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THE EEOC AND THE ADA. Andy Daley, Lead Systemic Investigator Deborah Hamilton, Trial Attorney January 22, 2014. The views expressed in this presentation are the views of the authors and not necessarily the views of the EEOC. Agenda. The EEOC’s ADA work

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the eeoc and the ada

THE EEOC AND THE ADA

Andy Daley, Lead Systemic Investigator

Deborah Hamilton, Trial Attorney

January 22, 2014

The views expressed in this presentation are the views of the authors and not necessarily the views of the EEOC.

agenda
Agenda
  • The EEOC’s ADA work
  • EEOC’s Strategic Enforcement Plan and the ADA
  • EEOC’s Recent ADA Litigation
  • EEOC’s Recent GINA Litigation
  • The EEOC’s Administrative Process
  • The EEOC and the IDHR
  • ADA Litigation Practical Tips
  • Questions & Answers
eeoc and the ada by the numbers
EEOC and the ADA: By the numbers
  • 2012 – A snapshot
    • 99,400 charges
    • 26,400 ADA charges
    • 155 suits (122 merits suits)
    • 45 lawsuits with ADA claims
    • $44.2 million in total benefits from litigation
    • $5.4 million in total benefits for ADA claims from litigation
    • 280 GINA charges
eeoc recent ada activity
EEOC Recent ADA Activity
  • ADAAA Regulations
  • New Focus on Reasonable Accommodations
  • Systemic Activity
  • Leadership for the Employment of Americans with Disabilities – federal workforce
eeoc s strategic enforcement plan
EEOC’s Strategic Enforcement Plan

2012 – 2016 Plan to establish priorities

1. Eliminate barriers in recruitment & hiring

2. Protecting immigrant, migrant and other vulnerable workers including workers with disabilities

3. Addressing emerging and developing issues

4. Enforcing equal pay laws

5. Preserving access to the legal system

6. Preventing harassment through systemic enforcement and targeted outreach

eeoc s strategic enforcement plan where the ada fits in
EEOC’s Strategic Enforcement Plan Where the ADA Fits In

1. Eliminating Barriers to Recruitment and hiring

  • Steering of applicants to certain positions based on disability
  • Restrictive application processes
  • Use of screening tools, i.e. pre-employment testing

2. Protecting vulnerable groups who are unaware of rights

the strategic enforcement plan where the ada fits in
The Strategic Enforcement Plan Where the ADA Fits In

3. Addressing emerging and developing issues

  • the Commission recognizes that elements of the following issues are emerging or developing: 1) certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat; and 2) accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA).
eeoc s recent ada litigation
EEOC’s Recent ADA Litigation

Illustrative cases

  • EEOC v. Hill Country Farms
    • Intellectual disabilities
  • EEOC v. UPS
    • Pleading issues
  • EEOC v. St. Alexius
      • Discovery issues
  • Reasonable Accommodations: A quick look
case 1 eeoc v hill country farms 11 cv 00041 d iowa
Case 1: EEOC v. Hill Country Farms11 cv 00041 (D. Iowa)

$240 million verdict

2 million in compensatory relief

5.5 million in punitive damages per claimant

eeoc v hill country farms
EEOC v. Hill Country Farms
  • 32 class members, who worked in a turkey processing facilities in Iowa eviscerating turkeys
  • Intellectual disabilities
  • Outrageous facts
  • Verbal and physical harassment
    • Calling them retarded & stupid
    • Forcing them to carry heavy weights
    • Abusive living conditions – denial of medical care
  • Verdict reduced to $1.6 million
eeoc v hill country farms1
EEOC v. Hill Country Farms

Significant Trial testimony

  • Expert testimony from a national expert on individuals with intellectual and developmental disabilities
  • Testimony from social workers at the Iowa Department of Human Services
  • Victims

Great weight of evidence on the EEOC’s side

eeoc v hill country farms2
EEOC v. Hill Country Farms
  • Litigation consistent with EEOC’s May 2013 release of revised publications regarding the rights of persons with intellectual disabilities.
  • Key points:
    • Collection of information about the disability limited
    • Reasonable accommodations required for both application process and open jobs
    • Termination for safety concerns limited to direct threat
    • Harassment unlawful
publications on employment rights of persons with specific disabilities
Publications on Employment Rights of Persons with Specific Disabilities
  • In addition to a publication on the employment rights of persons with intellectual disabilities, EEOC also revised its publications on the employment rights of persons with:
    • Cancer
    • Diabetes
    • Epilepsy
  • Q & A format covers general info about the condition, collection of medical info, accommodations, safety concerns, harassment & retaliation.
case 2 eeoc v ups 09 cv 5291 n d ill
Case 2: EEOC v. UPS09-cv-5291 (N.D.Ill.)
  • Class case brought to challenge UPS’s failure to accommodate employees who were on the Company’s twelve month leave of absence
  • Years of litigation over whether the EEOC had satisfied the pleading standard to state a claim for a class of unnamed persons where EEOC identified two claimants and described the policy at issue
eeoc v ups
EEOC v. UPS
  • Iqbal and Twombly – Supreme Court requires that the claim be “plausible”
    • Rule 8 – short & plain statement of the claim
    • Fair notice of the claim and grounds upon which it rests
    • Raise the possibility of relief above the speculative level
  • Ultimately D.Ct. permitted the EEOC’s claims to go forward and denied Defendant’s request for interlocutory appeal on that issue
    • Reasonable accommodation claim can be asserted for unknown class members
    • 102(b)(6) claim also permitted
eeoc v ups1
EEOC v. UPS
  • When pleading a class complaint under the ADA:
    • Name the statute
    • Name the timeframe
    • Provide specific examples of affected employees and their claims
    • Describe the class and the conduct at issue as to them
  • When pleading an individual case under the ADA:
    • Name statute
    • Name the time
    • Plead as much detail as to QUID status as possible
    • Don’t need a prima facie case
  • Tension because you plead the complaint before you engage in discovery
case no 3 eeoc v st alexius 12 cv 7646
Case No. 3: EEOC v. St. Alexius12 cv 7646
  • Failure to accommodate case brought by the agency on behalf of an employee with a cognitive disability who sought work as a hospital greeter.
  • Employer hospital failed to offer her a reasonable accommodation.
eeoc v st alexius
EEOC v. St. Alexius

Discovery Rulings

  • Garden variety emotional distress limit on discovery rejected because it is a slippery slope and Defendant is entitled to know employee’s emotional baseline thus Defendant won production of employee’s mental health information
  • Broad scope of medical records ordered produced over EEOC’s objection that records were too remote in time or not relevant
  • Past and subsequent employment records permissible subject of discovery
    • Disability degenerative in nature so defendant entitled to examine the course of her work history
    • Job functions that applicant could perform for other employers could be relevant to functions that she could perform for this employer
eeoc v st alexius1
EEOC v. St. Alexius

Advice to practitioners and persons with disabilities. Prepare for the possibility of significant discovery into:

- Mental health records

- Medical history

- Past and subsequent employment

All areas where EEOC has tried to limit discovery.

eeoc s recent ada litigation reasonable accommodation a quick look
EEOC’s Recent ADA Litigation Reasonable Accommodation: A Quick Look
  • Change in positions
    • Employee with poor physical health sought demotion to less stressful job
    • Employee who required use of a cane requested a change in positions to an open job with fewer physical demands
  • Leave
    • Employee with breast cancer terminated for failure to report to work due to surgery
    • Employee with mental health condition requested additional leave for treatment
eeoc s recent ada litigation reasonable accommodation a quick look1
EEOC’s Recent ADA Litigation Reasonable Accommodation: A Quick Look
  • Use of an assistive device
    • Employee with anxiety condition, PTSD denied use of a service dog
    • Employee not offered the use of an assistive device for lifting
  • Change in job responsibilities – non essential function
    • Employee requested limited travel due to fertility issues
    • Employee sought to limit lifting
eeoc s recent ada litigation other issues
EEOC’s Recent ADA LitigationOther Issues
  • Prohibited Pre-employment Inquiry Case
    • Do you have any health problems?
    • Do you take medications?
    • Which medications?
genetic information non discrimination act of 2008
Genetic Information Non-Discrimination Act of 2008
  • Prohibits employers
    • From collecting genetic information.
    • From making employment decisions on the basis of genetic information.
  • Genetic information discrimination is one of the emerging issues that was identified in the EEOC’s strategic enforcement plan.
eeoc s recent gina litigation
EEOC’s Recent GINA Litigation
  • EEOC v. Founders Pavilion, 13 cv 1438 (W.D.N.Y. 2013)
    • GINA violation = collection of family medical history. Post offer, pre-employment collection of information.
    • ADA violation = fired two employees because of perceived disability.
    • Title VII violation = fired or failed to hire three pregnant employees.
  • Third case brought by EEOC under GINA and first systemic case.
  • Settled for $370,000.
eeoc s recent gina litigation1
EEOC’s Recent GINA Litigation
  • EEOC v. Abatti Group, 13 cv 07196 (C.D. Cal.)
    • GINA violation = illegal inquiries into applicants’ family medical history
    • ADA violation = illegal physical examinations of applicants and medication condition inquiries
  • Applicant denied hire because of past hospitalization for a heart condition where family members also had a history of heart problems.
eeoc s recent gina litigation2
EEOC’s Recent GINA Litigation
  • EEOC v. Fabricut, 13 cv 248 (N.D. Okla.)
    • GINA violation = post-offer collection of family medical history
    • ADA violation = failure to hire because of real or perceived disability
  • Applicant for a memo clerk position performed the job as a temporary employee then applied for permanent hire. Required to undergo medical exam that included inquiry into family history and revealed carpal tunnel syndrome. Though applicant’s doctor denied carpal tunnel, applicant was refused hire.
  • Settled for $50,000
gina and the ada
GINA and the ADA
  • Patterns of violation seem to occur together.
  • Where you have an ADA violation, especially based on perceived disability, look for a GINA violation.
the eeoc charge process
The EEOC Charge Process

Investigation

Charge Filed

Mediation

Withdrawal / Closure /

Right-to-sue letter

Settlement

Resolution

No-cause finding /

Right-to-sue letter

Cause finding

Resolution

Conciliation

EEOC LITIGATION

Conciliation failure

Right-to-sue letter /

Potential referral to private attorney

charge receipt
Charge Receipt
  • In person/phone interviews by appointment only.
    • Call 1-800-669-4000 to schedule appointment.
    • M – F / 8:30, 9:30, 10:30, 1:00, 2:00, 3:00
  • Attorney drafted charges via mail, or in person 8:30 – 4:00
  • EEOC initiated
    • ADEA, EPA Directed Investigations
    • Title VII, ADA, GINA Commissioner Charges
mediation
Mediation
  • Mediation is an extra step in the charge process often made available by EEOC as an alternative to the traditional investigative and litigation processes
  • A mediator is a neutral party to the dispute and helps the parties negotiate a fair and reasonable solution.
  • Mediator does not impose a decision on the parties; instead helps the parties to agree on a resolution
  • If the charge is not mediated successfully, it proceeds to investigation.
facts about mediation
Facts about Mediation
  • Mediators are trained in mediation and EEOC law.
  • The mediation process is confidential.
  • Participation in completely voluntary.
  • There is no financial cost to participating in a mediation.
  • Mediation usually occurs early in charge process, and many completed in one meeting.
  • Agreements secured during mediation do not constitute an admission by the employer.
  • Agreements reached in mediation are enforceable in court.
investigation
Investigation
  • Position Statement from employer
  • Requests for Information
    • Subpoena for information if needed
  • Interviews of charging party witnesses
  • Interviews of third party witnesses
  • Interview of Respondent agents
  • Onsite visit to Respondent facilities
conciliation
Conciliation
  • If EEOC makes a cause finding, EEOC attempts to eliminate the unlawful employment practice in Conciliation.
    • Informal, confidential
  • EEOC’s goal is appropriate remedial, corrective and preventative relief given its determination of unlawful employment practices.
  • Conciliation will fail if unable to secure an agreement acceptable to EEOC
common provisions in eeoc conciliation agreement
Common Provisions in EEOC Conciliation Agreement
  • Remedy for Charging Party and/or class
  • Training targeted to EEOC’s findings
  • Reporting related to EEOC’s findings
  • Policy revisions
  • Notice Posting
  • Public Disclosure (if deemed appropriate)
eeoc idhr interaction
EEOC & IDHR interaction
  • Work share agreement between EEOC and Illinois Department of Human Rights.
    • Defer investigation for matters with common jurisdiction
  • Charges cross filed between EEOC and IDHR
    • Only need to file at one or the other; duplicate charge filing could delay processing
  • Each Agency investigates the charges it receives, except
    • Charging party requests transfer
    • EEOC asserts jurisdiction
    • Cases transferred to IDHR per work share agreement
  • Charging Party can request review/investigation by other Agency at completion of initial investigation
ada litigation practical tips for reasonable accommodation claims
ADA Litigation: Practical Tips for Reasonable Accommodation Claims
  • Know The Basics:
    • i) what is the disability; and
    • ii) what steps were involved in the reasonable accommodation process
  • A good timeline is a helpful tool
    • Track the employee’s condition
    • Track the reasonable accommodation process
    • Track work history
ada litigation practical tips for reasonable accommodation claims1
ADA Litigation: Practical Tips for Reasonable Accommodation Claims
  • Know what you don’t need to know:
    • i) appropriate accommodation;
      • Numerous resources for locating accommodations including job accommodation network
    • ii) employer job descriptions
      • May not be accurate
ada litigation practical tips for reasonable accommodation claims2
ADA Litigation: Practical Tips for Reasonable Accommodation Claims
  • Keep your eyes open for:
    • Role of subsequent work
    • Danger of SSDI files
    • Challenges of collecting medical evidence
    • Competing medical testimony
ada litigation practical tips for class claims
ADA Litigation: Practical Tips for Class Claims
  • Employer conduct becomes the focus
  • Early discovery regarding policies and third party administrators
  • Role of 30(b)(6) depositions
  • Resource intensive
questions answers

Questions & Answers . . .

The floor is yours.

Thanks for your attention.