THE EEOC AND THE ADA

Andy Daley, Lead Systemic InvestigatorDeborah 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.

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

Agenda

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 and the ADA: By the numbers

ADAAA Regulations

New Focus on Reasonable Accommodations

Systemic Activity

Leadership for the Employment of Americans with Disabilities – federal workforce

EEOC Recent ADA Activity

2012 – 2016 Plan to establish priorities1. Eliminate barriers in recruitment & hiring2. Protecting immigrant, migrant and other

vulnerable workers including workers with disabilities

3. Addressing emerging and developing issues4. Enforcing equal pay laws5. Preserving access to the legal system6. Preventing harassment through systemic

enforcement and targeted outreach

EEOC’s Strategic Enforcement Plan

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

EEOC’s 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).

The Strategic Enforcement Plan Where the ADA Fits In

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

EEOC’s Recent ADA Litigation

$240 million verdict

2 million in compensatory relief

5.5 million in punitive damages per claimant

Case 1: EEOC v. Hill Country Farms11 cv 00041 (D. Iowa)

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 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 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

EEOC v. Hill Country Farms

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.

Publications on Employment Rights of Persons with Specific Disabilities

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

Case 2: EEOC v. UPS09-cv-5291 (N.D.Ill.)

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. 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

EEOC v. UPS

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.

Case No. 3: EEOC v. St. Alexius12 cv 7646

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. 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 v. St. Alexius

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

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

EEOC’s Recent ADA Litigation Reasonable Accommodation: A Quick Look

Change in job responsibilities – non essential function◦ Employee requested

limited travel due to fertility issues

◦ Employee sought to limit lifting

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

EEOC’s Recent ADA Litigation Reasonable Accommodation: A Quick Look

Prohibited Pre-employment Inquiry Case◦ Do you have any health problems?◦ Do you take medications?◦ Which medications?

EEOC’s Recent ADA LitigationOther Issues

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.

Genetic Information Non-Discrimination Act of 2008

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 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 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

EEOC’s Recent GINA Litigation

Patterns of violation seem to occur together.

Where you have an ADA violation, especially based on perceived disability, look for a GINA violation.

GINA and the ADA

28

The EEOC Charge Process

Mediation

Charge Filed

Resolution

Investigation

Withdrawal / Closure /Right-to-sue letter

No-cause finding / Right-to-sue letter

Settlement

Cause finding

ConciliationResolution

Conciliation failureEEOC LITIGATION

Right-to-sue letter / Potential referral to private attorney

Chicago District OfficeIn 2013: ADA Resolutions

No Cause60%

Set-tle

ment

8%

Withdraw

al with ben-efit9%

Suc-cess-ful

Con-cilia-tion4%

Un-suc-cess-

ful Concil-iation

5%

Ad-min-is-

tra-tive clo-sure14%

No CauseSettlementWithdrawal with bene-fitSuccessful Concilia-tionUnsuccessful Concilia-tionAdministrative closure

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

Charge Receipt

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.

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.

Facts about Mediation

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

Investigation

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

Conciliation

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)

Common Provisions in EEOC Conciliation Agreement

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

EEOC & IDHR interaction

EEOCDisability & Genetic

InformationNationwide15 or more employees

Charge filed within 300 days

IDHRDisability

Illinois1 or more employees

Charge filed within 180 days

Common Jurisdiction: 15 or more employees in Illinois Filed within 180 days

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 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 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 Reasonable Accommodation Claims

Employer conduct becomes the focus Early discovery regarding policies and third

party administrators Role of 30(b)(6) depositions Resource intensive

ADA Litigation: Practical Tips for Class Claims

Questions & Answers . . .

The floor is yours.

Thanks for your attention.