Sharon. I know I said I'd go to the phone, but to follow up real quick with another question, someone asked about harassment. At what point does it get to where it's discrimination? Someone making a comment about someone's disability, an offhanded comment versus it being discriminatory and being disability based harassment in the workplace.
Again, that can be sort of hard to say, where the line is. Just as it can be with sexual harassment or racial harassment. Very rare in any of those contexts would one comment be enough to claim a hostile work environment. Usually it has to be something that is sort of ongoing, more pervasive, of course, looking at what is actually being said about a person and her disability. You can't kind of reduce it to, if there is three comments, that's it that is going to be illegal harassment under the ADA. Again, for an employee, even one comment, you can probably try to handle on your own or go to a supervisor, depending on the severity of it. Anything that is repeated, definitely, an employee should be contacting supervisors, managers, if the employer does have a harassment policy, they should be looking to it and following the procedures, making clear what is happening, what is being said, by whom, to try and get that resolved as quickly as possible.
As I said a moment ago, for employers to jump on these kinds of things, I know off the top of my head we have one pending lawsuit involving an employee with hearing loss, in which it was a sales associate and coworkers were mocking the fact of the hearing loss and the resulting speech, the manner of speech of this employee, co-workers were mocking how this person talked. We also have a lawsuit involving a veteran with PTSD, post-traumatic stress disorder. Again, a pattern of harassment among co-workers, and in both these situations, management was aware of what was happening and stood by and did nothing, in EEOC's view. So cautionary tales.
Great, thank you very much, Sharon. Appreciate that. I'm going to check with Ashley now. Do we have any questions on the telephone at this time?
I'm not showing any questions. But however, ladies and gentlemen, as a reminder, star, then 1 to ask a question.
Great. As a reminder, continue to submit your questions, participants, in the webinar room. I got a question here for Amanda and Elizabeth, glad that someone asked this because we still get questions regarding this, there seems to be some confusion about this.
The questioner wants to know, what if any obligations does a religious organization have when they hold events or programs that are open to nonmembers of that particular religious organization?
This is Amanda. Under title 3 of the ADA, private businesses, there is a religious and private club exemption. You have to meet certain criteria that are developed through the case law about what constitutes a private club or religious entity. I can't recall exactly what the connection is with, if you have events open to the public, but I do, there are criteria for, are you really a religious institution, and you have to, there has to be certain criteria met in order to meet that. If you do, then you are not subject to the ADA title 3.
Right. I would imagine some of the criteria is also their tax filing status with the IRS or designation by the IRS.
But to be clear, when it is in fact an actual religious entity that the religious exemption is absolute, regardless if they have a thrift store, day care center that is open to children of nonmembers, that if it is in fact operated, controlled by the religious entity, that that exemption is absolute, correct?
Yeah, that is my understanding.
Great. Great. The individual had an additional question for Sharon, about application of title 1 with regards to a religious entity, and is there an exception under title 1 for religious organizations.
There is not an exception for religious organizations in the sense that they are exempt from compliance with the ADA. However, a religious organization is permitted to give hiring preference to members of that particular religion.
So the fact that it doesn't hire a particular applicant with a disability not because of a disability but because that person is not of the same religion, that is not going to be a violation of the ADA. But somebody of the same religion and if they are otherwise qualified and the reason is really just because of the disability they are not hired, no. That can be actionable under the ADA.
Great, thanks, Sharon. Elizabeth and Amanda, I can hear Sally Conway in my head, this wouldn't be an audio conference without a service animal question. Ready or not, here come a couple of them.
In answering them, if you want to talk about the definition of disability and the other requirements for the handler and when service animals can be appropriately excluded, please feel free to do so. This particular specific question has to do with two service animals. We get this question frequently. A manager of a restaurant wants to know if they need to allow a guest that is being accompanied by two dogs who is claiming that both dogs are service animals, if they have to allow someone that is claiming that they require the use of two service animals into the restaurant.
You know, Peter, that is a good question. I have to say, I unlike Sally Conway, I'm not handling all sorts of inquiries as they come along. I don't know, what do you tell people (overlapping speakers).
Actually, I refer to, and I will, someone else submitted a comment about this, frequently asked questions on service animals and the ADA document that the Justice Department issued are going back a few years, which is an excellent document, it's excellent because it's easy to understand for both people with disabilities and covered entities, and it's great when providing technical assistance because it's in that format. One of the specific questions in there is, can someone use two service animals. The answer that is in the document is that generally, yes, that you can have someone that has multiple disabilities, may have a mobility disability so uses one service dog to stable mobility, while they have a trained psychiatric service animal that assists them with PTSD or some other psychiatric disability. So for service animals questions, again, I would recommend that document, ADA.gov is where you can locate that. Because those are, at this point in time, while we are coming up on the 27th anniversary of the signing of the ADA, and people aren't looking at, aren't asking those general quick questions, how many titles does the ADA have. They want examples. They want to be able to point to something and say, see, this is what the Justice Department says, or see, this is what the EEOC. So that is my compliment on that document, as well as, Sharon, the EEOC policy guidance documents which are also contained, you know, question and answer format to some extent, and also have specific examples that I think is helpful for people with disabilities to understand what rights they have, and also useful for employers in understanding what their obligations are. Those types of documents and technical assistance materials are very useful.
As you ease out of the transition phase into next year, hopefully both agencies will be back into developing some new technical assistance materials for us to disseminate.
A couple more electronically, let's see what this one says real quick.
Sharon, I'm going to ask you this one. I've heard you answer this before in the past. I think you do a great job of talking from the pitfalls for employers and employees, what is quote unquote reasonable? How long does it should the time frame be, before an employer responds to and/or provides a reasonable accommodation to an employee?
For better, for worse, there is no black and white answer, because the ADA does not set out sort of specific time frames. If anybody here is from a federal agency not because of the sister law to the ADA, the Rehabilitation Act but rather an executive order, federal agencies do have time frames. If you are not aware of your federal agency's time frames, do look those up.
But in terms of the ADA, they don't exist. That said, from an employer's perspective, very important to make requests for reasonable accommodation a priority. They should be handled as quickly as possible. Clearly, some accommodation requests are easier to handle than others, very straightforward, that there is obviously a disability, why there is a need for accommodation, easy to implement. Some things can be done quite quickly. Others are going to involve more of a discussion between the individual, the employer, sometimes they are requiring individuals to bring in medical documentation. It's not just one conversation. There can be several conversations that need to occur, and then you get into it, if accommodations are granted, the implementation. And if it's something that can be done quickly or if it's something, especially if it's about ordering equipment or devices, how quickly that can happen. But employers really want to be quick about it. They want to make sure that anybody who might be involved in terms of management understands that it can't be, I've got a full plate, I can't get to this, that really these kinds of requests should be given priority, if for no other reason, since as I mentioned earlier most accommodation requests in one way or another will involve job performance, and in that kind of circumstance, if somebody really does need a reasonable accommodation, you don't want to delay getting it in place, because you don't want to have problems with performance, that you want to make sure that everything is going as smoothly as possible, as an employer. I want people producing for me. If having a reasonable accommodation enables that or continues to enable that, all the more reason that I want to move as quickly as I can. I understand it's not as good as saying here is the time period. But that is probably about the best I can offer.
That is great, Sharon. There is a part, you know, employers, if there is some snag, some delay, keeping the employee advised as to what is going on takes away a lot of the angst and concerns over any delays in providing the accommodation.
Absolutely. I think that is something to underscore, is the importance of communication. I encourage employers, I mean especially with computers and e-mails, how easy it can be, just to very quick update, especially if you hit a snag of some kind, but keeping the individual, the employee in the loop, because I think you are absolutely right. People get nervous, they don't know that, are you working on it, are you ignoring me, and so giving that reassurances, that update, plus it shows you are taking it seriously. You are working on it. I think with that, most employees will tend to be all right, something is taking a little longer than I want, but where they see the employer is working hard on their behalf, then that buys some time, buys good will. I agree with you, Peter, very important.
Great. Elizabeth and Amanda, not to put you back on the spot, I know you can't comment on any litigation that is ongoing. But there have been some, there have been cases involving access to websites of businesses. There was one involving Winn-Dixie that was decided not long ago. I know you can't comment specifically on those. But the individual was hoping that you could, in general, address the Justice Department's position as to the application of the ADA to websites.
Sure. Actually the Winn-Dixie case, we filed a statement of interest that was a brief that we filed in December of last year. And the case went to trial and was decided, and the judge found for the plaintiff, that in fact, the Winn-Dixie website was not accessible, and that that was a violation of title 3 of the ADA. Actually I think the department's position has been consistent for a very long time, that entities who are covered under title 2 and title 3 of the ADA are required to provide equal access to people with disabilities. And if they have a website that is part of the goods and services that they provide, the services and goods that they provide over their website must be accessible to people with disabilities. That position has been the department's position for a long time. We do address it in that statement of interest in Winn-Dixie, that involved a chain of grocery and pharmacy stores, and the stores had a website where people could go on to, not to buy products but to get coupons that they can use at the store and find allocations, you can order prescriptions and pick them up at the store and this kind of thing. We did set out our position that a website like that of a chain of stores where part of the goods and services that the stores provide is on a website, that that is covered under title 3.
That is great. I know that under the prior administration, rulemaking had been going forward under title 2 with regards to setting standards for accessible technology, however, that did not get completed.
From personal perspective, I can't wait until that comes out, again going back to I think it will be extremely beneficial for persons with disabilities as well as covered entities knowing what the requirements are. But as you pointed out the Justice Department's position, I think there are clear indications of what the Justice Department's intent is. Go all the way back to the settlement agreement with H&R Block, you look at the most recent projects civic access, the agreements, early on the initiative was looking at policies, procedures and brick and mortar. But as that initiative evolved over the years, it also began looking at the websites of state and local government entities to see if they were accessible to the residents of the community.
In those settlement agreements, in the H&R Block agreement, it required compliance with a certain worldwide accessibility guideline 2.0AA level, and in the H&R Block case, not just their website but also to their mobile apps.
For covered entities, I think that to say there is no clear guidance as to what the standard is going to be, I think that is not correct. What I think needs to be addressed with the additional rulemaking is going to be how do you apply program access to existing state and government local websites, how do you apply readily achievable barrier removal to title 3 or do you come up with some other terminology. But the fact remains that it's clear what the Justice Department is looking at in terms of a standard.
With that, Sharon, if you can address if there is anything to address, from the employment perspective, are you seeing at all any complaints being filed by employees who are unable to access technologies within the workplace that are necessary either for the individual to perform their job or where it's related to benefit, signing up for employer provided health care or making other benefit changes, is there anything happening in terms of complaints on that topic?
To my knowledge we have not received a lot of charges raising these types of allegations in terms of as an employee, that some computer programming or technology is inaccessible. We are far more aware of the issue for applicants now that it seems all employers or virtually all employers have gone towards online hiring, we see more complaints in that area.
We know that that is a difficult area, very sensitive area, and that again we encourage employers to look at their hiring, that their websites be as accessible as possible. There is a lot of assistance out there. Remembering that we are dealing with more than simply visual disabilities, obviously
Can I get you to pause for one second, Sharon? The captioner dropped again. I apologize. I apologize again to our participants and our speakers. Please be patient while we reconnect our captioner. Thanks, Sharon.
Our captioner is back and you were wrapping up talking about the employer's website and application processes.
Right. There is a lot of assistance out there, in terms of how best to design accessible on-line application processes. But EEOC is always encouraging employers to remember that even the very best system may not be 100percent accessible. So the importance of putting up front when you are posting vacancy announcements or anything about taking applications, about allowing applicants to seek reasonable accommodation, if something turns out to be inaccessible, that or while you are working on designing an accessible application process, that people have a way, a timely way to request reasonable accommodation, and to make sure that your HR or personnel departments, whoever is going to be contacted, that this is really of the utmost importance, going back to the discussion a few minutes ago. When people need to apply for jobs, usually there are deadlines. You do not want to say, in effect, we will get to it when we get to it, and people miss the application deadlines. These really have to be taken seriously. They have to be given priority. You have to make sure that people can get their applications in.
That is a reason to really consider proactively updating your on-line applications systems, making sure, consult with the right people, and like your organization, Peter, about having accessible on-line applications, because you don't want to miss out on some great people with disabilities who can't get hired because they can't submit their applications.
I can just add that we have reached 7 different settlement agreements with state and local government entities regarding on-line applications that require their on-line applications to be accessible.
And you are talking about title 1, title 1 enforcement from DOJ.
Yes. That's correct.
Great. Early on, you had talked about the employment cases that had been pursued by the Justice Department. Someone wanted a clarification of how that process takes place behind the scenes, if someone files with the EEOC, how does it make its way over to DOJ and what type of work or collaboration is undertaken between the two agencies, when it's an employment involving a title 2 entity.
Sure. The statute sets it out and it applies to both the title 7 procedures and the ADA procedures. But essentially all complaints are filed first with the EEOC, they are investigated. If the EEOC finds cause, meaning that there is discrimination, then they try to conciliate. If the conciliation does not succeed-- if the conciliation succeeds and that is the end of the case. If it doesn't, then the statute just defines that title 1 ADA cases against public employers, state and local government employers, are referred to the Attorney General for enforcement, whereas the EEOC retains the title 1 charges against public-- against private employers. So it's a division, and at that point when it's referred over to the Department of Justice, we take a look and decide which ones of those we can pursue.
Great. Thank you.
A clarification, someone asked a question about the Section 508 standards that we have been talking about, ADA, the Section 508 standards are, Section 508 of the rehabilitation act. Those specific, that specific portion of the rehabilitation act of 1973 applies to the executive department of federal government. Federal agencies are subject to Section 508. Earlier this year the Access Board, which is charged with creating accessibility guidelines under both the architectural barriers act, the Americans with Disabilities Act, and obligated to create the guidelines under Section 508 of the Rehabilitation Act and section 255 of the telecommunications act. The Access Board earlier this year published a final refresh of their Section 508 section 255 standards. Those apply to information technologies, electronic technologies that are developed, procured, by the federal government. Those are not, while a covered entity, an ADA covered entity, you know, could certainly use those to ensure that title 2 entities ensuring program access or employers providing access to its application processing, those specific guidelines are enforceable under Section 508 of the Rehabilitation Act.
A question, Sharon, about an emotional support animal, as a reasonable accommodation under the ADA. Would an employer have an obligation to allow an employee to have an emotional support animal in the workplace?
It's a very good question. The EEOC to date, unlike our colleagues at the Justice Department, have not put out either as regulations or as guidance the status of emotional support animals. We really haven't directly addressed service animals. In the appendix to the employment regulations, there is one mention of a service animal, using the term that you don't hear much now, seeing-eye dog. But based on that one reference, EEOC has told folks that service animals of all kinds, not just for people with vision disabilities, but all kinds of disabilities, that are using service animals, and pretty much the definition that the Justice Department provides in their regulations, an animal that has been specifically trained to provide some kind of service based on the disability, whatever kind, including potentially mental illnesses.
But yes, admittance of that kind of animal would be a form of reasonable accommodation. But the EEOC has not addressed to date emotional support animals. As a result, what I tell people that means that it's a gray area of the law. As I explain to individuals with disabilities, and employers, certainly it's risky to dismiss it out of hand. I point out that the Department of Justice regulations do not apply to the employment provisions of the ADA. People make that mistake all the time and cite to the Department of Justice regulations. But in the employment context, where it's not a state or local government agency, but a private employer, then EEOC does not, is not bound by that. So you are in that gray area. I think it is legally risky for employers to perhaps dismiss out of hand somebody looking to bring in an emotional support animal. But there is the interactive process, and employers would be entitled to ask questions about that animal, exactly what the animal does for the person, about any kind of training that the animal has received, about making sure in terms of just what I call the logistics about the animal needing to go outside to relieve itself, about eating, things like that. Here is where the trial period might be a good thing in terms of allowing somebody, potentially an employee, to bring in for a trial period an emotional support animal to make sure that the animal is behaving, that the employee is keeping the control of the animal at all times. When I'm working with individuals who are using emotional support animals, I say you need to understand the employer's concerns and be prepared to provide information.
And again, an individual can be the one to suggest a trial period but really to understand that however important that animal is to you, that the employer needs to make sure it will not be disruptive, of all the kind of practical issues that can come up, and that it's not enough to say, you know, justice department regulations which of course don't cover emotional support animals, so use the interactive process I guess is the bottom line to make your decision.
I think that's a great point about the employers I think sometimes lose sight, the EEOC regulations, implementing the Amendments Act, made clear that it shouldn't take much documentation to determine whether or not someone has a disability, I think employers lose sight, what probably is the most important information, is there information about the functional limitations, so what is the employee having difficulty or unable to do in the workplace because I think that is the information that is going to help identify an effective accommodation for an employee.
I also think one thing that I warn individuals with disabilities about are the proliferation of these onsite folks who will, you send in money and we will send you a certificate, that this is an ADA compliant emotional support animal. And there is lots of these kinds of organizations, and it's not helpful. I have no doubt there are individuals who use them that truly do have emotional support animals and then there are those who I'm sure don't. And understand --
Hold on one second, Sharon. I apologize. We lost the captioning again. Thanks to our speakers and participants for your patience while we reconnect our captioner. We are almost at the bottom of the hour.
Thanks, Sharon. Go ahead, please.
All of these on-line places that will send out these certificates, which just really don't mean much, I sort of warn individuals with disabilities about that. On the other hand, I have been involved in some cases where people got those certificates, but they also really did have a highly trained animal, I've seen it for both service and emotional support, and a lot of very good evidence of that.
In those situations, I was working with employers, don't just dismiss the whole thing out of hand because somebody also had one of those certificates. You really, it's the totality of the information presented that an employer would want to look at.
Thanks, Sharon. That is a great point about those, those on-line sites.
Well, folks, thanks for your patience throughout the session today. We are at the bottom of the hour. We had a few technical difficulties with our captioning, and thank you for sticking with us.
I mostly want to thank Sharon Rennert of the EEOC, a long time participant in the national network audio conferences and webinar programs, and of course a special thank you to Amanda and Elizabeth, our first timers on the ADA audio conference and hope that this will not be the last time that you are with us. We appreciate on behalf of the ADA National Network the time and access that you provide to us, and helping us do what we do, and so we truly appreciate that. So thank you for your time today and preparing for today's session, Sharon, Amanda, and Elizabeth.
And as a quick reminder to folks, we do now have information up about the next ADA audio conference session that will take place on August15. You can find registration information by going to ADA-audio.org. That session will be putting accessibility laws in your pocket, the digital accessibility legal update. You can register for that session at the ADA audio conference session. Again, if you have questions about the ADA audio conference program, you can contact us at 877-232-1990. And in a few weeks’ time we will have an edited transcript of today's session posted to the website, along with the archive of today's session.
Thanks again to our wonderful speakers. Thanks to all of the participants that joined us today. I would encourage you to please complete your self-evaluations because we do use that feedback to determine topics that were people are interested in getting information. Thanks again to everyone for joining us today. Good day.
Ladies and gentlemen, thank you for participating.