ED 450 529

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INSTITUTION

PUB DATE

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AVAILABLE FROM

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EDRS PRICE

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IDENTIFIERS

ABSTRACT

DOCUMENT RESUME

EC 308 286

Isler, Frederick D.; Zalokar, Nadja; Chambers, David; Kraus,

Rebecca; Johnson, Wanda; Butler, Margaret; Avery, Michelle

Leigh; Tyler, Marcia; Baird, Andrea; Foshee, Latrice;

Turner, Ilona

Helping Employers Comply with the ADA: An Assessment of How

the United States Equal Employment Opportunity Commission Is

Enforcing Title I of the Americans with Disabilities Act.

Commission on Civil Rights, Washington, DC.

1998-09-00

327p.

U.S. Commission on Civil Rights, 624 Ninth Street, N.W.,

Washington, DC 20425. Tel: 202-376-8128.

Reports Descriptive (141) Reports Evaluative (142)

MFO1 /PC14 Plus Postage.

Adults; *Agency Role; Civil Rights Legislation; *Compliance

(Legal); Court Litigation; *Disabilities; *Disability

Discrimination; *Equal Opportunities (Jobs); Federal

Regulation; *Law Enforcement; Program Effectiveness

Americans with Disabilities Act 1990; Commission on Civil

Rights; Equal Employment Opportunity Commission

This report from the United States Commission on Civil

Rights focuses specifically on the efforts of the U.S. Equal Employment

Opportunities Commission (EEOC) to enforce Title I of the Americans with

Disabilities Act, which prohibits discrimination based on disability in

employment. The report evaluates and analyzes EEOC's regulations and policies

clarifying the language of the statute; processing of charges of

discrimination based on disability; litigation activities under Title I of

the Americans with Disabilities Act; and outreach, education, and technical

assistance efforts related to the Act. The Commission finds that EEOC has

developed a highly credible implementation and enforcement program for the

Americans with Disabilities Act and that implementing the Act has been a

major focus of the agency since the law was passed. EEOC has accomplished

this while simultaneously taking a number of creative and innovative steps to

attempt to deal with an overwhelming workload and insufficient resources.

However, the Commission also found that EEOC is not fully responsive to the

concerns and priories of its stakeholders. To ensure that all stakeholders

have a voice in EEOC's policy development, the Commission recommends that the

formal mechanism be instituted to obtain input from interested parties.

(Contains over 800 references.) (CR)

Reproductions supplied by EDRS are the best that can be made

from the original document.
Helping Employers

Comply with the ADA

An Assessment of How the United States

Equal Employment Opportunity Commission

Is Enforcing Title I of the

Americans with Disabilities Act

U.S. DEPARTMENT OF EDUCATION

Office of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION

CENTER (ERIC)

This document has been reproduced as received from the person or organization

originating it.

Minor changes have been made to

improve reproduction quality.

Points of view or opinions stated in this document do not necessarily represent

official OERI position or policy.

A Report of the United States

Commission on Civil Rights

September 1998

BEST COPY AVAILABLE

2
U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan

agency first established by Congress in 1957 and reestablished in

1983. It is directed to:

Investigate complaints alleging that citizens are being deprived

of their right to vote by reason of their race, color, religion, sex,

age, disability, or national origin, or by reason of fraudulent

practices;

Study and collect information relating to discrimination or a

denial of equal protection of the laws under the Constitution

because of race, color, religion, sex, age, disability, or national

origin, or in the administration of justice;

Appraise Federal laws and policies with respect to

discrimination or denial of equal protection of the laws because

of race, color, religion, sex, age, disability, or national origin, or

in the administration of justice;

Serve as a national clearinghouse for information in respect to

discrimination or denial of equal protection of the laws because

of race, color, religion, sex, age, disability, or national origin;

Submit reports, findings, and recommendations to the President

and Congress;

Issue public service announcements to discourage discrimination or denial of equal protection of the laws.

Members of the Commission

Mary Frances Berry, Chairperson

Cruz Reynoso, Vice Chairperson

Carl A. Anderson

Robert P. George

A. Leon Higginbotham, Jr.

Constance Horner

Yvonne Y. Lee

Russell D. Redenbaugh

Ruby G. Moy, Staff Director
Helping Employers

Comply with the ADA

An Assessment of How the United States

Equal Employment Opportunity Commission

Is Enforcing Title I of the

Americans with Disabilities Act

u.

A Report of the United States

Commission on Civil Rights

September 1998

4
Letter of Transmittal

The President

The President of the Senate

The Speaker of the House of Representatives

Sirs:

The United States Commission on Civil Rights transmits this report, Helping Employers Comply with the ADA, pursuant to Public Law 103-419. The report, along with a companion

report, Helping State and Local Governments Comply with the ADA (on enforcement of title

II, subtitle A, by the Department of Justice), reflects the Commission's commitment to en- suring that Americans with disabilities are afforded equal opportunity and that the Nation's civil rights laws prohibiting discrimination on the basis of disability are vigorously enforced. In accordance with this commitment, the Commission releases its first evaluation of the enforcement of the Americans with Disabilities Act, 8 years after enactment of the statute.

In this report, the Commission focused specifically on the efforts of the U.S. Equal Employment Opportunity Commission (EEOC) to enforce title I of the Americans with Disabilities

Act, which prohibits discrimination based on disability in employment. The report evaluates and analyzes EEOC's regulations and policies clarifying the language of the statute, proc- essing of charges of discrimination based on disability; litigation activities under title I of the Americans with Disabilities Act; and outreach, education, and technical assistance efforts

relating to the act.

The report offers findings and recommendations on EEOC's implementation and enforcement of title I of the Americans with Disabilities Act. The Commission finds that, in general, EEOC has developed a highly credible implementation and enforcement program for the Americans with Disabilities Act and that implementing the act has been a major focus of the

agency since the law was passed. EEOC has accomplished this while simultaneously taking a number of creative and innovative steps to attempt to deal with the reality it faces: an over- whelming workload with insufficient resources to carry out its mission. However, the Com- mission identified areas where EEOC's civil rights implementation and enforcement efforts

for the Americans with Disabilities Act have fallen short and offers specific findings and rec- ommendations to assist EEOC in enhancing its effectiveness in carrying out its mission to

enforce title I of the act vigorously and efficiently.

In general, the Commission found that EEOC is not fully responsive to the needs and views of its stakeholders, including individuals with disabilities, employers, disability professionals, and disability experts. To ensure that all stakeholders have a voice in EEOC's policy devel- opment and decisionmaking related to the Americans with Disabilities Act, the Commission

recommends that EEOC institute formal mechanisms to obtain input from interested parties, such as an Americans with Disabilities Act Advisory Board comprised of persons representative of the broad range of EEOC's stakeholders.

EEOC also has failed to be sufficiently aggressive in reaching small businesses and the mi- nority community. The Commission calls upon EEOC. to provide enhanced technical assistance, outreach, and education to ensure that employers, especially small businesses, under- stand their obligations under the law and that individuals with disabilities, particularly mi- norities, understand and are able to exercise their rights under the act.

Furthermore, although EEOC has made effective use of Commissioner-led task forces to

evaluate and improve its operations in other areas, to date, EEOC has not taken steps to asiii

-
sess and improve its enforcement of the Americans with Disabilities Act. The Commission

urges EEOC to create a task force to evaluate the effectiveness of its Americans with Disabilities charge processing and enforcement activities, particularly with respect to. whether

EEOC staff have sufficient training on the Americans with Disabilities Act and whether

charges of discrimination based on disability are being accepted, investigated, and resolved

appropriately.

The report contains numerous other findings and recommendations that the Commission believes will enhance EEOC's enforcement of the Americans with Disabilities. Act. However,

more important than the specific failings of EEOC's Americans with Disabilities Act implementation and enforcement program, the Commission found that EEOC's passivity in galvanizing public support for and understanding of the law has undermined the law's effectiveness. One of the Commission's principal findings is that EEOC has not been effective in counteracting negative portrayals of the act in the media and promoting understanding of and

support for the Americans with Disabilities Act. The media often have portrayed the act

negatively, exaggerating the potential for frivolous lawsuits under the law, rather than focusing on the law's promise to provide equal opportunity for individuals with disabilities.

Similarly, judicial decisions misinterpreting the intent of the ADA threaten to weaken the

law.

The ADA will never truly become an effective civil rights statute if it continues to be misunderstood and viewed negatively by the American public. Therefore, the Commission calls

upon EEOC to work with the other Federal agencies charged with enforcing the ADA or protecting the interests of individuals with disabilities (such as the U.S. Department of Justice,

the National Council on Disability, and the President's Committee on Employment of People

with Disabilities) to promote greater understanding of and support for the ADA.

Finally, the Commission calls upon Congress to provide the resources needed for EEOC to

carry out its responsibilities under the Americans with Disabilities Act and other civil rights

laws prohibiting discrimination in employment. The Commission also urges the President

and Congress to work together to reform the Nation's disability policy as a whole to ensure

that it supports the goals of the Americans with Disabilities Act. In particular, Congress and

the President should act on legislation currently pending in Congress, the "Ticket to Work

and Self Sufficiency Act of 1998" and "The Work Incentive Improvement Act of 1998," designed to improve work opportunities for individuals with disabilities.

Equality of opportunity, full participation, independent living, and economic self-sufficiency

are truly important goals that, if achieved, will enable all Americans with disabilities to realize the full measure of their potential and human dignity. A renewed national commitment

to vigorous enforcement of the Americans with Disabilities Act is crucial to the achievement

of these goals.

Respectfully,

For the Commissioners,

MARY FRANCES BERRY

Chairperson

iv
Acknowledgments

The administrative work, policy research, data analysis, onsite factfinding, and written

product for this report were performed by the following Office of Civil Rights Evaluation Staff: Frederick D. Is ler, Assistant Staff Director; Nadja Zalokar, Supervisory Civil Rights Analyst, David Chambers, Senior Civil Rights Analyst; Rebecca Kraus, Senior Social Scientist; Wanda Johnson, Civil Rights Analyst; Margaret Butler, Civil Rights Analyst; Michelle Leigh Avery,* Civil Rights Analyst; Marcia Tyler, Community Relations Manager; Andrea Baird, Social Scientist; Latrice Foshee, Civil Rights Assistant; and Ilona Turner, Equal Op- portunity Assistant. The following unpaid student interns made substantial contributions to

the research and writing of this report: Stephanie Celandine, George Mason University; Kristy Mc Morris, Howard University; Jade Brown, Howard University; Alex Merati, Catholic

University; Dion Symonette, Prince George's County Community College; Raphael Prober, Georgetown University; Bonnie Schreiber, Georgetown University; and John Theis, Georgetown University. The legal review was performed by Marlissa S. Briggett, Attorney-Advisor. Editorial review was provided by James S. Cunningham, Assistant Staff Director for Congressional Affairs; Barbara J. Fontana, Librarian; Marc D. Pentino, Civil Rights Analyst; and Stella G. Youngblood, Civil Rights Analyst. The following unpaid student interns assisted in

editing and conducting legal research for the report: Dorian Hamilton, Howard University School of Law; Nicholas Rathod, American University School of Law; Richard Bernstein, Catholic University School of Law; and Ethan Susskind, American University School of Law. This report was developed under the direct supervision of Frederick D. Is ler, Assistant Staff Director for Civil Rights Evaluation.

The Commission especially wishes to thank the following agencies for the background infor- mation they provided the Office of Civil Rights Evaluation to assist in the Americans with

Disabilities Act Project: the National Council on Disability, the President's Committee on Employment of People with Disabilities, the National Institute of Disability Research and Rehabilitation, and the National Association of Protection and Advocacy Systems.

*Former Commission employee.
Contents

1. Introduction 1

2. Background 9

Statistical Profile of the Disability Community 9

Numbers of People with Disabilities 9

Socioeconomic Characteristics 10

Age, Race/Ethnicity, and Gender 11

Education 12

Labor Force Status 12

Income 13

Participation in Government Programs 13

Individuals with Disabilities as a Minority Group 13

Federal Civil Rights Statutes from 1964 to 1988 15

Legislative History and Final Provisions of the ADA 17

Overview of Legislative History 17

Debates Over the ADA Bill 20

Costs of ADA Compliance 21

Concerns Over Increased Litigation 22

Preemployment Inquiries 23

HIV/AIDS 23

Final Provisions and Enforcement of Title I of the ADA 24

The Role of Other Federal Agencies and Programs 27

President's Committee on Employment of People with Disabilities 27

Protection and Advocacy Systems 28

National Council on Disability 29

National Institute on Disability and Rehabilitation Research 30

A Broader Context: America's Disability Policy 31

3. Organization and Administration of the U.S. Equal Employment Opportunity Commission 38

Mission and Responsibilities 38

Structure 41

Office of General Counsel 42

Office of Legal Counsel 43

Office of Field Programs 45

Field Offices 46

District Offices 46

Area Offices 47

Local Offices 47

Washington Field Office 47

State and Local Fair Employment Practices Agencies 48

Past Performance and Recent Initiatives 51

National Enforcement Plan 52

Local Enforcement Plans 53

1997-2002 Strategic Plan 56

1998 Task Force Reports 57

Workload, Staffing, and Budget 59

Workload and Staffing 59

Budget 61

Staff Training on the ADA 62

vii
4. Assessment of EEOC's Rulemaking and Policy Development 66

Title I Rulemaking and Policy Development 66

Rulemaking 67

Policy and Enforcement Guidance 72

Policy and Enforcement Guidance Development 73

Title I Policy and Enforcement Guidance 74

Litigation as a Policy Development Tool 76

Initial Guidance on Major Provisions of Title I 77

Who Is Protected? 77

Discrimination Defined 78

Defenses 79

Business Necessity Defense 79

Defense for Religious Entities 80

Food Handling by an Individual with Infectious or Communicable Disease 81

Guidance on Defining Disability Under the ADA 81

Background 81

ADA's Definition of Disability 82

Related Concepts and Issues 84

Physical or Mental Impairments 84

Substantial Limitation 85

Major Life Activity 86

Major Life Activity of Working 88

Mitigating Measures 91

Per Se Disabilities 98

Guidance on Determining Who Is a Qualified Individual with a Disability 102

Qualifications Standards 102

Defining "Qualified Individual with a Disability" 104

Essential Function 105

Reasonable Accommodation 107

Business Justification 112

Direct Threat 113

Undue Hardship 114

5. Assessment of Enforcement Guidance on Title I Topics and Issues 117

ADA and Psychiatric Disabilities 117

What Is a Psychiatric Disability Under the ADA? 118

Identifying and Diagnosing Psychiatric Disabilities 119

Personality Disorders as Disabilities 121

The "Substantial Limitation of a Major Life Activity" Analysis and

Psychiatric Disabilities 123

Evidence of Psychiatric Disability 126

Reasonable Accommodation 126

Conduct 129

Direct Threat 132

Other Issues 133

Employer-provided Health Insurance, Disability, and Service Retirement

Plan Coverage 134

June 1993 Interim Enforcement Guidance 135

Statutory and Regulatory Authority 136

Disability-Based Distinctions in Employer-Provided Health Insurance 137

Framework of Analysis 137

What Is a Disability-based Distinction? 137

Employer/Insurer Defenses and Burden of Proof 139

viii
EEOC's Litigation and Arnicus Positions on Long Term Disability 143

Physical Versus Mental Disabilities 143

Qualified Individual with a Disability 146

HIV/AIDS 146

Interpreting the ADA on Health Insurance and Other Benefits 147

Preemployment Inquiries and Medical Examinations 147

Statutory and Regulatory Authority 148

The Pre-Offer Stage 149

What Is a Disability-related Question? 149

What Is a Medical Examination? 153

The Post-Offer Stage 155

Workers' Compensation and the ADA 156

Disabilities and Occupational Injuries 157

Questions and Examinations 157

Hiring and Return to Work Decisions 158

Reasonable Accommodation 159

Light Duty 159

Exclusive Remedy Provisions 160

Other Issues 160

Applications for Benefits and "Qualified Individual with a Disability" 161

IntroductionJudicial Estoppel 162

EEOC's Analysis 164

Fundamentally Different Purpose and Standards in ADA 164

Role of Representations Made in Applications for Disability Benefits 168

Public Policy Reasons Supporting Conclusion 169

Instructions to Investigators 170

Title I of the ADA and Labor Issues 170

Early Attempts to Work with the National Labor Relations Board 171

NLRBEEOC Procedural Memorandum of Understanding 172

Conflicts Between the Requirements of the ADA and Labor Practices 173

Medical Information Confidentiality Requirement 173

Reasonable Accommodation and the Collective Bargaining Agreement 174

ADA Claims and Mandatory Arbitration 175

The Family and Medical Leave Act and the ADA 176

Background 177

Legislative Histories 177

ADA 177

FMLA 177

Objectives 178

Scope and Coverage 178

Leave Policies 179

Medical Certification and Employee Records 181

Employee Health Benefits 181

Extended Leave 182

Continuing Need for Awareness and Education 182

Application of ADA to Conduct Overseas and Foreign Employers in the

United States 183

Discrimination by Employers Abroad 183

Discrimination by Foreign Employers Within the United States 184

Charge Processing Instructions 185

ix

10
6. Assessment of Title I Enforcement Activities: Charge Processing 186

Priority Charge Handling Procedures 188

Charge Intake 190

Charge Categorization 192

A, B, and C Charges 192

Commissioner Charges 194

Charge Investigation 197

Investigations 197

Determinations 200

Charge Resolutions and Closures 201

Settlements and Conciliations 201

Alternative Dispute Resolution 201

Litigation 206

Charges of Discrimination. 210

Charges Under All Statutes 212.

Charges Under the ADA 214

Bases 214

Issues 214

Processing Time 216

Benefits 219

7. Assessment of EEOC's Outreach, Education, and Technical Assistance. 220

ADA Technical Assistance Plan 223

Outreach in the Development of Implementing Regulations 224.

Technical Assistance Manual 224

Interagency Coordination 224

Technical Assistance Plan 226

ADA Technical Assistance Program 226

Phase I 226

Funding 230

Technical Assistance Revolving Fund and the TAPS Programs 231

ADA Outreach, Education and Technical AssistanceFY 1993 to Present 232

Local Enforcement Plans 234

Headquarters and Field Office Management of ADA Technical

Assistance Programs 235

Outreach to Underserved Groups 238

Future of EEOC's Outreach, Education, and Technical Assistance Program 240

8. Findings and Recommendations 241

Statements

Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and

Commissioners A. Leon Higginbotham and Yvonne Lee 270

Commissioner Russell G. Redenbaugh 274

Appendices

A. ADA Charges by Bases 283

B. ADA Charges by Issue 284

Bibliography 286

x
Tables

2.1 Percent Disabled, by Age 10

2.2 Percent Disabled (Ages 15 to 64), by Race and Hispanic Origin 11

3.1 EEOC District, Area, and Local Offices 44

3.2 EEOC's Budget, Staffing, and Workload, Fiscal Years 1993-1997 58

6.1 Priority Charge Processing, by Office 195

6.2 EEOC Involvement in Cases by Issue 207

6.3 EEOC Involvement in Cases by Impairment 208

6.4 ADA Cases Litigated by EEOC District Offices 209

6.5 Characteristics of Charging Parties, by Statute 211

6.6 Months to Close Charge, by Processing Time 216

Figures

3.1 The Equal Employment Opportunity Commission 40

6.1 Processing Category by Statute 193

6.2 Closures by Statute 211

6.3 ADA Charges by Basis 213

6.4 ADA Charges by Issue 213

6.5 Processing Time: ADA Charges 215

6.6 Average Number of Days to Close ADA Charges 215

6.7 Processing Time by Priority 217

6.8 Charge Processing time Before and After Priority Charge

Handling Procedures 218

6.9 Status of Open Charges 218

xi

12
Introduction

On July 26, 1990, 26 years after the passage

of the Civil Rights Act of 1964,1 President

George Bush signed, the Americans with Disabilities Act (ADA) into law.2 With enactment of

this law, Congress provided a panoply of Federal

civil rights protections for persons with disabilities. The law seeks to ensure for people with disabilities such rights as equal opportunity in education and employment; full accessibility to public accommodations, telecommunications, and

health insurance; and a total commitment by

Federal, State, and local governments to ensuring the rights of individuals with disabilities.3

The statement of findings for the ADA is

compelling. Congress found that 43 million

Americans had physical or mental disabilities

and described in direct, powerful language the

widespread discrimination faced by people with

disabilities throughout our history.4 Congress

found that individuals with disabilities faced

discrimination in "such critical areas, as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting,

and access to public services"5 and that the discrimination took various forms, including

"outright intentional exclusion, the discriminatory effects of architectural, transportation, and

communication barriers, overprotective rules

and policies, failure to make modifications to

1 Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in

scattered sections of 42 U.S.C.).

2 Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§

12101-12213 (1994)).

3 See id.

4 42 U.S.C. § 12101(a) (1994).

5 Id. § 12101(a)(3) (1994).

1

existing facilities and practices, exclusionary

qualification standards and criteria, segregation,

and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."6

Congress noted that "historically, society has

tended to isolate and segregate individuals with

disabilities,"7 that individuals with disabilities

"occupy an inferior status in our society, and are

severely disadvantaged socially, vocationally, economically, and educationally" and finally that:

individuals with disabilities are a discrete and insular

minority who have been faced with restrictions and

limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals

and resulting from stereotypic assumptions not truly

indicative of the individual ability of such individuals

to participate in, and contribute to, society.9

Furthermore, individuals with disabilities, unlike others experiencing discrimination, had "no

legal recourse to redress such discrimination."10

Congress stated that the Nation's proper

goals with respect to individuals with disabilities

are: "equality of opportunity, full participation,

independent living, and economic selfsufficiency"" and that ongoing discrimination

against individuals with disabilities prevented

the accomplishment of these goals:

6 Id. § 12101(a)(5) (1994).

7 Id. § 12101(a)(2) (1994).

8 Id. § 12101(a)(6) (1994).

9 Id. § 12101(a)(7) (1994).

10 Id. § 12101(a)(4) (1994).

11 Id. § 12101(a)(8) (1994).

13
[T]he continuing existence of unfair and unnecessary

discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis

and to pursue those opportunities for which our free

society is justifiably famous, and costs the United

States billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity.'2

To eliminate this invidious discrimination,

Congress stated in the ADA's statement of purpose that it intends the statute:

to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals with disabilities;

to ensure that the Federal Government plays a

central role in enforcing the standards established in this chapter on behalf of individuals

with disabilities; and

to invoke the sweep of congressional authority,

including the power to enforce the fourteenth

amendment and to regulate commerce, in order

to address the major areas of discrimination faced

day-to-day by people with disabilities.13

To meet the goal of a universal ban on discrimination against persons with disabilities,

Congress created four separate titles in the act

to prohibit the discrimination enumerated in the

act's statement of findings. Title I of the act bans

discrimination against persons with disabilities

in employment." Title II prohibits discrimination by State and local governments and requires that they ensure that all facilities, services, and information they provide are accessible

to persons with disabilities.15 Title III provides

for nondiscrimination against persons with disabilities in public accommodations.16 Finally,

title IV of the act bans discrimination in telecommunications.17 A fifth title in the statute

contains miscellaneous provisions clarifying

ADA's relationship to other laws and addressing

such issues as health insurance.18

12 Id. § 12101(a)(9) (1994).

13 Id. § 12101(b)(1)-(4) (1994).

14 Id. §§ 12111-12117 (1994).

18 Id. §§ 12131-12,165 (1994).

18 Id. §§ 12181-12189 (1994).

17 Pub. L. No. 101-336, § 401, 104 Stat. 327, 366 (codified in

scattered sections of 47 U.S.C.).

18 42 U.S.C. §§ 12201-12213 (1994).

2

Although more than 6 years have passed

since the ADA first took effect, its goals of ensuring equal employment opportunities and full

accessibility to State and local government services and public accommodations are far from

being met. For example, in a 1996 report, the

National Council on Disability provided some

disheartening statistics from a survey conducted

for the National Organization on Disability. The

report noted that:

about 67% of individuals with disabilities aged 15 to

64 in the United States are unemployed but want to

work and that 60% of Americans with disabilities are

still not aware of ADA. Additionally, the survey shows

that (a) only 47% of people with disabilities believe

that others treat them as equals; (b) only 35% are

satisfied with their lives in general, compared with

55% of people without disabilities; (c) that percentage

of working-age Americans with disabilities who are

unemployed (67%) is unchanged since 1986, although

79% say that they want to work; (d) 49% of students

and employment trainees with disabilities expect to

encounter job discrimination; and (e) 66% of students

believe that their disability will haveor has hada

strong negative effect on their job opportunities.'9

Although maintaining that without the ADA,

"the chances of employing people with disabilities is remote," the executive director of the

Oklahoma Disability Law Center wrote that

even with the ADA, "the process of opening areas for employment is a long, slow one."20 A media critic of the ADA has noted that "Nile ADA's

intended beneficiariesblind, deaf, or wheelchair-bound Americans now on public assistanceare no more likely to be in the mainstream workplace now than in 1991. Most of the

law's benefits have accrued to the alreadyemployed. . . ."21 The associate director of the

18 National Council on Disability, Cognitive Impairments

and the Application of Title I of the ADA (Washington, DC:

National Council on Disability, Jan. 26, 1996), p. 3, citing

Lou Harris and Associates, Inc., NOD/Harris Survey of

Americans with Disabilities (New York, NY: Author, 1994).

20 Kayla A. Bower, Executive Director, Oklahoma Disability

Law Center, Inc., letter to Frederick D. Isler, Assistant Staff

Director, Office of Civil Rights Evaluation (OCRE), U.S.

Commission on Civil Rights (USCCR), Apr. 6, 1998, attachment, p. 1 (hereafter cited as Bower letter).

21 Brian Doherty, "Unreasonable Accommodation: The Case

Against the Americans with Disabilities Act," Reason

(August/September 1995), p. 20 (hereafter cited as Doherty,

"Unreasonable Accommodation").

14
State of Illinois' Office of Rehabilitation Services

also noted that "the biggest impact that the ADA

has had in regards to employment is for persons

who are already hired and need assistance, be it

accommodations or job retention."22 He wrote

that employers continue to be afraid to hire persons with disabilities because of the possibility

that they might file lawsuits under the ADA,

and employers also have "unwarranted fear"

that the costs of accommodating individuals with

disabilities will be high.23

The general counsel of the State of Connecticut's Office of Protection and Advocacy for Persons with Disabilities indicated that the ADA

had opened up dialogues between employers and

employees, but that it "remains unclear whether

the employee obtained a job as the direct result

of the ADA."24 The executive director of the

Georgia Advocacy Office wrote that "many businesses are willing to provide accommodations for

persons with disabilities," but that her office had

noted "some resistance to hiring persons with

disabilities and the fabrication of a record of poor

performance in order to terminate persons with

disabilities. "25 A representative of the State of

California Department of Rehabilitation noted

that many companies "have incorporated ADA

into their operational policy and have gone out of

their way to recruit persons with disabilities,"

but that small businesses, in particular, have

had a poor record with respect to recruitment

and accommodation of individuals with disabilities.26 A representative of the Paralyzed Veter22 Carl Suter, Associate Director, Office of Rehabilitation

Services, Illinois Department of Human Services, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

June 9, 1998, attachment, p. 1 (hereafter cited as Suter letter).

23 Ibid.

24 Lawrence Berliner, General Counsel, Office of Protection

and Advocacy for Persons with Disabilities, State of Connecticut, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, p. 2 (hereafter cited as

Berliner letter).

25 Joyce R. Ringer, Executive Director, Georgia Advocacy

Office, letter to Frederick D. Is ler, Assistant Staff Director,

OCRE, USCCR, Apr. 1, 1998, attachment, p. 1 (hereafter

cited as Ringer letter).

26 Michelle Martin, Staff Services Analyst, Department of

Rehabilitation, Health and Welfare Agency, State of California, letter to Nadja Zalokar, Director, Americans with

Disabilities Act Project, USCCR, May 11, 1998, attachment,

pp. 1-2 (hereafter cited as Martin letter).

3

ans of America wrote that inaccessible public

transportation remains a major barrier that

makes it "impossible for [individuals with disabilities] to take advantage of employment opportunities."27 The executive director of the

Oklahoma Disability Law Center indicated that

. many of her agencies' clients do not even qualify

for protection under the ADA, because they cant not perform the essential functions of a job, even

with reasonable accommodation.28

However, some research evidence suggests

that the ADA may have had a positive effect on

employment of people with disabilities. Data

from the Survey of Income and Program Participation show that the percentage of persons with

severe disabilities who were employed grew from

23.3 percent in 1991 to 26.1 percent in 1994, an

increase of 27 percent. According to these data,

800,000 more people' with severe disabilities

were employed in 1994 than in 1991.29 The extent to which the ADA, as opposed to the improving economy, was responsible for the increase is unknown.39

According to the National Organization on

Disability, which held conference calls with

thousands of its community partners, despite

these increases in the number of people with

disabilities who are employed, a general consensus among members of the disability community

is that the ADA has not done much to open up

employment opportunities for people with disabilities who are unemployed.31 The unemployment rate for people with disabilities remains

much higher than for the population as a whole,

27 Susan Prokop, Associate Advocacy Director, Paralyzed

Veterans of America, letter to Nadja Zalokar, Director,

Americans with Disabilities Act Project, USCCR, May 26,

1998, p. 1.

29 Bower letter, attachment, p. 1.

29 President's Committee on Employment of People with

Disabilities, News Release, "Employment Rate of People

with Disabilities Increases Under the Americans with Disabilities Act," July 22, 1996 (hereafter cited as President's

Committee, "Employment of People with Disabilities Increases Under the ADA").

30John Lancaster, Executive Director, President's Committee on Employment of People with Disabilities, interview in

Washington, DC, Oct. 14, 1997 (hereafter cited as Lancaster

interview).

31 Jim Dickson, Director of Community Affairs, National

Organization on Disability, interview in Washington, DC,

Mar. 3, 1998, p. 2 (hereafter cited as Dickson interview).

15
and only slightly over one-quarter of persons

with severe disabilities are working.32 Furthermore, negative attitudes towards people with

disabilities continue to pervade society. One disability leader told the Commission that fear of

disability leads persons without disabilities either to avoid people with disabilities altogether,

or to be overly helpful to them.33 The need for a

public relations campaign to change societal attitudes was a theme voiced by many of the people

Commission staff spoke to during the course of

the investigation.

Although the ADA may not have substantially improved job opportunities for people with

disabilities, it may have produced intangible

benefits. One disability leader told the Commission that the ADA was "priceless" because it had

captured the imagination of people with disabilities. Although it has not been the "magic bullet"

some in the disability community originally

thought it might be, the ADA has raised the expectations of people with disabilities.34 Furthermore, the mere existence of the ADA appears to

have affected a change in the way employers,

State and local government agencies, and the

general public perceive and treat people with

disabilities. According to a National Institute on

Disability and Rehabilitation Research grantee

who provides technical assistance on the ADA,

"Overall, we feel that there have been significant

changes in the attitudes of employers, businesses and government officials since the implementation of the ADA."35 An employer representative also has pointed out that the ADA has

encouraged the development of assistive equipment and technology. As a result, she told the

Commission, such devices have become more

sophisticated and less expensive than they were

previously; thus, "the 'reasonableness' of imple32 President's Committee, "Employment Rate of People with

Disabilities Increases Under the ADA"; see also Lancaster

interview, p. 5.

33 Dickson interview, p. 3.

34 Ibid., p. 5.

35 Responses by National Institute on Disability and Rehabilitation Research Americans with Disabilities Act Technical Assistance Program grantees related to DOJ/EEOC Enforcement, Jan. 6, 1998, provided to the Commission by

David Esquith, National Institute on Disability and Rehabilitation Research (OCRE files), p. 3 (hereafter cited as

NIDRR, ADA Project Directors' responses).

4

menting such devices as reasonable accommodations increases, and the degree of hardship lessens substantially."36

Some media commentators have charged that

the ADA has been too effective and its reach has

extended far beyond what Congress intended.

For instance, one commentator has written:

"Physically incapable, mentally unstable, and

alcoholic or addicted employees have again and

again used new laws [the ADA and similar statutes at the State and local level] to hold onto

safety-sensitive positions."37 He provided several

examples of cases where employers had been

forced to employ or retain employees with disabilities in jobs where they posed a clear safety

threat. Critics of the ADA also argue that it has

been abused by people who do not have disabilities. For instance, a 1996 editorial piece in the

Washington Times, citing a disability advocate,

said, "The most frequent employment complaint

under the ADA is from those already employed

who only discover that they are disabled when

facing dismissal or passed over for promotion. "38

The prevalence of back ailments among the

charges of discrimination received by the Equal

Employment Opportunity Commission often is

cited as further evidence that the law is being

used to benefit people who do not truly have a

disability.

The costs that the ADA has imposed on employers have also been a subject of much of the

criticism.39 Data exist suggesting that most accommodations under the statute have been inexpensive. For instance, the Job Accommodation

Network, a federally funded program- that pro36 Ann Elizabeth Reesman, General Counsel, Equal Employment Advisory Council, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 2, 1998, p. 3

(hereafter cited as Reesman letter).

37 Walter Olson, "Disabling America: Some Provisions of the

Americans with Disabilities Act Threaten Public Safety,"

National Review, vol. 49, no. 9 (May 5, 1997), p. 40

(hereafter cited as Olson, "Disabling America").

38 James Bovard, "Disability Intentions Astray," Washington

Times, May 20, 1996, p. A6.

39 See, e.g., Doherty, "Unreasonable Accommodation," p. 20,

stating: "Many presumed benefits [of the ADA] haven't yet

blossomed, but the costs are all too real. Businesses as tiny

as family-owned diners and corner dry cleaners are dodging

regulators, in some cases paying tens of thousands in legal

costs. Cash-strapped local governments are spending billions

to comply with public-accommodation requirements."

16
vides technical assistance to employers in providing reasonable accommodation under the

ADA, has found that, among employers it has

assisted, 70 percent report that the accommodations they made either cost nothing or less than

$500.40 A 1995 poll of corporations conducted by

Louis Harris found that 80 percent of employers

indicated that the ADA had not increased the

costs of accommodating people with disabilities,

and 82 percent felt that the ADA was worth the

cost of implementation.41 In addition, one legal

scholar noted that there are tax and other benefits associated with hiring and accommodating

individuals with disabilities.42

However, others point out that the greatest

cost associated with the ADA is litigation, not

reasonable accommodation. One employers' representative has stated that many frivolous lawsuits have been filed under the ADA, and that

these lawsuits cost an average of $12,000 each to

defend.43 Critics argue that these data fail to

include nonpecuniary costs, such as managerial

time and attention." At least one newspaper

column has indicated that unnecessary expenses

may be incurred by State and local government

entities under the guise of ADA compliance.45

Others point out that discussions of the costs of

the ADA should not ignore the benefits.46 How40 President's Committee on Employment of People with

Disabilities, Job Accommodation Network, Accommodation

Benefit/Cost Data, Mar. 30, 1997 (hereafter cited as President's Committee, Accommodation Benefit/Cost Data).

However, 8 percent of employers reported that the accommodations they made cost between $2,001 and $5,000, and 4

percent reported that the cost of the accommodations they

made was above $5,000. Ibid.

41 President's Committee on Employment of People with

Disabilities, Job Accommodation Network, "New Harris Poll

Shows Business Supports ADA," undated.

42 See Michael C. Collins, "IntroductionThe ADA and Employment: How It Really Affects People with Disabilities,"

Gonzaga Law Review, vol. 28, no. 2 (1992/93), pp. 209-18.

43 Mary Reed, National Federation of Independent Businesses, presentation at "Employment Post the Americans

with Disabilities Act," conference in Washington, DC, Nov.

17-18, 1997.

44 Walter K. Olson, The Excuse Factory: How Employment

Law is Paralyzing the American Workplace (New York: The

Free Press, 1997), pp. 109-10.

46 See Max Boot, "How George Bush is Still Raising My

Taxes," Wall Street Journal, Mar. 16, 1998.

46 The Job Accommodation Network also asked employers to

report on benefits they realized from making accommoda5

ever, to date, no definitive scholarly research has

been done that would permit an unbiased assessment of either the costs or the benefits of the

ADA.47

Another major controversy that has arisen

under the ADA is disagreement about whether

the definition of disability under the ADA is too

liberal or too restrictive. Many disability experts

and advocates maintain that too often the Federal courts have made fundamental errors in

interpreting the ADA, with the result that they

have held wrongly that a plaintiff does not meet

the ADA's definition of a qualified person with a

disability and misguidedly throw out legitimate

cases brought by people the law was designed to

protect. For example, one disability advocate

recently gave examples of cases she said were

meritorious, but which the plaintiffs lost, because the courts held that they were not disabled

under the ADA.48 For example, in one case, a

woman with breast cancer was able to maintain

her work schedule during her radiation treatment. After she was fired, the court held that

she was not disabled because her impairment

had not substantially limited the major life activity of working49

On the other side of this controversy are critics who argue that the vague language of the

ADA has allowed people without disabilities to

"game the system" and bring frivolous lawsuits.

For example, one author has said that the statute has spawned "opportunism" that has led to

cases that are "patently absurd," such as the

tions. The median benefits reported were valued at $10,000.

President's Committee, Accommodation Benefit/Cost Data.

47 According to one critic of the ADA: "The ADA's total costs

are impossible to estimate with certainty. All we can know

about are individual cases, and even there most people don't

want to talk. . . . The law rewards 'good faith' compliance, so

it behooves any business owner or manager not to say anything publicly that might betray a lack of good faith toward

the ADA or its application. Lawyers, pundits, consultants,

city officials, trade group reps, even people forced to pay

tens of thousands trying to obey the law, all emphasize they

have no problem with the concept of the ADA, just the uncertainty and stringency of its application." Doherty,

"Unreasonable Accommodation," p. 20.

48 Arlene Mayerson, Disability Rights Education and Defense Fund, presentation at "Employment Post the Americans with Disabilities Act," conference in Washington, DC,

Nov. 17-18, 1997, p. 12.

49 Ellison v. Software Spectrum, Inc., 85 F. 3d 187, 191 (5th

Cir. 1996).
case of "the overweight fellow who sues for bigger seats in theaters, the guy who claims he

brought a gun to work because of a psychiatric

difficulty, . . . and the woman who claims her

offensive smell is a protected disability."50 However, statistics suggest that employers are more

likely to prevail in ADA cases, and an article in

the Daily Labor Report suggests that difficulties

in satisfying legislative definitions and procedural provisions limit the ability of individuals

to successfully show that they have experienced

discrimination.51 The article concluded that:

employees are treated unfairly under the Act due to

myriad legal technicalities that more often than not

prevent the issue of employment discrimination from

ever being considered on the merits by an administrative or judicial tribunal. Moreover, when the merits

are considered, the law still favors the employer.52

Critics of the ADA also argue that the Federal Government has been overzealous in its enforcement of the law and pushed it far beyond

Congressional intent. Even supporters of the

ADA, such as the Equal Employment Advisory

Council, contend that the Equal Employment

Opportunity Commission has "pushed the

boundaries of [the ADA] in every conceivable

direction" and taken positions that "defy common sense."53 The firestorm that ensued recently

when the Equal Employment Opportunity

Commission issued enforcement guidance on

people with psychiatric disabilities and the ADA

is an example of the criticism of the agency's

ADA enforcement. A 1997 editorial piece in the

Wall Street Journal stated that under the

guidelines, "[h]alf of Corporate America now

qualifies as mentally disabled, and most of Wall

Street."54 Similarly, a nationally syndicated columnist criticized the guidance for including "a

50 Doherty, "Reasonable Accommodation," p. 20.

51 See John Parry, "American Bar Association Survey on Court

Rulings Under Title I of the Americans with Disabilities Act,"

Daily Labor Report, June 22, 1998, p. E-1E-2 (hereafter

cited as Parry, "ABA Survey." A study conducted by the

American Bar Association suggests that, on average, in 92.1

percent of ADA cases in which a decision was made in favor of

one side or the other, employers have prevailed. Ibid.

52 Ibid., p. E-3

53 Reesman letter, p. 5.

54 Holman W. Jenkins, Jr., "Think Your Co-Workers Are

Crazy? They Are," Wall Street Journal, May 13, 1997, p. A23.

6

whole panoply of anti-social and/or uncooperative behaviors" as mental disorders and for

"undermin[ing] our traditional understanding of

character, behavior and personal responsibility."55 . Although much has been said about overzealous enforcement of the ADA by the Equal Employment Opportunity Commission, other observers have told the Commission that they do

not believe that the agency has been sufficiently

aggressive in enforcing the law, although they

often give the agency credit for trying. For instance, a person who provides technical assistance on the ADA to members of the disability

community and others under a grant from the

National Institute for Disability and Rehabilitation Research (NIDRR) told Commission staff

that the basic perception in the disability community is that there is no enforcement of the

ADA.56 Another NIDRR grantee wrote, "The perception among people with disabilities and others in our region is that there is very little enforcement going on, yet we know that with the

staffing available, there is a tremendous amount

being accomplished. People are not seeing implementation at the community level."57 Another

NIDRR grantee wrote, "Basically, no federal

agency with [ADA] enforcement responsibility is

doing a great job."58

The news media have played an important

role in shaping the debate over the ADA. However, some experts contend that coverage of the

ADA in the news media has not always been

balanced and accurate. They criticize the news

media coverage for giving the impression that

nothing but frivolous lawsuits are being filed

under the ADA, while largely ignoring the poor

judicial decisions that have unduly restricted

coverage of the ADA contrary to congressional

intent. Several individuals indicated that the

news media "has occasionally painted an accurate picture of the requirements of the law" or

pointed to instances of good media coverage of

55 Mona Charen, "Frenetic Guidelines Straight From

EEOC," Washington Times, July 31, 1997, p. A14.

56 National Institute on Disability and Rehabilitation and

Research, ADA Technical Assistance Program Project Directors' Meeting, Arlington, VA, Feb. 24-25, 1998, summary, p. 6.

57 NIDRR, ADA Project Directors' responses, p. 2.

58 Ibid., p. 5.

18
the ADA.59 Several individuals praised, in particular, a segment on the ADA done by John

Hockenberry of "Dateline" in the fall of 1997.60

However, they were concerned that ADA coverage often is "sensationalistic and inaccurate,"61

"inconsistent,"62 "one-sided and distorted,"63 and

contains "extreme examples"64 "negative 'scare'

stories,"65 and "lampoons."66 The executive director of the Georgia Advocacy Office wrote:

The news media has occasionally painted an accurate

picture of the requirements of the [ADA]. However,

many sensationalistic and inaccurate stories are more

indelibly etched on our consciences. The stories of

people who try to misuse or misapply the employment

provisions of the ADA to hang onto a job or people

who make federal cases out of petty matters seem to

58 Prokop letter, p. 1; Suter letter, p. 2 (noting that

"[d]epending on the nature of the event, the media has been

an ally and a detriment to the ADA movement. The media is

to be commended for their touching portrayals of [persons

with disabilities] and their. struggles. . . In the State of

Illinois many local media outlets have done a superb job of

covering events and developing stories pertaining to the

ADA and [persons with disabilities]."). 60 See, e.g., Carl Brown, Assistant Commissioner, Division of

Rehabilitation Services, Department of Human Services,

State of Tennessee, letter to Frederick D. Isler, Assistant

Staff Director, OCRE, USCCR, Apr. 20, 1998, attachment, p.

1 (hereafter cited as Brown letter); Martin letter, attachment, p. 7. 61 Ringer letter, attachment, p. 1. 62 Berliner letter, p. 2. 63 Prokop letter, attachment, p. 1 ("Too frequently, newspapers, magazines, radio and television offer one-sided or distorted pictures about the ADA and what it requires. There is

a lack of understanding about terms such as 'reasonable

accommodation' and misuse of certain terminology in the

context of stories about the ADA. . . . Clearly, the media

needs to do a better job of presenting balanced, accurate

stories about the ADA"). 64 Brown letter, attachment, p. 1. 65 David Eichenauer, Access to Independence and Mobility,

fax to Nadja Zalokar, U.S. Commission on Civil Rights, June

4, 1998, p. 1 ("The ADA . . . has received very poor press.

Even a majority of persons with disabilities do not understand the ADA. There are too many negative 'scare' stories

about the ADA."). 66 Martin letter, attachment, p. 7. See also Sutter letter,

attachment, p. 2 (noting that "the media has tended to overkill such stories as inmates filing ADA charges, the in vitro

fertilization ruling, and John Stossell of ABC news has been

extraordinarily harsh on the ADA and portrays the legislation as costly and unnecessary.").

7

receive more coverage than the day-to-day stories of

how the ADA works.67

The general counsel of the State of Connecticut's

Office of Protection and Advocacy for Persons

with Disabilities singled out newspaper editorials as being "especially biased with their negative portrayals of the ADA."68 Unfortunately, to

date, the public debate over the impact and enforcement of the ADA largely has been carried

out in the media. Sufficient time has elapsed,

however, since passage of the ADA for a more

dispassionate and careful study of the ADA to be

conducted.

Under the Commission's mandate to evaluate

Federal civil rights enforcement, the Commission

turns its attention to the ADA implementation

and enforcement activities of the U.S. Equal Employment Opportunity Commission (EEOC) and

the U.S. Department of Justice. In this report, the

Commission examines how well the U.S. Equal

Employment Opportunity Commission is fulfilling

its mandate to implement and enforce the ADA's

nondiscrimination prohibitions in employment

under title I of the act. A companion report evaluates the title II, subtitle A, implementation and

enforcement activities of the U.S. Department of

Justice.69 The reports evaluate each agency's

regulations and policy guidance, participation in

litigation, processing of complaints, and provision

of technical assistance."

The Commission previously examined civil

rights protections for individuals with disabilities in a 1983 report, Accommodating the Spectrum of Individual Abilities." The report, issued

7 years before enactment of the ADA, sought to

answer questions about the purpose and content

67 Ringer letter, attachment, p. 1. 68 Berliner letter, p. 2. 69 The report does not include an evaluation of subtitle B of

title II, which pertains to discrimination in transportation,

and it also does not include any of the other ADA titles. 70 The report does not assess the role of State and local fair

employment practices agencies in enforcing title I. The report also does not address the seven other designated Federal agencies having title II responsibilities in areas such as

transportation, agriculture, and education, nor does it

evaluate the Department of Justice's oversight and coordination of the designated Federal agencies for title II. 71 USCCR, Accommodating the Spectrum of Individual

Abilities, Clearinghouse Publication 81 (Washington, DC:

U.S. Government Printing Office, September 1983).

19
of existing civil rights laws and to provide an

analysis of the legal principles on the rights and

obligations arising under such laws. Its primary

focus was reasonable accommodation, and one of

its main aims was to dispel misconceptions about

the high costs of providing reasonable accommodation to individuals with disabilities.72

Eight years after passage of the Americans

with Disabilities Act, many basic issues, such as

who is protected by the act and what employers

or other covered entities are required to do under the act, remain unresolved. In large measure, these issues arise out of inherent ambiguities in the language of the statute that have not

been resolved by the implementing regulations

or the Federal courts. Issues have also arisen as

to how effectively the agencies charged with enforcing the ADA have processed charges of discrimination, and whether their technical assistance, outreach, and education have been successful in informing covered entities, the dis72 Ibid., pp. 2-3.

8

ability community, and the public at large as to

rights and responsibilities under the act. Furthermore, broader issues exist, including

whether the act has been successful in opening

up opportunities for persons with disabilities

and what has been the cost of compliance. These

issues, and others that emerged as important

during the course of the Commission's study, are

examined in this report.

In preparing the report, Commission staff did

a literature review and sought input from the disability community, disability experts, legal experts, and representatives of employers and State

and local governments. Staff also analyzed and

assessed numerous documents obtained from the

Equal Employment Opportunity Commission and

interviewed Equal Employment Opportunity

Commission staff and officials. In addition, the

Commission analyzed policy and complaint data

from the agency.

20
2 Background

A comprehensive evaluation and assessment

of the U.S. Equal Employment Opportunity

Commission's implementation, compliance, and

enforcement of title I of the Americans with Disabilities Act of 1990 requires an understanding

of the context within which this agency operates.

Essential to this understanding is broad knowledge of the characteristics and circumstances of

people with disabilities, the people whom the

law was designed to protect. Other important

components of this understanding are knowledge

of how the ADA fits into civil rights laws protecting people with disabilities, as well as disability policy in general, and of the history

leading up to the passage of the ADA, including

congressional intent in passing the law.

Statistical Profile of the

Disability Community

A look at the disability community underscores the ADA's importance as a civil rights

statute. The ADA potentially affords civil rights

protections to more than one-fifth of the American population, and to a segment of the population that is disproportionately disadvantaged.1

I Much of the data used to describe the characteristics of the

population of individuals with disabilities come from the

Survey of Income and Program Participation (SIPP) conducted by the U.S. Bureau of the Census. However, the

definitions of "disability" and "severe disability" used by the

SIPP are not precisely the same as the ADA definition of

disability. According to the Bureau of the Census, "The term

`disability' can be defined narrowly or broadly depending on

the interest of the analyst." See U.S. Department of Commerce, Bureau of the Census, "Americans with Disabilities:

1991-92," Current Population Reports: Household Economic

Studies, P70-33, by John M. McNeil, December 1993, p. 1

(hereafter cited as Census, "Americans with Disabilities").

9

BEST COPY AVAILABLE

Numbers of People with Disabilities

The ADA was designed to provide equality of

opportunity to qualified individuals with disabilities. Because the ADA requires the determination

as to whether an individual has a disability to be

made on a case-by-case basis, it is not possible to

know with precision the number of people protected by the act. However, it is certain that the

number of persons protected under the ADA is in

the tens of millions and growing rapidly.

In 1990, when the ADA was enacted, Congress

relied on statistics indicating that 43 million

Americans reported having disabilities.2 These

Americans came from all walks of life: every race,

According to the National Institute on Disability and Rehabilitation Research, "the variety of statutory authorities for

the collection of public data sets, and an inconsistently applied definition of disability have resulted in fragmented,

incomplete, and inconsistent data sets about individuals."

National Institute on Disability and Rehabilitation Research, Chartbook on Disability in the United States, 1996,

by Lewis E. Kraus, et al., p. i. The National Council on Disability stated, "Lack of detailed and current data about people with disabilities remains an obstacle to effective policy

development." National Council on Disability, Achieving

Independence: The Challenge for the 21st Century: A Decade

of Progress in Disability Policy, Setting an Agenda for the

Future (Washington, DC: National Council on Disability,

1996), p. 26 (hereafter cited as NCD, Achieving Independence). Further, data currently used to measure disability are

not always collected for that purpose. Methodologies differ

among data sets and results often are not comparable. National Council on Disability, Study on the Financing of Assistive Technology Devices and Services for Individuals with

Disabilities: A Report to the President and the Congress of

the United States (Washington, DC: National Council on

Disability, 1995), p. 22 (hereafter cited as NCD, Study on the

Financing of Assistive Technology Devices). Nonetheless,

researchers must rely on the data currently available.

2 42 U.S.C. § 12101(a)(1) (1994).

21
color, and ethnicity; both men and women; all

ages; and all socioeconomic classes. Their disabilities ranged from minor to severe, including both

mental and physical disabilities. The ADA was

targeted toward persons in this group, although

every person who reports having a "disability"

may not be protected by the ADA.3

By 1995 the number of Americans reporting

disabilities had grown by 25 percent, to 54 million Americans, or almost 21 percent of the

population. These persons reported that they

had disabilities that limited their ability to perform functional activities, such as lifting and

carrying objects, walking, using stairs, keeping

track of money and bills, dressing, bathing, seeing, speaking, hearing, etc. Of these persons, 26

million (almost 10 percent of the population) reported their disabilities as "severe."4 A severe

disability includes the use of a wheelchair, longterm use of a cane or walker, inability to work at

a job or do housework, or having certain conditions, such as a developmental disability or Alzheimer's disease.5

Critics of the ADA maintain that the number

of people with "true" disabilities is actually much

smaller than the 43 million figure relied on by

Congress in passing the ADA or the 26 million

figure representing the number of people with

severe disabilities. One author charged that

campaigners for the ADA exaggerated the number of people with disabilities for political reasons to ensure passage of the law.6 He maintains

that the number of people who are deaf, blind, or

3 Disability is defined in the ADA as "(A) a physical or mental impairment that substantially limits one or more of the

major life activities of such individual; (B) a record of such

impairment; or (C) being regarding as having such an impairment." 42 U.S.C. § 12102(2) (1994).

4 Census, "Americans with Disabilities," p. 1. Data reported

are from the 1994-1995 Survey of Income and Program

Participation.

5 Ibid.

6 Walter Olson, The Excuse Factory: How Employment Law

is Paralyzing the American Workplace (New York: Free

Press, 1997), p. 97. According to this author: "To reach the

43 million figure, advocates simply counted everyone over

the age of 65 as disabled. They also roped in sufferers from

health conditions like diabetes, cancer, epilepsy, and HIV

infection even if those conditions caused no current debilitation, were controllable or indeed curable by medication, and

were 'invisible' to job interviewers or other suspect classes.

In short, they could just as well have picked a figure of 4

million or 143 million." Ibid.

10

in wheelchairsthe people, according to him,

government policy traditionally has focused on

is a much smaller number, less than 3 million.?

However, the ADA adopted a broad definition of

disability,8 which clearly includes more than just

people who are deaf, blind, or in wheelchairs.

Thus, the number of people Congress intended

the law to protect is much higher than 3 million

and probably above 26 million, the number of

people with "severe" disabilities.

TABLE 2.1

Percent Disabled, by Age

Any

Age in years disability

0 to 2 2.6%

3 to 5 5.2

6 to 14 12.7

15 to 21 12.1

22 to 44 14.9

45 to 54 24.5

55 to 64 36.3

65 to 79 47.3

80 or more 71.5

Severe

disability

0.0 %

0.0

1.9

3.2

6.4

11.5

21.9

27.8

53.5

Source: Census, "Americans with Disabilities," p. 2, figure 1.

Data are from 1994-1995.

Socioeconomic Characteristics

Data on persons reporting disabilities reveal

that they are a very diverse group. A commonality, however, is that persons with disabilities are

disproportionately disadvantaged compared to

nondisabled persons: a high percentage of persons with disabilities are elderly, members of

minority groups, have low levels of education,

have low income, and live in povertygroups

that traditionally have had limited opportunities. Furthermore, persons with disabilities rely

heavily on support from Federal programs.

Thus, the ADA targets its protections towards a

disadvantaged and needy population. The

promise of the ADA to open employment and

other opportunities for full participation in the

American economy and society to persons with

7 Ibid.

8 See pp. 24-25 below for the definition of disability adopted

by the ADA and chap. 4 for further discussion of ADA's definition of disability.

22
TABLE 2.2

Percent Disabled (Ages 15 to 64), by Race and Hispanic Origin

Any Nonsevere Severe

Race disability disability disability White 17.7 % 7.4 `)/0 10.3 %

Black 20.8 12.7 8.1

American Indian, Eskimo, Aleut 26.9 11.7 15.2

Asian and Pacific Islander 9.6 4.5 5.1

Hispanic origin (of any race) 16.9 9.1 7.8

Source: Census, "Disability."

disabilities holds forth the hope that, with full

participation, persons with disabilities will

achieve improved living circumstances and lower

reliance on Federal programs.

Age, Race/Ethnicity, and Gender

The disability community crosses the boundaries of age, sex, race, and national origin. For example, disability is not limited to persons of certain ages, although the proportion of persons

having a disability does rise with age. As shown in

table 2.1, almost 13 percent of children aged 6 to

14 years have disabilities, and almost 13 percent

of young adults (15 to 21 years old) have disabilities. Almost 15 percent of persons aged 22 to 44

years have disabilities. The percentage of people

with disabilities rises to 24.5 percent for persons

aged 45 to 54 years and almost half (47.3 percent)

of persons aged 55 to 64 have a disability. The

largest percentage of persons with disabilities is

in the age category of 80 and above: 71.5 percent

of persons 80 and older.9 Thus, as we age we are

more likely to become a part of the disability

community.

Recent data suggest that the prevalence of

disability is increasing. Between 1970 and 1981;

the proportion of the population with disabilities

that limited their activities to some extent grew

from 11.7 to 14.4 percent. By 1994 the percentage of persons reporting activity limitation had

risen to 15.0 percent.19 One reason for this in9 Census, "Americans with Disabilities," p. 2, figure 1. Data

are from 1994-1995.

10 U.S. Department of Education (DOEd), Office of Special

and Rehabilitative Services (OSERS), National Institute on

Disability and Rehabilitation Services (NIDRS), Disability

11

crease is that the disability rate of young adults

has increased in the 1990s. In 1990 the proportion of adults aged 18 to 44 with activity limitation was 8.7 and 8.9 percent for men and women,

respectively. By 1994 the proportion of young

adults with activity limitation had risen to 10.2

percent for men and 10.3 percent for women."

As shown in table 2.2, disabilities are found

among persons of all races and national origins.

However, the disability rate and the proportion

of persons requiring assistance to accomplish

daily activities differs by race, partly because of

differences in age distributions among these

groups.12 Data from 1991 to 1992 show that,

Statistics Abstract: Trends in Disability Rates in the United

States, 1970-1999, no. 17, by H. Stephen Kaye et al.

(Washington, DC: U.S. Department of Education, November

1996), p. 1 (hereafter cited as NIDRS, Trends in Disability

Rates in the U.S.). Data reported are from the National

Health Interview Survey of 1970, 1981, and 1994, conducted

by the U.S. Bureau of the Census for the National Center on

Health Statistics.

11 Ibid., p. 4. 12 DOEd, OSERS, NIDRS, Disability Statistics Abstract:

Need for Assistance in the Activities of Daily Living, no. 18,

by Jae Kennedy et al. (Washington, DC: U.S. Department of

Education, June 1997), p. 2 (hereafter cited as NIDRS, Need

for Assistance in the Activities of Daily Living). The age distribution is not equal among the race and ethnicity categories (and disability is more likely with age). For example,

14.7.percent of the white population are ages 65 and above,

compared to 5.6 percent of the Hispanic population; 8.5 percent of the black population; 6.7 percent of the American

Indian, Eskimo, and Aleut population; and 6.8 percent of the

Asian and Pacific Islander population. Derived from U.S.

Bureau of the Census, Statistical Abstract of the United

States: 1996, 116th edition (Washington, DC: U.S. Government Printing Office, 1996), table 23 (hereafter cited as

Census, 1996 Statistical Abstract).

3
among persons ages 15 to 64, the disability rates

for whites, blacks, and Hispanics, respectively,

are 17.7 percent, 20.8 percent, and 16.9 percent.13 The percentage of persons from those

groups requiring personal assistance is 1.9 percent, 2.8 percent, 1.3 percent, respectively.14

Asian and Pacific Islander Americans have the

least prevalence of disability, with only 9.6 percent having a disability. American Indians, Eskimos, and Aleuts have the highest disability

rate at 26.9 percent.15 Approximately 0.8 percent

of persons from these minority groups require

personal assistance.16

Education

Persons with disabilities, on average, have

less education than the population as a whole.

Discrimination or limited opportunities may

have resulted in lower levels of educational

achievement for persons With disabilities. The

National Center for Education Statistics has

measured the educational attainment of persons

with various levels of disability, including disabilities that cause persons to be unable to work

and disabilities that cause persons to be limited

in the types of work they can perform. An estimated 45.2 percent of those who are unable to

work have less than a high school education. For

those who work full-time but are limited in the

type of work they can do, 18.1 percent have less

than 12 years of education, compared to 11.1

percent of persons with no work disability who

work full time.17

Persons with disabilities have low high school

graduation rates, and many of the students with

13 U.S. Department of Commerce, Bureau of the Census,

"Disability," by John McNeil, accessed on Sept. 11, 1997, at

http://www.census.gov/population/www/popprofile/disabil.html (hereafter cited as Census, "Disability").

These data are based on 1991-1992 Survey of Income and

Program Participation data.

14 NIDRS, Need for Assistance in the Activities of Daily Living, table 3. Data reported are for 1990-1991.

16 Census, "Disability."

16 NIDRS, Need for Assistance in the Activities of Daily Living, table 3. This number represents the percentage of persons from all races other than white, black, and Hispanic.

17 DOEd, OSERS, NIDRS, Disability Statistics Report: Income

and Program Participation of People with Work Disabilities,

no. 9, by Mitchell P. LaPlante et al. (Washington, DC: U.S.

Department of Education, September 1996) table 1 (hereafter

cited as NIDRS, Income and Program Participation).

12

BEST COPY AVAILABLE

disabilities who do graduate do not continue

their education at postsecondary institutions.

Persons with disabilities account for 23 percent

of adults aged 25 to 64 who have not completed

high schoo1.18 Only 6.3 percent of all students

enrolled in undergraduate postsecondary institutions in the school year 1992-1993 had a disability. Of these students, 46.3 percent were attending school full time (compared to 52.9 percent of nondisabled students).'9

Labor Force Status

Persons with disabilities are less likely to be

employed than persons without disabilities.20

This may be the result of discrimination, lower educational attainment, lack of training, or a

combination of barriers arising from their disabilities. The overall labor force participation

rate for persons with disabilities is significantly

lower than that for nondisabled persons. In

1994, the labor force participation rate for persons with disabilities was 51.8 percent; for nondisabled persons, it was 83.0 percent.21 Thus,

approximately one-half of persons with disabilities were not working, compared to less than

one-fifth of nondisabled persons.

Data from the Survey of Income and Program

Participation indicate that employment rates

vary considerably across types of disabilities. In

1990 only 18 percent of individuals with mental

retardation or developmental disabilities and 23

percent of individuals with mental illness were

working. However, almost one-half of people

18 U.S. Department of Commerce, Bureau of the Census,

"Americans with Disabilities," Statistical Brief, January 1994.

18 DOEd, National Center for Education Statistics, The Digest of Education Statistics 1996, NCES 96-133, by Thomas

D. Snyder (Washington, DC: U.S. Government Printing

Office, 1996), table 206 (hereafter cited as NCES, 1996 Digest). These data are based on the 1992-93 National Postsecondary Student Aid Study, conducted by the National

Center for Education Statistics. Disabled students are defined as "those who reported that they had one or more of

the following conditions: a specific learning disability, a

visual handicap, hard of hearing, deafness, a speech disability, an orthopedic handicap, or a health impairment." Ibid.

20 Census, "Americans with Disabilities," p. 3.

21 DOEd, OSERS, NIDRS, Disability Statistics Report:

Trends in Labor Force Participation Among Persons with

Disabilities, 1983-1994, no. 10, by Laura Turpin et al.

(Washington, DC: U.S. Department of Education, April

1997), table 1, pp. 22-23 (hereafter cited as NIDRS, Trends

in Labor Force Participation).

24
with visual impairments and bad backs were

working, and two-thirds of people with hearing

impairments held jobs.22

Disability and gender also interact, resulting

in different labor force participation rates for

men and women with disabilities. Among persons with nonsevere disabilities, 85.1 percent of

men and 68.4 percent of women are in the labor

force (compared to 89.8 percent and 74.5 percent

of nondisabled men and women, respectively).23

These numbers reflect the national trends of decreased male labor force participation and increased female labor force participation,24 although the labor force participation rate of persons with disabilities experienced more fluctuation.25 Such differences were further differentiated by age.26

Income

Because persons with disabilities are less

likely to work full time and attain high levels of

education compared to nondisabled persons, they

generally have lower incomes than their nondis22 Paula Mergenhagen, "Enabling Disabled Workers," Anwrican Demographics (July 1997), p. 38, citing research by Michele Adler, U.S. Department of Health and Human Resources.

23 Census, "Americans with Disabilities," p. 3.

24 NIDRS, Trends in Labor Force Participation, table 2, pp.

24-25. In 1994, 86.9 percent of all men were in the labor force,

compared to 70.6 percent of all women. These numbers repre- sent an overall decrease of 1.3 percent for men and an increase of 10.0 percent for women between 1983 and 1994.

Overall, the labor force participation of all persons aged 18 to 64 in the United States increased during the 1980s, but re- mained relatively stable during the early 1990s. Ibid.

25 Ibid., p. 4. For example, the labor force participation rate for

persons with disabilities increased by 6.4 percent from 1983 to

1994, while for persons without disabilities it increased by

only 4.2 percent. Further, nondisabled men experienced a decline in 0.6 percent, compared to a 4.1 percent decline in

labor force participation for men with disabilities. Women

with and without disabilities experienced increases of 9.7 percent and 21.7 percent, respectively. Ibid., table 2, pp. 24-25.

26 Ibid., table 2, pp. 24-25. Among all women, those 18 to 44

years in age experienced only a 6.1 percent increase in labor

force participation from 1983 to 1994 compared to increases

of 17.4 percent and 17.0 percent for women ages 45 to 54

and ages 55 to 64, respectively. This can be compared to

increases of 5.5 percent, 21.3 percent, and 39.0 percent for

the three age groups (18-44, 45-54, and 55-64), respectively, among women with disabilities over the period, and

increases of 6.7 percent, 17.4 percent and 13.0, respectively,

for the three age groups, among women without disabilities.

Similar age differences in labor force participation were experienced by men.

13

abled counterparts. The severity of a disability

also affects earnings potential. The median

monthly earnings for nondisabled men is $2,190.

Men with nonsevere disabilities earn a median

monthly income of $1,857, while the median

monthly income for men with severe disabilities is

$1,262. Nondisabled women's median monthly

income is $1,470; for women with nonsevere disabilities, median monthly income is $1,200' and

for women with severe disabilities, is $1,000.27

Participation in Government Programs

Low income and the inability to work translate into the need for support from the Federal

Government and other sources. Among the 13

million persons who receive means-tested assistance (cash, food, or rent), 50.6 percent are persons with disabilities.28 The majority of these

persons receive assistance in the form of social

security disability insurance (SSDI), supplemental security income (SSI), medicare, and medicaid.29 An estimated 4.6 million people receive

SSDI and SSI. Of these persons, 95 percent of

the male recipients and 87 percent of the female

recipients are persons with disabilities.30 Other

forms of assistance received by persons with dis- abilities include veterans' benefits, workers'

compensation, social security retirement and

survivors' benefits (OASI), aid to families with

dependent children (AFDC), and food stamps.31

Individuals with Disabilities as a Minority Group

The extent to which individuals with disabilities face prejudice and discrimination in the

workplace or other aspects of their lives has

been a subject of much debate. As noted in the

previous chapter, in passing the ADA, Congress

found 'that individuals with disabilities faced

discrimination in "such critical areas, as employment, housing, public accommodations, edu27 Census, "Americans with Disabilities," p. 4.

28 Ibid.

29 NIDRS, Income and Program Participation, tables 1 and

2. Data reported are for 1990.

30 Ibid., p. 4. Data reported are for 1990. Persons with disabilities include those who reported that they have a work

disability that either limits the kind or amount of work they

are able to perform or renders them unable to work.

31 Ibid., table 2. Data reported are for 1990.
cation, transportation, communication, recreation, institutionalization, health services, voting,

and access to public services"32 and that the discrimination took various forms, including

"outright intentional exclusion, the discriminatory effects of architectural, transportation, and

communication barriers, overprotective rules

and policies, failure to make modifications to

existing facilities and practices, exclusionary

qualification standards and criteria, segregation,

and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."33

Some argue that the prejudice and discrimination experienced by people with disabilities is

similar to those faced by minorities such as African Americans and Hispanics. For instance, one

person with a disability, blindness, expressed his

conviction that a widespread fear of people with

disabilities pervades society, and that this fear

colors interactions between people without disabilities and people with disabilities in all aspects of life. He described his personal experiences of asking people on the street to give him

directions and having some people pass him by,

pretending not to hear him, and even quickening

their pace to avoid him. He contrasted that reaction to the paternalistic reaction of others, who

became "gushing," took him by the hand, and

brought him to his destination. He also mentioned the difficulty he experiences in getting

taxicabs to stop for him, a problem that afflicts a

large number of people with disabilities.34

Thus, many people with disabilities see

themselves as members of an oppressed minority

group. One historian of the disability rights

movement began his chronicle of the civil rights

movement for people with disabilities by observing that "Pity oppresses." He described the

growing pride many people with disabilities

have come to take in being identified as disabled.

He wrote, "like blacks, women, and gays before

them, they are challenging the way America

32 42 U.S.C. § 12101(a)(3) (1994).

" Id. § 12101(a)(5) (1994).

34 Jim Dickson, Director of Community Relations, National

Organization on Disability, interview in Washington, DC,

Mar. 4,1998, pp. 3-4 (hereafter cited as Dickson interview).

14

looks at them"35 and that "millions of disabled

people were getting angry, . . . and were coming

to see themselves as a class, united in discrimination and empowered by law."36 However, others suggest that the notion that people with a

disability constitute a minority group, similar to

other minorities, does not reflect reality. For instance, one author has pointed out that polls

show that fewer than one-half of people with

disabilities regard themselves as members of "a

minority group in the same sense as blacks and

Hispanics."37

Scholars have pointed to important distinctions between people with disabilities and African Americans and other minority groups. For

instance, "unlike black Americans, the majority

of persons with disabilities were not subject to

discrimination in access to education or in employment during their childhood years. . . . Another important difference between the black

and disabled minorities is the extreme heterogeneity of prejudice towards persons with different

disabilities."38

Scholarly research suggests that prejudice,

along with other factors, such as misinformation,

is one of the sources of the loer employment rates and wages of people with disabilities.

Studies of public attitudes towards people with

disabilities indicate that these' attitudes vary

considerably by the type of disability, with very

negative attitudes attaching to persons with

epilepsy, mental and emotional illnesses, and

alcohol and drug addiction.39 There appears to be

a correlation between how negatively the public

views particular disabilities and the wage and

employment differentials suffered by people with

these disabilities.40 A number of other factors,

35 Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Times Books,

1993), pp. 13-14.

36 Ibid., p. 332.

37 Olson, The Excuse Factory, pp. 94-95.

38 William G. Johnson and Marjorie Baldwin, "The Americans With Disabilities Act: Will It Make a Difference?" Policy Studies Journal, vol. 21 (1993), p. 779.

39 See Marjorie L. Baldwin, "Can the ADA Achieve Its Employment Goals?" Annals of the American Academy of Physical and Social Science, vol. 549 (January 1997), p. 42.

40 Ibid., pp. 42-43. Another researcher contends that prejudice is more directed towards people who were born with a

disability than toward people who became disabled as

26
including difficulty in evaluating the likely productivity of applicants with disabilities, reluctance to bear the costs of accommodation and

health insurance, and fear for worker safety,

also enter into employers' decisions on hiring

persons with disabilities.41

Federal Civil Rights Statutes from

1964 to 1988

Although the ADA was not enacted until

1990, several Federal statutes established the

framework for the ADA's provisions against discrimination on the basis of disability. In particular, the Civil Rights Act of 196442 served as a

model for future civil rights laws, including the

ADA.43 Title VII of the Civil Rights Act of 1964

identified five protected classes (race, color, national origin, gender, and religion) and made it

clear that it is unlawful to discriminate based on

personal characteristics such as these in employment.44

In the late 1960s, a number of Federal laws

addressing the civil rights of persons with disabilities were enacted. One of the first laws addressing the needs of persons with disabilities

was the Architectural Barriers Act of 1968.45

This law required that certain federally financed

buildings be accessible to persons with disabilities. The Urban Mass Transit Amendments Act

of 197046 required that mass transit facilities

and services be accessible to the elderly and per- sons with disabilities.

The Rehabilitation Act of 197347 opened more

doors for Americans with disabilities. Sections

adults. See Johnson, "The Future of Disability Policy," p. 165.

41 Baldwin, "Can the ADA Achieve Its Employment Goals?"

p. 47.

42 Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in

scattered sections of 42 U.S.C.).

43 National Council on Disability, Equality of Opportunity: The

Making of the Americans with Disabilities Act (Washington,

DC: National Council on Disability, July 26, 1997), pp. 20-21

(hereafter cited as NCD, Equality of Opportunity). . 44 Pub. L. No. 88-352 § 703, 78 Stat. 241, 255-57 (codified as amended at 42 U.S.C. § 20003-2 (1994)).

45 Pub. L. No. 90-480, 82 Stat. 718 (codified at 42 U.S.C. §§

4151-4157 (1994)).

46 Pub. L. No. 91-453, 84 Stat. 962 (codified as amended in

scattered sections of 49 U.S.C. (1994)).

47 Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at

29 U.S.C. §§ 701-796i (1994)).

15

BEST COPY AVAILABLE

501 and 503 required the development of affirmative action programs for the hiring of persons with disabilities by Federal agencies and by

parties contracting with the Federal Government, respectively. Section 502 established the

Architectural and Transportation Barriers Compliance Board to ensure compliance with the Architectural Barriers Act of 1968. Section 504

prohibited entities receiving Federal financial

assistance from discriminating on the basis of handicap.

The Education for All Handicapped Children

Act of 197548 (renamed the Individuals with Disabilities Education Act in 1990)49 required States

receiving Federal financial assistance to provide

a "free appropriate public education" to all children with disabilities. Such instruction was to be

provided in the least restrictive setting possible.50 In response to concern about the improper

treatment of persons with mental retardation

residing in institutions, the coordination of

services and funding for persons with long-term

disabilities was provided for by the Developmentally Disabled Assistance and Bill of Rights Act

of 1975.51

48 Pub. L. No. 94-142, 89 Stat. 773 (codified as amended at

20 U.S.C. §§ 1400-1485 (1994)). The Education for All

Handicapped Children Act of 1975 expanded the Education

of the Handicapped Act of 1970 (Pub. L. No. 91-230, §§ 601-

662, 84 Stat. 175 (codified as amended at 20 U.S.C. §§ 1400-

1485 (1994))). The Education of the Handicapped Act

Amendments of 1983 (Pub. L. No. 98-199, 97 Stat. 1357

(codified at 20 U.S.C. §§ 1400-1461 (1994)) supported improved programs for persons with disabilities, parents, and

special education teachers. Donald D. Hammill, "A Brief

Look at the Learning Disabilities Movement in the United

States," Journal of Learning Disabilities, vol. 26, no. 5 (May

1993), p. 298 (hereafter cited as Hammill, "A Brief Look at

the Learning Disabilities Movement").

49 Pub. L. No. 101-476, 104 Stat. 1103 (codified as amended at

20 U.S.C. §§ 1400-1485 (1994)). The Education of the Handicapped Act Amendments of 1990 (Pub. L. No. 101-476, §

901(a), 104 Stat. 1142 (codified as amended at 20 U.S.C. §§

1400-1485 (1994))) changed the name of the Education for All

Handicapped Children Act to the Individuals with Disabilities

Education Act (IDEA). The amendments also replaced references to "handicapped children" with "children with disabilities." Id. at § 901(b); see also Hammill, "A Brief Look at the

Learning Disabilities Movement," p. 298.

5° See Pub. L. No. 105-17, § 612(a)(5)(A) (1994 Supp. III); 34

C.F.R. § 300.550(B)(1) (1997); 34 C.F.R. § 104.34(a) (1997).

51 Pub. L. No. 94-103, 89 Stat. 486 (codified as amended in

scattered sections of 42 U.S.C.).
In the 1970s, a disability rights movement

began to solidify.52 With examples set by activists in the late 1960s and early 1970s, particularly the Physically Disabled Students' Program

at the University of California at Berkeley,53

persons with disabilities recognized the civil

rights implications of issues they faced daily. In

1977 the American Coalition of Citizens with

Disabilities staged sit-ins and demonstrations to

protest delay in issuing regulations implementing section 504 of the Rehabilitation Act.54 Although the law had been enacted in 1973,

changes in the presidential administration and

concerns over costs and public reaction led to a

delay in issuing the regulations.55 Protesters remained at the Department of Health, Education,

and Welfare regional office in San Francisco for

25 days demanding that the regulations be

signed.56 Section 504 regulations were issued

soon thereafter.57

Also in 1977, the White House Conference on

Handicapped Individuals was held. One of the

conference recommendations was to establish an

agency to coordinate Federal programs for persons with disabilities.58 The following year the

Rehabilitation, Comprehensive Services, and

52 Although some have emphasized the role of the "disability

rights movement" in events that followed, others maintain

that no such movement ever existed. For instance, one

author argues that "many of the early demonstrations protesting ostensible government indifference were actually

orchestrated from within the government itself. . . [I]n

1973, when Congress enacted the first major federal initiative on [disability] (known as Section 504), it was under no

grass-roots pressure from any organized disabled rights

movement or any other source" Olson, The Excuse Factory,

pp. 98-99.

a Shapiro, No Pity, pp. 50-53. The Physically Disabled Students' Program (PDSP) provided counseling and assistance

for students with disabilities. The PDSP, and similar programs at other colleges and universities, encouraged independent living and self-sufficiency. Shapiro, No Pity, pp. 50-

53.

64 NCD, Equality of Opportunity, p. 13.

66 Shapiro, No Pity, pp. 64-66. See also NCD, Equality of

Opportunity, pp. 16-19.

56 NCD, Equality of Opportunity, p. 19.

57 34 C.F.R. § 104 (1997).

58 National Council on the Handicapped, On the Threshold

of Independence: A Report to the President and to the Congress (Washington, DC: National Council on the Handicapped, January 1988), p. vii (hereafter cited as NCD, On

the Threshold of Independence).

16

Developmental Disabilities Amendments of

197859 established the National Council on the

Handicapped as an advisory board within the

U.S. Department of Education. Its role was to

review and evaluate on a continuing basis all

Federal policies, programs, and activities for

persons with disabilities.60 In 1984 the National

Council on the Handicapped (later renamed the

National Council on Disability61) was established

as an independent Federal agency.62 Other Federal laws to assist persons with

disabilities include the Civil Rights of Institutionalized Persons Act of 1980.63 This law

granted the U.S. Department of Justice the

authority to sue State and local authorities operating an institution where there is a "pattern

or practice" of flagrant violations of constitutional rights. The Telecommunications for the

Disabled Act of 198264 required certain workplace and emergency telephones to be compatible with hearing aids. The Voting Accessibility

for the Elderly and Handicapped Act of 198465

provided for physically accessible polling sites

for Federal elections.

The Handicapped Children's Protection Act of

198666 ensured prevailing parents the right to

receive an award of attorneys' fees and related

costs for cases brought under the Act equivalent

to the community compensation standards for

similar cases. The Protection and Advocacy for

Mentally Ill Individuals Act of 198667 authorized

advocacy services for people with mental illness

after their discharge from institutions. Also en69 Pub. L. No. 95-602, 92 Stat. 2955 (codified

29 U.S.C. §§ 701-794 (1994)).

60 Id. at § 400.

61 Pub. L. No. 100-630, § 205, 102 Stat. 3289,

as amended at 29 U.S.C. § 780 (1994)).

62 Pub. L. No. 98-221, § 141, 98 Stat. 17, 26

U.S.C. §§ 780 (1994)).

63 Pub. L. No. 96-247, 94 Stat. 349 (codified

42 U.S.C. §§1997-1997j (1994)).

64 Pub. L. No. 97-410, 96 Stat. 2043 (codified

47 U.S.C. § 610 (1994)).

65 Pub. L. No. 98-435, 98 Stat. 1678 (codified

42 U.S.C. §§ 1973ee-1973ee-6 (1994)).

66 Pub. L. No. 99-372, 100 Stat. 796 (codified

20 U.S.C. § 1415 (1994)).

67 Pub. L. No. 99-319, 100 Stat. 478 (codified

42 U.S.C. §§ 1001-10851 (1994)).

28

as amended at

3310 (codified

(codified at 29

as amended at

as amended at

as amended at

as amended at

as amended at
acted in 1986, the Air Carrier Access Act68 required accessibility to airlines for persons with

disabilities. The Hearing Aid Compatibility Act

of 198869 required newly manufactured telephones to be compatible with telecoil-equipped

hearing aids. The Fair Housing Amendments

Act of 198870 extended the Fair Housing Act of

196871 (which prohibited housing discrimination)

to persons with disabilities and to all entities not

receiving Federal funds.

Laws such as these laid the groundwork and

served as a model for the ADA. In particular, the

Civil Rights Act of 1964, the Fair Housing Act of

1968, the Education Amendments of 197272

(which prohibited discrimination on the basis of

sex in federally funded programs), and the Rehabilitation Act of 1973 set the standard for the

ADA. Using knowledge of past civil rights legislation and efforts, the ADA would become a

"state-of-the-art civil rights law ."73

Legislative History and Final Provisions of the ADA

Overview of Legislative History

In its January 1986 report, Toward Independence: An Assessment of Federal Laws and

Programs Affecting Persons with Disabilities

With Legislative Recommendations, the National

Council on Disability (NCD) argued strongly for

the creation of civil rights protections for people with disabilities. The report's primary recommendation was the advancement of "equal op- portunity laws" for people with disabilities. NCD

specifically proposed that Congress "enact a

comprehensiye law requiring equal opportunity

for individuals with disabilities, with broad coverage and setting clear, consistent, and enforce68 Pub. L. No. 99-435, 100 Stat. 1080 (repealed July 5, 1994).

69 Pub. L. No. 100-394, 102 Stat. 976 (codified as amended

at 47 U.S.C. § 610 (1994)).

70 Pub. L. No. 100-430. 102 Stat. 1619 (codified as amended

at 42 U.S.C. §§ 3601-3631 (1994)).

71 Pub. L. No. 90-284, §§ 801-901, 82 Stat. 73 (codified as amended at 42 U.S.C. §§ 3601-3631(1994)).

72 Pub. L. No. 92-318, §§ 901-907 86 Stat. 235(codified as amended at 20 U.S.C. §§ 1681-1688 (1994)).

79 Statement by John Wodatch in U.S. Commission on Civil

Rights, "Briefing on the Americans with Disabilities Act"

(Washington, DC: U.S. Commission on Civil Rights), May 6, 1994, p. 12.

17

able standards prohibiting discrimination on the

basis of handicap."74

With this language, NCD introduced the first

statement of the Federal Government advocating the new civil rights law for people with disabilities that would become the ADA. Nonetheless, as NCD observed in its July 1997 report, Equality of Opportunity: The Making of the

Americans with Disabilities Act, "Despite the

tremendous amount of respect NCD [had]

gained, however, Congress took little actiona

great frustration to NCD members. "75 Former

NCD Executive Director Lex Friedan is quoted

in the report as stating:

Although Congress pointed to Toward Independence as "the Manifesto, the Declaration of Independence

for people with disabilities". . .NCD members and

staff. . .were frustrated most by the lack of attention

to their number-one recommendation, an equal opportunity law. . . . After waiting nearly a year, they began discussing what NCD could do. They concluded

that the only way to overcome legislative inertia was

for NCD to take the lead."

By February 1987, disability rights attorney Robert Burgdorf had completed a draft of a legislative proposal for NCD. This draft legislative proposal was in the form of an equal opportunity

law along the lines called for in NCD's report, Toward Independence." For example, Burgdorf specified that the law should prohibit discrimination by the Federal Government, recipients of financial assistance, Federal contractors and

subcontractors, employers, housing providers, places of public accommodation, persons and

agencies of interstate commerce, transportation

providers, insurance providers, and State and

local government." In addition, Burgdorfs draft

legislative proposal required reasonable accom74 National Council on the Handicapped, Toward Independ- ence: A Report to the President and to the Congress

(Washington, DC: National Council on the Handicapped,

January 1986) (hereafter cited as NCD, Toward Independ- ence).

75 NCD, Equality of Opportunity, p. 68.

76 Ibid., p. 61.

77 Ibid., app. C, Chronology: The ADA's Path to Congress, p. 205.

78 Ibid., p. 62.
modation and affirmative steps to eliminate barriers.79

At its quarterly meeting in May 1987, "NCD

decided to move forward and give official sanction to crafting a legislative proposal, deciding

that a comprehensive law . . . was the best way

to protect disabled persons' rights."80 In November of that year, NCD secured the sponsorship of

Sen. Lowell Weicker,81 as well as the support of

Rep. Tony Coelho.82

On April 29, 1988, Representative Coelho introduced H.R. 4498, the Americans with Disabilities Act of 1988.83 The bill stated as its main

purpose "to establish a clear and comprehensive

prohibition of discrimination on the basis of

handicap."84 The House Education and Labor

Committee report accompanying the final version of the bill 2 years later echoed this language

in stating: "The purpose of the ADA is to provide

a clear and comprehensive national mandate to

end discrimination against individuals with disabilities and to bring individuals with disabilities into the economic and social mainstream of

American life."85 During the 2 years from the

bill's first introduction until its enactment, Congress held many hearings on the Americans with

Disabilities Act.86

In September 1988, Congress began hearings

on the proposed legislation. During hearings in

the fall of 1988 and spring of 1989, the Senate

Labor and Human Resources Committee, the

Labor and Human Resources' Subcommittee on

the Handicapped, and the House of Representatives Subcommittee on Select Education heard

testimony from key figures in the disability

community such as the Chairperson of the National Council on the Handicapped (now known

as the National Council on Disability), the

79 Ibid.

80 Ibid.

81 Ibid., p. 63.

82 Ibid., pp. 63-64.

83 H.R. 4498, 100th Cong. (1988). This bill was identical to

the Senate bill, introduced in the Senate by Sen. Lowell

Weicker (RCT). See S. 2345, 100th Cong. (1988).

84 H.R. 4498, 100th Cong. (1988).

85 H.R. REP. NO. 101-485(11), at 22 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 304.

86 See H.R. REP. No. 101-485(11), at 24-28 (1990), reprinted

in 1990 U.S.C.C.A.N. 303, 306-310.

18

Chairperson of the President's Commission on

the Human Immunodeficiency Virus Epidemic,

the Chairperson of the Task Force on the Rights

and Empowerment of People with Disabilities,

and representatives from the Disability Rights

Education and Defense Fund, the U.S. Chamber

of Commerce, and the National Coalition for

Cancer Survivorship. 87 These congressional

committees also heard testimony from people

with disabilities themselves, including Mary DeSapio, a cancer survivor; Joseph Danowsky, an

attorney who is blind; and Amy Dimsdale, a college graduate with quadriplegia.88 A Senate subcommittee report on the hearings that took place during 1988 and 1989 stated

that the testimony and reports presented to

Congress drew the same fundamental conclusion, namely: "Discrimination still persists in

such critical areas as employment in the private

sector, public accommodations, public services,

transportation, and telecommunications. . . . Current Federal and State laws are inadequate

to address the discrimination faced by people

with disabilities in these critical areas."83

Various committees held further hearings

with testimony from additional key figures in

the fall of 1989.30 The testimony presented at

87 S. REP. No. 101-116, at 4 (1989).

88 Id. at 4.

89 Id. at 6.

9° See H.R. REP. NO. 101-485(11), at 26-27 (1990), reprinted in

1990 U.S. C. C.A.N. 303, 308. The report stated:

"On September 13, 1989, in Washington, D.C., the Subcommittee on Select Education and the Subcommittee on Employment Opportunities heard testimony from: Evan Kemp,

Commissioner, Equal Employment Opportunity Commission; Jay Rochlin, Executive Director, President's Committee on Employment of People with Disabilities; Arlene Mayerson, Directing Attorney, Disability Rights Education and

Defense Fund; Mark Donovan, Manager, Community Employment and Training Programs, Marriott Corporation;

Duane Rasmussen, President, Sell Publishing Company;

Paul Wharen, Project Manager, Thomas P. Harkins, Inc."

"On October 6, 1989, at University Place Conference Center,

Indianapolis, Indiana, the Subcommittee on Select Education heard testimony from: Greg Fehribach, Chairman, Indiana Governor's Council on People with Disabilities and

attorney, Timmons, Ends ley, Chavis, Baker and Lewis;

Barry Chambers, Commissioner, Indiana Department of

Human Services; Deanna Durrett for Joseph Reum, Indiana

Department of Mental Health; Muriel Lee, Governor's Planning Council for Persons with Disabilities; Jack Lewis, Professor of Sociology and Social Work, Anderson University,

Indiana; David Reynolds, Indiana School for the Deaf, Janna

30
these and the earlier 1988 hearings, as well as

the remarks of House members and Senators

themselves, provided persuasive evidence of the

need to create positive change not just in the

lives of people with disabilities but in the way

that society views disability. For example, Sen.

Tom Harkin spoke movingly about his brother's

disability. Sen. Harkin said:

My brother and millions like him are Americans with

disabilities, but they are not disabled. . . . Indeed, by

extension, it follows that the only thing a person in a wheelchair cannot do is walk. . . . The only thing a blind person cannot do is see. . . . There are things

that all of us cannot do. Who among us can play bas- ketball as well as Larry Bird? Who can pitch a base- ball as fast as Orel Hershier? [sic] Who can tell a joke

like Jay Leno?91

Senator Harkin further noted that even outside of the crucial contexts of employment and

education, in everyday life and leisure activities

persons with disabilities may experience enormous segregation that denies them simple participation. He quoted from a National Council on

Disability report summarizing a 1988 Louis

Harris poll:

The survey results dealing with social life and leisure

experiences paint a sobering picture of an isolated

and secluded population of individuals with disabilities. The large majority of people with disabilities do

not go to see movies, do not go to the theaters, do not

go to see musical performances, and do not go to

sports events. A substantial minority of persons with disabilities never go to a restaurant, never go to a grocery store, and never go to a church or synagogue. . . . The extent of nonparticipation of individuals with disabilities in social and recreational activities is alarming.92

In September 1988, Judith Heumann, then of

the World Institute on Disability, testified about

her personal experiences with disability:

When I was 5 my mother proudly pushed my wheel- chair to our local public school, wherg I was promptly

Shishler, law clerk for United States Magistrate John Paul Godich)." Id.

51 135 CONG. REC. 510,711 daily ed. Sept. 7, 1989) (state- ment of Sen. Harkin).

92 135 CONG. REC. S10,712, (daily ed. Sept. 7, 1989) (state- ment of Sen. Harkin).

19

refused admission because the principal ruled that I

was a fire hazard. I was forced to go into home instruction, receiving one hour of education twice a week for 3

Y2 years. My entrance into mainstream society was blocked by discrimination and segregation. Segregation was not only on an institutional level but also acted as

an obstruction to social integration. As a teenager, I could not travel with my friends on the bus because it

was not accessible. At my graduation from high school,

the principal attempted to prevent me from accepting

an award in a ceremony on stage simply because I was

in a wheelchair.93

In October 1989, Congress also heard power- ful testimony from a number of witnesses, including Attorney General Dick Thornburgh, who

stated on behalf of President Bush:

Despite the best efforts of all levels of government and

the private sector and the tireless efforts of concerned

citizens and advocates everywhere, many persons with disabilities in this nation still lead their lives in an intolerable state of isolation and dependence. . . . Over

the last 20 years, civil rights laws protecting disabled

persons have been enacted in piecemeal fashion. Thus,

existing Federal laws are like a patchwork quilt in need

of repair. There are holes in the fabric, serious gaps in

coverage that leave persons with disabilities without

adequate civil rights protections."

As with other civil rights statutes, such as

title VI and title VII of the Civil Rights Act of

1964, Congress invoked its constitutional

authority to regulate commerce as well as its

duty to enforce the equal protection clause of the

14th amendment in establishing its purpose for passing the ADA.95 Segregation and isolation

were two of the principal equal protection related issues testified to by witnesses at the ADA

hearings. Timothy Cook of the National Disability Action Council invoked the spirit of the 14th

93 Hearing on H.R. 2273 Before the House Comm. on Education and Labor and Senate Comm. on Labor and Human

Resources, 100th Cong. 74-75 (1988) (statement of Judith

Heumann, World Institute on Disability), reprinted in H.

REP. NO. 101-485(11), 1 at 28-29 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 311.

54 Hearing on H.R. 2273 Before the Subcomin. on Civil and

Constitutional Rights of the House COMM, on the Judiciary, 101st Cong. 191 (1989) (statement of Dick Thornburgh, Attorney General of the United States), reprinted in H. Rep.

No. 101-485(11), at 32 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 313.

95 42 U.S.C. § 12101 (b)(4) (1994).

31
amendment right to equal protection of the laws

when he testified before Congress that: "As Rosa

Parks taught us, and as the Supreme Court

ruled . . . in Brown v. Board of Education, segregation 'affects the heart and mind in ways that

may never be undone. Separate but equal is inherently unequal'."96 The general rationale for the statute derives

from the concept of equal protection of the laws.

Congressional testimony on the ADA addressed

specific needs for equality of opportunity in such

key areas as employment, education, and public

accommodations and services. For example,

Congress heard a great deal of testimony and

offered numerous statements of its own on the

need for including employment provisions in the

ADA statute. House members and Senators

spoke eloquently before Congress in arguing the

need for strong equal employment opportunity

provisions in the new law.

For example, in September 1989, Sen. Joseph

Biden stated before the Senate that "[t]oo many

disabled persons have been locked out of the

American workplace, excluded from jobs for

which they are more than capable."97 Senator

Lieberman stated:

Two-thirds of Americans with disabilities between the

ages of 16 and 64 are not working; however, 66 percent of working-age persons with disabilities say they

want to work. . . . Fifty percent of adults with disabilities have household incomes of $15,000 or less. Discrimination which prevents people from finishing

school, from finding jobs, and from earning a livable

wage not only hurts the individuals who are discriminated against, it hurts our entire society.98

Debates Over the ADA Bill

In its report on the legislative history of the

ADA, the National Council on Disability observed

that 'during congressional hearings and debate on

the ADA bill, "an ideological fault line emerged

between the interests of the business and disability communities."99 NCD identified six areas of

96 See S. REP. NO. 101-116, at 10 (1989). 97 135 CONG. REC. S10,792 (daily ed. Sept. 7, 1989) (statement of Sen. Biden). 98 135 CONG. REC. S10,795 (daily ed. Sept. 7, 1989) (statement of Sen. Lieberman). 99 NCD, Equality of Opportunity, pp. 130-31.

20

debate influencing members of Congress during

this crucial period.199 NCD observed:

Business groups had a number of overriding concerns.

One was the "vagueness of language" contained in the

ADA. Business lobbyists argued that such phrases as

"undue hardship," "readily achievable," and "readily

accessible," were inadequately defined, and would

therefore invite frivolous law suits. Businesses, they

argued, would not be able to know whether they were

in compliance. A second concern was the potential

cost of accommodations. One proposed solution was to

have government share some of the burden through

tax credits and other mechanisms. Third, numerous

covered entities lobbied to have a more concrete definition of disability, ideally one that listed every covered disability instead of relying on a flexible definition. Fourth, small businesses argued that they

should be exempt from the public accommodations

requirements, or at least be phased in more gradually, because small businesses were exempt from

other civil rights legislation. Fifth, scores of organizations protested the enforcement mechanisms available under the ADA, especially private litigation and

the availability of punitive damages. Sixth, many

business groups proposed that the ADA should preempt all other disability laws, so that there would be

no confusion between different statutes, and no possibility for bringing multiple suits for one violation.'"

These issues became divisive as members of

Congress began introducing amendments to the

original bill to respond to the concerns of the

business community. 102 Despite strong sentiments in favor of the enactment of a new civil

rights law for people with disabilities, the bill

did not pass in 1989. Although Congress achieved

broad consensus among its members in both the

House and the Senate on the need for legislation

affording equal employment opportunity and access to State and local government-provided

services, controversy developed during the hear199 Ibid.

101 Ibid., p. 132. 102 135 CONG. REC S10,715-16 S10,737-38 (daily ed. Sept.

7, 1989) (statements of Sen. Hatch). See also 136 CONG. REC.

H,2421 (daily ed. May 17, 1990) (statement of Rep. Gingrich)

(stating: "This is a bill which will affect, not only Americans

with disabilities, but all Americans. It will affect the entire

American economy, and it is very important that we make it

possible for small businesses to make the transition, that we

want to maximize the ability to keep jobs, and to keep the

economy growing and to have better opportunities for all

Americans." Id.).

32
ing and debate over the ADA bill based on the

division between the disability and business

communities noted in NCD's Equality of Opportunity report. Two broad areas of controversy

emerged as members of Congress sought to meet

the needs of their constituents either in the business or the disability communities. First, some

Congress members expressed concern that the

new legislation would create enormous costs for

employers, particularly small businesses.103 Second, there were concerns that the ADA would result in a major increase in frivolous litigation.104

Costs of ADA Compliance

Some members of Congress believed that the

outlay needed for small businesses to provide

reasonable accommodation would become an

immense drain on their financial resources. For

example, Senator Hatch sponsored two amendments to the bill that favored the needs of small

businesses with respect to the costs of ADA compliance. The first provided an exemption from

the requirements of the act for all employers

with 15 or fewer employees.05 The second was a

tax credit to absorb the costs of offering reasonable accommodation to employees with disabilities. Senator Hatch spoke before Congress in

favor of these provisions in September of 1989.

He stated that:

I have been concerned from the beginning about ensuring that the ability of small business to continue

competing successfully was not compromised by this

bill. . . . If we place unreasonable, suffocating obligations on these businesses, everyone losespersons

with or without disabilities that currently patronize

those businesses and the employees at those businesses who may lose their jobs.106

Senator Hatch noted further in regard to the tax

credit amendment:

My first idea was merely to exempt businesses with

15 or fewer employees, but I felt that some businesses

103 See, e.g., 105 CONG. REC. S10,714-17 (daily ed. Sept. 7,

1989) (statement of Sen. Hatch).

104 See 105 CONG. REC. S10,741 (daily ed. Sept. 7, 1989)

(statement of Sen. Pryor).

105 See 42 U.S.C. § 12111(5)(A) (1994).

106 135 CONG. REC S10,715 (daily ed. Sept. 7, 1989) (state- ment of Sen. Hatch).

21

are so small that we should not be placing this type of

burden upon them. The cost of accommodation might

result in forcing them out of business and losing employment opportunities. . . we should take into consideration the burdens that are going to be placed

upon small businesses. I think the tax credit approach is the. appropriate remedy. The reason it is

appropriate is because the Federal Government is

imposing these obligations. Therefore, I also want the

Federal Government to take some responsibility in

sharing the obligations. . . The fact of the matter is

that the Federal Government should help when it

imposes these kinds of burdens. It is not fair if we do

not do something to try and alleviate those burdens at

least with regard to those who are the most vulnerable businesses in our society.1°7

The controversial issue of costs principally

emanated from concerns over the need to create

"a sensible limit to' the responsibility of providing reasonable accommodations."108 Senate leaders agreed on the employer defense of "undue

hardship" as a mechanism for alleviating the

costs of providing reasonable accommodation.

During the Senate debate, on the bill Senator

Hatch expressed these concerns on "undue hardship" and "reasonable accommodation":

there are some questions in my mind regarding the

practical implications of the requirements of the legislation on certain situations. Specifically, I am

thinking of the employment section of the bill, title I,

and how the standards of "reasonable accommodation" and "undue hardship" would be applied across

the board to the various industries and businesses in

our Nation.'°9

To allay some of these concerns, Senator

Hatch sought to clarify the precise meaning of

the term "undue hardship" by asking Senator

Harkin, one of the sponsors of the Senate bill, a

series of questions. Senat6r Hatch specifically

sought to clarify the extent of employers' obligations in providing reasonable accommodations to

persons with disabilities in the Senate bill, S.

933. Senator Harkin clarified first that the type

of accommodation provided would vary from set107 135 CONG. REC S10,715, S10,738 (daily ed. Sept. 7, 1989)

(statements of Sen. Hatch). See also 136 CONG. REC. H2421

(daily ed. May 17, 1990) (statement of Rep. Gingrich).

108 NCD, Equality of Opportunity, p. 115.

109 135 CONG. REC. S10,735 (daily ed. Sept. 7, 1989) (statement of Sen. Hatch).

33
ting to setting and that "no action on the part of

the employer that is 'unduly costly, extensive,

substantial, disruptive or that will fundamentally alter the nature of the program' is required.""9 Second, Senator Hatch clarified that

where an employer faced an "undue hardship" as

described by the above language, the employer

did not have to make the reasonable accommodation.11' Finally, Senator Harkin said that the

factors to be considered under S. 933 in determining whether an undue hardship to the employer existed would include: (1) the overall size

of the business (number of employees, number

and type of facilities, and size of the budget); (2)

the type of operation maintained by the employer, including the composition and structure

of the employer's workforce; and (3) the nature

and cost of the accommodation needed."2

Congress ultimately included several mechanisms to compensate for the potential costs to employers. The final ADA bill included an exemption

for small businesses with 15 or fewer employees113

and the "undue hardship" provision) 14 In addition, the final bill included a provision offering

employers a "direct threat" defense. Congress

achieved broad consensus on this provision, which

codified a 1987 decision of the U.S. Supreme

Court under the Rehabilitation Act of 1973."5 The

ADA's direct threat provision states that "direct

threat" "means a significant risk to the health or

safety of others that cannot be eliminated by reasonable a ccommodation."116

110 Id. (statement of Sen. Harkin).

ill Id. (statement of Sen. Hatch).

112 Id. (statement of Sen. Harkin). See discussion on "Final

Provision" for a listing of the factors the ADA lists for consideration in determining whether an undue hardship exists.

113 See 42 U.S.C. §§ 12111(5)(A) (1994) (stating: "The term

`employer' means a person engaged in an industry affecting

commerce who has 15 or more employees for each working

day in each of 20 or more calendar weeks in the current or

preceding calendar year, and any agent of such person, except

that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each

working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.").

114 42 U.S.C. § 12111(10) (1994).

"6 See School Board of Nassau County v. Arline, 480. U.S.

273 (1987).

116 42 U.S.C. § 12111(3) (1994).

22

Concerns About Increased Litigation

The second issue that became the subject of

heated controversy was the potential for more and

perhaps often frivolous litigation. NCD observed:

This fear built on the perception that phrases such as

"reasonable accommodation," "undue hardship,"

"readily achievable," and "less effective," were inadequately defined, compelling courts to decide the

meaning of the ADA.[citation omitted] It also

stemmed from the belief that the remedies available

under the ADA would invite frivolous law suits."7

The litigation concern related specifically to

the terminology that determined the extent of

coverage of the new statute. For example, in defining the term "disability," Congress sought to

ensure that coverage extended to all individuals

with mental or physical impairments significant

enough to prevent them from performing a major

life activity.118 To this end, Congress defined

"disability" in the statute as meaning "a physical

or mental impairment that substantially limits

one or more of the major life activities of such individual; a record of such an impairment; or being

regarded as having such an impairment."119

Legislative history documents on the ADA

indicate that there was great concern about the

potential of this language to create frivolous and

unnecessary litigation. Senator Armstrong

stated: "The Senate, and the committee, refused

to list the mental impairments that are covered

by the act; however, neither the Senate nor the

committee left any doubt that the act is intended

to cover 'any mental or psychological disorder'."120 Senator Pryor, one of the cosponsors of

the bill, observed more directly:

Let us look at the definition that the ADA bill has for

disability with respect to an individual. I quote: "A

physical or mental impairment that substantially

limits one or more of the major life activities of such

individual, a record of such impairment or being regarded as having such impairment." . . . That is the

definition which, in my opinion, is extremely loose. In

my opinion; also, it is going to be the subject of liter117 NCD, Equality of Opportunity, p. 111.

118 42 U.S.C. § 12102(2) (1994). See also S. REP. NO. 101-

116, at 21-24 (1990).

119 Id. § 12102(2) (1994).

120 135 CONG. REC. S11,174 (daily ed. Sept. 14, 1989)

(statement of Sen. Armstrong).

34
ally countless issues of litigation in the courts across

the country. 121

The bill's sponsors sought to justify this terminology. For example, the Senate report accompanying the unenacted 1989 ADA bill helps to describe the extent of coverage by offering an example of what would constitute an impairment that

did not create a "substantial" limitation. It explains that "persons with minor, trivial impairments, such as a simple infected finger, are not

impaired in a major life activity" and therefore

not covered under the statute.122

The Senate report accompanying Senate bill

S. 933 attempts to offer both justification for and

clarification of the broad terminology "physical

or mental impairment." The report states:

It is not possible to include in the legislation a list of

all the specific conditions, diseases, or infections that

would constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list, particularly in light of the fact that

new disorders may develop in the future. The term

includes, however, such conditions, diseases, and infections as: orthopedic, visual, speech, and hearing

impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, infection with the Human

Immunodeficiency Virus, cancer, heart disease, diabetes, mental retardation, emotional illness, specific

learning disabilities, drug addiction, and alcoholism.

A physical or mental impairment does not constitute

a disability under the first prong of the definition for

purposes of the ADA unless its severity is such that it

results in a "substantial limitation of one or more

major life activities." A "major life activity" means

functions such as caring for one's self, performing

manual tasks, walking, seeing, hearing, speaking,

breathing, learning and working.'23

Preemployment Inquiries

Some members of Congress also expressed

concerns over other policy issues, including preemployment and medical inquiries and coverage

of HIV/AIDS by the bill. For example, Sen. Jesse

Helms did not want to limit employers' prerogatives in conducting preemployment inquiries by

prohibiting their asking about a prospective em121 135 CONG. REC. 510,741 (daily ed. Sept. 7, 1989) (statement of Sen. Pryor).

122 S. REP. No. 101-116, at 24 (1990).

123 See S. REP. No. 101-116, at 22 (1989).

23

35

ployee's HIV status before a conditional offer of

employment.124 Senator Helms stated that if an

employer "dares to ask a question about it [HIV

status] before there is a conditional job offer, he is

in the soup, according to this. "125 Senator Helms

further stated in this context:

What was the point in making him [the prospective

employer] go that far? Why could he not sit down and

say, son, I want to talk to you about several things that

are important to me . . . Are you HIV positive? Are you

this or that? Because your condition and beliefs are

important to me. . . . Why can the employer not do

that? Why does he have to go through all this rigmarole

and get down to making a conditional job offer, at

which point he has the right to ask the question? Why

was that done? Why was that scenario set up?126

Senator Harkin explained to Senator Helms

that "because even though the person may be HIV

positive, he may still be qualified . . . He may be

fully qualified."127

The main guidance offered in the ADA's legislative history on preemployment and medical inquiries is that any form of inquiry of a potential

employee before a job offer is expressly prohibited.

Senator Harkin explained that the rationale for

this "is to ensure that employers do not inappropriately screen out people with disabilities at the

initial stage of the application process by simply

reacting to a prejudice or stereotype about a person's disability."128

HIV/AIDS

Others in Congress were not satisfied with

Senator Harkin's explanation. HIV/AIDS became

a focal point of debate. During the House debate

over H. 2273, Representative Dannemeyer said

that including HIV infection as a covered disability was not sound public policy. He stated:

With this bill, in the form that it is now to be considered by the House, if it is adopted, every HIV carrier in

the country immediately comes within the definition of

124 See 135 CONG. REC. S10,768 (daily ed. Sept. 7, 1989)

(statement of Sen. Helms). 125 135 CONG. REC. S10,768 (daily ed. Sept. 7, 1989) (statement of Sen. Helms).

126 Id. (statement of Sen. Helms).

127 Id. (statement of Sen. Harkin).

1213 135 CONG. REC. S10,767 (daily ed. Sept. 7, 1989) (statement of Sen. Harkin).
a disabled person. Why? Because they have a communicable disease. They are a carrier of a fatal virus that

causes death.

Is that sound public policy? And since 70 percent of

those people in this country who are HIV carriers are

male homosexuals, we are going to witness an attempt,

or an utterance on the part of the homosexual community that, when this bill is passed, it will be identified

by the homosexual community as their bill of rights.'29

Others in Congress thought that HIV/AIDS

and other contagious diseases should be addressed as public health hazards. For example,

Representative Burton stated: "I think it is extremely important that we protect the public

health of this Nation. If someone has a communicable disease, tuberculosis, AIDS, or something

else, do my colleagues want them preparing their

food or handling their food?"130

In response to this concern, the final bill contains a provision addressing the need to ensure

safety with respect to the food supply. This provision states that a covered entity (employer) may

refuse to employ anyone with an infectious disease if the dangers of transmission cannot be

eliminated through reasonable accommodation.131

Final Provisions and Enforcement of

Title I of the ADA

The full statement of purpose in the ADA

reads:

It is the purpose of this chapter

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities;

129 135 CONG. REC. H2,422 (daily ed. May. 17, 1990

(statement of Rep. Dannemeyer).

139 Id. (statement of Rep. Burton).

131 42 U.S.C. §12113(d)(2) (1994). The provision requires the

Secretary of Health and Human Services to publish an annual list of infectious diseases based on a review of all infectious and communicable diseases that may be transmitted

through handling the food supply. 42 U.S.C. § 12113(d)(1).

The requirement states that the Secretary of Health and

Human Services shall, not later than 6 months after July

26, 1990, "(B) publish a list of infectious and communicable

diseases which are transmitted through handling the food

supply; (C) publish the methods by which such diseases are

transmitted; and (D) widely disseminate such information

regarding the list of diseases and their modes of transmissibility to the general public." Id.

24

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in

this chapter on behalf of individuals with disabilities;

and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth

amendment and to regulate commerce, in order to

address the major areas of discrimination faced

day-to-day by people with disabilities."'

The Americans with Disabilities Act defines

an individual with a disability as a person who

has:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of

such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.'"

The ban on discrimination in title I reads:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.'"

132 42 U.S.C. § 12101(b) (1994).

133 Id. § 12102(2) (1994).

134 42 U.S.C. § 12112(a) (1994). Discrimination as it is used

in title I is defined in the following detailed manner as:

"(1) limiting, segregating, or classifying a job applicant or

employee in a way that adversely affects the opportunities

or status of such applicant or employee because of the disability of such applicant or employee;

"(2) participating in a contractual or other arrangement or

relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the

discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral

agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization

providing training and apprenticeship programs);

"(3) utilizing standards, criteria, or methods of administra- tion

"(A) that have the effect of discrimination on the basis of

disability; or

"(B) that perpetuate the discrimination of others who

are subject to common administrative control;

"(4) excluding or otherwise denying equal jobs or benefits to

a qualified individual because of the known disability of an
Title I thus does not protect all individuals

with disabilities from discrimination; it protects

only "qualified" individuals with a disability,

where "qualified" is defined as "an individual

with a disability who, with or without reasonable

accommodation, can perform the essential functions of the employment position that such individual holds or desires.935 Title I places a responsibility on employers to make reasonable

accommodations necessary for a qualified individual with a disability to perform the job. Although the term "reasonable accommodation" is

not defined precisely, title I offers examples of

what reasonable accommodation might include:

(A) making existing facilities used by employees

readily accessible to and usable by individuals with

disabilities; and

individual with whom the qualified individual is known to

have a relationship or association;

"(5)(A) not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the ac- commodation would impose an undue hardship on the op- eration of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to

make reasonable accommodation to the physical or mental

impairments of the employee or applicant;

"(6) using qualification standards, employment tests or other

selection criteria that screen out or tend to screen out an

individual with a disability or a class of individuals with

disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related

for the position in question and is consistent with business

necessity; and

"(7) failing to select and administer tests concerning em- ployment in the most effective manner to ensure that, when

such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking

skills, such test results accurately reflect the skills, aptitude,.or whatever other factor of such applicant or employee

that such test purports to measure, rather than reflecting

the impaired sensory, manual, or speaking skills of such

employee or applicant (except where such skills are the factors that the test purports to measure)."

136 42 U.S.C. § 12111(8), 12112(b) (1994). The statute does

not offer a further definition or description of the term

"essential functions." It only states that: "For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential,

and if an employer has prepared a written description before

advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id.

25

(B) job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appro- priate adjustment or modifications of examinations,

training materials or policies, the provision of qualified readers or interpreters, and other similar ac- commodations for individuals with disabilities.136

Title I includes a prohibition against medical

examinations and preemployment inquiries as to

whether a job applicant is an individual with a

disability or as to the nature or severity of such

disability.'" However, a covered entity may conduct preemployment inquiries "into the ability of

an applicant to perform job-related functions."138

A covered entity "may require a medical examination after an offer of employment has been

made to a job applicant and prior to the commencement of the employment duties of such

applicant" under certain circumstances.139 However, a covered entity cannot require a medical

examination or make post-employment inquiries

of employees unless "such examination or inquiry is shown to be job-related and consistent

with business necessity."140

Title I specifically excludes current abusers of

illegal drugs from coverage under its nondiscrimination provisions, stating:

For purposes of this subchapter, the term "qualified

individual with a disability" shall not include any

employee or applicant who is currently engaging in

136 Id. § 12111(9) (1994).

137 Id. § 12112(d )(1)(2)(A) (1994).

138 Id. § 12112(c )(2)(B) (1994).

136 The statute allows post-offer examinations if:

"(A) all entering employees are subjected to such an examination regardless of disability;

"(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on sepa- rate forms and in separate medical files and is treated as a

confidential medical record, except that (i) supervisors and managers may be informed regarding necessary restrictions

on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be

informed, when appropriate, if the disability might require

emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and

"(C) the results of such examination are used only in accor- dance with this subchapter." Id. § 12112(3) (1994).

146 Id. § 12112(4)(A) (1994).
the illegal use of drugs, when the covered entity acts

on the basis of such use."'

In addition, title I states that "a test to determine the illegal use of drugs shall not be considered a medical examination."142 Title I does

not prevent employers from taking adverse action on the basis of illegal drug use against employees or applicants who are "currently engaging in the illegal use of drugs."143 Finally, title I

states that "it shall not be a violation of this

chapter for a covered entity to adopt or administer reasonable policies or procedures, including

but not limited to drug testing, designed to ensure" that individuals who are rehabilitated or

former drug users "are no longer engaging in the

illegal use of drugs."144

Title I also specifies several "defenses" that employers can use to avoid liability. For instance, title I allows a "business necessity" defense:

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualifi- cation standards, tests, or selection criteria that

screen out or tend to screen out or otherwise deny a

job or benefit to an individual with a disability has

been shown to be job-related and consistent with

business necessity, and such performance cannot be

accomplished by reasonable accommodation, as required under this subchapter.'45

Employers can claim that providing reasonable accommodation would result in an undue

hardship. An undue hardship is defined as "an

141 Id. § 12114(a) (1994).

142 Id. § 12114(d)(1) (1994).

143 Id. § 12114(a) (1994).

144 Id. § 12114(b) (1994) (stating: "Nothing in subsection (a)

of this section shall be construed to exclude as a qualified

individual with a disability an individual who (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or

has otherwise been rehabilitated successfully and is no

longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in

such use; or (3) is erroneously regarded as engaging in such

use, but is not engaging in such use; except that it shall not

be a violation of this chapter for a covered entity to adopt or

administer reasonable policies or procedures, including but

not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs." Id.).

145 Id. § 12113(a) (1994).

26

action requiring significant difficulty or expense,

when considered in light of the factors set forth

in subparagraph (B)."146 The factors used in determining whether an undue hardship exists

are:

(i) the nature and cost of the accommodation needed

under this chapter; (ii) the overall financial resources

of the facility or facilities involved in the provision of

the reasonable accommodation; the number of persons employed at such facility; the effect on expenses

and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii)

the overall financial resources of the covered entity;

the overall size of the business of a covered entity

with respect to the number of its employees; the

number, type, and location of its facilities; and (iv) the

type of operation or operations of the covered entity,

including the composition, structure, and functions of

the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.'47

In addition, title I allows a so-called "direct

threat" defense.148 Employers may have as a

qualifications standard that "an individual shall

not pose a direct threat to the health or safety of

other individuals in the workplace."149 The statute defines "direct threat" as "a significant risk

to the health or safety of others that cannot be

eliminated by reasonable accommodation."150 In

response to concerns about communicable diseases as public health hazards, title I also allows, in certain circumstances, employers to offer a defense that an employee or applicant for a

food handling position has an infectious or communicable disease that is "transmitted to others

through the handling of food." 151 For this defense

to pertain, the particular disease must appear on

a list to be published annually by the U.S. Department of Health and Human Services and

must not be able to be eliminated by reasonable

accommodation.152 Finally, religious organiza146 Id. § 12111(10)(A) (1994).

147 Id. § 12111(10)(B) (1994).

148 See id. § 12113(b) (1994).

149 Id. § 12113(b) (1994).

150 Id. § 12111(3) (1994).

151 Id. § 12113(d)(2) (1994).

152 Id. § 12113(d)(2) (1994). This is followed by a provision

stating: "Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, or38
tions are permitted to give preference to individuals of a particular religion.153

Congress has charged various Federal agencies with implementing the nondiscrimination

provisions of the ADA. Each agency has its own

role and responsibilities fulfilling the requirements of the act. The U.S. Equal Employment

Opportunity Commission (EEOC) is the agency

primarily responsible for title I.

Congress required EEOC to issue its implementing regulations for title I within 1 year of

the passage of the act. Accordingly, the EEOC

issued its title I regulations on July 26, 1991.154

These regulations became effective on July 26, 1992.155 Under the requirements of EEOC's

regulations, title I applied to organizations with

25 or more employees until July 26, 1994, when

it became applicable to organizations with 15 or

more employees.156

The U.S. Department of Justice (DOJ) is responsible for employment issues relating to

State and local governments. Because such issues implicate both title I and title II of the

ADA, DOJ and EEOC have issued a joint regulation describing the procedures for processing

employment complaints that fall within the

overlapping jurisdiction of both titles.157 The

regulation states that if the EEOC determines

that it does not have jurisdiction under title I,

dinance, or regulation applicable to food handling which is

designed to protect the public health from individuals who

pose a significant risk to the health or safety of others,

which cannot be eliminated by reasonable accommodation,

pursuant to the list of infectious or communicable diseases

and the modes of transmissibility published by the Secretary

of Health and Human Services." Id. § 12113(d)(3) (1994).

Title I requires the Department of Health and Human

Services to publish a list of infectious and communicable

diseases that are transmitted through handling the food

supply. Id. § 12113(d)(1) (1994).

153 Id. § 12113(c) (1994).

154 Equal Employment Opportunity for Individuals with

Disabilities, 56 Fed. Reg. 35,726 (1991) (codified at 29 C.F.R.

§ 1630).

155 56 Fed. Reg. 35,726 (1991).

156 29 C.F.R. § 1630.2(e) (1997).

157 Procedures for Coordinating the Investigation of Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans with Disabilities Act

and Section 504 of the Rehabilitation Act of 1973, 59 Fed.

Reg. 39,898 (1994) (codified at 29 C.F.R. § 1640.

27

the EEOC shall promptly refer the complaint to

the Civil Rights Division at DOJ.158

The Role of Other Federal

Agencies and Programs

Although the EEOC and DOJ have primary

responsibility for enforcing title I and title II, subtitle A, of the ADA, respectively, several

other Federal agencies and programs play a role

in the implementation of the Americans with

Disabilities Act.

President's Committee on Employment of

People with Disabilities

The President's Committee on Employment of People with Disabilities is a small Federal

agency that was created in 1947 by Executive

Order. Its original purpose was to find and encourage employers to hire disabled veterans returning from World War 11.159 Over the years, the mission grew to include all persons with disabilities. Today, its mission is "to facilitate the

communication, coordination and promotion of

public and private efforts to enhance the employment of people with disabilities."189 The

President's Committee "provides information,

training, and technical assistance to America's

business leader's, organized labor, rehabilitation

and service providers, advocacy organizations,

families and individuals with disabilities" and

"reports to the President on the progress and

problems of maximizing employment opportunities for people with disabilities."181 According to

its Executive Director, the President's Commit- , tee is essentially a marketing and advertising

agency, which advertises the employability of

persons with disabilities.

The President's Committee plays an important role in providing technical assistance on the

ADA, particularly providing information to em159 29 C.F.R. § 1640.6(b).

159 John Lancaster, Executive Director, President's Committee on Employment of People with Disabilities, interview in

Washington, DC, Oct. 16, 1997, p. 2 (hereafter cited as Lancaster interview).

160 "President's Committee on Employment of People with

Disabilities," undated information sheet provided to Com- mission staff by John Lancaster, Executive Director,

USCCR/OCRE files (hereafter cited as President's Committee information sheet).

191 Ibid.

39
ployers on how to provide accommodations required under the statute. One of the President's

Committee's largest services is the Job Accommodation Network (JAN), which is operated under contract by West Virginia University.162

JAN, whose mission is "to assist in the hiring,

retraining, retention or advancement of persons

with disabilities by providing accommodation

information," operates a toll-free telephone information line, as well as an Internet Web site.

JAN's telephone line is answered by professional

consultants who can provide information on accommodation methods, devices, and strategies.163 According to the Executive Director of

the President's Committee, in 1996, JAN received approximately 85,000 calls from employers. These calls resulted in 22,000 persons with

disabilities either being hired or retained. The

large number of calls is an indication that information is reaching employers and that they are

interested in the assistance the President's

Committee can provide them, the Executive Director said. He stressed the need for technical

assistance to be provided not only by enforcement agencies, such as EEOC and DOJ, but also

by JAN and other nonenforcement agencies,

such as the Disabilities Business and Technical

Assistance Centers and independent living centers across the country. Both EEOC and DOJ list

JAN as a source of information in their pamphlets. Furthermore, the President's Committee

has set up a procedure with OFCCP so that employers are directed automatically to JAN for

employment information.164 Another major function of the President's

Committee is to disseminate public service announcements and publications to educate the

public, including employers, persons with disabilities, and labor unions. The President's

Committee also runs the Business Leadership

Network. In this program, employers who are

interested in hiring persons with disabilities

.162 Lancaster interview, p. 2.

163 President's Committee on Employment of People with

Disabilities, "JAN Job Accommodation Network," undated

information sheet provided to Commission staff by John

Lancaster, Executive Director, President's Committee on

Employment of People with Disabilities, USCCRJOCRE files

(hereafter cited as JAN information sheet).

164 Lancaster interview, p. 2.

28

educate other employers on disability-related

topics. This program was in operation in approximately 7 States in 1997 and was expected

to expand to 13 States in 1998.165

The President's Committee also runs two

demonstration projects. The High School/High

Tech program is operating in 17 cities. Under

the program, President's Committee staff members locate producers or users of technology

(such as NASA and NASA contractors) and work

with them to provide paid summer internships

for high school students with disabilities. The

program has served more than 4,500 students

with disabilities. Among last year's interns, 60

percent had emotional and learning disorders,

and 40 percent had physical or developmental

disabilities. Forty-five percent were from minority groups. The Committee is beginning to track

this program and has found that many of the

students go on to a 2- or 4-year school to study in

technology fields.166

A second demonstration project is the Workforce Recruitment Program, operated in conjunction with the Department of Defense. This program identifies students who are ready for competitive work and are then entered into a database that is provided to potential employers. Initially limited to Federal employers, the program

now includes private employers. In 1996, 1,500

students were interviewed for this program at 141

colleges or universities. Of these students, 1,200

were selected for inclusion in the database. Two

hundred thirty-eight of the students participated

in a summer internship program, and 30 found

permanent employment. This program is expanding every year. Next year, three large temporary agencies will be involved in the project.167

Protection and Advocacy Systems

The national protection and advocacy (P&A)

system is a federally funded program created by

the Developmental Disabilities Assistance and

Bill of Rights Act of 1975 to address concerns

about mistreatment and abuse of persons with

developmental disabilities.168 Congress enacted

165 Ibid., pp. 2, 3.

166 Ibid., pp. 2-3; President's Committee information sheet.

167 Ibid.

168 See Pub. L. No. 94-103 § 113, 89 Stat. 486,504 (codified

as amended in scattered sections of 42 U.S.C.).

40
the law in response to the "inhumane and despicable conditions" uncovered by investigative reporting into State-run institutions, such as Willowbrook in New York.169 The purpose of the act

was "to protect the human and civil rights" of

individuals with developmental disabilities. The

law established protection and advocacy agencies (P&As) in each State to provide legal representation and advocacy for such individuals. The

P&As are public and private agencies designated

by the Governor to be the State P&A. A national

membership association for P&As, the National

Association of Protection and Advocacy Systems

(NAPAS), coordinates the work of and provides

training, technical assistance, and information

to the P&As. The State P&A agencies can only

be redesignated for "good cause." As a result,

there has been little change in the P&A system

since the mid 1970s, when it first developed.

When the P&A system was first created, its

mandate was restricted to protection and advocacy on behalf of people with developmental disabilities. Since then, Congress has expanded the

mandate of the P&A system several times. In

1984 Congress added clients of vocational rehabilitation, the Client Assistance Program

(CAP).170 The CAP was established as a mandatory formula grant program under the 1984

amendments to the Rehabilitation Act to provide

assistance to people with disabilities in obtaining

information and access to the services, facilities,

and projects available under the Rehabilitation

Act.171 In 1986, Congress enacted the Protection

and Advocacy for Individuals with Mental Illness Act (PAIMI), which expanded the P&A program to include people with mental illness residing in 24-hour care facilities such as jails,

prisons, and mental hospitals.172 The Protection

and Advocacy of Individual Rights (PAIR) program was established for all individuals with

169 National Association of Protection and Advocacy Systems, Annual Report of the P&A System. 1996-1997

(Washington, DC: National Association of Protection and

Advocacy Systems, 1997), p. 4 (hereafter cited as NAPAS,

Annual Report 1996-1997). See also Curtis L. Decker, Executive Director, National Association of Protection and

Advocacy Systems, interview in Washington, DC, Nov. 12,

1997, p. 2 (hereafter cited as Decker interview).

170 29 U.S.C. § 732 (1994).

171 See id.

172 See id. § 794e (1994).

29

disabilities who are not eligible under the other

programs and was funded as a national program

in 1994.173 The PAIR program serves as a catchall program that theoretically serves the largest

number of people since it covers a broad range of

people with disabilities. However, in fact the

PAIR program remains the smallest since it is

the newest and the least well funded.174 The

PAIR program supports much of P&As' work

under the ADA.

The protection and advocacy program is administered by three Federal agencies. The Administration of Developmental Disabilities at the

U.S. Department of Health and Human Services

(HHS) administers the original P&A program,

Protection and Advocacy for People with Developmental Disabilities (PADD). The Rehabilitation Services Administration of the Office of Special Education and ilehabilitation Services at the

U.S. Department of Education administers the

CAP and PAIR programs; and the Center for

Mental Health Services (CMHS), also at HHS,

administers. PAIMI.

The Executive Director of NAPAS indicated

that the central mission of the P&A system is to

respond to allegations of abuse, neglect, and violations of the rights of people with disabilities or

discrimination based on their disability. P&As

pursue legal, administrative, and other remedies

on behalf of their clients. Although P&As are advocacy organizations for people with disabilities,

they have authority to litigate and seek administrative remedies against institutions, including

jails, prisons, hospitals, and mental institutions

that abuse and neglect individuals. These are

sometimes class action suits.175 As noted above,

under the PAIR program, P&As can file suits under the ADA on behalf of their clients.

National Council on Disability

The National Council on Disability is an independent Federal agency, composed of 15

members appointed by the President and confirmed by the U.S. Senate. Initially created in

1978 as an advisory board in the U.S. Depart173 Decker interview, p. 3.

174 Ibid., pp. 2-3.

176 Ibid., p. 2.

4
ment of Education, NCD became an independent

agency in 1984. Its overall purpose is:

to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or

severity of the disability; and to empower individuals

with disabilities to achieve economic self-sufficiency,

independent living, and inclusion and integration into

all aspects of society.176

NCD has no enforcement responsibilities

with respect to the ADA or any other statute.

Instead, its responsibilities include:

reviewing and evaluating, on a continuing basis, policies, programs, practices, and procedures concerning

individuals with disabilities conducted or assisted by

federal departments and agencies . . . to assess the

effectiveness of such policies, programs, practices,

procedures, statutes, and regulations in meeting the

needs of individuals with disabilities.177

NCD must also review and evaluate "new and

emerging disability policy issues affecting individuals with disabilities at the federal, state, and

local levels, and in the private sector. . . ." NCD

is also charged with:

making recommendations to the President, the Congress, the Secretary of Education, the Director of the

National Institute on Disability and Rehabilitation

Research, and other officials of federal agencies respecting ways to better promote equal opportunity,

independent living, and inclusions and integration into

all aspects of society for Americans with disabilities. '78

With respect to the ADA, NCD is tasked with

"gathering information about the implementation,

effectiveness, and impact" of the law. NCD publishes an annual progress report on national disability policy for the President and Congress.179

Explaining how NCD carries out its mandate,

the agency's General Counsel told the Commission that NCD's mandate is to track ADA enforcement, but that the agency does not have the

power, or the staff, to coordinate ADA efforts

176 NCD, Achieving Independence, app. F, "Description of the

National Council on Disability," p. 187.

177 Ibid.

178 Ibid., p. 188.

178 Ibid.

30

across agencies. The agency measures its success

by the number of its recommendations implemented by other agencies. In making recommendations, NCD works to ensure that it has grassroots support from the disability community, so

that there is a constituency that will help ensure

the recommendations are implemented.18°

National Institute on Disability and

Rehabilitation Research

The National Institute on Disability and Rehabilitation Research (NIDRR) began development of a $5 million ADA technical assistance

initiative shortly after the passage of the ADA.'8'

NIDRR issued a proposed priority establishing

10 technical assistance centers, called disability

and business technical assistance centers

(DBTACs), one in each of the U.S. Department of

Education's 10 regions. These initial grants ran

for 5 years, ending in 1996. At that time, NIDRR

issued a new proposed priority for 10' new

DBTACs. As of January 1998, the program was

in the second year of its second cycle. The budget

was $6.2 million.182 The DBTACs:

focus on providing, within their respective regions,

materials, technical assistance, and training to businesses, persons with disabilities, state and local government agencies, and others to facilitate appropriate

implementation of the ADA, successful outcomes for

individuals with disabilities, and greater accessibility

in public accommodations."83

The DBTACs also develop resources, such as databases, reference guides, and expert consultant

pools, to assist in the technical assistance programs and promote public awareness of the

ADA. Each DBTAC has a network of State affiliates and coalitions of organizations concerned

180 Andrew Imparato, General Counsel, National Council on

Disability, interview in Washington, DC, Oct. 20, 1997.

181 David Esquith, Policy and Planning Division, National

Institute on Disability and Rehabilitation Research, interview in Washington, DC, Jan. 8, 1998, p. 2 (hereafter cited

as Esquith interview).

182 DOEd, OSERS, NIDRR, Report of the Americans with

Disabilities Act (ADA) Technical Assistance Program, The

NIDRR Fifth Year (FY 1996), prepared by the ADA Technical Assistance Coordinator Contract (hereafter cited as

NIDRR, Report of the ADA Technical Assistance Program);

Esquith interview, p. 2.

183 Ibid., p. v.

42
with disability issues (including businesses,

State and local government agencies, and disability groups) in each State.

The DBTACs play an important role in disseminating information and technical assistance

relating to the ADA throughout the country. According to NIDRR staff overseeing their activities, the DBTAC program has been concerned

since its inception about quality control and

about establishing a reputation for issuing solid,

legally sufficient material. To this end, the

DBTAC program has a working relationship

with DOJ and EEOC. These agencies review all

written material prepared by a DBTAC or any of

NIDRR's grantees for legal sufficiency. In addition, NIDRR has established liaisons at EEOC

and DOJ to assist the DBTACs in answering

questions that require the expertise of those

agencies. Each DBTAC has access to an information specialist at DOJ and EEOC headquarters.

The DBTAC project directors hold semi-annual

meetings. At each of these meetings officials

from DOJ and EEOC brief NIDRR and DBTAC

staff. In turn, the DBTACs relate to EEOC and

DOJ staff any major concerns or issues in their

respective regions.

NIDRR has been very concerned with ensuring that DBTAC staff stays current and is aware

of recent policy developments in the field -184 The

DBTACs incorporate changes in the law in their

training. In addition, the DBTACs train their

State affiliates on these developments. Depending upon the magnitude of the legal or policy

development, the DBTACs will issue newsletters

that go out to all of their customers. The

DBTACs have regular publications that they

send to their customers, free of charge, although

the DBTACs enclose an optional reimbursement

request for expenses with all materials they distribute. NIDRR's policy is never to refuse to send

anyone any material due to inability to pay.185

184 However, a NIDRR grantee has found that the DBTACs

are not well-prepared to provide technical assistance on

issues related to psychiatric disabilities. Matrix Research

Institute, "Responses to the Americans with Disabilities Act

Project Questionnaire," February 1998, enclosure to Barbara

Granger, Director of Training and Dissemination, Matrix

Research Institute, letter to Frederick D. Is ler, Assistant

Staff Director, OCRE, USCCR, Feb. 19, 1998.

185 Esquith interview, p. 4.

31

A Broader Context: America's

Disability Policy

Although the ADA often is thought of as the

culmination of a long line of statutes extending

civil rights protections to different groups of

Americans, it also needs to be understood as a

major new component of the Nation's broader

policy towards people with disabilities. With the

exception of section 504 of the Rehabilitation Act

of 1973, the Americans with Disabilities Act is

the only major component of the set of programs

that constitute America's disability policy that is

premised on a recognition that people with disabilities have a right and, indeed, a responsibility to work. The Americans with Disabilities Act

sets a goal of assuring "equality of opportunity,

full participation, independent living, and economic self-sufficiency" for individuals with disabilities.186 Most of the rest of the Nation's disability policies are premised on what has been

termed a "medical" or "charity" model of disability. Under this model, people with disabilities

are injured, or limited, and deserve assistance in

the form of health care, vocational rehabilitation, and, when they cannot work, income supports.187 Based on the medical model, over the

years, the United States has put in place a variety of supports for people with disabilities. The

largest of these is the social security disability

insurance (SSDI) program, which provides benefits to individuals covered under the social secu188 42 U.S.C. § 12101(8) (1994).

187 See Mary Louise Breslin, Disability Rights Education and

Defense Fund, presentation at "Employment Post the

Americans with Disabilities Act," conference in Washington,

DC, Nov. 17-18, 1997 (hereafter cited as 1997 Post-ADA

Conference), p. 5. Ms. Breslin summarized the history of

disability policy as follows: Up until the 1970s, the policy

was based on pity, which is in conflict with the civil rights

goals of today. Science and medicine had a role in creating

the pity/charity model of disability policy, starting with the

eugenics movement and Social Darwinism and the view that

there is a "normal person." The original hostility was replaced with pity, which correlates with segregation. This left

a legacy of institutionalization and a belief that persons with

disabilities were abnormal. It also led to doctors' being

charged with making determinations of whether a person

was disabled. Ms. Breslin continued that under the charity/medical model of disability, persons with disabilities are

perceived as unable to work. People who are able to work

are not disabled. There is no middle ground between dependence and unsupported work. She added that the disability benefit programs are critical, but they give the message of incapacity.

4 3

BEST COPY AVAILABLE
rity program who no longer are able to work.

Other programs include supplemental security

income (SSI) instituted in 1974 for individuals

with disabilities who were not eligible for SSDI,

State workers' compensation programs, and disability coverage for servicemen provided by the

Department of Veterans' Affairs.188

According to the National Council on Disability, "[d]esigned as a safety net for people who

are terminally ill or too severely disabled to

work, Social Security Programs for people with

disabilities have had the unintended effect of

trapping people with disability in lifetimes of

poverty."189 A number of studies has documented

that labor force participation rates of individuals

with disabilities declined as disability benefits

became more generous, particularly during the

decade of the 1970s. For instance, one researcher

writes that "between 1970 and 1978, the number

of workers on the [disability insurance] rolls

nearly doubled, from 1.5 million to 2.9 million,

and expenditures quadrupled. . . . Over roughly

the same period, the number of people returning

to work fell to an all-time low. . . ."199 Researchers have attributed the declining labor force participation rates among individuals with disabili188 See William G. Johnson, "The Future of Disability Policy:

Benefit Payments or Civil Rights?" The Annals of the American Academy of Physical and Social Sciences (January

1997), pp. 160-63.

189 National Council on Disability, Achieving Independence:

The Challenge for the 21st Century: A Decade of Progress in

Disability Policy, Setting an Agenda for the Future

(Washington, DC: National Council on Disability, July 26,

1996), p. 72 (hereafter cited as NCD, Achieving Independence).

199 Carolyn L. Weaver, "Incentives Versus Controls in Federal Disability Policy," ch. 1 in Carolyn L. Weaver, ed., Disability and Work: Incentives, Rights, and Opportunities

(Washington, DC: The AEI Press, 1991), p. 4 (hereafter cited

as Weaver, Disability and Work). See also Sherwin Rosen,

"Disability Accommodation and the Labor Market," ch. 2 in

Weaver, Disability and Work, p. 20. Rosen summarizes the

findings of research as follows: "Cotterman and Raisian

calculate that during the decade of the 1970s the proportion

of the disabled not working increased among virtually all

age and sex groups. . . . The growth of social security disability payments has been directly linked to this phenomenon," citing Robert F. Cotterman and John Raisian, "The

Incidence of Disability 1970 to 2020: A Public Policy Dilemma?" report submitted to the National Council on the

Disabled (Washington: DC: Unicon Research Corp., May

1988) and Donald 0. Parsons, "The Decline in Male Labor

Force Participation," Journal of Political Economy, vol. 88,

no. 1 (February 1980), pp. 117-34.

32

ties to work disincentives created by the Nation's

disability benefits programs.

Participation in either SSDI or SSI usually

confers coverage by medicaid or medicare and

hence provides health care benefits to people with

disabilities participating in the programs. Thus,

SSDI/SSI participants who choose to join the work

force and become employed not only lose their

SSDI/SSI benefits, but also lose health care coverage. Generally, the new employers of former program participants either do not offer health care

insurance or offer health care insurance that excludes prior conditions, including medical costs

related to their disability. One disability researcher has explained that these "disincentive

effects of the health care coverage provided by

[disability benefits] programs" can overpower any

incentive to work provided by the ADA:

Consider, for example, a person with a disability who

is faced with the choice of applying for a [disability

benefits] program or going to work for an employer

who will provide the accommodations needed for the

person to work because of the influence of the ADA.

Assume further that the employer does not have

group coverage for his workers or that the group coverage that is provided has many . . . exclusions. Even

if the job offers a wage substantially greater than the

disability benefits that would be provided by [the disability benefits program], the difference is unlikely to

offset the value of a lifetime of guaranteed health care

coverage to a person with a chronic condition.'9'

The National Council on Disability reported that

"[a]bout 9.2 million people with disabilities receive Medicaid and/or Medicare, largely as a result of being on Supplemental Security Income

(SSI) or Social Security Disability Insurance

(SSDI)" and that "[p]eople with disabilities frequently list the lack of access to adequate and

affordable health insurance as a major barrier to

employment."192

The disincentive effects of disability benefits

programs have been widely recognized. According to one economist's analysis of the Nation's

disability policy:

the principal thrust of disability policy in the United

States continues to be providing transfer payments to

191 Johnson, "The Future of Disability Policy," p. 171.

192 NCD, Achieving Independence, pp. 81,82.

44
those labeled "unable to perform any substantial

gainful activity." Until both the disability community

and policymakers take the risk of shifting from a disability policy primarily based on transfers to one

based on the proposition that people with disabilities

can and should be expected to work, a new and

growing population of young, people with disabilities

can look forward to a life of dependency.'93

-Another author has written:

The Social Security program's expansion greatly steepened the "welfare trap" by which recipients find themselves not much better off financially (and often worse

oft) if they take a job than if they stay home.. . . Indeed,

[the] welfare trap [faced by people with disabilities is]

deeper than that of the much discussed (and smaller)

Aid to Families with Dependent Children program,

simply because it [is] much more generous.'94

Another expert wrote to the Commission:

Social Security . . . benefits provide a financial disincentive for persons with disabilities to return to work.

. . . It is my belief that health insurance continues to

be one of the most significant area for disincentives

for return to work for persons who have been chronically ill, such as those who have been on Social Secu -.

rity benefits. Without addressing this issue, many of

those who have been unemployed will continue to not

feel confident that they should pursue meaningful

work and reduce or eliminate their need for the

health insurance coverage that comes with Social Security insurance.'95

The associate director of the State of Illinois' Office of Rehabilitation Services wrote:

The ADA needs to address the rights of [persons with

disabilities] regarding such items as Vocational Rehabilitation, SSI, SSDI and health benefits. For example,

there needs to be a more definitive policy regarding

disabilities and company health insurance. There is

such a wide variance of health insurance policies, that

a person who receives disability benefits and medicare

193 Richard V. Burkhauser, "Post ADA: Are People with Disabilities Expected to Work?" Annals of the American Academy of Physical and Social Sciences, vol. 549 (January

1997), p. 72 (hereafter cited as Burkhauser, "Are People

with Disabilities Expected to Work?").

194 Olson, The Excuse Factory, p. 92.

195 Suzanne M. Bruyere, Director, ILR Program on Employment and Disability, Cornell University, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

Feb. 11, 1998, enclosure, p. 2.

33

and Medicaid is often in a better position not to return

to the labor force. Since one of the private sectors [sic]

biggest fears is the cost of health insurance for [persons

with disabilities], there needs to be a system prepared

by federal and state governments to guarantee health

benefits for persons with disabilities to open up more

employment opportunities.196

Thus, the Nation's traditional disability benefit and health insurance system provides disincentives to paid employment that are at odds

with the ADA's goal of ensuring equal employment opportunity to people with disabilities. In

fall 1997, a national conference held in Washington, D.C., on "Employment Post the Americans

with Disabilities Act" underscored the contradictions between the ADA and traditional disability

benefit policies.197 A major theme of the conference, which included Federal and State officials

and policy makers, disability advocates, service

providers, disability researchers, employers, and

consumers, was that there is a fundamental conflict between much of disability policy, particularly SSI and SSDI benefits, and the ADA.198

196 Carl Suter, Associate Director, Office of Rehabilitation

Services, Illinois Department of Human Services, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

June 9, 1998, attachment, p. 2. Mr. Suter also recommended

changes to the Vocational Rehabilitation system: "The ADA

should also be used as the measuring stick for eligibility for

Vocational Rehab services offered by the federal and state

governments. The present policy in place nationwide is to

service a small section of the disability community based

upon the 'Order of Selection. If the ADA guidelines were

used to determine eligibility, more persons with disabilities

would be served. There would also have to be a correlation

of increased funding for the states. Many [persons with disabilities] fall through the cracks because of differing eligibility criteria." Ibid.

197 The purpose of the conference was "to engage national

and state policy leaders, researchers, disability advocates,

consumers, services providers, employers, congressional

staff and government officials in a dialogue about the impact

of policies and programs on the employment of people with

disabilities and innovative approaches to reforming and

overcoming some of the existing barriers." See "Employment

Post the Americans with Disabilities Act Conference Summary," USCCR/OCRE files, p. 1. The conference followed up

on a conference held the previous year on the topic of

"Employment and Return to Work for People with Disabilities." Another conference was planned for the following year.

Ibid., pp. 1-2.

198 See Andrew Imparato, General Counsel and Director of

Policy, National Council on Disability, presentation at 1997

Post-ADA Conference, p. 6. Mr. Imparato gave as the thesis

of his talk that civil rights laws are in conflict with disability

polices. He added that the reality of Federal policy in prac4 5
The SSI/SSDI programs are based on a dependency, charity model of disability, whereas section

504 and the ADA promote independence and

working. A member of the National Council on

Disability noted the conflicting assumptions of

disability benefits programs and the ADA:

dependence versus productivitydisability programs are based on the dependence,

charity model.

integration versus segregationthe Americans with Disabilities Act talks about the

most integrated setting, but the Rehabilitation Act sets up a segregated system and

even segregates by disability types.

rights versus responsibilitiesit is incumbent upon the disability community to take

responsibility, to take advantage of the opportunities open to it.199

The Chairman of the President's Committee

on Employment of People with Disabilities explained the conflict between the ADA and disability benefits programs as follows. Because

private insurers deny coverage for preexisting

conditions, individuals with disabilities are dependent on medicare and medicaid for health

insurance. However, to receive medicare and

medicaid, individuals with disabilities must label themselves as unemployable. In turn, this

makes it hard for them to exercise their rights

under the Americans with Disabilities Act.200

Congressman Jim Bunning said that he perceived two main problems with SSI/SSDI programs. First, it takes too long to get on SSDI,

sometimes it takes as long as 11/2 years, and some

people even die before they receive SSDI benefits.

Second, the SSDI program is not conducive to getting people back to work. Representative Bunning

added that the passage of the Americans with

Disabilities Act showed that Congress recognizes

that people with disabilities want to work and will

work if the barriers that keep them from working

are eliminated. However, he said, this recognition

tice is that it usually sends the message that people with

disabilities cannot and should not work. Ibid.

199 Bonnie O'Day, member, National Council on Disability,

presentation at 1997 Post-ADA Conference, p. 19.

200 Tony Coelho, Chairman of the President's Committee on

Employment of People with Disabilities, presentation at

1997 Post-ADA Conference, p. 3 (hereafter cited as Coelho

presentation).

never changed the SSDI program, which remains

a "black hole for people with disabilitiesless

than one percent of SSDI recipients leave the rolls

because of work.201

Conference participants called for a major

overhaul of the Nation's disability policy to reconcile these conflicts and create a Federal disability policy that encourages individuals with

disabilities to work, while simultaneously providing them with needed supports, assistance,

and assistive technology.202 For instance, the

Chairman of the President's Committee stated

that, in contrast to the ADA, many government

programs are based on "insulting and patronizing" attitudes about people with disabilities. He

said that the Americans with Disabilities Act is

just a beginning and argued that although the

ADA had provided individuals with disabilities

with statutory protections, the Nation still must

make full participation and equal opportunity a

reality for persons with disabilities. To do this, it

is necessary to change attitudes and policies that

make persons with disabilities dependent.203

In particular, conference participants advocated separating eligibility for federally supported health care from participation in disability benefits programs to offer working people

with disabilities the chance to participate in

such programs, possibly by paying a portion of

their insurance premiums themselves.204 Congressman Bunning, for example, told conference

participants that three main things need to be

done: (1) allow persons with disabilities to choose

what services they will get and who will provide

them; (2) enable as many providers as possible to

participate in the return to work program

through an innovative payment mechanism; and

(3) provide health insurance security.205

2" Congressman Jim Bunning (RKY), presentation at 1997

Post-ADA Conference, p. 28 (hereafter cited as Bunning

presentation).

202 1997 Post-ADA Conference.

203 Coelho presentation, p. 3.

204 Ibid., p. 4. See also Joyce R. Ringer, Executive Director,

Georgia Advocacy Office, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 1, 1998 (stating:

"The unavailability of health insurance should not be a disincentive to work and Medicaid should be available at a

sliding scale.").

205 Bunning presentation, p. 28.

34

46
Conference participants also noted that other

barriers that prevent people with disabilities

from becoming employed, such as inaccessible

transportation and the need for personal assistance supports, need to be addressed for individuals with disabilities to have equal employment opportunity.206

Conference participants pointed to lack of

preparation as another major reason why people

with disabilities have been unable to take advantage of the new opportunities provided by the

ADA. A conference participant representing employers argued that lack of skills is a major barrier to employment for people with disabilities

and the Federal Government needs to assist

them in becoming more competitive in the labor

market.207 The Acting Assistant Secretary for

Policy for the U.S. Department of Labor told conference participants that there is some evidence

that the United States is beginning to experience

a worker shortage, which he believed is really a

skills shortage. He said that it is becoming increasingly necessary to take steps to provide

skills to traditionally excluded groups and the

government should pay the same attention to

eliminating the barriers and providing skills to

individuals with disabilities as it has for individuals on welfare. He added that changes in

technology have, for the first time, made it possible for many people with severe disabilities to

work.208 Another speaker noted that one-half of

students with disabilities do not graduate from

high school and argued that the Federal Government should ensure that they are provided

equal educational opportunity and "relevant

training for jobs of today and tomorrow. "209 In

calling for better job training for people with

disabilities, A representative of United Cerebral

206 E.g., Coelho presentation, p. 4. See also Ringer letter,

attachment, p. 1 (stating: "vocational rehabilitation needs to

be demolished and resurrected with new methods and new

goals to measure success. Rehabilitation needs some assistance from overall policies related to transportation, affordable accessible housing and personal assistance.").

207 Ann Elizabeth Reesman, General Counsel, Equal Employment Advisory Council, presentation at 1997 Post-ADA

Conference, pp. 8-9.

208 Seth Harris, Acting Assistant Secretary for Policy, U.S.

Department of Labor, presentation at 1997 Post-ADA Conference, p. 3.

209 Coelho presentation, p. 4.

35

Palsy Associations said that "[w]ork is where

preparation meets opportunity."210

Conference participants held out the prospect

that reforming the Nation's disability policy not

only would benefit people with disabilities, but

also would save taxpayers' money, because if

people with disabilities were able to work, they

would need less public money. The current system costs taxpayers possibly as much as $300

billion a year and is likely to become even more

costly.211

The National Council on Disability and the

National Academy of Social Insurance both have

called upon Congress to reform the Nation's disability policy along the lines advocated by the conference participants.212 For instance, the Disability Policy Panel of the National Academy of Social

Insurance, pointing to the excessive cost and

complexity of existing policy, which permits persons leaving the SSDI roles to "buy in" to medicare, has recommended "an improved medicare

buy-in that is more affordable and understandable for [SSDI] beneficiaries who return to work

despite the continuation of their impairments.

The Panel recommends a centrally-administered

medicare buy-in with a simplified premium structure scaled to earnings."213 The panel also recommended "a personal assistance tax credit to compensate working people for part of the cost of personal assistance services they need in order to

work."214 The National Council on Disability has

called for a host of changes to existing policy to

create "a system that serves as a trampoline,

rather than a safety net, supporting people as

they maximize their potential, catching them

when they fall, and supporting their efforts toward independence again, always moving toward

210 Tony Young, Policy Associate, United Cerebral Palsy

Associations, presentation at 1997 Post-ADA Conference, p.

7.

211 Coelho presentation, p. 4.

212 See NCD, Achieving Independence; National Academy of

Social Insurance, Balancing Security and Opportunity: The

Challenge of Disability Income Policy, Report of the Disability Policy Panel (Washington, DC: National Academy of

Social Insurance, 1996) (hereafter cited as National Academy of Social Insurance, Balancing Security and Opportunity).

213 National Academy of Social Insurance, Balancing Security and Opportunity, pp. 145-46.

214 Ibid., p. 147.
the goal of maximal employment."215 According to

the National Council on Disability, "key ingredients" of such a system "include access to health

insurance, tax credits to ensure that transitioning

from benefits to employment does not produce

financial disincentives, flexibility to accommodate

disabilities that intermittently limit work capacity, and third parties with a vested interest in assisting people with disabilities in maximizing

their employment."216

The President and Congress have taken steps

towards reforming disability policy to remove

work disincentives and promote the purposes of

the ADA. On March 13, 1998, "to support the

goals articulated in the findings and purpose

section of the Americans with Disabilities Act of

1990," President William J. Clinton issued an

executive order establishing a National Task

Force on Employment of People with Disabilities

"to create a coordinated and aggressive national

policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population."217

The Secretary of Labor is the Chair of the task

force, and the Vice Chair is the Chair of the

President's Committee on Employment of People

with Disabilities. The members of the task force

include Secretaries of a number of Federal Cabinet-level agencies, the Chairperson of the National Council on Disability, the Chair of the

Equal Employment Opportunity Commission,

and heads of several other Federal agencies.218

The task force is charged with issuing four reports between November 15, 1998, and July 26,

2002, to develop and recommend to the President a Federal policy to reduce employment bar215 NCD, Achieving Independence, p. 76.

215 Ibid.

217 Exec. Order No. 13,078, 63 Fed. Reg. 13,111 (1998).

218 The full list of members is: the Secretary of Labor; Secretary of Education, Secretary of Veterans Affairs, Secretary

of Health and Human Services, Commissioner of Social Security, Secretary of the Treasury, Secretary of Commerce,

Secretary of Transportation, Director of the Office of Personnel Management, Administrator of the Small Business

Administration, the Chair of the Equal Employment Opportunity .Commission, the Chairperson of the National council

on Disability, the Chair of the President's Committee on

Employment of People with Disabilities, and "such other

senior executive branch officials as may be determined by

the Chair of the Task Force." Exec. Order No. 13,078, 63

Fed. Reg. 13,111 (1998) at § 1(a).

36

riers faced by individuals with disabilities.

Among the specific charges the Executive order

gives the task force are:

(1) analyze the existing programs and policies of Task

Force member agencies to determine what changes,.

modifications, and innovations may be necessary to

remove barriers to work faced by people with disabilities;

(2) develop and recommend options to address health

insurance coverage as a barrier to employment for

people with disabilities;

(3) subject to the availability of appropriations, analyze State and private disability systems . . . and their

effect on Federal programs and employment of people

with disabilities.219

Congressional action in this area includes introduction in the U.S. House of Representatives

of a bipartisan bill sponsored by Reps. Jim Bunning and Barbara Kennelly.22° If passed, the bill

would move in the direction called for by proponents of disability policy reform. Entitled the

"Ticket to Work and Self Sufficiency Act of 1998"

(H.R. 3433), the bill would extend medicare coverage for people leaving the SSDI rolls and

joining the work force for up to an additional 2

years and would provide other supports to persons with disabilities seeking to enter the work

force.221 For instance, the bill provides social security beneficiaries with choice of providers of

services that assist them in becoming em218 Exec. Order No. 13,078, 63 Fed. Reg. 13,111 (1998) at §§

1(c)(1)(3).

220 H.R. 3433, 105th Cong. (1998).

221 Id. § 3, 105th Cong. (1998). See also "Bunning Announces

Hearing on the 'Ticket to Work and Self-Sufficiency Act of

1998'," Advisory from the Committee on Ways and Means,

Subcommittee on Social Security, Mar. 10, 1998 (hereafter

cited as "Ticket to Work and Self-Sufficiency Act of 1998").

See also "Bipartisan Bill Seeks to Help Disabled leave SSDI

to Return to Work," Daily Labor Report (Mar. 12, 1998), p.

A9. The proposed bill has been criticized for merely adding 2

years to the extended medicare coverage rather than

adopting a sliding scale "buy-in" program that would allow

working people with disabilities to continue in medicare

indefinitely, paying their own premiums at prices depending

on their earnings. See "Ticket to Work and Self-Sufficiency

Act of 1998:" Hearing on H.R. 3433 Before the Subcomm. on

Social Security of the House Comm. on Ways and Means,

105th Cong. 3 (Mar. 17, 1998) (statement of the Consortium

for Citizens with Disabilities Task Force on Social Security,

presented by Tony Young, Public Policy Associate, United

Cerebral Palsy Associations, Inc.).
ployed.222 The bill also would create a demonstration project to test a gradual offset of SSDI

benefits by reducing benefits $1 for every $2 in

earnings above a minimum amount.223 Finally,

the bill would create an Advisory Panel to be

made up of one member each appointed by the

Chairman of the House Committee on Ways and

Means, the ranking minority member of the

Committee on Ways and Means, the Chairman

of the Committee on Finance of the Senate, and

the ranking minority member of the Senate

Committee on Finance, as well as two members

appointed by the President. The Advisory Panel

would advise the Commissioner of Social Security on implementing the Ticket to Work program, on disabled beneficiaries' access to employment networks, on research and demonstration project designs, and on the development of

performance measurements. The Advisory Panel

would submit progress reports to the President

and members of Congress.224 A similar bill, The

Work Incentives Improvement Act of 1998, was

introduced in the U.S. Senate on March 25,

1998, by Sens. James M. Jeffords, Thomas

Harkin, and Edward M. Kennedy.225

222 H.R. 3433, § 2, 105th Cong. (1998). 224 Id.

223 Id.

37

225 S. 1858, 105th Cong. (1988).

49
Organization and Administration of the 3 U.S. Equal Employment Opportunity Commission

Mission and Responsibilities

EEOC was created by title VII of the Civil

Rights Act of 1964 to enforce title VII, which

prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.1 EEOC's mission is "to promote equal opportunity in employment by enforcing the federal

civil rights employment laws through administrative and judicial actions, and education and

technical assistance."2 EEOC carries out its mission through investigation, conciliation, litigation, coordination, regulation, decision, policy

research, outreach and education, and technical

assistance .3

EEOC is responsible for addressing employment discrimination in the Federal and private

sectors, including public and private employers

of 15 or more employees, public and private employment agencies, and labor organizations with

15 or more members.4 EEOC, through its field

and headquarters offices, receives and investiSee Pub. L. No. 88-352, § 705, 78 Stat. 241, 258 (1964)

(codified as amended at 42 U.S.C. § 2000e-4 (1994)).

.2 U.S. Equal Employment Opportunity Commission (EEOC),

"Strategic Plan: 1997-2002," OMB Review Copy, Aug. 18,

1997 (hereafter cited as EEOC, "Strategic Plan").

3 EEOC, "Organization, Mission, and Functions," p. I-1;

EEOC, Fiscal Year 1994 Annual Report, p. 7 (hereafter cited

as EEOC, FY 1994 Annual Report).

4 See 42 U.S.C. §§ 2000e-5(a) (1994). See also U.S. Equal

Employment Opportunity Commission, "Directives Transmittal: Organization, Mission, and Functions," (EEOC Notice 110.002), May 11, 1997, p. 1-1 (hereafter cited as EEOC,

"Organization, Mission and Functions").

38

e

gates discrimination charges and where a violation exists, attempts to secure remedies through

conciliation and, if necessary, court action.5 In

addition, the agency provides leadership in coordinating equal employment opportunity programs with other Federal departments and

agencies; holds hearings on proposed regulations

that affect employees, employers, and labor organizations; and issues decisions on complaints

of employment discrimination or where discrimination is an issues

EEOC's responsibilities have changed since

its inception in July 1965. EEOC's original jurisdiction was title VII enforcement for almost all

nongovernment employers of 25 or more employees and unions, employment agencies, and

sponsors of apprenticeships or other job training

programs.? EEOC could hire staff, establish regional offices, subpoena records, and develop

rules and regulations for carrying out its mandate.8 Its primary functions included regulation,

5 EEOC, "Organization, Mission, and Functions," pp. I-1, II-1.

6 Ibid., p. II-1.

7 Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701, 703,

78 Stat. 241, 253, 255-59 (codified as amended at 42 U.S.C.

§ 2000e(b), 2000e-2 (1994)). See also U.S. Commission on

Civil Rights (USCCR), Federal Enforcement of Equal Employment Requirements (Washington, DC: U.S. Government

Printing Office, July 1987), p. 10 (hereafter cited as USCCR,

Federal Enforcement of Equal Employment Requirements).

8 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241,

258, 264-65 (codified as amended at 42 U.S.C. §§ 2000e-4,

2000e-9, 2000e-12 (1994)). See also USCCR, Federal Enforcement of Equal Employment Requirements, p. 10.

50
complaint (or charge) investigation, and conciliation. EEOC could intervene in litigation as a

"friend of the court."9 It could not enforce decisions without assistance from the U.S. Department of Justice or the private bar and was limited to seeking compliance with title VII through

"persuasion and negotiation" between the complainant and the respondent.10

In 1972 Congress amended title VII and gave

EEOC new enforcement authority and expanded

jurisdiction. EEOC's new authority included the

power to file lawsuits against private employers,

employment agencies, and unions when conciliation efforts failed, and authority (which shifted

from the Department of Justice) to file systemic

("pattern and practice") suits against private

employers.11 The 1972 amendments also extended EEOC's jurisdiction to all educational

institutions and State and local governments

and broadened title VII coverage to include employers of 15 or more employees and unions with

15 more members.12

President Jimmy Carter's Reorganization

Plan of 197813 established EEOC as the lead

agency for coordinating all Federal equal employment policies and procedures.14 In addition,

EEOC received enforcement responsibility for

the Age Discrimination in Employment Act

(ADEA)15 and the Equal Pay Act (EPA).16 The

9 USCCR, Federal Enforcement of Equal Employment Requirements, p. 10.

10 Ibid.

11 Equal Employment Opportunity Act of 1972, Pub. L. No.

92-261, 86 Stat. 103, 104-07 (codified as amended at 42

U.S.C. §§ 2000e-5(f)(1), 2000e-6(a) and (c) (1994)). See also

USCCR, Federal Enforcement of Equal Employment Requirements, p. 10.

12 Equal Employment Opportunity Act of 1972, Pub. L. No.

92-261, 86 Stat. 103 (codified as amended at 42 U.S.C. §§

2000e(b), 2000e(e) (1994)). See also USCCR, Federal Enforcement of Equal Employment Requirements, p. 10.

13 Reprinted in 42 U.S.C. § 2000e-4 app. (1994).

14 Exec. Order No. 12,067, 3 C.F.R. 206 (1978), reprinted in

42 U.S.C. § 2000e app. (1994).

19 29 U.S.C. §§ 621-634 (1994).

16 29 U.S.C. § 206(d) (1994). Responsibility for these two

laws transferred from the Wage and Hour Division of the

Department of Labor. See USCCR, Federal Enforcement of

Equal Employment Requirements, p. 11.

39

reorganization also transferred to EEOC responsibility for enforcing equal employment opportunity requirements in the Federal sector under

section 501 of the Rehabilitation Act of 197317

and section 717 of title VII, which prohibits discrimination by Federal agencies on the basis of

race, color, sex, religion, or national origin.18 The

1978 Pregnancy Discrimination Act amended

title VII to provide that employment discrimination because of pregnancy, childbirth, or related

medical conditions constitutes unlawful sex discrimination.19

In 1992 EEOC began to enforce title I of the

Americans with Disabilities Act of 1990 and the

Civil Rights Act of 1991.20 With the addition of

the ADA, EEOC's jurisdiction expanded to include protection of employees and applicants

from employment discrimination in the workplace based on race, color, religion, sex, national

origin, and disability. In addition to processing

ADA complaints, the EEOC develops regulations, and, in consultation with the Attorney

General, develops and implements a technical

assistance plan to assist entities covered under

the act.21 The Department of Justice has litigation authority for charges against State and local

governments under title VII and the ADA.22

17 29 U.S.C. § 791(b) (1994).

18 The section also requires Federal agencies to maintain

equal opportunity programs and gives EEOC overall responsibility for Federal procedures used in processing internal

discrimination complaints. 42 U.S.C. § 2000e-16 (1994). See

also USCCR, Federal Enforcement of Equal Employment

Requirements, p. 11.

19 See 42 U.S.0 § 2000e(k) (1994).

20 EEOC, "Organization, Mission, and Functions," pp. 1-2-3;

EEOC, FY 1993 Annual Report, p. v.; EEOC, FY 1999 Annual Report, p. 2.

21 EEOC, "Organization, Mission and Functions," pp. 1-2-3.

22 See 42 U.S.C. §§ 2000e-5(f), 12134 (a) (1994); U.S. General Accounting Office, EEOC's Expanding Workload: Increases in Age Discrimination and Other Charges Call for a

New Approach (Report to the Chairman, Special Committee

on Aging, U.S. Senate, February 1994), p. 6 (hereafter cited

as GAO, EEOC's Expanding Workload).

J
FIGURE 3.1 The Equal Employment Opportunity Commission AC Cornrrissioner Vice Chairman Chairman Commissioner Commissioner General Counsel Office of Legal Counsel Systematic Enforcement Services Appellate Services Litigation Management Services Litigation Advisory Services Tittle VII/ EPA Division ADA POLICY DIVISION COORDINATION DIVISION Office of Field Programs Field Coordination Programs District Offices Field Offices Source: EEOC, "Organization, Mission and Functions," p. 1-7. Ilg=1=15.11.151=21.91.11199/ Area Offices Washington Field Office State and Local Fair Employment Practices Agencies
Structure

EEOC and other commentators have argued

that EEOC's responsibilities have expanded at a

greater pace than its resources.23 Further, as its

enforcement duties increased with the passing of

the ADA and the Civil Rights Act of 1991, staff

and resources began to shrink. EEOC alleges

that it does not have sufficient resources to accomplish its mission.24 However, although task

forces established by Former Chairman Casellas

to analyze various issues25 have alluded to

staffing and resources as barriers to EEOC fulfilling its mission, a formal review of the organizational structure of EEOC and staff allocation

has not been done.26

Five Commissioners are responsible for the

administration of the EEOC. They are appointed

by the President and confirmed by the U.S. Senate. Commissioners are appointed for 5-year

staggered terms. The Commissioners develop

and approve the policies of the EEOC, participate equally on all matters, decide questions by

majority vote, issue Commissioners' charges of

discrimination where appropriate, authorize and

approve the filing of suits, and perform any

other functions related to issues that come before EEOC.27

23 See Paul M. Igasaki, Acting Chairman, EEOC, interview

in Washington, DC, Apr. 7, 1998, p. 2 (hereafter cited as

Igasaki interview); Paul Steven Miller, Commissioner,

EEOC, interview in Washington, DC, Apr. 2, 1998,

(hereafter cited as Miller interview); Hearings Before the

Subcomm. on Employer-Employee Relations of the House

Comm. on Education and the Workforce, 105th Cong. 5

(Mar. 13, 1998), p. 3 (statement of David A. Cathcart, partner, Gibson, Dunn & Crutcher) (hereafter cited as Cathcart

testimony).

24 The Strategic Plan cautions that EEOC's growing workload, in part due to the Americans with Disabilities Act, also

could impede its ability to achieve its goals and asserts that

EEOC "received no new resources for ADA enforcement."

EEOC, "Strategic Plan," p. 42.

25 See EEOC, "EEOC's State and Local Program Relationship with Fair Employment Practice Agencies: EEOC/FEPA

Task Force Report to Chairman Gilbert F. Case llas," Mar.

15, 1996 (hereafter cited as EEOC, "FEPA Task Force Report"); EEOC, "Charge Processing Task Force Report," December 1994-March 1995, (hereafter cited as EEOC, "Charge

Processing Task Force Report"); U.S. Equal Employment

Commission, "Task Force on Alternative Dispute Resolution:

Report to Chairman Gilbert F. Casellas," March 1995

(hereafter cited as EEOC, "ADR Task Force Report").

26 Igasaki interview; Miller interview, p. 3.

27 EEOC, "Organization, Mission, and Functions," p. II-1.

41

BEST COPY AVAILABLE

The President designates a Chairman and a

Vice Chairman. The Chairman is responsible for

the implementation of EEOC policy and has the

authority to appoint attorneys and other person- nel and agents to assist the EEOC in the

achievement of its policy, mission, and functions.

The Chairman recommends policies, procedures,

and programs to the agency and carries out

other functions, including financial management

and organizational development of the EEOC.

The Vice Chairman serves as Acting Chairman

in the absence of the Chairman.28 According to

several EEOC officials, all final major decisions

on budget, staffing, policy statements, organizational structure, and so on are made by the

Commissioners.29

EEOC was reorganized in May 199730 as "part

of the Commission's continuing efforts to reinvent

and improve the effectiveness of the agency."31

EEOC consists of 11 offices at headquarters and

50 field offices (district, area, and local offices)

nationwide.32 The headquarters offices most involved in EEOC's ADA enforcement are the Office

of General Counsel, the Office of Legal Counsel,

and the Office of Field Programs. The other headquarters offices are: Executive Secretariat; Office

of Equal Opportunity; Office of Communications

and Legislative Affairs; Office of Federal Operations; Office of Human Resources; Office of Research, Information, and Planning; Office of In28 Ibid.

29 See Ellen Vargyas, Legal Counsel, Office of Legal Counsel,

EEOC, interview in Washington, DC, Apr. 8, 1998, p. 1 (hereafter cited as Vargyas interview); Christopher Kuczynski, Director, Americans with Disabilities Act Division, Office of Legal Counsel, EEOC, interview in Washington, DC,

Apr. 7, 1998, pp. 2-3 (hereafter cited as Kuczynski interview); Godfrey Dudley, Keziah Walker, and Ralph Soto,

Field Management Programs, Office of Field Programs,

EEOC, interview in Washington, DC, Apr. 7, 1998, p. 3

(hereafter cited as Dudley interview); Peggy R. Mastroianni,

Associate Legal Counsel, Office of Legal Counsel, EEOC,

interview in Washington, DC, Apr. 6, 1998, pp. 1, 10

(hereafter cited as Mastroianni interview).

3° See EEOC, "Organization, Mission, and Functions."

31 Claire Gonzales, Director of Communications and Legislative Affairs, letter to Judd Gregg, Chairman, Subcommittee

on Commerce, Justice, State, the Judiciary and Related

Agencies, Committee on Appropriations, U.S. Senate, Apr.

18, 1997.

32 EEOC, FY 1999 Annual Report, p. 7; EEOC, Office of Program Operations, FY 1995 Annual Report (hereafter cited as

EEOC, FY 1995 Annual Report).
formation Resources Management; and Office of

Financial Resource Management.33

Office of General Counsel

EEOC's General Counsel is appointed by the

President and confirmed by the U.S. Senate. The

term of the General Counsel is 4 years.34 The

Office of General Counsel is responsible for all

enforcement litigation on behalf of the EEOC.35

The General Counsel is delegated the authority

to make decisions to "commence or intervene" in

all litigation, except in cases where such litigation would involve "a major expenditure of resources; cases where the EEOC has not yet

adopted a position in developing areas of law;

cases that would likely raise public controversy;

and amicus curiae cases, which need to be approved by the Commissioners. The General

Counsel also is delegated the authority to refer

public sector title VII and ADA cases that cannot

be conciliated to the Department of Justice. The

General Counsel may redelegate this authority

to the regional attorneys operating in EEOC's

field offices.36

The Office of General Counsel has four major

units:37

Systemic Enforcement Services investigates and litigates systemic cases and Commissioner charges. Its mission is to litigate cases

that (1) involve systemic patterns or practices

applying to large numbers of persons, and generally requiring expert testimony as part of

33 EEOC, "Organization, Mission, and Functions," p. 1-7.

341bid., pp. I-1, 111-5.

35 Ibid., p. 111-3.

as EEOC, "National Enforcement Plan," February 1996, p. 8.

37 The 1997 reorganization of EEOC moved Systemic Investigations and Review Programs to the Office of General

Counsel from the Office of Program. Operations (renamed,

under the reorganization, Office of Field Programs). The

1997 Directives Transmittal on EEOC's reorganization indicated, however, that the Office of General Counsel was undergoing an "extensive review" and might undergo further

reorganization. EEOC, "Organization, Mission, and Functions," pp. 111-12-111-13. According to an assistant general

counsel, the Systemic Litigation Services unit and the Systemic Investigations and Review Programs unit were

merged into a single unit, Systemic Enforcement Services. Gerald Letwin, Assistant General Counsel, System Enforcement Services, Office of General Counsel, EEOC, interview in Washington, DC, Apr. 6, 1998, p. 1 (hereafter cited

as Letwin interview).

42

EEOC's proof in the cases, and (2) raise novel

legal questions and would lead to clarification of

the law or development of authority for important issues. The latter cases do not necessarily

apply to classes of people, but would have an

effect on large numbers of people by virtue of

clarifying or developing the law.38

Appellate Services represents EEOC in

appeals of its own cases and as amicus curiae in

private cases.39

Litigation Management Services oversees

EEOC's litigation in trial courts (with the exception of headquarters systemic litigation). This

unit is responsible for overseeing the litigation

work in the field and supporting and coordinating the work of the legal units in the district offices. The Litigation Management Services unit

produces brief banks, collects jury instructions,

and prepares model pleadings for use by the

field offices. In addition, the unit prepares

memoranda on particular substantive and procedural matters (such as attorney-client privilege and compensatory damages) and has prepared instructional manuals on discovery and

preparing witnesses for deposition.49

Litigation Advisory Services reviews and

recommends approval or disapproval of litigation proposals for the General Counsel's consideration.41

The units of the Office of General Counsel coordinate with other 'EEOC offices in a variety of

ways. For example, an Assistant General Counsel

for Litigation Management Services stated that

his unit interacts frequently with the Research

and Analytic Services staff in the Office of Gen38 Letwin interview, pp. 1-2. See also Peggy R. Mastroianni,

Associate Legal Counsel, EEOC, letter to Frederick D. Is ler,

Assistant Staff Director, Office of Civil Rights Evaluation

(OCRE), USCCR, July 9, 1998, Comments of the U.S. Equal

Employment Opportunity Commission, pp. 2-3 (hereafter

cited as EEOC Comments).

39 Vincent Blackwood, Assistant General Counsel, Appellate

Services, Office of General Counsel, EEOC, interview in

Washington, DC, Apr. 2, 1998, p. 1 (hereafter cited as

Blackwood interview). See also EEOC Comments, p. 3.

49 Jerome Scanlan, Assistant General Counsel, Litigation

Management Services, Office of General Counsel, EEOC,

interview in Washington, DC, Apr. 6, 1998, pp. 1-3

(hereafter cited as Scanlan interview). See also EEOC

Comments, p. 3.

41 EEOC, "Organization, Mission, and Functions," pp. III7-111-13. See also EEOC Comments, p. 3.
eral Counsel, which is a group of social scientists

who provide expertise for complex cases, such as

on issues related to labor economics and testing.

The Litigation Management Services unit also

interacts with the Office of Legal Counsel on issues of personnel law and ethics.42 Similarly, the

Systemic Litigation Services unit frequently

works with staff in Appellate Services and the

Office of Legal Counse1.43

In their joint report published in March 1998,

the Priority Charge Handling Task Force and

the Litigation Task Force recommended that the

systemic unit develop a Systemic Enforcement

Plan to explain how the unit plans to supplement the systemic work done by the field offices.

According to the report, the plan should set goals

for expected results and the unit should be responsible for achieving such results.44

Office of Legal Counsel

The Office of Legal Counse145 provides legal

advice and counsel to the Chairman and to the

agency. In addition, the office prepares decisions, regulations, guidance, and legal policy implementing EEOC's covered statutes and represents the Commission in litigation when it is a

defendant, except in matters arising out of enforcement litigation.46 For example, when Congress passed the ADA in 1990, the Office of Legal Counsel reviewed the legislation and drafted

Commission recommendations for changes, as

well as developed work plans to implement the

regulations and a technical assistance program

to inform those covered and protected by the

ADA. The Office of Legal Counsel provided initial training on the ADA to EEOC staff and pre42 Scanlan interview, p. 5.

43 Letwin interview, pp. 3-4.

44 EEOC, Priority Charge Handling Task Force, Litigation

Task. Force Report (March 1998), p. 32 (hereafter cited as

EEOC, March 1998 Task Force Report).

45 The primary difference between the Office of Legal Counsel

and the Office of General Counsel is that the Office of General

Counsel conducts litigation while the Office of Legal Counsel

provides legal advice and counsel and develops regulations

and other statements implementing the various statutes.

EEOC, "Organization, Mission, and Functions," p. V-3.

46 EEOC, "Organization, Mission, and Functions," p. V-3.

43

pared policy guidance documents on the ADA for

field staff and the public.47

The 1997 reorganization of EEOC realigned

the Office of Legal Counsel so all staff in the litigation divisions reports to the Deputy Legal

Counsel, while the Coordination and Guidance

divisions report to the Associate Legal Counsel.

The Office of Legal Counsel consists of the Legal

Counsel, Deputy Legal Counsel and Legal Services Programs, and Associate Legal Counsel and

Coordination and Guidance Programs.48 Coordination and Guidance Programs has three divisions:

ADA Policy Division, which develops and

interprets EEOC policy guidance with respect to

the ADA and sections 501 and 504 of the Rehabilitation Act of 1973. Other responsibilities include: preparing opinion letters, drafting Commission decisions, and providing technical assistance.49 ADA Policy Division staff is involved in

training and technical assistance for a variety of

groups including EEOC headquarters staff, field

offices, and other organizations.50

Title VII/ADEA/EPA Division, which develops and interprets EEOC policy for title VII of

the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Equal

Pay Act (EPA).51 Previously, there had been two

separate divisions that covered title VII/EPA

and the ADEA.52

Coordination Division, which provides

staff support under Executive Order 12067,53

which designated EEOC as the lead equal employment opportunity agency and requires it to

coordinate overlapping equal employment opportunity responsibilities among Federal agencies.54

47 EEOC, Fiscal Year 1990 Annual Report, p. 8 (hereafter

cited as EEOC, FY 1990 Annual Report).

48 EEOC, "Organization, Mission, and Functions," p. V-1.

See also EEOC Comments, pp. 3-4.

49 EEOC, "Organization, Mission, and Functions," p. V-8.

59 Kuczynski interview.

51 EEOC, "Organization, Mission, and Functions," p. V-7.

52 Kuczynski interview, p.3.

53 Reprinted in 42 U.S.C. § 2000e app. (1994).

54 EEOC, "Organization, Mission, and Functions," p. V-7.

See Carol Miaskoff, Assistant Legal Counsel, Coordination

Division, Office of Legal Counsel, EEOC, interview in

Washington, DC, Apr. 7, 1998, p. 1 (hereafter cited as Miaskoff interview).

U
TABLE 3.1

EEOC District, Area, and Local Offices

District office Area office(s) Local office(s)

No. of No. of No. of

Location staff Location staff Location staff

Albuquerque, NM 28

Atlanta, GA 88 Savannah, GA 7

Baltimore, MD 69 Norfolk, VA 16

Richmond, VA 24

Birmingham, AL 67 Jackson, MS 28

Charlotte, NC 61 Raleigh, NC 17 Greensboro, NC 7

Greenville, SC

Chicago, IL 83

Cleveland, OH 62 Cincinnati, OH 20

Dallas, TX 76 Oklahoma City, OK 19-

Denver, CO 59

Detroit, MI 56

Houston, TX 73

Indianapolis, IN 61 Louisville, KY 15

Los Angeles, CA 67 San Diego, CA 18

Memphis, TN 61 Little Rock, AR 18

Nashville, TN 20

Miami, FL 83 Tampa, FL 28

Milwaukee, WI 49 Minneapolis, MN 17

New Orleans, LA 70

New York, NY 74 Boston, MA 17 Buffalo, NY 9

Philadelphia, PA 73 Newark, NJ 16

Pittsburgh, PA 27

Phoenix, AZ 61

San Antonio, TX 58 El Paso, TX 19

San Francisco, CA 53 Fresno, CA 5

Oakland, CA 6

San Jose, CA 8

Honolulu, HI 5

Seattle, WA 54

St. Louis, MO 59 Kansas City, MO 25

Washington, DC 43

Total 1,588 375 22

Note: Data as of Feb. 25, 1998.

Source: Peggy R. Mastroianni, Associate Legal Counsel, EEOC,

letter to Frederick Is ler, Assistant Staff Director, OCRE, USCCR,

Mar. 6, 1998, attachment item B-6-8.

44
Most of the work done by this unit is providing general advice on policy. Agencies consult

EEOC when issuing policies that have an impact

on equal employment opportunity.55

Office of Field Programs

The Office of Field Programs (OFP) is responsible for administrative enforcement of the statutes under EEOC's jurisdiction." According to

the Director of the Office of Field Programs, OFP

is a "service organization." Its responsibility is to

provide guidance to the field offices.57 The office

monitors field offices and provides information

on how they can improve their operations and

share information with each other." OFP also

provides technical assistance and education for

the field, headquarters, and the public on EEOC's administrative enforcement process and

the laws. It develops operational plans and

budgets for the charge resolution process for title

VII, the EPA, the ADEA, and the ADA.59

OFP consists of three units:"

Field Management Programs, which

oversees, coordinates, monitors, and evaluates

EEOC's field offices. Field Management Programs staff members do site visits to field offices

to provide technical assistance. In fiscal year

1997, they visited approximately 16 offices. Visits are more informal now than in the past. For example, with the new charge processing system

they look at how an office is processing its cases.

If the processing appears to be inconsistent with

the guidance that has been provided to the of55 Miaskoff interview, p. 1.

56 EEOC, "Organization, Mission, and Functions," p. VI-3. 57 Elizabeth Thornton, Director, Office of Field Programs,

EEOC, interview in Washington, DC, Apr. 1, 1998, p. 5

(hereafter referred to as Thornton interview). 58 Thornton, interview, p. 1. 59 EEOC, "Organization, Mission and Functions," p. VI-4 VI-5. 60 EEOC's 1997 reorganization revised the Office of Field

Programs extensively. In addition to changing the office's

name from Office of Program Operations to Office of Field

Programs, the reorganization consolidated two Field Management Programs (East and West) into the Field Management Programs Unit. The reorganization eliminated Charge

Resolution Review Programs unit and created the State and

Local Programs and Field Coordination Programs units.

EEOC, "Organization, Mission, and Functions," p. 2.

45

(ices, Field Management Programs staff will explain the guidelines and make recommendations

concerning how the office might adjust its case

processing operations to better conform with

agency procedures.61

Field Coordination Programs, which is

responsible for EEOC's alternative dispute

resolution (ADR) program, the outreach pro- gram, including the revolving fund, and other

field-related special emphasis programs." According to the Director of the Field Coordination

Program unit, the revolving fund is a selfsustaining training fund that was created several years ago to provide technical assistance to

employers and others. Under the revolving fund,

technical assistance program seminars (TAPS)

are conducted, and special customer specific

training is delivered in response to the needs of

organizations requesting assistance, for a fee."

The unit also is responsible for coordinating field

office ADR programs. Cases that appear to be

appropriate for ADR are referred to the ADR

unit for handling before the investigation proc- ess begins."

State and Local Programs, which monitors the State fair employment practices agen- cies (FEPAs) and tribal employment rights organizations." This office recommends policy development, oversees the State and local account,

and manages the dual-filed caseload on a national basis.

According to the Director of the State and Local Programs unit, analysts are assigned to coordinate with the district offices to monitor FEPA

activities. Approximately 90 FEPAs have contracts with EEOC for the resolution of charges

under statutes that EEOC enforces."

61 Dudley interview, p. 1. 62 See chap. 5 for a discussion of EEOC's alternative dispute

resolution program and chap. 7 for a discussion of the re- volving fund. 63 Paula Choate, Director, Field Coordination Programs,

Office of Field Programs, EEOC, interview in Washington,

DC, Apr. 1, 1998 (hereafter cited as Choate interview). 64 Ibid., p. 2. 65 See pp. 48-51 below for a discussion of the State fair em- ployment practices agencies. 66 Michael Dougherty, Director, State and Local Programs,

Office of Field Programs, EEOC, interview in Washington,
Field Offices

The field offices report to the Director of the

Office of Field Programs.67 EEOC employs 1,985

staff persons in 50 field offices, which include 24

district offices, the Washington, DC field office,

and 25 area and local offices.68 District offices are

under the direct supervision of the Director of the

Office of Field Programs. Area and local offices in

a district are under the direct supervision of a

district director.69 All district offices are responsible for charge intake, investigation, conciliation,

litigation, and the ADR function.79 In addition

district offices have the Federal sector hearings

program and outreach and revolving fund activities for both private and Federal sectors.71

Field offices have reported varying levels of interaction with EEOC headquarters staff. The extent of interaction with headquarters is related to

the role of field staff and the office in which they

work. For example, a regional attorney stated

that she always receives timely advice from the

Office of Legal Counsel, but she was unaware of

the steps the Office of Field Programs has taken

to assist field offices in the implementation of

changes recommended by the task forces.72 A trial

attorney in the same office described less frequent

interaction, stating that he has called headquarters approximately three times and has been

called a few times by headquarters staff.73 Investigators have noted that they have little interacDC, Apr. 2, 1998, p. 1 (hereafter cited as Dougherty interview).

67 EEOC, "Organization, Mission, and Functions," pp. VI3V1-15.

68 EEOC, Office of Program Operations, FY 1995 Annual

Report, p. ii. See table 3.1 for a list of district, area, and local

offices and the number of staff employed in each office.

69 EEOC, "Mission and Functions," p. VI-15.

70 These functions are assessed in chap. 5.

71 Peggy R. Mastroianni, Associate Legal Counsel, EEOC,

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, July 17, 1998, Comments of the U.S. Equal Employment Opportunity Commission, p. 2 (hereafter cited as

EEOC Comments, July 17, 1998).

72 Pamela Thomason, Regional Attorney, Los Angeles District Office, EEOC, telephone interview, Apr. 14, 1998, p. 2

(hereafter cited as Thomason interview).

73 Peter Laura, Trial Attorney, Los Angeles District Office,

EEOC, telephone interview, Apr. 8, 1998, p. 3 (hereafter

cited as Laura interview).

46

tiofi with headquarters staff 74 Alternatively, the

director of the Charlotte District Office stated that

headquarters staff has been extremely helpful

and responsive:78

In April 1998, Acting Chairman Paul M.

Igasaki directed the Office of Human Resources,

the Office of Research, Information, and Planning, the Office of Financial and Resource Management, and the Office of Information Resources Management to develop "Field Support

Plans designed to enhance service responsiveness and accountability to the field."76 The Acting Chairman also recommended that the Office

of General Counsel and the Office of Field Programs jointly develop a work plan to provide enhanced support to field offices in the implementation of the. Local Enforcement Plans.77

District Offices

The district offices are responsible for EEOC's

enforcement functions through determination and

litigation, as necessary, of all charges filed under

title VII, the ADEA, the EPA, and the ADA. The

district offices resolve discrimination cases using

various case processing systems, seek remedies

for employment discrimination through litigation

within the Federal court system,'' and eliminate

employment discrimination through investigation

and settlements.78 District offices are headed by

district directors who supervise all staff in the

district offices except those in the legal division,

who report to regional attorneys (who in turn report to the General Counsel).

In addition to the Office of the Director, most

district offices have an Enforcement Management Group consisting of a Charge Receipt/Technical Information Unit, an Enforce74 See Cheryl Mabry-Thomas, Investigator, Chicago District

Office, EEOC, telephone interview, Apr. 14, 1998, p. 2

(hereafter cited as Mabry-Thomas interview); Devika Dubey,

Investigator, Boston Area Office, EEOC, telephone interview,

Apr. 10, 1998, p. 2 (hereafter cited as Dubey interview).

75 Marsha Drane, District Director, Charlotte District Office,

EEOC, telephone interview, Apr. 13, 1998, p. 2 (hereafter

cited as Drane interview).

76 Paul Igasaki, Acting Chairman, EEOC, operational recommendations presented at Apr. 21, 1998 EEOC Commission meeting.

77 Ibid.

78 EEOC, "Organization, Mission and Functions," p. XV-3.

59
ment Unit, and a Systemic Unit and a Legal Division (headed by the regional attorney).

Charge Receipt/Technical Information Units serve various functions, including pro- viding administrative and technical support to

the enforcement units, assisting in substantial weight reviews,79 and communicating with

charging parties and respondents about the

status of charges.89

Enforcement Units do counseling and precharge interviewing and receive charges under

title VII, ADEA, EPA, and the ADA; investigate charges; and collect and analyze information to

resolve charges.81

Systemic Units recommend pattern and

practice investigations, investigate employment

systems, identify and attempt to resolve instances of discriminatory practices, and review

compliance with negotiated settlement and conciliation agreements.82

Legal Divisions, supervised by the regional

attorney under the direction of the Office of

General Counse1,83 provide legal advice to and

consult with enforcement staff during the complaints process. They also review cases for which

conciliation failed and recommend to the General Counsel those cases that may be considered

for litigation in Federal court. They litigate title

VII, EPA, ADEA, and ADA cases under the supervision of the General Counse1.84

Each district office has a program analyst in

the Office of the Director who is responsible for

coordinating and implementing the office's outreach and revolving fund activities and internal

training of staff.85

Area Offices

The area offices are under the direction of the

district office. An area director provides overall

direction, coordination, and leadership support to

the office.86 The area offices resolve discrimination

79 See p. 17 below for a discussion of Substantial Weight Reviews.

80 EEOC, "Organization, Mission and Functions," p. XV-6.

81 Ibid., pp. XV-6XV-8.

82 Ibid., p. XV-8.

83 Ibid., p. XV-4.

84 Ibid., pp. XV-8XV-9.

ss EEOC Comments, July 17, 1998, p. 2.

ss EEOC, "Organization, Mission, and Functions," p. XV-16.

47

cases87 and provide administrative and technical

support to the enforcement units for notices,

counseling, and precharge interviewing. They also

investigate charges of discrimination filed under

title VII, EPA, ADEA, and ADA.88 Each area office has a Charge Receipt/Technical Information

Unit and an Enforcement Unit(s) with functions

similar to those in district offices. However, the

area offices do not have Systemic Units or Legal

Divisions. The area offices also monitor compliance, in consultation with the Legal Divisions,

and make appropriate recommendations for enforcement action.89

Local Offices

The local offices also are under the direction

of the district offices. Local offices do counseling and precharge interviewing, frame written

charges of discrimination, investigate, and obtain settlements for complaints filed under title

VII, EPA, ADEA, and ADA. The local offices

collect and analyze information to recommend

the disposition of charges and provide other

EEOC offices with sufficient information to render informed cause or no cause determinations.

The local offices collect the information on

charges primarily through investigation, review

of compliance reports, and monitoring.99

Washington Field Office

The Washington Field Office (in Washington,

D.C.) is under the direction of the Office of Field

Programs. Its responsibilities include investigation, determination, and appropriate resolution of discrimination cases, and securing relief

through implementation of various case proc- essing systems. It also provides administrative

and technical support to the enforcement units

handling inquiries and potential charges or

complaints of discrimination under title VII,

EPA, ADEA, and ADA.91

87 Ibid., p. XV-11.

88 Ibid., p. XV-12.

89 Ibid.

99 Ibid., pp. XV-15XV-16.

91 Ibid., pp. XV-10XV-20.

6 o
State and Local Fair Employment

Practices Agencies

District offices oversee from one to nine State

and local fair employment practices agencies

(FEPAs). There are approximately 90 FEPAs

with which EEOC contracts for resolution of

charges under the statutes EEOC enforces.92

EEOC's "partnership" with certified FEPAs in

processing employment discrimination charges

has its statutory basis in title VII of the Civil

Rights Act of 1964.93 FEPAs are any certified

State or local authority with which the EEOC

can dual-file title WI, ADEA, and ADA

charges." The use of FEPAs in handling employment discrimination cases under the direction of the EEOC is found in EEOC's procedural

re gulations.95

State and local FEPAs receive payment to investigate and resolve employment discrimination charges. Generally, FEPAs are State and

local agencies that enforce State antidiscrimination ordinances that cover a broad range of civil

rights and human rights laws.95 States with laws

that are similar in enforcement and intent to the

civil rights laws enforced by EEOC contract with

EEOC for the resolution of charges that can be

dual-filed under the State law and the Federal

law.97 Many FEPAs were in existence for over 20

years before the establishment of the EEOC. In

fact, at its creation, EEOC was seen by some

legislators and researchers to be the national or

Federal counterpart to these agencies.98

According to the Director of State and Local

Programs, each field office has a State and local

coordinator who has contact with the FEPAs.

Program analysts in the Office of Field Programs, State and Local Programs Division, work

with the State and local coordinators. Occasion92 Dougherty interview.

93 42 U.S.C. § 2000e-5 (1994).

94 EEOC, "FEPA Task Force Report," pp. I-1, XVII; 42

U.S.C. § 20002-5(c) (1994).

95 29 C.F.R. §§ 1601.70-1601.80 (1997).

96 See USCCR, Federal Civil Rights Enforcement Effort,

1971, p. 85.

97 Dougherty interview, p. 2.

98 See USCCR, Federal Civil Rights Enforcement Effort

(Washington, DC: U.S. Government Printing Office, 1971),

p. 85 (hereafter cited as USCCR, Federal Civil Rights Enforcement Effort, 1971).

48

ally, FEPA staff may work directly with the program analysts at headquarters, or a FEPA director may interact directly with the Director of

State and Local Programs. EEOC headquarters

staff does not conduct onsite visits of FEPAs,

primarily because of a lack of resources.99

EEOC does not dictate the method of investigation FEPAs use to handle dual-filed charges.

EEOC provides assistance, as needed, but does

not get involved in the investigation process.

Dual-filed cases are not prioritized as category

A, B, or C. Each FEPA has its own intake and

categorization methods.199 FEPAs investigate

only those complaints that are filed directly with

them. FEPAs do not usually investigate cases

that are first filed with EEOC.191

Congress earmarks funds in EEOC's annual

appropriation budget specifically for the State and

local program.192 In fiscal year 1995, the State

and local program received an appropriation of

$26.5 million. Of the total, approximately $24

million was used to contract with 89 FEPAs to

complete a total of 48,486 "dual-filed" (filed with

both EEOC and the FEPA) cases.193 For FEPAs to

receive payment for their assistance, there has to

be a "contract" between EEOC and the FEPAs.104

These "contracting principles" are in a document

that sets forth eligibility criteria that a State or

local agency must meet for continuing yearly con -

tracts.'05 The contracting principles between

EEOC and FEPAs are approved by the Commis99 Dougherty interview, pp. 1-2.

ioo Dougherty interview, p. 2. See South Dakota Division of

Human Rights, letter to Frederick D. Isler, Assistant Staff

Director, OCRE, USCCR, March 1998.

101 See Norman Lindell, Deputy Director, State of West Virginia Human Rights Commission, letter to Rebecca Kraus,

USCCR, Mar. 31, 1998.

102 EEOC's funding relationship with the FEPAs began in

1966 with a small research contract. Currently, funds to pay

FEPAs are provided as part of EEOC's annual appropriations. EEOC, "FEPA Task Force Report," p. I11-5; EEOC

1992-97 Budget Reports.

103 EEOC, "FEPA Task Force Report," pp. 111-5; V-1. The

"fee" for the 48,486 "dual filed" charge resolutions was $500

per charge and $50 for each of the 2,067 intake charges.

Ibid., p. V-1.

104 Most FEPAs have title VII contracts; however, some do

not have ADA or ADEA contracts. See EEOC, "FEPA Task

Force Report," p. X-3.

105 Ibid., p. III-8.

61
sion each year and are amended to reflect changing priorities in case processing.106

A FEPA must meet certain requirements to

be eligible for a contract. A State or local agency

must have been "designated" as a FEPA for at

least 4 years before its work can be "certified" by

EEOC.'°7 To become a "designated" FEPA, the

State or local agency must be in a locality that has a fair employment practice law and must be

an agency or authority empowered to seek or

grant relief or institute criminal proceedings under the law. In addition, the agency must submit

a written request to the Director of Field Programs with a copy of its fair employment practice laws and regulations.108

According to EEOC's Director of State and Local Programs, EEOC reviews the State laws to

determine if they are compatible with the Federal

laws; they also may review the local regulations.

Because not all laws are compatible, FEPA contracts may specify that only certain statutes may be handled by the FEPA.109 For instance, the

FEPA for the State of Tennessee does not investigate ADA complaints where an individual requires reasonable accommodation, because the

Tennessee State statute does not allow the FEPA

to require an employer to provide reasonable accommodation to an individual with a disability.iio However, FEPAs that have more stringent re- quirements are authorized to handle dual-filed

cases. For example, the Director of Enforcement

for the Washington State Human Rights Commission noted two differences between the ADA and

the Washington State Law Against Discrimination (RCW 49.60). The State law covers employers of 8 or more employees, while the ADA covers

employers of 15 or more. Further, the State administrative rule (WAC 162-22-040 (1) (a), (b))

defines disability to include temporary medical conditions that are excluded from the Federal

106 Ibid., pp. 111-1-2, 5, and 8.

1°7 Ibid., p. V-1.

108 Ibid., pp. V-1-2.

108 Dougherty interview, p. 2.

110 Ronald L. Hardaway, Administrative Services Assistant, State. of Tennessee Human Rights Commission, letter to

Frederick D. Isler, Assistant Staff Director, OCRE, USCCR,

June 10, 1998, attachment, p. 2 (hereafter cited as Hardaway letter).

49

law.'" Similarly, the disability employment law

for the State of Maine includes all employers with

at least one employee.112

A certified FEPA is a State and local agency

that has been recognized by EEOC as having consistently produced quality work conforming to

EEOC guidelines, has been a FEPA for at least 4

years, and has had at least 95 percent of its

charge resolutions accepted for contract credit by EEOC in the most recent 12-month period.'" In

fiscal year 1994, 75 of the 84 FEPAs under contract were certified.'" Once a FEPA is certified,

EEOC automatically accepts a certain percentage

of the FEPA's title VII charge resolutions.

The Equal Employment Opportunity Act of

1972, which amended title VII, requires that

EEOC give "substantial weight" to final findings

and orders of State and local agencies.115 Currently, EEOC uses a Substantial Weight Review

process to determine whether a FEPA's resolution of dual-filed charges meets EEOC standards. The purpose of the review is to ensure

that all jurisdictional requirements have been

met, all evidence or information meets EEOC

guidelines and standards for investigation, all

parties were notified properly of the charge

resolution, and that the time period for FEPA

appeal, if applicable, has elapsed.118 The review

requires EEOC to examine all documentation

obtained by the FEPA during its investigation of

a dual-filed charge.117

Before certification of a FEPA, EEOC conducts Substantial Weight Reviews of 100 percent of the FEPA cases. Once a FEPA is certified,

EEOC does a Substantial Weight Review of only

a portion of the FEPA's cases.118 A Substantial

111 Edmon Lee, Director of Enforcement, Washington State

Human Rights Commission, State of Washington Human

Rights Commission, letter to Frederick D. Isler, Assistant

Staff Director, OCRE, USCCR, Apr. 17, 1998, enclosure.

112 Patricia E. Ryan, Executive Director, Maine Human

Rights Commission, letter to Frederick D. Isler, Assistant

Staff Director, OCRE, USCCR, Apr. 14, 1998, enclosure.

"3 EEOC, "FEPA Task Force Report," p. VIII-3.

114 Ibid., p. VIII-5.

115 Pub. L. No. 92-261, § 4, 86 Stat. 103, 104 (codified at 42 U.S.C. § 2000e-5(b) (1994)).

118 EEOC, "FEPA Task Force Report," p. VIII-1.

117 Ibid.

118 Ibid., p. V-1. The parties to the charge can request a Substantial Weight Review through a written request

6')
Weight Review also is done if a charging party is

adversely affected by the FEPA's decision. The

charging party must make such a request within

15 days of the FEPA decision.119

EEOC requires that a minimum of 25 percent

of title VII charges from certified FEPAs receive

Substantial Weight Review. ADA and ADEA

charges do not count toward the minimum requirement for title VII. In 1994, 36.4 percent of

the title VII charges were given Substantial

Weight Review.129 In fiscal year 1994, EEOC

field offices did 25,065 Substantial Weight Reviews for title WI, ADEA, and ADA, of which

98.5 percent (24,346) were accepted and 2.5 percent (727) were rejected.121 It is unknown how

many of the cases rejected were ADA charges.

In 1995 the contracting principles required

that no more than 10 percent of a FEPA's charge

resolutions for contract credit could be attributable to the ADA.122 The 10 percent ceiling was

imposed because of the "novelty of the legal issues

involved, the possibility that state disability statutes may differ in substance from the ADA, and

as an incentive to close the gap in FEPA backlogs

for aging inventory filed under other statutes."123

However, the 10 percent limitation on acceptance

for contract credit did not mean that the FEPAs'

overall workload consisted of 10 percent disability

investigations. For example, in 1995, the FEPAs

processed more disability charges under their own

disability statutes. The 10 percent limitation only

meant that the FEPAs were not eligible for payment for those ADA cases exceeding the 10 percent ceiling, which was removed in the 1996 contracting principles.124 EEOC's National Enforcement Plan encourages "joint investigative and enforcement activities" between field offices and FEPAs, and solicitation of suggestions from the FEPAs in develwithin 15 days from notification of the FEPA final finding.

Ibid., p. VIII-4.

119 29 C.F.R. § 1601.76 (1997). See Dougherty interview, p. 3.

129 EEOC, "FEPA Task Force Report," p. VIII-5.

121 Ibid.

122 EEOC, "EEOC's FY 1995 Contracting Principles for State

and Local FEP Agencies," Aug. 5, 1994, p. 19.

123 EEOC, "FEPA Task Force Report," p. VI-4. 124 See EEOC, "Fiscal Year 1996 Contracting Principles for

State and Local Fair Employment Practices Agencies," Sept.

13, 1995.

oping their Local Enforcement Plans.125 Currently, there is little coordination between

FEPAs and local EEOC offices in investigations.

EEOC occasionally assists FEPAs with subpoena

enforcement or by filing an amicus brief for a

FEPA case.126 In addition, there may be local

events in which both a FEPA and EEOC office

do outreach activities.127

EEOC does provide some training and technical assistance to FEPA staff, within budgetary

constraints. For instance, one FEPA reported to

the Commission that "[s]hortly after the ADA

statute went into effect, the EEOC provided an

education session covering its regulations,

guidelines and statute. Since then the [FEPA]

and the EEOC [have]. . .maintained a continuous dialogue coordinating the process to insure

that it operates as efficiently as possible."128 The

task force on the relationship between EEOC

and FEPAs recommended that a comprehensive

training program be developed to meet the needs

of the FEPAs. Such a program should include

training on State and local program procedures;

substantive information (e.g., legal theories, investigative techniques, EEOC policy guidance,

etc.); outreach and community relations; and

management and administration.129 EEOC's

FEPA task force recommended that EEOC hold

joint training with the International Association

of Official Human Rights Agencies and the National Association of Human Rights Workers.139

FEPA staff reported that local EEOC offices

currently provide them with training, informal

guidance, and other forms of technical assistance.131 For example, one FEPA noted: "Because

125 EEOC, "National Enforcement Plan," p. 10.

126 Leslie L. Goddard, Director, Idaho Human Rights Commission, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 27, 1998. See Dougherty interview, p. 3.

127 Dougherty interview, p. 3.

128 Hardaway letter, attachment, p. 2.

129 EEOC, "FEPA Task Force Report," pp. XIII-1 to XIII-4.

139 Ibid., p. XIII-3. 131 See Donald E. Newton, Manager, State of Connecticut

Commission on Human Rights and Opportunities, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

Apr. 2, 1998; State of Wyoming Department of Employment,

Division of Labor Standards, letter to Frederick D. Is ler,

Assistant Staff Director, OCRE, USCCR, Apr. 1, 1998; Leslie

L. Goddard, Director, Idaho Human Rights Commission,

letter to Frederick D. Isler, Assistant Staff Director, OCRE,

50

63
ADA is new and broader in scope than previous

statutes protecting the rights of persons with

disabilities, training is vital to implementation

and enforcement of the statute. To that end,

EEOC has provided extremely valuable training

to our compliance staff."132 In addition, FEPA

directors attend an annual meeting, usually at

EEOC headquarters, which provides training on

different areas.133 However, the FEPA task force

report stated that this training was not sufficient to meet the needs of all FEPA staff.'"

Past Performance and

Recent Initiatives

Ever since its creation in 1964,135 EEOC's attainment of its goals has been hampered by

seemingly insurmountable problems. In contrast

to its broad jurisdiction, EEOC has been pro- vided only limited means to enforce the statutes

under its jurisdiction. In the beginning, EEOC

was to eliminate employment discrimination

through "informal methods of conference, conciliation and persuasion," but had no enforcement powers to penalize those who violated the

law.136 Further, management turnovers, insufficient staff, limited funding, lack of training, and

an enormous backlog in cases have been persistent obstacles for EEOC.137 Throughout the

1980s and 1990s decreases in staff, increases in

the number of charges filed, and budget problems have hindered the ability of EEOC to acUSCCR, Mar. 27, 1998; Winona Lake, Interim Associate

Director, Government of the District of Columbia, Department of Human Rights and Local Business Development,

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, Mar. 25, 1998. 132 Willis C. Ham, Commissioner, State of South Carolina,

Human Affairs Commission, letter to Frederick D. Is ler,

Assistant Staff Director, OCRE, USCCR, Mar. 25, 1998. 133 Dougherty interview, p. 3. 134 EEOC, "FEPA Task Force Report," p. 135 Civil Rights Act of 1964, Pub. L. No. 8$-352, § 705, 78

Stat. 241, 258 (1964) (codified as amended at 42 U.S.C. §

2000(e)-4(a) (1994).

136 USCCR, Federal Civil Rights Enforcement Effort, 1971, p. 86. 137 Ibid., pp. 87-88; USCCR, The Federal Civil Rights Enforcement Effort-1974: Vol. V, To Eliminate Employment

Discrimination, July 1975 (hereafter cited as USCCR, The

Federal Civil Rights Enforcement Effort-1974, Vol. V).

51

complish its mission.'" Further, the enactment

of the ADA in 1990 and the Civil Rights Act of

1991 resulted in a 26 percent increase in the

number of charges filed.139

When former Chairman Gilbert F. Casellas

came into office in October 1994, he appointed

three task forces to chart a new course in charge

processing systems for the EEOC. These task

forces analyzed alternative dispute resolution,

charge processing, and State and local fair employment practices agencies. Each task force assessed its respective area in depth.14° In 1995, as

a result of task force recommendations, EEOC

streamlined its charge processing procedures. In

addition, EEOC rescinded three enforcement,

administrative, and litigation policies:

the "full investigation" policy that required the agency to investigate fully each

charge it received in the order in which it was

received;

the "full remedies" policy that required the

agency to seek resolutions, including full

remedies, for all meritorious cases; and

138 USCCR, Federal Civil Rights Commitments: An Assessment of Enforcement Resources and Performance

(Clearinghouse Publication 82, Washington, DC: U.S. Government Printing Office, November 1983) (hereafter cited as USCCR, Federal Civil Rights Commitments); GAO, EEOC

and State Agencies Did Not Fully Investigate, p. 2; USCCR, Federal Enforcement of Equal Employment Requirements

(Washington, DC: U.S. Government Printing Office, July 1987) (hereafter cited as USCCR, Federal Enforcement of

Equal Employment Requirements). 139 EEOC: An Overview: Hearings Before the Subcomm..on

Select Education and Civil Rights of the House COMM. on Education and Labor, 103d Cong. (1993) (statement of Linda

G. Morra, Director, Education and Employment Issues,

Human Resources Division, General Accounting Office)

(hereafter cited as GAO, EEOC Overview); Hearings to Review the Equal Employment Opportunity Commission: Hearing Before the House Comm. On Education and Workforce,

105th Cong. 1-2 (Oct. 21, 1997) (statement of William H. Brown, III, Esq., Schnader, Harrison, Segal & Lewis)

(hereafter cited as Brown testimony). 14° EEOC, Office of Program Operations, FY 1995 Annual

Report, p. 5. Three new task forces have been formed to assess

certain areas and formulate recommendations for action. Two

were assigned the task of reviewing changes made in charge

processing and the agency's litigation program to assess their

effectiveness and whether modifications need to be made. The

third task force is examining industry practices in the area of

equal employment opportunity. EEOC, "Strategic Plan: 1997-

2002," OMB Review Copy, Aug. 18, 1997 (hereafter cited as EEOC, "Strategic Plan," pp. 20.-1).

6 4
the "statement of enforcement" policy

which provided that all cause cases in which

conciliation failed would be recommended for

litigation."'

In April 1995, EEOC adopted new procedures.

They called for charges of discrimination to be

handled in order of priority, with the most meritorious charges being processed first, charges with

possible merit being processed second, and

charges with little likelihood of merit being closed

expeditiously.142 Under these procedures, charges

are categorized into three categories: (1) "A"

charges (or priority charges under the enforcement plans), which are likely to result in cause

findings, and charges that may result in irreparable harm if not resolved quickly; (2) "B" charges,

which require further investigation to determine

if they are likely to lead to cause findings; and (3)

"C" charges, which are not likely to result in cause

findings. Charges in the latter category are to be

closed immediately.143

National Enforcement Plan

One of the key recommendations of the Task

Force on Charge Processing, whose recommendations were adopted unanimously by the Commissioners in April 1995, was that the EEOC

develop national and local enforcement plans to

set priorities.'" In February 1996, EEOC issued

its National Enforcement Plan (NEP).145 The

NEP identifies priority issues and sets forth a

plan for administrative enforcement and litigation of title VII, ADEA, EPA, and ADA.146 The

NEP calls for EEOC to eliminate discrimination

through a three-pronged strategy: (1) education

and outreach; (2) voluntary resolution of disputes; and (3) where voluntary resolution fails,

141 Brown testimony, p. 2.

142 EEOC's priority charge handling procedures are assessed

in chap. 5.

143 EEOC, "Priority Charge Handling Procedures," pp. 4-5.

144 EEOC, "Charge Processing Task Force Report," Executive Summary.

145 In a motion unanimously adopted on Apr. 19, 1995, the

Commission accepted the Charge Processing Task Force's

recommendations and directed the development for its approval of a National Enforcement Plan identifying priority

issues and setting out a plan for administrative enforcement

for all laws within its jurisdiction. EEOC, "National Enforcement Plan," February 1996.

146 EEOC, "National Enforcement Plan," p. 1.

52

use of strong and fair enforcement.147 To carry

out its mission, the NEP calls for EEOC to implement extensive public education and technical assistance at both the national and local level

and to implement voluntary resolution through

the use of alternative dispute resolution.148

"Firm and fair" enforcement is viewed as critical

to the EEOC mission; it will include investigation and litigation when efforts to achieve voluntary compliance fail.149

Following the strategy of prioritizing charges

adopted in April 1995, the NEP stresses that

"the combination of limited resources and increasing demands" requires EEOC to implement

a "prioritized" enforcement strategy.15° The NEP

added substance to the new priority charge processing procedures by spelling out more ..clearly

which issues in charges would be given the highest priority. The NEP acknowledges that, given

limited resources, EEOC "cannot be all things to

all of its various constituencies" and that "a carefully prioritized and coordinated enforcement

strategy" is necessary for EEOC to achieve its

mission.15'

Under the NEP, the first category of priority

charges ("A") includes "cases involving violations

of established anti-discrimination principles,

whether on an individual or systemic basis, including Commissioner-charged cases raising issues under the NEP, which by their nature could

have a potential significant impact beyond the

parties to the particular dispute." This category

includes cases "involving repeated and/or egregious discrimination" and "challenges to broadbased employment practices affecting many employees or applicants." The second category of

priority charges is those with the potential of

promoting law that supports the antidiscrimination purposes of the covered statutes. The NEP

explicitly includes charges raising questions as

to the interpretation of the ADA, and other anti147 Ibid., p. 2.

148 Ibid., pp. 2-3. Alternative dispute resolution (ADR) facilitates voluntary alternative methods to resolve charges. It

focuses on early resolution of disputes where agreement

between the charging and alleged discriminating parties is

possible without using formal processing procedures.

143 EEOC, "National Enforcement Plan," p. 3.

150 Ibid., pp. 3-4.

151 Ibid., p. 3.

65
discrimination laws, within this category. It also

includes cases where there has been a conflict in

the Federal circuit courts on issues for which

EEOC desires Supreme Court resolution. The

third category of priority charges includes those

cases that involve the integrity or effectiveness

of EEOC's enforcement process (such cases including allegations of retaliation, challenges of

EEOC policy guidance or regulations, or breach

of an agreement in a charge that was settled

earlier).152

The NEP indicates that the priority of the

charge dictates the immediate attention it receives and the methods for resolving the charge.

Determination of whether a case should be pur- sued under the NEP is based on the issue raised

and an assessment that the strength of the case

supports the decision to continue with the

charge.153 These priorities apply to all of the

statutes, and apply, as appropriate, to EEOC's

investigation, conciliation and litigation, including trial, appellate, and amicus curiae particip ation.154

According to some EEOC staff, the work of

the agency has not changed greatly since the

implementation of the National Enforcement

Plan. An Assistant General Counsel in Systemic

Enforcement Services stated that the work of his

office has changed only in that litigation issues

are generally determined in advance as informed

by the NEP.155 A trial attorney in the New York

District Office said that her job duties had not

changed much since the implementation of the

NEP and the new charge processing procedures.

However, there is currently more of a focus on

meritorious cases and a clearer sense of priorities.156 Similarly, an investigator in the Boston

Area Office stated that her workload has remained the same; the only difference is that now

they categorize cases and can identify the direction they will take in investigating a charge.157 Other staff members have noted great changes since the NEP was introduced. For ex152 Ibid., Pp. 4-6.

153 Ibid., p. 3.

154 Ibid., p. 4.

155 Letwin interview, p. 2.

156 Katherine Bissel, Trial Attorney, New York District Office, EEOC, telephone interview, Apr. 8,1998, pp. 1-2.

157 Dubey interview, p. 1.

ample, an Assistant General Counsel in Litigation Management Services stated that since the

NEP was adopted, staff members are able to

make strategic decisions because they no longer

are committed to investigate fully every charge.

Although the oversight and litigation support

functions of the Litigation Management Services

unit have not changed greatly, the unit now is

more involved in litigation development than

before, because EEOC staff has more flexibility

to choose cases.158

Local Enforcement Plans

The NEP required that each district director

and regional attorney develop a Local Enforcement Plan (LEP) and submit it to the Commission, the General Counsel, and the Director of

the Office of Field Programs.159 The LEPs should

include the following components:

A. An evaluation and strategy to address the provision of Commission services to underserved populations and geographic regions, as well as employment

practices of particular importance in the region

served by each district office.

B. A description and identification of the local issues which are in the National Enforcement Plan.

C. A description of each office's plan to resolve the

pending cases in the office's inventory, including the

long term plans to use Alternative Dispute Resolution

techniques as part of its charge processing activities.16°

Each district office must also submit a document detailing its plan to implement the LEP.

This implementation document should describe

the district office's strategy for meeting its objectives and using its resources, as well as give

headquarters information for planning, staffing

and the allocation of resources in the field.161

The document should prioritize and justify the

issues identified in the LEP; identify pending

charges/suits that fall within the local priority

list and indicate those that would have greater

impact; identify charges that can be pursued

with the resources; and describe how the results

will be achieved, including timelines.162

158 Scanlan interview, p. 2.

156 EEOC, "National Enforcement Plan," p. 7.

16° Ibid.

161 Ibid.

162 Ibid., pp. 7-8.

53 ,
Although the LEPs are linked to the NEP,

each district was instructed to identify its own

enforcement priorities and target population.

According to former Chairman Gilbert Casellas,

although the ADA was targeted in the NEP, only

17 percent of the LEPs targeted the ADA as a

high priority.163

The district offices used different methods for

identifying priorities. The Chicago District Office, for example, relied on input from top staff,

including the district director, the deputy directory, the regional attorney, and enforcement

managers. This office compiled a list of issues on

which it wanted to focus. The office had always

targeted downstate Illinois, and Hispanics, African Americans, and Asian Americans.164 The

Charlotte District Office developed its Local Enforcement Plan through extensive work with the

community. According to the district director, 21

meetings were held with various groups to identify their concerns. Further, the office identified

underserved areas by analyzing its database of

cases.166 The district director in Dallas said that

outside stakeholders were invited to provide input into the LEP; however, because the office

had a short deadline, staff did not get much response from outside groups. Thus, the plan was

primarily developed by staff.166

The various methods for developing LEPs

and the geographic differences among district

offices led to a variety of enforcement priorities.

For example, the Albuquerque District Office

will focus on outreach and education, identifying

local enforcement priorities, and developing a

plan for workload resolution. Its outreach and

education efforts will be targeted towards Native

Americans, Hispanics, African Americans, persons over 40 years of age, individuals with disabilities, and women. The Albuquerque District

Office LEP also identifies 13 major issues, including sexual harassment; speak-English-only

163 Gilbert Casellas, Chairman, and Peggy Mastroianni, Associate Legal Counsel, EEOC, interview in Washington, DC,

Nov. 25, 1997, p. 3 (hereafter cited as Casellas interview).

164 Julie Bowman, Enforcement Manager, Chicago District

Office, EEOC, telephone interview, Apr. 8, 1998, pp. 172.

166 Drane 'interview, p. 2.

166 Jacqueline Bradley, Director, Dallas District Office,

EEOC, telephone interview, Apr. 16, 1998 (hereafter cited as

Bradley interview).

rules; individuals with disabilities who have

been denied employment opportunities; disability bases of diabetes, visual or hearing impairments, HIV, and life-threatening conditions; and

per se violations of preemployment hiring practices.167 The LEP does not describe how nonpriority cases will be handled.

In comparison, the Charlotte District Office

identifies 23 local priority issues, which include

definitions under the ADA, discrimination against

persons with communicable diseases, and unlawful medical screening under the ADA. In addition,

local priorities for the Charlotte District Office

include general civil rights issues, such as discrimination against persons in underserved

groups, retaliation, disparate impact, and broadbased employment practices. The LEP states, "Of

course, the office will continue to pursue meritorious charges and cases that do not fall within the

enumerated priorities, as is consistent with the

Commission's statutory responsibilities."168

District offices state that their LEPs were developed in concert with the NEP, the priority

charge handling procedures, and input from local stakeholders.169 However, little detail is provided on the process used to identify and prioritize issues, other than identifying issues based

on the case inventory and input from stakeholders.170 It is unclear whether each district office

followed the same approach. Although the NEP

states that each office should develop a document describing how it will implement its LEP

and that the document should justify the LEP's

prioritization, this has not been uniformly included in the LEPs.171

167 EEOC, Albuquerque District Office, "Local Enforcement

Plan," Mar. 6, 1997, pp. 1-5.

168 EEOC, Charlotte District Office, "Local Enforcement

Plan," pp. 13-16.

169 See EEOC, Cleveland District Office, "Local Enforcement

Plan," July 12, 1996, p. 2.

179 U.S. Equal Opportunity Commission, San Antonio District

Office, "Local Enforcement Plan," draft, Oct. 7, 1996, p. 3.

171 EEOC, "National Enforcement Plan," p. 7. Some district

offices appear to have included the implementation plan in

the LEP. See EEOC, Houston District Office, "Local Enforcement Plan." Further, the Commission was provided

only the "public portions" of the LEPs; thus, this information

may not be publicly available. Peggy R. Mastroianni, Associate Legal Counsel, EEOC, letter to Frederick Isler, Assistant Staff Director, OCRE, USCCR, Mar. 6, 1998, p. 3. For

example, section D-2 of the St. Louis District Office LEP,

54

67
Each LEP also identifies outreach strategies.

For example, the Los Angeles District Office

held "Public Outreach Month" in June 1996.

During that month, public meetings were held

with constituency groups, and public service announcements were made on television and radio

stations and printed in local media. In addition,

talk show appearances were scheduled on local

Spanish and Asian language cable television stations.'" According to EEOC staff in the Los Angeles District Office, southern California is a

very diverse area. In 1997, their outreach efforts

focused on the Hispanic community. Staff

scheduled several meetings with migrant workers in which they took charges, held training

sessions, and provided other information.'"

Similarly, the district director in Dallas noted

that the LEP is provided to stakeholder groups at technical assistance and outreach programs.

For example, she has worked with chambers of

commerce and various bar associations, and has

given it to them.174

The LEP for the Milwaukee District Office

provided a schedule of speeches to be given by

the area office director, program analysts, senior

trial directors, a Minneapolis Area Office repre- sentative, and the regional attorney. This LEP

also outlined plans for offering seminars, developing an Internet home page, sending mailings

and newsletters to interested groups, writing

and compiling newspaper articles, ,appearing on

local media shows, and participating in meetings, community forums, and roundtables.175 Information on costs and resources required for

such activities is not included in the LEPs.

The 1998 joint report of the Priority Charge

Handling Task Force and the Litigation Task

Force recommended that LEPs be revised so that

goals are clearly stated and achievable. The rewhich ranks each priority issue and justifies its selection as a priority, was not provided to the Commission. See U.S.

Equal Opportunity Commission, St. Louis District Office,

"Local Enforcement Plan," p. 2.

172 EEOC, Los Angeles District Office, "Local Enforcement

Plan," 1996-1997, p. 10.

173 Rosa Viramontes, Enforceinent Manager, Los Angeles

District Office, EEOC, telephone interview, Apr. 19, 1998, p. 2 (hereafter cited as Viramontes interview).

174 Bradley interview.

176 EEOC, Milwaukee District Office, "Local Enforcement

Plan," July 1, 1996, pp. 8-13.

55

port acknowledged that headquarters had not

provided appropriate guidance for development

of the LEPs, resulting in LEPs that "have not

consistently served the purpose intended by the

Commission in the NEP. "176 The report further

stated: "The LEPs are so different in format that

they are difficult to use. .. .some viewed the LEP

as an aspirational document, while others

treated it as a contract for performance."'" The

report noted that LEPs should include quantitative and qualitative measures of performance,

increased emphasis on the use of Commissioner

charges and directed investigations, and more

proactive outreach, especially targeted toward

underserved groups.178

The 1998 joint task force report also noted

that the field offices did not adequately coordinate with local stakeholder communities when

determining their LEP priorities. Although the

process may not yield immediate results, it is

crucial that field offices develop relationships

with EEOC's customers "if the Commission is to

be an effective civil rights enforcement agency

serving the nation as a whole."'" According to

the joint task force, LEPs should clearly show

how outreach will be used to accomplish the objectives of the LEPs and overcome barriers that

have caused groups to be underrepresented. The

task force report further notes that EEOC must

use media resources to explain to the public its

mission and the purpose of its litigation and enforcement activities.'80

In EEOC's April 1998 Commission meeting,

Acting Chairman Igasaki presented several recommendations in response to the joint report of

the Priority Charge Handling Task Force and

the Litigation Task Force. The Acting Chairman

recommended that the Local Enforcement Plans

should be contracts between headquarters and

field offices. The Office of Field Programs (OFP)

and the Office of General Counsel (OGC) were

instructed to design and implement a uniform

LEP format "that contains sufficient detail to

176 EEOC, Priority Charge Handling Task Force, Litigation

Task Force Report, March 1998, p. 32 (hereafter cited as EEOC, March 1998 Task Force Report).

177 Ibid.

178 Ibid., pp. ivv.

179 Ibid., p. 11.

180 Ibid.
evaluate an office's use of its resources in obtaining results in NEP/LEP Cases."181 Acting

Chairman Igasaki also directed the General

Counsel and the Director of the Office of Field

Programs to form a National Enforcement Strategy Group to develop methods of monitoring the

implementation of the NEP and LEPs. Further,

the Acting Chairman directed OFP and OGC to

prepare an analysis of the effect of the fiscal year

1999 LEPs.182

1997-2002 Strategic Plan

In accordance with the mandate of the Government Performance and Results Act of 1993

(GPRA),183 EEOC developed its 1997-2002 Strategic Plan and submitted it to the Office of Management and Budget (OMB) for review in

August 1997.184 Under GPRA each Federal

agency is required to develop a strategic plan

that includes a mission statement covering the

major functions of the agency, general goals and

objectives; a description of how to accomplish the

goals and objectives (including a description of

the operational processes, skills, and technology

and human capital, information, and other resources required); an explanation of how performance goals are to be related to the goals and

objectives of the strategic plan; an identification

of external factors that could affect the achievement of the goals and objectives; and a description of how program evaluations are to be used

in establishing or revising the goals and objectives.185 The GPRA also specifies that annual

performance plans shall be included in each

agency's budget. Such plans shall establish performance goals, express such goals in measurable form, describe resources required to achieve

performance goals, establish performance indicators to assess outputs and outcomes, and pro181 Paul M. Igasaki, Acting Chairman, EEOC, Recommendations made at EEOC Commission meeting, Apr. 21, 1998. 182 Ibid. 183 5 U.S.C. § 306 (1994). 184 A strategic plan is required of all Federal agencies under

the Government Performance and Results Act, signed by

President Clinton in 1996. The plan should set out long

term goals and objectives for which an agency can be held

accountable. See EEOC, "Strategic Plan: 1997-2002," OMB

Review Copy, Aug. 18, 1997, p. 1 (hereafter cited as EEOC,

"Strategic Plan"). 185 5 U.S.C. § 306 (1994).

56

vide a basis for comparing program results to

performance goals.188

EEOC's Strategic Plan summarizes its historical mandate, the evolution of its mission and

responsibilities, and EEOC's recent and ongoing

initiatives designed to permit it to carry out its

mission and responsibilities consistent with

GPRA. The Strategic Plan also highlights the

positive results the agency has obtained, such as

a reduction in its backlog and the collection of

"over 425 million dollars for victims of discrimination over the past two and one-half years."187

To carry out EEOC's mission, the Strategic Plan

states that Federal laws will be enforced through

a wide range of activities, including administrative and judicial actions through investigation,

adjudication, settlement, conciliation, alternative dispute resolution, litigation, policy guidance, education, technical assistance, and outreach.188 The plan also identifies two major goals

to achieve its mission, as well as subgoals and

objectives. The first goal is to "promote equal

opportunity in employment by enforcing the

Federal civil rights employment laws through

administrative and judicial actions."189 The second goal is to "promote equal opportunity in employment by enforcing the Federal civil rights

employment laws through education and technical assistance."199 These general goals echo the

mission of the agency.

Subgoals under the first general goal are: improving the effectiveness of the administrative

process and litigation program, improving processing of Federal equal employment opportunity

complaints, and working with State and local

FEPAs and tribal employment rights organizations to improve charge processing. Subgoals

under the second general goal are: encouraging

and facilitating voluntary compliance and increasing knowledge about rights under equal

employment opportunity laws.191 The EEOC

Strategic Plan also identifies a general supporting objective, which is to enhance the effective186 31 U.S.C. § 1115 (1994). 187 EEOC, "Strategic Plan," p. 16. 188 Ibid., p. 34. 189 Ibid., p. 36. 199 Ibid., p. 38. 191 Ibid., pp. 36-38.

69
ness of employees in achieving the agency's mission and general goals. The plan identifies the

following activities to achieve this: enhance staff

capabilities and knowledge; evaluate organizational components, procedures, and processes;

and improve technological competency.192

EEOC's Strategic Plan does not develop fully

many of the items required by the GPRA. According to testimony before the House Subcommittee on Employer-Employee Relations of the

Committee on Education and the Workforce, the

EEOC Strategic Plan "suffers from diffuse generalizations and does not provide the reader with

specific yardsticks by which performance can be

measured."193 The Strategic Plan discusses the

inherent problems in measuring the outcomes of

its activities, pointing out that "outcome measures

simply do not exist for gauging the extent of equal

opportunityor discriminationin the American

workforce."194 Nonetheless, the Strategic Plan

states that examples of EEOC's successes can be

used as qualitative measures of EEOC's accomplishments.

EEOC's Strategic Plan also does not establish

clear performance measures. Agencywide goals

are identified, along with a discussion of circumstances that could cause EEOC to not reach its

goals, as required by OMB Circular A-11.195 The

plan states that the agency's limited resources

could affect whether it can meet these goals and

objectives: "Even with level funding, we cannot

maintain the same level of activity from year to year where price and/or workload increases

erode our ability to function. In 1997, [EEOC]

has more responsibility than [it has] ever had,

but [is] operating with the fewest number ofemployees in twenty years."196

Little detail on how to achieve the goals is

provided.197 For example, the first two-thirds of

the document discusses EEOC's past accom- plishments. The plan later identifies factors that

could limit EEOC's ability to achieve its goals:

193 Ibid., p. 39.

193 Cathcart testimony.

194 EEOC, "Strategic Plan," p. 23.

193 U.S. Office of Management and Budget, Circular No. A-11,

Part 2, "Preparation and Submission of Strategic Plans and

Annual Performance Plans," June 1997, §§ 210.7, 210.10.

196 EEOC, "Strategic Plan," pp. 40-41.

197 See ibid.

57

limited resources, .increasing workload, changes

in statutory authority, and changes in the economy.198 EEOC plans to evaluate its progress based on the findings of three task forces,

"additional evaluations," and ,the inclusion of a

program evaluation component in the Annual

Performance Plan.199 The Strategic Plan does not

elaborate further on these evaluation processes. Thus, it is unclear how EEOC plans to evaluate

its progress and implement changes.

In addition, the Strategic Plan is not linked to

the budget. It does not discuss how the general

goals will affect, or require changes in, budget

and resource levels. Although funding is identified as a factor that could affect EEOC's

achievement of its goals," staffing and resource

levels required to implement the Strategic Plan

are not identified in the document. Further, the

Strategic Plan does not include a strategy for achieving the goals in the absence of increased

funds. EEOC acknowledges that it "does not receive a large budget for the critical civil rights

functions mandated."201 This fact is not accounted for in EEOC's strategic planning, and

priorities do not reflect the reality of limited

funding.

1998 Task Force Reports

In concert with EEOC's role in providing

technical assistance and outreach, former

Chairman Casellas appointed a task force to

study the equal employment opportunity policies, practices, and programs of private employers. In its February 1998 report, the task force

identified businesses that have "noteworthy

business practices" in the areas of recruitment

and hiring, promotion and career advancement,

terms and conditions, termination and downsizing, alternative dispute resolution, and other

human resources management issues.202 The

task force report provides examples of employers

who have model programs, as well as contact

199 Ibid., pp. 40-42.

199 Ibid., pp. 43-44.

200 Ibid., pp. 40-41.

201 Ibid., p. 40.

202 EEOC, "Task Force Report on 'Best' Equal Employment

Opportunity Policies, Programs, and Practices in the Private

Sector," February 1998, p. 3 (hereafter cited as EEOC, "Best

Practices Task Force Report").

70
TABLE 3.2 EEOC's Budget, Staffing, and Workload, Fiscal Years 1989-1997 FY 1989 FY 1990 FY 1991 FY 1992 FY 1993 FY 1994 FY 1995 FY 1996 FY 1997

1 Total appropriations (thousands of $) 180,712 184,926 201,930 211,271 222,000 230,000 233,000 233,000 239,7402 Total appropriations (thousands of 1992 $) 215,954 202,083 207,918 211,271 211,751 211,630 205,485 199,333 198,5423 FTEs 2,970 2,853 2,796 2,791 2,831 2,832 2,813 2,676 2,5864 Total private sector charges received 55,952 59,426 63,836 72,302 87,942 91,189 87,529 77,990 80,625

5 Total private sector charges resolved 64,028 68,366 71,716 71,563 91,774 103,467 106,1886 Pending inventory 46,071 41,987 45,717 52,856 73,124 96,945 98,269 80,890 64,5767 Staff available 838.1 762.2 727.1 736.3 738.3 732.1 760.9 744.2 795.1' 8 Resolutions per staff available 79.0 88.4 88.1 92.8 97.1 97.8 120.6 139.0 132.59 Caseload per staff available 55.0 55.1 62.9 71,8 99.0 132.4 129.1 81.2 10 ADA charges N/A 999 15,245 18,853 19,811 18,019 18,088 11 ADA charges as percentage of all charges N/A 1.4 17.4 20.7 22.6 23.1 22.4 Sources: cn Row 1: EEOC, "U.S. Equal Employment Opportunity Commission Historical Context of co Budget and Staffing 1980 to Present," table provided by Mike Widomski, Public Affairs Specialist, Office of Communications and Legislative Affairs, EEOC. Note: 1995 figure does not reflect a $242,000 amendment reducing the budget for procurement spending and a $124,000 rescission. 1996 figures do not reflect the $260,000 reduction due to the Omnibus. Consolidated Rescissions and Appropriations Act. EEOC Comments, p. 5. Row 2: Row 1, deflated by Chain-type Quantity and Price Indices for Government Con- sumption Expenditures for Nondefense Federal Government Services, published by the Bureau of Economic Analysis. Row 3: EEOC, "U.S. Equal Employment Opportunity Commission Historical Context of Budget and Staffing 1980 to Present," table provided by Mike Widomski, Public Affairs Specialist, Office of Communications and Legislative Affairs, EEOC. Row 4: FY 1992-1996 data are from EEOC, tables to be included in fiscal year 1996 Annual Report, p. 28; FY 1991 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6; FY 1989-1990 data are from GAO, EEOC's Expanding Workload, p. 10. Row 5: FY 1992-1996 data are from EEOC, tables to be included in fiscal year 1996 Annual Report, p. 28; FY 1991 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6. Row 6: FY 1991-1995 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6; FY 1989-1990 data are from GAO, EEOC's Expanding Workload, p. 11; FY 1997 data are from Hearings Before the Subcomm. on Commerce, Justice, State, the Judiciary and Related Agencies of the House Comm. on Appropriations, 105th Cong. 211 ( Apr. 16, 1997) (statement of Gilbert F. Casellas, Chairman, EEOC). Row 7: FY 1991-95 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6. The figure for FY 1997 is not comparable to the figuresfor prior years. Due to changes in automated reporting, staff assigned to Systemic are included in totals for the first time. Thus, there probably was no actual increase between 1996 and 1997. Row 8: FY 1992-1996 data are from EEOC, tables to be included in fiscal year 1996 Annual Report, p. 28; FY 1991 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6. FY 1997 data are from Statement of Gilbert F. Casellas, Chairman, EEOC, Before the Subcommittee on Commerce, Justice, State, the Judiciary and Related Agencies, Committee on Appropriations, U.S. House of Representatives, Apr. 16, 1997, p. 212. Row 9: FY 1991-1995 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, p. 6. Row 10: FY 1992-1995 data are from EEOC, Office of Program Operations, FY 1995 Annual Report, table 7, p. 20. Row 11: Calculated from data in row 8 and row 9. Note: Linda Lawson, Office of Field Programs, U.S. Equal Employment Opportunity Commission provided numbers that were missing from the abovedocuments and cor- rected the data where necessary. N/A means not applicable. Where data are not avail- able, the box has been left blank. * Due to changes in automated reporting, staff as- signed to the systemic unit are included in totals for the first time in FY 1997. 7 2
information for employers wishing more information on the programs identified. However, the

report does not include many examples of "best"

practices for complying with the ADA. According

to Commissioner Reginald Jones, the task force

leader, the lack of information on the ADA in the

report was a result of a low response rate to a

request for information.203 Further, because the

ADA is handled on a case-by-case basis, it may

not be incorporated into many comprehensive

equal employment opportunity programs.204

Chairman Casellas established two additional

task forces in 1997. Because of their similar focus on the effectiveness of enforcement activities

(the implementation of the new priority charge

handling procedures and the success of EEOC's

litigation program), the two task forces issued a

joint report. The March 1998 report notes both

strengths and weaknesses of EEOC's enforcement programs. In particular, the report offers

the following overall recommendations:

increase collaboration and coordination of

headquarters and field offices;

revise the local enforcement plans to include "clear and achievable enforcement

outcome goals";

continue to reduce the charge inventory

and focus on "strong" cases; and

continue to encourage coordination between legal staff and investigators.205

Workload, Staffing, and Budget

In June 1995, the U.S. Commission on Civil

Rights found that between fiscal year 1981 and

fiscal year 1995, EEOC's workload had increased

dramatically while its funding (adjusted for inflation) and staffing had declined steadily .2°6 EEOC

has argued repeatedly that it has too few re203 Reginald Jones, Commissioner, EEOC, interview in

Washington, DC, Apr. 1, 1998, p. 3 (hereafter cited as Jones

interview). In writing its report, the task force contacted

companies with 25,000 or more employees; employers, employees, and civil rights associations; Federal agencies; and

members of Congress. EEOC received materials from approximately 70 employers. EEOC, "Best Practices Task

Force Report," pp. 18-20.

204 Jones interview, p. 3.

206 EEOC, March 1998 Task Force Report, p. 7.

206 USCCR, Funding Federal Civil Rights Enforcement, p.

38.

59

sources to do the job.207 According to several

EEOC officials, resources are the primary obstacle

to EEOC enforcement efforts.208 The Acting

Chairman stated that the primary problems resulting from the lack of resources have been fewer

investigators, increasing burdens on investigators, more clerical duties required of operational

staff, and fewer attorneys than previously.209

Workload and Staffing

Since EEOC became responsible for enforcing

the ADA in 1992, EEOC's workload, in terms of

charges of discrimination filed with the agency,

has increased markedly. In fiscal year 1991, before the ADA took effect, EEOC received 63,836

private sector charges. Two years later, in fiscal

year 1993, the first full year of ADA enforcement, EEOC received 87,942 priVate sector

charges, an increase of 38 percent. Almost 21

percent of all charges received in 1993 were ADA

charges. Thus, ADA charges accounted for most

of the increase in EEOC's workload between fiscal year 1991 and fiscal year 1993. EEOC continued to receive higher numbers of charges in

fiscal years 1994 and 1995 (91,189 and 87,529,

respectively), with ADA charges accounting for

22.7 percent and 38.5 percent in 1994 and 1995,

respectively. (See table 3.2.)

EEOC took steps to address the increased

workload and was able to increase the number of

resolutions per staff member from 88 in fiscal

year 1991 to 121 in fiscal year 1995, largely

through implementation of its new charge priority handling procedures in fiscal year 1995. The

number of cases EEOC resolved rose gradually

between fiscal year 1991, when 63,028 cases

were resolved, and fiscal year 1994, when 71,563

cases were resolved. In fiscal year 1995, the year

when the priority charge handling procedures

were implemented, however, the number of

cases resolved increased dramatically to 91,774,

an increase of 28 percent over the previous year.

207 See, e.g., Hearings Before the Subcomm. on Commerce,

Justice, State, the Judiciary, and Related Agencies of the

House Comm. on Appropriations, 105th Cong. 214 (Apr. 16,

1997) (statement of Gilbert F. Case llas, Chairman, EEOC);

EEOC, "Strategic Plan," p. 42; and EEOC, FY 1994 Annual

Report, p. 3.

208 See Igasaki interview, p. 1; Miller interview, p. 5; Vargyas interview, p. 1.

209 Igasaki interview, p. 2.

7 3
As a result, EEOC's pending inventory, which

had reached a high of 111,345 charges in the

middle of fiscal year 1995, declined to .80,890 in

fiscal year 1996.210

Although the number of new charges received

by EEOC increased after the ADA took effect,

the number of staff available to investigate

charges did not increase. EEOC had 2,796 fulltime equivalent staff (FTEs) in 1991. The number of FTEs increased slightly to above 2,800 in

fiscal years 1993 through 1995, but by fiscal year

1997, the number of FTEs had declined to 2,586,

below the fiscal year 1991 level. The number of

staff available to process charges of discrimination increased slightly over the period from 1991

to 1995, from 727 to 761, but not enough to keep

up with the increase in the number of charges of

discrimination. From fiscal year 1991 to the beginning of fiscal year 1995, the average caseload

per staff member available to process charges

more than doubled, increasing from 63 to 145.

Not surprisingly, EEOC's backlog, or its

"pending inventory" of charges more than 180

days old, increased as well, rising from almost

46,000 in fiscal year 1991 to more than 98,000 in

fiscal year 1995. (See table 3.2.)

Field office staff consists primarily of investigators and attorneys. For example, the Atlanta

District Office employs 39 investigators (GS-9

through GS-12), 10 supervisory investigators

(GS-13 and GS-14), 9 trial attorneys (GS-13

and GS-14), and 1 regional attorney (GS-15).

The remaining 29 employees include administrative staff, legal support staff, an equal employment specialist, a computer specialist, an administrative officer, a budget analyst, and a program analyst.211 Although some offices are organized into investigative teams, which can include investigators reporting to attorneys or attorneys assigned to assist investigators, this is

not required of district offices.212

210 Hearings Before the Subcomm. on Commerce, Justice,

State, the Judiciary, and Related. Agencies of the House

Comm. on Appropriations, 105th Cong. 211 (Apr. 16, 1997)

(statement of Gilbert F. Casellas, Chairman, EEOC)..

211 Peggy R. Mastroianni, Associate Legal Counsel, EEOC,

letter to Frederick Isler, Assistant Staff Director, OCRE,

USCCR, Mar. 6, 1998, attachment item B-6-8, pp. 3-4

(hereafter referred to as Mastroianni letter).

212 EEOC, Commission meeting, Mar. 19, 1998.

60

Staff do not specialize in distinct areas of civil

rights or by statute. Attorneys and investigators

are required to handle cases covering all statutes

for which EEOC has jurisdiction, and all bases

and issues. Former Chairman Casellas informed

the U.S. Commission on Civil Rights that EEOC

does not have "the luxury" to specialize by statute. EEOC cannot predict the types of cases it

will receive. Further, given staffing restrictions,

it would be difficult to manage the caseload of

charges if staff members specialized.213

According to Commissioner Paul Steven

Miller, specialized units of investigators to handle cases by statute would be inefficient. The

complexities of the laws lead to overlap, and,

thus, investigators must be knowledgeable about

all the laws EEOC enforces.214 An Assistant

General Counsel for Litigation Management

Services stated that it is not necessary for attorneys to specialize because EEOC only handles

four statutes.215 Similarly, the director of the

Charlotte District Office said that the generalist

approach is more appropriate to the types of

cases EEOC handles.216 An enforcement supervisor in the Chicago District Office reported that

the office previously had specialized staff, but it

found, nonspecialization to be more efficient. Although by being generalists they lose some expertise, it ensures that all staff members are familiar with all four laws EEOC enforces.217

All staffing decisions are made by the Chair -

man.218 According to Acting Chairman Igasaki,

all headquarters positions are important to investigation, training, and other functions. When

possible, vacant positions at headquarters are

transferred to the field. However, it is cost prohibitive to relocate staff from one field office to

another.219 Thus, field offices forward requests

for staff to the Field Management Programs unit

in the Office of Field Programs. Field Management Programs staff prepares a prioritized list of

213 Casellas interview, p. 2.

214 Miller interview, p. 3.

215 Scanlan interview, p. 4.

216 Drane interview, p. 2.

217 Daniel McGuire, Enforcement Supervisor, Chicago District Office, EEOC, telephone interview, Apr. 10, 1998, p. 2

(hereafter referred to as McGuire interview).

218 Miller interview, p. 3.

219 Igasaki interview, p. 3.
positions that need to be filled, and forward the

list to the Chairman for consideration. Staffing

priorities are determined based on workload and

the types of positions that are vacant. Field offices are also asked to identify their priorities.220'

The March 1998 joint task force report recommended that the agency continue to prioritize

field positions over headquarters positions in

hiring and staffing decisions. The report also

recommended that staffing decisions should take

into account attorney-investigator ratios, recognizing that many offices experience staff shortages in the key positions of support staff, paralegals, and attorneys. According to the' report,

"[t]here needs to be a sufficient number of attorneys in EEOC's field offices to provide guidance

to field investigators while conducting a viable

litigation program."221

Budget

EEOC's budget supports three major activities:

(1) executive direction and program support

(which includes funds for the direction and coordination of the Commission's programs, as well as

for administrative and management support

services); (2) enforcement (which includes funds to

resolve charges of employment discrimination and

litigate cases); and (3) State and local grants

(which includes funds to State and local fair employment practices agencies to assist in resolution

of employment discrimination complaints).222

Approximately 90 percent of its annual

budget is used for enforcement, mainly in the

private sector.223 This includes salaries and

overhead.224 The remaining funds are used to

pay fees for charge investigations by State and

local fair employment practices agencies and

220 Dudley interview, p. 3.

221 EEOC, March 1998 Task Force Report, p. 23.

222 See Budget of the United States Government, Fiscal Year

1992, Equal Employment Opportunity Commission,

(hereafter cited as EEOC Fiscal Year 1992 Budget); Budget

of the United States Government, Fiscal Year 1995, Equal

Employment Opportunity Commission (hereafter cited as

EEOC Fiscal Year 1995 Budget); Budget of the United

States Government, Fiscal Year 1997, Equal Employment

Opportunity Commission (hereafter cited as EEOC Fiscal

Year 1997 Budget).

223 GAO, EEOC: An Overview, p. 2.

224 Case llas interview, p. 2. See also Miller interview, p. 5;

Vargyas interview, p. 1.

61

provide program support, including education,

outreach, technical assistance, and data collection.225 In fiscal year 1995, EEOC reported that

more than 80 percent of its $233 milliOn budget

supported investigation and litigation activities

and about 90 'percent of its 2,860 full-time

equivalent positions were supporting "direct enforcement" of four Federal laws, title VII, EPA

ADEA and the ADA.226

Despite the passage of the ADA in 1990 and

the Civil Rights Act of 1991 the following year,

which added considerably to EEOC's workload,

EEOC's budget has not grown in the 1990s. In

real terms, EEOC's budget has remained below

the fiscal year 1989 level throughout the decade.

In 1992 dollars, EEOC's fiscal year 1989 budget

was $215,954,000. The budget fell considerably

the following year, to $202,083,000 (in 1992 dollars). In each of the following years, as ADA implementation and enforcement began, EEOC's

real budget rose slightly, reaching $211,271,000

in fiscal year 1992. EEOC's real budget remained constant in fiscal years 1993 and 1994

and then fell in each of the following fiscal years.

EEOC's fiscal year 1997 budget was

$198,542,000 in 1992 dollars, more than 8 percent below its fiscal year 1989 appropriation

level. (See table' 3.2.)

EEOC's fiscal year 1998 budget appropriation

of $242 million is barely higher than its fiscal

year 1997 budget appropriation of approximately

$240 million. In real terms, the fiscal year 1998

budget appropriation is less than that of the

previous year.227 Although EEOC has made progress in reducing its backlog of charges since

1995, if the number of charges received by

EEOC 'continues to grow as it has during the

1990s, EEOC may well experience an increase in

225 GAO, Burgeoning Workload, p. 4. For example, in fiscal

year 1995, of the $233 million the agency received, approximately 80 percent (or $187 million) supported enforcement

(investigation and litigation); 11 percent (or approximately

$26.5 million) paid the fees for FEPA services (in fiscal year

1995, the FEPAs received a fee of $500 for each case they

investigated for EEOC); and 9.percent (or $20 million) went

for program support including technical assistance, education, and outreach.

226 GAO, EEOC: Burgeoning Workload, pp. 2-9.

227 See Nancy Montwieler, "Casellas Departure Means Uncertainty for Lead Civil Rights Enforcement Agency," Daily

Labor Report (Dec. 29, 1997), pp. C1 C2.
its backlog unless it is appropriated additional

resources.

According to the President's fiscal year 1999

budget request to Congress, "Without additional

resources to continue procedural reforms, implement greater use of mediation, and invest in

technology, the Commission is unlikely to make

further progress toward its goal of reducing the

average time it takes to resolve private sector

complaints from over 9.4 months to 6 months by

the end of 2000. "228 Consequently, the President

has requested a substantial increase in funding

for the EEOC as part of a general civil rights

initiative. The President has requested that

EEOC's budget be increased by 15 percent, to

$279 million, in fiscal year 1999.229 The budget

request includes $13 million for an "enhanced

mediation program," that would allow EEOC to

hire "experienced and credible" mediators, both

as employees and under contract.239 The remainder of the budget increase would be for

modernizing EEOC's "seriously antiquated information systems," further reducing the inventory of pending charges,231 hiring more staff,

doing outreach, and providing for basic administrative functions.232 The budget increase is not

targeted toward training (staff training and

training for new technology) or increasing staff

and filling vacancies.

The 15 percent increase in EEOC's FY 1999

budget has received support from Congress.

However, House Speaker Newt Gingrich has

placed restrictions on his support of the increase.

According to the Speaker, six issues are obsta228 "Excerpts from Analytical Perspectives on Federal

Budget for Fiscal Year 1999," released Feb. 2, 1998, as published in Bureau of National Affairs, Daily Labor Report

(Feb. 3, 1998), p. E5.

229 "Excerpts from Appendix to Federal Budget for Fiscal

1999," released Feb. 2, 1998, as published in Bureau of National Affairs, Daily Labor Report (Feb. 3, 1998), pp. E8

E10. 230 "Excerpts from Analytical Perspectives on Federal

Budget for Fiscal Year 1999," released Feb. 2, 1998, as published in Bureau of National Affairs, Daily Labor Report

(Feb. 3, 1998), p. E5.

231 Paul M. Igasaki, Acting Chairman, U.S. Equal Opportunity Commission, Statement before the U.S. House of Representatives, Subcommittee on Employer-Employee Relations Committee on Education and the Workforce, Mar. 3,

1998, p. 14.

232 EEOC Comments, p. 4.

.62

des to the budget increase. EEOC must commit

to the following reforms:

increased supervision of the investigations

process;

reducing the backlog of cases and the

length of time it takes to process a case;

appropriate allocation of resources between investigations and litigation;

greater use of alternative dispute resolution;

providing clarification of the criteria for

litigation; and

agreement not to use resources for employment testing.233

Acting Chairman Igasaki has stated that he

is confident that EEOC can address these issues.

Most of the issues have been resolved, and he is

working with Congress to address the differences of opinion on employment testing. Acting

Chairman Igasaki stated that employment testing may give EEOC the opportunity to see how

discrimination might occur in hiring. However, it

would not necessarily be used for litigation234

and was part of a pilot program the results of

which must be analyzed before EEOC can implement a program of testing.235

Staff Training on the ADA

Although EEOC investigators have received

considerable training on the ADA, it is a complex

civil rights law that may present particular challenges. Furthermore, because it is new, the ADA

233 "The Future Direction of the Equal Employment Opportunity Commission": Hearing Before the Subcomm. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. 5 (Mar. 3, 1998) (statement

of Newt Gingrich, Speaker of the House, U.S. House of Representatives).

234 Igasaki interview, p. 3.

235 "GOP Leadership Sets Out Conditions for Sharp Boost in

EEOC Appropriations," BNA's Employment Discrimination

Report, Bureau of National Affairs, Inc., Apr. 8, 1998, p. 438.

The House Appropriations Committee July 15, 1998, approved an $18.5 million increase in the fiscal year 1999

budget for the EEOC to help reduce the agency's backlog of

cases. The full Senate July 23, 1998, approved the fiscal

year 1999 spending bill (S. 2260) by a vote of 99-0, which

includes an $11.5 million increase in funds for the EEOC. A

conference between the House and Senate will be required

to resolve the differences between the two bills. See "$18.5

Million Hike in EEOC Budget Approved by House Appropriations Panel," BNA's EEOC Compliance Manual, Bureau

of National Affairs, Inc., July 31, 1998, p. 111.

76
is a developing law, and issues can arise in a particular ADA case that were not covered in the

ADA training. However, according to the Associate Legal Counsel, EEOC has provided more

training on the ADA than on any other statute.236

When the law was passed, EEOC began training

its staff to prepare them to carry out their new

responsibilities. In fiscal year 1990, initial training on the ADA was offered to all headquarters

managers and supervisors, and videos of this

training were shown to other staff. In fiscal year

1991, EEOC received funds for a "comprehensive

training initiative," but these funds did not support training focused on the ADA.237

In fiscal year 1992, EEOC spent approximately $2 million training its staff, although the

President's budget, approved by Congress, designated only $300,000 for staff training.238 A 1-

day training program was developed and delivered to 2,600 staff members in all the Commission's field offices, as well as to staff at the Office

of Federal Contract Compliance Programs.239

Most of the training was in video format, under

the supervision of the Office of Legal Counse1.240

In June 1992, EEOC conducted week-long

training for 1,400 field managers, supervisors,

investigators, and attorneys. EEOC also opened

a training center for its employees.241

Training for EEOC staff for effective enforcement of the ADA has been ongoing. During fiscal

year 1995, the former Office of Program Operations, in conjunction with the Office of General

Counsel and the National Institute of Occupational Safety and Health, developed a training

program on the ADA for EEOC attorneys and investigators, who in turn would deliver training to

the field office staff. The EEOC viewed the training as "critical" for field office staff who analyze

the "essential functions of a job" and reasonable

236 Mastroianni interview, p. 9.

237 EEOC, "EEOC's Implementation of Title I of the Americans with Disabilities Act of 1990" (January 1993) (hereafter

cited as EEOC, "EEOC's Implementation of Title I of the

ADA") pp. 4-5.

238 EEOC Comments, p. 4.

238 EEOC, "EEOC's Implementation of Title I of the ADA,"

PP. 5-6.

240 EEOC, FYs 1991 and 1992 Annual Report, p. 12.

241 EEOC, "EEOC's Implementation of Title I of the ADA,"

PP- 5-6.

63

accommodations under the ADA to resolve ADA

charges.242 In addition, the former Office of Program Operations coordinated with the Office of

Legal Counsel and developed ADA case studies

training for all field offices in fiscal year 1996. The

training provided analysis and discussion of typical disability scenarios to aid investigators in

proper development of such charges.243

EEOC's Legal Counsel said that the primary

obstacle to training staff has been limited funding. Since the ADA was passed, the substantive

training for EEOC staff has been almost exclusively on the ADA. However, according to the . Associate Legal Counsel, many jurisdictional

issues are still unresolved; thus, despite training, such issues may be difficult for investigators

to address.244 According to the Associate Legal

Counsel, it is too soon to determine if a third

wave of agencywide ADA training will be

needed, but the agency probably will reassess

ADA training needs in the future.245

Despite such challenges, EEOC has devel- oped a broad array of training classes and

manuals. For example, the "Priority Charge

Handling Training Participants' Manual" provides information on analyzing evidence, prioritizing charges, interviewing, assessing credibility, and negotiating settlements.246 In addition to

providing role-playing scenarios and other exercises, this document provides information on

EEOC procedures, requirements, and guide -

lines.247 Similarly, the "ADA Case Study

Trainer's Manual" provides case studies and legal analysis on a variety of ADA issues. This

training manual covers reasonable accommodation and undue hardship, determining if a

charging party has a psychiatric disability, disability-related questions and medical examinations, "regarded as" substantially limited in

242 EEOC, FY 1995 Annual Report, p. 12.

243 Ibid., pp. 12-13.

244 Casellas interview, p. 3.

245 Mastroianni interview, p. 9.

246 EEOC, "Priority Charge Handling Training Participants'

Manual," November 1995 (hereafter cited as EEOC,

"Priority Charge Handling Training Manual").

247 See, e.g., EEOC, "Priority Charge Handling Training

Manual," app. A.

77
working, determining essential functions of a

position,. and direct threat.248

In addition to nationwide training, both

headquarters and field offices have held their

own training sessions. For example, the Legal

Counsel stated that headquarters has created a

training cooperative where every other month

one office will take responsibility for developing

a training course. The sessions are designed for

lawyers, although all staff members are welcome

to attend. Much of the training that has been

done over the last 2 years has been in response

to training plans and proposals for funding that

have been submitted by various offices.249

The New York District Office also held its

own training, in addition to taking the training

provided by headquarters. Staff in the New York

office prepared for the new priority charge handling procedures by practicing with hypothetical

situations. In addition, the office contacted advocacy groups in the New York metropolitan area

and asked them to provide training on how to

communicate with individuals with disabilities.250 Similarly, for 6 months before the ADA

went into effect in 1992, the Dallas District Office had weekly training sessions at which representatives from disability organizations talked

about issues with various disabilities and the

typical types of accommodations. In addition to

other ongoing informal training sessions, in 1997

the office held a number of 2-hour training sessions on different topics, including the ADA.251

Other offices also have conducted informal

training.252

The district director in Los Angeles said that

staff training should be a continuous process. She

recommends that training be tailored to individual investigators and address local issues, rather

than be national in scope. The district director

248 EEOC, "ADA Case Study Training Trainer's Manual,"

undated (hereafter cited as EEOC, "ADA Case Study

Training Manual").

249 Vargyas interview.

250 Spencer Lewis, Director, Dallas District Office, EEOC,

telephone interview; Apr. 9, 1998, pp. 2 and 4 (hereafter

cited as Lewis interview).

251 Bradley interview, p. 2.

252 See Mabry-Thomas interview.

64

also noted that field offices should not have to rely

on headquarters to provide training.253

Staff reactions to training have been mixed.

An enforcement manager in the Charlotte District Office said that the training provided on the

ADA has been outstanding and that staff was

better prepared to enforce the ADA than other

statutes.254 Other staff agreed that staff training

was sufficient, while some say it is still a priority, particularly in the field.255 According to

Acting Chairman Igasaki, headquarters staff is

encouraged to provide informal training to field

office staff when traveling to speak on the

ADA.256 Commissioner Miller stated that there

are more courses available for lawyers, such as

seminars offered at conferences, than there are

for investigators.257

The Chicago district director summarized

many of the shortcomings of the training that

EEOC has provided on the ADA. He stated that

the "train the trainer" approach to training,

though less expensive, is insufficient compared

to other forms of training. For this type of

training to succeed, the trainerssupervisors

and managersneed to have more intensive

training.258 The regional attorney in the Los Angeles District Office stated that continuing education is important. Although staff has had

much classroom training, they will always need

more. They also need more experience.259 Similarly, the enforcement manager in the Los Angeles District Office said that staff will not master the ADA until various issues arise in the

253 Thelma Taylor, Director, Los Angeles District Office,

EEOC, telephone interview, Apr. 17, 1998 (hereafter cited as

Taylor interview).

254 Michael Witlow, Enforcement Manager, Charlotte District Office, EEOC, telephone interview, Apr. 14, 1998

(hereafter cited as Witlow interview).

255 See Viramontes interview, p. 3; Dubey interview, pp. 1-2;

Choate interview, p. 6; Drane interview, p. 2; Jim Wallace,

Enforcement Supervisor, Dallas District Office, EEOC, telephone interview, Apr. 14, 1998, p. 3 (hereafter referred to as

Wallace interview).

256 Igasaki interview p. 2.

257 Miller interview, p.6.

258 John Rowe, District Director, Chicago District Office,

EEOC, telephone interview, Apr. 16, 1998 (hereafter cited as

Rowe interview).

259 Thomason interview.

/8
cases they are investigating. Every basis, issue,

and situation cannot be covered in training.260

In 1998 a pilot training project will begin at

four EEOC district offices (Atlanta, Los Angeles,

Milwaukee, and Philadelphia) under a joint program between EEOC and the Equal Employment Opportunity Committee of the American

Bar Association. These district offices will receive training based on the needs of staff in each

office.261 According to Commissioner Miller, who

spearheaded this initiative, under this program,

the American Bar Association liaison representatives will design the training programs in

conjunction with district directors and regional

attorneys to learn about the particular training

needs of the different field offices, since needs

may differ across offices.

Commissioner Miller explained that the advantages of the training are that it is targeted,

individual, and free. The goal is to create a col260 Viramontes interview.

261 "Private Attorneys to Train EEOC Staff in New Volunteer Project with ABA Panel," Daily Labor Report, no. 60

(Mar. 30, 1998), p. C-1; Miller interview, p. 6.

65

laborative program that occurs on a regular basis.

The training will be designed collectively by representatives of management, employees, and unions, so that it will include all perspectives. Over

time, EEOC field offices can share what they have

learned from the training with other offices.

Commissioner Miller said that another benefit of

the program will be to give the ABA a real investment in the progress and success of EEOC.

The program is expected to expand to other offices

at the beginning of fiscal year 1999.262

According to the March 1998 report of the Priority Charge Handling Task Force and the Litigation Task Force, EEOC's training needs exceed its

available resources. Thus, the agency must be

creative in identifying training opportunities for

its staff. Because the fiscal year 1999 budget calls

for improvements in technology and an expansion

of the alternative dispute resolution program,

staff training will be a crucial issue.263

262 Miller interview, p. 6.

263 EEOC, March 1998 Task Force Report, p. 25.

79
4

Assessment of EEOC's Rulemaking and

Policy Development

The Equal Employment Opportunity Commission's implementation and enforcement program for the Americans with Disabilities Act

emphasizes policy guidance and litigation.'

EEOC does rulemaking and advances policy positions in enforcement guidance documents,

cases it litigates, and amicus curiae briefs.

Through these mechanisms, EEOC has sought to

achieve a number of goals: to meet Congress'

requirements for implementing the ADA, to influence the development of the law, and to raise

awareness and understanding about the ADA

and the rights and responsibilities it establishes

for employers and employees.

In accord with Congress' instructions in the

ADA, EEOC issued substantive title I regulations.2 EEOC also issued detailed interpretive

guidance along with its regulations.3 Finally,

EEOC issued policy or enforcement guidance on

key issues under the ADA, such as defining the

term "disability."4 How EEOC develops regulations and policies, their substance on key statutory terms and issues, and the different ways in

which EEOC officials, the courts, advocacy

I Although litigation is an important means through which

EEOC advances its ADA policy positions, this chapter focuses solely on policy as it has been enunciated in regulations and policy guidance. Chap. 6 addresses EEOC's litigation activities from a procedural perspective.

2 29 C.F.R. § 1630 (1997).

3 See id. pt. 1630 app. (1997).

4 See U.S. Equal Employment Opportunity Commission

(EEOC), "Section 902Definition of the Term 'Disability',"

Mar. 15, 1995 (hereafter cited as EEOC, "Definition of the

Term 'Disability"').

66

groups, and others have viewed EEOC's policies

all enter into an assessment of the agency's effectiveness in implementing and ensuring compliance with the law.

Title I Rulemaking and Policy Development

In developing regulations and policies and in

its litigation, EEOC seeks in part to guide the

development of the ADA and the other laws it

enforces.5 One of EEOC's most important goals,

according to its National Enforcement Plan, is to

find cases that have the potential of promoting

the development of law supporting the antidiscrimination purposes of the statutes the agency

enforces.6 To advance its position, EEOC undertakes cases that present unresolved issues of

statutory interpretation or involve legal issues

where there is a conflict among the Federal circuits. Similarly, EEOC issues policy guidance

with the agency's interpretation of complex provisions of law to facilitate compliance with the

ADA and other statutes it enforces.?

5 EEOC, "National Enforcement Plan," February 1996, p. 2

(stating "the Commission [EEOC] must use its limited resources more strategically to deter workplace discrimination, guide the development of the law, resolve disputes, and

promote a work environment in which employment decisions are made on the basis of abilities, not on the basis of

prejudice, stereotype and bigotry"); EEOC, "Strategic Plan:

1997-2002," OMB Review Copy, Aug. 18, 1997, pp. 29-30

(stating that "the agency [EEOC] has brought many cases

which had been instrumental in the development of the

law") (hereafter cited as EEOC, "Strategic Plan").

6 EEOC, "National Enforcement Plan," p. 5.

7 EEOC, "Strategic Plan," pp. 17-18.

so
Rulemaking

Under the ADA, EEOC has the authority to

engage in "substantive rulemaking."8 The ADA

required EEOC to issue final regulations implementing the employment provisions of the act

within 1 year of its passage.9 Accordingly, EEOC

issued its regulations implementing the employment provisions of the ADA on July 26,

1991.10 EEOC also issued its regulations implementing ADA recordkeeping and reporting requirements in a timely fashion.11 Congress also

required EEOC, and other agencies with enforcement authority for employment nondiscrimination requirements under the ADA and

the Rehabilitation Act to establish coordination

procedures in their regulations to avoid duplication of effort and inconsistent or conflicting

standards in processing complaints filed under

both the ADA and the Rehabilitation Act.12

EEOC published such regulations in the Federal

Register in August 1994.13

In completing the rulemaking required by

Congress in the ADA, EEOC actively solicited

and considered public comment.14 On August 1,

1990, a few days after the ADA was signed into

law, EEOC published an advance notice of proposed rulemaking informing the public that the

agency had begun developing substantive regulations under title I of the ADA.15 With this no8 EEOC, "Policy Guidance: Provisions of the Americans with

Disabilities Act of 1990: Summary of the Act and Responsibilities of the EEOC in Enforcing the Act's Prohibitions

Against Discrimination in Employment on the Basis of Disability," (EEOC Notice 915-055), Aug. 14, 1990, p. 10

(hereafter cited as EEOC, "Policy Guidance: Provisions of

the ADA").

9 See 42'U.S.C. § 12116 (1994). See also EEOC, Fiscal Year

1990 Annual Report, p. 8 (hereafter cited as EEOC, FY 1990

Annual Report). Individuals seeking to file ADA charges

before July 26, 1992 were referred to an appropriate Federal

or State agency. EEOC, "Policy Guidance: Provisions of the

ADA," p. 10.

10 See Equal Employment Opportunity for Individuals with

Disabilities, 56 Fed. Reg. 35726 (1991) (codified at 29 C.F.R.

§ 1630 (1997)).

II See 29 C.F.R. § 1602 (1997).

12 42 U.S.C. § 12117(b) (1994).

13 See 29 C.F.R. pt. 1640 (1997).

14 See Equal Employment Opportunity for Individuals with

Disabilities, 56 Fed. Reg. 35,726 (1991).

15 Id. (citing Advance Notice of Proposed Rulemaking, 55

Fed. Reg. 31,192 (1990)).

67

tice, EEOC invited comment from interested

groups and individuals. The comment period

lasted until August 31, 1990. EEOC received 138

comments from various disability rights groups,

employer groups, and individuals. In addition,

EEOC solicited comments through 62 meetings

held by EEOC field offices throughout the country in which more than 2,400 representatives

from disability rights organizations and employer groups participated.16

During the next 11 months, EEOC staff

drafted proposed regulations,17 reviewed public

comments on the regulations, and finalized the

regulations for publication in the Federal Register. On February 28, 1991, EEOC published its

notice of proposed rulemaking for title 1.18 The

comment period ended on April 29, 1991,19 and

EEOC received 697 comments from interested

groups and individuals.20

Comments were provided by private citizens

(with and without disabilities), some of whom

praised the proposed rules and some of whom

thought they were not sufficient; attorneys

seeking clarification of certain phrases and terminology; and physicians disturbed that the

regulations neglected to indicate that only medical experts were qualified to identify disabled

individuals. In addition, various business representatives addressed health insurance and

workers compensation issues.21 Many of these

16 Id.

17 Naomi Levin, Special Assistant to Commissioner Jones,

EEOC, interview in Washington, DC, Apr. 1, 1998, p. 2

(hereafter cited as Levin interview). In explaining how staff

performed the work of drafting the original regulations, Ms.

Levin said that only two attorneys were assigned the task of

actually writing, herself and another attorney. They began

their work by putting each section of the law together with

all legislative history references to that section and the relevant parts of section 504 of the Rehabilitation Act in a notebook, which they used as a reference for writing the regulations, in keeping with Congress's intent. Ibid.

18 See Equal Employment Opportunity for Individuals with

Disabilities, 56 Fed. Reg. at 35,726 (citing Notice of Proposed Rulemaking, 56 Fed. Reg. 8,578 (1991)). See also

Levin interview, p. 2.

19 Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. at 35,726.

20 Id.

21 See 17-volume compendium of Comments on Proposed

Rulemaking, 56 Fed. Reg. 8578 (Feb. 28, 1991), maintained

in EEOC public library (hereafter cited as Compendium of

Comments).

81
comments have resonance today, nearly 8 years

later, because they address .issues that remain

controversial. For example, small business entrepreneurs expressed concern about the administrative and financial impracticalities of the

regulations; contractors and executives of construction companies argued that compliance

with the regulations would cause safety hazards

at work sites; and other employers stressed that

accommodating individuals with particular cognitive impairments would hinder productivity.

In addition, some State and local police and fire

departments claimed that physically disabled

individuals would not have the proper skills to

"protect the streets" and promote public safety.

Further, various disability advocacy groups, especially those representing mentally ill individuals, were critical of how such terms as

"major life activity" and "direct threat" were defined. Some public and independent human

services organizations noted that although the

ADA protects individuals with organic brain disorders, the title I regulations lacked references

to similarly disabled groups, such as victims of

traumatic brain injuries.22

Comments from individuals with disabilities

included those of an individual with multiple

sclerosis stating that the absence of strong

guidelines and criteria from EEOC would "dilute

the ADA."23 A man in his twenties (using mental

illness as an example) noted that some individuals "regarded as having a disability" are misdiagnosed by a physician, yet are "treated" as a

person with a disability by peers and coworkers.

The writer urged the EEOC to mention in the

definition of "qualified individual with a disability" 'that caution should be given to "regarding

an individual as disabled" because he or she may

have not been properly diagnosed.24

EEOC did not address these concerns specifically in its final rule. However, in the interpretive guidance accompanying the rule, EEOC

stated: "The determination of whether an individual has a disability is not necessarily based

on the name or diagnosis of the impairment the

22 See generally Compendium of Comments.

23 Jean Towes, Spokane, WA, letter to Frances M. Hart,

Executive Officer, EEOC, Apr. 10, 1991.

24 Unidentified writer, letter to Frances M. Hart, Executive

Officer, EEOC, Apr. 9, 1991.

68

person has, but rather on the effect of that impairment on the life of the individual."25 In addition, the regulations state that having a record

of a disability includes having been "misclassified as having, a mental or physical impairment

that substantially limits one or more major life

activities."26 The interpretive guidance further

explains Congress' consideration of the possibility of misdiagnosis and the second part of the

definition provides:

that an individual with a record of an impairment

that substantially limits a major life activity is an

individual with a disability. The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability.

For example, this provision protects former cancer

patients from discrimination based on their prior

medical history. This provision also ensures that individuals are not discriminated against because they

have been misclassified as disabled. For example,

individuals misclassified as learning disabled are protected from discrimination on the basis of that erroneous classification.27

EEOC also received comments from many

others. Comments on reasonable accommodation, the "interactive" relationship, and undue

hardship particularly addressed ADA issues that

remain unresolved today. For example, an attorney with a Santa Barbara, California, firm addressed several problems with the title I regulations and offered solutions for clarification. The

attorney pointed out that in the proposed rules,

section 1630.9(a) requires that employers make

reasonable accommodations to known limitations and section 1630.2 (o)(3) suggests that employers discuss "reasonable accommodations"

with a disabled applicant or employee. The attorney was particularly concerned about the

proposed rule's section 1630.13(b), which prohibits employers from inquiring about disabilities. From the attorney's perspective, the proposed regulations indicated that only those employees or applicants who initiate the discussion

about a disability must be accommodated. The

attorney suggested that the final title I regulations should address whether an employer may

25 See 29 C.F.R. pt. 1630 § 1630.2(j) (1997).

26 See id. § 1630.2(k).

27 Id. pt. 1630 § 1630.2(k).

82
inquire if a reasonable accommodation is necessary, and if so, the nature and scope of the accommodation. The attorney claimed that with

this provision, the optimal accommodation for

the employee or applicant can be determined;

and the employer can assess the "burden of the

requirement."28

The regulations do not explicitly state that an

employer may ask whether an employee requires

reasonable accommodation. However, they do

state than any covered entity "may make inquiries into the ability of an employee to perform

job-related functions. "29 Moreover, the regulations state that "it may be necessary for the covered entity to initiate an informal, interactive

process with the qualified individual with a disability in need of the accommodation."30

This language seems to suggest that an employer can begin to address the problem, but, .as

this attorney suggested, the employer is not responsible for that about which he has not been

informed. However, the regulations also state

that it is unlawful for a covered entity to deny

employment opportunities based on the need to

make reasonable accommodation.31 Since this

provision does not qualify the term "physical or

mental impairments" with the word "known,"

could employers be held liable for not providing

reasonable accommodation to employees whose

disabilities are not known? This confusion is just

one example of the unclear guidance relating to

reasonable accommodation that remains a problem today.

This attorney noted other concerns that continue to be important today. For example, he

suggested that EEOC make changes regarding

the concept of "undue hardship." He mentioned

that sections 1630.2(p) and 1630.9(a) require an

economic analysis of the effect of the cost of a

particular reasonable accommodation, based on

the covered entity's financial resources. The attorney noted that this regulation was not sufficient, because it did not recognize the effects of

28 J. Terry Schwartz, attorney, Price, Postel, and Parma,

Santa Barbara, CA, letter to Frances M. Hart, Executive

Officer, EEOC, Mar. 27, 1991 (hereafter referred to as

Schwartz letter).

29 29 C.F.R. § 1630.14( c) (1997).

38 Id. § 1630.2 (o)(3).

31 See id. § 1630.9(b).

69

the costs of multiple and successive accommodations that could be incumbent on the employer.

To elaborate his point, the attorney noted that

providing a qualified interpreter for one disabled

employee may not have a burdensome economic

impact on a small business entity. However, the

cumulative accommodation costs for subsequent

employees could be an undue financial and administrative burden, even though each separate

accommodation would not be so. To offer a solution, the attorney suggested that the title I

regulations clarify that the analysis for determining the presence of an undue burden should

include a calculus of the "total cumulative burden" on the employer and not just the artificially

isolated costs and requirements for an individual

employee or applicant.32 However, these changes

were not made. The "total cumulative burden"

on the employer is not addressed in either the

rules or the interpretive guidance.

The Santa Barbara attorney also addressed

the issue of "essential functions" of a job. He

wrote that sections 1630.2(m) and (n) in the proposed regulations describe the essential functions of a job in terms of job "duties," but they

explicitly focus on the active or mechanical operations of a given position. The attorney argued

that these proposed rules neglected to address

the "less tangible job requirements," such as the

need to work compatibly in a team environment.

The attorney mentioned that individuals with

protected disabilities, such as mental or psychological disorders, can have involuntary emotional outbursts which may not directly disrupt

the active performance of the disabled employee,

but would nevertheless severely hinder team

members in the same work environment. The

attorney stressed that the final title I regulations should make explicit that "essential functions" can include more abstract job requirements, such as the ability to (a) work effectively

and constructively on a team or (b) avoid disruptive behaviors that directly and significantly affect the performance of coworkers.33 The final

title I regulations did not include the proposed

changes. The definition of "essential function"

32 Schwartz letter.

33 Ibid.
does not refer to "abstract job requirements" or

"less tangible job requirements."34

An attorney with a Tennessee law firm also

commented.35 Overall, this attorney expressed

concerns about the clarity and precision of the

language of the statute and its regulations, especially with regard to key terms.. These concerns

remain among the most significant ones today.36

This attorney was specifically concerned about the

potential difficulties for employers to comply with

vague legal standards, such as providing

"reasonable accommodations." He added that the

ADA is replete with many definitional and application problems and stated that, without more

explicit guidelines (from EEOC), it is difficult for

employers to determine, with any certainty, the

lawfulness of their choices and decisions. As a

consequence, employers could potentially be sued

and forced to defend their actions without having

any way of knowing whether those actions violated a civil rights law.

Other comments came from presidents of

credit unions. The first pointed out that many

credit union staff positions require employees to

handle or have access to cash or other negotiable

instruments and these employees are bonded to

protect against potential theft, embezzlement, or

related misconduct. Individuals with documented histories of illegal drug abuse are likely

to not be "bondable," he said, regardless of

whether they had completed rehabilitation programs. If the ADA, as it appeared, were to override the current policy of hiring only bondable

individuals for sensitive positions, the president

wrote, then compliance with the ADA could expose the credit union to losses, damages, and

potential lawsuits. The president said that credit

unions would need assurances that a legal defense based on compliance with the ADA would

protect them from these and other legal liabilities. He also stressed that financial institutions

should be exempt from hiring former illegal drug

abusers into "positions of trust and fiduciary re34 29 C.F.R. § 1630.2(n).

35 Edward Snyder, attorney, Witt, Gaither, and Whitaker,

Chattanooga, TN, letter to Frances M. Hart, Executive Officer, EEOC, Mar. 25, 1991 (hereafter cited as Snyder letter).

36 See discussion below, this chapter.

70

0

sponsibility."37 This suggestion, however, contradicted the ADA itself, which explicitly protects former illegal drug users. In accord with

the statute, the regulations state that an individual who has successfully completed a drug

rehabilitation program and is no longer engaging in the illegal use of drugs can be considered a

"qualified individual with a disability" under

section 1630.3.38

Another credit union president stressed several areas in the propOsed regulations seemed

impractical, unrealistically burdensome, or "too

vague for any employer," regardless of commitment to compliance with the ADA. For instance,

she said that the regulations did not specify who

determines that a needed accommodation causes

"undue hardship" to an employer. She also said

the term "undue hardship" was too subjective.

She added that because her firm tends to rotate

employees on a periodic basis, the credit union

could be forced to physically renovate and purchase equipment for more than 10 locations to

accommodate only one "qualified individual with

a disability." This credit union president was

also concerned that the regulations did not clarify what would happen (to a covered employer) if

a "qualified individual with a disability" accepted an accommodation, later claimed that it

was not sufficient, and demanded a remedy that

caused an employer "undue hardship. "39

At least two individuals, a human resources

manager and an attorney, argued that the ADA

should address the problem of absences related

to a disability. The human resources manager,

employed by a highway contractor, pointed out

that the company's work is done on a competitive bid basis with tight completion schedules,

and excessive absences by any employee are a

serious problem, especially due to the seasonal

nature of the company's work.40 The attorney

37 President, Andrews Federal Credit Union, Suitland, MD,

letter to Frances M. Hart, Executive Officer, EEOC, Apr. 2,

1991 (hereafter cited as Andrews Federal Credit Union letter).

38 29 C.F.R. § 1630.3.

39 Jean M. Yokum, president, Langley Federal Credit Union,

Hampton, VA, letter to Frances M. Hart, Executive Officer,

EEOC, Mar. 28, 1991.

40 James L. Hoban III, Human Resources Manager, James

Julian, Inc., Wilmington, DE, letter to Frances M. Hart,

Executive Officer, EEOC, Mar. 15, 1991.

84
from San Francisco suggested that the definitions and discussions of "reasonable accommodations" should include EEOC's views on employers' tolerance of "excessive absenteeism," particularly with respect to chronic illnesses. The

attorney said that excessive absenteeism is the

most difficult problem in "managing performance" with respect to certain disabilities, such as

lupus, HIV, and Epstein-Barr, in the workplace.41 However, "excessive absenteeism" is not

considered in the definition or discussion of

"reasonable accommodation."42 "Excessive absence" is not discussed in depth in the title I

rules outside of the guidance of section 1630.5:

"It would also be a violation of this part to, deny

employment to an applicant or employee with a

disability. . .based on generalized assumptions

about the absenteeism rate of an individual with

such a disability."43 However, more recently,

regular presence at work has been viewed as an

essential function of any job. This is another example of a certain tension between EEOC

guidelines and other interpretations of the ADA

that continues today.

A number of State, city, and county mental

health and human services departments and

related nonprofit associations commented that

the proposed title I regulations tended to reflect

barriers to understanding mental illness. For

instance, the public policy chairperson of the

Mental Health Association of Knox County,

Tennessee, observed that her organization

worked hard to help pass the ADA and was concerned that mentally ill individuals benefit from

the protections afforded by the law. She stated

that in general, examples, interpretations, and

explanatory notes included in the body of the

ADA regulations should give additional attention to individuals with mental illness. Individuals with mental illnesses were given additional

attention to the extent that certain examples

were added that focus on mental disabilities.

In addition, she acknowledged that mental

illness may impart "substantial limitations" on

an individual's ability to perform a specific job.

However, she indicated that the definition of

41 Charles J. Nau, Attorney, San Francisco, CA, letter to

Frances M. Hart, Executive Officer, EEOC, Apr. 7, 1991.

42 29 C.F.R. § 1630.2(o).

43 Id. § 1630.5.

71

"major life activities" pertains more to individuals with physical disabilities and offers limited

applicability to persons with a mental disability.

Thus, she recommended that EEOC expand the

definition to include activities such as reasoning,

concentrating, socializing, and communicating.

Although the expansion was not made, the interpretive guidance on section 1630.2(I) defines

major life activities as "those basic activities that

the average person in the general population can

perform with little or no difficulty."44 The activities that the chairperson suggested fall under

this category.

The chairperson also had concerns with respect to EEOC's expansion (in the proposed

regulations) of the definition for "direct threat"

to include "risk to the individual." She said that

a particular problem with this is that a "direct

threat" may be interpreted by an employer based

on stereotypes of mentally ill individuals. She

suggested that EEOC modify the title I regulation to state that "risk" to self and others should

be based on an individual's current condition

rather than mere speculation about the future

course of a disability, or a more generalized fear

of a disability. The modification was not made,

but her concern is addressed, in the interpretive

guidance on section 1630.2(r). This provision

states that in determining whether the qualified

individual with a disability poses a direct threat,

the employer must consider the risk and harm

that would result from hiring the applicant.

These considerations, however, "must rely on

objective, factual evidencenot on subjective

perceptions, irrational fears, patronizing attitudes, or stereotypesabout the nature of the

particular disability."45

Finally the chairperson suggested that EEOC

clarify in the body of the regulations that an

"undue hardship" should be based on the administrative or financial costs of providing an

accommodation, and not based on the hardship

of accommodating the fears and prejudices other

workers hold about disabilities.46 However, the

wording remains ambiguous. "The concept of

undue hardship," the interpretive guidance on

44 Id. § 1630.2(i).

45 Id. § 1630.2(p).

46 Lofaro letter.

85
section 1630.2(p) states, "is not limited to financial difficulty. [It] refers to any accommodation

that. . .would fundamentally alter the nature or

operation of the business."47 Several other letters

from State and local mental health associations

expressed the same concerns.48

Various State and local organizations representing individuals with epilepsy responded to

the proposed title I regulations. For instance, the

president of the Coelho Jobs Center was concerned about individuals with epilepsy being

required to disclose their condition when seeking

employment. Although the Jobs Center acknowledged that the title I regulations prohibit

employers from requiring applicants to have a

medical examination to determine the presence

of a disability, it was concerned that job applications would continue to ask questions about disabilities. Thus, the Jobs Center urged EEOC to

clarify in the regulations what employers can

and cannot ask on a job application.49 Regulatory

provisions responding to this concern can be

found in sections 1630.13 and 1630.14.59

EEOC considered, analyzed, and in some cases

incorporated concerns identified in the comments

in the development of its final title I rule,51 published in the Federal Register on July 26, 1991, 1

47 29 C.F.R. § 1630.2(p).

48 See, e.g., Jean M. Jones, President, Mental Health Association of Georgia, Inc., Decatur, GA, letter to Frances M.

Hart, Executive Officer, EEOC, and Jane Van Sant, Executive Director, Transitional Living Consortiuin, Kansas City,

MO, letter to Frances M. Hart, Executive Officer, EEOC,

Apr. 10, 1991.

46 President, Coelho Jobs Center, Epilepsy Foundation of

North Central Illinois, Rockford, IL, letter to Frances M.

Hart, Executive Officer, undated. See also Carolyn Smith,

Executive Director, Dallas Epilepsy Association, Dallas, TX,

letter to Frances M. Hart, Executive Officer, EEOC, Apr. 10,

1991; and Alexander Younger, President, Epilepsy Foundation for the National Capital Area, Washington, DC, letter

to Frances M. Hart, Executive Officer, EEOC, Apr. 11, 1991.

50 29 C.F.R. § 1630.13; 29 C.F.R. § 1630.14.

51 See Equal Employment Opportunity for Individuals with

Disabilities, 56 Fed. Reg. 35,726 (1991). See also Levin interview, pp. 2-3. In describing how EEOC undertook this

process, Ms. Levin stated that EEOC assigned several staff

members, mainly attorneys, with expertise in specific issues

to respond to the comments. Using limited computer systems, they created indices and key words and phrases to

access specific issues and write summaries for each one.

Relying on this system, EEOC was able to meet Congress'

deadline for completion of the title I rules.

72

year after the passage of the ADA.52 Generally,

EEOC's substantive title I regulations clarify and

elaborate on the provisions of the statute. They

provide specific criteria identifying standards to

define more clearly the meaning of such terms as

"reasonable accommodation," "undue hardship,"

and "determine whether undue hardship or direct

threat exist." EEOC based its development of

ADA regulations and policy guidance on the ADA

statute, congressional intent as expressed in the

ADA's legislative history, significant court cases,

and the provisions and regulations of sections

501, 503, and 504 of the Rehabilitation Act of

1973.53 In general, the legislative history and text

of the ADA largely were based on section 504

law.54 As a result, the ADA's policy positions on

disabilities issues largely were the same as those

in the section 504 regulations and the body of section 504 caselaw that had grown up since its passage in 1973.55

Policy and Enforcement Guidance

EEOC provides its staff with policy or enforcement guidance on the various civil rights

laws for which the agency has enforcement responsibilities.56 The enforcement guidance helps

EEOC staff in investigating and evaluating

claims of discrimination, in interpreting and applying significant new court decisions and legislation, and in evaluating evidence in cases raising issues addressed in the guidance. The guidance also informs the public of EEOC's position

on various subjects.57 In addition, the legal interpretations that EEOC advances in its policy

guidance play an important role in shaping

52 Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. at 35,726 (1991).

53 Sections 501, 503, and 504 of the Rehabilitation Act are

codified at 29 U.S.C. §§ 791, 793-794 (1994). See also Levin

interview, p. 2.

54 Levin interview, p. 2.

55 Ibid.

56 These include the Equal Pay Act of 1963, 29 U.S.C. §§ 201

note, 206, 206 note (1994); title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e (1994); the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621-634 (1994); as

well as title I of the Americans with Disabilities Act of 1990,

42 U.S.C. §§ 12111-12117 (1994).

57 EEOC, Annual Report 1993. p. 12 (hereafter cited as

EEOC, FY 1993 Annual Report).

86
nearly every aspect of the agency's implementation and enforcement efforts.

EEOC's ADA policy and enforcement guidance may be helpful to any number of people,

including people with disabilities, employers,

management and plaintiffs' attorneys, and disability advocacy groups. However, these policy

documents are intended primarily to provide

guidance and direction to EEOC's investigative

and legal staff.

Policy and Enforcement Guidance Development

In developing its policy or enforcement guidance on title I, EEOC has more latitude to choose

what issues it will address and when the guidance

will be published than it had in developing title I

regulations, because it is not operating under a

timeframe determined by Congress. Since August

1990, EEOC has issued numerous policy guidance

or enforcement guidance documents relating to

the ADA. Generally, it has chosen issues on which

to focus based on its stated reasons for undertaking policy development in its Strategic Plan,

namely, to offer the agency's interpretation of

complex provisions of the law and to facilitate

compliance with the law.

EEOC's ADA policy and enforcement guidance is developed by the ADA Policy Division in

the Office of Legal Counsel for approval by

EEOC's Commissioners. Before 1997, EEOC did

not have a formal mechanism for policy devel-,

opment. In early 1997, EEOC formed a policy

development committee and thus established a

formal policy development mechanism.58 The

58 See Peggy R. Mastroianni, Associate Legal Counsel, Office

of Legal Counsel, EEOC, interview in Washington, DC, Apr. 6,

1998, p. 2 (hereafter cited as Mastroianni interview). Before

the creation of the Policy Development Committee in 1997,

the EEOC had no committee for policy development. However,

EEOC always has had formal policy development procedures.

Thus, policy documents are originally drafted by attorneys in

the Office of Legal Counsel. After approval by the Legal Counsel, they are circulated to the major offices within the EEOC

for comment. After these comments are reconciled, policy

documents go to the Commissioners for comment, revision,

and a vote. With the creation of the Policy Development

Committee, proposed policy development options are now

presented to the Committee at the very beginning of the process. See Peggy R. Mastroianni, Associate Legal Counsel,

EEOC, letter to Frederick D. Isler, Assistant Staff Director,

Office of Civil Rights Evaluation, U.S. Commission on Civil

Rights (USCCR), July 9, 1998, Comments of the EEOC, p. 6

(hereafter cited as EEOC Comments).

73

committee consists of representatives of each of

the Commissioners, the Legal Counsel, the Associate Legal Counsel, and representatives from

the Office of General Counsel, the Office of Field

Programs, and the Office of Federal Operations.

The committee meets once a month. The Associate Legal Counsel explained that if the Office of

Legal Counsel is considering developing policy

guidance on an ADA issue, the Legal Counsel

and Associate Legal Counsel will present it at

the meeting.59

In interview statements, EEOC's Associate

Legal Counsel noted that the Office of Legal

Counsel assesses which issues it will present to

EEOC's Commissioners for policy guidance development based on a combination of factors,

both formal and informa1.69 For example, staff do

a lot of public speaking and receive much information from employers, human resources people, and disability rights advocates who call and

write the agency.61 The Associate Legal Counsel

said that the classic example of the Office of Legal Counsel's ADA policy development is the

guidance on psychiatric disabilities.62 She noted

that staff has received many questions on this

issue since EEOC began enforcing the ADA.63 In

addition to information provided by stakeholders, the Office of Legal Counsel also gets input

from EEOC's field offices. Investigators and attorneys in the field tell them about issues they

see repeatedly.64 Also, in some instances, the

Commissioners suggest issues on which they

want guidance.65

The Legal Counsel described the process the

group goes through in developing policy as

"interactive." She said that the group discusses

various issues and determines if they need to be

addressed. She added that the entire process of

generating policy is very lengthy. After it is prepared in the Office of Legal Counsel, there is an

interoffice review process, and then the policy is

59 Mastroianni interview, p. 2.

6° Ibid., p. 1. 61 Ibid., p. 2. 62 Ibid.

63 Ibid. 64 Ibid. 65 Ibid.

67
reviewed by the Commissioners, and changes

are made.66

Some disability advocates have criticized

EEOC for not having a formal mechanism in

place for advocacy groups to raise issues or concerns with EEOC on specific issues before policy

guidance is issued.67 The Legal Counsel and the

Associate Legal Counsel confirmed that, with

the exception of very limited circulation within

the Federal Government, draft policy guidance is

not circulated outside of the agency and EEOC

does not provide an opportunity for formal notice

and comment for anything except its regulations.68 The Associate Legal Counsel said that if

EEOC had a formal notice and comment for policy or enforcement guidance, it would not have

been able to issue as much guidance. However,

both the Legal Counsel and the Associate Legal

Counsel noted that Office of Legal Counsel staff

includes input from stakeholders throughout the

process.69 According to the Associate Legal

Counsel, EEOC "floats all sorts of ideas" informally in meetings with outside groups and

sometimes holds informal meetings with stakeholders to discuss ideas. EEOC also accepts and

considers comments from anyone who writes the

agency. She indicated that EEOC does not actively solicit written comments on policy and

enforcement guidance, because if EEOC issued a

letter asking for comment, it would become formal. She said that EEOC cannot just write a letter to some people because it would be nearly

impossible to include all interested groups. To do

so would require publishing the request in the

Federal Register, which is the equivalent of providing the full formal notice and comment of the

regulatory process."

EEOC Commissioner Paul Steven Miller reiterated that, in developing its policy or enforcement guidance, EEOC does not have a formalized process for notice and comment before a

66 Ellen Vargyas, Legal Counsel, EEOC, interview in

Washington, DC, Apr. 7, 1998, pp. 2-3 (hereafter cited as

Vargyas interview).

67 See Linda Priebe, Senior Attorney, David L. Bazelon Center for Health Law, interview in Washington, DC, Dec. 16,

1997, p. 4 (hereafter cited as Priebe interview).

ss Vargyas interview, p. 2; Mastroianni interview, p. 3.

69 See ibid.

70 Mastroianni interview, p. 3.

74

given policy statement or guidance is issued.

EEOC does not circulate a draft guidance before

it is voted on, because this would be too cumbersome." He said that what EEOC does do quite

extensively is hold conversations with all stakeholders, organized labor, employers, and advocacy groups.72 As the Commissioners travel

around the country, they gain a lot of information. EEOC encourages written comments addressing the issues covered in its proposed policy

or enforcement guidance, although it does not

circulate them.73

Title I Policy and Enforcement Guidance

Generally, each of the policy and enforcement

guidance documents published thus far has addressed a discrete area of ADA law. EEOC may

issue the guidance to clarify and explain its position on a specific issue. EEOC may use the guidance to reiterate a position it already has taken

in litigation. It also may issue guidance on an

issue relating to title I implementation and enforcement that it never has addressed before.

Shortly after enactment of the ADA, in

August 1990, EEOC published an initial policy

guidance on the basic provisions of the ADA.74

The next ADA enforcement guidance EEOC

published was its interim guidance on health

insurance, issued in 1993.75 EEOC's Associate

Legal Counsel stated that EEOC published its

interim health insurance guidance because it

71 Paul Stephen Miller, Commissioner, EEOC, Remarks at

Government Training Institute's National Symposium on

Psychiatric Disabilities and the EEOC's New Enforcement

Guidance Under the Americans with Disabilities Act, Jan.

12-13 1998, Arlington, VA.

72 Ibid.

73 Ibid.

74 EEOC, "Policy Guidance: Provisions of the Americans

with Disabilities Act of 1990: Summary of the Act and Responsibilities of the EEOC in Enforcing the Act's Prohibitions Against Discrimination in Employment on the Basis of

Disability," (EEOC Notice 915-0055), Aug. 14, 1990, p. 11

(hereafter cited as EEOC, "Policy Guidance: Provisions of

the ADA").

75 EEOC, "Interim Enforcement Guidance on the Application

of the Americans with Disabilities Act of 1990 to Disabilitybased Distinctions in Employer Provided Health Insurance"

(EEOC Notice 915.002), June 8, 1993 (hereafter cited as

EEOC "Interim Enforcement Guidance on the Application of

the ADA to Disability-based Distinctions in Employer Provided Health Insurance).

88
was receiving many charges on that issue:78 The

next guidance was on the definition of disability,77 which was a critical issue from the very

beginning.78 After that, EEOC issued guidance

on preemployment inquiries and examinations:78

According to the Associate Legal Counsel, it was

important to issue guidance on that issue right

away, because it was newno similar provision

existed in older civil rights statutes.88

EEOC published a noteworthy enforcement

guidance document on the ADA and psychiatric

disabilities in March 1997.81 This guidance includes a legal discussion and analysis, and also

addresses clinical issues, such as separating

mere traits from a diagnosis of a personality disorder and determining when traits such as poor

ability to concentrate or think become signs of an

impairment.

EEOC's Research and Analytic Services unit

in the Office of General Counsel employs social

scientists, economists, psychologists, and other

subject matter experts. Apparently the Office of

Legal Counsel and its ADA Policy Division have

had little contact with this office. Further, EEOC

does not have inhouse medical experts in any

unit. Should EEOC do a guidance document on

another specific kind of disability or anything

outside the purely legal topics it mainly has addressed to date, the ADA Policy Division may be

able to benefit significantly from using nonlegal

experts. The head of the ADA Policy Division

recently stated that in preparing future policy

guidance, he would be interested in using the

expertise of anybody within the agency who

could be helpful.82

76 Mastroianni interview, p. 2.

77 EEOC, "Definition of the Term 'Disability."'

78 Mastroianni.interview, p. 2.

EEOC, "Americans with Disabilities Act Enforcement

Guidance: Pre-employment Disability-Related Questions

and Medical Examinations," Oct. 10, 1995 (hereafter cited as

EEOC, "ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations").

80 Mastroianni interview, p. 2.

81 See EEOC, "EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities,"

(EEOC Notice 915.002), Mar. 25, 1997 (hereafter cited as

EEOC, "Enforcement Guidance on ADA and Psychiatric

Disabilities").

82 Christopher Kuczynski, Director, Americans with Disabilities Act Division, Office of Legal Counsel, EEOC, inter75

According to the Associate Legal Counsel,

EEOC's focus in developing enforcement guidance has been on addressing the most significant

ADA issues. She noted that EEOC does not publish and the Office of Legal Counsel does not

draft enforcement guidance on every unresolved

ADA issue causing conflict among the courts.83

This is because EEOC's Office of General Counsel does litigation and amicus activity (approved

by the Commissioners) that advance EEOC's

position on these issues. In addition, the Associate Legal Counsel said that with smaller ADA

issues or issues of lesser significance, "enforcement guidance is not the way to go, because then

you have lots of tiny little enforcement guidances."84 However, the Office of Legal Counsel in

the past published 1-page documents on discrete

topics relating to the ADA. For example, on May

11, 1995, EEOC published a 1-page "guidance

memorandum" on disability plans under the

ADA. On July 17, 1995, EEOC issued a "policy

statement" on alternative dispute resolution.

These brief guidance documents address specific

ADA-related topics without the indepth analysis

of the much lengthier ADA enforcement guidance documents. They, nonetheless, are an effective way to set out or clarify EEOC's position on

specific ADA topics or issues, particularly issues

over which the courts are in conflict.

In 1990 EEOC stated that during the 2-year

period between the enactment and the effective

date of the act, it would "develop several additional policy documents."85 These were to include

compliance manual sections on the "Theories of

Discrimination" under the ADA, the "Definition

of Disability," "Definition of Qualified Individual

with a Disability," and "Reasonable Accommodation and Undue Hardship," as well as policy

guidance on "Preemployment Inquiries." EEOC

has not published the promised enforcement

guidance on ADA theories of discrimination, the

definition of qualified individual with a disability, and policy discussion on reasonable accommodation and undue hardship. These last three,

particularly reasonable accommodation and unview in Washington, DC, Apr. 7, 1998, p. 3 (hereafter cited

as Kuczynski interview).

83 Mastroianni interview, p. 4.

84 Ibid.

85 EEOC, "Policy Guidance: Provisions of the ADA," p. 11.

69
due hardship, lie at the center of some of the

most heavily disputed issues that have arisen

since the passage of the ADA.86

Explaining why EEOC has not published the

promised policy guidance, the Associate Legal

Counsel noted that there is only so much the

Commissioners can consider at one time.87 Furthermore, EEOC has addressed the reasonable

accommodation and qualified individual areas in

other documents, such as the interpretive appendix to the regulations and the technical assistance manual published in 1992. Finally, she

made the point that in publishing policy guidance too soon, EEOC runs the risk of missing

critical ADA issues that have not yet emerged

relating to these topics.88 She added that EEOC

did publish guidance on part of the 'qualified individual with a disability issue, the inconsistent

statements/judicial estoppel issue," because it

was absolutely necessary at the time based on

the sharp conflict developing in the courts."

With respect to whether EEOC plans to develop additional guidance on ADA issues, the

Associate Legal Counsel noted that the development of new policy guidance is a decision

made solely by the Commissioners." However,

the Office of Legal Counsel is looking at two areas: reasonable accommodation and the concept

of "qualified individual with a disability," particularly the reasonable accommodation requirement." She said that guidance on these

areas currently is going through the policy development process, but she could not predict

86 See David Eichenauer, Access to Independence and Mobility, fax to Nadja Zalokar, USCCR, June 4, 1998 (stating:

'"Reasonable accommodation' could be defined better. . . . It is

a different concept allowing consideration of individual circumstances and perhaps this is not always understood. . . .").

87 Mastroianni interview, p. 2.

88 Ibid.

89 See EEOC, "EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits on the Determination of Whether a Person Is a 'Qualified Individual

with a Disability' Under the Americans with Disabilities Act of

1990 (ADA)," (EEOC Notice 915.002), Feb. 12, 1997 (hereafter

cited as EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits").

913 Mastroianni interview, pp. 2-3.

91 Ibid., p. 2.

92 Ibid.

76

whether or when these policy guidance documents would be published."

Several Commiskoners have indicated the

importance of publishing further guidance on

reasonable accommodation and qualified individual with a disability. For example, Acting

Chairman Igasaki noted that reasonable accommodation is an area of law that will be open

to interpretation and therefore the need for

guidance on it would always be there."

Litigation as a Policy Development Tool

EEOC also develops policy on the ADA

through its litigation activities, including systemic litigation and filing of atnicus briefs, under

the direction of the General Counsel. Two units

in the Office of General Counsel, in particular,

are actively involved in EEOC's policy development process. The Systemic Enforcement Services unit develops Commission policy through

the pursuit of systemic cases. According to an

assistant general counsel heading one of the litigation teams in the unit, the unit seeks to litigate cases that raise novel legal questions and

would lead to law reform or development of

authority for those issues." The Appellate Services unit furthers EEOC policy development

through amicus briefs in cases before the U.S.

courts of appeal." Appellate Services uses anticus litigation and appeals of its own cases to develop and clarify the law, and also looks for other

cases at the court of appeals level that might

resolve unsettled issues of law. Amicus briefs

serve as official EEOC policy positions, particularly in cases where the issues have not previously been addressed by EEOC.97

93 Ibid.

94 Paul Igasaki, Acting Chairman, EEOC, interview in

Washington, DC, Apr. 7, 1998, p. 2 (hereafter cited as

Igasaki interview).

95 Gerald Letwin, Assistant General Counsel, Systemic Enforcement Services, Office of General Counsel, EEOC, interview in Washington, DC, Apr. 6, 1998, p. 1 (hereafter cited

as Letwin interview).

96 See Vincent Blackwood, Assistant General Counsel, and

Robert Gregory, Senior Attorney, Appellate Services, Office

of General Counsel, EEOC, interview in Washington, DC,

Apr. 2, 1998 (hereafter cited as Blackwood and Gregory interview). The Appellate Services unit also works closely with

the Solicitor General in preparing amicus briefs filed in

cases before the U.S. Supreme Court. Ibid., p. 1.

97 Blackwood and Gregory interview, p. 2.

vO
Staff in both of these units said that they

have a close working relationship with the Office

of Legal Counsel and its ADA Policy Division. A

staff member of Systemic Enforcement Services,

for instance, said that he often informally seeks

the opinion of staff in the Office of Legal Counsel

before completing work on a cutting edge issue.

He added that he does on most ADA cases because the Office of Legal Counsel staff has done

a lot of "good and hard thinking" about the

ADA.98 The head of the Appellate Services unit

stated that his unit and the Office of Legal

Counsel are aware of what the other office is

doing. He provides the Office of Legal Counsel

copies of briefs filed by his unit, and the Office of

Legal Counsel may consult with him to determine which issues require policy guidance.99

EEOC's Legal Counsel explained that development of policy through litigation and policy

guidance is a continuumboth are tools that

help EEOC reach the same goal.190

A staff member of Systemic Enforcement Services described the relative advantages of litigation and development of policy guidance as policymaking tools for the EEOC. In some cases,

litigation is more appropriate than policy guidance because the situation is fact specific. In

other circumstances, policy guidance may be

more appropriate. In general, he said, EEOC

issues very little policy guidance, "because guidance can be used against you." Further, so many

issues come up that it is not appropriate to establish policy guidance on every single issue. In

addition, sometimes it is preferable to let an is-.

sue "percolate up through the courts," after

which there may or may not be a need for guidance. Therefore, he said, policy guidance and

litigation are two very complementary ways of

developing the law.101

Like policy guidance, litigation can be effective in changing employers' practices. Big companies, in particular, follow EEOC's litigation

docket. As a result, EEOC can make statements

through its litigation that get incorporated by

employers into their practices.182 The Legal

98 Letwin interview, p. 4.

99 Blackwood and Gregory interview, p. 2.

Vargyas interview, p. 2.

101 Letwin interview, p. 5.

102 Ibid.

77

Counsel indicated that in her opinion, EEOC has

used both toolsissuance of policy guidance and

litigationeffectively, especially for the ADA.193

Initial Guidance on Major Provisions of Title I

Shortly after receiving enforcement responsibility for title I of the ADA, EEOC released policy guidance summarizing the employment provisions of the ADA and EEOC's responsibilities

in enforcing the act. This policy guidance document, along with EEOC's title I regulations and

interpretive guidance, provide EEOC's initial

guidance on major provisions of title I of the

ADA. Published in August 1990, just 1 month

after enactment of the ADA, this policy guidance

defines some of the act's key terms, such as

"disability," "direct threat," "undue hardship,"

and "reasonable accommodation."104 The guidance also discusses EEOC's responsibilities under the ADA.105 The guidance focuses on such

basic elements of the law as who it protects and

how it defines discrimination.

Who Is Protected?

The policy guidance document explains that

title I prohibits discrimination against qualified

individuals with disabilities. To be protected under the act, an individual must have, or be perceived as having, a disability and be qualified to

perform the essential functions of the job, with

or without reasonable accommodation.108 The

guidance explains further that these key terms

are defined precisely in the act.107 The terms,

"qualified" and "essential," along with the term

"reasonable accommodation," are, according to

the guidance, "central to the nondiscrimination

mandate of the ADA. "b08

EEOC's title I regulations list physical and

mental impairments that may be disabilities

covered under the ADA.109 EEOC's policy guid103 Vargyas interview, p. 2.

104 EEOC, "Policy Guidance: Provisions of the ADA."

105 See generally ibid.

106 See id. at §§ 12102(2), 12111(8) (1994).

I07 EEOC, "Policy Guidance: Provisions of the ADA," p. 3.

108 Ibid.

199 These include any physiological disorder, cosmetic disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, speI
ance on the ADA's major provisions lists conditions excluded from the statute's coverage. These

include current illegal drug use, homosexuality,

'bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity

disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and

psychoactive substance use disorders resulting

from current illegal use of drugs.iio

Discrimination Defined

EEOC's ADA regulations specify that employers may not discriminate with respect to

several employment activities and practices."

EEOC's policy guidance lists the seven forms of

discrimination prohibited in the act and EEOC's

title I regulations:

limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the

opportunities or status of such applicant or employee

because of the disability of such applicant or employee; 112

participating in a contractual or other arrangement or relationship that has the effect of subjecting

a covered entity's qualified applicant or employee

with a disability to the discrimination prohibited by

this subchapter (such relationship includes a relacial sense organs, respiratory (including speech organs),

cardiovascular, reproductive, digestive, genito-urinary,

hemic and lymphatic, skin, and endocrine; or any mental or

psychological disorder, such as mental retardation, organic

brain syndrome, emotional or mental illness, and specific

learning disabilities. 29 C.F.R. § 1630.2(h) (1997).

110 EEOC, "Policy Guidance: Provisions of the ADA," p. 3, n.

3, citing 29 C.F.R. § 1630.3(d)(1)(4), (e) (1997).

II I These include: recruitment, advertising, and job application procedures; hiring, upgrading, promotion, award of

tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring; rates of pay or any other form

of compensation and changes in compensation; job assignments, job classifications, organizational structures, position

descriptions, lines of progression, and seniority lists; leaves

of absence, sick leave, or any other leave; fringe benefits

available by virtue of employment, whether or not administered by the covered entity; selection and financial support

for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection

for leaves of absence to pursue training; activities sponsored

by a covered entity including social and recreational programs; and any other term, condition, or privilege of employment. 29 C.F.R. § 1630.4 (1997).

112 42 U.S.C. § 12112(b)(1) (1994). See also 29 C.F.R. § 1630.5

(1997).

78

tionship with an employment or referral agency, labor

union, an organization providing fringe benefits to an

employee of the covered entity, or an organization

providing training and apprenticeship programs);113

utilizing standards, criteria, or methods of administration that have the effect of discrimination on

the basis of disability; or that perpetuate the discrimination of others who are subject to common administrative control; 114

excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the

known disability of an individual with whom the

qualified individual is known to have a relationship

or association;' 5

not making reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee, unless such covered entity can

demonstrate that the accommodation would impose

an undue hardship on the operation of the business of

such covered entity; or denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such

denial is based on the need of such covered entity to

make reasonable accommodation to the physical or

mental impairments of the employee or applicant;116

using qualification standards, employment tests

or other selection criteria that screen out or tend to

screen out an individual with a disability or a class of

individuals with disabilities unless the standard, test

or other selection criteria, as used by the covered entity, is shown to be job-related for the position in

question and is consistent with business necessity;117

and

failing to select and administer tests concerning

employment in the most effective manner to ensure

that, when such test is administered to a job applicant or employee who has a disability that impairs

sensory, manual, or speaking skills, such test results

accurately reflect the skills, aptitude, or whatever

other factor of such applicant or employee that such

test purports to measure, rather than reflecting the

impaired sensory, manual, or speaking skills of such

113 42 U.S.C. § 12112(b)(2) (1994). See also 29 C.F.R. § 1630.6

(1997).

114 42 U.S.C. § 12112(b)(3) (1994). See also 29 C.F.R. § 1630.7

(1997).

115 42 U.S.C. § 12112(6)(4) (1994). See also 29 C.F.R. § 1630.8

(1997).

116 42 U.S.C. .§ 12112(b)(5)*(1994). See also 29 C.F.R. § 1630.9

(1997).

117 42 U.S.C. § 12112(b)(6) (1994). See also 29 C.F.R. § 1630.10

(1997).

92
employee or applicant (except where such skills are

the factors that the test purports to measure."8

EEOC also considers "disability harassment"

a form of discrimination under the ADA. Disability harassment is analogous to sexual harassment or racial harassment charges brought

under title VII of the Civil Rights Act of 1964.

Like these other forms of harassment, a case of

disability harassment may be based on a hostile

environment theory. A law newsletter recently

reported on a dispute involving EEOC's regional

office in Chicago and Nippon Express, U.S.A., a

national shipping company in Franklin Park,

Ill."9 The complainant in the case alleges that he was subject to a campaign of harassment

from 1992 to 1996 because he has HIV infection.129 According to an EEOC supervisory attorney: "When they [coworkers and managers]

found out the employee was HIV positive, he

was criticized, his job duties were taken away

and he was subjected to cool comments. This

went on for an extended period of time and then

he resigned."121

Defenses

EEOC's policy guidance also lists the stat- ute's defenses for an employer charged with

ADA discrimination, although it does not offer

indepth discussions of key concepts and terms

relating to defenses under the act.

Business Necessity Defense

The guidance explains that one possible employer defense is to rely on the need for qualifications standards. Under this defense, where a

charging party alleges that qualification standards, tests, or other selection criteria screen out

or tend to screen an individual with a disability,

the respondent may defeat this claim with a

showing that the qualification standards, tests,

or selection criteria are "job-related and consistent with business necessity, and such perform

118 42 U.S.C. § 12112(b)(7) (1994). See also 29 C.F.R. §

1630.11 (1997).

119 See LRP Publications, "EEOC Pursues ADA Hiring and

On-the-Job Harassment Claims," National Disability Law

ReporterHighlights, vol. 11, iss. 8 (Apr. 9, 1998), p. 3.

120 Ibid.

121 Ibid.

79

ance cannot be accomplished by reasonable accommodation."122

The guidance does not define "job related"

and "business necessity," although an understanding of these concepts is crucial to any case

in which the employer is relying on qualifications standards as a defense. The concept of

business necessity has been an important part of

employment discrimination law since the U.S.

Supreme Court first enunciated it in Griggs v. Duke Power Company123 in 1971. The Court used

the term as an employer defense with reference

to charges of discrimination not based on intentional acts but on the discriminatory effect of

neutral employment practices.124

Though the term has been used since Griggs,

neither the Supreme Court nor any other court has been crystal clear on its meaning. The Fourth Circuit perhaps has come the closest

with this definition it used in a race discrimination case based on adverse impact:

The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently

compelling to override any racial impact; the challenged practice must effectively carry out the business

purpose it is alleged to serve; and there must be

available no acceptable alternative policies or practices which would better accomplish the business

purpose advanced, or accomplish it equally well with

a lesser differential racial impact.128

This definition includes all the key concepts

in the term, namely, that the business practice is

necessary to the work of the employer; that the

practice actually accomplishes the purpose it is

alleged to serve; and that there is no alternative,

less discriminatory method that would accomplish the purpose equally wel1.126 This last element of the business necessity test is modified in

122 42 U.S.C. § 12113(a) (1994). See also EEOC, "Policy

Guidance: Provisions of the ADA," p. 6.

123 401 U.S. 424 (1971).

124 Id. at 431.

125 Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.

1971), cert. dismissed, 404 -U.S. 1006 (1971) (citations omitted).

126 See Barbara Lindemann and Paul Grossman, Employment Discrimination Law, 3rd ed., vol. I (Washington, DC:

Bureau of National Affairs, 1996), pp. 106-10.

93
the context of disability discrimination under the

ADA or section 504 to refer instead to a reasonable accommodation that would allow an individual with a disability to perform the essential

functions of a job.127 Thus, according to the ADA,

a defendant claiming that qualifications standards, tests, or selection criteria "have been

shown to be job-related and consistent with

business necessity" must take the additional

step of showing that no reasonable accommodation would allow the individual with a disability

to accomplish the required performance.128

The interpretive guidance accompanying

EEOC's title I regulations states that "[t]he concept of 'business necessity' has the same meaning as the concept of 'business necessity' under

section 504 of the Rehabilitation Act of 1973."129

The section 504 regulations state that if a test or

other criterion tends to screen out individuals

with disabilities, the employer must show that it

is "job related" and consistent with business necessity for the position in question and that

there is no alternative, nondiscriminatory criterion available.130

Business necessity may be viewed as a gauge

or measure for whether a given employment practice is legitimate or discriminatory. The interpretive guidance states that "[s]election criteria that

exclude, or tend to exclude, an individual with a

disability or a class of individuals with disabilities

because of their disability but do not concern an

essential function of the job would not be consistent with business necessity."131

The ADA's legislative history clarifies the

meaning of business necessity and job relatedness in the context of disability discrimination.

By taking earlier caselaw addressing disparate

impact as a theory of discrimination and adapting it to the disability context, the House Education and Labor Committee report establishes a

clear meaning for these terms under the ADA:

127 See, e.g., 42 U.S.C. § 12113(a) (1994).

128 42 U.S.C. § 12113(a) (1994).

128 29 C.F.R. pt. 1630 app. § 1630.10 (1997). See also Bentivegna v. United States Dept. of Labor, 694 F.2d 619 (9th

Cir. 1982).

130 34 C.F.R. § 104.13(a) (1997).

131 29 C.F.R. pt. 1630 app. § 1630.10 (1997).

80

The interrelationship of these requirements in the

selection procedure is as follows: If a person with a

disability applies for a job and meets all selection criteria except one that he or she cannot meet because of

a disability, the criterion must concern an essential,

non-marginal aspect of the job, and be carefully tailored to measure the person's actual ability to do this

essential function of the job. If the criterion meets

this test, it is nondiscriminatory on its face and it is

otherwise lawful under the legislation. However, the

criterion may not be used to exclude an applicant

with a disability if the criterion can be satisfied by the

applicant with a reasonable accommodation. A reasonable accommodation may entail adopting an alternative, less discriminatory criterion.132

Thus, as one scholar has noted, "to be job-related

and consistent with business necessity, a qualification standard must pertain to the performance

of an essential function of the job at issue. The

requirement that a qualification standard pertain to an essential function of the job reflects

the ADA's underlying view that an individual

with a disability should not be denied a job simply because the disability interferes with performance of functions that are only marginally

related to the job."133

Defense for Religious Entities

The guidance mentions a second defense for

employers under title I, which is reserved for

religious entities. The statute provides that a

religious entity is not prohibited from giving

preference in employment to individuals of a

particular religion.134 The statute describes a

religious entity as any "religious corporation,

association, educational institution, or society."35 In addition, the ADA states that a religious entity may require all applicants and employees to conform to its religious tenets.136

132 H.R. REP. No. 101-485(11), at 71 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 353-54.

133 Burgdorf, Disability Discrimination in Employment Law,

p. 223 (H.R. REP. NO. 101-485(11), at 55 (1990); H.R. REP.

NO. 101-485(111), at 25 (1990)).

134 42 U.S.C. § 12113(c)(1) (1994).

135 Id.

138 Id. at § 12113(c)(2).
Food Handling by an Individual with

Infectious or Communicable Disease

Finally, the statute provides that an employer may refuse to employ or continue to employ an individual with an infectious or communicable disease in a job requiring food handling,

if there is no reasonable accommodation that

would prevent that individual from transmitting

the disease to others through the handling of

food.137 The act requires the Secretary of Health

and Human Services to maintain and update

annually a list of infectious and communicable

diseases that actually are transmitted through

food handling.138 The Secretary also must publish the methods of transmission of these diseases and widely disseminate both the list and

the methods of transmission.138

Guidance on Defining Disability Under the ADA

To assist its investigative staff in understanding the complex issue of when a person is considered as having a disability under the ADA, EEOC

developed a comprehensive enforcement guidance

that provides a detailed analysis of the statutory

and regulatory requirements for a claimant to

show that he or she has a disability within the

meaning of the ADA.140 This policy guidance,

published in March 1995, provides instructions on

applying this definition in charge processing and

outlines the requirements for showing that a disability exists under the ADA.141

Background

A threshold requirement for initiating a claim

under the ADA is that an individual have a disability as the term is defined in the act. The

ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one

or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impair- ment."142 This definition illustrates one notable

1371d. at § 12113(d)(2).

138/d. at § 12113(d)(1).

1391d. at § 12113(d)(1)(C)(D).

140 See generally EEOC, "Definition of the Term 'Disability'."

141 See generally ibid.

142 42 U.S.C. § 12102(2) (1994). The ADA also makes it unlawful to discriminate against associates of people with disabili81

difference between the ADA and other civil

rights statutes: defining the protected class of

people against whom the statute proscribes discrimination is not a simple matter. With statutes

such as the Age Discrimination in Employment

Act,143 for example, an individual claiming a

violation of the statute need only show that he or

she is over 40 to be considered a member of the

protected class. Similarly, with title VI and title

VII of the Civil Rights Act of 1964, there is no

issue as to a complainant's status as a member

of a racial, national origin, or color group or the

complainant's sex.144

However, with the ADA, as one commentator

has noted, "that simplicity is lost."145 This commentator states further:

Unlike other federal laws against discrimination, the

ADA does not conveniently set forth clear lines of demarcation separating persons who are covered from

those who are not. The applicable parameters are not

rigid or concrete, and there is no facile test that can

be universally applied to determine whether a given

impairment or condition is seriou8 enough to qualify

for protection from discrimination. In short, the protected class is not clearly identifiable. As a result,

courts have become increasingly familiar with the peculiar task of determining whether a particular

individual falls within a class of persons to whom the

statute is intended to apply: namely, persons who

have a "disability." [citation omitted] The task can be

difficult, largely because the drafter of the statute

whether by design or neglectimbued this key term

with ambiguity as well as complexity. 146

The complexities and ambiguity inherent in the

definition of disability have resulted in much deties. Id. at § 12112(b)(4). The ADA prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individ- ual because of the known disability of an individual with

whom the qualified individual is known to have a relationship

or association." Id. at § 12112(b)(4). For example, an employer

may not discriminate against an employee who is caring for

someone with AIDS or who has a disabled family member the

care of whom the employer feels will require the employee to

take time away from work. Bonnie P. Tucker and Bruce A.

Goldstein, Legal Rights of Persons with Disabilities: An Analysis of Federal Law, vol. 1, supp. 8 (March 1996) (Horsham, PA:

LRP Publications, 1992), at 22:18.

143 29 U.S.C. §§ 621-634 (1994).

144 See 42 U.S.C. §§ 2000d, 2000e (1994).

146 Thomas D'Agostino, Defining "Disability" Under the ADA.

1997 Update (Horsham, PA: LRP Publications, 1997), p. i.

146 Ibid.

95
bate over who should be considered a person with

a disability for the purposes of the ADA. There

appears to be a rift between EEOC and some Federal courts on the definition of disability, largely

because EEOC, in correctly following Congress'

mandate with the ADA, has interpreted the term

broadly, while some courts have applied a more

narrow reading.147 On the other hand, the Supreme Court expressly relied on EEOC and DOJ

interpretative documents in holding that asymptomatic HIV infection is a disability.148

The debate has centered on the meaning of

specific terms within the ADA's definition of disability, such as "substantially limits" and "major

life activity." EEOC has stood for a broad interpretation of these terms in its policy guidance,

but some courts are disregarding EEOC's policy

guidance.149 Commentators have noted a trend among the

Federal courts toward a narrow interpretation of

the statute. For example, a recent article reported that courts are rejecting ADA claims on

the basis that plaintiffs cannot show that they

have a disability within the meaning of the statute.150 A common employer defense is the "no

disability" defense in which employers argue

that ADA plaintiffs' cases should fail because

they cannot show that their impairment is

"substantially limiting" to a "major life activity,"

and therefore the impairment is not a disability

147 This is evident in differences of opinion between EEOC

and the Federal courts. Compare Roth v. Lutheran Gen.

Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) (citing EEOC

guidance concerning mitigating measures with approval);

Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808, 811-14 (N.D.

Tex. 1994) (rejecting EEOC guidance as contradictory to

"substantial limitation" requirement); Schluter v. Industrial

Coils, Inc., 928 F. Supp. 1437, 1444-45 (W.D. Wis. 1996)

(rejecting EEOC guidance on the same grounds as Coghlan).

See generally the discussions under the headings "Mitigating

Measures," and "Per Se Disabilities," this chapter.

148 See Bragdon v. Abbott, 66 U.S.L.W. 4601, 4607 (U.S.

June 25, 1998).

143 See, e.g. Coghlan, 851 F. Supp. at 811-14 (rejecting

EEOC's interpretive guidance on substantial limitation requirement ); Schluter, 928 F. Supp. at 1444-45 (rejecting

EEOC's interpretive guidance on mitigating measures).

150 "Most Federal Appeals Court Decisions Favor ADA Defendants, Analysis Shows," National Disability Law Reporter

Highlights, vol. 10, iss. 10 (Nov. 20, 1,3,97), pp. 1, 8-9 (hereafter

cited as "Most Federal Appeals Coart Decisions Favor ADA

Defendants, Analysis Shows," NDL? Highlights).

82

within the meaning of the statute.151 The defense has been so successful that employers now

are using it with conditions or impairments,

such as insulin-dependent diabetes152 and cancer,153 which, according to the article, "many

have assumed to be per se disabilities under the

statute."154 In addition, the article reported that,

based on a study of 261 decisions in which Federal courts of appeals issued rulings on claims

under the ADA, "plaintiffs in ADA cases have

not fared well in federal appellate courts and . . . certain circuits have been particularly unreceptive to ADA claims."155

ADA's Definition of Disability

The March 1995 enforcement guidance specifically addresses the issue of who is considered

disabled under the ADA.156 The guidance explains that a charging party must meet one of

the three prongs within the definition of disability under the ADA by showing that he or she: (1)

has a physical or mental impairment that sub- stantially limits one or more of the major life

activities of such individual, (2) has a record of

such an impairment, or (3) has been regarded as

having such an impairment.157

151 The article notes that the trend began in 1994 with the

case of Bolton u. Schreiner, 36 F.3d (10th Cir. 1994), cert.

denied, 115 S. Ct. 1104 (1995),which other courts have followed widely in the past few years. In Bolton, the court rejected an ADA claim because it found that the plaintiffs

back and foot impairments did not qualify as a "disability"

under the ADA. Specifically, the Bolton court found that the

plaintiff did not show that he was substantially limited in

his ability to work. Id. at 944. "Most Federal Appeals Court

Decisions Favor ADA Defendants, Analysis Shows," NDLR

Highlights, p. 9.

152 See, e.g., Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808,

813 (N.D. Texas 1994).

153 See, e.g., Ellison v. Software Spectrum, Inc., 85 F. 3d 187,

191-92 n.3 (5th Cir. 1996).

154 "Most Federal Appeals Court Decisions Favor ADA Defendants, Analysis Shows," NDLR Highlights, p. 9.

155 Ibid., p. 8.

156 EEOC, "Definition of the Term 'Disability'." EEOC issued

this guidance in the form of a memorandum. The memorandum states that the guidance was issued as part of EEOC's

Compliance Manual, which is designed for EEOC staff investigating charges of discrimination under the ADA, as

well as for employees' and employers' use.

157 42 U.S.C. § 12102(2) (1994). To establish a prima facie

case of discrimination in violation of the ADA, the plaintiff

must prove that (1) he has a disability; (2) he is a qualified

individual; and (3) he was subjected to unlawful discrimina9 6
The first prong of the ADA's definition of disability addresses actual disabilities, as opposed

to the other two prongs, which address records of

or perceived disabilities.158 In creating this first

prong, Congress used terminology almost identical to that in the Rehabilitation Act of 1973.159

The key inquiry under the second prong is whether an employer relied on, an individual's

record of disability, whether accurate or not, in

making an adverse employment decision.160

Congress intended that the ADA apply to individuals who have a record of having an impairment, "i.e., an individual who has a history of, or

has been misclassified as having, a mental or

physical impairment that substantially limits

one or more major life activities."'" This provision was included in the 1989 ADA bill in part to

protect individuals who were recovered from impairments that previously had limited them in a

major life activity.162 Discrimination on the basis

of a past impairment is prohibited under the

ADA.163 The ADA also protects a second group, those who have been misclassified as having a particular illness or condition.'"

Under the third prong of the term

"disability," an individual can have a cause of

action under the ADA if he or she is considered

tion because of his disability. Holbrook v. City of Alpharetta,

112 F.3d 1526, (11th Cir. 1997). As one commentator has

noted, "[p]roving the existence of a disability can be thought of as a preliminary hurdle that each ADA claimant must

clear." See Thomas D'Agostino, Defining "Disability" Under

the ADA. An Analysis of 60 Decisions (Horsham, PA: LRP

Publications, 1996), p. 1 (hereafter cited as D'Agostino, An Analysis of 60 Decisions).

158 42 U.S.C. § 12102(2)(A) (1994).

159 29 U.S.C. § 706(8)(B)(i) (1994).

168 D'Agostino, Defining `Disability" Under the ADA, p. 7. See also EEOC, "Definition of the Term 'Disability'," § 902.

161 S. REP. NO. 101-116, at 23 (1989). This report of the

Senate Committee on Labor and Human Resources accom- panied the 1989 ADA bill, which was not enacted.

162 H.R. REP. No. 101-485(11), at 52 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 334.

163 H.R. REP. NO. 101-485(11), at 52-53 (1990), reprinted in

1990 U.S.C.C.A.N 303, 334-35. For example, the ADA protects persons with a history of such conditions and impairments as mental or emotional illness, heart disease, or cancer. 164 H.R. REP. NO. 101-485(11), at 53 (1990), reprinted in 1990

U.S.C.C.A.N 303, 335. For example, a person misclassified

as being mentally retarded would be covered under this

second group.

to have a disability.'65 EEOC's title I regulations state that there are three different ways in which a claimant can show that he or she was

perceived as having a disability under the third

prong. The individual must demonstrate that he

or she (1) has a physical or mental impairment

that does not substantially limit major life activities but is treated by an employer as such, (2)

has an impairment that is substantially limiting

only as a result of the attitudes of others, or (3) has no impairment but is treated as having a

substantially limiting impairment.166 According

to the House Education and Labor Committee

report accompanying the ADA in 1990:

The third prong of the definition includes an individual who is regarded as having a covered impairment.

This third prong includes an individual who has a

physical or mental impairment that does not substantially limit a major life activity, but that is treated by

a covered entity as constituting such a limitation. The

. third prong also includes an individual who has a

physical or mental impairment that substantially

limits a major activity only as a result of the attitudes

of others toward such impairment or has no physical

or mental impairment but is treated by a covered entity as having such an impairment'67

In the case of School Board of Nassau County

v. Arline,168 the U.S. Supreme Court clearly articulated the rationale behind the third prong. The Court, in interpreting the provisions of the

Rehabilitation Act, explained that the "regarded

as" prong was designed to protect individuals against negative fears, misperceptions, and

stereotypes that can substantially limit their

ability to function at work. The Court observed:

83

Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work

as a result of the negative reactions of others to the

impairment. . . . By amending the definition of

"handicapped individual" to include not only those

who are actually physically impaired but also those

who are regarded as impaired and who, as a result,

are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths

165 42 U.S.C. § 12102(2)(C) (1994).

166 29 C.F.R. § 1630.2(1)(1)(3) (1997).

167 H.R. REP. No. 101-485(11), at 53 (1990), reprinted in 1990

U.S.C.C.A.N 303, 335.

168 480 U.S. 273 (1987).

CJ
and fears about disability and disease are as handicapping as are the physical limitations that flow from

actual impairment.I69

The Senate Committee on Labor and Human

Resources report notes: "This third prong is particularly important for individuals with stigmatic conditions that are viewed as physical impairments but do not in fact result in a substantial limitation of a major life activity."170 The

House Committee on Education and Labor report uses as an example someone who is a severe

burn victim and who, although not substantially

limited in any major life activity, is perceived as

being disabled."' The report further notes that:

another important goal of the third prong of the definition is to ensure that persons with medical conditions that are under control, and that therefore do not

currently limit major life activities, are not discriminated against on the basis of their medical conditions.

For example, individuals with controlled diabetes or

epilepsy are often denied jobs for which they are

qualified. Such denials are the result of negative attitudes and misinformation.172

In its interpretive guidance accompanying

the title I regulations, EEOC provides examples

of stereotypes, fears, or misconceptions. These

include concerns relating to productivity, safety,

insurance, liability, attendance, cost of accommodation and accessibility, worker's compensation costs, or acceptance by coworkers and customers.173

Related Concepts and Issues

In policy guidance, EEOC states that "[w]hen

determining whether a charging party satisfies

the definition of 'disability,' the EEOC investigator should remember that the concepts of

`impairment,' major life activity,' and

`substantially limits' are relevant to all three

parts of the definition of 'disability'."174 These

three terms add to the confusion surrounding

169 Id. at 283-84 (citations omitted).

179 S. REP. No. 101-116, at 24 (1989).

171 H.R. REP. No. 101-485(11), at 53 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 335.

172 S. REP. No. 101-116, at 24 (1989).

173 29 C.F.R. pt. 1630 app. § 1630.2(1) (1997).

174 EEOC, "Definition of the Term `Disability'."

84

the question of whether or not an individual has

a disability covered under the ADA.175

Physical or Mental Impairments

EEOC policy guidance defines "impairment"

as "a physiological disorder affecting one or more

of a number of body systems or a mental or psychological disorder."178 In both the Rehabilitation

Act and the ADA this term is defined in general

terms because Congress intended to cover a

broad range of potential disabilities.177 As the

Senate report accompanying the 1989 ADA bill

acknowledges, it would be impossible "to include

in the legislation a list of all the specific conditions, diseases, or infections. . .because of the

difficulty of ensuring the comprehensiveness of

such a list."178

Following the section 504 regulations,179 the

EEOC title I regulations set out a partial list of

specific covered impairments:

(1) Any physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or

more of the following body systems: neurological,

musculoskeletal, special sense organs, respiratory

(including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic,

skin, and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or

mental illness, and specific learning disabilities.180

The legislative history of the statute indicates

that Congress intended for coverage to be limited only to those individuals with significant

health problems. For example, Congress observed that the statute's coverage excluded minor impairments such as "a simple infected finger."181 In addition, physical characteristics, such

175 The Supreme Court recently addressed the concepts of

"impairment," "major life activity," and "substantially limits"

in a case involving asymptomatic HIV infection. Bragdon v.

Abbott, 66 U.S.L.W. 4601 (U.S. June 25, 1998).

176 Id. § 902.

'77 See 29 U.S.C. § 706(8)(B)(i) (1994); 42 U.S.C. § 12102(2)

(A) (1994).

178 S. REP. No. 101-116, at 22 (1989).

179 See 28 C.F.R. § 41.31(b)(1) (1997).

ISO 29 C.F.R. § 1630.2(h) (1997).

181 H.R. REP. No. 101-485(11), at 52 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 334.
as eye color or hair color, and social and economic disadvantages, such as being poor, also

are not covered.182

Substantial Limitation

On the second key requirement, substantial

limitation of a major life activity, EEOC policy

guidance makes very clear that the most important focus of an ADA inquiry for the agency or a court must be on the individual with an impair- ment, not the impairment or medical condition

itself. The guidance states:

When analyzing the degree of limitation, one must

remember that the determination of whether an impairment substantially limits a major life activity

must be made with reference to a specific individual.

The issue is whether an impairment substantially

limits any of the major life activities of the person in question, not whether the impairment is substantially

limiting in general. Thus, one must consider the extent to which an impairment restricts a specific individual's, activities and the duration of that individual's impairment.183

This appears consistent with the ADA's overarching theme that each person with a disability must be viewed as a unique individual whose

disability is an aspect of his or her personal circumstance.

EEOC regulations provide criteria to be considered in determining if a particular individual

is substantially limited in a major life activity

and thus if an impairment is a disability covered by the ADA: the nature and severity, the duration or expected duration, and the permanent or

long term impact of the impairment.184 These

criteria are central to assessing whether a given

impairment or condition substantially limits a

major life activity. As such, they form the key

issues around which many ADA cases relating to

the definition of disability revolve.

The "nature and severity" criterion is broad

and views the overall impact of the impairment on a person's life. In recent testimony before

Congress, one attorney specializing in disabili182 H.R. REP. NO. 101-485(111), at 28 (1990), reprinted in

1990 U.S.C.C.A.N. 445, 451.

183 EEOC, "Definition of the Term 'Disability'," § 902.4(a) (emphasis added).

184 29 C.F.R. §§ 1630.2(j)(2)(i)(iii) (1997).

85

V--

ties law presented data on ADA cases relating to whether people with specific impairments expe- rienced the level of "disability" required to be

covered under the statute. These cases summarized the courts' interpretation of the ADA's

definition of disability as it relates to employment. The attorney's data led her to conclude:

The ADA has not served as a vehicle by which per- sons with relatively trivial impairments can achieve

unmerited advantages. In fact, it is, much easier to

argue that the opposite is true: that, through the use

of the "substantial limitation" provision of the ADA, the' courts are finding that many persons with relatively severe physical and mental impairments are

not "disabled" under the statute.'85

EEOC has noted that all ADA cases must be

resolved using a fact-specific, case-by-case approach. However, this approach does not entirely

resolve the issue. As studies of the caselaw indicate, two basic definitional issues relating to disability are: when and under what circumstances

is a person substantially limited in a major life activity, and what guidelines can be used in making this determination.

The duration and impact of the person's im- pairment also influence the decision as to

whether a disability is covered under the ADA.

In a May 1997 case, an employee with a history of knee injury alleged that her termination from

employment was discrimination on the basis of

disability.186 The court stated that the only issue

on appeal was whether "a temporary disability

a knee injuryfrom which the plaintiff fully recovered in a month and from which she has no

residual disability, is a handicap. . . ." within the

meaning of the State statute under which she

sued.187 In finding that the plaintiff's temporary knee injury did not qualify as a disability, the

court cited to EEOC's regulations implementing

the ADA,188 which state:

185 Melinda Maloney and Thomas D'Agostino, Defining

`Disability" Under the ADA. An Analysis of 60 Decisions

(Horsham, PA: LRP Publications, 1997), p. 6, citing Hearing

before the Labor and Human Relations Committee Subcommittee on Disability Policy, July 26, 1995 (statement of

Melinda Maloney).

188 Hallgren v. Integrated Financial Corp., 10 NAT'L DISABILITY L. REP. (LRP) ¶ 61 (Mass. App. Ct. 1997).

187 Id.

188 Id. (citing 29 C.F.R. pt. 1630.2(j) (1997)).
The determination of whether an individual has a

disability is. . . based on. . .the effect of [the] impairment on the life of the individual. . . . [T]emporary,

non-chronic impairments of short duration, with little

or no long-term or permanent impact, are usually not

disabilities. Such impairments may include, but are

not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.'89

The decisions of the Federal courts have

helped to define the scope of the term "physical

or mental impairment" with respect to the

length of time for a limitation of a major life activity to be "substantial." In the courts, claimants bringing cases based on temporary disabilities largely have failed to achieve protection under the ADA. One commentator noted that in

many cases Federal courts have ruled that short

term illnesses or conditions are not disabilities

within the meaning of the ADA.190 On the other

hand, the same commentator noted that "some

courts have found some impairments to be of

sufficient duration to constitute a disability even

though the impairment may not be perma189 29 C.F.R. pt. 1630 app § 1630.2(j) (1997).

190 See Christopher G. Bell, "Who Is an Individual with a

Disability: Key Judicial Trends in the Definition of Disability Under the Americans with Disabilities Act," April 1997,

in National Employment Law Institute, 1997 Americans

with Disabilities Act Compliance Manual (Washington, DC:

National Employment Law Institute, 1997) p. 2 (hereafter

cited as Bell, "Who Is an Individual with a Disability")

(citing Roush v. Weastec, Inc. 96 F.3d 840, 844 (6th Cir.

1996)) ("Because plaintiffs kidney condition was temporary

it is not substantially limiting and, therefore, not a disability

under the ADA"); Sanders v. Arneson Products, Inc., 91 F.3d

1351, 1354 (9th Cir. 1996), cert. denied, 117 S. Ct.

1247(1997) (a psychological impairment lasting 3% months

was not a disability); McDonald v. Commonwealth of Pennsylvania, 62 F. 3d 92, 96 (3rd Cir. 1995) (less than 2-month

recovery period from abdominal surgery was insufficient to

constitute a disability); Evans v. City of Dallas, 861 F.2d

846, 852-53 (5th Cir. 1988) (knee impairment requiring

surgery was not disability under the Rehabilitation Act because it was not permanent); Oswalt v. Sara Lee Corp., 889

F. Supp. 253, 257-58 (N.D. Miss. 1995), aff'd, 74 F.3d 91

(5th Cir. 1996) (missing work for 1 month because of medication for 1 month for high blood pressure was not a substantial limitation of a major life activity); Jones v. Alabama

Power Co., 1995 U.S. Dist. LEXIS 20971, *43*46 (N.D. Ala.

1995), affd 77 F.3d 498 (11th Cir. 1996) (persons with tempbrary conditions do not have a disability); Muller v. Automobile Club, 897 F. Supp. 1289, 1295-97 (S.D. Cal. 1995)

(plaintiffs fear of threats from disgruntled customer of only

5 months' duration was not a substantial limitation of

working)).

86

nent."191 Generally, since 1995, the Federal

courts have held that temporary disabilities are

not covered under the ADA's nondiscrimination

prohibition.192

Major Life Activity

The EEOC title I regulations define "major

life activity" as meaning "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."193 In the accompanying interpretive guidance, EEOC notes that the list of

examples in the regulations is not exhaustive

and that other examples of major life activities

"include, but are not limited to, sitting, standing,

lifting, [and] reaching."194 In its policy guidance,

EEOC adds that "[m]ental and emotional processes such as thinking, concentrating, and interacting with others are other examples of major

life activities."195 EEOC has never issued a comprehensive list of major life activities or attempted to define further the term's meaning,

perhaps by developing specific criteria for what

constitutes a major life activity.

As ADA caselaw developed, questions arose

as to whether certain activities are major life

activities within the meaning of the statute. For

example, a split arose in the circuits over

191 See Bell, "Who Is an Individual with a Disability," p. 2

(citing Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996)).

Although short term, temporary restrictions generally are

not substantially limiting, an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long term or potentially long

term, in that their duration is indefinite, unknown, or expected to last several months. Such conditions, if severe,

may constitute disabilities. 2 EEOC Compliance Manual,

Interpretations (CCH) § 902.4, ¶ 6884, p. 5319 (1995); Wood

v. Alameda, 1995 U.S. Dist. LEXIS 17514 (N.D. Cal. 1995)

(mental impairment that left employee unable to work for a

year may be a disability even though it was not permanent);

Patterson v. Downtown Medical & Diagnostic Center, 866 F.

Supp. 1379, 1381 (M.D. Fla. 1994) (plaintiff not required to

allege a permanent impairment under the ADA).

192 See McDonald, 62 F.3d at 96-97 (holding that an employee who was fired because she could not work for 2

months while recovering from surgery was not entitled to

ADA protection; the employee's inability to work was not

permanent nor for a period of time lengthy enough to trigger

the protections of the statute).

193 29 C.F.R. § 1630.2(i) (1997).

194 29 C.F.R. App. § 1630.2(i) (1997).

199 EEOC, "Definition of the Term 'Disability'," § 902.3(b).

1 0 0
whether reproduction was a major life activity.196 The Fourth Circuit, in its opinion in Runnebaum v. Nations Bank, stated: "We agree that

procreation is a fundamental human activity,

but are not certain that it is one of the major life

activities contemplated by the ADA."197 Similarly, the Eighth Circuit, in Krauel u. Iowa

Methodist Medical Center, concluded that reproduction was not a major life activity.198 The court

noted:

Because the ADA does not define the term major life

activity, we are guided by the definition provided in 29

C.F.R. § 1630.2, the Equal Employment Opportunity

Commission (EEOC) regulations issued to implement

Title I of the ADA. . . . While we recognize that this list

[provided in the EEOC regulations] is non-exclusive,

we note that reproduction and caring for others are not

among the examples of listed activities.199

The court concluded that treating reproduction

as a major life activity would be "a considerable

stretch of Federal law."200 However, in Bragdon

v. Abbott201 the First Circuit held that a woman

who was HIV positive, but experiencing no

symptoms, was disabled within the meaning of

the statute, because she was substantially limited in the major life activity of reproduction.202

The Supreme Court resolved the split in

Bragdon v. Abbott in finding that reproduction

was a major life activity. In Bragdon, the plaintiff relied on an argument made by the U.S. Department of Justice (DOJ) in a 1988 memorandum entitled "Application of Section 504 of the

188 Compare Runnebaum v. Nations Bank, 123 F.3d 156, 170

(4th Cir. 1997) with Bragdon v. Abbott, 107 F.3d 934 (1st

Cir. 1997), vacated and remanded, 66 U.S.L.W.. 4601 (U.S.

June 25, 1998).

187 123 F.3d 156, 170 (4th Cir. 1997).

198 95 F.3d 674, 677 (8th Cir. 1996). Krauel v. Iowa Methodist Medical Center concerned the case of .a respiratory

therapist who claimed reproduction and caring for others

are major life activities in which she was substantially limited because of her infertility. Id. See also Zatarain v. WDSUTelevision, Inc., 881 F. Supp. 240, 243 (E.D. La.

1995) (holding that reproduction is not a major life activity

under the ADA), off'd, 79 F.3d 1143 (5th Cir. 1996).

188 See Krauel, 95 F.3d 674, 677.

200 Id. at 677.

201 Bragdon v. Abbott, 66 U.S.L.W. 4601, 4606-07 (U.S. June

30, 1998).

202 Id. at 15.

87

Rehabilitation Act to HIV-Infected Individuals."203 In this memorandum, DOJ argued that

asymptomatic HIV infection is a disability under

section 504 of the Rehabilitation Act of 1973,

upon whose definition of disability the ADA's

definition is based. DOJ stated that persons with

asymptomatic HIV infection have a disability

under the act because they were limited in the

major life activity of procreation, or reproduction.204 The memorandum concludes that "there

is little doubt that procreation is a major life activity and the physical ability to engage in normal procreationprocreation free from the fear of what the infection will do to one's childis

substantially limited once an individual is infected with the AIDS virus."205

The Supreme Court's five-justice majority

drew guidance from the Justice Department

memorandum as well as from the conclusions of

other Federal agencies that had addressed the

issue.206 In the majority opinion, Justice Kennedy stated, "reproduction falls well within the

phrase 'major life activity.' Reproduction and the

sexual dynamics surrounding it are central to

the life process itself."207 The Court interpreted

the term "such as" in the statutory language to

connote an illustrative and not exhaustive definition of "major life activity."208 The Court recognized the limitations that HIV status has on

conception and childbirth by emphasizing,

"[w]hen significant limitations result from the

impairment, the definition is met even if the difficulties are not insurmountable."209 In response

203 See Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice,

memorandum for Arthur B. Culvahouse, Jr., Counsel to the

President, re: Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals, Sept. 27, 1988

(hereafter cited as Kmiec memorandum).

204 Ibid., P. 10. The memorandum states in pertinent part:

"Based on the medical knowledge available to us, we believe

that it is reasonable to conclude that the life activity of pro- creationthe fulfillment of the desire to conceive and bear

healthy childrenis substantially limited for an asymptomatic individual." Ibid.

205 Ibid., pp. 10-11.

208 Bragdon, 66 U.S.L.W. 4601, 4606-07 (U.S. June 30,

1998).

207 Id. at 4605.

208 Id.

209 Id. at 4606.
to the argument that Abbott was not substantially limited because she could still procreate

with only an 8 percent risk of perinatal infection

with antiretrovial therapy,21° the Court stated,

"it cannot be said as matter of law that an 8%

risk of transmitting a dread and fatal disease to

one's child does not represent a substantial limitation on reproduction."211

Chief Justice Rehnquist dissented from the

majority's holding that reproduction is a "major

life activity." He argued that the illustrative examples used in the regulations are quite different from reproduction, because they represent

activities of repetitive use in the "day-to-day existence of a normally functioning individual."212

The Chief Justice supported an alternative definition of "major," as meaning "greater in quantity," rather than the primary definition of

"comparative importance."213

The majority in Bragdon declined to address

the issue of whether having asymptomatic HIV is

a disability per se.214 In its dicta, the Court gave a

clear indication as to whether people with HIV

can make major life activity arguments for activities other than reproduction or procreation. The

Court stated, "[Oven the pervasive, and invariably fatal, course of the disease, its effect on major

life activities of many sorts might have been relevant to our inquiry."215 The Court further stated,

IN* have little doubt that had different parties

brought the suit they would have maintained that

an HIV infection imposes substantial limitations

on other major life activities."216

Major Life Activity of Working

Another controversy related to "major life

activity" is the ability and extent to which a person can perform a job. EEOC has provided guidance on this major life activity. For example,

EEOC has stated in its title I regulations:

The term substantially limits means significantly restricted in the ability to perform either a class of jobs

210 Id. at 4605.

211 Id. at 4605.

212 Id. at 4611.

213 Id. (Rehnquist, C.J., dissenting).

214 Id. at 4606.

213 Id. at 4604.

216 Id. at 4605.

88

or a broad range of jobs in various classes as compared to the average person having comparable

training, skills and abilities. The inability to perform

a single, particular job does not constitute a substantial limitation in the major life activity of working. 217

EEOC's requirement for ADA claimants to

show substantial limitation in a class or broad

range of jobs in order to prove a substantial limitation in the major activity of working has resulted in significant difficulties for some claimants.218 For example, in a recent case brought by

a Delta Airlines pilot diagnosed with narcissistic

personality disorder and bipolar disorder, Witter

v. Delta Airlines,219 the Eleventh Circuit found

that the pilot was unable to show that the airline

regarded him as substantially limited in performing nonflying jobs drawing on his skills and

experience.220 The court based this decision on

the regulatory requirement that a plaintiff must

show substantial limitation in the major life activity of working. Specifically, the court sought

to determine the ability to perform a class of jobs

using similar training, knowledge, skills, or

abilities or a broad range of classes of jobs not

using similar skills and training but not the inability to perform a single, particular job.221

217 29 C.F.R. § 1630(j)(3)(1) (1997). In determining whether

an individual is substantially limited in the major life activity of working, one may consider as a factor "[t]he job from

which the individual has been disqualified because of an

impairment, and the number and types of jobs utilizing

similar training, knowledge, skills or abilities, within that

geographical area, from which the individual is also disqualified because of the [ *10] impairment." 29 C.F.R. §

1630.2(j)(3)(ii)(B). A "broad range of jobs in various classes"

is defined as: [title job from which the individual has been

disqualified because of an impairment, and the number and

types of other jobs not utilizing similar training, knowledge,

skills or abilities, within that geographical area, from which

the individual is also disqualified because of the impairment. 29 C.F.R. § 1630.2(j)(3)(ii)(C).

See also 29 C.F.R. § 1630.2(j)(3)( I). ("Major Life Activities

means functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.").

218 See also chap. 5, pp. 89-91.

218 138 F.3d 1366 (11th Cir. 1998). See also Bureau of National Affairs, "Court Holds Pilot Grounded by Delta Has No

Claim Under Disabilities Act," Daily Labor Report (May 19,

1998), pp. A-5A-6.

220 Witter, 138 F.3d at 1370.

221 See id. at 1369-70.

102
Relying on this language, the court reasoned

that Witter would have to show not only that he

was perceived as substantially limited in performing his job as a pilot but also that he was

similarly limited in his ability to perform all

other nonflying jobs for which his training would

qualify him.222 This would include such jobs as

pilot ground trainer, flight simulator trainer,

flight instructor, consultant for an aircraft

manufacturer, and various positions in airline

flight operations. Because Witter could not prove

that Delta perceived him as substantially limited

in all of these other jobs, the court found, based

on EEOC's regulatory language, that the airline

did not regard him as substantially limited in

the major life activity of working.223

This example illustrates the seemingly counterintuitive results that can occur when courts

apply these regulatory requirements for a

showing of substantial limitation of the major

life activity of working. For example, the Witter

case begs the question, why should a pilot have

to prove that he is limited in nonpilot jobs to

show that he has a disability that prevents, or is

perceived as preventing him, from performing

his job as a pilot? In another recent ADA case

involving airline pilots, Sutton v. United Airlines,224. the Tenth Circuit determined that the

relevant "class of jobs" extended beyond pilots

who worked for United, as the plaintiffs contended, but did not extend so far as to include

nonpilot jobs. The court stated that the relevant

class of jobs was "that of all pilot positions at all

airlines."225 Given these two different definitions

of the term "class of jobs," one problem with the

regulatory requirements relating to showing a

substantial limitation in the major life activity of

working may be that they are too vague.226

222 See id. at 1370.

223 See id. (stating: "to establish that Delta perceived him as

unable to perform the relevant 'class of jobs,' Witter would

have to prove Delta regarded him as unable to perform not

just the job of being a pilot, but also the non-piloting jobs we

have discussed. Because Witter failed to offer any evidence

at all of that, we conclude that he failed to raise a genuine

issue that Delta regarded him as significantly restricted in

the major life activity of working." Id.).

224 130 F.3d 893 (10th Cir. 1997).

225 130 F.3d 893, 905 (emphasis added).

226 One commentator refers to the "nebulousness" of the

"class of jobs" standard. See Steven S. Locke, "The Incredible

89

Not only does the regulatory guidance seem

vague, it seems oddly incongruous, particularly

with respect to disability based on the third or

"regarded as" prong. The guidance seems to indicate that the plaintiff has to perform the near

impossible task of showing hypothetically that

he would be regarded as substantially limited in

performing the duties of all the other nonpilot

jobs for which his training qualified him. This

regulation appears to require courts to place an

extremely high burden on claimants seeking to

show substantial limitation in the major life activity of working. With respect to the "regarded

as" prong in particular, this regulatory guidance

seems unclear and probably unrealistic as a

standard of proof for plaintiffs.

Beyond the requirements relating to a class of

jobs and a broad range of jobs, EEOC identifies

three factors that may be considered in determining whether there is a substantial limitation

in the major life activity of working: (1) the-geographical area within which the individual has

reasonable access, (2) jobs within that geographical area (which require the individual's skills) for

which that individual has been disqualified because of an impairment, and (3) jobs within that

geographical area (which do not require the individual's skills) for which that individual has been

disqualified because of an impairment.227

Commentators have criticized the rule relating to geographical area on two grounds. First,

disabled job applicants will, in some cases, have

to expend resources proving that they are substantially limited by showing evidence for these

criteria.228 Second, the geographical limitations

could undercut protection from discrimination

because they could mean that an individual with

a disability who resides in one geographical region would have the protection of the statute

Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with Disabilities Act," U. Colo. L.

Rev. vol. 68, p. 122 (1997). He further states that "'Rifle class

of jobs' concept becomes muddled because of different interpretations of what makes up a class." Id. at 126, n.103.

Moreover, "[t]he only guidance courts receive from the

EEOC is that this category must exceed one job." Id. at 122.

227 29 C.F.R. § 1630.2(j)(3)(ii) (1997).

228 See Bonnie P. Tucker and Bruce A. Goldstein, Legal

Rights of Persons with Disabilities: An Analysis of Federal

Law (Horsham, PA: LRP Publications, 1992), vol. II, supp. 8

(March 1996), at 21:18, n. 88.

1u3
while an individual in another region may not

have the same protection.229 The rule may be subject to criticism for a

third important reason. In considering working a

major life activity along with other major life

activities that are based on more basic functions

such as seeing, walking, and hearing, the ADA

has created a certain amount of confusion as to

whether title I claimants must show that they

are substantially limited in some major life activity or whether they must show that they specifically are limited in their ability to work.239

EEOC has tried to clarify any potential confusion by stating that "if the individual is not substantially limited in any other major life activity,

then one should consider whether the individual

is substantially limited in working."231 Despite

these guidelines, in Krauel v. Iowa Methodist

Medical Center, the Eighth Circuit found that a

respiratory therapist who was infertile was not

disabled within the meaning of the statute, in

part because infertility did not prevent her from

performing her job duties.232

In criticizing the Krauel decision, an Illinois

court cited the EEOC guidance. In Erickson v.

Board of Governors, Northeastern Illinois University,233 the court stated that the Krauel court

should not have combined its analysis of the

major life activity of reproduction and caring for

others with its analysis of the major life activity

of working.234 Rather, the Krauel court should

229 See ibid.

239 See Robert Silverstein, Director, Center for the Study

and Advancement of Disability Policy Study, interview in

Washington, Dec. 10, 1997, p. 3 (hereafter cited as Silverstein interview). Mr. Silverstein, a disability policy expert

who served as counsel and principal advisor to Sen. Tom

Harkin from 1987 to 1997 and as one of the drafters of the

ADA statute and its legislative history, mentioned in this

context, that during hearings and debates on the ADA bill,

he had argued that "working" should not be considered a

major life activity because of the potential confusion this

might create. However, he was not successful in advancing

this argument, and Congress included working as a major

life activity in the final version of the ADA.

231 EEOC, "Definition of the Term 'Disability'," § 902.4(c)(2).

232 95 F.3d 674, 677 (8th Cir. 1996). This ruling does not

follow from the EEOC guidance which states that working

should be considered as a major life activity only if no other

major life activity is substantially limited. See EEOC,

"Definition of the Term 'Disability'," § 902.4(c)(2).

233 1997 U.S. Dist. LEXIS 13313 (N.D. Ill. 1997).

234 Id. at *12*13.

90

have addressed the two separately, first assessing whether reproduction and caring for others

qualified as a major life activity and then, after

determining that they did not, determining

whether there was a substantial limitation in

the major life activity of working itself.235 The

Erickson court based this analysis on the EEOC

interpretive guidance accompanying the title I

regulations, which states, "if an individual is not

substantially limited with respect to any other

major life activity, the individual's ability to perform the major life activity of working should be

considered."236 The Erickson court concluded

that plaintiffs infertility was a disability within

the meaning of the ADA because it found that

reproduction was a major life activity that was

substantially limited by infertility.237

Disability policy expert Robert Silverstein

has stated that courts such as the Krauel court

also are ignoring the plain language of the legislative history with respect to the requirement of substantial limitation and the meaning of

major life activity.238 In accord with the Erickson

court's observations on the Krauel decision, he

stated that he believes some courts are engaging

in faulty reasoning relating to the "major life

activity" issue in which they are confusing the

analysis of the major life activity of "working"

with that of major life activity in general. Mr.

Silverstein stated that some courts, like the

Krauel court, have confused this issue and have

looked first to determine if the claimant was

limited in the major life activity of working.239

Mr. Silverstein noted that EEOC has tried to

clarify in its policy guidance that the major life

activity of working should become an issue for a

court only after a finding that no other majorlife

activity was limited by an impairment. He maintained that some courts have compounded the

problem by creating a "Catch-22" situation

whereby claimants never are deemed to be covered by the ADA. For instance, the courts may

determine that a claimant has a disability, but

therefore cannot work and hence is not a quali235 See id.

235 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997) (emphasis

added).

237 Erickson, 1997 U.S. Dist. LEXIS 13313, at *12.

239 Silverstein interview, p. 3.

239 Ibid.

104
fled individual with a disability under the ADA;

or alternatively, the courts may determine that

the claimant can work, but is therefore not

"substantially limited in working," and thus hold

that the claimant does not have a disability under the ADA.240

Mitigating Measures

In the past several years, a split has arisen in

the Federal courts as to the meaning of disability

under the ADA.241 The controversy developed

over whether an individual who is using corrective or mitigating measures, such as medication,

to treat a condition has a disability within the

meaning of the ADA. On one side are courts that

have applied the "medicated test";242 that is, they

240 Ibid.

241 The split is based on the issue of whether to determine

disability with or without regard to mitigating measures.

See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir.

1997) (stating "analysis of whether [plaintiff] is disabled

does not include consideration of mitigating measures") cert.

denied 118 S.Ct. 693 (1998); Harris v. H & W, Contracting

Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding EEOC's

interpretation is consistent with the ADA's legislative history; thus, an individual's disability must be assessed without regard to mitigating measures). But cf. Schluter v. Industrial Coils, Inc., 928 F. Supp. '1437, 1445 (W.D. Wis.

1996) ("EEOC's interpretation is in direct conflict with the

language of the statute that requires plaintiffs in ADA cases

to show that an impairment 'substantially limits' their

lives."); Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808, 813

(N.D. Texas 1994) (concluding that "EEOC interpretation

requires that one not having a limitation be considered as

having a disability even though the statutory language

clearly requires substantial limitation").

See also discussion below; James G. Frierson, "Medical

Treatments Should Not be Considered When Courts Determine 'Disability' Under the ADA," Employment Discrimination Report, Feb. 4, 1998, pp. 166-70 (hereafter cited as Frierson, "Medical Treatments Should Not be Considered").

242 See Cline v. For Howard Corp., 963 F. Supp. 1075, 1081

n. 6 (E.D. Okla. 1997) (recognizing split of authority and

determining that "the better reasoned approach in the context of vision is one which evaluates the limitation with

regard to the use and effectiveness of corrective devices");

Gaddy v. Four B Corp., 953 F. Supp. 331, 337 (D. Kan. 1997)

("EEOC Interpretive Guideline § 1630.2(0's pre-medicated

perspective is in direct conflict with the ADA's express

statutory language . . . . "); Moore v. City of Overland Park,

950 F. Supp. 1081, 1088 (D. Kan. 1996) (rejecting unmedicated perspective of § 1630.2(j) because it is in direct conflict

with ADA); Schluter v. Industrial Coils, Inc., 928 F. Supp.

1437, 1445 (W.D. Wis. 1996) ("EEOC's interpretation is in

direct conflict with the language of the statute that requires

plaintiffs in ADA cases to show that an impairment

`substantially limits' their lives."); Coghlan v. H.R.J. Heinz

91

decided that a disability was not present because

of mitigating measures available. On the other

side are courts that argue, based on explicit intent in the statute's legislative history, that the

disability determination under the ADA always must be made without regard to mitigating

measures.243

In its 1995 guidance on the definition of disability under the ADA, EEOC states that mitigating measures should not be considered when

determining whether an impairment limits a

major life activity:244

an impairment is substantially limiting if it significantly restricts the duration, manner or condition

under which an individual can perform a particular

major life activity as compared to the average person

in the general population's ability to perform that

same major life activity. . . . Thus, for example, an

individual who, because of an impairment, can only

walk for very brief periods of time would be substantially limited in the major life activity of walking. An

individual who uses artificial legs would likewise be

substantially limited in the major life activity of walking because the individual is unable to walk

without the aid of prosthetic devices. Similarly, a diabetic who without insulin would lapse into a coma

would be substantially limited because the individual

cannot perform major life activities without the aid of

medication. . . .245

Co., 851 F. Supp. 808, 813 (N.D. Texas 1994) (concluding

that "EEOC interpretation requires that one not having a

limitation be considered as having a disability even though

the statutory language clearly requires substantial limitation"). See also Frierson, "Medical Treatments Should Not

be Considered," p. 166.

243 See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir.

1997) (stating "analysis of whether [plaintiff] is disabled

does not include consideration of mitigating measures"),

cert. denied 118 S.Ct. 693 (1998); Harris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding

that EEOC's interpretation is consistent with the ADA's

legislative history, thus, an individual's disability must be

assessed without regard to mitigating measures); Fallocaro

v. Richardson, 965 F. Supp. 87, 93 (D.D.C. 1997) ("This

Court finds that the EEOC's `no mitigating measures' is

eminently reasonable, consistent with the language and

purpose of the Rehabilitation Act, and supported by the

legislative history of the ADA.").

244 EEOC, "Definition of the Term 'Disability'," § 902.5

(citing 29 C.F.R. pt. 1630 app. § 1620.2(j) (1997)); S. REP.

NO. 101-116, at 23 (1989); H.R. REP. NO. 101-485(11), at 52

(1990); H.R. REP. NO. 101-485(111), at 28 (1990).

245 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997) .
A senior attorney in EEOC's. ADA Policy Division explained the analysis EEOC used in developing its position on mitigating measures.248

Since the statute is silent on the issue, EEOC

looked at the definition of "substantially limits"

in the regulations. The regulations state that an

impairment is substantially limiting if it significantly restricts the "condition, manner, or duration under which an individual can perform a

particular major life activity."247 A person who

can perform a major life activity only with the

aid of a "mitigating measure" is significantly restricted in the "condition, manner, or duration"

with which he or she can perform that activity.

Therefore, the individual would qualify as having a substantial impairment under the regulations. The EEOC attorney said that EEOC's position also came straight from the ADA legislative history, which said that the existence of a

substantially limiting impairment should be assessed without regard to mitigating measures.248

Some courts continue to apply the "medicated

test" to determine the presence of a substantial

impairment. Citing to the statutory language,249

these courts argue that having a disability

within the meaning of the statute requires an

actual, substantial limitation of a major life activity. These courts reason that if medical treatments mitigate the disability or its symptoms

and remove the substantial limitation of a major

life activity, then there is no disability and there

is no need to review the case any further.250

246 See Lyn McDermott, Senior Attorney, ADA Policy Division, Office of Legal Counsel, EEOC, interview in Washington, DC, Apr. 6, 1998, p. 4 (hereafter cited as McDermott

interview).

247 29 C.F.R. § 1630.2(j)(1)(ii) (1997).

248 McDermott interview, p. 4.

243 42 U.S.C. § 12102(2) (1994).

250 See Ellison v. Software Spectrum, Inc., 85 F. 3d 187, 191

n.3 (5th Cir. 1996) (noting that "had Congress intended that

substantial limitation be determined without regard to mitigating measures, it would have provided for coverage under

§ 12102(2)(A) for impairments that have the potential to

substantially limit a major life activity") (emphasis added);

Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993)

("[A] person is not handicapped if his vision can be corrected

to 20/200."), cert. denied, 511 U.S. 1011 (1994); Cline v. For

Howard Corp., 963 F. Supp. 1075, 1080-81 n. 6 (E.D. Okla.

1997) (recognizing split of authority and determining that

"the better reasoned approach in the context of vision is one

which evaluates the limitation with regard to the use and

effectiveness of corrective devices"); Gaddy v. Four B Corp.,

92

EEOC's position that mitigating measures

should not be considered when determining the

presence of a disability has strong support in the

legislative history of the ADA,251 but it appears

problematic for employers because, as one commentator has noted, "it suggests that one can be

disabled under the first prong even if his condition is completely controlled."252

EEOC's interpretive guidance states tha't "a

diabetic who without insulin would lapse into a

coma would be substantially limited because the

individual cannot perform major life activities

without the aid of medication."253 Disagreeing,

some courts have found that such a statement

assumes that the inability to perform major life

activities without the aid of medication is not in

and of itself evidence of a substantial limitation

of a major life activity.254 Moreover, EEOC has

not explained what the substantial limitation is

953 F. Supp. 331, 337 (D. Kan. 1997) ("EEOC Interpretive

Guideline § 1630.2(j)'s pre-medicated perspective is in direct

conflict with the ADA's express statutory language . . . . ");

Moore v. City of Overland Park, 950 F. Supp. 1081, 1088 (D.

Kan. 1996) (finding that plain language of the ADA conflicts

with the EEOC's Interpretive Guidance concerning premeditated perspective); Schluter v. Industrial Coils, Inc., 928 F.

Supp. 1437, 1445 (W.D. Wis. 1996) ("EEOC's interpretation

is in direct conflict with the language of the statute that

requires plaintiffs in ADA cases to show that impairment

`substantially limits' their lives."); Coghlan v. H.R.J. Heinz

Co., 851 F. Supp. 808, 813 (N.D. Tex. 1994) (concluding that

"EEOC interpretation requires that one not having a limitation be considered as having a disability even though the

statutory language clearly requires substantial limitation").

251 See S. REP. No. 101-116, at 23 (1989); H.R. REP. NO.

101-485(11), at 52 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 334 (stating: "Whether a person has a disability should

be assessed without regard to the availability of mitigating

measures, such as reasonable accommodations or auxiliary

aids. For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though

the loss may be corrected through the use of a hearing aid.

Likewise, persons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of the definition of disability, even if

the effects of the impairment are controlled by medication.");

H.R. REP. NO. 101-485(111), at 28 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 451 (stating: "The impairment should be

assessed without considering whether mitigating measures,

such as auxiliary aids or reasonable accommodations, would

result in a less-than-substantial limitation.").

252 D'Agostino, Defining "Disability" Under the ADA, p. 5.

253 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997).

254 See Wilking v. Ramsey, 983 F. Supp. 848, 854 (D. Minn.

1997); Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808, 813

(N.D. Tex. 1994). See also discussion below.

106
in situations in which a disability is controlled

through mitigating measures. At least one recent case has not given effect to EEOC's position

on mitigating measures in part because it was

issued in an interpretive guidance and not as a

substantive regulation or statutory provision.255

In a recent case, Wilking v. County of Ramsey, a court in Minnesota held that because an

employee's depression was controlled by medication, the depression did not substantially limit a

major life activity and therefore the depression

was not a covered disability.256 Another example

is the case of Gogh lan v. H.J. Heinz Company,

concerning a job applicant with diabetes.257 The

court rejected the EEOC interpretive guidance

on substantial limitation, stating that:

[the EEOC interpretive guidance] reads "limits" right

out of the statute because an insulin-dependent diabetic who takes insulin could perform major life activities and would therefore not be limited. Because

the EEOC [interpretive guidance] requires determination of "disability" regardless of an insulindependent diabetic's limitation, it is at odds with the

statute. In other words, the EEOC interpretation requires that one not having a limitation be considered

as having a disability even though the statutory language clearly requires substantial limitation [to show

disability]. 258

In another example, the Tenth Circuit rejected the EEOC guidance on mitigating measures in holding that twin sisters with near sightedness did not have a disability within the

meaning of the ADA because their near sightedness, although a physical impairment, did not

substantially limit them in the major life activity

of seeing when they were wearing corrective

lenses.259 The claimants argued on appeal that

the district court erred in evaluating their physi -. cal impairment with regard to the benefit of corrective eyewear, in direct contradiction to the

EEOC interpretive guidance.260 However, the

255 See Sutton v. United Air Lines, Inc., 130 F.3d 893, 899

n.3 (10th Cir. 1997).

256 983 F. Supp. 848, 854'(D. Minn. 1997).

257 Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808 (N.D. Tex.

1994).

258 Id. at 813.

256 Sutton at 902-03 (10th Cir. 1997).

260 Id. at 896.

93

appeals court upheld the decision of the district

court in disregarding the EEOC guidance.261 The

Tenth Circuit stated that EEOC's interpretation

was in direct conflict with the plain language of

the ADA -262, Moreover, the court stated, "we are

concerned with whether the impairment affects

the, individual, in fact, not whether it would hypothetically affect the individual without the use

of corrective measures."263

EEOC and courts on the other side of the argument rely on the "unmedicated test."264 The

" unmedicated test" is supported vigorously by

disability rights advocates and some legal commentators. Included in this group are some of

the actual drafters of the ADA statute and its

legislative history. For example, an attorney and

Georgetown University Law professor, who

261 Id. at 902-03. In disregarding the EEOC's interpretive

guidance on the consideration of mitigating measures in determining whether a physical or mental impairment rises to

the level of a disability within the meaning of the ADA, the

Sutton court offered a rationale based on precedent: "It is well

established that we must defer to the EEOC's regulatory definition unless it is 'arbitrary, capricious, or manifestly contrary

to the statute.' (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)). However, although we give great deference to the EEOC's interpretation of the ADA found in regulations promulgated under

the express authority of Congress and the ADA itself, we do

not do the same for interpretive guidance promulgated under

the Administrative Procedure Act. (citing. Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 1282 (10th Cir. 1994) (no special

deference due to Department of Labor comment, which is a

"purely interpretive rule") citing Chrysler Corp. v. Brown, 441

U.S. 281, 301-04 (1979) (explaining distinction between interpretive rules and substantive or legislative rules)). Hence,

while the EEOC's Interpretive Guidance may be entitled to

some consideration in our analysis, it does not carry the force

of law and is not entitled to any special deference under Chevron." 103 F.3d at 899 n.3.

See also Schluter v. Industrial Coils, Inc., 928 F. Supp. 1437,

1444 (W.D. Wis. 1996) (citing Public Employees Retirement

System v. Betts, 492 U.S.158, 171 (1989) ("Of course no deference is due to agency interpretations at odds with the

plain language of the statute itself.")).

262 Sutton, 130 F.3d 902.

263 Id.. See also Murphy v. United Parcel Service, 1998 U.S.

App. LEXIS 4439, *5*6 (10th Cir. 1998) (holding that a former mechanic with high blood pressure does not have a disability under the ADA because his condition does not limit a

major life activity when it is treated with medication).

264 See Wilson v. Pennsylvania State Police Dept., 964 F.

Supp. 898, 902-07 (E.D. Pa. 1997) (expressly adopting

EEOC guidance); Sarsycki v. United Parcel Serv., 862 F.

Supp. 336, 340 (W.D. Okla. 1994) (relying on EEOC interpretation as authoritative without discussion).

107

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worked on drafting the ADA and its legislative

history, pointed out that a discussion clarifying

that the presence of a disability should be assessed without mitigating measures was purposefully included in the ADA's legislative history. Furthermore, she added that real protection for individuals with disabilities in the workplace will require management lawyers to cease

trying ADA cases on the issue of whether the

plaintiff has a disability under the ADA statutory definition. Instead, she said, they should

treat disability like other protected classifications, such as race and sex, and try the cases on

the "real issue" of whether or not there was discrimination on the basis of disability.265

Another disability rights advocate who

helped draft the ADA and its legislative history

has stated that EEOC's policy guidance espouses

positions consistent with the spirit and intent of

Congress in enacting the ADA.266 However, the

courts are misinterpreting the ADA and

"rewriting" legislative history.267 He gave as an

example the narrow, formulaic way in which

courts have been interpreting the definition of

"disability" under the ADA.268 In addition to the

views of these advocates, many courts are

agreeing with EEOC's guidance.269 For example,

in Wilson v. Pennsylvania State Police Depart -

inent,270 the plaintiff filed a class action against

265 Chai Feldblum, Professor of Law, Georgetown University

Law School, Washington, DC, interview in Washington, DC,

Feb. 2, 1998, pp. 3, 6 (hereafter cited as Feldblum interview).

266 Silverstein interview, p. 3.

267 Ibid.

268 Ibid.

268 See Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir.

1997) (stating "analysis of whether [plaintiff] is disabled

does not include consideration of mitigating measures") cert.

denied, 118 S. Ct. 693 (1998); Harris v. H & W Contracting

Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding EEOC's

interpretation is consistent with the ADA's legislative history; thus, an individual's disability must be assessed without regard to mitigating measures); Fallocaro v. Richardson,

965 F. Supp. 87, 93 (D.D.C. 1997) ("This Court finds that the

EEOC's 'no mitigating measures' is eminently reasonable,

consistent with the language and purpose of the Rehabilitation. Act, and supported by the legislative history of the

ADA."); Wilson v. Pennsylvania State Police Dept., 964 F.

Supp. 898, 902-07 (E.D. Pa. 1997) (expressly adopting EEOC

guidance); Sarsycki v. United Parcel Serv., 862 F. Supp. 336,

340 (W.D. Okla. 1994) (relying on EEOC interpretation as

authoritative without discussion).

278 Wilson, 964 F. Supp. 898.

94

Pennsylvania State officials, claiming that the

officials violated the ADA and section 504 by rejecting candidates with myopia for the position

of State trooper cadet. The defendants argued

that the plaintiff was not substantially limited in

seeing when his vision could be corrected by

wearing eyeglasses or contact lenses."'

Citing the EEOC interpretive guidance on

mitigating measures, the court stated that a

threshold question raised by the defendant was

whether or not the determination of "substantial

limitation" should be made with regard to the

plaintiffs use of eyeglasses or contact lenses.272

The plaintiff argued that, under EEOC guidelines, the use of eyeglasses or contact lenses as

mitigating 'measures should be disregarded in

determining whether he was substantially limited by his myopia.273 In holding for the plaintiff,

the court relied on EEOC guidance, stating that

employment decisions must be made without

regard to mitigating measures.274 Thus the court decided that a factual issue existed as to

whether the applicant was substantially limited

in his ability to see and, thus, whether he had a

disability within the meaning of the ADA.

Moreover, the court found factual issues existed

as to whether the applicant was regarded as

having a disability and as to whether he was

otherwise qualified for the position.275 In finding

in favor of the plaintiff, the court noted:

Defendant argues on the one hand that plaintiffs

myopia is not limiting or unusual as compared with

the general population, while arguing on the other

hand that he does not have the requisite visual capacity to be a state trooper due to his poor uncorrected vision. There is a certain irony inherent in defendants' argument: if, by virtue of his glasses or

lenses, plaintiff is not substantially limited in seeing,

how can he nonetheless be too visually impaired

based on his eyes without correctionto satisfy the

position of state trooper?276

The U.S. Court of Appeals for the Third Circuit has ruled that "mitigating measures" such

271 Id. at 900.

272 Id. at 902.

273 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997).

274 See 29 C.F.R. app. § 1630.2(j) (1997).

275 See Wilson, 964 F. Supp. at 909-13.

276 Id. at 906.

108
as medication, used to alleviate physical or mental impairments, should not be considered in determining whether an individual has a disability

under the ADA.277 The Third Circuit joins several other Federal appeals courts that take

EEOC's view that people who control their disabilities with medication or assistive devices are

entitled to ADA coverage.278

EEOC also has advanced its position on mitigating measures as an ainicus curiae in several

cases.279 For example, in Arnold v. United Parcel

Service,280 EEOC argued that the body of legal

authority, including the legislative history of the

ADA, interpretive guidance issued by the agencies charged with interpretation of the ADA

statute, and decisions of other courts of appeals,

"all support the conclusion that medication and

other mitigating measures should not be considered in determining whether an individual has a

`disability' within the meaning of the statute. "281

EEOC's brief also observed that Harris v. H & W

Contracting Company282 provided particularly

strong support for EEOC's position. In Harris,

the Eleventh Circuit explored the issue in some

depth and concluded that whether the plaintiffs

277 Matczak v. Frankford Candy and Chocolate Co., 136 F.3d

933, 937 (3rd Cir. 1997).

278 See Arnold v. United Parcel Service, 136 F.3d 854, 866

(1st Cir. 1998); Doane v. City of Omaha, 115 F.3d 624, 627

(8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998).; Harris v.

H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.

1996).

279 See, e.g., Matczak v. Frankford Candy and Chocolate Co.,

136 F.3d 933 (3rd Cir. 1997); Arnold v. United Parcel Service, 136 F.3d 854 (1st Cir. 1998). See also Brief of the U.S.

Equal Employment Opportunity Commission as Anticus

Curiae at 1-2, Ferguson v. Western Carolina Regional

Sewer Auth., 104 F.3d 358, 1996 U.S. App. LEXIS 37998

(4th Cir. 1996) (No. 96- 1277).

289 Arnold, 136 F.3d 854.

281 Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae at 7, Arnold, 136 F.3d 854 (No.

97-1781). See H.R. Rep. No. 485 (II) at 52 (1990), reprinted

in 1990 U.S.C.C.A.N. 303, 334 . See also S. Rep. No. 116 at

23 (1989); H.R. Rep. No. 485 (III) at 28-29 (1990) (whether

impairment substantially limits major life activity should be

determined "without considering whether mitigating measures, such as auxiliary aids or reasonable accommodations,

would result in a less-than-substantial limitation"), re- printed in 1990 U.S.C.C.A.N. 445, 451; 29 C.F.R. Pt. 1630,

app. §§ 1630.2(h) (impairment) & (j) (substantially limits)

(EEOC guidance). Accord 28 C.F.R. pt. 36, app. B § 36.104

(DOJ guidance).

282 136 F.3d 854 (11th Cir. 1996) (No. 97-1081).

95

Grave's disease substantially limited a major life

activity should be assessed without regard to

mitigating measures.283

In another case in which EEOC participated as

an ainicus curiae, Ferguson v. Western Carolina

Regional Sewer Authority,284 the agency offered

another strong argument as to why mitigating

measures should not be included in any assessment of disability under the act. If disability is

determined based on mitigating measures:

many individuals with substantially limiting impairments will not be able to demonstrate that they have a

"disability" within the scope of ADA coverage because

medical treatment or assistive devices mitigate the

itations caused by their impairments. Congress did

not intend that the very medical advance that may

render an individual with an otherwise limiting impairment "qualified" to work, enabling her full participation in the workforce, would be the basis for excluding her from the ADA's protections against discrimination based on her impairment. Unless the determination of "disability" is made without regard to mitigating

measures, many individuals whom the statute was

designed to protect will be excluded from coverage and

will remain subject to precisely the type of discriminatory treatment Congress sought to prevent.285

EEOC adds that in its interpretive guidance to

its title I regulations, the agency states "the existence of an impairment" and "whether an individual is substantially limited in a major life activity"

are to be determined "without regard to mitigating measures such as medicines, or assistive or

prosthetic devices."286 EEOC's Ferguson amicus

brief then argues that U.S. Supreme Court precedent requires that a court give "substantial deference" to an agency's interpretation of its own

regulations and this interpretation"must be given

controlling weight unless it is plainly erroneous or

inconsistent with the regulation."287 In addition, a

court "must defer" to an agency's interpretive

guidance "unless an alternative reading is cora283 See id. at 521.

284 1996 U.S. App. LEXIS 33875 (4th Cir. 1996).

285 Brief of the Equal Employment Opportunity Commission

as Amicus Curiae at 9, Ferguson, 1996 U.S. App. LEXIS

33875 (No. 96-1277).

286 29 C.F.R. Pt. 1630 app. §§ 1630.2(h) (physical or mental

impairment) and 1630.2(j) (substantially limits) (1997).

287 Thomas Jefferson University v. Shalala, 512 U.S. 504, 512

(1994) (internal quotation marks omitted).

109
pelled by the regulation's plain language or by

other indications of the [agency's] intent at the

time of the regulation's promulgation."288

Despite the persuasive arguments of EEOC

and a number of the Federal appellate courts,

courts and commentators continue to argue

fiercely about mitigating measures. Both sides

have found substantial support in the caselaw.289

However, courts following the "medicated test"

may be far too concerned with the "plain language of the statute," to the exclusion of other

important factors.290 One commentator has argued that with the "medicated test" courts have

not used the proper factors in interpreting statutory language.291 The commentator noted that in

Robinson. u. Shell 0i,/,292 the U.S. Supreme Court

stated that the plainness or ambiguity of statutory language "is determined by reference to the

language itself, the specific context in which that

language is used, and the broader context of the

statute as a whole."293 The commentator argues

that the broader context of the statute as a

whole makes the language "substantially limits

288 Id. (internal quotation marks omitted).

289 See Matczak v. Frankford Candy and Chocolate Co., 136

F.3d 933, (3rd Cir. 1997) (mitigating measures should not be

considered in the determination of whether an impairment

is covered under the ADA); Gilday v. Mecosta County, 124

F.3d 760, 765 (agreeing with EEOC's position on mitigating

measures); Doane v. City of Omaha, 115 F.3d 624, 627 (8th

Cir. 1997), cert. denied, 118 S. Ct. 693 (1998); Harris v. H &

W Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996).

But see Sutton v. United Air Lines, Inc., 130 F.3d 893, 902

(10th Cir. 1997) (stating that EEOC's interpretation was in

direct conflict with the plain language of the ADA); Schluter

v. Industrial Coils, Inc., 928 F. Supp. 1437, 1444 (W.D. Wis.

1996) ("Of course no deference is due to agency interpretations at odds with the plain language of the statute itself.")

(citing Public Employees Retirement System v. Betts, 492

U.S.158, 171, 106 L. Ed. 2d 134, 109 S. Ct. 2854 (1989));

Coghlan v. H.R.J. Heinz Co., 851 F. Supp. 808, 811-12 (N.D.

Tex. 1994); Murphy v. United Parcel, Serv., Inc., 946 F.

Supp. 872, 881 n.1 (D. Kan. 1996) (rejecting EEOC view as

contrary to statute).

290 James G. Frierson, "Medical Treatments Should Not Be

Considered When Courts Determine 'Disability' Under

ADA," Employment Discrimination Report (BNA), vol. 10

(Feb. 4, 1998), p. 167 (hereafter cited as Frierson, "Medical

Treatments Should Not Be Considered").

291 Ibid.

292 117 S. Ct. 843 (1997).

293 Id. at 846.

96

one or more of the major life activities" seem

ambiguous at first.294

This ambiguity is evident in a number of

sources. First, in the findings and purposes section of the ADA, Congress found that some 43

million Americans had a physical or mental disability. However, statistics available to Congress

when it passed the ADA showed that only 9.5

million Americans experienced actual difficulty

in performing life activities. Congress' use of the

larger figure indicates "at the least, that the extent of people defined as disabled under the ADA

is unclear. At the most, it proves that Congress

intended that the EEOC's unmedicated test be

used to determine disability."295

Both House and Senate reports accompanying the ADA bill support the unmedicated test

and EEOC's interpretive guidance. Both state

that whether a person has a disability should be

assessed without regard to the availability of

mitigating measures.296 Also, the ADA specifically includes former users of illegal drugs who

have been successfully rehabilitated.297 It is not

reasonable to conclude, as users of the medicated

test so often have, that Congress intended to include former drug users, but not people who

have a history of controlled diabetes, epilepsy, or

other serious, chronic illnesses.298

Further, EEOC's position on mitigating

measures still applies the "substantial limitation" requirement. EEOC has stated that the

term "substantial limitation" means that an individual is "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the

general population can perform that same major

life activity."299 An individual who cannot

breathe without asthma medication or hear

without a hearing aid is significantly restricted

294 Frierson, "Medical Treatments Should Not be Considered," p. 167.

295 Ibid.

296 H.R. REP. NO. 101-485(11), at 52 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 334; S. REP. NO. 101-116, at 23 (1989).

297 42 U.S.C. § 12114(b) (1994).

298 Frierson, "Medical Treatments Should Not be Considered," p. 169.

299 29 C.F.R. § 1630.2(j)(1)(ii) (1997).
in the manner in which he or she performs these

activities as compared to the manner in which

the average person performs them. As one court

has written:

A person with a serious disability who depends on

medicine or a medical device to ameliorate the effects

of that disability nonetheless has a limit on a major

life activity: without the corrective measure the person would be unable to perform a major life activity. .

. . An average person does not need to wear a hearing

aid as a precondition to hearing a conversation, and a

person who does require one may therefore be significantly limited in the major life activity of hearing.300

Another argument advanced against the

medicated test has been that it produces illogical

results that defy common sense.301 For example,

applying a test that benefits people who have

failed to seek treatment for a medical impairment while harming those who have, more responsibly, sought treatment, does not make

sense." Secondly, the medicated test creates a

"heads you lose, tails you lose" situation in which

individuals cannot prevail in an ADA claim unless they show actual substantial limitation of

major life activity; however, substantial limitation then can be used to show that the individual

is not qualified." A good example is a person

seeking a position as a truck driver who has controlled his diabetes with insulin." He cannot

win under the medicated test because he has no

actual substantial limitation." On the other

hand, if the individual has not controlled his

diabetic condition, he is not qualified to drive

safely because of the danger his uncontrolled

diabetes causes."

To date, EEOC's efforts in strengthening its

position on mitigating measures and working to

ensure that it prevails in the courts have been

somewhat limited. For example, EEOC has not

issued guidance on mitigating measures in the

300 Gilday v. Mecosta County, 124 F.3d 760, 763 (6th Cir.

1997).

3" Frierson, "Medical Treatments Should Not be Considered," p. 169.

302 Ibid.

303 Ibid.

3" Ibid.

305 Ibid.

306 Ibid.

97

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form of a substantive regulation, which would

carry substantially more legal weight and would

require the courts' deference;" nor has EEOC

addressed the issue in a comprehensive policy

guidance that provides a careful, thoroughly developed rationale explaining EEOC's position as

it has done for other discrete topics and issues,

such as psychiatric disabilities and the effects of

representations made in disability benefits

claims on ADA claims. However, EEOC has addressed the mitigating measures issue in significant ways in its enforcement guidance on other

title I issues and in its litigation and ainicus curiae briefs. EEOC has also continued its program

of technical assistance, outreach, and education

with members of the Federal judiciary and the

private bar explaining its interpretation of mitigating measures under the first prong of the

ADA's definition of disability."

The Federal Judicial Center (FJC), a judicial

branch agency principally responsible for providing training to newly appointed Federal

judges, has done training on employment law for

Federal judges" on a fairly frequent basis.310

307 See Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984); Meritor Say. Bank,

FSB v. Vinson, 477 U.S. 57, 65 (1986) (stating that EEOC

guidelines "while not controlling upon the courts by reason

of their authority, do constitute a body of experience and

informed judgment to which courts and litigants may properly resort for guidance.") (emphasis added and internal

quotations omitted).

See also Feldblum interview, p. 5. Feldblum stated that EEOC

also could do more to address these issues. For example,

EEOC could issue substantive regulations on certain issues.

EEOC could take issues such as mitigating measures; major

life activities, including a specific list; the analysis relating to

the major life activity of working; and the "regarded as" prong

and place them in regulations. Such regulations would carry

more legal weight than the current policy guidance. See also

Michelle Martin, Staff Services Analyst, Department of Rehabilitation, State of California Health and Welfare Agency,

letter to Nadja Zalokar, Director, Americans with Disabilities

Act Project, USCCR, May 11, 1998, attachment, p. 6 (stating:

"inconsistencies at the Appeals Court level demand substantive regulations be issued. It is very difficult to provide technical assistance to callers who are concerned about mitigating

measures, because as it stands right now, it is subject to the

whim of the court.").

308 Charles S. Arberg, Acting Director, Judicial Education

Division, Federal Judicial Center, telephone interview, May

8, 1998, p. 2.

30° Ibid.

310 Ibid.

4
The FJC provides a session on discrimination

litigation that includes a discussion on the

ADA.311 The acting director of the FJC judicial

education division has noted that EEOC's Associate Legal Counsel has spoken at a number of

the center's sessions on employment law312 and

has provided helpful written materials for the

participating judges.313 The center contemplates

that the Associate Legal Counsel will continue to

appear at its workshops.314

Medical conditions that are being treated,

such as diabetes, are covered under the third

prong of the ADA definition of disability. The

Senate Committee on Education and Labor report accompanying the 1989 ADA bill explicitly

states that the third prong is intended to protect

persons with medical conditions that are under

control:

other examples of individuals who fall within the

"regarded as" prong of the definition include people

who are rejected for a particular job for which they

apply because of findings of a back abnormality on an

x-ray, notwithstanding the absence of any symptoms,

or people who are rejected for a particular job solely

because they wear hearing aids, even though such

people may compensate substantially for their hearing impairments by using their aids, speechreading,

and a variety of other strategies.3'5

The report states further that "individuals with

controlled diabetes or epilepsy are often denied

jobs for which they are qualified. Such denials

are the result of negative attitudes and misinformation."316

A further problem confronting ADA plaintiffs

related to the medicated test is that courts, finding that no disability exists because there is no

substantial limitation of a major life activity, use

that holding of "no disability" within the meaning

of the ADA to find that the employer could not

regard the claimant as having a disability. Essentially, these courts are importing the whole analysis from the first prong and using it on the third

311 Ibid.

312 Ibid.

313 Ibid.

314 Ibid.

315 H.R. REP. No. 101-116, at 24 (1989).

318 Ibid.

98

prong.317 As a result, no "actual" disability means

no "perceived" disability either.318

Per Se Disabilities

The interpretive guidance accompanying the

regulations states that "[o]ther impairments,

however, such as' HIV infection, are inherently

substantially limiting. "319 EEOC's policy guidance on the definition of disability states: "in

very rare instances, impairments are so severe

that there is no doubt that they substantially

limit major life activities. In those cases, it is

undisputed that the complainant is an individual with a disability."320 Thus, EEOC's guidance

appears to indicate that for these conditions,

disability is "inherent," which may reasonably be

interpreted to mean that EEOC is suggesting

that there is not a requirement to show substantial limitation in all cases.321 However, EEOC's

Associate Legal Counsel has stated that, in general, the agency's position is that the appropriate

legal analysis should be done to determine if an

impairment is substantially limiting.322 Nonetheless, ambiguous language in EEOC's guid317 See, e.g., Runnebaum v. NationsBank, 123 F.3d 156, 172-

74 (4th Cir. 1997). See also Feldblum interview; p. 5. Ms.

Feldblum stated that another problem is with the courts'

reading of the third prong of the disability definition, which

covers people who are "regarded as having" a disability. The

problem here is that courts simply are importing the substantial limitation test from the first prong. Claimants under the third prong therefore are required to show that they

were perceived or regarded as having an impairment that

substantially limited a major life activity.

318 Frierson, "Medical Treatments Should Not be Considered," p. 169.

318 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997).

320 EEOC, "Definition of the Term 'Disability'," § 902.4(c).

321 See EEOC, "Definition of the Term 'Disability'," § 902.4.

See also EEOC, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, at TII (January 1992).

322 Mastroianni interview, p. 5. According to the Associate

Legal Counsel, EEOC's position is that one always should do

the analysis (determine whether the person has a disability

according to the language of the statute, i.e., substantial

limitation of a major life activity), because it is very important in litigating ADA cases. Although she noted that, in

general, EEOC's position is that one should do the analysis

required under the statute, EEOC is aware there is legislative history and court rulings supporting the proposition

that some disabilities are inherently substantially limiting.

She reiterated, however, that EEOC always does the required analysis, because the statute requires it.

11.2
ance documents, such as EEOC's interpretive

guidance on the ADA, may undercut this prudent position. In effect, EEOC's guidance relating to such inherently disabling conditions may

contradict the ADA's subStantial limitation requirement.

The interpretive guidance does not provide a

"laundry list" of impairments that constitute

disabilities because "[t]he determination of

whether an individual has a disability is not

necessarily based on the name or diagnosis of

the impairment the person has, but rather on

the effect of that impairment on the life of the

individual."323 As with its commentary on mitigating measures, the guidance appears somewhat contradictory in that, on the one hand, it

states that the determination of whether an individual has a disability is based on the effect

the disability has on the individual's life, while,

on the other_hand, the guidance states that some

impairments, such as HIV infection, are inherently substantially limiting.324

It is thus unclear in the interpretive guidance

whether claimants are required to show substantial limitation, which the statute and the

regulations clearly require. Elsewhere in its

policy guidance on the definition of disability,

EEOC reiterates its position that some impairments are inherently substantially limiting

which would mean that they bypass a formal

substantial limitation inquiry. The guidance

states: "In very rare instances, impairments are

so severe that there is no doubt that they substantially limit major life activities. In those

cases, it is undisputed that the complainant is

an individual with a disability."325

The guidance mentions insulin-dependent

diabetes, manic depression, and alcoholism as

323 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997).

324 Id.

325 See EEOC, "Definition of the Term 'Disability'," §

902.4(c). Impairments that courts have ruled inherently

disabling include insulin-dependent diabetes, legal blindness, deafness, manic depressive illness, alcoholism, and

HIV infection, including asymptomatic HIV illness. See also

The Equal Employment Opportunity Commission has taken

the same position under title I of the ADA. See EEOC,

Technical Assistance Manual on the Employment Provisions

(Title I) of the Americans with Disabilities Act, at TII

(January 1992) ("Some impairments, such as blindness,

deafness, HIV infection or AIDS, are by their nature substantially limiting").

99

impairments that courts have ruled inherently

disabling.326 However, it does not mention cases

that have held specific illnesses are not disabilities. For example, in the case of insulindependent diabetes, at least one court has held

that, with successful insulin treatment, insulindependent diabetes is not a disability at all.327 As

one commentator has observed, some courts

have rejected the language referring to "per se

disabilities" because they have determined that

it "effectively negates the statutory requirement

that one must be substantially limited in order

to be covered."328

EEOC's interpretive guidance states that

"[o]ther impairments, however, such as HIV infection, are inherently substantially limiting. "329 In

addition, in its enforcement guidance on the

definition of disability, EEOC concludes that

HIV infection, including asymptomatic HIV in326 EEOC, "Definition of the Term 'Disability,"' § 902.4(c).

The enforcement guidance states that some "impairments

are so severe that there is no doubt that they substantially

limit major life activities." Ibid. Thus, the guidance states

that under the Rehabilitation Act courts accepted with little

or no discussion that a person was an individual with a disability when the impairment was insulin-dependent 'diabetes, Bentivegna v. United States Dept. of Labor, 694 F.2d

619, 621 (9th Cir. 1982); legal blindness, Norcross v. Sneed,

755 F.2d 113 (8th Cir. 1985); manic depressive syndrome,

Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); deafness,

Davis v. Frank, 711 F. Supp. 447, 453 (N.D. Ill. 1989); and

alcoholism, Whitlock v. Donovan, 598 F. Supp. 126, 129

(D.D.C. 1984), aff'd sub nom. Whitlock v. Brock, 790 F.2d

964 (D.C. Cir. 1986). Ibid.

327 See Schluter v. Industrial Coils, Inc., 928 F. Supp. 1437,

1445 (W.D. Wis. 1996) ("EEOC's interpretation is in direct

conflict with the language of the statute that requires plaintiffs in ADA cases to show that an impairment 'substantially

limits' their lives").

328 D'Agostino, Defining "Disability" Under the ADA, p. 5.

The same inconsistency appears in the EEOC guidance on

the definition of disability. In a footnote, EEOC states that

with regard to HIV infection, "[t]he fact that a contagious

disease is an impairment does not automatically mean that

it is a disability. To be a disability, an impairment must

substantially limit (or have substantially limited or be regarded as substantially limiting) one or more major life activities." EEOC, "Definition of the Term 'Disability'," §

902.2(d), n. 17. EEOC seemingly deemphasizes the substantial limitation requirement by declaring that based on the

legislative history lamn individual who has HIV infection,

including asymptomatic HIV infection, has a disability covered under the ADA." Id. n. 18.

325 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997).

113
fection, is "inherently" disabling.339 As support

for this statement, EEOC's enforcement guidance

cites two court cases,331 the ADA's legislative history (in which HIV infection, both symptomatic

and asymptomatic, as a disability is addressed

specifically),332 and a 1988 Justice Department

memorandum on the application of section 504 of

the Rehabilitation Act to HIV-infected individuals.333 The ADA legislative history documents cite

the same memorandum.334 However, the DOJ

memorandum argues that HIV infection, even if it

is asymptomatic, is a disability within the meaning of the statute, not because it is inherently substantially limiting, but because it substantially

limits one in the ability to reproduce. EEOC, however, has not mentioned reproduction as the major life activity limited by HIV infection. Rather,

EEOC has said only that HIV infection is

"inherently substantially limiting."

In June 1998, the Supreme Court decided the

case of Bragdon u. Abbott. In Bragdon, a patient

had sued her dentist for refusing to treat her because she was HIV positive. The plaintiff pre330 EEOC, "Definition of the Term 'Disability'," §§ 902.4(c),

902.2(d), n. 18. In the case of Doe v. Kohn Nast & Graf,

P. C.,a court agreed that HIV infection was a disability under

the statute because it substantially limited the major life

activity of procreation. 862 F. Supp. 1310, 1320 (E.D. Pa.

1994). The same result obtained in Abbott v. Bragdon in

which the First Circuit held that a dentist violated title III

of the ADA by refusing to treat a patient with HIV. 107 F.3d

934, (1st Cir. 1997) cert. granted, 118 S. Ct. 554 (1997). 331 See Doe v. Kohn Nast & Graf, 862 F. Supp. 1310, 1321

(E.D. Pa. 1994); Doe v. District of Columbia, 796 F. Supp.

559 (D.D.C. 1992). 332 See discussion above. See also H.R. REP. NO. 101-495(11),

at 52 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 304. The

report states: "Whether a person has a disability should be

assessed without regard to the availability of mitigating

measures, such as reasonable accommodations or auxiliary

aids. For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even

though the loss may be corrected through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of the definition of

disability, even if the effects of the impairment are controlled by medication."

333 See id. (citing Kmiec memorandum at 9-11). This document states that HIV is covered under the first prong of the

disability definition because of a substantial limitation to procreation and intimate sexual relationships. 334 Id. See also H. REP. NO. 101-485(111), at 28 (1990) reprinted in 1990 U.S.C.C.A.N. 445, 451 (citing Kmiec memorandum at 9-11).

vailed at both the district and appeals court levels

on her argument that she is disabled under theADA because she has a physical impairment, HIV

infection. She maintained that her impairment

constitutes a disability within the meaning of the

act because she is substantially limited in the

major life activity of reproduction.335 In a 5-4 decision, the Supreme Court held that "HIV infection, even in the so-called asymptomatic phase, is

an impairment which substantially limits the

major life activity of reproduction."336 While relying on the EEOC's interpretive guidance that HIV

is inherently substantially limiting, the Supreme

Court declined to decide whether HIV constitutes

a per se disability under the ADA.337

EEOC's interpretive and policy guidance relating to per se disabilities under the first prong

appears directly at odds with some recent court

decisions. Some courts have rejected the language in EEOC's guidance stating "[o]ther impairments, however, such as HIV infection, are

inherently substantially limiting," because they

have determined that it effectively negates the

statutory requirement that one must be substantially limited in order to be covered, thus creating a category of per se disabilities that arguably

do not require the analysis indicated in the

ADA's definition of disability.338 Thus, EEOC's

guidance relating to per se disabilities under the

first prong appears directly at odds with these

recent court decisions.

As of July 1998 EEOC had not issued new

policy guidance or substantive regulations clarifying its position on per se disabilities. Specifically, EEOC has not addressed the apparent

contradiction noted by recent court decisions relating to whether the requirement for a showing

of substantial limitation can be waived. for some

disabilities as EEOC appears to state in its interpretive and enforcement guidance.339

335 Id. at 939. 336 Bragdon v. Abbott, No. 97-156, slip op. at 21 (U.S. June

25, 1998). 337 Id. at 15. 338 Runnebaum v. NationsBank, 123 F.3d 156, 168 (4th Cir.

1997) and Ennis v. Natl. Assn. of Business and Education

Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995). 339 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997); EEOC,

"Definition of the Term 'Disability'," § 902.4(c).

100

114
On this issue, EEOC's Associate Legal Counsel stated that EEOC's position is that the

analysis should be done (determine whether the

person has a disability according to the language

of the statute, i.e., substantial limitation of a

major life activity), because the statute itself

does not take a per se approach.340 On the other

hand, as noted earlier, there is legislative history that says asymptomatic HIV is covered as

inherently substantially limiting and the courts

have found that other impairments (insulindependent diabetes, alcoholism, manic depression) are covered as inherently disabling.34i The

Associate Legal Counsel said that she does not

believe EEOC will address the issue "because

there is nothing EEOC can add to the debate."342

Although a claimant cannot show an actual

substantial limitation, under the third prong,

the claimant may argue a perceived substantial

limitation, thus avoiding the per se issue. With

regard' to the third prong (that an employee is

regarded as having a physical or mental impairment), the House Judiciary Committee report indicates that the claimant does not necessarily need to show that the employer perceived

him or her as having a substantial limitation.343

Rather, the employer's adverse action against

the employee may be evidence of a substantial

limitation created not by an impairment itself

but by the effect of negative myths, fears, stereotypes, or other stigma associated with disability.

The focus, therefore, would be on the employer's

perception of a disability and not on the substantial limitation requirement, as is the case under

the first prong.344

345 Ibid.

341 Ibid. See, e.g., 135 CONG. REC. S10768 (daily ed. Sept 7,

1989) (statement of Sen. Kennedy).

342 Mastroianni interview, p. 5.

343 The report states, "a person who is rejected from a job

because of the myths, fears and stereotypes associated with

disabilities would be covered under this third test, whether or

not the employer's perception was shared by others in the field

and whether or not the person's physical or mental condition

would be considered a disability under the first or second part

of the definition.." H.R. REP. NO. 101-485(111), at 30 (1990)

reprinted in 1990 U.S.C.C.A.N. 445, 453.

344 EEOC, "Definition of the Term 'Disability'," § 902.8(a).

Under the third prong, EEOC's interpretive guidance states

that if an employer discharged an employee in response to a

rumor that the employee was HIV positive, regardless of

whether the rumor was unfounded and the individual had

101

In Runnebaum v. NationsBank,345 the plaintiff

argued that NationsBank regarded him as being

disabled and therefore he had a claim under the

third prong of the ADA's disability definition.

However, the court found that the employees who

were aware of Runnebaum's HIV status were not

relevant decisionmakers and that Runnebaum

presented no persuasive evidence that bank supervisors regarded him as having an impairment

that substantially limited a major life activity.346

The court concluded that "[q]uite simply, Runnebaum did not hold himself out to NationsBank as

having an impairment that substantially limited

one or more of the major life activities, NationsBank did not regard or perceive Runnebaum as

having such an impairment, and the record does

not contain evidence demonstrating otherwise."347

In this case, the court ignored the possibility

that Runnebaum's employers' perception of his

HIV infection may have been influenced by the

kind of negative attitudes that the ADA seeks to

protect against and focused on the requirement

that the disability be substantially limiting to a

major life activity.348 However, since it was conducting a third-prong analysis, the court might

have considered whether the negative reactions

including myths, fears, and stereotypes associated

with HIV infection may have created a substantial limitation to working for the claimant.

The Runnebaum court's third-prong analysis

exemplifies a problem that has developed in title

I interpretation: under the third prong, must a

claimant show that his or her perceived condition or impairment is one that "substantially

no impairment at all, the individual would be considered as

having a disability because the employer perceived this individual as being disabled. Thus, by discharging this employee, the employer would be discriminating on the basis of

disability. 29 C.F.R. pt. 1630 app. § 1630.2(1) (1997). Simi-.

larly, EEOC policy guidance describes an individual who is

rejected for employment because the employer erroneously

believed the person had HIV infection. The guidance states

that "[e]ven though the individual has no impairment, (s)he

is regarded as having a substantially limiting impairment."

EEOC, "Definition of the Term 'Disability'," § 902.8(e).

345 Runnebaum v. NationsBank, 123 F.3d 156, 168 (4th Cir.

1997).

346 Id. at 173-74.

347 Id. at 174.

345 See id. at 173-74.
limits a major life activity"?349 In the case of disabilities such as asymptomatic HIV infection,

under-control diabetes, and others that have

been the subject of dispute under the first prong

on whether they actually create substantial limitations on major life activities, some courts, like

Runnebaum, that have found no disability under

the first prong, have taken this finding and applied it to the third prong. This analysis assumes

that if the condition does not substantially limit

a major life activity in fact, it cannot be perceived as such.359 One commentator has described this reasoning in the following way:

Most courts . . . finding no current, substantial limitation of a major life activity have also found that since

the individual's medical impairment was not a disability, an employer who discriminates based on the

impairment cannot be said to have regarded the impairment as a disability. In other words, if medicine

controls an individual's epilepsy so that the individual

is not disabled, then discrimination by an employer

against the individual based on the diagnosis of epilepsy is not "regarding the individual as being disabled" since the epilepsy is not a disability.351

Under the third prong, it matters only that the

employer perceived that the claimant had the

condition or illness, not whether the condition

would be considered a disability as defined by the

formulaic requirement of a "substantial limitation

349 A senior attorney in the ADA Policy Division explained

that since the statutory requirement is that for an individual to be covered under the third prong, he or she must be

regarded as having "such an impairment," the individual

must be regarded or perceived as having a disability that

"substantially limits a major life activity." However, she said

that the courts would look at the employer's treatment of

the employee. If the employer treats the employee as substantially limited in a major life activity, the employee

would be covered under the third prong. In this regard, she

said, "an employer's actions speak louder than words."

McDermott interview, p. 3.

359 See Chai R. Feldblum, Professor of Law, Georgetown University Law School, interview in Washington, Feb. 2, 1998

(hereafter cited as Feldblum interview). Professor Feldbluin

stated that a problem with the courts' reading of the third

prong of the disability definition that covers people who are

"regarded as having" a disability is that courts simply are

importing the substantial limitation test from the first prong.

Claimants under the third prong, therefore, are required to

show that they were perceived or regarded as having an impairment that substantially limited a major life activity.

351 Frierson, "Medical Treatments Should Not Be Considered," p. 169.

on a major life activity." This is made clear in the

ADA's legislative history. The House Judiciary

Committee report accompanying the ADA bill

shows how Congress viewed the third prong:

a person who is rejected from a job because of the

myths, fears and stereotypes associated with disabilities would be covered under this third test, whether

or not the employers perception was shared by others

in the field and whether or not the person's physical or

mental condition would be considered a disability under the first or second part of the definition.352

EEOC's regulations are consistent with congressional intent with respect to per se or "regarded

as" disabilities. The regulations state that someone regarded as having an impairment means: (1)

having a physical or mental impairment that does

not substantially limit major life activities but

being treated by a covered entity as having such a

limitation; (2) having a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others;

or (3) having none of the impairments defined in

the act but being treated by a covered entity as

having a substantially limiting impairment.353

Guidance on Determining Who Is Qualified Individual with a Disability

As of July 1998, EEOC had not issued enforcement guidance on the meaning of "qualified

individual with a disability" and related terms,

such as "reasonable accommodation" and "essential function." The agency, however, was developing guidance on this topic.354 Although there is

no comprehensive guidance yet, EEOC has relied on the ADA itself, its legislative history, and

caselaw under both ADA and section 504 in addressing this topic extensively in its regulations,

the interpretive appendix to its regulations, its

technical assistance manual, and other enforcement guidance.

Qualifications Standards

An analysis of the term "qualified individual

with a disability" requires an understanding of

the broader context in which Congress was

352 H.R. REP. NO. 101-485(111), at 30 (1990), reprinted in

1990 U.S.C.C.A.N. 445, 453 (emphasis added).

353 29 C.F.R. § 1630.2(1) (1997).

354 See Mastroianni interview, p. 2; Miller interview, p. 2.

102

1 1 6
working when it was developing the ADA. Two

main interest groups sought to establish a compromise in the bill: employers and businesses,

and disability rights advocates. The final ADA it

is very much a compromise.

The ADA attempts to strike a careful balance

between the employer's and the employee's interests. It does so in part by requiring that an

employee with a disability be capable of performing the essential functions of the job. Under

title I of the ADA, the employee is required to

demonstrate that he or she is qualified, notwithstanding a disability, to perform, with or without

reasonable accommodation, the essential functions of the job he or she holds or is seeking to

fill 355 The ADA identifies as discrimination the

failure to provide reasonable accommodation for

a known disability of an applicant or employee

who can perform the essential functions of the

job.356 In addition, the ADA states that employers may not use qualifications standards, tests,

or other criteria that screen out or tend to screen

out individuals with disabilities, unless they can

show that such selection criteria are job related

and consistent with business necessity.357 Employers are not required to provide reasonable

accommodation under several circumstances, for

example, if the employer can show that an individual with a disability poses a direct threat to

other individuals358 or that providing reasonable

accommodation would impose undue hardship

on the employer.359

The standards for determining who is qualified, the provision of reasonable accommodation,

and the employer defenses of direct threat and

undue hardship illustrate the careful balance between the rights of the employee with a disability

and the rights of the employer. This balancing of

interests is evident in the legislative history of the

355 42 U.S.C. § 12111(8) (1994).

356 Id. at § 12112(b)(5)(A). In addition, the ADA states that it

is a form of discrimination to deny "employment opportunities to a job applicant or employee who is an otherwise

qualified individual with a disability, if such denial is based

on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the

employee or applicant." Id. at 12112(b)(5)(B).

357 Id. at 12112(b)(6). See also 29 C.F.R. § 1630.2(1) (1997).

358 Id. at 12113(b).

359 Id. at 12112(b)(5)(A).

4

statute. The Senate Labor and Human Resources

report accompanying the ADA states:

By including the phrase "qualified individual with a

disability," the Committee intends to reaffirm that

this legislation does not undermine an employer's

ability to choose and maintain qualified workers. This

legislation simply provides that employment decisions

must not have the purpose and effect of subjecting a

qualified individual with a disability to discrimination. . . . Thus, under this legislation, an employer is

still free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability.360

The House Committee on Education and Labor report accompanying the ADA bill further

demonstrates a balancing of interests by offering

specific scenarios and their outcomes under the

ADA. For example:

suppose an employer has an opening for a typist and

two persons apply for the job, one being an individual

with a disability who types 50 words per minute and

the other being an individual without a disability who

types 75 words per minute, the employer is permitted

to choose the applicant with the higher typing speed if

typing speed is necessary for successful performance

of the job.36'

The House report observes that if the two individuals in the example above had the same typing speed, but one had a hearing impairment

that required a telephone headset with an amplifier and the other had no disability, the ADA

would not permit the employer to choose the individual without a disability merely because the

employer did not want to make reasonable accommodation for the person with a disability.362

The House report notes however, that the employer "would be permitted to reject the applicant with a disability and choose the other applicant for reasons not related to the disability or

accommodation or otherwise."363 Finally the report clarifies that the employer's obligation under title I is:

360 S. REP. NO. 101-116, at 26 (1989).

361 H.R. REP. No. 101-485(11), at 56 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 338.

362 Ibid.

363 Ibid.

103
to consider applicants and make decisions without

regard to an individual's disability, or the individual's

need for reasonable accommodation. But, the employer has no obligation under this legislation to prefer applicants with disabilities over other applicants

on the basis of disability.364

Two major issues must be addressed in determining whether an individual is covered under

the ADA: whether the individual has a disability

within the meaning of the act,365 and whether the

individual is qualified to perform the essential

functions of the job.366 The balance between employers' interests and employees' or applicants'

interests is not always easily, preserved. The

rights of the employee with a disability under the

ADA can be denied. Recent trends in the courts

suggest that "if a plaintiff who suffered discrimination is healthy enough to perform the job, he or

she is not disabled and cannot sue under the

ADA; however, if a plaintiff proves an impairment

is severe enough to be a disability, he or she is not

qualified for the job ."367

Defining "Qualified

Individual with a Disability"

The ADA defines the term "qualified individual with a disability" as "an individual with a

disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."368 The ADA's definition

of "qualified individual with a disability" is complex and somewhat ambiguous. Contained

within this term are other key terms, i.e.,

"reasonable accommodation," and "essential

function," the definitions of which also must be

interpreted by EEOC and the courts.369

364 Ibid.

365 42 U.S.C. § 12102(2) (1994).

366 Id. at § 12111(9).

367 James G. Frierson, "Heads You Lose, Tails You Lose: A

Disturbing Judicial Trend in Defining Disability," Labor

Law Journal, vol. 43 (July 1997), p. 419.

368 42 U.S.C. § 12111(8) (1994).

369 For example, Congress did not provide specific criteria

for what constitutes a "reasonable accommodation." Examples of reasonable accommodations provided in the legislative history include: making existing facilities used by employees readily accessible to and usable by individuals with

disabilities, job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition or

EEOC's title I regulations define a "qualified

individual with a disability" as one who "satisfies

the requisite skill, experience, education, and

other job-related requirements of the employment position."378 In its interpretive guidance,

EEOC has identified two criteria a claimant

must address in showing that he or she is a

qualified individual. The first is that the individual must demonstrate that he or she has "the

prerequisites for the position, such as possessing

the appropriate educational background, employment experience, skills, licenses, etc."371 The

second criterion is that the individual must be

able to "perform the essential functions of the

position held or desired, with or without reasonable accommodation."372

Thus, an analysis of both "essential function"

and "reasonable accommodation," as they apply

to an individual situation, is necessary in determining whether an ADA claimant is qualified for

the position held or desired. However, there is no

way to ensure that both elements of the analysis

will be accorded equal weight. As one commentator has noted:

The determination of who is qualified is thus intertwined with the calculation of what is a reasonable

accommodation . . . This definitional circularity has

led to variances in judicial outcome depending on

whether a court focuses primarily on a handicapped

individual's ability to perform the position's essential

functions or on the availability of reasonable accommodation to assist the individual's performance.373

The confusion among the courts on certain

key terms and issues relating to these topics,

particularly essential function and reasonable

accommodation, suggests the need for guidance

modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or

policies, and the provision of qualified readers or interpreters. Id. at § 12111(9) (1994). See generally chap. 5 for further

discussion on the term "qualified individual with a disability" and related terms, including "essential function" and

"reasonable accommodation."

370 29 C.F.R. § 1630.2(m) (1997).

371 Id. at pt. 1630 app. § 1630.2(m).

372 Id.

373 Kathryn W. Tate, "The Federal Employer's Duties Under

the Rehabilitation Act: Does Reasonable Accommodation or

Affirmative Action Require Reassignment?" Texas Law Review, vol. 67 , p. 797 (1989) (citations omitted).

104

118
on the "qualified individual with a disability" as

a protected class and concomitant issues. EEOC

has addressed the term "qualified individual

with a disability"_ extensively in its regulatory

and interpretive guidance on title 1.374 However,

EEOC has not yet published comprehensive

policy documents on the "definition of qualified

individual with a disability," "reasonable accommodation," and "undue hardship,"375 although it is developing guidance on the first two

concepts.376

Essential Function

The ADA's legislative history establishes the

intended meaning of the term "essential function."

The House Committee on Education and Labor

notes that essential functions differ from marginal functions related to the job. For example, an

employer may not require that an employee have

a driver's license if the job does not normally require driving. In this case, driving would be a

marginal function of the job and cannot be used to

exclude a person with a disability.377 The House

Committee on the Judiciary report states that

essential functions are those that must be performed. However, how an employee with a disability performs a given activity may differ from

how an employee without a disability performs

the same activity.378 For example:

in a job requiring the use of a computer, the essential

function is the ability to access, input, and retrieve

information from the computer. It is not "essential"

that a person be able to use the keyboard or visually

read the information from a computer screen. Adaptive equipment or software may enable a person with

no arms or a person with impaired vision to control

the computer and access information.379

374 See 29 C.F.R. §§ 1630.2(m),(n),(o),(p),(q),( r) (providing

definitions of the terms "qualified individual with a disability," "essential functions," "reasonable accommodation,"

"undue hardship," "qualifications standards," and "direct

threat") (1997); see also id. at pt 1630 app. §§ 1630.2, 1630.3.

375 EEOC, "Policy Guidance: Provisions of the ADA," p. 11.

376 Mastroianni interview, p. 2.

377 H.R. Rep. No. 101-485(11), at 55 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 337.

378 H.R. REP. NO. 101-485(111), at 33 (1990), reprinted in

1990 U.S.C.C.A.N. 445, 456.

379 Id.

The House Judiciary Committee report notes

that a written job description may be used to

identify the essential functions of the job and

that the employer's determination of what is an

essential function may be challenged.380

The EEOC regulations state that the employer's judgment on which functions are essential and written job descriptions prepared before

advertising a position may be used to identify

the essential functions of a job.381 However, the

employer's judgment is not the only factor to be

used in determining the essential functions of a

position. Other evidence includes: the amount of

time spent on the job performing the function,

the consequences of not requiring the incumbent

to perform the function, the terms of a collective

bargaining agreement, the work experience of

past incumbents in the job, and the current work

experience of incumbents in similar jobs.382

The regulations define essential functions as

the "fundamental job duties of the employment

position" and provide specific examples of the

kinds of functions that should be considered essentia1.383 For example, a function is essential if

the purpose of the job is to perform that function, there is a limited number of employees

available to do that function, or the function is

highly specialized and the incumbent is hired for

his or her expertise to perform that particular

function.384 In all, EEOC's regulations provide

10 factors for identifying essential functions: 7

types of evidence and 3 kinds of functions that

399 Id. at 33-34, reprinted in 1990 U.S.C.C.A.N. 445, 456-57.

Senator Harkin further elaborated on the process of determining which functions are essential: "a court must give

consideration to the employer's judgment as to what functions are essential and must accept as evidence written job

descriptions. A job description that is not tailored to the

actual functions of the job, however, will ultimately have

little weight. Based on the evidence submitted by the complainant and the respondent, the judge must ultimately

decide what constitutes the essential functions of the job."

136 CONG. REC. 59,686 (daily ed. July 13, 1990) (statement

of Sen. Harkin).

391 29 C.F.R. § 1630.2(n)(3)(ii) (1997).

392 Id. at § 1630(n)(3)(iii)(vii); H.R. Rep. No. 101-596, at 58

(1990).

393 29 C.F.R. § 1630.2(n) (1997).

394 Id. at §§ 1630.2(n)(2)(i)(iii).

105

9
suggest the "essential" nature of a given job

function.385

The regulations clearly state that these are

only examples of evidence that might go to

showing that a particular job function is essential. EEOC's interpretive guidance on essential

functions clarifies that the inquiry into whether

a function is essential "is not intended to second

guess an employer's business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers to

lower such standards. "386 The guidance states

that if an employer imposes certain requirements, it does not have to explain why it chose

those requirements. However:

it will have to show that it actually imposes such requirements on its employees in fact, and not simply

on paper. It should also be noted that, if it is alleged

that the employer intentionally selected the particular level of production to exclude individuals with

disabilities, the employer may have to offer a legitimate, nondiscriminatory reason for its selection.387

The EEOC ADA technical assistance manual

emphasizes that it is not necessary for an employer to do a job analysis to determine the essential functions of a given job.388 However, if an

employer chooses to do a job analysis, it should

focus on outcomes or results of specific job tasks

rather than on the way they are customarily performed.389 Such job analyses can be particularly

useful in helping to identify accommodations

that will enable an individual with specific abilities and limitations to perform the requirements

of the job.399

385 See id. at 29 C.F.R. § 1630(n)(2)(3). See also H.R. Rep.

No. 101-596, at 58 (1990).

3861d. at pt. 1630 app. § 1630.2(n).

387 Id.

388 EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities

Act, (EEOCM-1A), January 1992, p. 11-21 (hereafter cited

as EEOC, ADA Technical Assistance Manual).

389 Ibid., p. 11-21.

399 In illustrating these points, EEOC offers the example of a

computer programmer's job, stating that to maintain the

focus on outcomes rather than means, the essential function

of this job might be framed as "ability to develop programs

that accomplish necessary objectives," rather than "ability to

manually write programs." EEOC, ADA Technical Assistance Manual, p. 11-21. In another example, a job that requires heavy objects to be moved from one place to another,

One review of disability discrimination case

law reveals significant disagreement among the

courts on certain issues relating to the determination of "essential function,"391 particularly

with respect to how criteria for determining

what is an essential function should be applied.

The cases illustrate how "divergent results" can

obtain even applying the same criterion.392

For example, looking at how the amount of

time spent on a given function affects a decision

on whether that function is essential, the cases

do not yield consistent results.393 In Ackerman u.

Western Electric, the plaintiff contracted a bronchial infection that required her to stay away

from dust.394 The court determined that her job

required heavy exposure to dust 32 percent of

her work time in the 7 months before her discharge and 88 percent in the month before her

discharge. However, based on the fact that over

the entire 3-year period of her employment, she

was only exposed to dust 11.5 percent of her

time, the court found that this was proportionately too insignificant an amount of time spent

to be considered an essential function of her position.395 On the other hand, in Mauro v. Borgess

Medical Center,396 the court found that although

the need for a surgical technician to place his

hands in direct contact with or in the immediate

vicinity of an incision arises infrequently, the

need for such assistance is foreseeable and is

essential to the success of the surgical procedure.

the focus in the job description should be on the moving, the

result, rather than manually lifting, a possible method.

Ibid., p. 11-21.

391 David Copus, "Americans with Disabilities Act: Conduct

and Drug/Alcohol Issues, Benefits Issues, Mental Disabilities Cases," April 1997, in National Employment Law Institute, 1997 Americans with Disabilities Act Compliance

Manual (Washington, DC: National Employment Law Institute, 1997), pp. 25-31 (hereafter cited as Copus, "Americans

with Disabilities Act").

392 Ibid., p. 26.

393 Compare Ackerman v. Western Electric Co., Inc., 643 F.

Supp. 836 (N.D. Cal. 1986), aff'd., 860 F.2d 1514 (9th Cir.

1988) with Mauro v. Borgess Medical Center, 886 F. Supp.

1349 (W.D. Mich. 1995), aff'd., 137 F.3d 398 (6th Cir. 1998).

394 643 F. Supp. at 842.

3951d. at 846.

396 886 F. Supp. 1349 (W.D. Mich. 1995), affd, Estate of

William C. Mauro v. Burgess Medical Center, 137 F.3d 398

(6th Cir. 1998), petition for cert. denied, 66 U.S.L.W. 3773

(U.S. May 21, 1998) (No. 97-1870).

106

120
It is, therefore, properly characterized as an essential function, not a marginal function of the

position.397

These cases suggest that the essential function determination is not one that lends itself to

establishing clear precedent through the development of standards based on specific criteria.

As this reviewer observed:

the EEOC's multifactored technique may turn the

identification of a job's "fundamental" duties into a

thespian nightmare, as each participant in the debate

stresses the importance of his or her chosen subset of

the ten factors [EEOC's three factors for identifying

essential functions and seven types of evidence], or

seeks to add still others. Unfortunately, the EEOC's

rules provide no guidance for the arbiter of the debate

to declare a winner.398

Courts also have reached radically differing

conclusions on the latitude employers should be

given in identifying what is an essential function. For example, in Borkowski v. Valley Central School District,399 the court required the

employer school district to show specific evidence to support its contention that maintaining

control over a classroom is an essential function

of a teacher's job that could not be accommodated in the manner proposed by the plaintiff.400

In another case, Kuehl v. Wal-Mart Stores,

a court found that standing was an essential part of a store's "door greeter" job and

providing a stool to an employee whose disability

prevented her from standing for a long period of

time was not required by the ADA because it

would eliminate an essential function.402 In the

former case, a teacher's ability to maintain control of his or her classroom, arguably a fundamental function, required evidence that it was

an essential function.493 In the latter case, an

employer's requirement that a store greeter remain constantly standing, a seemingly arbitrary

397 Id. at 1354.

398 (',opus, "Americans with Disabilities Act," p. 26.

399 63 F.3d 131 (2d Cir. 1995).

400 Id. at 141-42.

401 909 F. Supp. 794 (D. Colo. 1995).

402 Id. at 801-02.

403 Borkowski, 63 F.3d at 140.

and marginal function, met another court's

standard in designating essential functions.404

Reasonable Accommodation

The ADA's legislative history provides some

examples of reasonable accommodations made

by employers for employees with disabilities.

The Senate Committee on Labor and Human

Resources report reprints comments by the

chairperson of the President's Committee on

Employment of People with Disabilities in which

he gave the following examples: a timer costing

$26.95 with an indicator light allowing a medical

technician who was deaf to perform laboratory

tests required for her job; a light probe costing

$45 allowing a visually impaired receptionist to

determine which lines on her telephone were

ringing, on hold, or in use; and a headset costing

$49.95 allowing an insurance salesperson with

cerebral palsy to write while talking.405

EEOC's title I regulations describe reasonable accommodation as:

(i) Modifications or adjustments to a job application

process that enable a qualified applicant with a disability to be considered for the position such qualified

applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under

which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal

benefits and privileges of employment as are enjoyed

by its other similarly situated employees without disabilities.408

EEOC's interpretive gUidance in the appendix to its title I regulations lists three categories

of reasonable accommodation: (1) accommodations that are required to ensure equal opportunity in the application process, (2) accommodations that enable employees with disabilities to

perform the essential functions of the position

held or desired, and (3) accommodations that

enable employees with disabilities to enjoy bene4" Kuehl, 909 F. Supp. at 801-02.

405 S. REP. No. 101-116, at 10 (1989).

408 29 C.F.R. § 1630.2(o)(1) (1997).

107
fits and privileges of employment equal to those

of employees without disabilities.407

EEOC's title I regulations reiterate the statutory language in providing the following examples of reasonable accommodations: 1) making

existing facilities used by employees readily accessible to and usable by individuals with disabilities; and 2) job restructuring; part-time or

modified work schedules; reassignment to a vacant position; acquisition or modifications of

equipment or devices; appropriate adjustment or

modifications of examinations, training materials, or policies; the provision of qualified readers

or interpreters; and other similar accommodations for individuals with disabilities.408

EEOC's Associate Legal Counsel explained in

more detail how the Commission interprets reasonable accommodation. She stated that for

EEOC, the term "reasonable" has a specific

meaning: "reasonable" means "effective." Thus,

for EEOC, an accommodation is reasonable if it

will work.409 The plaintiff/employee has to show

that the accommodation would enable him or her

to work. Then it is up to the employer to prove

undue hardship. She indicated that EEOC has

not stated this position yet in enforcement guidance, but said that it may have done so in informal advisory letters and certainly she has enunciated the position in her speeches.4113

A review of the caselaw shows that several

significant issues relating to reasonable accommodation have emerged in the courts. The first

has to do with defining the limits of the reasonable accommodation provided in a given case. A

recent case in the Sixth Circuit shows some of

the ambiguity involved in determining what

constitutes a reasonable accommodation.

The claimant in Cassidy v. Detroit Edison

Company411 was diagnosed as having chemical

bronchitis after being exposed to smokestack

emissions at work. This disorder caused her to

have allergic reactions from workplace exposure

to cleaning chemicals, diesel fumes, food odors,

407 Id. at pt. 1630 app. § 1630.2(o).

408 Id. at § 1630.2(o)(2).

402 Mastroianni interview, p. 4 (emphasis added).

410 Ibid.. See discussion below on the Seventh Circuit case,

Vande Zande v. State of Wisconsin, 44 F.3d 538 (7th Cir.

1995).

411 1998 U.S. App. LEXIS 4407 (6th Cir. 1998).

paint fumes, 'and smoke.412 The employer, Detroit Edison, responded by transferring the

claimant to a new position, shifting her work

hours, allowing her to leave work when known

allergens would be present in the air, testing the

workplace air quality for compliance with environmental standards, and allowing her to wear a

mask and use a breathing machine at work.

When the claimant's condition worsened, her

doctors recommended that she required a position with an "allergen-free" workplace. Detroit

Edison responded that it had no jobs

"compatible" with the claimant's needs. The

claimant sued under the ADA.413

The Sixth Circuit agreed with the lower

court's decision that although the claimant was

disabled because she was substantially limited

in her ability to breathe, Detroit Edison had done all that it could to accommodate her.

Moreover, the court determined that the claimant failed to identify "precise limitations" created by her disability. The court found that the

claimant's request for an allergen-free workplace, which her employee attempted to locate,

was simply too vague to "reasonably" accommodate, in the court's opinion.414 This case appears

to indicate certain broad-based standards for

defining the limits of what is "reasonable" in accommodating an employee with a disability.

Another issue of significance relating to reasonable accommodation that has emerged in

caselaw involves reassignment of employees as a

reasonable accommodation. For example, in a

recent case the Tenth Circuit held that employers are not obligated under the ADA to provide

another job as a reasonable accommodation. In

Smith u. Midland Brake, Inc.,415 the majority of

a Tenth Circuit three-judge panel stated that

"under the ADA, when a plaintiff is not qualified, even with reasonable accommodation, for

the job which he currently holds [or from which

he was terminated]. . .the employing entity has

no obligation to consider reassigning him to an412 Id. at *3.

413 Id. at *6*9.

414 Id. at *15*16.

415 1998 U.S. App. LEXIS 4495 (10th Cir. 1998), reh'g

granted, No. 96-3018 (May 5, 1998) (unpublished order).

108

122
other position."'" At the request of EEOC and

the plaintiffs attorney, however, the Tenth Circuit has agreed to rehear the issue of reasonable

accommodation with all 12 judges present.417

EEOC has addressed the reassignment issue

presented in the Midland Brake case in its enforcement guidance. For example, it has stated

in its enforcement guidance on workers compen- sation that where an employer reserves light duty positions for employees with occupational

injuries:

If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must

reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can

perform its functions with or without a reasonable

accommodation; and (2) the reassignment would not

impose an undue hardship. This is because reassignment to vacant position and appropriate modification

of an employer's policy are forms of reasonable ac- commodation required by the ADA, absent, undue

hardship.418

The language used in this statement seems

simple and direct enough. The rationale given in

the statement above is that reassignment is a

form of reasonable accommodation required by

the ADA. Based on this, it would appear that

reassignment is only required for qualified individuals with disabilities, since this is the only

protected class under the ADA. The court in

Midland Brake found some ambiguity here: first

because the term "qualified individual" refers to

meeting qualifications standards for the position

held or desired and in the context of reassignment the question arises of whether the individual with a disability has to be qualified for the

416 See id. at *22. See also Barbara Yuill, "Duty to Accommodate Disabled Worker Does Not Include Reassignment

Into New Job," BNA's Daily Labor Report (Mar. 18, 1998),

pp. A-1----A2.

417 See Smith v. Midland Brake, Inc., No. 96-3018 (10th Cir.

May 5, 1998) (order granting rehearing en banc); Brief of the

Equal Employment Opportunity Commission as Amicus

Curiae in Support of the Plaintiff-Appellant on Rehearing En Banc, at 4, Smith v. Midland Brake, Inc., No. 96-3018

(10th Cir. 1998).

418 EEOC, "EEOC Enforcement Guidance: Workers' Compensation and the Americans with Disabilities Act," p. 22

(EEOC Notice 915.002), Sept. 3, 1996.

job he or she currently holds or for the one to

which he or she seeks reassignment; and second,

does the qualified individual standard demand

that individuals with disabilities be able to perform the essential functions of the reassigned job

with or without reasonable accommodation?

EEOC's Associate Legal Counsel stated in an

interview that an individual with a disability is entitled to reassignment under two circumstances: (1) if it would create an undue hardship

for the employer to keep the person in the origi- nal job with a reasonable accommodation, and

(2) if the person can no longer perform the essential functions of the original job. She gave the

following example. Suppose an essential function

of the original job was to drive, and the individual with a disability can no longer drive. Then, it

is EEOC's position that the employer must look

for vacant positions where the individual with a

disability can perform the job. According to her,

the courts that found to the contrary misread

EEOC's guidance and the technical assistance

manual. "This issue has been covered over and

over."419 The Associate Legal Counsel also said

that issuing an enforcement guidance on such a

small issue as this one would not be an effective

way of clarifying or further explaining EEOC's

position.420 She noted that EEOC is addressing

the controversy in an ainicus brief in the Midland Brake case.421

Some courts have questioned whether employers have any duty to reassign an employee.422 The Seventh Circuit, for example, recently held that the duty to reassign only requires the employer to consider a reassignment, or to go through an interactive process in which

all potential options are discussed between employer and employee. The Seventh Circuit has

applied a public policy argument in deciding that

employees with disabilities do not have a right to

reassignment to any job in the corporation.423 In

419 Mastroianni interview, p. 4.

42° Ibid.

421 Ibid. See Brief of the Equal Employment Opportunity

Commission as Arnicus Curiae, Smith v. Midland Brake Co.,

138 F.3d 1304 (10th Cir. 1998) (No. 96-3018).

422 See, e.g. De Paoli v. Abbott Laboratories, 1998 U.S. App. LEXIS 5992 (7th Cir. 1998).

423 Rather, the right to reassignment includes a "restricted

class of positions" commensurate with the range of jobs the

employee is capable of handling. Id. at *20*21.

109

.:-;; 4.0
Dalton v. Subaru-Isuzu Automobile, Inc.,424 the

court concluded that requiring employers to accommodate employees by transferring or reassigning them "would convert a nondiscriminatory statute into a mandatory preference statute,

a result which would be both inconsistent with

the nondiscriminatory aims of the ADA and an

unreasonable imposition on the employers and

coworkers of disabled employees. "425 This argument has found support in the

business community. For example, the general

counsel of the Equal Employment Advisory

Council, an employer advocacy organization in

Washington, D.C., recently has been quoted as

stating that "it's the difference between looking

and finding."426 She stated that, as part of their

duty to reasonably accommodate, employers

might be required to look for an alternative position.427 However, she added that employers

should not be required to find a reassignment or

be held liable if they fail to find a job or reassign

a disabled person into a job.428

As EEOC's Associate Legal Counsel has

noted, the agency has addressed this issue in

several other contexts. One is with reference to

individuals who have an infectious or communicable disease and work in a job that involves

food handling. EEOC's title I regulations state

that "[i]f an individual with a disability is disabled by one of the infectious or communicable

diseases included on [the Department of Health

and Human Services] list, and if the risk of

transmitting the disease associated with the

handling of food cannot be eliminated by reasonable accommodation, a covered entity may refuse

to assign or continue to assign such individual to

a job involving food handling. However, if the

individual with a disability is a current employee, the employer must consider whether he or

she can be accommodated by reassignment to a

vacant position not involving food handling."429

424 1998 U.S. App. LEXIS 5990 (7th Cir. 1998).

425 Id. at *35.

428 Bureau of National Affairs, Inc., Fair Employment Practices: Summary of Latest Developments, April 6, 1998, p. 39

(Washington, DC: Bureau of National Affairs, Inc.)

(hereafter cited as BNA, Fair Employment Practices).

427 Ibid., p. 39 (emphasis added).

428 Ibid.

429 29 C.F.R. § 1630.16(e) (1997) (emphasis added).

According to this language, an employer is required to consider reassignment for an employee

who cannot perform his/her current job even

with reasonable accommodation. This situation

is similar to the one in Midland Brake, in that it

is impossible for the employee to perform his/her

current job, regardless of reasonable accommodation. This is an example of EEOC's clearly

stating that the duty to consider reassignment

does not evaporate if an employee cannot perform his/her current job regardless of reasonable

accommodation.

EEOC filed an amicus curiae brief in Midland Brake430 in which the agency observed:

the [Tenth Circuit] panel has misconstrued . . . the

Commission's view that "there is no obligation to reassign" under the ADA where "no amount of accommodation" would make the individual qualified for his current job.[citation omitted] To the contrary, the Commission has taken the position . . . that, absent undue

hardship, an employer has an obligation to reassign a

disabled employee to a vacant position for which the

employee is qualified anytime accommodation is not

possible in the employee's current position.431

In a 1997 informal advisory letter432 EEOC

stated that an employer is not required to reassign an individual with a disability where there

is no vacancy to which the employee may be assigned.433 On the other hand, if there is a vacancy that the individual can perform (with or

without reasonable accommodation), or if one

will become available within a reasonable

amount of time, and the employer has already

determined that there is no way to accommodate

the individual in his or her present position, the

employer must reassign, the individual.434 The

EEOC noted in this letter that an employee

without a disability who had been bumped to

facilitate a reasonable accommodation may have

438 Brief of Equal Employment Opportunity Commission as

Amicus Curiae at 2, Smith v. Midland Brake, Inc., 1998 U.S.

App. LEXIS 4495 (10th Cir. 1998) (No. 96-3018).

431 Id.

432 Claire Gonzales, Director of Communications and Legislative Affairs, Office of Communications and Legislative

Affairs, EEOC, letter to Lee H. Hamilton, U.S. House of

Representatives, re: Reassignment (Jul. 17, 1997), reprinted

in 11 NAT. DISABILITY L. REP. (LRP) ¶ 388.

4" See ibid.

434 See ibid.

110

124
a legitimate claim under applicable State law, an

applicable bargaining agreement, title VII, or

the Equal Pay Act.435

A final issue of interest relating to reasonable

accommodation has been whether or not plaintiffs claiming disability under the third or

"regarded as" prong are entitled to reasonable

accommodation. Intuitively, it seems unnecessary to provide any accommodation to an individual who does not actually have a disability

but is only regarded as or perceived as having

one. However, this was an issue in a recent case

decided by the Third Circuit.

In Deane v. Pocono Medical Center,436 the

Third Circuit, sitting en bang, ruled that a nurse

whose wrist injury impeded her ability to do

heavy lifting could go forward with her ADA

claim against her employer, which based its

termination on its perception that she had a disability. The court asked: to be considered

"qualified" under the ADA, must "regarded as"

plaintiffs show that they can perform all of the

functions of a job, or just the essential ones, to be

"qualified individuals with disabilities"? The

court found that the ADA requires the same

showing for these plaintiffs as for all others, namely, that they can perform the essential

functions of the job held or sought.437 However,

in finding that "regarded as" plaintiffs have to

meet the same standard as claimants who seek

to prove the presence of an actual disability, another issue arises: if qualified individuals are

those who can perform the essential functions of

the job with or without reasonable accommodation, is a plaintiff who proves that he or she was

perceived as having a disability, and can perform the essential functions of the job,- entitled

to reasonable accommodation? The court did not

reach this issue. It determined that its resolution was unnecessary to the final disposition of

the appeal.438

Nonetheless, this is an unsettled issue on

which EEOC has not published any guidance.

The Deane court observed that "Congress intended that the scope of the Act would extend

435 See ibid.

436 1998 U.S. App. LEXIS 7622 (3rd Cir. 1998).

437 Id. at *23.

438 Id. at *4.

not only to those who are actually disabled, but

also to individuals regarded as being disabled."439 Moreover, the court noted that

"nowhere in the Act does it distinguish between

actual or perceived disabilities in terms of the

threshold showing of qualifications."440

Arguments on both sides of this issue seem to

have merit. Although the court did not resolve

this issue, it did set forth the arguments on both

sides. Deane's argument, according to the court,

was that:

as a matter of statutory interpretation, "regarded as"

plaintiffs are entitled to the same reasonable accom- modations from their employers as are actually disabled plaintiffs. [Deane] reasons that, just as we

found that a plain reading of the ADA only requires

plaintiffs to show that they can perform the essential

functions of the job, a plain reading of the definition

of "qualified individual" demonstrates that a

"regarded as" plaintiff is qualified so long as she can

perform the essential functions with reasonable ac- commodation."'

The defendant's argument was that:

a "regarded as" plaintiff 's only disability is the employer's irrational response to her illusory condition.

Under these circumstances . . . it simply makes no

sense to talk of accommodations for any physical impairments because, by definition, the impairments

are not the statutory cause of the plaintiff 's disability. Adopting Deane's interpretation of the ADA

would . . . : (1) permit healthy employees to, through

litigation (or the threat of litigation) demand changes

in their work environments under the guise of

"reasonable accommodations" for disabilities based

upon misperceptions; and (2) create a windfall for

legitimate "regarded as" disabled employees who,

after disabusing their employers of their misperceptions, would nonetheless be entitled to accommodations that their similarly situated co-workers are not,

for admittedly non-disabling conditions.442

Finally, the lone dissenter in the case, Judge

Greenberg, agreed with the defendant's position.

He stated that "Congress did not pass the ADA

to permit persons without a disability to demand

43° Id. at *2.

446 Id. at *23.

441 Id. at *29 n.12.

442 Id. at *29, n.12.

111
accommodations,"443 and "[i]nasmuch as Deane

is not actually disabled, she has no right to an

accommodation whether or not the accommodation would impact on her ability to perform the

essential functions of the job. "444 This question

which the majority in Deane did not reach and

the dissent answered in the negative is one that

has not been explicitly addressed in the ADA, in

its legislative history, or by EEOC.

Business Justification

The legislative history of the ADA clarifies

that the term reasonable accommodation refers

only to an accommodation that would not impose

an undue hardship on the employer.445 EEOC's

title I regulations state that an employer may defend itself against a charge of disparate treatment

by demonstrating that the challenged action has a

legitimate, nondiscriminatoryjustification.446

The legislative history also says that disparate

treatment cannot be justified by the argument

that an employee is not covered by the employer's

current insurance plan or that reasonable accommodation would cause the employer's insurance premiums or workers compensation costs to

increase.447 Finally, the EEOC interpretive guidance makes clear that the employer's defense of a

legitimate nondiscriminatory reason is rebutted if

the claimant can show that the employer's alleged

nondiscriminatory reason is pretextual for discrimination on the basis of disability.448

The EEOC regulations provide a second defense for two specifically defined employer actions. These actions are: 1) application of qualification standards, tests, or selection criteria that

443 Id. at *33 (Greenberg, J., dissenting).

444 Id. at *34 *35 (Greenberg, J., dissenting).

445 H.R. REP. NO. 101-485(11), at 76 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 358.

445 29 C.F.R. § 1630.15(a) (1997). See also 42 U.S.C. §

12112(b) (1994). In its interpretive guidance EEOC provides

examples of practices that are discriminatory. For example,

it would be discriminatory to exclude an employee with a

severe facial disfigurement from attending staff meetings

simply because that employee makes the employer uncomfortable. Similarly, it would be discriminatory to implement

a policy of not hiring people with AIDS regardless of their

qualifications. 29 C.F.R. pt. 1630, app. § 1630.15(a) (1997).

447 29 C.F.R. pt. 1630, app. § 1630.15(a) (1997) (citing S. REP.

No. 101-116, at 85 (1989); H.R. REP. NO. 101-485(11), at 136

(1990); and H.R. REP. NO. 101-485(111), at 70 (1990)).

448 Id.

screen out or tend to screen out or otherwise

deny a job or benefit to an individual with a disability; and 2) uniform application of standards,

criteria, or policies that have a "disparate impact" on an individual with a disability or a class

of individuals with disabilities.449 The defense

for employers who have engaged in either of

these two actions is that their actions were "jobrelated and consistent with business necessity,

and such performance [could not] be accomplished with reasonable accommodation, as required in this part."459

EEOC's interpretive guidance explains that,

with respect to title I of the ADA and its regulations, disparate impact means that uniformly

applied criteria have an adverse impact on an

individual with a disability or a disproportionately negative impact on a class of individuals

with disabilities.451 In addition, even if the criterion is shown to be job related and consistent

with business necessity, an employer could not

exclude an individual with a disability if the individual could meet the criterion or accomplish

the job function with a reasonable accommodation.452 For example, suppose an employer requires, as part of its application process, an interview that is job related and consistent with

business necessity.453 The employer would not be

able to refuse to consider deaf or hard of hearing

applicants on the basis that they could not be

interviewed because an interpreter could be provided as a reasonable accommodation that would

allow the individuals to be interviewed, and thus

satisfy the selection criterion.454

Disparate impact theory can be applied to

nonselection criteria as well as selection criteria,

with the same requirement for considering reasonable accommodation. Uniformly applied nonselection criteria include specific policies and

practices relating to job performance. According

to EEOC's interpretive guidance, some policies,

such as leave policies, are not subject to challenge under disparate impact theory.455 How449 Id. at §§ 1630.15(b)(1),(c).

45° Id.

451 Id. at pt. 1630, app. §§ 1630.15(b) and (c).

452 Id.

453 Id.

454 Id. 455 112

1.26
ever, even in the case of a leave-related policy,

such as a "no-leave" policy for the first 6 months

of employment, an employer may still be re- quired, under appropriate circumstances, to afford reasonable accommodation in the form of an

exception to such a policy.

Direct Threat

If an employer can prove that an employee or

potential employee presents a direct threat, then

that employee is no longer considered

"qualified." "Direct threat" is defined in the ADA

as "a significant risk to the health or safety of others that cannot be eliminated by reasonable

accommodation."456 EEOC's regulations define

"direct threat" as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced

by reasonable accommodation."457 The regulations further state:

The determination that an individual poses a "direct

threat" shall be based on an individualizedassessment

of the individual's present ability to safely perform the

essential functions of the job. This assessment shall be

based on a reasonable medical judgment that relies on

the most current medical knowledge and/or on the best

available objective evidence.458

The regulations state that the factors to be considered in determining whether an individual

would pose a direct threat include: the duration

of the risk, the nature and severity ofthe potential harm, the likelihood that the potential harm

will occur, and the imminence of the potential harm.459

EEOC recently brought suit in Texas against

an employer whose drug and alcohol policy barred

all employees with current or former substance

abuse problems from working in safety-sensitive

jobs. In EEOC v. Exxon Corporation,460 EEOC

argued that the policy violated the ADA by

screening out people based on their disability, in- stead of individually assessing each person's ca- pacity to perform a job. The employer argued that

456 42 U.S.C. § 12111(3) (1994).

457 29 C.F.R. § 1630.2( r) (1997).

458 Id.

459 Id.

460 1998 U.S. Dist. LEXIS 5486 (N.D. Tex. 1998).

its policy was a "business necessity" because without the policy it could be exposed to environmental or tort liability, or criminal charges.461

In response to the employer's business necessity argument, EEOC argued that when a policy

is based on safety, the defense that it is a business

necessity can only be satisfied by showing that the

excluded individuals posed a direct threat to the

health or safety of others in the workplace.462 The

court framed the central issue in the case

"whether Exxon is relegated to defending its

safety-based policy as 'consistent with business

necessity' under the rigorous direct threat standard or whether the Act permits the more broadbased business necessity defense urged by Exxon."463 The court found in favor of EEOC and

cited EEOC's interpretive guidance in the appen- dix to its title I regulations.464 The court also

found that EEOC's construction of the statute was

reasonable "in light of the Act's text, history and

purpose,"465 and court concluded that:

the statutory scheme of the ADA, its legislative history and stated purpose support a finding that safetybased qualification standards which screen out the

disabled can only be justified by meeting the direct

threat test. Consequently, Exxon's reliance on potential civil and criminal liability, concerns about the

environment and its corporate citizenship will not

suffice to justify its policy as a business necessity.466

A direct threat issue figures prominently in

the Bragdon u. Abbott case. One of the issues in

the Bragdon case was the level of deference

service care providers must accord the medical

judgments of public health and professional organizations, such as the Centers for Disease

Control and the American Dental Association, in

461 Id. at * 8 9.

462 Id. at *9*10.

463 Id. at *11.

464 Id. at *16, n.7 (citing 29 C.F.R. pt. 1630.15 (b)&(c)) (with

regard to safety requirements that screen out an individual

with a disability or a class of individuals with disabilities, an

employer must demonstrate that the requirement, as ap- plied to the individual satisfies the "direct threat" standard

in § 1630.2(r) to show that the requirement is job related

and consistent with business necessity).

465 Id. at *17*18 (citing Southern California Edison Co. v.

Federal Energy Regulatory Comn., 325 U.S. App. D.C. 163, 116 F.3d 507, 511 (D.C. Cir. 1997)).

466 Id. at *29.

113

.,

t-,
determining the presence of a direct threat.467

In Bragdon, the First Circuit relied on Dentistry

Guidelines from the Centers for Disease Control

that recommended certain precautions for dental

professionals to take to reduce the risk of transmitting disease.468 The court also relied on the

American Dental Association's policy statement

that there is little risk of transmitting infectious

disease through dental treatment.469

The Supreme Court concluded that the data

presented from the Centers for Disease Control

and the American Dental Association were not

"definitive" and did not properly assess the level

of risk that treating the HIV patient presented.470 The Court interpreted the statements

as recommendations on how professionals should

conduct themselves and not as authority on statistical likelihood.471

The Court declined to decide the issue of direct threat because it did not have the briefs and

records containing information necessary to

make a determination.472 It ordered the lower

court to further explore and review the evidence

of significant risk, while acknowledging that it

may reach the same decision as before.473

Undue Hardship

Under the ADA, if a proposed accommodation

would cause "undue hardship," an employer does

not have to make such an accommodation. Title I

defines undue hardship as:

an action requiring significant difficulty or expense,

when considered in light of . . . (i) the nature and cost

467 See 66 U.S.L.W. 4601, 4608-10 (U.S. June 25, 1998). See

also "The Three Main Disability Questions in Bragdoti u.

Abbott," Disability Compliance Bulletin, vol. 11, iss. 7 (Mar.

26, 1998), p. 6. This piece discusses the three main issues in

the case: Does the ADA protect all people with HIV from

discrimination, even if they exhibit no symptoms of illness?

Is a plaintiff protected under the statute if her HIV infection

impedes her ability to bear and raise children? Put another

way, is reproduction a major life activity? Should courts

defer to the professional judgment of a dentist or doctor in

evaluating whether a patient poses a direct threat to his

health or safety? Ibid.

468 See Bragdon, 66 U.S.L.W. at 4608-09.

469 See id.

470 Id. at 4609.

471 Id.

472 Id.

473 Id.

of the accommodation needed under this chapter; (ii)

the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at

such facility; the effect on expenses and resources, or

the impact otherwise of such accommodation upon the

operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the

business of a covered entity with respect to the number of its employees; the number, type, and location of

its facilities; and (iv) the type of operation or operations of the covered entity, including the composition,

structure, and functions of the workforce of such entity; the geographic separateness, administrative, or

fiscal relationship of the facility or facilities in question to the covered entity.474

EEOC's title I regulations reiterate this language. The regulations define undue hardship as

meaning, with respect to providing an accommodation, "significant difficulty or expense incurred

by a covered entity, when considered in light of

the factors set forth in paragraph (p)(2) of this

section."475 These factors are the same as those

mentioned in the statute (above).476 Therefore,

an employer who can show evidence of one or

more of these factors can avoid having to provide

reasonable accommodation to a qualified individual with a disability.477

474 42 U.S.C. § 12111(10) (1994).

476 29 C.F.R. § 1630.2(p)(1) (1997).

476 See id. at § 1630.2(p)(2).

477 In 1998 proponents of a religious antidiscrimination bill

in Congress, the "Workplace Religious Freedom Act," relied

heavily on an analogy with the legal requirements for disability cases already applied in Federal civil rights actions

under the Americans with Disabilities Act. In particular, the

bill analogizes the requirement for reasonable accommodation and the exception of "undue hardship." S. 1124, 105th

Cong. § 2 (1998). This analogy has been used for many years

by plaintiffs claiming discrimination on the basis of religion

under title WI of the Civil Rights Act of 1964. See Trans

World Airlines v. Hardison, 432 U.S. 63 (1977).

In testifying before a Senate hearing on this new legislation,

one witness stated "the current definition of `religion' in title

VII places it in a special category of regulation that goes

beyond expression and state of being. The current definition

impliedly requires an employer to reasonably accommodate

any religious observance or practice unless the employer can

demonstrate that a suggested accommodation would impose

an `undue hardship' on the employer. [citation omitted]

Thus, as with certain disabilities, certain religious observances and practices sometimes conflict with ordinary requirements of the workplace. This was the fundamental

reason that conduct related to disabilities in the workplace

could not be regulated by merely adding 'disabled' to the

114

128
EEOC's interpretive guidance offers more

clarification: "undue hardship provision takes

into account the financial realities of the particular employer or other covered entity. However, the concept of undue hardship is not limited to financial difficulty. Undue hardship refers to any accommodation that would be unduly

costly, extensive, substantial, or disruptive, or

that would fundamentally alter the nature or

operation of the business."479

A senior attorney in EEOC's ADA Policy Division has explained that the first consideration

in the reasonable accommodation analysis always should be whether the proposed accommodation is effective.479 All consideration of the cost

and practicality of the proposed accommodation

belongs in the second stage of the analysis,

where it is considered whether the proposed accommodation poses an undue hardship. There- fore, the cost or practicality of a proposed accommodation does not enter into whether it is

considered "reasonable."

The interactive process to determine whether

reasonable accommodation is possible shouldstart

with the employer asking the individual with a

disability what accommodations might solve the

problem.489 The undue hardship analysis should

come into play only once they have narrowed

down the possibilities. At that point, the employer

should examine whether the reasonable accommodations would pose an undue hardship.

This attorney added that if a proposed accommodation would be effective, then a defense

for the employer can be that it would be unduly

costly or would impose a significant burden on

the employer.481 Under the ADA, the test is

whether the proposed accommodation would imstring of personal characteristics protected by title VII. Instead, a whole new statutory scheme was createdthe

Americans with Disabilities Act." Hearing on S. 1129, the

"Workplace Religious Freedom Act," Before the Senate Comm. on Human and Labor Resources, 105th Cong. (statement of Lawrence Z. Lorber, Esq., Verner Liipfert,

Washington, DC).

478 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

479 See Sharon Rennert, Senior Attorney, ADA Policy Division, Office of Legal Counsel, EEOC, interview in Washington, DC, Apr. 7, 1998, p. 1 (hereafter cited as Rennert interview). See also p. 73, this chapter.

480 See Rennert interview, pp. 1-3.

481 Ibid., p. 2.

pose a significant cost or create a significant disruption to the operations of the employer. Being

burdensome, by itself, is too general. The employer would have to establish the significance of

the burden. The "significance" of a burden is determined in terms of the resources of the employer such as keeping other workers from per- forming their jobs or completely changing the

operations of the employer.482 For instance, in

evaluating whether there is an undue hardship

on the employer, EEOC might consider whether

the employer has multiple facilities and how resources are allocated across those facilities.

Whether the disruption is undue hardship depends on the type of operation, the type of reasonable accommodation, and the type of position,

and it must be determined on a case-by-case.basis.

One commentator who opposes EEOC's position on the undue hardship analysis asserts:

"Clear and precise definitions of 'reasonable accommodation' and 'undue hardship'such as

dollar capsare a necessary first step in ADA

reform. . . ."483 This commentator quotes a New

Haven, Connecticut, lawyer as saying: "The

regulations don't say anything about cost-benefit

analyses. You might have to spend $100,000 to

accommodate someone on a job that is only worth $25,000 to you. Tough. You've been conscripted to provide opportunities."484

Not all courts agree with EEOC's interpretation of the proper analysis for determining undue hardship. A review of caselaw addressing

the undue hardship analysis reveals that the

Federal courts are also seeking to better identify . its meaning and its limits. One notable example

is Lori L. Vande Zande u. State of Wisconsin.485

In Vande Zande, the plaintiff was a paraplegic

whose paralysis caused her to develop pressure

ulcers periodically, requiring her to stay at home

for several weeks.486 The court rejected the employer's argument that it had no duty to accommodate the plaintiffs ulcers because they were

482 Ibid.

483 Brian Doherty, "Unreasonable Accommodation: The Case

Against the Americans with Disabilities Act," Reason

(August/September 1995), pp. 19-26, 26.

484 Ibid., p. 26.

483 44 F.3d 538 (7th Cir. 1995).

486 Id. at 543.

115
an intermittent, episodic impairment similar to

a broken leg.487

The State of Wisconsin attempted to accommodate the plaintiff in numerous ways. These

included modifying bathrooms, buying special

adjustable furniture for the plaintiff, and adjusting the plaintiffs schedule to accommodate

medical appointments.488 Nonetheless, the plaintiff believed that the State of Wisconsin had discriminated against her because it refused to allow her to work at home. In finding for the defendant, the Seventh Circuit observed:

Even if an employer is so large or wealthyor, like

the principal defendant in this case, is a state, which

can raise taxes in order to finance any accommodations that it must make to disabled employeesthat

it may not be able to plead "undue hardship," it would

not be required to expend enormous sums in order to

bring about a trivial improvement in the life of a disabled employee. If the nation's employers have potentially unlimited financial obligations to 43 million

disabled persons, the Americans with Disabilities Act

will have imposed an indirect tax potentially greater

than the national debt. We do not find an intention to

bring about such a radical result in either the language of the Act or its history.489

In Vande Zande, the Seventh Circuit also

suggested that there was no clear standard for

defining the term "undue hardship." This is because it is a "term of relation"; therefore, "[w]e

must ask, 'undue' in relation to what?"490 According to the court, the answer, based on the

statute's legislative history and the ADA itself, is

probably in relation to "the benefits of the accommodation to the disabled worker as well as to

the employer's resources."491 Therefore:

The employee must show that the accommodation is

reasonable in the sense both of efficacious [sic] and of

proportional to costs. Even if, this prima facie showing

is made, the employer has an opportunity to prove

that costs are excessive in relation either to the benefits of the accommodation or to the employer's financial survival or health.492

487 See id. at 544.

488 /d. at 544.

489 Id. at 542-43.

483 Id. at 543.

481 Id.

492 Id.

Thus, in effect, the Seventh Circuit disagrees

with EEOC's position that for an accommodation

to be reasonable it need merely be "effective."493

The Vande Zande decision suggests that an employer may apply a cost-benefit analysis to determine whether a particular accommodation is

reasonable.

If the Seventh Circuit's decision in Vande

Zande is adopted by other courts, the concept of

undue hardship may change considerably. There

is precedent in which an employer was able to

show that providing reasonable accommodation

would financially ruin him. Citing to this case,

Barth v. Gelb, the Vande Zande court observed

that "[o]ne interpretation of 'undue hardship' is

that it permits an employer to escape liability if

he can carry the burden of proving that a disability accommodation reasonable for a normal

employer would break him."494

The Seventh Circuit's discussion of undue

hardship echoes the primary issue in the debate

among policymakers, advocacy groups, and in

the national news media over the ADA and

EEOC's implementation of its employment provisions, particularly the requirement of reasonable accommodation. The main questions in this

debate are: How far must an employer go? Is

there any limit to reasonable accommodation

based on a cost-benefit analysis? The Seventh

Circuit in Vande Zande suggests that employers

should be allowed to conduct a cost-benefit

analysis during the reasonable accommodation

negotiations rather than wait until an accommodation is settled on to determine whether it

would be an undue hardship.

483 See discussion, p. 108, this chapter.

494 44 F.3d at 543 (citing Barth v. Gelb, 2 F.3d 1180, 1187

(D.C. Cir. 1993), cert. denied, 511 U.S. 1030 (1994)). . 116

o'D 0
5

Assessment of Enforcement Guidance on

0 Title I Topics and Issues

EEOC has issued enforcement and policy

guidance on ADA topics and issues. These documents have addressed legal and policy issues

that include clarifying and explaining the

meaning of important statutory terms such as

"disability" and "qualified individual with a disability," stating and describing EEOC's position

on the employment aspects of the ADA as they

relate to specific disabilities and categories of

disabilities such as psychiatric disabilities, and

analyzing and taking specific positions on employment-related policy issues such as disability- based distinctions in employer health coverage

plans, preemployment inquiries and medical examinations, workers' compensation, collective

bargaining agreements, and the application of

the ADA to American employees working overseas. EEOC also has issued briefer documents on

ADA-related topics and issues such as a policy

statement on disability and service retirement

plans and a fact sheet providing technical assistance on the interplay between the ADA and the

Family and Medical Leave Act.

A review of some of the major documents

EEOC has published relating to title I reveals

significant progress in the agency's efforts to address ADA issues and disseminate information

about the statute's requirements. Part of the

agency's effectiveness with its enforcement

guidance derives from its choice only to publish

policy or enforcement guidance on the most

pressing or controversial ADA issues. These are

issues that affect a great many people, including

employers and businesses, individuals with disabilities who seek to work, and the agency's own

investigators, who rely on the guidance in doing

their work.1 A discussion of each guidance offers

a means of evaluating EEOC's efforts to guide

and shape ADA implementation, enforcement,

and judicial interpretation of the law.

ADA and Psychiatric Disabilities

In March 1997, EEOC published an enforcement guidance on the ADA and psychiatric disabilities.2 EEOC designed this document to facilitate full enforcement of ADA on charges alleging employment discrimination based on a

psychiatric disability. This document, like much

of EEOC's ADA policy and enforcement guid- ance, is presented in question and answer format and provides numerous examples to make

the complex issues associated with this topic as

clear as possible.3

A 1994 congressional study had suggested

that EEOC should provide more guidance to employers on employment discrimination based on

psychiatric disabilities.4 The report, developed

EEOC's enforcement guidance "Definition of the Term

'Disability"' is reviewed in chap. 4 because it directly addresses a major provision of the statute.

2 U.S. Equal Employment Opportunity Commission (EEOC),

"EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities," (EEOC Notice

915.002), Mar. 25, 1997 (hereafter cited as EEOC,

"Enforcement Guidance for ADA and Psychiatric Disabilities").

3 Ibid., pp. 1-2. Psychiatric disability falls under "mental

impairment," which is covered under the ADA. 42 U.S.C. § 12102(2) (1994); 29 C.F.R. § 1630.2(g) (1997). See also EEOC, Compliance Manual § 902, Definition of the Term

"Disability."

4 See generally Office of Technology Assessment, Psychiatric

Disabilities, Employment, and the Americans with Disabilities

117

131
by the U.S. Office of Technology Assessment,

stated that many of EEOC's field offices lacked

any information on psychiatric disabilities. According to the report, 28 of 40 EEOC field offices

reported that they would like information on the

nature of mental illness, its effects on employment functioning, and useful accommodations

for people with mental disabilities. In addition,

the report found that the current level of assistance provided to aid employers and people with

psychiatric disabilities was not enough to aid in

implementation of the act. The study blamed

this problem not just on EEOC but on the complexity of psychiatric conditions, society's stig- matization of them, and the limited Federal

funding available to address this issue.5

EEOC's guidance on ADA and psychiatric

disabilities unleashed a firestorm of controversy.

Within days of its release, employment lawyers,

clinicians in the psychiatric field, and the national media were engaging in a fierce debate

over the guidance.6 The guidance remains the agency's official

policy on the application of title I of the ADA for

people with psychiatric disabilities in the workplace. EEOC Commissioner Paul Steven Miller

has explained EEOC's main purposes in issuing

guidance on the ADA and psychiatric disabilities:

The underlying vision of the ADA is that it seeks to

combat the fears, myths, and biases that people often

Act, undated (hereafter cited as Office of Technology Assessment, Psychiatric Disabilities, Employment, and the ADA).

Ibid., pp. 100-05.

6 See discussion below. See also Quinn Wood and L.C. Crapo,

"The World According to the EEOC: Psychiatric Disabilities

and the ADA," Utah Employment Law Letter, vol. 2, no. 12

(June 1997); .Jerry Adler, "My Brain Made Me Do It,"

Newsweek, Jan. 26, 1998, p. 56; Robert L. Dunston, "EEOC

Guidance on Psychiatric Disabilities Sparks Controversy,"

Employment TestingLaw & Policy Reporter (July 1997), p.

105; James P. Fitzpatrick, "Psychological Disabilities in

Workplace Present Many Tough Questions Under ADA,"

BNA's Employment Discrimination Report, pp. 195-96 (Aug.

6, 1997); Jacquie Brennan, "ADA Rules are More Balanced

Than the Critics," The National Law Journal, June 30, 1997,

p. A16 (hereafter cited as Brennan, "ADA Rules are More

Balanced Than the Critics"); Mary T. Giliberti, "The EEOC

Enforcement Guidance on the Americans with Disabilities

Act and Psychiatric Disabilities: Much Ado and Long Overdue," National Institute on the Americans with Disabilities

Act, A Publication of the American Bar Association Center

for Continuing Legal Education and the Section of Labor

and Employment Law, Section of Tort and Insurance Practice, pp. B-2, B-6.

associate with disabilities and to ensure that employment decisions are based upon a person's qualifications and not stereotypes. ADA is really that

straightforward. The fears and the myths and the

stereotypes about people with disabilities are most

dramatic with respect to people with mental disabilities. It is ironic, however, that the highest incidence

of disability is psychiatric, and yet psychiatric disabilities provoke the greatest prejudice. The media is

partly to blame for perpetuating these stereotypes.

Everybody has heard about or read about employees

being described as crazed lunatics who have turned

violent in the workplace oftentimes with disastrous

results. People with disabilities, particularly mental

disabilities have a terrible history of oppression. People with mental disabilities have been unable to get

mortgages, own property, care for their children, or

decide for themselves which treatment they want.'

The guidance seeks to raise awareness and

understanding of the ADA as a law and how it

protects people with psychiatric disabilities. The

guidance defines the term "psychiatric disability" for purposes of the ADA and discusses employee conduct issues, as well as key concepts

such as "reasonable accommodation" and "direct

threat" as they relate to people with psychiatric

disabilities in the workplace.

What Is a Psychiatric

Disability Under the ADA?

EEOC's title I regulations discuss psychiatric

disabilities briefly in the context of requirements

relating to mental impairments.8 However, the

1997 EEOC enforcement guidance on psychiatric

disabilities provides an indepth discussion that

begins by stating:

The workforce includes many individuals with psychiatric disabilities who face employment discrimination because their disabilities are stigmatized or misunderstood. Congress intended Title I of the Americans with Disabilities Act (ADA) [citation omitted] to

combat such employment discrimination as well as

7 Paul Steven Miller, Commissioner, EEOC, remarks at

Government Training Institute's National Symposium on

Psychiatric Disabilities and the EEOC's New Enforcement

Guidance Under the Americans with Disabilities Act, Jan.

12-13 1998, Arlington VA (hereafter cited as Remarks of

Commissioner Miller, EEOC, National Symposium on Psychiatric Disabilities).

8 See 29 C.F.R. § 1630.2(h) (1997).

118

132
the myths, fears and stereotypes upon which it is

based. [citation omitted]9

In the introductory section of this guidance,

EEOC quotes the statute in explaining that a

mental impairment under the statute includes

"any mental or psychological disorder, . . . emotional or mental illness."10 Examples of such impairments are major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive-compulsive disorder, and posttraumatic stress disorder), schizophrenia, and

personality disorders. These impairments are

catalogued in the current edition of the American Psychiatric Association's Diagnostic and

Statistical Manual IV (DSMIV).11

EEOC's guidance notes that the DSMIV has

been recognized as an important reference by

the courts and is used widely by American mental health professionals for diagnostic and insurance reimbursement purposes.12 The guidance

states that the DSMIV has been used by the

courts and mental health professionals as a relevant source of information for identifying the

existence of an impairment under the ADA.13

For example, one court deciding a case involving

a police officer suing the City of Chicago cited

the ADA's legislative history in suggesting that

Congress only intended mental disorders as defined in the DSM to qualify as "mental impairments" potentially covered by the ADA.14

Identifying and Diagnosing Psychiatric Disabilities

The American Psychiatric Association's DSM

IV catalogs many kinds of psychiatric impairments. Among the most common and the hardest

to recognize are depression and anxiety disorders.

An estimated 20 percent of the population will

9 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 1.

lo Ibid., pp. 2-4 [ADA Manual, 12:1281-82].

11 EEOC, "Enforcement Guidance for ADA and Psychiatric Disabilities," pp. 2-4 [ADA Manual, 12:281-82] (citing

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition (Washington,

DC: American Psychiatric Association, 1994) (hereafter cited

as APA, DSMIV)).

12 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 3.

13 Ibid.

14 Dertz v. City of Chicago, 1997 U.S. Dist. LEXIS 1956,

*21*22 (N. D. III. 1997).

suffer an episode of severe depression in their lifetime. According to the DSMIV, there are 12 different kinds of anxiety disorders, with varying

prevalence rates.15 These include post-traumatic

stress disorder, obsessive-compulsive disorder,

and acute stress disorder.18 Mental disorders, including psychiatric disabilities, have represented

a significant percentage of the employment discrimination charges filed under the ADA.17

The guidance's reference to the DSMIV has

been one of its most controversial aspects. The

guidance states that the DSMIV "is relevant for

identifying these disorders."18 It also states that

not all conditions listed in the DSMIV are disabilities, or even impairments, for purposes of

the ADA.18 For example, the DSMIV lists several conditions that Congress expressly excluded

from the ADA's definition of disability.20

The guidance, however, notes that the DSM

IV includes conditions that are not mental disorders, but for which people may seek treatment, such as problems with a spouse or child.21 As stated in the guidance, because these conditions

15 See APA, DSMIV, pp. 393-444. For example, the DSM

states that the prevalence of panic disorder is somewhere

between 1.5 and 3.5 percent; obsessive compulsive disorder

is found in 2.5 percent of the general population; posttraumatic stress syndrome ranges anywhere from 1 to 14

percent.

16 Ibid., p. 393.

17 See Office of Technology Assessment, PsychiatricDisabilities, Employment, and the ADA, p. 3. The report notes that:

"In the first 15 months after the ADA went into effect,

17,355 employment discrimination charges were filed with

the U.S. Equal Employment Opportunity Commission

(EEOC); nearly 10 percent of these charges-1,710--related

to mental disorders. .. . That mental disorders accounted for

the second largest block of charges, as broken down by type of impairment, hints at the importance of the issue of em- ployment to people with psychiatric disabilities." Ibid.

18 EEOC, "Enforcement Guidance for ADA and Psychiatric Disabilities," pp. 2-4, [ADA Manual, 12:1281-82].

19 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 3 [ADA Manual, 12:1282].

20 29 C.F.R. § 1630.3(d)(e) (1997) states that [d]isability

does not include transvestism, transsexualism, pedophilia,

exhibitionism, voyeurism, gender identity disorders not

resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs, and "homosexuality

and bisexuality are not impairments and so are not disabilities as defined in this part." Id. at § 1630.3(e).

21 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," pp. 3-4 [ADA Manual, 12:1282].

119

133

BEST COPY AVAILABLE
are not disorders, they are not impairments under the ADA.22 Nonetheless, erroneous reports in

the national news media stating that EEOC was

using the guidance to require employers to recognize every single disorder catalogued in the

DSMIV gained as much publicity as the guidance itself. One nationally syndicated columnist

stated that "the EEOC has made clear that anything listed in the Diagnostic and Statistical

Manual will qualify [as a disability]. There are

no fewer than 374 disorders identified in the

DSM."23 Although it is true that there are 374

disorders in the DSMIV, the rest of this statement is absolutely wrong. The guidance states

plainly that "not all conditions listed in the

DSMIV are disabilities within the meaning of

the act."24

EEOC's guidance does not mention other

valuable texts used to classify mental disorders,

such as the International Classification of Diseases and the Guides to the Evaluation of Permanent Impairment, Fourth Edition. Thus, although the guidance states that the DSMIV

may be a relevant source for identifying psychiatric disorders, it does not specify clearly

whether or not other sources also may be.25 This

has led to concerns in the psychiatric community

that the guidance may be facilitating a proliferation of ADA claims based on fanciful mental ill22 Ibid.

23 See Mona Charen, "Frenetic Guidelines Straight From

EEOC," The Washington Times, Jul. 31, 1997, p. A14.

24 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 3.

25 James J. McDonald, Jr., and Jonathan P. Rosman, "EEOC

Guidance on Psychiatric Disabilities: Many Problems, Few

Workable Solutions," p. 8 in Government Training Institute,

National Symposium on Psychiatric Disabilities and the

EEOC's New Enforcement Guidance Under the Americans

with Disabilities Act, Jan. 12-13 1998, Arlington VA

(hereafter cited as McDonald and Rosman, "EEOC Guidance

on Psychiatric Disabilities"); David R. Price, "Psychiatric

Disabilities and the EEOC's New Enforcement Guidance

Under the Americans with Disabilities Act," pp. 3-4 in Government Training Institute, National Symposium on Psychiatric Disabilities and the EEOC's New Enforcement

Guidance Under the Americans with Disabilities Act, Jan.

12-13 1998, Arlington VA (hereafter cited as Price,

"Psychiatric Disabilities and the EEOC's New Enforcement

Guidance Under the Americans with Disabilities Act");

James J. McDonald, Jr., and Ronald M. Broudy, "Job Stress

and the ADA," p. 68 in Government Training Institute, National Symposium on Psychiatric Disabilities and the

EEOC's New Enforcement Guidance Under the Americans

with Disabilities Act, Jan. 12-13 1998, Arlington VA.

nesses not covered in the DSM/V28 or the other

texts, but simply fabricated or imagined. 'Thus,

one criticism of the guidance has been that it

should clarify whether DSMIV is the only relevant source, or if EEOC decides that it is not, it

should identify clearly all of the "relevant" diagnostic texts acceptable for identifying mental

disorders that may be covered under title 1.27 In

addressing concerns of clinicians relating to the

use of the term "relevant" with regard to the

DSMIV, an EEOC official has explained that

this term must be understood as a legal term

that is used to evaluate evidence.28 It is not a

judgment as to the weight or importance a court

will accord this evidence.

A second controversial aspect of the guidance

has been its mention of traits or behaviors, such

as job-related stress, irritability, chronic lateness, or poor judgment, and perhaps even violence. One critic has written that the guidance

states that the ADA requires employers to tolerate these traits in employees because the employees may claim that the trait is a symptom of

a psychiatric disability.29 However, the guidance

does not make this statement. In fact, the guidance says that these traits are not, in themselves, mental impairments.30 They can, however, be linked to mental impairments, although,

even then, a mental impairment does not rise to

the level of a disability under the ADA unless it

substantially limits a major life activity of the

specific individual with the disability. Plainly,

the guidance does not indicate that the presence

of these traits automatically triggers the protection of the ADA.31

26 McDonald and Rosman, "EEOC Guidance on Psychiatric

Disabilities," p. 8.

27 Ibid.

28 Carol Miaskoff, Assistant Legal Counsel, Office of Legal

Counsel, EEOC, interview in Washington, DC, Apr. 7, 1998,

p. 2 (hereafter cited as Miaskoff interview).

29 See "New EEOC Rules Hurt Mentally Ill," Atlanta Journal and Constitution, May 1, 1997, p. 18A. The editorial

states: "the EEOC sets forth a list of requirements for employers that equate to lower work standards. For example,

employers must: tolerate chronic lateness, poor judgment

and hostility toward co-workers." Ibid.

30 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 6 [ADA Manual, 70:12831.

31 See generally Miaskoff interview. See. Palmer v. Circuit

Court, 117 F.3d 351 (7th Cir. 1997).

120

1 3 4
Personality Disorders as Disabilities

EEOC's guidance states that certain personality disorders listed in the DSM/V may be covered

as psychiatric disabilities under title I, if they rise

to the level of a "disability" by substantially limiting one or major life activities.32 Examples of

personality disorders include paranoid personality

disorder, antisocial personality disorder, borderline personality disorder, histrionic personality

disorder, narcissistic personality disorder, and

obsessive-compulsive p ersonality disorder.33

Because personality disorders are based on a

collection of traits, specific traits may be associated with specific personality disorders. For example, an individual who exhibits rude, obnoxious behavior may be someone suffering from

antisocial personality disorder. Personality disorders potentially are covered under the ADA,

according to EEOC's enforcement guidance, and

an employee conceivably could claim discrimination on the basis of his or her antisocial personality disorder as long as he or she can show that

the disorder results in a substantial impairment

to a major life activity.

Some clinicians in the psychiatric field disagree with inclusion of personality disorders listed

in the DSM IV as impairments that may amount

to psychiatric disabilities under title I, largely because of concerns about the behaviors and actions

of people with these illnesses.34 These clinicians

have claimed that whether or not a particular behavioral trait such as obnoxiousness or rudeness

is covered is not entirely clear in the guidance.

For example, since the guidance lists personality

disorders as one of the covered mental impairments, "obnoxious" behavior may be covered if a

claimant can show that this trait is a symptom of

a personality disorder and the behavior does not

technically violate any office rules or policies. The

same would apply to a host of other disruptive

behaviors resulting from a personality disorder,

such as histrionic personality disorder, paranoid

32 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," pp. 2-4.

APA, DSMIV.

34 McDonald and Rosman, "EEOC Guidance on Psychiatric

Disabilities," pp. 8-9; Price, "Psychiatric Disabilities and the

EEOC's New Enforcement Guidance Under the Americans

with Disabilities Act," p. 15.

personality disorder, or narcissistic personality

disorder.36

The guidance generally is clear on the issue of

violent or threatening behavior. If an employer

terminates an employee exhibiting these traits, as

long as this is a uniformly applied disciplinary

action that is job related and consistent with

business necessity, the employer may do so without violating the ADA.36 This employee represents

a potential "direct threat." At a minimum, the

employee who engages in violent behavior is no

longer a "qualified" individual with a disability.37

EEOC has stated in other policy guidance that "if

the discipline is discharge, the employer need not

reverse the discharge as an accommodation . . . [I]t is not a reasonable accommodation to forgive

misconduct or to reverse discharge . . . employers

may hold all employees to the same performance

and conduct standards."38

The only aspect of the guidance's discussion

on violence that is somewhat troubling arises

from the unclear language used in one of the

examples. In the example, an employee has a

hostile altercation with his supervisor and

threatens the supervisor with physical harm.

The supervisor immediately terminates the employee with, as the ADA requires, a uniformly

applied policy that is job related and consistent

with business necessity. The terminated employee asks for a month off for treatment instead. This is the first time the employee ever

33 According to the guidance, an employee who has an antisocial personality disorder or other personality disorder has

an "impairment" under the ADA. However, the employee

must show that such an impairment rises to the level of a

disability. The guidance makes clear that an employer can

still hold an employee with a disability to the same standards of performance and conduct as other employees, pro- vided that the standards are job related and consistent with

business necessity, even if his or her misconduct is caused

by disability. See Peggy R. Mastroianni, Associate Legal

Counsel, EEOC, letter to Frederick D. Isler, Assistant Staff

Director, Office of Civil Rights Evaluation (OCRE), U.S.

Commission on Civil Rights (USCCR), July 9, 1998, Comments of the U.S. Equal Employment Opportunity Commission, p. 12 (hereafter cited as EEOC Comments).

38 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 29, 32 [ADA Manual, 70:1291].

37 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," p. 32 [ADA Manual, 70:1291].

38 Peggy R. Mastroianni, Assistant Legal Counsel, ADA

Policy Division, letter to Susan Gromis Flynn, Marcus &

Shapira, Pittsburgh, PA, re: response to inquiry about ADA,

Mar. 22, 1994 reprinted in 5 NDLR 287.

121

rs. 1.)
mentioned having a mental disability or requested an accommodation. The guidance states:

"The employer is not required to rescind the discharge under these circumstances. . . ."39 This

language is troubling because it suggests that

there are certain circumstances in which the

employer would have to rescind the discharge.

For instance, if this employee had claimed a

disability and requested accommodation before

the incident, would the employer then have to

allow the employee to return to work? Suppose

the employee had informed his supervisor that

he suffered from "explosive personality disorder," a condition that severely limits his ability

to interact with or maintain relationships with

other people. Suppose also that the employee

had asked for and received time off for treatment. Nonetheless, upon returning to work, he

became engaged in a physical altercation in

which he broke a coworker's jaw. Can the employer fire him on the spot, as company policy

dictates? The answer may be yes, since refraining from violence generally is considered an essential function of any job and is one that this

employee now is unable to perform. Also, the

employee could be considered a direct threat to

others. However, the question is, would this employer actually need to invoke these defenses to

the ADA because this employee previously had

informed the employer of his psychiatric disability? The guidance is silent on this point. EEOC

should clarify the language of this example.

In the above example, the employee suggested that his violent behavior was a symptom

of a personality disorder. Symptoms of personality disorders are behaviors and actions that

can be inappropriate for the workplace. By declaring personality disorders potential disabilities under the ADA, EEOC has raised the question of whether employers have to accommodate

these behaviors just as an employer must accommodate hearing loss or vision loss. Two

commentators have wondered whether EEOC is

requiring an employer to accommodate behaviors such as the paranoid employee's penchant

for spreading false and destructive rumors, the

borderline employee's manipulation of supervisors and coworkers, the histrionic employee's

sexually provocative dress and innuendo, or the

narcissistic manager's insensitivity and denigration of subordinates.40

Traits and behaviors associated with particular personality disorders, like those mentioned above, would surely be inappropriate in

an office setting. However, they may fall short of

breaking the office conduct code. In addition, if

the employer responds by making the specific

behavior a conduct violation, the employee may

claim this response is an element of discrimination on the basis of his or her disability. Moreover, if the claimant can show that making his or

her ostensibly disability-related behaviors a

conduct violation is not a decision consistent

with business necessity or job related, he or she

may have a viable ADA claim. Finally, personality disorders, because they are based on behaviors and actions, may lend themselves particularly well to meritless claims from employees

falsely attributing unwelcome behaviors to such

conditions. However, whether the behaviors are

bona fide symptoms of a personality disorder or

not, the guidance's assertion that personality

disorders are potential disabilities under the

ADA may mean that employers must use time

and financial resources to address such claims.

Based on these concerns, it is not unreasonable

to question whether it is necessary for the guidance to identify personality disorders as potentially protected under the ADA, thereby suggesting the need to seek accommodation for

what would normally be considered behaviors

inappropriate in an office setting.

At a national symposium on EEOC's enforcement guidance on psychiatric disabilities,

EEOC Commissioner Paul Miller addressed

these concerns. He stated that the violent or

threatening employee or the "obnoxious jerk" is

not protected by the ADA and attributed the

suggestion that it is protected to negative and

false stereotypes of people with mental disabilities portrayed in the media. Commissioner

Miller stated:

The media's response to the issue of EEOC's policy

guidance on the ADA and psychiatric disabilities reflected stereotypical thinking at its worst. It trivialized the very real discrimination confronting people

with mental disabilities. The media, for the most

part, failed to acknowledge that the threat of work39 EEOC, "Enforcement Guidance on the ADA and Psychiatric 49 McDonald and Rosman, "EEOC Guidance on Psychiatric

Disabilities," pp. 32 [ADA Manual, 70:1291] (emphasis added). Disabilities," pp. 9-10.

122

136
place discrimination is so great that many individuals

with mental disabilities fear that their disability will

become disclosed to their employer and do not request

the reasonable accommodation that they need.

Rather, the media chose to focus on the so-called

crazed lunatics who are somehow out there in the

workplace and whom people should fear. Most people

with mental disabilities in the workplace are not violent. It is important to note that the violent or threatening employee or the obnoxious jerk are not individuals who fall 'under the ADA protections, as

EEOC's guidance clearly explains. These people are

not qualified individuals and the ADA offers them no

coverage in hiring and no protection against being

fired once employed. Media depictions often ignore

the fact that people with mental disabilities are not

violent and that the ADA does not require the employer to accept conduct that is a direct threat to the

health and safety of the employee or others in the

workplace.'"

"Substantial Limitation of a Major Life Activity"

Analysis and Psychiatric Disabilities

EEOC's enforcement guidance notes that in

determining whether an impairment is covered

under the ADA, "generalizations about the conditions should not be relied upon. It is important to

ascertain how the specific individual is affected by

the impairment."42 The guidance is less clear in

conveying standards for establishing when a

given mental impairment can be considered a disability for the purposes of the ADA. This is due in

part to the use of subjective language. For example, the guidance states: "An impairment does not

significantly restrict major life activities if it results in only mild limitations."43 The guidance

does not provide any further clarification on what

constitutes a "mild" limitation.

Elsewhere, the guidance states that, at a

minimum, a claimant must show that the mental

impairment from which he or she suffers substantially limits a major life activity. Even if a condition is an impairment, it is not automatically a

disability within the meaning of the ADA. To be

covered under the ADA, an impairment must

substantially limit one or more the major life ac41 Remarks of Commissioner Miller, EEOC, National Symposium on Psychiatric Disabilities.

42 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 5-6 [ADA Manual, 70:1283] [emphasis

added].

43 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," p. 6 [ADA Manual, 70:1283].

tivities.44 The guidance uses "the average person

in the general population" as a standard of comparison for determining whether a given individual has a substantial limitation of a major life activity.45 The guidance applies this standard to

specific major life activities, such as interacting

with others, concentrating, and sleeping.46 This

standard is an accepted one that is used by EEOC

to determine substantial limitation both for

physical and mental impairments.47 However,

this standard may be better suited to physical

rather than mental impairments. For example, in

the context of psychiatric disabilities, this standard, along with other terminology used to describe measures Hof substantial limitation, has

been criticized as too generalized and imprecise.48

Although the guidance states that the pres- ence of a disability will not be based on

"generalizations about conditions," the guidance

then uses "the average person in the general

population" as the standard for determining

whether an individual's impairment substantially

limits a major life activity.49 This standard is

based on a large generalization. Moreover, as two

commentators, one a labor and employment lawyer, the other a psychiatric clinician, have stated:

determining whether someone is substantially limited

in the major life activity of, for example, walking or

hearing, is a fairly straightforward task. The former

would be apparent to the naked eye; the latter may be

1 ascertained via some simple audiology tests. Determining whether a person is substantially limited in

the major life activity of "thinking" or "interacting

with others" is another story.°

The authors of this statement observe that it

is easy to measure the pace at which the average

44 42 U.S.C. § 12102(2)(A) (1994).

45 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 6 [ADA Manual, 70:1283] citing 29 C.F.R.

§ 1630.2(j) (1996).

48 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 10-12 [ADA Manual, 70:1284]. 47 See EEOC, "Section 902Definition of the Term

§ 902.4 (hereafter cited as EEOC, "Definition of

the Term 'Disability"').

48 Price, "Psychiatric Disabilities and the EEOC's New Enforcement Guidance Under the Americans with Disabilities

Act," p. 22.

43 Ibid.

50 McDonald and Rosman, "EEOC Guidance on Psychiatric

Disabilities," p. 11.

123

1-1
person walks or how well the average person

sees or hears. It may be more difficult to determine an average person's ability to think or concentrate. For example, suppose an attorney

working in a law firm experiences an inability to

think clearly or concentrate for long periods of

time caused by a traumatic head injury'. The determination as to whether he was substantially

limited in thinking or concentrating would be

made entirely on the basis of credible testimony

from coworkers and family, and perhaps a doctor's judgment. However, the "average person in

the general population" standard probably would

not factor into this determination; such data do

not exist. In addition, this generalized standard

seems oddly at variance with Congress' and

EEOC's "individualized" and "case-by-case" approach in implementing the ADA. The practical

value of this standard seems limited. At a minimum, the "general population" element might be

narrowed in some way.

Finally, the guidance addresses major life activities themselves, stating they may include

thinking, concentrating, interacting with others,

and sleeping,51 which appears consistent with

the legislative intent of the ADA.52 However,

neither concentrating nor sleeping is mentioned

in the ADA regulations and are newly recognized as major life activities in this guidance.53

EEOC's inclusion of these activities as "major

life activities" has been opposed by some courts.54

For example, the First Circuit in Soileau v. Guil51 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 5 [ADA Manual, 70:1282].

52 See H. REP. NO. 101-485(11), at 62 (1990) (stating: "A

`major life activity' means functions such as caring for one's

self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, working, and participating in

community activities." Id.). See also EEOC, "Definition of the

Term 'Disability'," § 902.3 (citing thinking, concentrating,

and interacting with others as major life activities).

63 See Carl Brown, Assistant Commissioner, Division of Rehabilitation Services, Department of Human Services, State of

Tennessee, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, attachment, p. 1 (stating:

"EEOC's guidelines regarding psychiatric disabilities issued in

the Spring of 1997 does not accurately reflect the intent of

Congress in enacting ADA. Losing sleep was not intended to

be a major life activity: This guidance should be clarified.").

54 See Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st

Cir. 1997); Bkeiland v. Advanced Circuits, Inc., 976 F. Supp.

858, 863 (D. Minn. 1997) (agreeing with Soileau in rejecting

the notion that ability to get along with others was a major

life activity under the ADA).

ford of Maine, Inc.,55 disagreed with EEOC's inclusion of "interacting with others." In Soileau, an

industrial process engineer fired from his job

claimed that his employer discriminated against

him because of his disability. He claimed that he

was disabled within the meaning of the ADA because his diagnosed depressive disorderinterfered

with his ability to interact with others. The Soileau court held, however, that impairment of the

ability to get along with others is not a major life

activity and is therefore insufficient to trigger

ADA coverage. The court said: "To impose legally

enforceable duties on an employer based on such

an amorphous concept would be problematic."56

However, some Federal trial courts have

given deference to EEOC's guidance on the issue

of interacting with others as a major life activity.

For example, in Krocka v. City of Chicago,57 the

court rejected the defendant's argument that the

plaintiff was not substantially limited in a major

life activity. In denying the defendant's motion

for summary judgment, the court found that

"interacting with others" was a major life activity that may have been substantially limited as a

result of the defendant's long term depression.58

The court cited the EEOC Compliance Manual

66 105 F.3d 12 (1st Cir. 1997).

56 Id. at 15.12 The court also stated with respect to the concept of "interacting with others" as a major life activity: "The

concept of 'ability to get along with others' is remarkably

elastic, perhaps so much so as to make it unworkable as a

definition. While such an ability is a skill to be prized, it is

different in kind from breathing or walking, two exemplars

which are used in the regulations. Further, whether a person has such an ability may be a matter of subjective judgment; and the ability may or may not exist depending on

context. Here, Soileau's alleged inability to interact with

others came and went and was triggered by vicissitudes of

life which are normally stressful for ordinary peoplelosing

a girlfriend or being criticized by a supervisor. Soileau's last

depressive episode was four years earlier, and he had no

apparent difficulties in the interim." Id.

67 See 969 F. Supp. 1073 (N.D. Ill. 1997).

58 The court construed the ADA list as not exhaustive and

used as a source EEOC's definition of disability in section

902-10 n. 11 of the Compliance Manual. The issue of major

life activity will be decided as a matter of fact during a later .

trial. The issue will not be whether "interacting with others"

is a major life activity, but whether the plaintiffs inability to

get along with others was in fact due to his depression and

not just a personality conflict. See id. at 1083-85.

124

138
for the proposition that interaction with others is

a major life activity.59

A claimant does not need to show that he or

she is substantially limited in the major life activity of working if he or she is substantially limited in another activity." EEOC regulations require that the claimant show that he or she is

"significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in

various classes as compared to the average person

having comparable training, skills, and abilities."61 In addition, the regulations state: "The

inability to perform a single, particular job does

not constitute a substantial limitation to the major activity of working."62 The claimant with a

mental impairment or condition may have significantly more difficulty meeting the requirement of

this provision. For example, a claimant with a

physical problem such as a back impairment may

be able to show easily that he or she.cannot perform a class of jobs that requires lifting heavy

weights, while the individual with a behavioral or

anxiety disorder may have much greater difficulty

meeting the same requirement."

The Federal courts have ruled whether specific psychiatric illnesses are disabilities within

the meaning of the ADA by relying on EEOC

regulations, policy guidance, and case precedent

from the Rehabilitation Act." For example, in a

59 Id at 1084 n. 8. See also Stauffer v. Bayer Corp., 1997 U.S.

Dist LEXIS 14468 (N.D. Ind. 1997) (assuming, without deciding, that interacting with others is a major life activity but

finding no disability because limitations were not substantial).

60 29 C.F.R. pt. 1630 app. § 1630.2(j) (1997). See also EEOC,

"Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 5-6 [ADA Manual, 70:1282].

61 29 C.F.R. § 1630.2(j)(3)(I) (1997).

62 Id.

63 See John M. Casey, "From Agoraphobia to Xenophobia:

Phobias and Other Anxiety Disorders Under the Americans

with Disabilities Act", Puget Sound Law Review, vol. 17

(Winter 1994), p. 382 (stating "[c]onditions such as behavioral

disorders, a type of mental disability, are often less apparent

to employers than are most obvious forms of mental disability.

Yet such hidden behavioral disorders are a potentially greater

source of stigma, employer indifference, and, ultimately, job

termination. The ADA fails to address behavior disorders in

general and phobias in particular." Ibid.).

64 See 42 U.S.C. § 12201(a). ADA relies on the same standards set forth by administrative regulations and court

cases. Congress in the ADA stated that "except otherwise

provided. . .nothing in [the ADA] shall be construed to apply

a lesser standard than that applied under title V of the Rehabilitation Act of 1973. . .or the regulations issued by Federal agencies pursuant to such title." Id.

Rehabilitation Act case involving a utility systems repairer who suffered from acrophobia,"

the repairer informed his supervisor that he

could not climb to certain heights because of his

phobia. Two months later, he was terminated

because he. was "medically unable to perform the

full range of the duties of [his] position."66 The

Fourth Circuit held that the condition left the

repairer incapable of satisfying the singular demands of a particular job, but that he had failed

to establish that he was unable to perform a

broad range of jobs, as required under the law.67

Complainants like the repairer in the above

case are in a difficult position. They may suffer

from an impairment, such as a specific phobia

that renders them incapable of performing a particular job function. However, such claimants may

not have the option of showing that their specific

phobia impedes the ability to perform a major life

activity as it has been defined under the statute.

For example, the repairer suffered from a fear of

heights, but it would be difficult to make the argument that climbing heights is a major life activity in and of itself. Therefore, the repairer had

to make the argument that he was substantially

limited in the major life activity of working. To do

that he had to meet a very high standard, namely,

that the substantial limitation carried across "a

broad range of jobs" as required under both the

Rehabilitation Act and the ADA. As a result, he

and others like him who suffer from psychiatric

disabilities that impede their ability in one area

may be presented with serious difficulties in

claiming protection under the ADA."

65 Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986).

66 Id. at 933.

67 Id. at 935. As under the Rehabilitation Act, with reference

to the substantial limitation of working the EEOC regulations state that "The term substantially limits means significantly restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes as compared

to the average person having comparable training, skills and

abilities. The inability to perform a single, particular job

does not constitute a_substantial limitation in the major life

activity of working." 29 C.F.R. § 1630.2j(3)(0 (1997).

69 See, e.g., Pouncy v. Vulcan Materials Company, 920 F.

Supp. 1566 (N.D. Ala. 1996) (the court found that because

any perceived mental impairment only limited plaintiffs

ability to perform her current job, and did not limit ability to

perform a broad range of jobs, the plaintiff was not covered

under the ADA).

125

139
Evidence of Psychiatric Disability

The guidance states that an EEOC investigator can determine whether an impairment is

substantially limiting based on "credible testimony," including self-reporting by the claimant

and information from family, friends, and coworkers.69 From this statement, it appears that

no independent evaluation by a mental health

professional is necessary and an EEOC investigator may rely solely on the word of the claimant. The guidance makes clear later that an employer may ask for reasonable documentation

about a disability.

One psychiatric clinician has said that it is

problematic that the guidance states that selfreporting may be credible by itself. He asserts

that other documents, such as reports by psychiatrists, psychologists, or other mental health

professionals, may be needed to establish the

presence of a mental disorder." Both the American Medical Association's (AMA) Guides and the

Social Security Administration (SSA) regulationsn emphasize the necessity for the contributions of mental health professionals in addition

to self-reporting and family members' reports:

The SSA's evaluation system and most other systems

require the existence of an impairment that is established and documented by medical evidence relating

to signs, symptoms, and results of laboratory tests

including psychological tests. In general, the diagnosis of a mental disorder should be justified by history,

signs, and symptoms and a diagnosis according to

DSIIIR should be given. If there is 'an uncertainty

about the exact diagnosis, a differential diagnosis

should be discussed.72

69 EEOC; "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 6 [ADA Manual, 70:1282]. One court has

held that the disclosure of a disability by a family member is

not enough to establish a request for accommodation. In

Miller u. National Casualty Co., the court held that although

an employee's sister told a supervisor's secretary that her

sister was "mentally falling apart," this did not amount to a

request for reasonable accommodation when the employee

herself had never revealed her impairment or requested an

accommodation until after she was fired. 61 F.3d 627, 630

(8th Cir. 1995).

70 Price, "Psychiatric Disabilities and the EEOC's New Enforcement Guidance Under the Americans with Disabilities

Act," pp. 19-20.

71 See 20 C.F.R. § 404.1513 (1997).

72 Price, "Psychiatric Disabilities and the EEOC's New Enforcement Guidance Under the Americans with Disabilities

Act," pp. 19-20.

The guidance states that common personality

traits, such as poor judgment, irritability, or

chronic lateness, without more, would not be

evidence of a mental impairment." However, the

guidance notes that if a common personality

trait can be linked to a mental impairment,

EEOC might consider the trait a symptom of a

mental illness.74 This statement appears to conflict with the position that self-reporting and the

observations of family and friends will suffice to

establish the presence of a mental disorder, since

such observations would have little credibility in

establishing the link between a common trait

and a mental illness without the diagnosis of a

mental health professional. In a previous guidance, "Definition of the Term 'Disability'," EEOC

states that medical documentation "is a good

starting point for determining the extent to

which a physical or mental impairment limits

any of the charging party's major life activities."'" This would seem to be even more relevant for psychiatric disabilities, yet, the guidance on psychiatric disabilities does not refer to

this point.

EEOC's discussion on showing substantial

limitation for a psychiatric disability is weak

because it is vague. The only language in the

guidance on this point is "[c]redible testimony

from the individual with a disability and his/her

family members may suffice."76 The guidance

might provide examples of what kind of evidence

establishes "credible testimony." Since the guidance states that the individuallfamily's testimony "may suffice" in establishing that an impairment is substantially limiting, what other

evidence might be important? The guidance is

unclear on these points.

Reasonable Accommodation

EEOC's guidance discusses reasonable accommodation as it applies to people with psychiatric disabilities.77 EEOC's Associate Legal

Counsel stated with respect to the discussion:

73 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," pp. 4-5 [ADA Manual, 70:1282].

74 Ibid.

75 EEOC, "Definition of the Term 'Disability'," § 902.4(c)(1)

[ADA Manual 70:1142].

76 EEOC, "Enforcement Guidance for ADA and Psychiatric

Disabilities," p. 6 [ADA Manual, 70:1282].

77 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 19-29 [ADA Manual, 70:1287-1290].

126

140
"We wanted to answer everybody's questions... .

To quite a degree, the guidance liberates people to

ask for accommodations, which [is] certainly an

important thing."78 To this end, the guidance's

discussion on reasonable accommodation addresses several key issues.

The first issue the guidance addresses is:

what constitutes a request for reasonable accommodation? The guidance explains that an

individual or his/her representative must let the

employer know that the individual needs "an

adjustment or change at work for a reason related to a medical condition."79 The individual

does not need to put the request in writing, nor does the employee need to use the words

"accommodation" or "disability." An employee's

family member\ may make the request on the

employee's behalf.89

The guidance effectively explains the application of reasonable accommodation to people with

psychiatric disabilities, particularly by using

specific examples to illustrate its points.81 These

examples provide helpful insights into how the

theory of reasonable accommodation might apply

to a person with a mental disability. The guidance provides an example to address the question of whether an employee needs to present

documentation when requesting a reasonable

accommodation. In the example, an employee

tells his supervisor that he is "stressed and depressed" and needs some time off. In this case,

because the employee's request for accommodation is not based on an obvious need, the employer may request reasonable documentation.82

This might consist of asking the employee to

sign a limited release allowing the employer to

submit a list of questions to the employee's

health care professional.83 Another example the

guidance offers is the case of an individual who

78 Lois C. Rose, "Commission Counsel Calls EEOC Guidance

on Psychiatric Disabilities 'Enlightened' Start," BNA's Daily

Labor Report, Mar. 11, 1998, p. C-1 (hereafter cited as Rose,

"Commission Counsel").

79 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 19-20 [ADA Manual, 70:1287].

89 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 19-21 [ADA Manual, 70:1287].

81 See EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 19-29 [ADA Manual, 70:1287-1290].

82 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 22-23 [ADA Manual, 70:1288].

83 Ibid.

needs to drink beverages approximately once an

hour to combat the dry mouth caused by his psychiatric medication. This person must request

reasonable accommodation for a change in

workplace policy so that drinking beverages is

allowed at workstations.

The guidance also discusses selected types of

reasonable accommodation for employees with

psychiatric disabilities.84 Among the accommodations noted are modified work schedules,

physical changes to the workplace, modification

of workplace policy, adjusting supervisory methods, employing a job coach, and, in certain,

cases, reassignment. However, it is not a reasonable accommodation to ensure that an employee

takes his or her medication.85 Employers have no

obligation to monitor medication, because this is

not a barrier unique to the workplace; it is related to the employee's life outside the workplace

as well.

The reaction to the discussion and analysis of

reasonable accommodation has been mixed. The

National Federation of Independent Business

(NFIB) in Washington, D.C., a lobbying organization representing small and independent

businesses, has criticized the guidance.86 One

official of NFIB stated that she thought that the

guidance was not comprehensive enough on the

reasonable accommodation issue;87 for instance,

the guidance did not provide examples of accommodations for specific psychiatric disorders

such as schizophrenia, which is harder to accommodate than a physical disorder.88

The list of potential reasonable accommodations in the EEOC guidance has been another

source of controversy. This controversy is illustrated by a hypothetical scenario derisively sug84 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 23-28 [ADA Manual, 70:1288-1290].

85 See also Christopher G. Bell, "The Americans with Disabilities Act, Mental Disabilities, and Work," in Mental Disorder, Work Disability, and the Law, eds. Richard J. Bonnie

and John Monahan, eds. (Chicago, IL: University of Chicago

Press, 1997), pp. 211-17 (hereafter cited as Bonnie and

Monahan, Mental Disorder, Work Disability, and the Law).

86 Mary Reed, Manager, Legislative Affairs (House Spokesperson), National Federation of Independent Business, telephone interview, Jan. 14, 1998, p. 2 (hereafter cited as Reed

interview) (stating that NFIB influences the development

and content of public policy affecting small and independent

businesses).

67 Ibid.

89 Ibid.

127

[41

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gested by two critics.89 In the scenario, an employee suffering from an anxiety disorder says

that his mind wanders frequently and that he is

often distracted by irrelevant thoughts. As a result, he continually makes errors on detailed or

complex tasks. His doctor says that the errors

are caused by his anxiety disorder and may last

indefinitely.

According to EEOC's policy guidance, this individual would have a disability within the

meaning of the ADA because he has an impairment, an anxiety disorder, that substantially limits him in the major life activity of concentrating.

The employer would be obligated to provide reasonable accommodation for this employee. According to the two critics, such accommodation

could include providing "a temporary job coach to

assist in training this otherwise qualified person

with a disability to perform the essential functions of his/her job!"99 These critics note: "This is

only one example of how counterintuitive the 36-

page guidance at times appears to be. "91

These critics are correct in stating that the

guidance considers anxiety disorders as potential disabilities, that the guidance includes

"concentrating" as a major life activity, and that

it states that the provision of a temporary job

coach is a possible reasonable accommodation.

However, they neglect to mention that the guidance does not require a temporary job coach or

any reasonable accommodation where such accommodation would create an undue hardship

on the employer.92 In addition, any accommodation, including a temporary job coach, must allow the employee to meet the essential functions

of the job, or the employee can no longer be considered qualified.

The guidance states that employers are not

required to eliminate essential job functions to

accommodate an employee with a mental disability.93 The guidance illustrates this point with

89 Quinn Wood and L.C. Crapo, "The World According to the

EEOC: Psychiatric Disabilities and the ADA," Utah Employment Law Letter, vol. 2, no. 12 (June 1997).

99 Ibid.

91 Ibid.

92 See 42 U.S.C. § 12112(b)(5)(A) (1994); 29 C.F.R. §

1630.15(d) (1997); EEOC, "Enforcement Guidance on the ADA

and Psychiatric Disabilities," p. 27.

93 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 26-27, n. 62 [ADA Manual, 70:1289] (citing

Bolstein v. Reich, 1995 U.S. Dist. LEXIS 731 (D.D.C.), affd,

the court case of a senior level attorney who suffered from chronic depression and severe personality disturbance and who requested less

complex assignments, more supervision, and an

exemption from doing appellate work.94 The

court found that he was not a qualified individual because these were the essential duties of his

senior level position.95

However, the guidance does not answer important questions relating to reasonable accommodation. One EEOC official has predicted some

"second-stage" issues that the agency might begin to address in future guidance.98 For example,

the guidance does not address the issue of documentation to show the medical need for an accommodation, specifically how much information

the employer is entitled to get under the ADA,

and from whose doctor the information can

come, the employer's or the employee's doctor. A

second issue that the guidance does not discuss

is the reasonable accommodation process. For

example, in the interactive process that courts

require to reach a reasonable accommodation,

does the employer or the employee have to suggest a potential accommodation? Another question on this issue is, in cases where reassignment might be appropriate, is it the employer's

responsibility to identify possible job vacancies?

Another issue not discussed in the guidance is

whether there is a continuing requirement for

reasonable accommodation if one or more accommodations are attempted and prove unsuccessful. Finally, with respect to undile hardship,

are there any ways to clarify its scope? For example, if a high level employee with a psychiatric disability needs a long term leave of absence,

at what point does his or her absence amount to

an undue hardship on the company?

Other commentary on ways to improve the

guidance's treatment of the reasonable accommodation issue comes from the NFIB, which recommends that the statutory definitions for

"undue hardship," "disability," and "readily

1995 U.S. App. LEXIS 32536 (D.C. Cir. 1995) (attorney with

chronic depression and severe personality disturbance was not

a qualified individual with a disability because his requested

accommodations of more supervision, less complex assignments, and the exclusion of appellate work would free him of

the very duties that justified his current level)).

94 Ibid.

95 Bolstein, 1995 U.S. Dist. LEXIS 731, at *10*12.

96 See Rose, "Com1mission Counsel," p. C-2.

128

142
achievable" be more specific.97 The NFIB representative did not believe that this was EEOC's

fault but rather the vagueness and ambiguity of

the law itself.98

Conduct

The guidance states that any employee can be

sanctioned for misconduct, regardless of disability status, as long as the conduct standard violated is applied uniformly to employees with and

without disabilities, is job related, and is consistent with business necessity.99 The information

provided in this section of the guidance focuses

on these requirements, emphasizing the importance of these concepts in analyzing the validity

of ADA claims to protect individual rights and

maintain fundamental fairness in the workplace.

To demonstrate the important distinction between conduct standards that are business related and those that are not, the guidance offers

three examples.'°° In the first, an employee

steals money from a cash register but claims his

action was related to a mental disability. The

employer may discipline the employee because

the conduct standard, a prohibition against

theft, is applied uniformly, job related, and consistent with business necessity.

In the second example, an employee with a

disability tampers with and disables medical

equipment. The guidance states that even if the

action was a result of the employee's disability,

the employer may impose disciplinary actions

that are consistent with its disciplinary policies

because the employee violated a standard of

conduct. However, if the employer has not disciplined other, nondisabled employees for the

same misconduct, the employer would violate

the ADA if it disciplined the employee with a

disability.ioi

In the third example, an employee in a warehouse who works loading boxes onto pallets for

97 Reed interview. This is a position that NFIB took when

the law was being drafted. Ibid.

98 Ibid.

99 EEOC, "Enforcement Guidance on the ADA and Psychiatric

Disabilities," pp. 29-30 [ADA Manual, 70:1290] (citing 42

U.S.C. § 12112(b)(6) (1994); 29 C.F.R. §§ 1630.10, 1630.15(b)

(c) (1997)).

100 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 29-30 [ADA Manual, 70:1290].

101 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 30 [ADA Manual, 70:1290].

shipment has been appearing at work disheveled

and unkempt as a result of his psychiatric disability. His work performance is good, but he is

violating the neat appearance code and is rude

and abrupt with coworkers. The guidance reasons

that because this employee's work does not involve customer contact and requires very little

contact with other workers, the appearance and

courtesy rules are not job related or consistent

with business necessity. Thus, rigid application of

the neat appearance and courteous conduct standards to this employee would violate the ADA.102

Two commentators argue that "this is a bizarre

interpretation of the ADA that runs counter to

common sense as well as virtually every reported

court decision on the subject."103 These commentators state that, similar to workplace bans on

violence or threats of violence, standards of courtesy always are essential to the efficient running

of a business and therefore always are job related

and consistent with business necessity.'°4 Moreover, even if this employee has little contact with

coworkers, if he is abrupt and rude when he is

interacting with a coworker, this could lead to

physical altercations.'°5 Also, if another employee

who suffers from an anxiety disorder complains

that she experiences stress every time she has

contact with the rude employee, a question exists

as to which employee with a disability should be

given preference.108 As the commentators state,

the EEOC guidance "assumesquite unrealisticallythat mental disabilities can be addressed in

a vacuum. "107 EEOC's Associate Legal Counsel

responded to this point, noting: "There is no basis

for equating a courtesy standardespecially in a

job requiring minimal social contactwith a

workplace ban on violence or threats of violence."108

The guidance's discussion on conduct next

addresses the issue of whether an employer

must provide reasonable accommodation to an

employee who previously has violated conduct

192 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 29-30 [ADA Manual, 70:1290].

103 McDonald and Rosman, "EEOC Guidance on Psychiatric

Disabilities," pp. 15-16.

104 Ibid., p. 16.

105 Ibid.

196 Ibid.

107 Ibid.

199 See EEOC Comments, p. 13.

129

143
standards that are job related and consistent

with business necessity.199 The guidance states

that an employer must make reasonable accommodation for such an employee, barring undue

hardship,11° and illustrates this point with several examples. In one, a reference librarian loses

her temper and engages in outbursts, including

shouting at library patrons. After the second incident, she is disciplined with a suspension, at

which time she discloses her disability to her

supervisor and requests reasonable accommodation in the form of a leave of absence so that she

can seek treatment. Under the ADA, her employer must grant her this accommodation, barring undue hardship.in

After the EEOC guidance was released, one

management attorney expressed concern that

the ADA would force employers to perform a

very difficult "balancing act" in certain situations with their employees.112 For example, if an

employee engages in unacceptable behavior and

his employer takes disciplinary action, the ADA

would not be implicated.113 However, if the employer intrudes any further by questioning

whether there is a psychiatric condition underlying the employee's behavior, the employer may

now have a problem.'" The employee potentially

could argue that he was perceived or "regarded

as" being disabled and is covered under the

ADA.115 This attorney has cautioned that

"employers enter a minefield if they initiate discussions about whether an employee has a psychological condition."116

This situation arose in the case of Holihan u.

Lucky Stores.117 In this case, a store manager,

whose employees repeatedly complained about

his abusive behavior, claimed that he was fired

unlawfully because his supervisor regarded him

109 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 30-32 [ADA Manual, 70:1291].

Ho Ibid.

in Ibid.

112 James P. Fitzpatrick, "Psychological Disabilities in Workplace Present Many Tough Questions Under ADA," BNA's

Employment Discrimination Report, p. 195 (Aug. 6, 1997).

113 Ibid.

114 Ibid.

"5 Ibid.

116 Ibid.

"7 87 F.3d 362 (9th Cir. 1996), cert. denied, 117 S. Ct. 1349

(1997).

0;.

as having a mental disability. The store manager

believed that his supervisor regarded him as

disabled because the supervisor asked if he could

discuss the store manager's "aberrational behavior," asked him if he was having problems,

and asked him to seek counseling. The Ninth

Circuit decided that the store manager was entitled to a trial on his ADA claim because it found

that a "reasonable jury" could infer that the employer regarded the manager as having a mental

disability.118

Despite these concerns, EEOC's guidance is

clear in stating that an employer is only responsible for accommodating the known disabilities

of its employees.119 This means that an employee

must ask for reasonable accommodation before

performance suffers or conduct problems occur.129 If an employee who has not requested

reasonable accommodation engages in abusive,

threatening, or some other form of unacceptable

behavior and the sanction his employer chooses

is to fire him, the employee does not have a

cause of action.

The ADA and EEOC title I regulations also

are very clear in stating that the employer may

impose the same discipline on a person with a

disability as one without, as long as the disciplinary action taken is job related and consistent

with business necessity.121 In the case of violence

or threats of violence, the EEOC guidance notes,

"nothing in the ADA prevents an employer from

maintaining a workplace free of violence or

threats of violence."122 Several courts have found

that maintaining an acceptable standard of conduct generally is recognized as an essential function of any job.123 Any individual engaging in

abusive, violent, or threatening behavior, re-

"8 Id. at 366.

"9 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 19 n 45 [ADA Manual, 70:1287] (citing 42

U.S.C. §§ 12111(9), 12112(b)(5)(A) (1994); 29 C.F.R. § 1630.9

(1997); 29 C.F.R. pt. 1630 app. § 1630.9 (1997)).

119 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 21-22 [ADA Manual, 70:1288].

129 Ibid.

121 42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R. §§ 1630.10,

1630.15(c) (1997).

122 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 29-30 [ADA Manual, 70:1290].

123 Mancini v. General Electric Co., 820 F. Supp. 141, 147-

48 (D. Vt. 1993) (finding that insubordinate employee could

not perform essential function of following direction).

130

144
gardless of whether such an individual claims a

psychiatric disability, may therefore be considered no longer capable of performing an essential function of the job and thus no longer

"otherwise qualified," if a reasonable accommodation does not exist.124

A recent case in the Fifth Circuit provides an

excellent example of how EEOC's guidance is

being adopted by the courts and how the conduct

issues discussed in the guidance play themselves

out in the real world every day in the workplace.

In Hamilton v. Southwestern Bell Telephone

Company,125 the Fifth Circuit was presented

with the case of a telephone company employee

who was fired for verbally abusing and striking a

female coworker. The Fifth Circuit held that,

despite his contention that he suffered from

post-traumatic stress disorder (PTSD), he had no

claim under the ADA.126

The Hamilton court held that the plaintiff did

not even have a disability within the meaning of

the ADA and therefore his claim failed because

he could not meet this threshold requirement.

However, the court found that even if he did

have a disability under the ADA, his claim

would have failed because "[a]lthough Hamilton

argues that the incident was caused by PTSD,

we are persuaded that the ADA does not insulate emotional or violent outbursts blamed on an

impairment."127 Moreover, the court stated,

124 Palmer v. Circuit Court of Cook County, 117 F.3d 351

(7th Cir. 1997), cert. denied, 118 S. Ct. 893 (1998) (stating

that the ADA only protects qualified employees and abusive,

threatening employees are disqualified); Carozza v. Howard

County, Md., 1995 U.S. App. LEXIS 387(4th Cir. 1995)

(employee who engaged in insubordinate behavior such as

insulting her supervisor and using obscenities was not able

to perform the essential functions of her job); Misek-Falkoff

v. IBM Corp., 854 F. Supp. 215, 227 (S.D.N.Y. 1994), aff'd.

60 F.3d 811 (2nd Cir. 1995) (stating that employers should

be able to require their employees to not cause or contribute

to disruptions or hostility in the workplace); Mazzaralla v.

U.S. Postal Service, 849 F. Supp. 89, 94 (D. Mass. 1994) ("To

qualify for employment of any nature, the employee must

have the ability to refrain from willfully destroying his employer's property."); Adams v. Alderson, 723 F. Supp. 1531

(D.D.C. 1989), aff'd sub. nom. Adams v. G.S.A., 1990 U.S.

App. LEXIS 25878 (D.C. Cir. 1990)("One who is unable to

refrain from doing physical violence to the person of a supervisor, no matter how unfair he believes the supervision

to be or how provocative its manner, is simply not otherwise

qualified for employment.").

125 See 136 F.3d 1047 (5th Cir. 1998).

126 Id. at 1052.

127 Id.

Hamilton's discharge was "not discrimination

based on PTSD but was rather his failure to recognize the acceptable limits of behavior in a

workplace environment."128

These are the precise kinds of employee conduct issues EEOC analyzes in its guidance.

EEOC and the Fifth Circuit agree that the ADA

does not protect violent or threatening behavior

in the workplace and that if immediate dismissal

is the sanction, as long as it is uniformly applied,

the ADA will not interfere with the employer's

discretion. As EEOC states in its guidance:

nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or

destroys property. Thus, an employer may discipline

an employee with a disability for engaging in such

misconduct if it would impose the same discipline on

an employee without disability.129

The only caveat EEOC adds to this rule is

that if the sanction is not job related and consistent with business necessity, "imposing discipline under them could violate the ADA."130 It

would be rare, if not never, that some form of

sanction for violent behavior in the workplace

would be considered inconsistent with business

necessity and not job related. Therefore, a policy

of firing those who engage in violent behavior is

not a violation of the act as long as it is implemented uniformly, against both individuals with

disabilities and those without. The guidance

does not make clear, however, whether, if an

employee who has engaged in violent behavior

related to his disability has put the employer on

notice as to his disability, the employer might

also have to conduct a direct threat analysis to

ensure that the employee is no longer a

"qualified individual with a disability."

In a recent book one author has suggested

that under the ADA as it has been implemented

by EEOC "an irrational urge to destroy the

property of one's employer is legally protected

under the ADA unless one insists on inflicting

the damage by fire, which would bring it under

1281d.

129 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 29 [citation omitted].

139 Ibid.

131

145
the named exception."131 This author is accurate

in stating that pyromania is not a covered disability under the ADA. Otherwise, his hypothetical gives wrong information. .EEOC explicitly

states in its psychiatric guidance that an employer does not have to accommodate behavior in

violation of standard conduct rules.132

EEOC states that the only analysis required

in situations involving employees who have become violent or destructive is whether the rule

that has been broken is job related, consistent

with business necessity, and uniformly applied.

Since destruction of a supervisor's property is

never consistent with business necessity, this

employee can be fired regardless of what psychiatric disability he claims to have.

EEOC's former Chairman, Gilbert F. Casellas, reiterated these same facts about the psychiatric disabilities guidance and employee conduct in a letter to the editor of the Atlanta Journal and Constitution.133 Responding to an editorial, Casellas stated that it "seriously misrepresents both the law and the guidance," merely

contributing "to the unfounded beliefs that employers have about their obligations under the

131 Walter K. Olson, The Excuse Factory (NY: Free Press,

1997), pp. 126-27.

132 See generally EEOC, "Enforcement Guidance on the ADA

and Psychiatric Disabilities," pp. 29-32. The guidance asks

the hypothetical question: May an employer discipline an

individual with a disability for violating a workplace conduct

standard if the misconduct resulted from a disability? The

answer provided is: Yes, provided that the workplace conduct standard is job-related and consistent with business

necessity. [citation omitted] For example, nothing in the

ADA prevents an employer from maintaining a workplace

free of violence or threats of violence, or from disciplining an

employee who steals or destroys property. [citation omitted]

Ibid., p. 29. Elsewhere the guidance provides a hypothetical

fact pattern to illustrate the point further: "An employee has

a hostile altercation with his supervisor and threatens the

supervisor with physical harm. The employer immediately

terminates the individual's employment, consistent with its

policy of immediately terminating the employment of anyone who threatens a supervisor. . . . The employer also is not

required to offer reasonable accommodation for the future

because this individual is no longer a qualified individual

with a disability. His employment was terminated under a

uniformly applied conduct standard that is job-related for

the position in question and consistent with business necessity." Ibid., p. 32 [citation omitted].

133 See Gilbert F. Casellas, Chairman, EEOC, Letter to the

Editor, Atlanta Journal and Constitution, Atlanta, Ga, re:

EEOC's Enforcement Guidance on Psychiatric Disabilities,

May 2, 1997, reprinted in 11 Nat'l. Disability L. Rev. (LRP)

172.

ADA."134 Casellas observed that the editorial

erroneously states that EEOC's guidance requires employers to tolerate poor judgment,

chronic lateness, and hostility toward coworkers.135 The editorial failed to note that the guidance, in fact, states that such traits are not in

and of themselves impairments, so people who

exhibit these traits are not necessarily individuals with disabilities protected by the ADA.136

Moreover, even when such traits are linked to a

mental illness, employers do not have an unqualified obligation to excuse them, because, according to the guidance, "an employer may discipline an employee with a psychiatric disability

for violating conduct standards that are related

to the employee's position and necessary for the

employer's business, so long as the employer disciplines all employees who violate the rule in the

same way." 137

Direct Threat

The guidance's discussion on direct threat,

like its previous discussions on other issues, derives from the ADA itself, EEOC's title I's regulations, or EEOC's interpretive guidance accompanying its title I regulations. The discussion

cites EEOC interpretive guidance in stating that

employers must apply the "direct threat" standard uniformly and may not use safety concerns

to exclude employees with disabilities when persons without disabilities would not be excluded

or removed under similar circumstances.138 The

discussion also reiterates the regulatory requirement that a "direct threat" must be "a significant risk of substantial harm to the health or

safety of the individual or others that cannot be

reduced or eliminated by reasonable accommodation."139 Further, with respect to psychiatric

disabilities, the employer must identify the specific behavior that would pose a direct threat.140

An individual does not pose a direct threat sim134 Ibid., p. 766.

135 Ibid.

136 Ibid.

137 Ibid.

138 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 33 [ADA Manual, 70:1291] (citing 29 C.F.R.

pt. 1630 app. § 1630.2( r) (1997)).

139 Ibid.

149 Ibid.

132

145
ply by having a history of or being treated for a

psychiatric disability. 141.

The guidance's discussion on direct threat addresses three issues. First, does an individual

pose a direct threat in operating machinery solely

because he or she takes medication that diminishes concentration or coordination as a side effect? The guidance answers no. It explains that

whether such an individual poses a direct threat

must be "determined on a case-by-case basis,

based on a reasonable medical judgment relying

on the most current medical knowledge and/or on

the best available objective evidence."142

The second issue addressed in the section on

direct threat is whether an employer can refuse

to hire someone based on a history of violence or

threats of violence.143 The guidance explains that

an employer may refuse to hire the individual if

he or she would pose a direct threat. The employer must make this determination based on

"an individualized assessment of the individual's

present ability to safely perform the functions of

the job."144 In addition, the employer must identify the specific behavior of the individual with a

psychiatric disability that would cause a direct

threat. This includes "an assessment of the likelihood and imminence of future violence."146

Finally, the guidance addresses the question

of whether an individual who has attempted suicide would pose a direct threat when he or she

seeks to return to work. The guidance cites an

example in which an employer fired an employee

who had attempted suicide twice within a matter

of weeks but who subsequently had returned to

work and was performing his duties safely without reasonable accommodation.146 The employer

reviewed the doctor's and therapist's reports,

which stated that the employee could perform all

of his job functions safely. Nonetheless, the em141 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," p. 33 [ADA Manual, 70:1291]. 142 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 34 [ADA Manual, 70:1292]. It is somewhat contradictory for the guidance to require medical evidence to show the presence of a direct threat while stating

that interviews with family and friends "may suffice" to

provide credible evidence of disability. 143 EEOC, "Enforcement Guidance on the ADA and Psychiatric Disabilities," pp. 34-35 [ADA Manual, 70:1292]. 144 Ibid. 145 Ibid.

ployer fired the employee without providing any

contradictory medical or factual evidence to support this decision. The guidance states that

"[w]ithout more evidence, this employer cannot

support its determination that this individual

poses a direct threat."147

Other Issues

Overall, the guidance provides a thorough

and insightful discussion on the ADA and psychiatric disabilities. Unfortunately, the guidance

has engendered strong feelings about the ADA

and a questioning of just whose rights the law

was designed to protect. One concern is that the

guidance addresses mental impairments in a

comprehensive way, but has never done so with

severely limiting disabilities such as paraplegia.

Another concern is that many people who suffer

from no disability will be able to pretend that

they have one, and psychiatric disorders and

other "hidden disabilities" lend themselves far

better to pretense than do obvious physical disabilities. Although plaintiffs in meritless cases

are, for the most part, not prevailing, the publicity attached to these cases has been significant. EEOC cannot prevent attorneys from

bringing such cases under the ADA, which they

undoubtedly will continue to do.

With this particular policy guidance, EEOC

appears to have exacerbated concerns that the

statute's protections are being accorded to individuals whose rights to equal employment opportunity Congress did not intend of the ADA to

protect. EEOC has sought, through a number of

mechanisms, to ensure that the protections of

the statute are accorded only to individuals with

disabilities. However, as this guidance demonstrates, clearly defining the meaning of

"disability" has proven an elusive goal.

Among the most important of the mechanisms EEOC relies on to enforce the law are the

standards and criteria it has set forth in it

regulatory and enforcement guidance for defining the meaning of "disability." These standards,

which must be met before someone can claim a

disability under the ADA, include an examination of the severity and potential for permanence

of a given impairment to determine whether it is

"substantially limiting on a major life activ146 Ibid. 147 Ibid.

133

1 4 7
ity."148 This language may seem comprised

largely of terms of art, but it has very important

real world implications. EEOC investigators and

attorneys begin their work on ADA cases by determining whether the alleged "disability" is

within the ambit of the ADA.

However, with this guidance, EEOC's interpretation of such key terms as "major life activity" and the significance it has attached to particular conditions such as personality disorders

appear to be raising new concerns about how

disability should be defined. In particular, the

guidance suggests that disability is related not

just to limitations created by physical or mental

conditions but that behaviors and actions can be

signs of disability as well.

Employer-provided Health Insurance, Disability, and Service Retirement Plan Coverage

In 1993 an EEOC official noted that of all

ADA questions the agency receives, "far and

away" the most requests had dealt with health

insurance.149 Part of the reason for the controversy relating to title I and insurance coverage is

the conflicting goals of the statute as compared

to the business needs of employers who provide

insurance coverage. Thus, the applicability of

title I of the ADA to employer-provided health

insurance, disability, and service retirement

plan coverage is affected by two very important

but somewhat incompatible goals: the elimination of discrimination based on disability and the

preservation of affordable employee health insurance plans.150 To accomplish the first goal,

Congress enacted the ADA to prohibit discrimination based on disability, a prohibition extended to employer-provided health insurance. To

accomplish the second goal, insurers routinely

differentiate between, and offer disparate levels

of coverage for, particular health conditions as a

means of keeping costs down.151 Attempting to

148 See 29 C.F.R. § 1630.2(j) (1997); EEOC, "Definition of the

Term 'Disability'," § 902.4(a)(1)(2).

149 See First Anniversary of ADA's Job Provisions Brings

Mix of Optimism, Workplace Concerns, 1993 Daily Labor

Report (BNA) No. 141 at C-3 (July 26, 1993) (citing Naomi

Levin, EEOC Senior Attorney Advisor).

150 See 42 U.S.C. § 12201(c) (1994).

151 See H. Miriam Farber, "Note, Subterfuge: Do Coverage

Limitations and Exclusions in Employer-Provided Health

balance these interests, Congress created within

the ADA a statutory exemption for certain distinctions in employer-provided benefit plans.152

In June 1993, EEOC issued interim guidance

limited to an analysis of disability-based distinctions in employer-providedhealth insurance.153 In

May 1995, the agency issued a brief policy statement that addressed disability retirement and

service retirement plans as they relate to title I of

the ADA.154 More recently, EEOC has reiterated

its positions on both health insurance and disability and service retirement plan coverage in its

litigation and informal advisory letters.155 However, EEOC's position on disability-based distinctions in the context of health insurance differs

markedly, particularly with regard to mental disabilities, from its position on the same distinctions

in long term disability insurance.156

Care Plans Violate the Americans with Disabilities Act?"

New York University Law Review, vol. 69

(October/November 1994), pp. 850, 851-52. (hereafter cited

as Farber, "Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the ADA?").

152 42 U.S.C. § 12201(c) (1994).

153 EEOC, "Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-based Distinctions in Employer Provided Health

Insurance" (EEOC Notice 915.002), June 8, 1993, p. 1 (hereafter cited as EEOC, "Interim Enforcement Guidance

on the Application of the ADA to Disability-based Distinctions in Employer Provided Health Insurance").

154 In May 1995, EEOC issued a brief guidance memorandum to EEOC field offices entitled "Questions and Answers

About Disability and Service Retirement Plans Under ADA."

In this memorandum, EEOC states that, generally, failure

to offer a disability retirement plan or offering a disability

retirement plan that provides lower levels of benefits than

the employer's service retirement plan are not violations of

the ADA. However, plans that offer different benefits for

individuals with disabilities than for other employees would

violate the ADA. For example, if an individual with a disability is eligible for both service retirement plan and a disability retirement plan but is required to take the less advantageous disability retirement plan, the employer would

be in violation of the ADA. EEOC, "Questions and Answers

About Disability and Service Retirement Plans Under the

ADA," May 11, 1995, pp. 2-3 (hereafter cited as EEOC,

"Questions and Answers About Retirement").

155 See, e.g., EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir.

1996); Peggy Mastroianni, Associate Legal Counsel, EEOC,

letter to David M. Ellis, Esq., Clark, West, Keller, Butler, &

Ellis, L.L.P., Dallas TX, re: limitations on medical insurance

coverage for a particular employee's hemophiliac dependents, Apr. 10, 1997 reprinted in 11 Nat'l. Disability Law

Review ¶ 327 (hereafter cited as Mastroianni letter).

156 See discussion below on EEOC's litigation and amicus

positions in cases relating to long term disability insurance.

134

148
Disability rights advocates, employers, various commentators, and the courts have criticized

the ADA's statutory provision on health insurance coverage and the EEOC policy guidance

based on it. Among the criticisms are that the

provision is too vague and ambiguous.157 At least

one critic says the guidance's discussion of disability-based distinctions relating to mental and

physical illnesses is contrary to the plain language of the statute.158 Another aspect of the

guidance that has been criticized as both unclear

and inconsistent with the ADA is the discussion

on the role of actuarial data.159

In addition, soon after EEOC issued the

guidance on health insurance, employers' groups

expressed fears that its provisions were unclear

and thus would be difficult to follow. Upon

EEOC's release of the interim enforcement guidance, employers began expressing concerns that

its requirements placed too great a burden on

businesses. One national advocacy organization

for small businesses stated that the guidance

was "premature" and that small employers

would have difficulty trying to follow its provisions.160 More recently, another nationwide asso157 Farber, "Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the ADA?" p.

863. See also Gwen Thayer Handelman, Health Benefit

Plans and the Americans with Disabilities Act (Horesham,

PA: LRP Publications, 1993), p. 21; Christopher Aaron

Jones, "Legislative 'Subterfuge'?: Failing to Insure Persons

with Mental Illness Under the Mental Health Parity Act and

the Americans with Disabilities Act," Vanderbilt Law Review, vol. 50 (April 1997), pp. 775-81. 158 See Mary T. Giliberti, "The Application of the ADA to Distinctions Based on Mental Disability in Employer-Provided

Health and Long-term Disability Insurance Plans," Mental

and Physical Disability L. Reporter, vol. 18, no. 5 (Sept.-Oct.

1994), p. 603. See generally Mary T. Giliberti, Staff Attorney,

Bazelon Center for Mental Health Law, letter to the EEOC,

re: the Interim Enforcement Guidance on the application of

the Americans with Disabilities Act of 1990 to disability-based

distinctions in employer provided health insurance, Jan. 28,

1994 (hereafter cited as Giliberti letter). 153 See John Lancaster, Executive Director, President's

Committee on Employment of People with Disabilities, interview in Washington, DC, Oct. 14, 1997, p. 3 (hereafter

cited as Lancaster interview). 160 See First Anniversary of ADA's Job Provisions Brings

Mix of Optimism, Workplace Concerns, 1993 Daily Labor

Report (BNA), No. 141, p. C-3 (July 26, 1993) (citing Caroline Stinebower, legislative representative for the National

Federation of Independent Business). See also Kathlynn L.

Butler, "Securing Employee Health Benefits Through

ERISA and the ADA," Emory Law Journal vol. 42 (Fall

1993), pp. 1197, 1238, n. 254 ("Another concern that has

BEST COPY AVAILABLE

ciation of employers has stated that "EEOC's

major policy challenge is to avoid expanding the

ADA beyond its statutory parameters . . . Title I

of the ADA . . . quite properly does not affect the

internal provisions of employee benefit plans,

such as benefit levels, nor does it mandate such

benefits."161 According to a study by the Employee Benefits Research Institute (EBRI), these

opinions are shared by many employers. Based

on data from the March 1997 Current Population Survey, the study identifies increases in insurance costs and government regulation of employer-provided benefits as the top concerns of

employers in the United States.162 EEOC's Associate Legal Counsel stated with regard to these

statistics: "the same arguments were made when

Congress was considering enacting the Pregnancy Discrimination Act which required coverage of pregnancy in employer provided healthinsurance plans. A similar reaction occurred

when the EEOC and the courts took the position

that retirement plans that provide lower periodic

payments to women than to men (based on

women's greater longevity) violate Title WI. Neither health insurance plans nor retirement plans

were made unaffordable by these changes, as

had been predicted."163

June 1993 Interim Enforcement Guidance

In 1993, EEOC published interim guidance

on disability-based distinctions in employerprovided health insurance to assist its investigators in processing allegations of disability discrimination relating to health insurance coverage. This enforcement guidance emphasized that

been expressed about the EEOC Guidelines is that the

EEOC has given an enormously complicated set of legal

obligations to businesses.") (citing "Insuring the Disabled,"

Sacramento Bee, June 21, 1993, at B14). 161 Ann Elizabeth Reesman, General Counsel, Equal Employment Advisory Council, letter to Frederick D. Isler,

OCRE, USCCR, Mar. 2, 1998, p. 4. 162 Employee Benefits Research Institute, Press Release,

"EBRI Releases Latest Health Insurance Stats: Employment-Based Health Insurance Rises for Third Consecutive

Year," Nov. 7, 1997, http://www.ebri.org/prrel/pr399.htm.

"EBRI is a private, nonprofit, nonpartisan public policy research organization based in Washington, DC. Founded in

1978, its mission is to contribute to, to encourage, and to

enhance the development of sound employee benefit programs and sound public policy through objective research

and education." Ibid. 163 See EEOC Comments, p. 14.

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149
employees with disabilities must have access to

the same health insurance provided to other

employees and that an employer may not make

employment decisions based on concerns about

the effect a person with a disability might have

on the employer's health plan.164 The guidance

lists relevant legislation, outlines the legal

framework investigators should use to analyze

charges relating to disability-based distinctions

in health insurance, provides examples of disability-based distinctions, and explains the burden of proof employers and/or insurers must

meet to defend challenged health insurance

terms or provisions.'65

Statutory and Regulatory Authority

The interim enforcement guidance provides

the statutory and regulatory bases for ADA applicability to health insurance plans.166 Title I of

the ADA prohibits an employer from discriminating against a qualified individual with a disability in all aspects of employment,167 and

regulations subsequently issued by EEOC to implement the ADA state that this provision extends to "fringe benefit" programs offered by

employers.168 Fringe benefits include life insurance, disability insurance, and pension plans,

but the interim enforcement guidance only applies to health insurance plans.169

164 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance"); EEOC, FY 1993 Annual Report, p. 12.

165 See generally EEOC, "Interim Enforcement Guidance on

the Application of the ADA to Disability-based Distinctions

in Employer Provided Health Insurance."

166 Ibid., p. 2.

167 See 42 U.S.C. § 12112(a) (1994) ("No covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training,

and other terms, conditions, and privileges of employment.")

168 See 29 C.F.R. § 1630.4(0 (1997) ("It is unlawful for a covered entity to discriminate on the basis of disability against

a qualified individual with a disability in regard to. . .(1)

[f]ringe benefits available by virtue of employment, whether

or not administered by the covered entity.")

169 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 2. In May 1995, EEOC issued a separate "Questions and Answers" policy guidance

memorandum on the ADA and disability retirement and

service retirement plans.

The guidance notes that statutory and regulatory provisions also establish employer liability

for discrimination against job applicants or employees resulting from any contractual relationship with an insurance company or other organization to provide employee health insurance.1"

In addition, the guidance cites legislative history

that shows congressional intent to apply to employer health insurancem a bar on limiting, segregating, or classifying any employee in an adverse way based on disability.172

The guidance distinguishes between insured

and self-insured plans and states that the protections of the ADA apply to both. Insured

health insurance plans are provided by a separate insurance entity and purchased by employers. They are regulated by the Employment Retirement Income Security Act of 1974 (ERISA)1"

and State law. Self-insured plans, in contrast,

are those in which an employer assumes the liability of an insurer. These plans are regulated

by ERISA.174

One final, significant point is relegated to a

footnote, where the guidance explains that use of

the term "discriminates" refers only to disparate

treatment, since the "adverse impact, theory of

discrimination is unavailable in this context."'"

The guidance does not explain, why disparate

impact analysis may not be used to evaluate

health insurance discrimination charges, but

refers to Alexander v. Choate,176 a Supreme

170 See 42 U.S.C. § 12112 (b) (2) (1994);29 C.F.R. § 1630.6 (a)

and (b) (1997) (discussed, pp. 2-3 of the Interim Guidance).

171 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 3 (citing S. Rep. No. 101-

116, 101st Cong., (1989) at 28, 29 ; H.R. Rep. No. 485 part 2,

101st Cong., 2nd Sess. (House Labor Report) (1990), at 58-

59 reprinted in 1990 U.S.C.C.A.N. ; H.R. Rep. No. 485

part 3, 101st Cong., 2nd Sess. (House Judiciary Report)

(1990) at 36 reprinted in 1990 U.S.C.C.A.N. ; and 29

C.F.R. pt. 1630 app. § 1630.5 (1997)).

172 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 3 (citing 42 U.S.0 § 12112(b)

(1) and 29 C.F.R. § 1630.5 (1997)).

173 29 U.S.C. §§ 1001-1461 (1994).

174 See generally id.; EEOC, "Interim Enforcement Guidance

on the Application of the ADA to Disability-based Distinctions in Employer Provided Health Insurance," p. 4.

176 Ibid., p. 5, n. 7.

176 469 U.S. 287 (1985) (assuming without deciding that §

504 of the Rehabilitation Act reaches at least some conduct

136

15 =o
Court case involving section 504 of the Rehabilitation Act of 1973, and ADA legislative history

discussing the case.177 The ADA is in large part

modeled after the Rehabilitation Act. However,

the ADA, through sections 102 and 103, indicates that disparate impact analysis may be

used, whereas the Rehabilitation Act does not

include a comparable express provision.178 Title I

of the ADA permits disparate impact analysis.179

However, title V of the ADA indicates that disparate impact is not available as a means of

evaluating whether impermissible discrimination exists in the health insurance context.180

Disability-Based Distinctions in

Employer-provided Health Insurance

Framework of Analysis

The interim enforcement guidance defines a

disability-based distinction as one of the following: "A term or provision that . . . singles out a

particular disability (e.g., deafness, AIDS,

schizophrenia), a discrete group of disabilities

(e.g., cancers, muscular dystrophies, kidney diseases), or disability in general (e.g., non- coverage of all conditions that substantially limit a

major life activity)."181

The guidance states that if EEOC determines

that a challenged health insurance plan or provision includes a disability-based distinction, the

insurance plan may be lawful under the ADA if it

falls within the ambit of section 501(c) of the

ADA.182 This section provides that both insured

and self-insured183 plans that are "bona fide," or

based on "underwriting risks, classifying risks, or

that has an unjustifiable disparate impact upon persons

with disabilities).

177 H.R. Rep. No. 485 part 2, 101st Cong., 2nd Sess. (House

Labor Report) (1990) at 137 reprinted in 1990 U.S.C.C.A.N.

1990,

178 See 42 U.S.C. §§ 12112(b), 12113(a) (1994); 29 U.S.C. §§

701-797 (1994). But see Alexander v. Choate, 469 U.S. 297

(1985).

179 See id. § 12112(b) (1)(3).

180 See id. § 12201( c) (1994).

181 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 7.

182 42 U.S.C. § 12201( c) (1994).

183 The distinction is that insured health insurance plans

are purchased from an insurance company or other organization such as a health maintenance organization (HMO),

whereas with a self-insured plan, the employer assumes the

direct liability of an insurer.

administering such risks," are lawful as long as

they are not based on "subterfuge" to evade the

purposes of the ADA.184 The guidance notes that

EEOC has incorporated the no-subterfuge and

bona-fide requirements in its title I regulations.185

The guidance states that when EEOC determines

that the challenged provision is a disability-based

distinction, the respondent in the ADA claim

must show that the health insurance plan is a

bona fide plan and the disability-based distinction

is not being used as a subterfuge.'86

What Is a Disability-based Distinction?

The interim guidance states that not all distinctions based on health conditions are to be

considered disability-based distinctions under

the ADA:187 "[I]nsurance distinctions that are

not based on disability, and that are applied

equally to all insured employees, do not discriminate on the basis of disability and so do not

violate the ADA."188 For instance, provisions containing distinctions that are not related to a particular disability and that apply equally to all

insured employees are not deemed disabilitybased distinctions.'" The guidance provides examples of health insurance plan provisions that

184 42 U.S.C. § 12201( CO (1994). See also EEOC, "Interim

Enforcement Guidance on the Application of the ADA to

Disability-based Distinctions in Employer Provided Health

Insurance," p. 4.

185 See 29 C.F.R. § 1630.16(f) (1997) which states: "Health

insurance, life insurance, and other benefit plans

"(1) An insurer, hospital, or medical service company, health

maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that

are based on or not inconsistent with State law.

"(2) A covered entity may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based

on underwriting risks, classifying risks, or administering

such risks that are based on or not inconsistent with State

law.

"(3) A covered entity may establish, sponsor, observe, or

administer the terms of a bona fide benefit plan that is not

subject to State laws that regulate insurance.

"(4) The activities described in paragraphs (f) (1), (2), and (3)

of this section are permitted unless these activities are being

used as a subterfuge to evade the purposes of this part."

186 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 5.

187 Ibid.

188 Ibid.

189 Ibid. (emphasis added).

137

151
fall under this rubric. These include distinctions

made between benefits allowed for physical as

compared to "mental/nervous" disabilities; limits

on or exclusions of coverage for experimental or

elective medical procedures; limits on or exclusions of procedures that are "not exclusively, or

nearly exclusively utilized for the treatment of a

particular disability"; and exclusions based on

blanket preexisting condition clauses.190

The distinction between physical and mental

disabilities has been a major topic of controversy

relating to this guidance and EEOC's later policy

statement on disability insurance and retirement service plans. Specifically at issue is

whether the ADA prohibits employers from providing employees health insurance that offers

lower coverage or benefits for mental health impairments than for physical disorders. The interim guidance takes the position that it is lawful under the ADA for employer-provided health

insurance plans to provide different services for

physical as compared to mental conditions.191

According to the interim enforcement guidance, employers may lawfully offer health insurance plans that provide different benefits

(amounts of coverage) for mental as compared to

physical conditions, because such a difference is

not a "disability-based" distinction.192 The guidance argues that a term or provision is

"disability based" if it singles out a particular

disability (e.g., deafness, AIDS, schizophrenia) or

a discrete group of disabilities (e.g., cancers,

muscular dystrophies, kidney diseases). Although it could be credibly argued that mental

disabilities are a discrete group of disabilities,

nonetheless, the guidance concludes that they

are not. In addition, the guidance characterizes

differences between physical and mental disabilities as "broad distinctions" that apply to "a

multitude of dissimilar conditions" and

"constrain individuals both with and without

199 Ibid., pp. 6-7. 191 Ibid. p. 6. 192 Ibid. The guidance notes that the term "discriminates" in

this context refers only to disparate treatment. The disparate impact theory of discrimination is not available in the

context of employer-provided health insurance based on the

U.S. Supreme Court's ruling in Alexander v. Choate, 469

U.S. 287 (1985). EEOC, "Interim Enforcement Guidance on

the Application of the ADA to Disability-based Distinctions

in Employer Provided Health Insurance," p. 5, n.7.

t.

disabilities."193 Based on these conclusions, the

guidance determines that while differences between physical and mental disabilities "may

have a greater impact on certain individuals

with disabilities, they do not intentionally discriminate on the basis of disability and do not

violate the ADA."194

As legal authority supporting this position,

the guidance cites cases in which courts found

that such plans did not violate the Rehabilitation Act of 1973. For example, in Doe v. Colautti,195 the Third Circuit held that the Rehabilitation Act did not require Pennsylvania's

medical assistance statute to provide parity of

benefits for inpatient treatment of mental and

physical illnesses.198 One disability rights advocacy group has criticized EEOC's reliance on

these cases, indicating that although the ADA

was modeled in large part after the Rehabilitation Act, unlike the Rehabilitation Act, the ADA

contains language specifically addressing insurance issues.197

Other mental health-related laws arguably

favoring the guidance's position on this issue are

Congress' actions relating to mental health insurance policy. For example, some argue that

the many limitations Congress placed on its

Mental Health Parity Act (MHPA) of 1996198

shows that Congress did not intend the ADA to

establish parity between mental and physical

impairments in health insurance plans.199 The

193 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 6. 194 Ibid. 195 592 F. 2d 704 (3rd Cir. 1979). 196 See id. at 710-12 (holding that the Rehabilitation Act did

not require Pennsylvania's medical assistance statute to

provide parity of benefits for inpatient treatment of mental

and physical illnesses); Doe v. Devine, 545 F. Supp. 576

(D.D.C. 1982), aff'd on other grounds, 703 F.2d 1319 (D.C.

Cir. 1983) (holding that Blue Cross reduction of mental

health benefits did not discriminate based on disability). 197 See Giliberti letter.

198 Pub. L. No. 104-204, §§ 701-703, 110 Stat. 2874, 2944-

2950 (codified at 29 U.S.C. § 1185a (1998)). 199 See EEOC v. CNA Ins. Cos., 96 F.3d 1039, 1044 (7th Cir.

1996) (citing congressional debate over the MHPA and its

requirement of parity of coverage for mental and physical

conditions as "reinforc(ing the court's] conclusion based on

the language of the ADA that the issue of parity among

physical and mental health benefits is one that is still in the

legislative arena.").

138

152
MHPA requires that health insurance plans offering mental health benefits not place lower

annual or lifetime caps on such benefits than

they do on medical or surgical benefits.200 It does

not require insurance plans to provide mental

health benefits,2" or apply to employers with

fewer than 51 employees; and insurance plans

that experience a 1 percent or more increase in

costs may also claim an exemption.202 Employers

also may continue to impose more limits on mental health benefits than medical or surgical

benefits, through practices such as higher coinsurance rates.203

Despite the weight of legal authority, congressional limitations on parity for mental

health insurance in the MHPA, and the accord of

the insurance industry and employers in general, EEOC's position on this issue has been

criticized heavily by scholars and disability

rights advocates as inconsistent with the plain

language and the legislative history of the ADA.

In the words of one commentator, "Mental illness should be treated as other disabilities under

the ADA -- persons with mental illness should

receive services commensurate with other disabilities, including the right to equal insurance

coverage. "204 One mental health disability rights

advocacy group argues that EEOC's position

that limiting benefits for mental disorders does

not constitute a disability-based distinction contravenes common sense and logic as well as the

law.205 Another argument advanced by a critic of

EEOC's position on this issue is that the guidance is inconsistent in defining certain types of

disability-based distinctions. In particular, this

commentator notes that the guidance declares

that limits on benefits for mental health care or

eye care do not constitute disability-based distinctions, while limits on benefits for cancer

treatment would represent a disability-based

distinction. Since limits on mental health care,

eye care, and cancer care all are defined in terms

of health, rather than time or place, the author

200 29 U.S.C. § 1185a (1998).

201 See id. at § 1185a(b)

202 Id. at § 1185a( c).

203 See id. at § 1185a(b).

204 Noe, "Discrimination Against Individuals with Mental

Illness," p. 21.

205 Bazelon Center for Mental Health Law, e-mail response

to request for information, Feb. 26, 1998.

argues that all three limits should be defined in

the same manner.206

Although not widely discussed, another troublesome problem arises from the guidance's express provision that lower benefit caps for mental disorders than physical disorders do not violate the ADA. In some cases this distinction has

required additional litigation solely to determine

whether a particular impairment is mental or

physical under the ADA. According to one disability rights advocacy group, families of children with organic brain syndrome have sought

court determinations as to whether the syndrome is a mental or physical impairment because of the markedly different levels of benefits

their insurers provide for mental and physical

health conditions.207

Employer/Insurer Defenses and Burden of Proof

The interim enforcement guidance first directs an investigator to determine if the health

insurance provision in question constitutes a

disability-based distinction. If it does not, the

inquiry ends at this point. If it does, it then becomes the employer's responsibility to prove that

the term falls within the protective ambit ofsection 501(c) of the ADA. Developed by Congress in

response to insurance industry concerns that

compliance with ADA requirements would cause

business costs to skyrocket, section 501(c) places

limits on the act's applicability to health insurance. Sometimes referred to as the "safe harbor"

provision, section 501(c) provides:

(c) Insurance. Subchapters I through III of this

chapter and title IV of this Act shall not be construed

to prohibit or restrict

(1) an insurer, hospital or medical service company,

health maintenance organization, or any agent, or

entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks,

or administering such risks that are based on or not

inconsistent with State law; or

(2) a person or organization covered by this chapter

from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are

based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or

206 See generally, Farber, "Do Coverage Limitations and

Exclusions in Employer-Provided Health Care Plans Violate

the ADA?," pp. 905-06.

207 Giliberti letter, p. 3.

139

1b3
(3) a person or organization covered by this chapter

from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not

subject to State laws that regulate insurance.

Paragraphs (1), (2) and (3) shall not be used as a subterfuge to evade the purposes of subchapter I and III

of this chapter.'"

Essentially, if the EEOC investigator finds

that a particular health insurance provision represents a disability-based distinction, the provision will fall under the protective scope of section 501(c) if the employer or insurer proves two

elements. First, the employer must show that

the health insurance plan in question is "bona

fide" and consistent with applicable State law.

Second, the employer must prove that it has not

used the challenged provision as "subterfuge."209

If the employer shows that its insurance plan is

bona fide and the disability-based distinction

does not represent subterfuge to avoid compliance with the ADA, the provision or term does

not violate the ADA. In contrast, if the employer

is unable to meet either of these two requirements, the investigator must find the health insurance provision, and therefore the employer

and/or insurer, in violation of the ADA.

According to the interim guidance, the proper

inquiry to determine whether a particular health

insurance plan is bona fide involves simply

proving that the plan, insured or self-insured,

exists, pays benefits, and its terms have been

clearly communicated to eligible employees.210

To define the term "subterfuge," the interim

guidance states only that it "refers to disabilitybased disparate treatment that is not justified by

the risks or costs associated with the disability.

Whether a particular challenged disability-based

insurance distinction is being used as a subterfuge will be determined on a case by case basis,

208 42 U.S.C. § 12201(c) (1994).

203 The terms "bona fide" and "subterfuge" are found in section 501(c) of the ADA. Id. Many of the uncertainties em-.

ployers and insurers face in designing ADA-compliant

health insurance plans stem from section 501(c) and its use

of terms such as "bona fide" and "subterfuge."

210 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health. Insurance," pp. 10-11. Note, however, that

to gain the protection of § 501(c), an insured plan must also

meet the additional requirement of not being "inconsistent

with applicable state law as interpreted by the appropriate

state authorities." p. 10.

considering the totality of the circumstances."211

EEOC has stated in a more recent informal advisory letter that:

employers and insurers may continue to use legitimate risk assessment and other traditional insurance

classification and administrative practices even if

they have an adverse effect on individuals with disabilities, as long as the practices are uniformly applied to all insured employees and are not used as a

"subterfuge. "212

The U.S. Supreme Court has established a

definition of subterfuge in two cases involving

the Age Discrimination in Employment Act

(ADEA), which contains an exemption for employee benefit provisions similar to section 501(c)

of the ADA. In United Air Lines, Inc. v. McMann,213 the Supreme Court adopted a standard and straightforward definition of subterfuge as a "scheme, plan, stratagem, or artifice of

evasion."214 Twelve years later, the Supreme

Court affirmed this definition in Public Employees Retirement System of Ohio v. Betts.215 In addition, in Betts the Supreme Court rejected an

EEOC interpretive regulation that defined subterfuge as a plan or provision that lacks a cost

justification and held instead that a plan or provision does not constitute subterfuge unless the

employer intended to discriminate.216

The guidance acknowledges the existence of

the Betts definition. In Betts, the Court was interpreting the Age Discrimination in Employment Act. The guidance observes that "the Court

held that a pre-ADEA benefit plan could not be a

subterfuge, and that, since the ADEA did not

expressly apply to fringe benefits, subterfuge

required a showing of the employer's specific

intent to discriminate in some non-fringe aspect

of the relationship."217 HoWever, the guidance

states that the language and legislative history

of the ADA indicate Congress did not intend to

apply the Betts definition of subterfuge in ADA

211 Ibid., p. 11.

212 Mastroianni letter.

213 434 U.S. 192 (1977).

214 Id. at 203.

213 492 U.S. 158 (1989).

216 492 U.S. 158, 171-81.

217 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 9, n.10.

140

154
cases.218 The guidance notes that the language of

the ADA expressly covering "fringe benefits" and

the act's rejection of the concept of a "safe harbor" for pre-ADA plans mean that it was plain

congressional intent not to rely on the Betts approach with the ADA.219

Nevertheless, some courts have not followed

the EEOC guidance's definition of subterfuge,

but rather have followed the Supreme Court's

definition set forth in Betts. For example, in

Modderno v. King,22° the DC Circuit adopted the

definition of subterfuge contained in the two Supreme Court ADEA cases, rather than EEOC's

definition in the interim enforcement guidance.221 Although Modderno involved a claim

under the Rehabilitation Act of 1973, the court

specifically contemplated the term subterfuge as

defined in the ADA, since Congress amended the

Rehabilitation Act. in 1992 to incorporate the

ADA's definition of subterfuge.222 In Krauel v. Iowa Methodist Medical Center, the U.S. Court

of Appeals for the Eighth Circuit also expressly

rejected the EEOC guidance definition of subterfuge and instead followed the Betts definition.223

The guidance contains several examples of

ways an employer can prove that a given disability-based insurance term or provision is not

being used as subterfuge.224 For instance, an

employer may show that the disability-based

provision in question does not cause disparate

treatment of employees.225 Alternatively, an em218 Ibid., p. 9.

219 Ibid., p. 9, n. 10. Some courts have rejected the Betts

definition of subterfuge in the context of the ADA. See

Lewis v. Aetna Life Ins. Co., 950 F.Supp. 422, 430-31

(D.N.H. 1996). Other courts in addressing the safe harbor

provision in ADA insurance cases, implicitly reject the Betts

definition of subterfuge. See Doe v. Mutual of Omaha Ins.

Co., 1998 U.S.Dist. LEXIS 4894 (N.D. Ill. 1998); Chabner v. United of Omaha Life Ins. Co., 994 F.Supp. 1185 (N.D.CaI.

1998); Schroeder v. Connecticut General Life Ins. Co., 1994

U.S. Dist. LEXIS 21298 (D. Colo. 1994).

220 82 F.3d 1059 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 772

(1997).

221 Id. at 1065.

222 See id. at 1064.

223 95 F.3d 674, 678-79 (8th Cir. 1996).

224 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," pp. 11-13. The guidance states

that these examples do not constitute an exclusive list.

225 Ibid., p. 11. The guidance provides the following example

of this justification: "[W]here a charging party has alleged

that a benefit cap of a particular catastrophic disability is

ployer may concede that the term or provision

causes disparate treatment, but show that it is

justified by "legitimate actuarial data."226

With respect to the uses of actuarial data, the

guidance states that the respondent may prove its

actions are permissible because they are based on

increased risk and thus increased cost to the

health insurance plan of the disability, and not on

the disability. per se.227 The guidance describes

"legitimate risk classification and underwriting

procedures" as the basis for legitimate actuarial

data. It states that "risk classification" refers to

"the identification of risk factors and the grouping

of those factors that pose similar risks. Risk factors may include characteristics such as age, occupation, personal habits (e.g., smoking), and

medical history."228 The term "underwriting procedures" refers to "the application of the various

risk factors or risk classes to a particular individual or group (usually only if the group is small) for

the purpose of determining whether to provide

insurance ."229

EEOC's policy position on actuarial data and

its uses has been the subject of debate. Some

commentators. contend that specific aspects of

the interim enforcement guidance relating to

actuarial data are inconsistent with the express

statutory language of the ADA. For example, a

disability rights advocacy group claims that the

guidance fails to define what types of information courts are to consider as "legitimate" actuarial data. This same group also points out that

the guidance does not require employers or insurers to provide such actuarial data to employees who are refused insurance coverage and calls upon the EEOC to mandate that employers/insurers make such information available.230

Similar comments were made by other disability

advocates at a national conference held in fall

1997. They stressed the need for individuals

with disabilities to have access to the actuarial

data on which employers or insurance companies

discriminatory, the respondent may prove that its health

insurance plan actually treats all similarly catastrophic

conditions in the same way." Ibid.

226 Ibid., p. 12.

227 Ibid., pp. 11-12.

228 Ibid., p. 12, n. 15.

229 Ibid.

230 See Giliberti letter.

141

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rely in limiting their coverage.231 Along similar

lines, the Executive Director of the President's

Committee on Employment of People with Disabilities has called for EEOC to evaluate the

quality of the actuarial data used by insurance

companies.232 Further, one author has raised

concerns that the interim guidance deviates significantly from the statutory language of the

ADA because of its "undue reliance" on actuarial

standards to define subterfuge.233 According to

this author, the plain language of section 501(c)

and the legislative history indicate that actuarial

principles are only to be considered in

"determining whether insured plans are consistent with state law" and "do not apply to selfinsured plans subject to ERISA..."234

In court, the role of actuarial data was considered in Baker u. Hartford Life Insurance

Company.235 The defendant company, Hartford

Life, argued that its refusal to provide health

insurance to an individual with a seizure disorder did not violate the ADA, because the ADA

contains an exemption for insurance decisions

based on risk classification. The court, however,

ruled that insurers seeking exemption under

section 501(c)(3) must show some evidence to

prove that their decision to deny coverage was

based on sound actuarial data.236 Thus, the court

did not accept at face value the insurer's assertions that denials of coverage were based on actuarial data. Similarly, in World Insurance Co. u.

Branch,237 the court held that a health insurance

231 Mary Lou Breslin and Arlene Mayerson, Disability

Rights Education and Defense Fund, remarks at

"Employment Post the Americans with Disabilities Act,"

conference in Washington, DC, Nov. 17-18, 1997, pp. 8, 27.

232 Lancaster interview, p. 3.

233 Farber, "Do Coverage Limitations and Exclusions in. Employer-Provided Health Care Plans Violate the ADA?," pp.

904, 906-07.

234 Ibid., p. 907.

235 1995 U.S. Dist. LEXIS 14103 (N.D. Ill. 1995).

236 Id. at *9*10. Courts have emphasized the need for actuarial evidence to justify disparity or denial of benefits in

several other cases. See Doukas v. Metro. Life Ins. Co., 950

F. Supp. 422, 429 (D.N.H. 1996) (finding that the insurance

practice must be based on actuarial data or on the company's experience relating to the risk involved); Anderson v.

Gus Mayer Boston Store of Del., 924 F. Supp. 763, 780-81

(E.D. Tex. 1996); Cloutier v. Prudential Ins. Co. of Am., 964

F. Supp. 299, 305 (N.D. Cal. 1997); Lewis v. Aetna Life Ins.

Co., 982 F. Supp. 1158, 1169 (E.D. Va. 1997).

237 966 F. Supp. 1203 (N.D. Ga. 1997).

policy providing a lower benefit cap for AIDS

than for other catastrophic illnesses violated the

ADA when the insurer did not show that the

disparate benefits were based on actuarial evidence, reasonably anticipated experience, or

bona fide risk classification.238

An employer also may show that disparate

treatment is needed to preserve the financial solvency of the insurer.239 In this situation, an employer would have to prove that it limited coverage for a particular disability (or group of disabilities) because providing more coverage would

bankrupt the insurer. Similarly, the employer

could argue that a disability-based distinction is

necessary to prevent an unacceptable increase in

premiums or decrease in coverage of its health

insurance plan. According to the guidance:

An unacceptable change is a drastic increase in premium payments. . .or a drastic alteration to the scope

of coverage of level of benefits provided, that would: 1)

make the health insurance plan effectively unavailable to a significant number of other employees, 2)

make the health insurance plan so unattractive [that

only individuals with high health risks who could not

find affordable insurance elsewhere would remain in

the plan], or 3) make the health insurance plan so

unattractive that the employer cannot compete in

recruiting and maintaining qualified workers due to

the superiority of health insurance plans offered by

other employers in the community.240

A final potential justification offered by the

guidance applies to situations where an insurer

has denied an employee coverage for a disabilityspecific treatment. In these instances, an insurer

may show that the treatment in question does

not have any medical value and hence provides

no benefit to employees. EEOC would require

insurers relying on such justification to prove

the assertion by "reliable scientific evidence."241

The interim guidance states that there is no

"safe harbor" for disability-based distinctions in

insurance plans established before enactment of

the ADA. "[The challenged disability-based

terms and provisions of a pre-ADA health insurance plan will be scrutinized under the same

238 Id. at 1209.

235 EEOC, "Interim Enforcement Guidance on the Application of the ADA to Disability-based Distinctions in Employer

Provided Health Insurance," p. 12.

240 Ibid., pp. 12-13.

241 Ibid., p. 13.

142

156
subterfuge standard as are the challenged disability-based terms, provisions, and conditions of

post-ADA health insurance plans."242

EEOC's Litigation and Amicus Positions on

Long Term Disability

EEOC's Associate Legal Counsel has stated

that, according to the analysis EEOC endorsed

in its health insurance policy guidance, singling

out the mental/nervous category in the context of

health insurance does not indicate a disability- based distinction.243 This is because, in the

health insurance context, the mental/nervous

category encompasses both people with disabilities and those without, and a wide variety of dissimilar conditions.244 This means that both people with schizophrenia and people who have no

disability but go to a psychiatrist to improve

their lives fall into this category. The Associate

Legal Counsel further noted that this remains

EEOC's position until it is changed.245

However, she said, when the same analysis is

applied in the context of long term disability benefits or retirement plans, many things are different. In particular, the long term disability context

deals only with people with disabilities. Therefore, any mental/physical distinction must single

out particular disabilities, thereby making it disability based and thus potentially impermissible

under the ADA if it cannot be justified.248

Physical Versus Mental Disabilities

The issue of whether or not disability-based

distinctions between mental and physical disabilities in long term disability and retirement

coverage plans are lawful under the ADA may

have a significant effect on employer practices.

EEOC has taken the position that such distinctions discriminate on the basis of disability and

therefore are unlawful under the ADA.247

In Leonard F. and EEOC v. Israel Discount

Bank of New York, the plaintiff was given 2

242 Ibid., pp. 8-9.

243 See Mastroianni interview, p. 7.

244 See EEOC, "Interim Enforcement Guidance on the Appli- cation of the ADA to Disability-based Distinctions in Employer Provided Health Insurance," pp. 5-9.

245 See Mastroianni interview, p. 7.

246 Ibid.

247 See, e.g., EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir.

1996).

years of long term disability by Met Life because

he could no longer work due to depression, but

employees under the plan with physical disabilities had long term coverage until they reached

age 65.248 The parties reached an agreement in

which the defendant bank agreed to establish a

policy of providing the same level of benefits in

long term disability insurance coverage.249 The

case is significant because, as the plaintiffs attorney in the case stated: "It sends the message

to employers and insurance companies that the

manner in which they treat psychiatric disabilities has to be on a par with how they treat

physical disabilities."250 For EEOC, the resolution of the case was a major success because it

helped make the public aware of the agency's

position that the ADA requires employers to

provide the same benefits under long term disability insurance policies to individuals with

mental conditions as are provided to persons

with physical conditions. To the extent this position is adopted by other employers, it will benefit

a significant number of disabled former employees nationwide.251 The settlement in Leonard F.

reflects the direction in which EEOC would like

to take the law.

However, other organizations disagree with

EEOC's position. For example, the American

Council of Life Insurance has defended the practice of distinguishing between physical and mental conditions,252 arguing that mental conditions

are extremely difficult to define, much less diagnose. As a result, if there were no caps on such

conditions, insured members could take advan245 967 F. Supp. 802, 803-05 (S.D.N.Y. 1997). Plaintiff origi- nally brought his claim against the bank employer under

title I of the ADA, but was allowed to amend the complaint over the objection of the defendants both to bring the claim

under title III and add Met Life as a party defendant. Because the court held that the purpose of title III of the ADA

was not to regulate employment actions and that Met Life's

policy was consistent with State insurance law, the defendant's motion to dismiss was granted on the issue of the

plaintiffs claim under title III. Id. at 805-06.

245 See "Settlement: New York Bank to Provide Parity Benefits for Mental, Physical Conditions," National Disability

Law Reporter Highlights, vol. 11, iss. 6, Mar. 12, 1998, p. 1

(hereafter cited as "Settlement... " NDLR Highlights).

2513 Ibid.

251 Gerald Letwin, Assistant General Counsel, Systemic

Litigation Services, Office of General Counsel, EEOC, interview in Washington, DC, April 6, 1998, p. 2 (hereafter cited

as Letwin interview).

252 "Settlement... " NDLR Highlights, p. 5.

143

157
tage of the coverage and overuse the benefits. In

addition, the cost of providing equal benefits

would raise the cost of insurance for everyone.253

Other cases involving this issue have reached

different results. In Brewster v. Cooley Associates / Counseling and Consulting Services,

Ltd.,254 a Federal district court in New Mexico

found that the ADA does not prohibit an employer from providing greater long term disability benefits for a physical disorder than for a

mental one.255 The Brewster court cited precedent in finding that "offering all employees the

same benefits, although the benefits provide for

different kinds of coverage, is not a discriminatory act that will support a cause of action under

title I of the ADA. "256 In Parker v. Metropolitan

Life Insurance Company, the court observed that

"the ADA does not mandate equality between

individuals with different disabilities."257

However, in Lewis v. Aetna,258 a recent decision in Virginia, a Federal district court judge

has ruled that Kmart Corporation cannot give

lower long term disability benefits to a store

manager because he has clinical depression

rather than for a physical disorder. The court

observed that the ADA's legislative history, requiring "that underwriting and classification of

risks be based on sound actuarial principles or

be related to actual or reasonably anticipated

experience," makes clear Congress' intent with

respect to permissible insurance practices under

the ADA.259 The court found that Kmart did not

offer actuarial justification for the differing coverage of mental and physical conditions.289

In examining whether Kmart's insurance

plan violated the ADA, the court noted that the

ADA provision on insurance favors "unnecessary

disruption of state insurance regulation" and

therefore concluded that "the consistency of a

253 Ibid.

254 1997 U.S. Dist. LEXIS 21433 (D.N.M. 1997).

255 Id at *2*3.

256 Id. at *2.

257 See 121 F.3d 1006, 1015 (6th Cir. 1997), cert. denied, 118

S. Ct. 871 (1998).

258 1998 U.S. Dist. LEXIS 8829, *21 (E.D. Va. 1998). The

court stated IN* conclude that Kmart has discriminated

against plaintiff on the basis of his disability in violation of

ADA Title I, 42 U.S.C. (4) 12112. . ." Id.

259 Id. at *14 citing H.R. REP. No. 45(111) at 70 (1990).

260 Id. at *14.

challenged disability plan is best examined

within the context of the state where the disabled person lives, is employed, and receives his

insurance benefits. "261 In this case, the State of

Virginia was the applicable forum. The court

applied § 38.2-508 of the Virginia Code, which

states:

No person shall refuse to insure, refuse to continue to

insure, or limit the amount, extent or kind of insurance coverage available to an individual . . .solely

because of . . mental or physical impairments, unless

the refusal, limitation or rate differential is based on

sound actuarial principles.262

Based on this language, the court found that

Kmart had to ensure "that its decision to offer an

insurance plan limiting disability coverage for

those with mental disabilities was based on

sound actuarial principles for the decision to be

protected" under the ADA.263 The court ruled

that Kmart had not met this burden, citing

Kmart's own acknowledgment that "There is no

need for us to talk about cost actuarial. That's an

alternative defense which Kmart did not seek to

rely upon in this case. "264 Accordingly, the court

found in favor of the plaintiff.265

In Leonard F., as with other long term disability insurance cases dealing with the issue of mental health benefits parity, EEOC has litigated on

behalf of the plaintiffs despite its position against

requiring mental health parity in its 1993 Interim

Enforcement Guidance on the Application of the

Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer-provided

Health Insurance. In the interim guidance, EEOC

stated clearly that, in the context of health insurance, it did not consider distinctions between

mental health and physical health benefits to be

disability-based distinctions. However, given its

role in recent litigation on the issue of mental

health benefits and insurance parity, it is quite

clear that EEOC considers this precise distinction

to be a disability-based distinction in the context

of long term disability benefits.

261 Id. at *7.

262 Id. at *8 citing Virginia Code § 38.2-508.

263 Id. at *8.

264 Id. at *9 citing Trial Transcript at 145.

265 Id.

144

158
How EEOC reconciles its different approaches to distinctions between mental and

physical illness in health insurance and in disability insurance is not clear. This is a stark contrast to the EEOC approach to cases involving

disproportionately low benefits for mental impairments in health insurance. Moreover, at

least one court opinion has mentioned the apparent incongruity in EEOC's policy for health

insurance as compared to disability insurance

and long term benefits coverage.266

The reasoning behind the divergence between

EEOC's position on mental health insurance

parity in its 1993 interim guidance and its position in recent litigation remains unexplained in

policy guidance.

In an interview, EEOC's Associate Legal

Counsel explained EEOC's rationale for the difference between its positions on disability distinctions in long term disability insurance and

on disability distinctions in health insurance.

According to her, EEOC's interim guidance instructed investigators to ask two questions: (1) is

there a disability-based distinction; and (2) if

there is, can the employer defend it? It gave ex- amples of disability-based distinctions, which

usually were situations where a discrete disability, such as HIV/AIDS, was not covered. According to the analysis EEOC endorsed in this

guidance, in the context of health insurance,

singling out the mental/nervous category does

not indicate a disability-based distinction. This is

because, in the health insurance context, the

mental/nervous category encompasses both peo- ple with disabilities and those without. For instance, both people with schizophrenia and peo- ple who have no disability but go to a psychiatrist to improve their lives fall into this category. However, she said, if one applies the same

analysis, but changes the context to long term

disability benefits or retirement plans, a lot of

things are different. In particular, long term disability is only available to individuals with disabilities. Therefore, any mental/physical distinc266 Lewis v. Aetna, 982 F. Supp. 1158, 1168 n.9 (E.D. Va.

1997) ("Defendants note that the EEOC has in the past

stated that distinctions between mental and physical illness

in health insurance do not violate the ADA. See EEOC Interim Guidance on Application of ADA to Health Insurance,

June 3, 1993. To the extent that this was ever the position of

the EEOC with regard to disability plans, it does not appear

to be so now.").

tion must single out particular disabilities,

thereby making it disability based and thus potentially impermissible under the ADA if it cannot be legitimately justified. Thus, according to

EEOC's Associate Legal Counsel, using the

analysis endorsed in the interim guidance, there

is a disability-based distinction in the context of

long term disability plans, but not in the context

of health insurance.267

EEOC clearly makes a distinction between

health insurance and long term disability insurance. However, EEOC has never clarified this in

policy guidance or litigation. As a result, it remains unclear why EEOC has taken arguably

contradictory policy positions in its interim enforcement guidance and in its recent litigation

posture in insurance cases. This is a matter of

particular concern considering that at least one

court has actually cited to EEOC's interim

health insurance guidance as support for a

finding that a disability insurance plan distinguishing between physical and mental health

benefits did not violate the ADA. In Weyer v. Twentieth Century Fox Film Corporation,268 a

Federal district court in Washington State listed

the interim guidance as an authority for the

statement that:

The ADA does not prohibit the insurance practice of

providing a shorter term of coverage for mental disability than for physical disability. Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997);

EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir. 1996);

Krauel v. Iowa Methodist Medical Center, 95 F.3d

674, 678 (8th Cir. 1996); EEOC: Interim Enforcement

Guidance on Application of ADA to Health Insurance.

(June 8, 1993).269

However, in its litigation and amnicus briefs,

EEOC has sought to prohibit the practice of pro- viding a shorter term of coverage for mental

than for physical disability in long term disability plans, although it has not taken the same

position in the context of health insurance plans

for people who are still working.270 The apparent

confusion of the Weyer court on EEOC's position

267 Peggy M. Mastroianni, Associate Legal Counsel, EEOC,

interview in Washington, DC, Apr. 6, 1998, p. 7.

269 1997 U.S. Dist. LEXIS 21708 (W.D. Wash. 1997).

269 Id.' at *3.

279 See pp. 146 this chapter.

145

159
further suggests the need for updated guidance

in this area from EEOC.

Qualified Individual with a Disability

EEOC and private litigants are pushing forward with challenges to long term disability insurance plans. For example, in the Fourth Circuit, a district court has ruled against defense

motions to dismiss a private party's challenge of

disparate benefits provided by the employer's

long term disability plan.271 In the Second Circuit, an argument advanced by defendant's

counsel in an ADA case involving a service retirement plan has produced an important ruling

in that circuit on an issue not directly addressed

by the EEOC in policy or by the ADA's legislative history.

In Castellano v. New York,272 firefighters and

police officers in New York City who retired with

disability pensions challenged their exclusion

from supplemental retirement compensation

paid only to employees who retire with 20 years

of service. Although the Second Circuit ultimately did not rule in their favor, it upheld their

right to bring such a claim against New York

City's argument that they were not eligible to

sue under the ADA because they were not

"qualified" individuals with disabilities.273 Specifically, New York City argued that these plain -

iFfs be excluded from coverage because

they could not perform the essential functions of

the jobs of firefighters and police officers and

therefore were not members of the ADA's protected class.274

The court recognized the potentially damaging effects of this argument on future judicial

interpretations of Congress' intent in enacting

the ADA. It stated simply that:

as evidenced by the ADA's language and legislative

history, it is inconceivable to us that Congress would in

the same breath expressly prohibit discrimination in

fringe benefits, yet allow employers to discriminatorily

deny or limit post-employment benefits to former employees who ceased to be "qualified" at or after their

retirement, although they had earned those fringe

27) See Lewis v. Aetna Life Ins. Co, 982 F. Supp. 1158 (E.D.

Va. 1997) (denying defendants' motion to dismiss).

272 1998 U.S. App. LEXIS 3646 (2nd Cir. 1998).

273 See id.

274 Id. at *22*23.

benefits through years of service in which they performed the essential functions of their employment.275

In its decision, the court cited EEOC's ainicus

brief in the case.276 In this brief EEOC argued:

The language of the ADA shows that Congress clearly

intended to prohibit employers from discriminating in

the area of fringe benefits, many of which are distributed in the post-employment period. If former employees may not challenge discrimination in postemployment fringe benefits, the entitlement to which

they earned by virtue of employment, Congress' goal

of providing comprehensive protection from disability

discrimination would be severely undermined.277

However, EEOC has not addressed this issue in

its policy or enforcement guidance.

HIV/AIDS

Another controversial disability-based distinction that EEOC has addressed in litigation

or amicus activity is the coverage limits many

insurers place on treatment for AIDS patients.

The agency has played an active role in bringing

such cases, as well as in providing ainicus curiae

briefs to support parties in private litigation.278

In most of these cases, EEOC has achieved success in working toward a settlement between the

parties or a consent agreement prior to a trial.

In one case, an employee sued his employer

for providing an insurance plan that excluded

him from coverage because of his HIV-positive

status.279 Ruling that the employer's purchase of

a health benefit plan subjects the employer to

potential liability under the ADA, the court

stated, "when a group insurer makes it a policy

refusing to extend coverage to an employee with

a disability because of that disability, an employer violates the ADA by selecting that group

275 Id. at *33.

276 Id.

277 Brief for the U.S. Equal Employment Opportunity Commission as Amicus Curiae at 5, Castellano v. City of New

York, 1998 U.S. App. LEXIS 3646 (2nd Cir. 1998) (No. 96-

7920).

278 EEOC, Docket of Americans with Disabilities Act (ADA)

Litigation. See, e.g., Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12

(1st Cir. 1994), appeal docketed, (D.N.H. 1996); Estate of Mark

Kadinger v. Intl Brotherhood of Electrical Workers, Local 110,

1993 U.S. Dist. LEXIS 18982 (D. Minn. 1993).

279 Anderson v. Gus Mayer Boston Store of Delaware Inc.,

924 F.Supp. 763 (E.D. Texas 1996).

146

1.60
insurer unless he makes provisions for the excluded individual to receive comparable health

insurance in some other way."280

IInterprating the ADA on Health

IInsurance and Other Benefits

Congress drafted ADA language on health

insurance in such a way that much is left to interpretation. While some disability advocates

fault insurance and business lobbyists for exerting pressure on Congress to create such ambiguities in the law, members of the insurance

industry and business community criticize the

law for its lack of specificity and propose

amending the ADA. EEOC regulations and the

interim enforcement guidance do not provide

sufficient clarity. Thus, courts are left to fill in

the blanks, particularly in contentious areas,

such as the role of actuarial data and the disparity in benefits for mental and physical ill- nesses contained by many insurance plans.

Without clear guidance, however, court interpretations are likely to vary among the Federal circuits, to be decided definitively only by the Supreme Court.

In an informal guidance letter dated April 10,

1997, EEOC stated that it was continuing to

study the issue of health insurance under the ADA as it prepared final guidance .on the

topic.281 EEOC also stated that its proposed final

guidance would revisit the issues addressed in

the interim guidance as well as additional issues

on the ADA and health insurance that were not

discussed in the interim guidance.282 Finally,

EEOC stated in this policy letter that, before

publishing a proposed draft of this final guidance in the Federal Register, the agency would

allow for comment by the public and other interested p artie S.283

In August 1997, the EEOC's proposed

"Guidelines on the Application of the Americans

with Disabilities Act of 1990 to Employerprovided Health Insurance" were withdrawn

from the regulatory agenda.284

280 Id. at 769.

281 Mastroianni letter, p. 1366.

282 Ibid.

283 Ibid.

284 62 Fed. Reg. 58,201 (1997).

Preemployment Inquiries and Medical Examinations

EEOC's enforcement guidance on preem- ployment inquiries and medical examinations,

issued in October 1995, addresses how medical

information may be used by employers.285 According to EEOC's FY 1994 Annual Report, the

agency has received more questions on these

topics than on any other ADA issue. Although

EEOC developed this document primarily to assist investigators in processing ADA discrimination charges, it provides valuable information for

employers and individuals protected by the ADA

on permissible and prohibited preemployment

inquiries and examinations.286

In drafting the ADA, Congress recognized

that individuals with disabilities can face employment discrimination before their ability to

perform the job is even evaluated. In the past,

some employment applications and interviews

requested information about a prospective employee's physical or mental conditions and

health.287 Employers might use information

about applicants' health status to rule out those

who disclosed disabilities without evaluating

their ability to perform the job in question. To

address such discrimination, Congress incorporated into the ADA specific provisions to prevent

any information on an applicant's medical condition from influencing the evaluation of an applicant's nonmedical job-related qualifications.288

The ADA prohibits employers from asking

disability-related questions and requiring medical examinations before making an applicant a

conditional job offer.289 In general, at the pre- offer stage, an employer may not conduct a

medical examination or ask if a job applicant has

a disability or the nature or severity of such a

285 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations"

(undated), p. 1. In May 1994, EEOC issued a previous en- forcement guidance on this topic. However, all referencesto

EEOC's guidance on this topic refer to the October 1995

document.

286 Ibid.; EEOC, FY 1994 Annual Report, pp. 4, 23.

287 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations."

288 See 42 U.S.C. § 12112(d) (1994). See also EEOC, "ADA

Enforcement Guidance: Pre-employment Disability-Related

Questions and Medical Examinations," p. 1.

288 42 U.S.C. § 12112(d) (1994).

147

161
disability.299 It is acceptable for an employer to

inquire about the ability of an applicant to perform job-related functions.291

Under the statutory provision, an employer

may require a medical examination after an offer of employment has been made to a job applicant and before the applicant starts on the job.292

However, the employer may only do so if all entering employees are subjected to the same examination.293 The information obtained about

the medical condition or history of the applicant

must also be collected and maintained on separate forms and in separate medical files and be

treated as a confidential medical record.294 The

only exceptions to the confidentiality rule are

that supervisors and managers may be informed

regarding necessary restrictions on the work or

duties of the employee and necessary accommodations; first aid and safety personnel may be

informed, when appropriate, if the disability

might require emergency treatment; and government officials investigating compliance with

the ADA shall be provided relevant information

on request.295 Finally, the provision states that an employer

cannot require a medical examination or ask if

the employee is an individual with a disability or

about the nature or severity of the disability,

unless the examination or inquiry is shown to be

"job-related and consistent with business necessity."296 An employer may conduct voluntary

medical examinations, including voluntary

medical histories, that are part of an employee

health program available to employees at that

worksite.297 In addition, an employer may make

inquiries into the ability of an employee to perform job-related functions.298

Statutory and Regulatory Authority

The enforcement guidance opens with a discussion of the ADA statutory and regulatory

299.1d. at § 12112(d) (2) (A).

291 Id. at § 12112(d) (2) (B).

292 Id. at § 12112(d) (3).

293 Id. at §.12112(d) (3) (A).

294 Id. at § 12112(d) (3) (B)

295 Id.

296 Id. at § 12112(d) (4) (A).

297 Id. at § 12112(d) (4) (B).

298 Id.

authority governing employer inquiries about

applicant or employee health status. The ADA

prohibits an employer from asking an applicant

disability-related questions or performing medical examinations before extending the applicant

a conditional job offer.299 According to the guidance, even if the employer intends to review answers or test results after an offer has been

made, the employer still may not ask such ques-

'tions or require a medical exam before the offer.300 The rationale for this provision is that it

helps to ensure that an applicant's possible hidden disabilities are not considered until after the

employer has evaluated the applicant's nonmedical qualifica dons .391

However, the guidance explains that even

though employers may not legally ask disabilityrelated questions at the pre-offer stage, they still

have considerable latitude in ensuring that an

applicant is qualified to perform a given job.

Employers may ask about an applicant's ability

to perform specific job functions. The guidance

gives three examples of the kinds of questions an

employer may ask. According to the guidance,

"an employer may state the physical requirements of a job (such as the ability to lift a certain

amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these

requirements ";302 an employer may ask about an

applicant's nonmedical qualifications and skills,

such as education, work history, and required

work licenses and certifications;303 and employers may ask job applicants to describe or explain

how they would perform a specific task.304

At least one organization in the disability

community finds fault with this specific section

of the guidance.305 An official from the organization has stated that EEOC considers it unlawful

299 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p.

2 (citing 42 U.S.C. § 12112(d) (2) (1994) and 29 C.F.R. §§

1630.13(a), 1630.14(a) and (b) (1997)).

300 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p. 2.

301 Ibid.

392 Ibid.

303 Ibid.

304 Ibid.

399 Fritz Rumpel, Editor, Employment in the Mainstream,

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, re: response to questionnaire on the ADA, Feb. 4,

1998, p. 2.

148

162
for an employer to ask if a job applicant needs a

reasonable accommodation because this is tantamount to asking whether the applicant has a

disability.306 Instead, EEOC recommends that an

employer ask if the applicant can perform a spe-'

cific job task with or without reasonable accommodation. This official states that "a question

like that is really useless. It may work in a legal

sense; it does not work in the real world."307 This

official further states: "I would urge EEOC to

work on a program (in its technical assistance

capacity) that instructs all employers on the

value of developing up-to-date job descriptions

based on a job analysis, and sharing that information with all applicants."308

The guidance next states that, once a conditional offer has been made, the employer legally

may ask disability-related questions and require

a medical examination of an employee only if

this practice is followed for all employees hired

for the same job category.309 However, if an employer rejects the applicant after a disabilityrelated question or medical examination, EEOC

emphasizes that it trains its investigative staff

to "closely scrutinize whether the rejection was

based on the results of that question or examination."310 In addition, if it is determined that a

question or examination screened out an individual due to a disability, the employer must

show that the reason for the failure to hire was

"job related and consistent with business necessity."311 Lastly, if the applicant is screened out

for safety reasons, the employer must show that

the individual posed a "direct threat" as defined

in the ADA. This means that the applicant

would have posed a "significant risk of substantial harm to himself or others" and that there

was no reasonable accommodation that could

reduce that risk leve1.312

Finally, this section of the guidance emphasizes that the ADA requires employers to keep

306 Ibid.

307 Ibid.

308 Ibid.

303 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p.

2.

310 Ibid.

311 Ibid.

312 Ibid., p. 3 (citing 42 U.S.C. § 12113(b) (1994); and 29

C.F.R. pt. 1630 app. § 1630.2(r) (1997)).

medical information confidentia1.313 The guidance notes that the exceptions to this rule are

narrowly limited to specific information that

may be shared with supervisors and managers,

first aid and safety personnel, and government

officials investigating compliance with the ADA.

In addition, employers may lawfully disclose

medical information to State workers' compensation offices, State second injury funds, workers'

compensation insurance carriers in accordance

with State workers' compensation laws, and for

insurance purposes.314

The Pre-Offer Stage

The proscriptions on employers at the preoffer stage appear particularly complex. Guidance that may be helpful to employers explains

the broad underlying principles on which the

ADA's requirements at the pre-offer stage are

based:

As a general matter, the key to effective, permissible

questioning at the pre-job-offer stage is to focus on the

functions of the job rather than the possible disabilities of the applicant. An employer can usually determine whether an applicant is qualified for a job by

correctly phrasing questions regarding an applicant's

ability to perform the job's functions.315

What Is a Disability-related Question?

EEOC's definition of a "disability-related"

question is "a question that is likely to elicit information about a disability."316 At the pre-offer

stage, an employer is not permitted to ask disability-related questions or questions that are

313 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p.

3 (citing 29 C.F.R. § 1630.14(b) (1) (i)(iii) (1997)).

314 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p.

3 (citing 42 U.S.C. § 12201(c) (1994); and 29 C.F.R. pt. 1630

app. § 1630.14(b) (1997)).

315 Robert L. Burgdorf, Jr., Disability Discrimination in Employment Law, p. 347 (Washington, DC: Bureau of National

Affairs, 1995).

316 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p.

4. See also Peggy Mastroianni, Associate Legal Counsel,

EEOC, letter to Savannah Police Dept., re: Application Inquiries, Jan. 17, 1997, p. 2, reprinted in 10 Nat'l Disability

L. Rep. (LRP) ¶ 74 (hereafter cited as Mastroianni, letter re: Application Inquiries).

149

163
likely to elicit information about a disability.317

Obviously, an employer cannot ask whether an

applicant has a particular disability. In addition,

an employer is not permitted to ask questions

that are closely related to disability. However,

the guidance states that "if there are many possible answers to a question and only some of the

answers would contain disability-related information, that question is not 'disabilityrelated'."319

The guidance addresses some commonly

asked questions about this area of the law. According to the guidance, an employer may ask

whether applicants can perform a job, including

whether they can perform job functions "with or

without reasonable accommodations." An employer may ask job applicants to describe or

demonstrate how they would perform a given

job, including any needed reasonable accommodations. An employer may ask a particular applicant to demonstrate how he or she would perform a given job function, even if other applicants are not asked the same question, only

"when an employer could reasonably believe that

an applicant will not be able to perform a job

function because of a known disability."319 In

such a case, "the employer may ask the particular applicant to describe or demonstrate how

s/he would perform the function."329 In addition,

an employer may ask applicants whether they

will need reasonable accommodation to complete

the hiring process (for example, an interview,,

timed written test, or job demonstration).321

Similarly, an employer may ask an applicant

whether he or she can perform different functions of the job itself, including whether an applicant can perform job functions "with or without reasonable accommodation."322

However, an employer may not "ask a question in a manner that requires the individual to

disclose the need for reasonable accommodation."323 For example, an employer cannot ask a

317 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations," p. 4.

318 Ibid.

319 Ibid., p. 5. This also would apply in the case of an applicant who has voluntarily disclosed a hidden disability. Ibid.

329 Ibid.

321 Ibid.

322 Ibid., p. 4.

323 Ibid., p. 4, n. 11; p. 6.

question relating to reasonable accommodation

in the following manner, "Can you do these functions with or without reasonable accommodation? (Check one)."324 Moreover, although an employer may ask whether an applicant can perform job functions "with or without

reasonable accommodation," as a general rule, in

the pre-offer stage, an employer "may not ask

whether an applicant will need reasonable accommodation. . .because these questions are

likely to elicit whether the applicant has a disability."325

Making matters more complicated, although

an employer may ask an applicant with a

"known disability" whether he or she needs a

reasonable accommodation to perform a job

function, if the applicant answers "no," the employer may not pursue the matter by asking additional questions.326 If the applicant answers

"yes," the employer may ask additional questions

about how to provide the accommodation but

may not ask questions about "the underlying

condition."327 For example, if an applicant for a

computer analyst job with a severe vision impairment asks for software that increases the

size of the text on the screen, the employer may

ask questions about that software, such as how

to obtain it.328 However, the employer may not

ask the applicant any questions about the nature

or extent of his vision impairment.329

Although the guidance makes clear that the

main rule about pre-offer questionS is that they

may not be designed to elicit information about

whether an applicant has a disability, it should

be noted that, as the questions and answers provided in the guidance show, the rules surrounding what an employer may and may not say are

complicated. For example, an employer may ask

if an applicant can meet the employer's attendance requirements, including questions about

an employee's former attendance record.339 However, an employer may not ask, at the pre-offer

stage, how many days an applicant was sick or

324 Ibid.

325 Ibid., p. 6.

326 Ibid., p. 7.

327 Ibid.

328 Ibid.

329 Ibid.

339 Ibid., p. 8.

150

164
on sick leave in the former position, because this

question relates directly to the severity of an individual's impairments, one of the criteria used

to determine whether an impairment is

"substantially limiting" to a major life activity

and therefore a disability.331

On the other hand, an employer may ask

about the applicant's impairments, since only

impairments that substantially limit major life

activities are disabilities under the ADA; not all

impairments are disabilities. Therefore, because

a broken leg generally is considered too temporary to meet the criteria for an impairment that

is substantially limiting to a major life activity,

it is only an impairment and not a disability under the ADA, and an employer could ask an applicant with a broken leg questions about the

broken leg, such as how it happened.332 Since the

broken leg is only an impairment and does not

reach the level of a disability under the ADA,

questions about the broken leg are not likely to

elicit information about a disability. However, if

an employer asks such questions as "Do you expect the leg to heal normally?" or "Do your bones

break easily?" then, according to the guidance,

the employer has entered a potentially dangerous area because these questions are more likely

to elicit information about an underlying disability of more severity and permanence than a

broken leg.333 In another example in the guidance, an applicant for a receptionist position who

discloses that she will need periodic breaks to

take medication may be legally asked about how

long the breaks must last and how often they

will be needed but may not legally be asked the

medical reason why she is taking medication.334

The guidance answers several other questions relating to pre-offer questions. For example, the guidance states that an employer may

ask applicants about their certifications and licenses because "Nhese questions are not likely

to elicit information about an applicant's disability because there may be a number of reasons unrelated to disability why someone does

not haveor does not intend to geta certification/license."335 Employers may ask applicants

331 Ibid. 332 Ibid., p. 9. 333 Ibid. 334 Ibid. 336 Ibid., p. 8.

about arrest and conviction records for the same

reason.336 Generally, employers may not ask

whether applicants can perform major life activities such as standing, lifting, or walking because

such questions "are likely to elicit information

about a disability," since "if an applicant cannot

stand or walk, it is likely to be a result of a disability."337 The exception to this rule is if the

employer is asking specifically about the ability

to perform a job function.338

The guidance states that employers may not

ask applicants questions about their workers'

compensation history at the pre-offer stage,

again, because such questions are likely to elicit

information about a disability. Questions about

workers' compensation go directly to the severity

of an impairment, and severity is a criterion for

determining whether an impairment reaches the

level of a disability under the ADA.339 In addition, employers made not ask questions about

lawful drug use, since these questions also go to

the severity of an impairment. The exception

here is if the employer is administering a test for

illegal drugs and an applicant tests positive for

drug use, in which case an employer can inquire

as to lawful drug use to find possible explanations for the positive result, other than illegal

drug use.349 Similarly, an employer may ask

questions about prior illegal drug use, so long as

the employer does not ask about prior addiction

to drugs, since this is a covered disability under

the act."' Finally, the guidance states that an

employer may ask applicants to "self-identify"

themselves as persons with disabilities only

where the employer is asking for purposes of the

applicant's participation in the employer's affirmative action program for employees with

disabilities.342

Although the guidance attempts to clarify

EEOC's position with respect to disability-based

inquiries during the interview and screening

process at the pre-offer stage, it nonetheless suggests a fairly complicated and highly specific set

336 Ibid., p. 9.

"7 Ibid. 338 Ibid., pp. 9-10. 339 Ibid., p. 10. 346 Ibid., p. 11. 341 Ibid. 342 Ibid., p. 12.

151

165
of "do's" and "don'ts" of which employers must be

aware. For example, according to the guidance, an

employer may ask an applicant if he or she can

perform job functions "with or without reasonable

accommodation," and, in addition, an employer

may ask if an applicant will need reasonable accommodation for the hiring process. However, "an

employer may not ask a question in a manner

that requires an individual to disclose the need for

reasonable accommodation."343 Being permitted to

ask whether an applicant can perform job functions with or without reasonable accommodation

but not being permitted to ask an individual a

question in a manner that might require the applicant to disclose the need for reasonable accommodation seems a subtle distinction that easily

could be misunderstood.

Complexities on points of law discussed in the

guidance suggest that these issues may require

EEOC's particular attention with respect to technical assistance and outreach and education efforts. For example, with regard to the concept of

"major life activity," the guidance states that since

questions about whether an applicant can perform a major life activity such as standing, lifting,

walking, etc. "are almost always disability-related

because they are likely to elicit information about

a disability," such questions are therefore largely

impermissible, "unless they are specifically about

the ability to perform job functions."344

Knowing what an employer can and cannot

ask is a complicated matter that can lead to confusion about the questions that are permissible

under the ADA. Clearly, these examples and the

complicated nature of the reasoning on which

they are based indicate that employers must be

very familiar with the ADA in the hiring process.

As the questions and answers discussed in the

guidance suggest, before conducting an interview, an employer must be fully aware of the

distinction between an impairment and a disability under the ADA. An employer also must

be familiar with the distinction between a

"disability-related" question and one that is not,

and understand why this distinction is an important one. Moreover, an employer must be aware

of and understand technical terminology, such

as "substantial limitation" and "major life activity." These are just two terms from the statute

343 See Ibid., p. 4 n. 11.

344 Ibid., pp. 9-10.

an understanding of which can mean the diffeience between interview questions that are permissible under the ADA and those that are not.

Thus, it appears that because of the sheer

complexities associated with preemployment

inquiries and medical exams, any employer who

has not read EEOC's guidance thoroughly is in

danger of running afoul of the statute. More

than any other ADA-related issue, this one

seems to require the strongest efforts on the part

of EEOC to ensure dissemination of education to

all job applicants, employers, and businesses.

These efforts will require a significant amount of

technical assistance, outreach, and education to

ensure that all of these stakeholders have a good

understanding of how to proceed through the

various stages of the hiring process.

Due to the complexities involved in this area

of ADA law, it is particularly useful for employers, human resources staff, and private attorneys, as well as individuals with disabilities, to

have access to as much information as possible

relating to preemployment medical examinations and medical inquiries under the ADA. In

meeting this need, EEOC has worked in partnership with other government agencies and the

private sector in developing technical assistance

documents on these issues. For example, EEOC

provided legal sufficiency review of papers developed by staff at Cornell University's School of

Industrial and Labor Relations under a grant

from the National Institute on Disability and

Rehabilitation Research.345 These papers were

published by LRP Publications, a legal publisher, as part of its "ADA Practice Series" and

issued in 1993.346 They provide information to

employers on these ADA hiring issues in a userfriendly question and answer format similar to

that used by EEOC in its enforcement guidance.

345 See Miaskoff interview, p. 2. Ms. Miaskoff stated "the

coordination unit has reviewed a lot of technical assistance

material that was funded by NIDRR grants. The Cornell

School of Industrial Relations did a lot of these. One of the

conditions of these grants was that all technical assistance

documents be reviewed and approved for legal sufficiency by

EEOC." Ibid.

346 See Marjorie E. Karowe, Employment Screening, Medical

Examinations, Health Insurance, and the Americans with

Disabilities Act (Horesham, PA: LRP Publications, 1993);

Mary Anne Nester, "Pre-Employment Testing and the ADA"

(Cornell University, School of Industrial and Labor Relations and National Institute on Disability and Rehabilitation

Research, 1993).

152

166
EEOC should be commended for assisting in the

development and dissemination of these kinds of

publications. However, it remains unclear to

what extent or whether EEOC has worked with

outside organizations in developing technical

assistance materials on these issues in the period since 1993.

What Is a Medical Examination?

The guidance defines a medical examination

as "a procedure or test that seeks information

about an individual's physical or mental impairments or health."347 The guidance states that

at the pre-offer stage of the hiring process, an

employer may not require examinations that

seek information about physical or mental impairments or health.348 However, because "it is

not always easy to determine whether something

is a medical examination," the guidance lists

several inquiries to use in determining whether

a procedure is medical in nature, including:349

(1) Is it administered by a health care professional or someone trained by a health care

professional?

(2) Are the results interpreted by a health

care professional or someone trained by a

health care professional?

(3) Is it designed to reveal an impairment or

physical or mental health?

(4) Is the employer trying to determine the

applicant's physical or mental health or

impairments?

(5) Is it invasive (i.e., drawing of blood or

urine)?

(5) Does it measure an applicant's performance of task, or does it measure the applicant's physiological responses to performing the task?

(6) Is it normally given in a medical setting

(i.e., doctor's office)?

(7) Is medical equipment used?359

The guidance provides examples that help to

clarify its main points on pre-offer medical examinations. For example, the guidance notes

that in many cases, a combination of factors may

347 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations,"

p. 14. 349 Ibid. 349 Ibid. 356 Ibid.

1,4

be necessary in determining whether a procedure or test is a medical examination under the

ADA. To show the distinction between a nonmedical and a medical examination, the guidance uses the example of a test in which an employer requires applicants to lift a 30-pound box

and carry it 20 feet.354 The guidance notes that,

as described, this test is not a medical examination; it is merely a test of whether an applicant

can perform a job-related task. However, the

guidance observes that if the employer takes the

applicant's blood pressure or heart rate after he

or she has performed the task, then the test

would be a medical examination and would be

impermissible at the pre-offer stage.352

The guidance states that both physical agility

tests and physical fitness tests are not considered medical examinations, and thus are permissible at the pre-offer stage. However, the

guidance adds the caveat that such tests may be

in violation of other laws or other parts of the

ADA.353 Therefore, an employer that administers

such tests at the pre-offer stage must be able to

show that the practice of administering these

tests is job-related and consistent with business

necessity.354 The guidance also states that, generally, polygraph, nonmedical vision, and illegal drug use tests are all permissible under the

ADA, while alcohol tests are not.355

As with other issues relating to ADA, Federal

courts rely on EEOC's guidance in analyzing issues relating to preemployment inquires and

medical examinations at the pre-offer stage. For

example, in Grenier v. Cyanamid Plastics,

Inc.,356 the First Circuit reviewed a case in which

a former employee seeking reinstatement after

returning from disability leave argued that a

medical certification requested by his employer

to show he was again able to perform the functions of his job constituted a violation of the

ADA. Former employee Andre Grenier argued

that the employer violated the ADA on two

351 Ibid. 352 Ibid., p. 13-14. 353 Ibid. p. 15, n. 16, n. 17. 354 Ibid. For example, if such a test has an adverse impact

under title VII, or if such a test screens out applicants on

the basis of disability, the employer must show that the test

is job related and consistent with business necessity. Ibid. 355 Ibid., p. 17. 356 70 F.3d 667 (1st Cir. 1995).

153
grounds: first, by requesting a medical certification, which Grenier argued was a medical examination as defined under the ADA and therefore impermissible at the pre-offer stage; and,

second, that the medical certification constituted

an impermissible request for information to determine whether the employee was an individual

with a disability and, if so, the nature and severity of that disability.357

The First Circuit found with regard to the

first issue that the medical certification was not

an impermissible medical examination. Relying

on EEOC's guidance, the court noted:

The EEOC defined "medical examination" as follows:

Medical examinations are procedures or tests that

seek information about the existence, nature, or severity of an individual's physical or mental impairment, or that seek information regarding an individual's physical or psychological health. (citation omitted) We conclude that a certification from a treating

psychiatrist that does not necessitate new tests or

procedures is best analyzed as an "inquiry" rather

than as a "medical examination."358

The court also disagreed with Grenier's claim

that the medical certification constituted an impermissible request for information about his

disability.359 Again relying on EEOC's reasoning

in its guidance on the pre-offer stage, the court

noted that where an employer is aware of the

precise nature of a prospective employee's disability, either because it is obvious or because

the applicant voluntarily has disclosed the disability, an employer may inquire how the applicant would perform the essential functions of the

job, including what kind of reasonable accommodation the applicant may need.369 Moreover, the

court observed that the guidance stated that the

rationale behind this rule was "to ensure that an

applicant's possible hidden disability (including

prior history of a disability) is not considered by

357 Id. at 674-75.

358 Id. at 675-76.

359 Id. at 676. The court further noted that the defendant

argued that Grenier should be treated as an existing employee returning from disability leave, in which case it

would be able to demand medical certification of ability to

return to work under the ADA provisions for medical examinations of existing employees. Id. at 676-77 (citing 42

U.S.C. § 12112(d) (4) (1994)).

360 Id. at 677 (citing EEOC, "Preemployment DisabilityRelated Questions and Medical Examinations," pp. 6-7).

the employer prior to the assessment of the applicant's non-medical qualifications."361 However, the court noted that "[w]ith respect to

known disabilities," EEOC's guidance indicates

that once an employer is aware of the presence

of a disability, the employer may begin to, and is

encouraged to, "engage in an interactive process

with the individual to determine an effective

reasonable accommodation."362

Under the court's reasoning, the facts in

Grenier placed it squarely within the category of

cases where the employer has full knowledge of

the prospective employee's disability.363 Therefore, the court applied EEOC's guidance on the

pre-offer stage relating to situations involving a

job applicant with a known disability:

There could be no meaningful interaction if this court

would accept the strict interpretation. Grenier presses

on us that an employer who knows the precise nature

of a disability that interferes with essential job functions cannot, on being informed pre-offer that accommodation will be necessary, follow up with the logical

question "what kind?" In sum, an employer does not

violate §12112(d)(2) of the ADA by requiring a former

employee with a recent known disability applying for

re-employment to provide medical certification as to

ability to return to work with or without reasonable

accommodation, and as to the type of any reasonable

accommodation necessary, as long as it is relevant to

the assessment of ability to perform essential job

functions.364

361 Id.

362 Id.

363 In a similar case under the Rehabilitation Act, Brumley

v. Pena, 62 F.3d 277 (8th Cir. 1995), the Eighth Circuit addressed a factual situation in which a mentally disabled

former employee of the Federal Aviation Administration

(FAA) who sought priority consideration for restoration to

Federal employment under a statutory scheme that predicated the level of priority for reemployinent on the extent of

recovery from the disability. He challenged the agency's

demand for a preemployment examination by a psychiatrist

to determine whether he was fully or only partially recovered from his severe reactive depression. Id. at 279. In questioning the application of the statute's regulations, the court

noted that "the dilemma here is that Brumley is not an outside job applicant seeking employment at the FAA for the

first time Rather, he is a recipient of. . .disability payments

who is seeking to exercise his re-employment rights with the

FAA." Id. The court concluded that the employer "retains

the right to require that [the former employee's] medical

condition be verified in order to determine his re- employment rights." Id.

364 Grenier, 70 F.3d at 677-78.

154

168
The Grenier case provides a good example of

how EEOC's enforcement guidance on ADA issues has been influential in helping the courts to

analyze ADA issues, and, in turn, shape ADA

law relating to these issues. EEOC's guidance on

preemployment inquiries and medical examinations has been particularly useful given the

complexities and nuances of ADA law in this

area. EEOC's guidance has afforded the courts a

useful point of departure for analyzing issues not

directly addressed in the law itself or its legislative history, such as the application of pre-offer

inquires and medical examinations for employees with known disabilities seeking reinstatement to their former positions.

The Post-Offer Stage

Once an employer has made a conditional

offer of employment, under the ADA, the process

has entered a new and significantly different

second stage that allows the employer to scrutinize more closely the qualifications of the prospective employee.365 The guidance explains that

the employer may now ask disability-related

questions and perform medical examinations, as

well as ask about an individual's workers' compensation history; prior sick leave usage, illnesses, diseases, or impairments; and general

physical and mental health.366 Moreover, an employer may ask for followup medical examinations for some individuals, may ask all individuals whether they need reasonable accommodation to perform the job, and may ask for documentation of disability from those individuals

who request reasonable accommodation.367 However, if an employer asks post-offer disabilityrelated questions or requires post-offer medical

examinations, the employer must ensure that all

entering employees in the same job category are

subjected to the examination or inquiry regardless of disability, and keep all medical information obtained confidentia1.368

365 42 U.S.C. 12112(d) (3) (1994) (explaining that an employer may condition an offer of employment on the results

of a preemployment medical examination).

366 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations,"

p. 18.

367 Ibid., pp. 19-20.

368 Ibid.

The guidance states that a "real" or bona fide

job offer has been made when "the employer has

evaluated all relevant non-medical information

which it reasonably could have obtained and

analyzed prior to giving the offer."369 The guidance notes that there may be times when it is

impossible for an employer to obtain and evaluate all nonmedical information at the pre-offer

stage. For example, if an applicant requests an

employer not to do a reference check until after a

conditional offer is made, it would be impossible

for the employer's offer to be "real."379 It is a

violation of the ADA for an employer to make a

real, conditional offer of employment to the applicant only after conducting an examination.371 This kind of violation has been termed a

"premature medical examination."372

The caselaw offers an example that addresses

the "premature medical examination" violation..

In Buchanan v. City of San Antonio,373 a patrolman for a local sheriffs department who suffered from an on-the-job back injury sought a job

with the San Antonio police force. In Buchanan,

the Fifth Circuit determined that a medical examination conducted after a conditional offer of

employment was still a "premature medical examination" where the employer, in this case the

City of San Antonio, included the medical examination as a condition of employment along

with the entire screening process, including

nonmedical testing. The court wrote:

Buchanan established through the city's own records

that Buchanan was given a medical examination in

August of 1992. . . . We cannot agree with the city

that it conducted a medical examination only after it

had made a conditional offer of employment. While

Buchanan did sign an acknowledgment in May of

1992 that he was receiving a conditional offer of employment, the document itself makes clear that the

369 Ibid.

379 Ibid., p. 19.

371 See 42 U.S_C. 12112(d) (2)(3) (1994).

372 Jan W. Sturner, "Comment: Preemployment Medical

Exams Under the ADA: Conditional Job Offers and the Application of the Mixed-Motives Framework," Arkansas Law

Review vol. 50 (1997), pp. 449, 453 (hereafter cited as

Sturner, "Preemployment Medical Exams") (citing Buchanan v. City of San Antonio, 85 F.3d 196, 199-200 (5th Cir.

1996) (reading the ADA to require a causal link between a

prohibited medical examination under the ADA and the

damages sought by plaintiff)).

373 85 F.3d 196 (5th Cir. 1996).

155
offer was not conditioned solely on a medical examination, but was instead conditioned on successful

completion of "the entire screening process," which

included "physical and psychological examinations, a

polygraph examination, a physical fitness test, an

assessment board, and an extensive background investigation."374

An employer also will violate the statute by

failing to treat medical information obtained

from a preemployment examination as confidential or to keep the information in a separate

file.375 The guidance addresses the statute's requirements for employer confidentiality at the

post-offer stage. An employer must keep all

medical information confidential with a few

"limited exceptions," including certain supervisors and managers, first aid and safety personnel, government officials investigating compliance with ADA, and State workers' compensation offices; and for insurance purposes.376

Also with regard to confidentiality requirements, the guidance notes that an employer's

obligation extends to medical information voluntarily disclosed by an individual. The employer's

confidentiality requirement does not end when

the person is no longer an employee or an applicant.377 Finally, an employer may not keep medical information in an employee's regular personnel file, although employers are not required to

remove medical information obtained before the

ADA's effective date from employee personnel

files.378

Workers' Compensation and the ADA

In September 1996, EEOC issued enforcement guidance on workers' compensation and

the ADA.379 This document covers a number of

issues, in question and answer format, including

confidentiality of medical information, hiring

374 85 F.3d at 199.

375 See 42 U.S.C. § 12112(d) (3) (B) (1994). See also Sturner,

"Preemployment Medical Exams," p. 453.

376 EEOC, "ADA Enforcement Guidance: Pre-employment

Disability-Related Questions and Medical Examinations,"

p. 21.

3" Ibid., pp. 22-23.

378 Ibid.

379 EEOC, "EEOC Enforcement Guidance: Worker's Compensation and the American with Disabilities Act," (EEOC Notice

915.002), Sept. 3, 1996 (hereafter cited as "Enforcement Guidance: Workers' Compensation and the ADA").

decisions, return to work decisions, reasonable

accommodation, light duty, and exclusive remedy provisions in workers' compensation laws.389

EEOC notes that the ADA and workers' compensation laws are not in conflict. However, the

interaction among them has raised many questions for EEOC investigators, employers, and

individuals with disabilities.381 One commentator noted:

the most significant impacts of the ADA in the workers' compensation context are most likely the prohibition on screening applicants through preemployment

medical examinations or questions, the restrictions on

the use of medical examinations generally, and the

limited authorized use and dissemination of the results of such examinations. Another major impact of

the ADA on workers' compensation is the requirement

that employers retain workers injured on the job,

even when the worker may no longer be able to perform all of the duties of that job.382

The key difference between the ADA and workers'

compensation laws is that the ADA is a civil

rights law designed to address employment discrimination. The purpose of State workers' compensation laws is to compensate employees for

lost wages or earnings potentia1.383 Thus, the ADA

is applied differently from workers' compensation

laws. For example, to determine the applicability

of a workers' compensation law, the State must

first determine whether the claimant has suffered

loss of wages or a future loss of wages due to a

work-related injury. Under the ADA, one must

determine if the individual has a disability under

the law and if that person is a "qualified individual" under the law. Further, workers' compensation laws have no requirement for the provision of

reasonable accommodation.384

380 Ibid., pp. 1-2.

381 Ibid., p. 3.

382 Ranko Shiraki Oliver, "The Impact of Title I of the Americans with Disabilities Act of 1990 on Workers' Compensation

Law," University of Arkansas Little Rock Law Journal, vol. 16

(1994), p. 349 (hereafter cited as Oliver, "The Impact of Title I

of the ADA on Workers' Compensation Law").

383 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 1; Barbara C. Deinhardt, "Title I of the

Americans with Disabilities Act and Workers' Compensation: A Call for Discussion," Employee Benefits Journal, vol.

18, no. 4 (December 1993), p. 20 (hereafter cited as Deinhardt, "Title I of the ADA and Workers' Compensation").

384 Deinhardt, "Title I of the ADA and Workers' Compensation," pp. 21, 23.

156

170
Disabilities and Occupational Injuries

According to the EEOC guidance, not everyone with an occupational injury has a disability

for purposes of the ADA.385 A person who has

suffered an occupational injury is covered under

the ADA only if the injury is a physical or mental impairment that substantially limits a major

life activity, if the individual has a record of an

impairment that substantially limits a major life

activity, or if the individual is regarded as having an impairment that substantially limits a

major life activity, as defined in the statute.386

The guidance states that occupational injuries

that are temporary, nonchronic, or have little or

no long term impact do not meet the definition of

disability under the ADA. Further, an impairment that results from an occupational injury

may not be severe enough to impose a substantial limit on a major life activity.387

The guidance also states that having filed a

workers' compensation claim does not necessarily mean that an employee has a record of having a disability under the ADA. An employee

who has or has had an occupational injury is

considered to have a record of having a disability

under the ADA only if the individual has a history of having a mental or physical impairment

that substantially limits one or more life activities, or has been misclassified as such. Further,

a person with an occupational injury may have a

disability under the ADA if he or she is viewed

as having an impairment that limits a major life

activity, is limited in a major life activity because of the attitudes of others, or is treated as if

he or she has a substantially limiting impairment. For example, if an employee has recovered

from an occupational injury, but the employer

views him or her as not being able to perform

the duties of the job because of the injury, that

employee is regarded by the employer has having an impairment that substantially limits the

major life activity of working, and thus is covered under the ADA.388

385 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 2.

386 See 42 U.S.C. § 12102(2) (1994). See also EEOC,

"Enforcement Guidance: Workers' Compensation and the

ADA," p. 2.

397 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 2.

388 Ibid., pp. 2-3.

One commentator has noted inconsistency in

EEOC's guidance concerning occupational injuries as disabilities. According to this commentator, EEOC states that a person with a temporary

injury does not have a disability under the ADA.

However, persons who are "regarded as" disabled are covered. Thus, "Mr' attorney for a

worker with a broken leg who was refused an

accommodation could argue that the employer

regarded the worker as having a disability. "389 In

fact, this issue is addressed in the EEOC enforcement guidance. The discussion of the

"regarded as" prong provided by EEOC includes

the example of an employee with an occupational injury that resulted in a temporary back

impairment. Although this impairment does not

substantially limit a major life activity, the employer views the employee as not being able to

perform some of the essential functions of the

job. Thus, this employee would have a disability

under the ADA.380

Questions and Examinations

According to the guidance on workers' compensation, it is only after- a conditional offer of

employment has been made that an employer

may require a medical examination391 or inquire

about an applicant's prior workers' compensation

claims or occupational injuries.392 However, such

requests may be made only if they are made of

all employees. Further, an employer may not, at

any time, obtain from third parties information

on workers' compensation claims or occupational

injuries that it cannot obtain lawfully from the

applicant.393

To determine if an employee is able to perform

the essential functions of the job or to determine if

389 Edward M. Welch, Employer's Guide to Workers' Compensation (Washington, DC: Bureau of National Affairs,

1994), pp. 12-13.

399 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 3.

391 EEOC provides more detailed information on disabilityrelated questions and medical examinations in a separate

enforcement guidance. EEOC, "ADA Enforcement Guidance:

Preemployment Disability-Related Questions and Medical

Examinations" (undated) (hereafter cited as EEOC,

"Preemployment Disability-Related Questions and Medical

Examinations").

392 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," pp. 4.

393 Ibid., pp. 4-5.

157

171
an employee's condition poses a direct threat,394

an employer may ask disability-related questions

or require a medical examination of an employee

at the time he or she suffers an occupational injury or when the employee seeks to return to work

after the injury. Such questions or examination

must be job related and consistent with business

necessity and may not go beyond the scope of the

specific occupational injury experienced. Similarly, an employer may ask disability-related

questions or require a medical examination of an

employee who has had an occupational injury to

determine the extent of its liability under workers' compensation laws. An employer also may

request relevant information when an employee

requests a reasonable accommodation to a disability-related occupational injury.395

Medical information collected on an employee

must be kept confidential. Such information

should be collected on separate forms and maintained in a separate medical file. The information can be disclosed to supervisors and managers (so that they may know about the necessary

work restrictions of the individual); first aid and

safety personnel, if necessary; and government

officials conducting investigations of compliance

with the ADA. In addition, confidential medical

information may be disclosed, in accordance with

State workers' compensation laws, to State

workers' compensation offices, State second injury funds, and workers' compensation insurance carriers. Employers may also report medical information for insurance purposes.396

Hiring and Return to Work Decisions

EEOC states that an employer may not refuse to hire an individual with a disability because it assumes that person will be at greater

risk to experience an occupational injury and

thus raise the employer's workers' compensation

costs, even if that individual has experienced a

prior occupational injury:

Where an employer refuses to hire a person because it

assumes, correctly or incorrectly, that, because of a

394 Direct threat is defined as "a significant risk of substantial harm to the health or safety of the individual or others

that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r) (1997).

395 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," pp. 5-6.

396 Ibid., p. 7.

disability, s/he poses merely some increased risk of

occupational injury and, therefore, increased workers'

compensation costs), the employer discriminates

against that person on the basis of disability. The

employer can refuse to hire the person only if it can

show that his/her employment in the position poses a

"direct threat." This means that an employer may not

"err on the side of safety" simply because of a potential health or safety risk. Rather, the employer must

demonstrate that the risk rises to the level of a direct

threat.397

Similarly, an employer may not refuse to return

to work an employee with a disability-related

occupational injury nor require such an employee to be able to return to "full duty" before

returning to work.

According to EEOC, even if it has been determined in a workers' compensation claim that

the employee has a "permanent disability" or is

"totally disabled," an employer may not refuse to

return to work an employee with a disabilityrelated occupational injury. This is because

workers' compensation laws may have different

standards for determining whether a person has

a disability and is capable of working.398 In other

guidance, EEOC has stated clearly that the purpose of the ADA differs from the Social Security

Act and workers' compensation and, thus, the

ADA's definition of "qualified individual with a

disability" is not the same as definitions of disability used in other laws.399 In particular, the

ADA provides for reasonable accommodation in

determining whether an individual is able to

work. The Social Security Act, on the other

hand, is based on a model of disability in which

it is assumed that a person with a disability

cannot work.499

The enforcement guidance on workers' compensation also notes that the employer is responsible for making the decision of whether an

employee with a disability-related occupational

injury is able to return to work. The employer

397 Ibid., p. 8.

398 Ibid., pp. 12-13.

399 EEOC, "EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits on the Determination of Whether a Person Is a 'Qualified Individual

with a Disability' Under the Americans with Disabilities Act of

1990 (ADA)," (EEOC Notice 915.002), Feb. 12, 1997, p.

(hereafter cited as EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits").

400 Ibid., p. 8.

158

172
may seek advice from the employee's rehabilitation counselor, physician, or other specialist on

the employee's limitations or need for reasonable

accommodation, but those individuals do not

make the decision of when the employee is able

to return to work. If the employee is able to perform the essential functions of the job, with or

without reasonable accommodation, the employee may return to work.401

Reasonable Accommodation

According to the EEOC guidance, if an employee suffers a disability-related occupational

injury and is unable to work temporarily, the

employer may not discharge the employee if it

would not be an undue hardship to provide leave

as a reasonable accommodation. If the employer

can demonstrate that holding the position open

is an undue hardship, the employer is required

to determine if it has an equivalent vacant position to which the employee can be reassigned to

continue his or her leave without causing undue

hardship. If such a position is not available, the

employer must consider vacant positions at a

lower level. If there are no vacant positions to

which the employee can be reassigned to continue his or her leave without causing undue

hardship, continued leave is not considered a

reasonable accommodation.402

If an employee with a disability-related occupational injury requests leave as a reasonable accommodation, the employer is allowed to provide

a different accommodation that will enable the

employee to remain on the job. Other reasonable

accommodations include reallocation of marginal

functions, or, if the employee is unable to perform

the essential functions of the position, assignment

to another position. The employer is under no obligation to create a new position or remove another employee from his or her position.403

If an employee is reassigned as a reasonable

accommodation, once the employee is able to

perform the essential functions of his or her

original position, with or without reasonable accommodation, the employer must restore the

employee's original duties. However, the employer may not reassign an employee with a dis401 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," pp. 14-15.

402 Ibid., p. 16.

403 Ibid., pp. 16-18.

ability-related occupational injury to a different

position without first trying to provide a reasonable accommodation for the employee in his or

her original position.404

The enforcement guidance notes that employees' rights under the ADA are separate from entitlements under workers' compensation laws.

Thus, an employer may not place the employer in

a workers' compensation vocational rehabilitation

program instead of providing a reasonable accommodation.405 The guidance also states that the

employer may make a workplace modification

that is not a required form of reasonable accommodation under the ADA if it will offset workers'

compensation costs. For example, although the

ADA does not require an employer to lower production standards as a reasonable accommodation, the employer may do so if it will enable the

employee to return to work more quickly.406

Although not mentioned in the EEOC guidance, a clear distinction between the ADA and

many workers' compensation laws is the requirement of reasonable accommodation. One

author provided the example of New York Workers' Compensation Laws. The State law has been

interpreted as allowing the termination of an

employee with a disability-related occupational

injury who has been absent from work if the

termination is consistent with the employer's

absenteeism policy.407 Under the ADA, such a

policy would be discriminatory, unless the employer can demonstrate that providing additional leave would cause an undue hardship.

Light Duty

"Light duty" refers to "positions created specifically for the purpose of providing work for

employees who are unable to perform some or all

of their normal duties."408 Light duty may take

404 Ibid.

405 Ibid., p. 18. However, an employer may always provide

more than is required as a reasonable accommodation.

Thus, the guidance suggests that when an employee is receiving workers' compensation benefits, an employer may

have an added incentive to go beyond the ADA. See EEOC

Comments, p. 16.

406 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," pp. 19-20.

407 Deinhardt, "Title I of the ADA and Workers' Compensation," p. 22.

408 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 20.

159

17 4
several forms, including less demanding duties,

sedentary positions, and removal of demanding

duties of the job. The ADA does not prohibit the

creation of light duty jobs for employees who are

injured on the job. The creation of a light duty

position is not required for an employee with a

disability who has not suffered an occupational

injury, but the employer must provide other

forms of accommodation that are available. If an

employer has light duty positions that it reserves for employees who are injured on the job,

and there is no other way to accommodate an

individual with a disability who has not been

injured on the job, then the employer must place

the employee with a disability in a light duty

position, if one is vacant.409

Exclusive Remedy Provisions

The EEOC guidance notes that exclusive

remedy provisions of workers' compensation

laws do not prohibit employees from pursuing

claims under the ADA. Exclusive remedy provisions protect employers from being sued under

common law theories of personal injury for occupational injury. However, the courts have held

that this does not bar claims arising from Federal civil rights laws.410

The enforcement guidance, however, does not

address the issue of double protection under the

laws. Under workers' compensation laws, an

outcome may be reached in a "compromise and

release" agreement.411 However, such an agreement does not relieve an employer of its requirements under the ADA, which requires an

employer to return an employee with a disability-related occupational injury to work.412 According to commentators:

Research has shown that most injured workers who

settle their compensation claims spend most of their

money within three years of settlement. Many of

these individuals are supported eventually by other

social systems, such as social security, unemployment

insurance, and even public welfare. Even though dou403 Ibid., pp. 20-23.

410 Ibid., p. 23.

411 See e.g., Cal. Labor Code §§ 5000-5001 (West 1989).

412 Bruce S. Growick and Patrick L. Dunn, "The Americans

with Disabilities Act and Workers' Compensation: Critical

Issues and Major Effects," Cornell University, School of

Industrial Relations and the National Institute on Disability

and Rehabilitation Research, 1995, p. 15.

ble protection may be frightening to some employers,

its effect may help employers to save money and employees to save their jobs.413

Another commentator has noted that this

"seeming conflict" between the two statutes can be

resolved. Exclusive remedy procedures apply to

civil actions against an employer for occupational

injuries. A discrimination charge is not inconsistent with this provision because it is not seeking

additional relief for the injury; it is seeking relief

for the employer's failure to comply with title I.

According to this commentator, "[a]n injured

worker not allowed to return to work because of

discrimination based on race or sex could similarly receive damages for such discrimination in

addition to workers' compensation."414

Other Issues

Overall, this enforcement guidance provides

clear analysis and valuable information on disability claims deriving from work-related injuries. Written mainly for EEOC investigative

staff, its simple, direct language makes it accessible to a variety of stakeholders, especially employers and individuals with disabilities themselves.

With respect to the ADA's relationship to

State workers' compensation laws, among the

issues of concern415 is a need for integrating

companies' ADA policies and procedures and the

workers' compensation process. Companies' return-to-work policies are designed to be com413 Ibid., pp. 11-15.

414 Oliver, "The Impact of Title I of the ADA on Workers'

Compensation Law," pp. 370-71.

413 One commentator has noted that State workers' compensation agencies must educate employers and encourage their

compliance with the ADA. Such assistance may result in the

accommodation of more employees with disabilities and

decreased workers' compensation premium costs. State

agencies also could counsel claimants and notify them of

their rights under the ADA. Deinhardt, "Title I of the ADA

and Workers' Compensation," pp. 24-25. In addition, there

are other important measures relating to State workers'

compensation laws that could benefit stakeholders. For example, State workers' compensation systems could require

physicians to provide more detail on the nature of a claimant's disability so that employers would be aware of the

work restrictions of an employee with a disability-related

occupational injury. This information would allow the employer to plan more appropriately for a reasonable accommodation. Similarly, according to the commentator, rehabilitation professionals could provide information on the types

of accommodations that are required. Ibid., p. 25.

160

174
patible with workers' compensation requirements, and need to be revised in light of the

ADA. Also, employers must be aware of when an

employee who suffered an occupational injury

also is considered to have a disability under the

ADA.416

EEOC has not addressed in its enforcement

guidance the issue of how the ADA and workers'

compensation laws interact. However, its Technical Assistance Manual provides important information on the relationship between workers'

compensation laws and the ADA not in the enforcement guidance. The manual provides a brief

description of State second injury funds and

states that employers are not prohibited from

providing information to second injury funds, as

required by State workers' compensation laws.417

Applications for Benefits and

"Qualified Individual with a

Disability"

In February 1997, EEOC released enforcement guidance addressing the effect of representations made in applications for disability benefits on the determination of whether a person is

a "qualified individual with a disability" under

the ADA.4 18 The guidance takes the position that

representations about the ability to work made

when applying for social security, workers' compensation, disability insurance, and other disability benefits should not bar an individual

from filing an ADA charge. This guidance provides specific instructions for EEOC investigators working on cases involving this kind of

situation.419

EEOC issued the guidance in response to a

trend in the courts to bar ADA claims by plain416 Richard K. Pimentel and others, The Workers' Compensation-ADA Connection: Supervisory Tools for Workers' Compensation Cost Containment That Reduce ADA Liability

(Chatsworth, CA: Milt Wright & Associates, Inc., 1993), p. 15.

417 EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities

Act, (EEOCM-1A), January 1992, p. IX-6 (hereafter cited

as EEOC, ADA Technical Assistance Manual).

419 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits."

419 According to EEOC, a "qualified individual with a disability" is "an individual with a disability who satisfies the

requisite skill, experience, education and other job-related

requirements of the employment position...and who, with or

without reasonable accommodation, can perform the essential functions of [the] position." Ibid., p. i.

BEST COPY AVAILABLE

tiffs who had previously applied for disability

benefits such as social security or workers' compensation benefits.420 This bar to a claim is referred to as judicial estoppe1.421 ADA claims

based on judicial estoppel have turned on the

issue of whether an individual who has made a

sworn statement that he or she was permanently

and totally disabled under a disability benefits plan can legally claim that he or she is a

"qualified individual with a disability" under the

ADA.422 One court that disagrees with EEOC on

420 See August v. Offices Unlimited, Inc., 981 F.2d 576 (1st

Cir. 1992); Reigel v. Kaiser Foundation Health Plan of

North Carolina, 859 F. Supp. 963 (E.DN.C. 1994). The

courts are not consistent on this issue, and critics are concerned with the uneven treatment of ADA cases by the

courts: "The most distinct and disconcerting trend that has

emerged in Title I employment litigation is the summary

dismissal of ADA claims where the individual has also applied for, or is in receipt of Social Security Disability Insurance, workers' compensation, benefits under a long term

disability policy, or has made a representation in some forum or other venue regarding their ability to work. . . ."

Wendy Wilkinson, "Judicially Crafted Barriers to Brining

Suit Under the Americans with Disabilities Act," South

Texas Law Review, vol. 38, p. 912.

421 Judicial estoppel "is applied to the calculated assertion of

divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings." McKinnon v. Blue Cross & Blue Shield of

Ala., 935 F.2d 1187, 1192 (11th Cir.1991) (quoting American

Nat'l Bank v. Federal Deposit Ins. Corp., 710 F.2d 1528,

1536 (11th Cir.1983)).

Judicial estoppel may be defined as a legal term that generally refers to preventing a party from arguing a point when

such an argument would contradict a statement or legal

argument made in an earlier legal proceeding. Essentially,

estoppel is used to preclude a second action when an identical issue has been decided in another proceeding. In ADA

cases, judicial estoppel is often applied when a plaintiff has

filed for workers' compensation, social security, or other

disability-related benefits. Anne E. Beaumont, "This Judicial Estoppel Has Got to Stop: Judicial Estoppel and the

Americans with Disabilities Act," New York University Law

Review, vol. 71, p.1551 (hereafter cited as, Beaumont, "This

Judicial Estoppel Has Got to Stop"), citing to Black's Law

Dictionary 551-52 (6th ed. 1990). According to Wilkinson,

the forms of estoppel used in ADA cases most closely resemble issue preclusion, judicial estoppel, estoppel in pais, estoppel by inconsistent positions, and equitable estoppel.

Wilkinson, "Judicially Crafter Barriers to Bringing Suit

Under the ADA").

422 See Marney Sue Collins, "Comment: Estop It! Judicial

Estoppel and its Use in Americans with Disabilities Act

Litigation," Houston Law Review, vol. 34 (Fall 1997), p. 843

(explaining that "[a]ccording to the proponents of the argument, the ADA applies only to qualified individuals with

disabilities. In order to be qualified, the plaintiff must be

able to perform the essential functions of her job, with or

without reasonable accommodation. Proponents argue that

161

A. 5
this issue set forth the opposing view in stark

terms when it stated that an ADA claimant receiving disability benefits "simply cannot be disabled, yet claim that he is capable of working."423

This is the precise conclusion EEOC seeks to

refute in this guidance.

As of mid-1998, the Supreme Court had not

become involved in the continuing controversy

over whether or not judicial estoppel can be applied in instances where a person with a disability has both filed for disability benefits and

brought an ADA suit against an employer. The

Court could resolve this issue. According to one

commentator: "The concept of judicial estoppel

has some superficial logical appeal. However, it

absolves courts of the obligation to engage in

thorough statutory interpretation, and it perpetuates negative stereotypes about the ability

of people with disabilities to participate in the

workplace."424

EEOC advances legal and public policy arguments to support its position that the application of judicial estoppel in this context wrongly

interprets the ADA and thwarts its purposes. In

making these arguments, the guidance relies on

a comparison demonstrating the differences between the purposes and standards of the ADA

and those of the various disability benefit

schemes. Essentially, EEOC bases its legal argument on the following proposition: because the

purposes of the laws and the standards set forth

in law and regulations for designated disability

are different, being designated as permanently

or totally disabled for the purposes of receiving

benefits does not preclude ability to work under

the ADA.425 These differences serve as EEOC's

rationale for why courts' application of the judicial estoppel bar in this context is based on

flawed reasoning. EEOC's public policy argument in this guidance derives from concerns

when a plaintiff asserts that she is totally disabled for disability benefit purposes, the plaintiff is no longer a qualified

individual under the ADA. Because being qualified is an

element of an ADA cause of action, the employers argue that

the plaintiffs are unable to prevail on their ADA claims as a

matter of law." Ibid., pp. 844-45) (citations omitted).

423 Shaheen v. Amsted Industries, Inc., 1997 U.S. App.

LEXIS 35312 (6th Cir. 1997).

424 Beaumont, "This Judicial Estoppel Has Got to Stop,"

p. 1577.

425 EEOC, "Enforcement Guidance: Workers' Compensation

and the ADA," p. 13.

quite similar to those made in the following

statements:

judicial estoppel forces the individual with a disability

to waive rights she does not even know she might

need to enforce. The threat of judicial estoppel of a

possible, future ADA claim renders it nearly impossible for an individual with a disability who needs immediate income support, but who also might have a

future ADA claimincluding a claim based on a discriminatory act that has not yet occurredto make an

intelligent choice about how to proceed at the onset of

her disability.426

EEOC supports its arguments with a thorough analysis that incorporates the relevant

caselaw. It also makes excellent use of hypothetical examples to illustrate its key points.

Overall, the document's discussion of the judicial

estoppel issue presents one of EEOC's most indepth and detailed statements clarifying the

purposes and goals of the ADA that the agency

has produced to date. The guidance's legal

analysis demonstrates common sense logic,

thoughtful insight, and consistency with the

purposes of the ADA.

IntroductionJudicial Estoppel

The guidance opens by reiterating the language of the ADA statute and EEOC's title I

regulations, which state that, to be protected under the ADA, an individual must be a

"qualified individual with a disability."427 The

term "qualified individual with a disability" is

crucial to this discussion, because in ADA cases

in which the judicial estoppel analysis has been

applied, the claimant previously has filed for

disability benefits and represented that he or

she met the relevant eligibility requirements of

such plans, or, in other words, that he or she was

"totally disabled," or "unable to work." The judi426 Beaumont, "This Judicial Estoppel Has Got to Stop,"

p. 1572.

427 Because the term "qualified individual with a disability,"

plays a key role in addressing the judicial estoppel issue,

EEOC introduces this enforcement guidance with the definition of this term. The guidance states that a "qualified individual with a disability" is "an individual with a disability who

satisfies the requisite skill, experience, education and other

job-related requirements of the employment position such

individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of

such position." EEOC, "Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits," p. 1.

162

176
cial estoppel issue has arisen, for example,

where courts have found that statements made

on applications for social security benefits to the

effect that the plaintiff is unable to work create a

presumption that the plaintiff must rebut in order to show that he or she is qualed to work.428

EEOC, however, disagrees with this interpretation of the law. EEOC states that its position is

that representations made in connection with an

application for disability benefits should not be

an automatic bar to an ADA claim.429 A majority

of courts agree with EEOC's interpretation.439

For instance, in Griffith v. Wal-Mart Stores, Inc.,

the Sixth Circuit found that statements made in

an application for social security disability benefits, while relevant, do not require application of

judicial estoppel, in part because such applications give no consideration to an individual's

ability to work with reasonable accommodation,

which is required under the ADA.431 In Talavera

v. School Board of Palm Beach County, the Eleventh Circuit reversed a district court's finding

428 See, e.g., McConathy v. Dr. Pepper/Seven Up Corp., 131

F.3d 558, 562-563,1998 U.S. App. LEXIS 1058, *10 (5th

Cir., 1998) (holding that statements on a social security

benefits application created a presumption that plaintiff was

not a qualified person with a disability and that plaintiff

provided no evidence to rebut this presumption); see also

Shaheen v. Amsted Industries, Inc., 1997 U.S. App. LEXIS

35312, *3 (6th Cir. 1997) (finding that judicial estoppel was

the appropriate analysis to employ where claimant continued to receive disability benefits while seeking reinstatement under ADA). 429 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. i. 430 See, e.g. McCreary v. Libbey-Owens-Ford Co., 132 F.3d

1159, 7 1164 (7th Cir. 1997) (finding that statements certified to the Social Security Administration claiming inability

to work do not bar ADA claims because Social Security Administration definition of disability differs from that of the

ADA, making disability benefits application statements

inconclusive in an ADA case); Blanton v. Inco Alloys Intl,

123 F.3d 916, 917 (6th Cir. 1997) (finding that receipt of

social security benefits does not automatically estop an ADA

plaintiff from claiming he could perform his job, although it

is a factor to consider); Weigel v. Target Stores, 122 F.3d

461, 466-67 (7th Cir. 1997) (holding that because the Social

Security Administration's definition of disability, as well as

those of most disability insurance plans, differs materially

from the ADA's definition of a "qualified individual with a

disability," these representations are not conclusive as to the

ADA). Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992)

(a determination of disability for Social Security Act purposes cannot be construed as a judgment that an individual

cannot do a particular job). 431 Griffith v. Wal-Mart Stores, Inc.,' 135 F.3d 376 (6th Cir.

1998).

that an ADA plaintiff who has claimed total disability on a benefits application is per se estopped from claiming she could work with reasonable accommodation, because the Social Security Administration, in determining

"disability," does not take into account the potential effect of reasonable accommodation on the

claimant's ability to work.432 In another case,

Smith v. Douenmuehle Mortgage Inc., a district

court held that the plaintiff was not judicially

estopped from arguing that he was qualified under the ADA based on the reasoning that to hold

otherwise would put the plaintiff "in the untenable position" of having to choose between his

right to seek disability benefits and his right to

seek redress for a possible violation of the ADA

and that judicial estoppel would frustrate the

ADA's purpose of combating discrimination

against people with disabilities.433

Other courts, however, are interpreting the

law based on a judicial estoppel analysis.434 For

instance, the Sixth Circuit, in Shaheen v. Amsted

Industries, Inc., found judicial estoppel the appropriate analysis to employ where claimant continues to receive disability disabilities benefits and

seeks reinstatement under ADA.435 In McNemar

v. Disney Store, the Third Circuit held that an

HIV-positive store manager who had stated on

applications for disability benefits that he was

totally and permanently disabled and unable to

work was judicially estopped from claiming he

was a qualified individual under the ADA.436

EEOC states that it has five purposes with

this guidance. The first is to analyze the differ432 Talavera v. School Bd. of Palm Beach County, 129 F.3d

1214, 1220 (11th Cir. 1997). 433 Smith v. Dovenmuehle Mortgage, Inc., 859 F. Supp.

1138, 1141-43 (N. D. Ill. 1994). 434 See, e.g., McConathy v. Dr. Pepper/Seven Up Corp., 1998

U.S. App. LEXIS 1058, *10 (5th Cir., 1998) (holding that

statements on a Social Security benefits application created a

presumption that plaintiff was not a qualified person with a

disability and she provided no evidence to rebut this presumption); August v. Offices Unlimited, Inc., 981 F.2d 576, 583-84

(1st Cir. 1992) (treating the plaintiffs statements regarding

disability to insurance carriers as binding admissions). 435 1997 U.S. App. LEXIS 35312, *3 (6th Cir. 1997). 436 McNemar v. Disney Store, 91 F.3d 610, 619-21 (3rd Cir.

1996), cert. denied, 117 S. Ct. 958 (1997). However, according

to a Senior EEOC Attorney, after EEOC issued its policy guidance on the issue, the Third Circuit has called into question

the McNemar decision. See NIDRR ADA Technical Assistance

Program Project Directors' Meeting, Feb. 24-25, 1998, summary (OCRE files), statement of Sharon Rennert, p. 4.

163

1 7
ences between ADA's purposes and standards

and those of other disability benefit programs.437

The second is to discuss and analyze recent and

significant court decisions that have addressed

the judicial estoppel issue.438 The third is to explain why judicial estoppel should not be used to

bar ADA claims of individuals who also have applied for disability benefits.439 The fourth purpose is to explain why EEOC's position on this

issue is supported by public policy.440 Finally,

EEOC seeks to provide guidance to investigative

staff in assessing what weight, if any, to give to

representations made in applications for disability benefits in determining if an ADA claimant is a "qualified individual with a disability"

for purposes of the ADA.

EEOC's Analysis

Fundamentally Different Purposes and

Standards in ADA

The guidance opens its argument by stating

that the ADA's definitions of the terms

"disability" and "qualified individual with a disability" are "tailored to the broad remedial" purposes of the statute," including the elimination of

barriers preventing individuals with disabilities

from gaining access to the mainstream of American life, equal employment, and other opportunities.441 As a result, the definitions of "disability"

and "qualified individual with a disability" under

the ADA differ from the definitions of the same

or similar terms in the Social Security Act, State

workers' compensation laws, disability insurance

plans, and other disability benefits programs.

Terms in these laws are tailored to their specific

purposes just as terms in the ADA are tailored to

its purposes.

The fundamentally different purposes of

these laws are a key element of the guidance's

argument that representations made by an individual in applying for disability benefits should

not bar him or her from bringing an ADA claim.

In advancing this argument, the guidance relies

on several specific ways in which the ADA's requirement of a "qualified individual with a dis437 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 2.

438 Ibid.

438 Ibid.

440 Ibid., p. 3.

441 Ibid.

ability" differs from requirements of disability

benefit schemes. First, the guidance notes, the

ADA is based on the fundamental principle "that

individuals who want to work and are qualified

to work must have an equal opportunity to

work," and the requirement for a "qualified individual with a disability" reflects this principle.442

Second, the "qualified individual with a disability" requirement focuses on what an individual

can do, as opposed to what he or she cannot do,

which is the focus of the disability benefit

schemes.443 Third, a determination of whether

an individual is a "qualified individual with a

disability" requires an individualized assessment

of a person's abilities, as opposed to an evaluation of general or group characteristics.444 Finally, the 'qualified individual with a disability"

requirement "looks at whether an individual

with a disability is qualified for the specific position at issue, not at whether s/he is qualified for

work in general."445

Determining if an individual is a "qualified

individual with a disability" under the ADA

must be made in keeping with these principles.

This determination requires two steps: the first

is to determine if the individual has the

"education, training, skills, experience, and

other job-related credentials for the position";446

the second step is to determine if the individual

can perform the essential functions of the job

with or without reasonable accommodation. The

guidance reiterates the principles on which this

determination must be based, e.g., an individualized, case-by-case assessment of the specific

abilities of the person and a focus on "whether a

442 Ibid., pp. 4-5 (citing 42 U.S.C. § 12101(a) (9) (1994)

(noting that discrimination "denies people with disabilities

the opportunity to compete on an equal basis and to pursue

those opportunities for which our free society is justifiably

famous.")).

443 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 5 (citing

135 CONG. REC. S10,711 (daily ed. Sept. 7, 1989) (statement

of Sen. Harkin)).

444 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 5 (citing 42

U.S.C. § 12101(a) (7) (1994) (denouncing "stereotypic assumptions not truly indicative of the individual ability of

[people with disabilities] to participate in, and contribute to,

society") (emphasis added)).

445 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 5

448 Ibid., p. 6.

164

178
particular individual with a disability is qualified for a particular position, not whether the

individual or a group of individuals with a disability is qualified for a class of positions."447

The guidance contrasts the purposes and standards of the ADA with those of social security,

workers' compensation, and disability insurance.448 Each discussion shows clear contrasts

between the purposes and standards of the various disability benefits plans and those of the ADA.

For example, the guidance contrasts the ADA

with the Social Security Act (SSA)449 by noting

that the latter "establishes a social insurance program designed to provide guaranteed income to

individuals with disabilities when they are found

to be generally incapable of gainful employment. "450 The guidance further notes that, in contrast to the ADA's definitions of "disability" and

"qualified individual with a disability":

The SSA definition of the term "disability," . . . reflects the obligation to provide benefits to people who

generally are unable to work. As a result, the definition focuses on what a person cannot do and on

whether s/he cannot find work in the national economy in genera1.45'

Workers' compensation laws also differ significantly from the ADAfor example, they are

based on general classifications of disability and

ability to work.452 Disability insurance, the guidance observes, is meant to provide partial wage

replacement to employees whose health conditions prevent them from working.453 As a result,

just as with SSA and workers' compensation

447 Ibid. (citing 29 C.F.R. pt. 1630 app. (noting in

"Background" section that "the determination of whether an

individual is qualified for a particular position must necessarily be made on a case-by-case basis" and that a "case-bycase approach is essential if qualified individuals of varying

abilities are to receive equal opportunities to compete for an

infinitely diverse range of jobs.")).

448 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 7.

449 See generally, 42 U.S.C. §§ 301-1397f (1994).

4513 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 8.

491 Ibid.

452 Workers' compensation laws typically provide the following four classifications of disability: temporary partial,

temporary total, permanent partial, and permanent total.

Ibid., p. 14.

453 Ibid., p. 16.

laws, disability insurance plans focus on what a

person with a disability cannot do rather than on

what he or she can do.454

In determining eligibility for benefits, the

guidance explains, an essential requirement under the SSA is that the claimant must be unable

to engage in "any substantial gainful activity by

reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months."455 This standard is substantially

different from that of the ADA in the way it describes work and the way it describes disability.

The next important difference is that the

ADA focuses on an individualized assessment of

a person's ability to work, while the SSA relies

on a general profile.456 The guidance further

notes that the ADA distinguishes between essential and nonessential functions in determining

whether an individual with a disability is qualified to work.457 The SSA does not make this distinction, so someone who can perform essential

but not all job functions may be disabled under

SSA while the same individual would be a qualified individual with a disability under the

ADA.458 Finally, the guidance notes that the

ADA determination is based on a consideration

of whether an individual can perform essential

job functions if provided with reasonable accommodation.459 The SSA system does not consider reasonable accommodation in making its

determination as to ability to work.469

The SSA regulations explicitly recognize that

its determinations are based on social security

454 Ibid.

455 Ibid., p. 8 (citing 42 U.S.C. § 423(d) (1) (A) (1994); 20

C.F.R. § 404.1505 (1997)).

458 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 11 (stating

"whereas the ADA always requires an individualized inquiry

into the ability of a particular person to meet the requirements of a particular position, the SSA permits general presumptions about an individual's ability to work.").

457 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," pp. 11-12.

458 Ibid., p. 12.

459 Ibid. (stating: "the definition of the term 'qualified individual with a disability' expressly requires consideration of

whether the individual can perform essential functions with

reasonable accommodation.") See 42 U.S.C. §§ 12111(8)

(1994) (citation added).

460 See generally 42 U.S.C. §§ 423(d), 1381-1383 (1994).

165

4. 4 .4)
law and that, as the guidance notes, "a decision

by any other entity about whether an individual

is disabled is based on the entity's rules and may

not be the same as the SSA's determination."461

In the section of the guidance discussing the

SSA program, EEOC also argues that courts are

wrongly applying the judicial estoppel analysis by

explaining that although the SSA program is

based on serving people with disabilities who are

deemed unable to work, even the SSA recognizes

that an individual may be found unable to work

under its definition but still be capable of working

in a particular position. The guidance explains

that although the SSA program is designed to

provide a guaranteed income to people who meet

its eligibility requirements, it has work incentives

built into it. For example, the SSA has a trial

work period that allows beneficiaries to work for 9

months while still receiving benefits.462

EEOC provides hypothetical examples in illustration and cites caselaw to support its position.

The first example involves an individual whose

disability is the loss of both hands and feet. The

listed impairments in SSA's regulations include

the loss of both hands and feet in its musculoskeletal category of impairment. Because this is

a listed impairment, an individual who has lost

both hands and feet may be presumed unable to

work for purposes of SSA's disability benefits determination. However, under the ADA, the same

individual can be a "qualified individual with a

disability" who is capable of working and performing the essential functions of a job with or

without reasonable accommodation.463

The second hypothetical example involves an

individual who is blind. Under the SSA, any

claimant over 55 with a visual impairment that

meets the statutory definition of blindness is

presumed to be incapable of "substantial gainful

activity" and deemed eligible of SSA disability

benefits. There are a number of reasons why this

individual might be considered qualified to work

under the ADA. First, the SSA, unlike the ADA,

does not consider whether there is a reasonable

4G1 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 11 (citing

20 C.F.R. § 404.1504 (1997)).

462 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 9 (citing 20

C.F.R. § 404.1592(a) (1997)).

463 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 11, n. 41.

accommodation that might allow this individual

to perform the essential functions of a particular

job. Second, there are no statutory definitions of

disabilities under the ADA that presume an individual incapable of working.464

The guidance notes several cases that support EEOC's position. For instance, in Overton v.

Reilly,465 the Seventh Circuit held that a determination of disability for purposes of SSA cannot

be construed to mean that an individual cannot

do a particular job. Another case the guidance

cites is Eback v. Chater,466 in which the Eighth

Circuit stated that SSA's determination as to

whether an individual can engage in

"substantial gainful activity" is a generalized one

and not based on an individualized assessment

of the requirements or accommodations of a particular job.467

The guidance's discussion of 'workers' compensation and disability insurance plans points

out the differences from the ADA. For example,

workers' compensation laws focus on lost earning capacity, and on what the worker "can no

longer do rather than on what s/he still is capable of doing with or without reasonable accommodation."468 Also, in determining disability,

workers' compensation laws do not distinguish

between essential and nonessential job duties;

nor do they consider reasonable accommodation.

As a result, "a person may be 'totally disabled'

for workers' compensation purposes and yet still

be able to perform a position's essential functions with or without reasonable accommodation."469 Like the other disability benefits plans,

disability insurance plans often do not distinguish between essential and nonessential job

functions;470 and they "frequently do not make

allowance for an individual's ability to work with

reasonable accommodation."4"

EEOC's subsequent legal analysis has two

parts. The first is a section on how the ADA

definition of "qualified individual with a disabil464 Ibid., pp. 11-12, n. 41.

465 977 F.2d 1190, 1196 (7th Cir. 1992).

466 94 F.3d 410 (8th Cir. 1996).

467 Id. at 412.

468 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," pp. 13-16.

469 Ibid., p. 15.

479 Ibid., pp. 16-17.

471 Ibid., p. 17.

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180
ity" always requires an individualized assessment under the ADA, whereas the three other

schemes, SSA, workers' compensation, and disability insurance plans, permit generalized inquires and presumptions.472 The second part of

the analysis discusses how the ADA definition of

"qualified individual with a disability" requires

consideration of reasonable accommodation

whereas in the other schemes, the equivalent

definition of disability does not.473

The analysis opens by stating the proposition

developed in the earlier sections, namely, that "an

individual may be 'unable to work' for purposes of

a disability benefits program and yet still be able

to perform the essential functions of a particular

position with or without reasonable accommodation."474 The guidance supports this statement

with precedent in the caselaw.475 For example, the

guidance notes a case, Robinson v. Neodata Services, Inc.,'" in which the Eighth Circuit found

that SSA determinations of disability "are not

synonymous with a determination of whether a

plaintiff is a 'qualified' person for purposes of the

ADA." In another case cited in the guidance, a

court found that a finding by a State workers'

compensation commission or the SSA does not

automatically foreclose an ADA claim.477

In the analysis of the ADA's requirement of

an individualized assessment in determining

whether someone is a "qualified individual with

a disability," the guidance states that unlike the

various disability benefit schemes, the ADA

never presumes that some impairments are so

severe as to prevent an individual from working.

In fact, the ADA presumes the opposite, that

472 See ibid., pp. 18-19.

473 See ibid., pp. 19-23.

474 Ibid., p. 18.

475 Ibid. (citing Robinson v. Neodata Services, Inc., 94 F.3d

499, 502 n.2 (8th Cir. 1996); Overton v. Reilly, 977 F.2d

1190, 1196 (7th Cir. 1992); Pegues v. Emerson Electric Co.,

913 F. Supp. 976, 980 (N.D. Miss. 1996); Palmer v. Circuit

Court of Cook County, 905 F. Supp 499, 508 n.10 (N.D. Ill.

1995), cert. denied, 118 S. Ct. 893 (1998) ; Smith v.

Dovenmuehle Mortgage, Inc., 859 F. Supp. 1138, 1141-43

(N.D. Ill. 1994)).

476 94 F.3d at 502 n.2.

477 Pegues, 913 F. Supp. at 980. The court in Pegues noted,

however, that the substance of plaintiff's testimony and

representations made in the workers' compensation and

social security administration proceedings and their subsequent findings "trouble this court and pose the greatest hurdle for [plaintiff]." The court found against the plaintiff.

individuals with disabilities can work.478 The

guidance cites numerous cases in which courts

have agreed that the ADA's requirement of an

individualized assessment in determining disability and ability to work is a fundamental difference between the ADA and the various disability benefits programs, which rely on generalized classifications.479

This part of the analysis also addresses

McNemar v. The Disney Store, Inc.,480 a case that

disagrees with EEOC on the judicial estoppel

issue. The McNernar court rejected the argument

that because ADA's purposes and standards are

fundamentally different from those of the SSA's,

their conclusions as to qualifications and ability

to work may differ significantly. The guidance

states that the McNemar court wrongly decided

the case because it had "overlooked the fact that

`unable to work' for SSA purposes does not mean

unable to perform the essential functions of a

particular position with or without reasonable

accommodation. "48'

In the second part of its analysis, the guidance emphasizes that the ADA, unlike the various disability benefits plans, requires an assessment as to whether an individual can work

with a reasonable accommodation. In this discussion, the guidance further develops its argument with case precedent. For example, the

guidance cites the case of D'Aprile v. Fleet Services Corporation,482 in which the court found that

an application for disability benefits "sheds no

light" on how the plaintiff would have fared had

the reasonable accommodation she had requested been made.483 Like D'Aprile, the cases

discussed in this part of the analysis stand for

the proposition that receipt of disability benefits

does not show that an individual is totally un478 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 19.

475 Ibid., pp. 20-22 (citing Overton v. Reilly, 977 F.2d 1190,

1196 (7th Cir. 1992); Smith v. Dovenmuehle Mortgage, Inc.

859 F. Supp. 1138, 1141 (N.D. Ill. 1994); Daffron v. McDonnell

Douglas Corp., 874 S.W. 2d 482, 486 (Mo. Ct. App. 1994)).

480 91 F.3d 610 (3rd Cir. 1996) cert. denied, 117 S. Ct. 958

(1997).

48) EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," pp. 21-22.

482 92 F.3d 1 (1st Cir. 1996).

483 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 24 (citing

92 F.3d 1, 5 (1st Cir. 1996)).

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181
able to work, because disability benefit plan applications do not consider whether the person

could work with a reasonable accommodation.484

In concluding this analysis, the guidance states

that the cases discussed demonstrate that "an

individual can meet the eligibility requirements

for disability benefits and still be able to perform

the essential functions of particular positions

with reasonable accommodation."485

Role of Representations Made in

Applications for Disability Benefits

The second section of the guidance sets forth

EEOC's position that judicial estoppel should not

be used as a bar to an ADA claim where the

claimant has made previous representations on

applications for disability benefits.486 The guidance addresses the doctrine of judicial estoppel

and the role of summary judgment in cases involving ADA claimants who previously have applied for disability benefits.487 EEOC sets out

several reasons why courts should not invoke

judicial estoppel to bar ADA claims. First, an

individual who claims that he or she is both

"totally disabled" and a "qualified individual

with a disability" has not necessarily made inconsistent statements.488 Second, the guidance

notes that the doctrine of judicial estoppel generally has applied only when an individual made

his or her earlier inconsistent statement in a

prior judicial proceeding. However, applications

for disability benefits are made as part of an

administrative determination, a wholly different

process. The guidance observes "[a]ccordingly,

courts that have recognized the significant differences in judicial proceedings and administrative determinations have declined to apply judicial estoppel to bar claims of disability discrimi484 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," pp. 23-26

(citing Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996);

D'Aprile v. Fleet Services Corp., 92 F.3d 1 (1st Cir. 1996);

Kennedy v. Applause, 90 F.3d 1477 (9th Cir. 1996); Ward v.

Westvaco Corp., 859 F. Supp. 608, 615 (D.Mass. 1994)).

485 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 26.

486 Ibid., p. 28.

487 Ibid.

488 Ibid. (citing Smith v. Dovenmuehle Mortgage Co., 859 F.

Supp. 1138 (N.D. Ill. 1994)).

nation."489 A third argument is that several circuits have refused to recognize the doctrine of

judicial estoppel, so it has not been universally

accepted as a legitimate legal theory.490

The guidance argues that summary judgment, a judicial determination of whether a trial

is necessary, should not be granted to ADA defendants on the basis that the claimant previously has filed an application for disability benefits. In this discussion, the guidance notes that a

court only will grant summary judgment where

it determines that there is no genuine issue of

material facto' The guidance argues that because an individual's representations on an application for disability benefits do not mean that

he or she is incapable of performing essential

functions of a job with reasonable accommodation, the application for disability benefits does

not mean that there is no question as to whether

the individual is a "qualified individual with a

disability."492

The guidance notes that some weight may be

given to representations made on disability

benefits applications in determining whether an

individual is a "qualified individual with a disability." Context and timing are the criteria for

deciding how much weight is allowed. For context, the guidance states that representations

made on disability benefits applications should

not be viewed in a vacuum, but rather in the

context of all other relevant documents and the

conditions under which the individual applied

for the benefits.493 For example, the guidance

cites cases where individuals who applied for

disability had done so only after their employers

had refused to provide reasonable accommoda489 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 28 (citing Mohamed v. Marriott, 944 F.Supp. 277, 283-84 (S.D.N.Y., 1996)).

499 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 27 citing

United Mine Workers of America 1974 Pension v. Pittston

Co., 984 F.2d 469, 477 (D.C. Cir.), cert. denied, 509 U.S. 924

(1993); Chrysler Credit Corp. v. County Chrysler Inc., 928

F.2d 1509, 1520 n.10 (10th Cir. 1991)).

491 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 29 (citing

Fed. R. Civ. P. 56(c)).

492 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 30.

493 Ibid., p. 31.

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182
tion.494 Timing can be important because individuals who apply for disability benefits may

become rehabilitated and capable of rejoining

the workplace. The guidance provides several

cases where courts have relied on the timing of

the application to determine that it had no relevance to the plaintiffs current ADA suit. For

example, in Smith v. Doveninuehle Mortgage

Co.,495 the plaintiff, who had AIDS, claimed that

his condition was improved and that he was

strong enough to return to work 1 month after

leaving on disability. The court found that because his condition had improved, his statements on his disability benefits application were

not inconsistent with his current ADA claim.496

In another case, Lawrence v. United States

LC.C.,497 the court found that since 22 months

had passed since the plaintiffs application for

SSA benefits and the filing of his ADA claim, his

contention that he was now able to work did not

necessarily contradict his earlier statement.498

Overall, courts disagreeing with EEOC's position in this guidance are retreating from their

earlier interpretations of ADA.499 Currently, at least two of the Federal circuits agree with

EEOC's position on the judicial estoppel issue.500

One dramatic shift on this issue has been a recent decision of the Fifth Circuit. In the case of

Cleveland v. Policy Management Systems,501 the

Fifth Circuit held that representations made by

an ADA claimant on an application for Social

Security benefits raises only a presumption that

the plaintiff was not qualified to perform a job

under that statute's terms.502

494 Ibid., p. 32 (citing Anzalone v. Allstate Ins. Co., 1995 U.S.

Dist. LEXIS 1272 (E.D. La. 1996), affd, 74 F.3d 1236 (5th

Cir. 1995); Ward v. Westvaco Corp., 859 F. Supp. 608, 614-

15 (D. Mass 1994).

496 859 F. Supp. 1138 (N.D. Ill. 1994).

496 Id. at 1142.

497 629 F. Supp. 819 (E.D. Pa. 1995).

498 Id. at 822.

499 See David K. Fram, "Expert: More Courts Easing Position on 'Judicial Estoppel,"' National Disability Law Reporter Highlights, Oct. 9, 1997, pp. 3-4.

809 See, e.g., Blanton v. Inco Alloys International, Inc., 123

F.3d 916, 917 (6th Cir. 1997); Overton v. Reilly, 977 F.2d

1190, 1196 (7th Cir. 1992); Weigel v. Target Stores, 122 F.3d

461 (7th Cir. 1997),petition for cert. filed, 66 U.S. L.W. 3435

(U.S. Dec. 15, 1997) (No. 97-1008).

501 120 F.3d 513, 518 (5th Cir. 1997), petition for cert. filed,

66 U.S.L.W. 3435 (U.S. Dec. 15, 1997) (No. 97-1008).

502 Id. at 518.

01,

Part of the reason for this change may be

EEOC's enforcement guidance on the issue.593

The agency's own retreat from its earlier position may have helped. Originally, the agency

viewed statements on disability benefit applications as completely irrelevant in determining

whether an ADA claimant was a qualified individual with a disability.504 The guidance, however, takes a more moderate approach in which

it considers such statements potentially relevant, taking context and timing into account.505

Public Policy Reasons Supporting Conclusion

The guidance makes a public policy argument

to support its conclusion that representations

made in connection with an application for disability benefits never should be an automatic bar

to an ADA claim. This policy discussion has two

main points: first, allowing individuals to go

forward with their ADA claims is critical to the

ADA's goal of eradicating discrimination against

people with disabilities; and second, individuals

should not have to choose between applying for

disability benefits and vindicating their rights

under the ADA.596 The guidance states that barring individuals who apply for disability benefits

from pursuing ADA claims would "impede

EEOC's enforcement of the ADA and deny individuals the right to have the court hear the

merits of their claims. "507 The guidance adds "it

also would permit the continuation of the invidious discrimination that the ADA is designed to

eradicate. "508

The discussion marshals U.S. Supreme Court

precedent in arguing against the use of judicial

estoppel in ADA cases where the plaintiff previously has applied for disability benefits. The

guidance cites McKennon v. Nashville Banner

Publishing Co.,509 in which the Court stated equitable doctrines, which is what judicial estoppel

is, should not be used as absolute bars to suits

brought under Federal antidiscrimination legis503 See Fram, "Expert: More Courts Easing Position on

'Judicial Estoppel,"' pp. 3-4.

504 Ibid., p. 3.

505 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 26.

996 Ibid., pp. 35-37.

507 Ibid., p. 36.

698 Ibid.

509 513 U.S. 352 (1995).

169

183
lation because of the important public purposes

furthered by such legislation.510 This statement

supports the guidance's conclusion that "if an

individual is prevented from bringing an ADA

claim because s/he has applied for disability

benefits, discrimination is not deterred and the

plaintiffs interests are not vindicated."511

A second policy argument the guidance

makes is that people should not have to choose

between applying for disability benefits and

claiming their rights under the ADA.512 All persons have a right to be free from discrimination,

and anyone who meets the eligibility requirements of a disability benefit program has the

right to receive those benefits.513 Moreover, it is

fundamentally unfair to require people to choose

between two independent rights. Persons applying for disability benefits are not knowingly

relinquishing their ADA rights.

Instructions to Investigators

The guidance's instructions to EEOC investigative staff reiterate the conclusion that representations made on applications for disability benefits do not bar the filing of an ADA charge: In addition, such representations should not prevent

an investigator from recommending a cause determination if the evidence supports it.514 The

guidance reminds investigative staff that in

making the "qualified individual with a disability"

determination, applying for disability benefits

may be relevant, although not diapositive: It is

essential to look at all of the relevant evidence.

This section of the guidance should be quite

helpful to ADA investigators, because it offers

very specific instructions on how to evaluate the

relevance of representations made on disability

benefits applications to determining whether an

individual is a "qualified individual with a disability." The guidance explains that when assessing the effect of representations made on

applications for disability benefits on the

"qualified individual with a disability" determination, the investigator should focus on "the exact definition used by the benefits program; the

510 Id. at 358-59.

511 EEOC, "Enforcement Guidance on the Effect of Representations Made in Applications for Benefits," p. 36.

512 Ibid., p. 37.

513 Ibid.

514 Ibid., p. 38.

184

precise content of the individuals' representations, and the specific circumstances surrounding the application for benefits."515 In addition,

the guidance states that it is very important to

determine whether the individual maintained

that he or she could accomplish the essential

functions of the job, with or without reasonable

accommodation, at the time of his or her application for disability benefits.516

The guidance closes with a number of factors

for investigators to use in deciding what, if any,

weight to give to a charging party's representations made in applying for disability benefits.

These include the following:

(1) definitions of terms such as "disability,"

"permanent disability," and "inability to work";

(2) whether the representations made were in

the charging party's own words;

(3) whether the representations made about the

charging party's ability to work are qualified in

any way;

(4) whether the charging party's physical or

mental condition has changed since the representations were made;

(5) whether the charging party was working

during a time referred to as a period of total disability;

(6) whether the employer suggested that the

charging party seek benefits;

(7) whether the charging party was asked for

and denied a reasonable accommodation that

would have made it possible for him or her to

continue working;

(8) when the employer learned about the representation; and finally,

(9) any other relevant factors, including ad- vances in technology or changes in the employer's operations, that may have occurred

since the representations.517

Title I of the ADA and Labor Issues

EEOC has set forth its position in policy on

several important labor-related issues. EEOC has

focused on two areas in particular. The first is the

relationship between collective bargaining agreements reached under the National Labor Relations Act (NLRA) and reasonable accommodations

515 Ibid.

516 Ibid.

517 Ibid., p. 39.

170
required by the ADA.518 The second is the use of

mandatory binding arbitration agreements.519

EEOC maintains that, "where there is a conflict between the need for reasonable accommodation and the provision of a collective bargaining agreement, and no other reasonable accommodation exists, the ADA requires the employer

and the union to negotiate in good faith a variance to collective bargaining agreement seniority

rules in order to provide an accommodation that

does not unduly burden non-disabled workers. "520 However, the ADA statute and its legislative history are ambiguous on these issues,

making it difficult for EEOC to argue its position

in the courts. EEOC has issued one policy

statement on arbitration, but only one policy letter offering its position on issues relating to reasonable accommodation and collective bargaining agreements.

Early Attempts to Work with the National

Labor Relations Board

Two years after the passage of the ADA,

EEOC and the National Labor Relations Board

began negotiating a memorandum of understanding (MOU) to resolve potential conflicts

between title I of the ADA and the National Labor Relations Act.521 The negotiations began in

late April 1992. Some 4 months later, EEOC's

Legal Counsel sent a memorandum to EEOC's

Chairman and Commissioners explaining that

518 See Thomasina V. Rogers, Legal Counsel, EEOC, memorandum to Evan J. Kemp, Chairman; R. Gaull Silberman,

Vice Chairman; Joy Cherian, Commissioner; Tony E. Gallegos, Commissioner; Joyce E. Tucker, Commissioner, re:

Status Report on Proposed Memorandum of Understanding

with the Office of General Counsel, National Labor Relations Board, Aug. 14, 1992 (hereafter cited as Rogers,

memorandum); EEOC, "Memorandum of Understanding

Between the General Counsel of the National Relations

Board and the Equal Employment Opportunity Commission," Nov. 16, 1993 (hereafter cited as EEOCNLRB MOU);

Ellen J. Vargyas, Legal Counsel, EEOC, letter to Berry

Kearney, Associate General Counsel, National Labor Relations Board, re Memorandum of Understanding Between the

Equal Employment Opportunity Commission and the National Labor Relations Board, Nov. 1, 1996 (hereafter cited

as Vargyas letter).

519 See Rogers, memorandum; EEOC, "Memorandum of Understanding Between the General Counsel of the National

Relations Board and the Equal Employment Opportunity

Commission," Nov. 16, 1993; Vargyas letter).

528 See EEOC Comments, p. 17.

521 Rogers, memorandum.

negotiations between the two agencies had broken down and efforts to reach an agreement had

been discontinued.522

The main area of conflict between the two

agencies involved the role of collective bargaining in the employer's provision of reasonable accommodation. The issues included the extent to

which the NLRA requires bargaining with the

union in selecting an effective reasonable accommodation; whether an employer violates the

NLRA if it negotiates directly with a bargaining

unit employee, rather than a union representative, over reasonable accommodation; the limitations, if any, imposed by the confidentiality requirements of the ADA on the duty to furnish

information necessary to the union for bargaining; and whether an employer can provide a

"mid-term modification" of a collective bargaining agreement without the union's approval.523

Staff from both agencies met on several occasions to discuss resolution of these issues.

The memorandum explains that NLRB staff

informed EEOC staff of certain "limitations" in

NLRB policy that would make it difficult to develop an MOU. The first of these limitations was

the NLRB General Counsel's policy of submitting issues of first impression to the Board for

determination.524 In addition, the Board itself

functions as a quasi-judicial body.525 As such, the

Board decides specific complaints of unfair labor

practices submitted to it by the General Counse1.526 The Board does not act on its own initiative or issue advisory opinions.527

The memorandum explains that "[b]ased on

these limitations," the NLRB General Counsel

declined to make definitive statements as to what

actions would or would not constitute violations of

the NLRA.528 In addition, the General Counsel

declined to take any position on the provision of

reasonable accommodations that would invoke a

midterm modification of a collective bargaining

agreement.529 Essentially, the General Counsel

522 See ibid.

523 Ibid.

524 Ibid.

525 Ibid.

528 Ibid.

527 Ibid.

528 Ibid.

529 Ibid.

171

1 5
informed EEOC that NLRB would not be willing

to make unqualified statements in an MOU on

which actions would be considered unfair labor

practices under the NLRA.539

The NLRB General Counsel did, however,

propose an alternative. Under this proposal, the

two agencies would issue an MOU that would

contain qualified statements on certain issues

concerning what actions the NLRB would consider unfair labor practices under the NLRA.531

In addition, the MOU would contain a discussion

of "procedures to coordinate the issuance of policy and the resolution of charges involving Title I

and the enforcement activities of the NLRB

General Counsel."532

EEOC rejected this proposal because it did

not believe such an MOU would provide sufficient guidance to employers, unions, and individuals with disabilities on how to comply with

both title I of the ADA and the collective bargaining process required by the NLR.A.533 EEOC

proposed instead an MOU that would definitively address those issues for which there was

substantial Board precedent on which the General Counsel could base his conclusions.534 However, the NLRB General Counsel would not

agree to make sufficiently definitive statements

on any of the issues raised concerning actions

that NLRB would or would not consider unfair

labor practices under the NLRA. EEOC's Legal

Counsel informed EEOC's Commissioners that,

as a result of this impasse, "we do not believe

that a substantive MOU would serve any useful

purpose."535

The Legal Counsel further stated that it was

important for EEOC to articulate a policy to

539 Ibid.

531 Ibid.

532 Ibid.

533 Ibid.

534 Ibid.

535 Ibid. NLRB's Office of General Counsel issued a memorandum to its field personnel addressing potential conflicts

between title I of the ADA and the NLRA. In particular, the

memorandum discussed unions' duties of fair representation

under the NLRA and obligations under the ADA and potential conflicts between the duty to bargain under the NLRA

and the duty to comply with the ADA. See Jerry M. Hunter,

General Counsel, National Labor Relations Board, memorandum to all Regtonal Directors, Officers-in-Charge, and

Resident Officers, re: Potential Conflicts Between Title I of

the ADA and the Collective Bargaining Requirements of the

NLRA, Aug. 7, 1992.

guide its decisionmaking process on these issues

because "[c]overed entities and individuals with

disabilities need comprehensive guidance concerning the interplay of accommodation and collective bargaining."536 For these reasons, the Legal Counsel informed the Commissioners that her staff had

begun work on enforcement guidance on the role

of collective bargaining in the provision of a reasonable accommodation required under title I of

the ADA.537 The Legal Counsel explained that

"[t]he enforcement guidance will not guarantee

that covered entities will be in compliance with

the NLRA, since such a guarantee appears impossible, but it will provide guidance on the actions necessary for compliance with the ADA."538

NLRBEEOC Procedural

Memorandum of Understanding

The National Labor Relations Board (NLRB)

and EEOC entered into a procedural Memorandum of Understanding (MOU) on November 13,

1993.539 The MOU established procedures for

coordinating the enforcement of title I of the

ADA and section 8(a)(1) of the National Labor

Relations Act.549

The memorandum of understanding outlines

10 specific procedures relating to charge filing

and processing. The first requires that when a

charge is filed with a regional office of NLRB

alleging that the duty to bargain under section

8(a)(5), section 8(b)(3) and/or section 8(d) of the

NLRA541 was breached by either an employer or

a union, and the resolution of that charge would

require an interpretation of the charged party's

duties under the ADA, the NLRB General Counsel, will, on completing the investigation, consult

with EEOC's Office of Legal Counsel regarding

applicability of the ADA.542 The second procedure is reciprocal and requires that when EEOC

536 Rogers memorandum.

537 Ibid.

538 Ibid.

539 NLRB and EEOC, MOU.

549 See 29 U.S.C. § 158(a) (1) (1994). Section 8(a) (1) of the

National Labor Relations Act describes unfair labor practices by employers. NLRB and EEOC, MOU.

541 NLRB and EEOC, MOU. Sections 8(a) (5), 8(b) (3) of the

NLRA are found at 19 U.S.C. §§ 158(a) (5), 158(6) (3) and

158(d), respectively.

542 NLRB and EEOC, MOU.

172

186
has a charge whose resolution would require an

interpretation of the NLRA, that EEOC, upon

completion of its investigation, consult with the

NLRB's Associate General Counse1.543

The MOU requires that EEOC and NLRB

share any information relating to the employment policies and practices of a respondent, employer or union, that may assist each agency in

carrying out its responsibilities under the

agreement.544 This information might include, but is not limited to, complaints, charges, and

investigative files.545 The MOU requires that

when one agency sends information to the other,

the receiving agency will observe confidentiality

requirements set forth under Federal civil rights

law.546 EEOC agrees to resist any requests for documents shared by NLRB during this process,

except for documents already in the public domain, such as pleadings.547 Consistent with the

Freedom of Information Act, NLRB agrees not to

produce affidavits or any other nonpublic documents while a case is pending.548

The agreement also sets out procedures to be

followed if an individual with a disability files a

dual complaint with NLRB and EEOC, stating

that the collective bargaining representative has

failed to fairly represent him or her under the

NLRA and, by the same conduct, has violated

the ADA.543 The agreement also states that

when an unfair labor practice charge is filed by

an individual with a disability alleging that the

collective bargaining representative has failed to

fairly represent him or her regarding accommodating a disability in the workplace, and the individual has not filed an ADA claim with the

EEOC, the NLRB will notify the individual in

writing of the right to do so.550 In addition, the

MOU states that the parties to the agreement will engage in "periodic consultations" to review

its implementation. Finally, the MOU states

that modifications may be made at any time as

long as both parties consent and the modification

is in writing.

543 Ibid.

544 Ibid.

545 Ibid.

546 Ibid. (citing 42 U.S.C. §§ 2000e-5(b), 2000e-8(e) (1994)).

547 NLRB and EEOC, MOU.

548 Ibid.

549 Ibid.

550 Ibid.

As the 1993 MOU between NLRB and EEOC

was limited to procedural matters, a number of

important issues were left unresolved. EEOC

has taken positions with respect to these in policy guidance and ainicus curiae.

Conflicts Between the Requirements of the

ADA and Labor Practices

Medical Information Confidentiality Requirement

In November 1996, EEOC's Office of Legal

Counsel responded to a "request for advice" from

NLRB's Region 19/Seattle office pursuant to the

1993 MOU.551 The issue raised by the Seattle

office was whether ADA's prohibition on an employer's supplying an employee's medical information to outside parties means that an employer can refuse to supply a union with medical

information that it has requested to process a

grievance.552

The letter states the facts of the case.553 The

union and the employer are parties to a collective bargaining agreement,554 which includes the

right of individuals to bid for and receive jobs

based on seniority, provided they are qualified to perform the job. The employer placed a bid for

two jobs. One of the two jobs was filled by the

most senior qualified bidder. According to the

letter, the other was filled as a reasonable accommodation under the ADA to "John Doe,"

even though there were more qualified bidders

with more seniority.555

Soon after the jobs were awarded, the second

most senior bidder filed a grievance challenging

Doe's selection.556 The union took the position

that the employer had violated the collective

bargaining agreement by awarding the job "out of seniority:" The employer stated that it

awarded the job to Doe because it believed it was

required to under the ADA.557

The union countered by arguing that the employer could have accommodated Doe in some

other way and requested from the employer medical information to use in analyzing the griev551 Vargyas letter.

552 Ibid., p. 1.

553 Ibid., pp. 1-2.

554 Ibid., p. 1.

555 Ibid.

556 Ibid., p. 2.

557 Ibid.

173

%;
ance.558 The employer responded that, after reviewing the collective bargaining agreement and

the ADA, it could not release the requested inforthation under the ADA. The union then filed a

charge with the NLRB alleging that the employer

had violated sections 8(a)(1) and (5) of the NLRA

by refusing to provide the union with information

needed to process a union grievance.559

EEOC frames the issue in the case as follows:

does the ADA permit an employer to provide

medical information about an employee's disability to a union for it to assess a grievance

challenging the employer's provision of reasonable accommodation that conflicts with seniority

provisions of the collective bargaining agreement?560 EEOC's position is that because the

union, like the employer, is a covered entity under the ADA, it is the union's responsibility to

negotiate with the employer to change the collective bargaining agreement, providing there is no

other reasonable accommodation and the proposed accommodation would not unduly burden

nondisabled workers.561 EEOC also states that

the employer and the union are obligated to negotiate with each other to change the collective

bargaining agreement where there is no other

accommodation available and the change in the

collective bargaining agreement would not provide an undue hardship.562

EEOC also stated that medical information

may be used to determine reasonable accommodations and an employer may share this information with a third party when necessary to determine a reasonable accommodation.563 The letter explains that "[i]n the unique setting of the

unionized workplace," both the employer and the

union are involved in making the reasonable

accommodation determination.564 However,

medical information can only be shared on an ad

hoc, need to know basis. Under these specific

circumstances, the confidentiality provisions of

the ADA are not violated.565

558 Ibid.

559 Ibid.

56° Ibid.

561 Ibid. (citing 42 U.S.C. § 12111(2) (1994); 29 C.F.R. §

1630.2(b) (1997)).

562 Vargyas letter, p. 2.

563 Ibid., p. 4.

564 Ibid.

565 Ibid.

Reasonable Accommodation and the

Collective Bargaining Agreement

A key labor-related issue has been whether

the ADA's requirement to provide reasonable

accommodation to a qualified individual with a

disability should take precedence over the provisions of a collective bargaining agreement between an employer and a union. In cases where

a reasonable accommodation has created conflict

with a collective bargaining agreement, EEOC

has advocated for maintaining the reasonable

accommodation at the expense of the collective

bargaining agreement. This position is controversial in that it conflicts with the positions of

several Federal appeals courts.566

EEOC has advanced this position in its policy guidance, such as the policy letter described above, and in

amicus curiae briefs. For example, EEOC filed an

amicus brief in Eckles v. Consolidated Rail Corp.,567 a

case in which the Seventh Circuit addressed the question of whether reasonable accommodations violate

the collectively bargained, bona fide seniority rights

of other employees.568

In its amicus brief in Eckles, EEOC stated that

the ADA does not require displacement or

"bumping" of another employee to accommodate a

disabled individual.569 EEOC stated that it agrees

that an individual with a disability is not entitled

to an accommodation requiring a change to a collective bargaining agreement if there is an alternative, effective accommodation that could be

566 See Kralik v. Durbin, 130 F.3d 76, 83 (3rd Cir. 1997)

(even a limited infringement on seniority rights is not reasonable under the ADA); Benson v. Nortl9iest Airlines, Inc.,

62 F.3d 1108, 1114 (8th Cir. 1995); Wooten v. Farmland

Foods, 58 F.3d 382, 386 (8th Cir. 1995); Milton v. Scrivner,

Inc., 53 F.3d 1118, 1124 (10th Cir. 1995); cf. Daugherty v.

City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (stating: "we

do not read the ADA as requiring affirmative action in favor

of individuals with disabilities, in the sense of requiring that

disabled persons be given priority in hiring or reassignment

over those who are not disabled."), cert. denied, 516 U.S.

1172 (1996); Doe v. Town of Seymour, 1998 U.S. Dist. LEXIS

676, *8 (D. Conn. 1998) (holding reassignment is not a reasonable accommodation when it interferes with seniority

provisions of a collective bargaining agreement because it

compromises the reasonable expectations of other employees

regarding seniority).

567 94 F.3d 1041 (7th Cir. 1996), amended and cert. denied,

117 S. Ct. 1318 (1997).

568 Id. at 1051.

569 See id. at 1051.

174

188
provided consistent with seniority rules.570 However, it argues that under the ADA employers and

unions have a duty "to negotiate in good faith a

variance to. . .seniority rules to provide an accommodation if the proposed accommodation does

not unduly burden non-disabled workers."571 In

taking this position, EEOC relies on the legislative history of the ADA.572 For example, EEOC

cites the House Education and Labor Committee

report stating that while a collective bargaining

agreement may be relevant to a determination of

whether a given accommodation is reasonable,

"the agreement would not be determinative on the

issue."573

This report also states that conflicts between

provisions of a collective bargaining agreement

and an employer's duty to provide reasonable

accommodation under the ADA "may be avoided

by ensuring that agreements negotiated after

the effective date of this title contain a provision

permitting the employer to take all actions necessary to comply with this legislation."574 This

language seems to indicate an intent for the pro- visions of the ADA to outweigh the collective

bargaining agreement. Regardless, the ADA's

legislative history is at best somewhat ambiguous with respect to this issue.

Nonetheless, EEOC sets forth its position

very clearly in its amicus briefs such as Eck les.

EEOC officials have stated publicly the agency's

position on the ADA and collective bargaining

agreements.575 However, EEOC has yet to issue

a comprehensive policy guidance on this issue.

579 Brief of the U.S. Equal Employment Opportunity Commission as Anticus Curiae at 36, Eck les, 94 F.3d 1041 (No.

95-2856) (citing 29 C.F.R. Pt. 1630 app. § 1630.9 (1996)

(covered entity "has the ultimate discretion to choose between

effective accommodations, and may choose the less expensive

accommodation or the accommodation that is easier for it to

provide")).

571 Id. at 7.

572 Id. at 25 n.15.

5" H. REP. NO. 101-48,5(11), at 63 (1990).

574 Id. at 73 (1990).

575 See "Conference Report: EEOC Outlines its Logic; Elsewhere, Agency's Approach Criticized at ABA Meeting,"

Americans with Disabilities Act Newsletter (BNA), vol. 5, no. 7 (Apr. 11, 1996), p. 43. Addressing attendees of the Great

Lakes Disability and Business Technical Assistance Center,

EEOC attorney Sharon Rennert discussed the amicus brief

filed by EEOC in Eck les u. Consolidated Rail Corp. Rennert

stated that EEOC laid out a two-point position regarding

seniority conflict EEOC used in this case. First, an alternative that does not conflict should be sought. If that fails, the

ADA Claims and Mandatory Arbitration

EEOC has been more active in advancing its

position that arbitration proceedings in ADA

cases .should be voluntary and not mandatory.

EEOC has supported this position in a policy

statement, amicus curiae, and in public remarks

made by EEOC officials.576 Recent court decisions have also agreed with EEOC's position.577

In its policy statement on mandatory arbitration, issued July 11, 1997, EEOC states that, as

the Federal agency tasked with enforcing and

interpreting the Nation's employment discrimination laws, its position is that "agreements that

mandate binding arbitration of discrimination

claims as a condition of employment are contrary to the fundamental principles evinced in

these laws."578 The policy statement argues that

Federal employment discrimination laws "flow

directly from core Constitutional principles, and

this nation's history testifies to their necessity

and profound importance," and the rights bestowed cannot be swept aside by mandatory arbitration.579 The policy statement points out that

arbitration should never be mandatory because

the nature of the arbitral process allowsby de- signfor minimal, if any, public accountability

union and management must negotiate to find an accommo- dation that does not unfairly burden any nondisabled em- ployee. See Rennert interview.

See also "EEOC Officials Discuss 'Mitigating Measures,'

Accommodation, Arbitration at PCEPD Conference," Americans with Disabilities Act Newsletter (BNA), vol. 6, no. 11

(June 12, 1997), p. 65 (hereafter cited as "EEOC Officials

Discuss"). Speaking June 4, 1997, at the 50th annual conference of the President's Committee on Employment of People

with Disabilities, Peggy Mastroianni, Associate Legal Counsel at EEOC, said that although in situations where there is

a collective bargaining agreement, courts generally have

said that the bargaining agreement "trumps" the ADA in

reasonable accommodation disputes, EEOC disagrees with

this position and will continue to argue against it.

576 See, e.g., Paul Steven Miller, Commissioner, EEOC, interview in Washington, DC, Apr. 1, 1998, p. 2; Reginald E.

Jones, Commissioner, EEOC, interview in Washington, DC,

Apr. 2, 1998, pp. 3-4.

577 See Gibson v. Neighborhood Health Clinics Inc., 121 F.3d

1126 (7th Cir. 1997); Brisentine v. Stone & Webster Engineering. Corp., 117 F.3d 519 (11th Cir. 1997); Nelson v. Cyprus Bagdad Copper Corp., 119 F. 3d 756 (9th 1997), petition

for cert. filed, Jan. 5, 1998.

578 EEOC, "Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition

of Employment," July 11, 1997.

579 Ibid.

175

1b9
of arbitrators or their decision-making; the public plays no role in an arbitrator's selectionhe

or she is hired by the private parties to a dispute; the arbitrator's authority is defined and

conferred, not by public law, but by private

agreement; because decisions are private, there

is little, if any, public accountability even for

employers who have been determined to have

violated the law; and there is virtually no opportunity for meaningful scrutiny of arbitral decision-making.589

Several recent court decisions have supported

EEOC in its position on mandatory arbitration.

For example, the Seventh Circuit has refused to

enforce an agreement mandating arbitration of

job bias claims and relinquishing an employee's

right to a jury tria1.581 Elsewhere, the Eleventh

Circuit has held that an injured employee's right

to file an ADA lawsuit is not subject to the compulsory arbitration clause of a collective bargaining agreement.582 The court relied on the

Supreme Court's decision in Alexander v. Gardner-Denver Company,583 in which the Court

found that an employee's statutory rights under

title VII of the Civil Rights Act of 1964 are not

waived through collective bargaining.584

Finally, EEOC officials have been vocal in

stating their position on this issue in conferences

and training around the country.585 One agency

official has described mandatory arbitration of

employment disputes as the greatest threat to

civil rights enforcement.586 In setting forth the

agency's position on this issue, EEOC's Legal

Counsel stated that mandatory arbitration will

eliminate access to the courts for employees with

disabilities.587 Further, mandatory arbitration

has numerous disadvantages: review of decisions

is limited; decisions are not made public; arbitra580 Ibid.

581 Gibson v. Neighborhood Health Clinics, Inc., 121 F. 3d

1126 (7th Cir. 1997). (Finding agreement to arbitrate unenforceable as the contract did not contain adequate consideration for employee's promise).

582 Brisentine v. Stone & Webster Engineering Corp., 117 F.

3d 519 (11th Cir. 1997).

583 415 U.S. 36 (1974).

584 Id. at 51-52.

585 See "EEOC Officials Discuss,", p. 65; "Briefs," Americans

with Disabilities Act Newsletter (BNA), vol. 6, no. 15 (Aug.

14, 1997), p. 90 (hereafter cited as "Briefs").

586 "Briefs," p. 90.

587 "EEOC Officials Discuss," p. 65.

.4.

tors often have no background in the law; there

are limits on discovery procedures and on remedies; and litigants on both sides have to pay arbitration fees.588

The Family and Medical Leave Act and the ADA

Although EEOC does not enforce the Family

and Medical Leave Act of 1993 (FMLA),589 it has

recognized the interplay between the ADA and

the FMLA in a fact sheet developed by the Office

of Legal Counse1.590 This document provides

. technical assistance on commonly asked questions that have arisen about the interplay between the FMLA and two civil rights statutes,

the ADA and title VII of the Civil Rights Act of

1964.591 The 23 questions and answers about

these acts appear to be the extent of EEOC's

outreach and education for employers and employees about the FMLA and its relationship to

statutes under EEOC jurisdiction. EEOC appears to have intended the fact sheet to be a

quick information guide for those who are not

588 Ibid.

589 29 U.S.0 §§ 2601-2654 (1994).

599 This interplay may be observed, for example, by comparing the statutory language of the two acts. The ADA's

requirement for an employee to show substantial limitation

of a major life activity is analogous to the FMLA's requirement of a "serious health condition" that renders an employee unable to perform job duties. The overlap occurs because the employee may obtain leave as a reasonable accommodation under the ADA or an entitlement under the

FMLA. According to a Washington, D.C., management attorney, "the most common issues I hear about are leave

requests overlapping with FMLA and transfer requests." He

also said that courts are just starting to address the overlap

between the two acts, especially in intermittent leave situations for chronic physical disabilities or psychological disabilities. See "Headache or Harmony: What Lies Ahead for

ADA Litigators?" National Disability Law Reporter Highlights (LRP), vol. 12, iss. 8 (Aug. 13, 1998), p. 9.

591 EEOC, "The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII ofthe Civil Rights

Act of 1964" (undated) (hereafter cited as EEOC, "The Family and Medical Leave Act, the ADA and Title VII");

http://www.eeoc.govidocs/fmlaada.txt, Sept. 26, 1997. One

disability professional has recommended that similar guidelines be developed on the overlap between the ADA and the

National Labor Relations Act and the overlap between the

ADA and the Occupational Safety and Health Act. Michelle

Martin, Staff Services Analyst, Department of Rehabilitation, State of California Health and Welfare Agency, letter

to Nadja Zalokar, Director, Americans with Disabilities Act

Project, USCCR, May 11, 1998, attachment, p. 16.

176

100
familiar with the three laws and how they apply

to the workplace.

Background

The need for workers to take leave from their

jobs is a major concern in the workplace of the

19908.592 Congress sought to address this need

with the FMLA. The act, which is enforced by

the U.S. Department of Labor, assists employees who need leave temporarily due to their own or

family member's disabilities or health problems

who, before passage of the FMLA, might have

lost their health insurance or even their jobs in

trying to secure this leave.593

There are important similarities between the

ADA and the FMLA. Although these laws represent two different public policies with two different objectives, they both protect employees with

significant health concerns, disabilities under

the ADA, and "serious health conditions" in the

language of the FMLA.594 Moreover, an individual can be both "disabled" within the meaning of

the ADA and have a "serious health condition"

within the meaning of the FMLA.595 As these

statutes have similar objectives, it is logical that

policymakers and courts have sought to harmonize the two statutes based on the rules of statutory interpretation.596 One example of this harmonization is the U.S. Department of Labor's

FMLA regulations, which specifically mention

the ADA in stating:

Nothing in [the] FMLA modifies or affects any Fed- eral or State law prohibiting discrimination on the

basis of. . .disability. [The]. . .FMLA's legislative history explains that [the] FMLA is "not intended to

modify or affect the Americans with Disabilities Act of

592 James Passamano, "Employee Leave Under the Americans with Disabilities Act and the Family and Medical Leave

Act," South Texas L. Review, vol. 38 (July 1997), P. 861

(hereafter cited as Passamano, "Employee Leave Under the

ADA and the FMLA").

593 See 29 U.S.C. §§ 2601, 2611-12 (1994). See also Passamano, "Employee Leave Under the ADA and the FMLA."

594 Passamano, "Employee Leave Under the ADA and the

FMLA."

595 Bonnie P. Tucker and Bruce A. Goldstein, Legal Rights of Persons with Disabilities: An Analysis of Federal Law (LPR

Publications Horesham, Pennsylvania) Volume II, Supple- ment 8 (March 1996), pp. 22:35 (hereafter cited as Tucker

and Goldstein, Legal Rights of Persons with Disabilities: An

Analysis of Federal Law).

598 CRS, ADA: Implementation Issues.

1990, or the regulations issued under that act. . . . An

employer must therefore provide leave under whichever statutory provision provides the greater rights to

employees. . . .597

Legislative Histories

Since the ADA was passed 3 years before the

Family and Medical Leave Act,599 its legislative

history makes no direct reference to the FMLA.

The ADA does, however, indicate that Congress

did not intend for the ADA to be an impediment to anyone seeking a remedy for discrimination

under another law:

Nothing in this chapter shall be construed to invalidate

or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision

of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.599

ADA

The ADA's legislative history addresses the

leave needs of employees with disabilities.600 In

the House Education and Labor Committee report accompanying the final ADA bill, Congress

stated that "reasonable accommodation may also

include providing additional unpaid leave days, if such provision does not result in an undue

hardship for the employer. "601 Although the Senate legislative history does not state that leave is

a form of reasonable accommodation, it does not

expressly preclude leave as a reasonable accommodation.602 Unlike the FMLA, which makes

leave an entitlement to those who meet its requirements, the ADA allows leave contingent on

whether the leave poses an undue hardship on

the employer.603

FMLA

Sen. Christopher J. Dodd did not introduce

the bill that would become the FMLA until

5" 29 C.F.R. § 825.702(a) (1997).

598 The ADA was enacted in 1990 See 42 U.S.C. §§ 12,101-

12,213 (1994). The FMLA was passed in 1993. See 29 U.S.C.

§§ 2601-2605 (1994).

599 42 U.S.C. § 12201(b) (1994).

800 H. REP. No. 101-485(11), at 72 (1990).

891 Id.

892 Passamano, "Employee Leave Under the ADA and the

FMLA."

893 See 42 U.S.0 § 12112(5) (A) (1994).

177

191
January 21, 1993.604 However, since 1987, the

Committee on Labor and Human Resources Subcommittee on Children, Family, Drugs, and Alcoholism had been hearing testimony on family

and medical leave proposals.605 Witnesses testified about the difficulties they faced in attempting to meet the needs of family life and the demands of their jobs while either they or family

members were 111.606

S. 5 entitled employees to unpaid leave in

cases involving the birth or adoption of an employee's child, or the serious health condition of

an employee or of the child, spouse, or parent of

an employee.607 Employers with 50 or more employees were covered by this bill.608 The legislative history stated that the need for this legislation was based on the congressional finding that:

Private sector practices and government policies have

failed to adequately respond to recent economic and

social changes that have intensified the tensions between work and family. This failure continues to

place a heavy burden on families, employees, employers and the broader society. S. 5 provides a sensible

response to the growing conflict between work and

family by establishing a right to unpaid family and

medical leave for all workers covered under the act.609

The FMLA's legislative history does not mention an interplay with the ADA.610 However,

Congress stated that nothing in the act could be

construed to modify or affect any Federal or

State law prohibiting discrimination on the basis

of race, religion, color, national origin, sex, age,

or disability.611 Thus, Congress recognized a potential interaction between the two laws, and

expressed its concern that it should be a harmonious one.

Objectives

Each act was created to address unique objectives, but both acts affect the workplace and its

604 S. 5, 103rd Cong. (1993).

606 Passamano, "Employee Leave Under the ADA and the

FMLA."

606 Ibid.

employees, specifically those with disabilities.

Under ,both acts, employers must inform employees of their rights by posting notices.612

These postings are required for all covered employers regardless of whether or not they have

employees covered under each act.613 All public

agencies, including State and local governments,

are covered by each act regardless of the number

of employees they have.614

The ADA, however, is a civil rights law while

the FMLA seeks to serve a narrower purpose,

namely, employee leave needs. The narrower

purpose is reflected in the narrower scope of the

FMLA. Under the ADA, employers with "15 or

more employees for each working day in each of

20 or more calendar weeks in the current or preceding calendar year, "615 must comply with the

statute. However, under the FMLA, the workplace must employ "50 or more employees for

each working day during each of 20 or more calendar workweeks in the current or preceding

calendar year."616 An employee with a disability

seeking medical leave in a company with less

than 50 employees may not even be entitled to

FMLA rights at all and therefore may have to

rely solely on ADA provisions.

Scope and Coverage

The coverage of each act is also different. Under the FMLA, for example, requirements are less

restrictive and apply to a greater number of employees. This is consistent with the FMLA's goal

of addressing the basic leave needs of employees

at companies of at least 50 employees.617 Under

the FMLA, employees are eligible as along as they

have been: (1) employed by the employer for at

least 12 months, (2) employed for at least 1,250

hours of service during the 12-month period immediately preceding the commencement of leave,

and (3) employed at a work site where 50 or more

612 Under the FMLA, notices must be in "conspicuous places

where employees are employed." 29 C.F.R. § 825.300(a)

(1997). Under the ADA, notices must be in "an accessible

format to.. .employees." 42 U.S.C. § 12115 (1994).

613 See 42 U.S.C. § 12115 (1994); 29 C.F.R. § 825.300(a)

(1997).

607 S. 5, 103rd Cong. § 102

608 Id. § 101(4) (1993).

609 S. Rep. No. 103-3,

U.S.C.C.A.N. 2, 6.

610 See generally id.

(1993).

at 4 (1993), reprinted in 1993

614 29 U.S.C. § 2611(4) (A) (iii) (1994); 42 U.S.C. § 12131(1)

(1994).

616 42 U.S.C. § 12111(5) (A) (1994).

616 29 U.S.C. § 2611(4) (A) (I) (1994). 617 S. Rep. No. 103-3 at 2 (1993), reprinted in 1993

611 29 U.S.C. § 2651(a) (1994). U.S.C.C.A.N. 2, 4.

178

1Qo
employees are employed by the employer within

75 miles of that work site.618

Coverage under the FMLA as compared to the ADA is another important issue relating to the

interplay between the two statutes. The gap between the 50 employees required for FMLA coverage and the 15 employees for ADA coverage is quite large. Many employees with disabilitiesmay be unable to obtain necessary leave time. For ex- ample, if an employee with a disability who works

for a company with 49 workersrequests leave but his or her employer believes that granting the

request would result in an undue hardship under

the ADA, the employee does not have the benefit

of the FMLA. In effect, this employee is not being granted equal treatment with an employee with a disability who works for a larger company. A dis- ability law expert has argued that, at a minimum,

Congress should lower FMLA's coverage to include employers with 15 or fewer employees to make it equitable with the ADA. Further, this expert stated that all labor relations laws should

have the same coverage or employees who work

for employers with fewer than 15 employees are being denied equal protection of the laws and

their civil rights therefore are being violated.619 This expert stated:

All employees should be equally protected by the law

and civil rights protection ofan individual should not

depend on the size of the employer. Also, there is a

fundamental unfairness in a law that imposes obligation on one employer with 15 employees, but does not

impose the same obligations on another employer with 14 employees. The unfairness is especially sharp when such similarly situated employers are in the

same industry and may compete with one another.

Also, business practices that develop in small employ- ers do not suddenly change when the employer hires

its fifteenth employee. Rather, small employers are not covered and have a license to engage in even the most offensive civil rights violations with impunity. An organization that has discriminatory employment practices will likely persist in such practices as the

business grows. Uniform coverage of civil rights laws would prevent discriminatory practices from developing in small business. If Congress is concerned

about the costs to small business, it may enact a cap on damages for employers from 1 to 14 employees,

618 29 U.S.C. § 26311(2) (A)(B) (1994).

618 James Passamano, Sufian & Passamano, Houston, TX, telephone interview, Oct. 27, 1997, pp. 2-3 (hereafter cited

as Passamano interview).

just as it has done for other employers in the Civil

Rights Act of 1991.620

Leave under the FMLA is a right that is not subject to undue hardship, potentially unsuccessful reasonable accommodation, or a rigorous

test to meet to show disability.621 Under the

ADA, there is no guarantee of leave, continued

health insurance and benefits, or job reinstate- ment at an equal leve1.622

Protection under the ADA is limited to a

more precisely defined group of people, those

who are qualified individuals with a disability.623 The FMLA requires that the employee have a

"serious health condition."624 An employee who

seeks leave under the ADA must show that she

or he is a part of this group as it has been defined under the law, its regulations, and in case

precedent in the courts. The FMLA regulations state that "serious health condition" means "an

illness, injury, impairment, or physical or mental condition that involves"625 (1) inpatient care

(i.e., an overnight stay) in a hospital, hospice, or

residential medical care facility, . . . or any sub- sequent treatment in connection with such inpa- tient care; or (2) continuing treatment by a

health care provider. "626

Leave Policies

Before leave is granted, certain circumstances must prevail under each act. EEOC's

title I regulations provide for the possibility of

leave under the ADA as a reasonable accommodation.627 Based on the ADA's legislative history, the EEOC has interpreted the act to include additional unpaid leave as a form of reasonable

accommodation, again subject to "undue hardship." Although the ADA does not entitle employees to leave, EEOC's title I regulations state

that "accommodations could include permitting

628 Ibid., p. 3.

621 See generally 29 U.S.C. §§ 2601-2605 (1994).

622 See generally 42 U.S.C. §§ 12111-12117 (1994).

623 42 U.S.C. §§ 12111(8), 12112(a) (1994).

.624 29 U.S.C. § 2612(a) (1994: An employee may also obtain

leave under the FMLA to care for a newborn or recently

adopted child or to care for a family member with a serious

health condition). Id.

625 29 C.F.R. § 825. 114(a) (1997).

626 Id. § 825.114(a) (1997).

627 Id. § 1,630.2(o) (1996).

179

193
the use of accrued paid leave or providing additional unpaid leave for necessary treatment."628

In addressing the situation where an employer does have a leave policy, EEOC's title I

interpretive guidance states that "an employer,

in spite of its 'no leave' policy, may, in appropriate circumstances, have to consider the provision

of leave to an employee with a disability as a

reasonable accommodation, unless the provision

would impose an undue hardship ."629 The policy

of employee leave under this provision can be

interpreted broadly. However, requiring an employer to consider allowing an employee with a

disability leave when the company has a "no

leave" policy does not guarantee the worker the

time off.

The FMLA, on the other hand, does not involve reasonable accommodation.630 Under the

FMLA leave may be granted to employees for

their own or a family member's illness. In addition, it specifies circumstances for which leave

must be granted if requested: (1) for the birth of a

child, and to care for the newborn child; (2) for

placement with the employee of a child for adoption or foster care; (3) to care for the employee's

spouse, son, daughter, or parent with a serious

health condition; and (4) because of a serious

health condition that makes the employee unable

to perform the functions of the employee's job.631

Another important aspect of the issue of leave

is the amount of time off granted under each act.

With the FMLA, the amount of leave is specifically identified: "[a]ri eligible employee's FMLA

leave entitlement is limited to a total of 12 work

weeks of leave during any 12-month period."632 It

is important to note that leave may not be paid,633

but an employee can elect to substitute paid leave

for the FMLA leave.634 Employees using the

FMLA leave do not have to use the full 12 weeks

all at once. An employee found to be suffering

from a "serious health condition" could elect to

work a reduced leave schedule until the equivalent of the 12 work weeks of leave were used.635

628 Id. at pt. 1630 app. § 1630.2(o) (1997).

629 Id. at pt. 1630 app. § 1630.15(b)(c) (1997).

639 See generally id. §§ 2601-2653 (1994).

631 Id. at § 2612(a) (1).

632 Id. § 825.200(a) (1997).

633 Id. § 825.207(a).

634 Id.

635 See id. at § 825.205(a) (1997).

Under the ADA, however, no limit on leave is

stated, because the act itself does not expressly

mention employee leave. However, as noted, the

issue of leave has been interpreted to fall under

the act's "reasonable accommodation" provision.

An employer covered by the ADA, whether the

company has an employee leave policy or not,

has to make reasonable accommodations for

qualified disabled employees so long as that accommodation does not impose an "undue hardship" on the company.636 The use of accrued paid

leave or providing additional unpaid leave has

been included as a form of accommodation, but

again, no time limit has been specified under the

ADA as it has under the FMLA.637

The ADA's legislative history provides for

part-time or modified work schedules for employees with a disability.638 However, leave under this act has been difficult for employees to

obtain. The courts have held that an "employee

in need of leave is not a qualified individual with

a disability as defined in the ADA. "639 Therefore,

even though leave may be a form of reasonable

accommodation, "the weight of reported authority makes leave practically unavailable under

the ADA."640

Another difference between the two acts with

respect to leave is the extent of employer prerogatives to grant employees' requested leave.

Leave under the FMLA is an entitlement as long

as the employee meets the requirements.641 Under the ADA, however, requested medical leave

must be balanced with the employer's need to

avoid "undue hardship."642 Thus, when an employee with a disability requests a leave of absence for health reasons, that request is weighed

against the "undue hardship" that may be imposed upon the employer by such an absence.643

The act defines an "undue hardship" as an action

requiring significant difficulty or expense on behalf of the employer.644 When an employer dem636 42 U.S.C. § 12112(b) (5) (A) (1994).

637 29 C.F.R. § 1630.2(o) (1997).

636 See Passamano, "Employee Leave Under the ADA and

the FMLA."

639 Ibid.

640 Ibid.

641 See 29 U.S.C. § 2612(a) (1) (1994).

642 42 U.S.C. § 12112(5) (A) (1994).

643 Id.

644 Id. at § 12111(10) (A).

180

194
onstrates that the worker's leave would impose

an "undue hardship," the employer is exempt

from any obligation to provide leave as a reasonable accommodation.645

An employee may be eligible for leave under

both laws. An example of a situation in which an

employee may be covered by both laws is as follows: an employee becomes paralyzed as a result

of an off-the-job car accident. The employee now

has a disability under the ADA. Thus, the employer must not engage in discrimination based

on disability and consider reasonable accommodations, if needed, and, in addition, if the employee requests it, grant up to 12 weeks of leave

under the FMLA for treatment and recovery.646

Medical Certification and Employee Records

A controversial issue relating to the eligibility

under both laws is that of medical certification

and employee records. An ADA expert calls this

situation a "potential" problem.647 Under the

ADA, medical examinations and inquiries are

almost universally prohibited.648 The ADA per- mits exams that are job related and consistent

with business necessity.643 According to another

expert, inquiries are permitted on a job-related

basis, so the potential conflict is lessened.650 It is

only within the reasonable accommodation claim

that an employer may require an employee with

a disability to undergo medical examinations or

certifications.

Under the FMLA, the employer may request

certification before the leave begins, and every 30-

day period of the leave.651 The FMLA requires

that the employee provide the employer

"sufficient certification," which includes the following: (1) the date on which the serious health

condition commenced; (2) the probable duration of

the condition; (3) the appropriate medical facts

within the knowledge of the health care provider

848 Id. at § 12112(5) (A) (1994).

regarding the condition; and (4) a statement that

the employee is unable to perform the functions of

the position.652 Any records obtained for leave under the FMLA are to be kept in accordance with

the regulations of the Fair Labor Standards Act653

and are also subject to the confidentiality requirements of the ADA.654

The issue of questioning the health of an employee with a disability has warranted some concern. The general concern is that requesting this

information may violate the ADA's restrictions

on medical inquiries.655 This seems particularly

problematic because the FMLA allows the health

care provider to answer questions about the

"appropriate medical facts within the knowledge

of the health care provider regarding the condition."656 This may be in violation of the ADA

provision that states that an employer "shall not

require a medical examination and shall not make inquiries of an employee as to whether

such employee is an individual with a disability or as to the nature or severity of the disability,

unless such examination or inquiry is shown to

be job-related and consistent with business necessity."657

To avoid any violations of either provision, the

Department of Labor has issued a guideline for

this circumstance. In the event that a health care

practitioner must answer questions about an employee's health, those answers must be limited in

scope to the health condition for which the employee is seeking leave. For instance, if an employee is seeking leave under the FMLA, the

medical questions must pertain solely to the

health problem causing the leave, and should not

make reference to the employee's disability.658

Employee Health Benefits

Once all of the requests and certifications for

leave are completed and granted, another issue

arises for those employees who will be absent

from work for an extended period of time: the

issue of benefits. For instance, will an employee 846 See 29 C.F.R. § 825.702(b) (1997).See also James G. Frierson, Employer's Guide to the Americans with Disabilities Act,

2nd ed. (Washington, DC: Bureau of National Affairs, 1995)

(hereafter cited as Frierson, Employer's Guide to the ADA).

647 James Frierson, telephone interview, Oct. 27, 1997

(hereafter cited as Frierson interview).

882

883

884

Id. § 2613(b) (1994).

Id. 825.500(a) (1997.

Id. § 825.500(g).

648 42 U.S.C. §12112(d) (4) (1994).

848 Id. § 12112(5) (A) (1994).

650 Passamano interview.

881 29 C.F.R § 825.305(b), 825.308(a) (1997).

888 Frierson, Employer's Guide to the ADA.

656 Ibid.

657 42 U.S.C. § 12112(4) (1994).

658 See Frierson, Employer's Guide to the ADA, pp. 4-5.

181
with a disability who seeks leave under either

act be able to retain his or her health care insurance during leave? Since leave is not addressed

directly in the ADA, the issue of whether those

who take leave as a reasonable accommodation

are entitled to retain their benefits comes into

question. It is implied in the regulatory provision that since reasonable accommodation

means: "modifications or adjustments that enable a covered entity's employee with a disability

to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly

situated employees without disabilities"659 that if

an employee without a disability gets some type

of sick leave under company policy and does not

lose his or her benefits, then neither will workers with a disability. Still, there is no guarantee

under the ADA that an employee with a disability will have full coverage when on leave.

However, if the disabled worker were taking

leave under the FMLA, the issue of benefit retention would not arise. In the legislative history of

the FMLA, Congress stated that an employer is

required "to maintain health insurance benefits

during period of leave at the level and under the

conditions coverage would have been provided if

the employee had continued in employment continuously for the duration of the leave."669 If the

employee makes copayments on the insurance

premiums, then these payments must be kept up

while the employee is on FMLA leave.661

Extended Leave

What happens, however, when an employee

opts to take leave under the FMLA, but is still

unable to work at the end of the 12 weeks? This

is a problem that often faces employees with disabilities. Unfortunately for those who are in continual need of leave, after the 12 work weeks of

FMLA leave, the employee no longer has the

protections of the FMLA and must look to a

workers' compensation statute or the ADA for

any additional relief or protections.662 The EEOC

has noted that an employee with a disability who

has used all of his or her FMLA leave is entitled

to additional unpaid leave under the ADA unless

659 29 C.F.R § 1630.2(o) (1) (iii) (1997).

669 S. Rep. No 103-3 at 31 (1993), reprinted

U.S.C.C.A.N. 2, 33 (1893).

661 29 C.F.R. § 825.210(a) (1997).

662 Id. at 825.216(d) (1997).

in 1993

it imposes an "undue hardship" on the employer.663 If an employer claims that the absence

will be an "undue hardship," then the employee

will not be granted leave. To handle such situations, one expert has

suggested that employers should consider each

request for extended leave "on a case-by-case

basis."664 He also notes, however, that combining

these two types of leave may create an "excessive

leave time that is a real burden on an employer."665

When employees do eventually return from

leave, what are their rights? Under the ADA, job

restoration is not expressly required.666 The

EEOC Technical Assistance Manual, however,

lists possibilities for accommodation after ADA

leave as (1) job restructuring, (2) reassignment to vacant positions, and (3) modified work

schedules.667 It does not require that the positions or the pay must be equivalent to the job the

employee had before the leave.668 In fact, the

employee is not even guaranteed any position.669

The case under the FMLA is much different. On

return from leave, an employee is entitled to be

returned to the same position the employee held

when leave began, or to an equivalent position

with equivalent benefits, pay, and other terms

and conditions of employment.670

Continuing Need for

Awareness and Education

One expert has stated that human resources

departments and company managers should be

more aware of the ADA and FMLA interplay for

their employees who have disabilities. Employees as well are often unaware of their rights.677

Another expert notes that employees "may

663 Tucker and Goldstein, Legal Rights of Persons with Disabilities: An Analysis of Federal Law.

664 Frierson, Employer's Guide to the ADA.

665 Ibid.

666 See generally 42 U.S.0 § 12111-12117 (1994).

667 EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities

Act, (EEOCM-1A), January 1992, p. 1-5 (hereafter cited as

EEOC, Title I Technical Assistance Manual). See also Frierson, Employer's Guide to the ADA.

668 EEOC, Title I Technical Assistance Manual, p. 1-5.

669 Ibid.

670 29 U.S.C. § 2614(a) (1994).

671 Frierson interview.

182

196
know about a right to leave, but not about when

they become eligible or how it works. Largely,

especially in the working trades or blue collar

jobs where the workforce tends to not be as sophisticated, employees generally are unaware of

their federal and state rights, despite postings."672 There is a need for more education and

activity on behalf of the employer for his or her

employees. EEOC and DOL are responsible for

providing the necessary information to employers so that they, in turn, can provide the information to their employees.

Application of ADA to Conduct Overseas and Fore lg Employers in the United States

In October 1993, EEOC released a short policy guidance on the application of title VII and

the ADA to American and American-controlled

employers overseas and to foreign employers

within the United States.673 This guidance explains the meaning of the term "employee" as it

pertains to a citizen of the United States who

may be employed overseas, either with an

American company or a foreign corporation controlled by an American employer. It provides

examples of how the laws apply and under what

circumstances.674 The document also provides

the same information on how to apply the laws

to foreign employers operating within the United

States. Finally, the guidance provides instruction to investigators on how to proceed with the

investigation of charges of discrimination

against such employers.675

Discrimination by Employers Abroad

The guidance explains that Congress disagreed with the U.S. Supreme Court on whether

title VII and the ADA applied extraterritorially

to United States employers abroad.676 In 1991,

the Supreme Court decided the companion cases

of EEOC v. Arabian American Oil Company and

672 Passamano interview.

673 EEOC, "Enforcement Guidance on Application of Title

VII and the Americans with Disabilities Act to Conduct

Overseas and to Foreign Employers Discriminating in the

United States," (EEOC Notice 915.002), Oct. 20, 1993

(hereafter cited as EEOC, "Enforcement Guidance on Application of Title VII and the ADA to Conduct Overseas").

674 Ibid., pp. 1-15.

675 Ibid., pp. 16-24, 25-30.

676 Ibid., p. 2.

Boureslan v. Arabian American Oil Cornpany.677

The Court held that title VII of the Civil Rights

Act of 1964 did not apply extraterritorially to

regulate the employment practices of United

States employers that discriminate against

United States citizens abroad.678

Congress responded to the Boureslan decision

by enacting section 109 of the Civil Rights Act of

1991,679 which amended title VII and the ADA to

provide that discrimination against U.S. citizens

abroad will be covered if engaged in by an

American employer or by a foreign corporation

controlled by an American employer.") Section

109 also states that neither title VII nor the

ADA will apply "to the foreign operations of an

employer that is a foreign person not controlled

by an American employer. "681 Finally, section

109 identifies factors to be used in assessing

whether an American employer controls a foreign corporation682 and provides a defense for

violations of the ADA if compliance with the

ADA would "cause" a covered entity to violate

the law of the foreign country in a workplace in

the foreign country.683

The guidance states that an initial question

to be addressed in investigating charges of overseas ADA discrimination is whether the company that allegedly discriminated is an American employer.684 An investigator should look to a

company's place of incorporation in determining

an employer's nationality,686 and where an employer is incorporated in the United States, it

will typically be deemed an American em677 499 U.S. 244 (1991).

678 Id. at 259.

679 Pub. L. No. 102-166, § 109, 105 Stat. 1071, 1077-78 (The

legislative history of the Civil Rights Act of 1991 makes

clear that the purpose of section 109 was to respond to the

Boureslart decision. Section 109 was intended to "extend the

protections of [t]itle VII and the [ADA] to American citizens

working overseas for American employers," 137 CONG. REC.

S15235 (daily ed. Oct. 25, 1991) (statement of Sen. Kennedy).

689 See id. at § 109, 105 Stat. at 1077-78 (codified at 42

U.S.C. §§ 2000e-1, 12112c (1994).

681 See id.

682 See id.

683 See id.

684 EEOC, "Enforcement Guidance on Application of Title

VII and the ADA to Conduct Overseas," p. 5.

685 Ibid.

183
ployer.686 Other relevant factors to consider are

the company's principal place of business, the

nationality of dominant shareholder or individuals holding voting control, and the nationality

and location of management.687 These factors

must be considered on a case-by-case basis and

no one factor is determinative.688

Even if an entity is not itself American, the

discriminatory conduct will be covered if the entity is "controlled" by an American employer.

According to the guidance, an assessment of

whether there is control should include consideration of the following four factors: the interrelation of operations, the common management,

the centralized control of labor relations, and the

common ownership or financial control of the

employer and the foreign corporation.689 All four

criteria need not be present in all cases to determine that there is control by an American

employer.680

Under the "foreign laws defense" an employer

may engage in otherwise prohibited action if

compliance with the ADA would cause an employer to violate the law of the foreign country in

which the workplace is located.681 A defendant

must prove three elements to establish a defense: (1) the action is taken with respect to an

employee in a workplace in a foreign country,

where (2) compliance with the ADA would cause

the defendant to violate the law of the foreign

country; (3) in which the workplace is located.692

Under this defense, it is the employer's burden

686 Ibid., pp. 5-6.

687 Ibid., p. 6.

688 Ibid.

689 Ibid., p. 7 (citing 42 U.S.C. § 12112(c) (2) ( C) (1994)).

690 EEOC, "Enforcement Guidance on Application of Title VII

and the ADA to Conduct Overseas," p. 9 (citing Lavrov v. NCR

Corp., 600 F. Supp. 923, 927 (S.D. Ohio 1984); EEOC, "Policy

Statement on the Concepts of Integrated Enterprise and Joint

Employer," No. N-915, pp. 4-5 (June 6, 1987); EEOC, "Policy

Guidance: Application of the Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Pay Act of 1963 (EPA)

to American Firms Overseas, Their Overseas Subsidiaries,

and Foreign Firms," N-915.039 (Mar. 3, 1989), p. 9).

691 EEOC, "Enforcement Guidance on Application of Title

VII and the ADA to Conduct Overseas," p. 11 (citing 42

U.S.C. § 12112(c) (1) (1994)).

692 EEOC, "Enforcement Guidance on Application of Title

VII and the ADA to Conduct Overseas," p. 12 (citing EEOC,

"Policy Guidance: Analysis of the Sec. 4(1) (1) 'Foreign Laws'

Defense of the Age Discrimination in Employment Act of

1967," No. N-915.046 (Dec. 5, 1989)).

to prove that the defense is applicable and that

the standards of the defense are satisfied.693

Discrimination by Foreign Employers

Within the United States

The guidance states that ADA applies to a

foreign employer if it discriminates in the United

States. According to the guidance:

By employing individuals within the United States, a

foreign employer invokes the benefits and protections

of U.S. law. As a result, the employer should reasona- bly anticipate being subjected to the title VII enforcement process should any charge of discrimination arise directly from the business the employer

does in the United States.694

A foreign or foreign-owned employer within

the United States may invoke the terms of a

treaty or other international agreement that

limits the applicability of U.S. antidiscrimination laws.695 When a treaty is invoked as a defense, the guidance states that an investigator

should first confirm that the identified treaty in

fact exists and should ask the respondent to produce a copy of it.696 The investigator then should

determine: (1) whether the respondent is protected by the treaty; (2) if so, whether the employment practices at issue are covered by the

693 EEOC, "Enforcement Guidance on Application of Title

VII and the ADA to Conduct Overseas," p. 12, n.10 (citing

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson

Controls, Inc., 499 U.S. 187, (1991) and Mahoney v.

RFE/RL, Inc., 818F. Supp. 1 (D.D.C. 1992) rend on other

grounds, 47 F.3d 447 (1995).

694 EEOC, "Enforcement Guidance, on Application of Title

VII and the ADA to Conduct Overseas," pp. 16-17.

695 Ibid., p. 17.

696 Ibid., p. 18.

184

198
treaty; and (3) if so, the impact of the treaty on

the application of title VII or the ADA.697

Charge Processing Instructions

The guidance moves into questions intended

as guidance for structuring an investigation into

charges of discrimination outside the United

States or by foreign employers inside the United

States.698 The guidance closes with summary

statements on its main subject matter.699

697 Ibid., pp. 18-19.

698 Ibid., pp. 26-28.

699 Ibid., p. 31.

185

199
a Assessment of Title I Enforcement

Activities: Charge Processing

One of EEOC's primary responsibilities is to

receive, investigate, and resolve charges of discrimination under the ADA and other nondiscrimination in employment statutes. Persons

who believe that they have been discriminated

against in employment may file a charge of discrimination with EEOC or with a fair employment practices agency in their area.1 EEOC field

offices (district, area, and local offices) are the

primary recipients of charges and are, in most

cases, responsible for all enforcement activities,

from intake to resolution.2 EEOC Commissioners

also may initiate charges of discrimination even

when there is no individual charge of discrimination, often in cases where individuals may not

be aware that they have been discriminated

against or are unaware of their rights.3

After receiving a charge, EEOC investigates.

At the conclusion of the investigation, EEOC

issues a letter of determination of "reasonable

cause" to believe that discrimination has ocI A charge of discrimination is a written document alleging

discrimination by an employer in violation of the ADA or

one of the other statutes enforced by EEOC. Bureau of National Affairs, EEOC Compliance Manual, vol. 1, "Overview"

section, p. 0:3201. However, individuals alleging only violations of the Equal Pay Act file "complaints," not "charges."

2 U.S. Equal Employment Opportunity Commission (EEOC),

"Organization, Mission, and Functions," p. XV-3-22. Even

when complainants contact headquarters about their complaint, they are sent to the appropriate field office for disposition.

3 Bureau of National Affairs, EEOC Compliance Manual,

vol. 1, "Overview" section, p. 0:3202.

curred4 or "no reasonable cause." If EEOC has

found reasonable cause, it will .attempt conciliation, or to arrive at an agreement between the

parties under which the respondent employer

agrees to voluntary compliance. If EEOC's attempts to conciliate fail, it must decide whether

to go to court or to issue a right to sue notice. If

EEOC determines that the case should be litigated, it files suit in Federal court on behalf of

the charging party.5 Charging parties may bring

suit in Federal court once EEOC issues a right to

sue notice. EEOC will issue a right to sue notice

if it has dismissed a charge, if it has found no

reasonable cause, or if it has found reasonable

cause, conciliation efforts have failed, and EEOC

has decided not to file suit itself.6

The Americans with Disabilities Act is a

complex statute, and the vagueness and complexity of ADA concepts of "individual with a

disability," "essential functions," "qualified individual," and "substantially limited" affect charge

processing.? For example, the director of the

Chicago District Office stated that the qualita4 EEOC finds "reasonable cause" when it has found that "it

is more likely than not" that discrimination has occurred.

Bureau of National Affairs, EEOC Compliance Manual, vol.

1, "Overview" section, p. 0:3501.

5 U.S. General Accounting Office, EEOC's Expanding Workload, fig 1, p. 5.

6 See Bureau of National Affairs, EEOC Compliance Manual, vol. 1, "Overview" section, p. 0:3502.

7 Kathryn Moss and Matthew C. Johnsen, "Employment

Discrimination and the ADA: A Study of the Administrative

Complaint Process," Psychiatric Rehabilitation Journal, vol.

21, no. 2 (Fall 1997) p. 118.

186

°00
tive differences between the ADA and other

statutes that EEOC enforces have presented difficulties. Because of the complexities of the law

and its relative newness, EEOC has yet to take

on some of the more serious issues, as it has with

other laws. In addition, EEOC may have underestimated the difficulties staff has had with the

law.8 An investigator in the Oklahoma Area Office stated that ADA cases need more thorough

investigation than charges filed under other

statutes enforced by EEOC.8 A trial attorney

noted that the difference between litigating ADA

cases and other cases is that the ADA is still

rather new, and there are some differences

across the circuits on certain issues." The enforcement manager in the Los Angeles District

Office stated that the ADA is not necessarily

more complex than other laws, but more steps

are necessary in handling an ADA case."

EEOC staff believes that the agency has done

a good job, overall, of enforcing the ADA.12 Many

noted that since the implementation of the Priority Charge Handling Procedures, their jobs

have not necessarily changed. However, one

EEOC official stated, the implementation of the

new procedures has empowered staff. Investigators have more autonomy in charge processing,

there is more interaction between investigators

and attorneys, and there are fewer layers of review. Thus, charge processing is handled more

efficiently than before."

8 John Rowe, District Director, Chicago District Office, EEOC, telephone interview, Apr. 16, 1998, pp. 1-2

(hereafter cited as Rowe interview). 9 Dick Valentine, Investigator, Oklahoma Area Office,

EEOC, telephone interview, Apr. 15, 1998, p. 2 (hereafter

cited as Valentine interview).

10 Toby Costas, Trial Attorney, Dallas District Office, EEOC,

telephone interview, Apr. 13, 1998, p. 2 (hereafter cited as

Costas interview).

11 Rosa Viramontes, Enforcement Manager, Los Angeles

District Office, EE0C,,telephone interview, Apr. 10, 1998, p.

2 (hereafter cited as Viramontes interview).

12 See Spencer Lewis, District Director, New York District

Office, EEOC, telephone interview, Apr. 9, 1998, p. 1 (hereafter cited as Lewis interview); Cynthia Pierre, ADR

Coordinator/Deputy Director, Chicago District Office, EEOC,

telephone interview, Apr. 15, 1998, p. 1 (hereafter cited as

Pierre interview); Jeffrey Bannon, Regional Attorney, Dallas

District Office, EEOC, telephone interview, Apr. 15, 1998, p.

1 (hereafter cited as Bannon interview).

13 Pierre interview, p. 1.

People outside of the EEOC generally appear

to believe that EEOC staff is adequately trained

and handling complaints properly," but that the

agency has too few resources to handle the large

number of charges it receives." For instance, the

assistant commissioner of the State of Tennessee's

Division of Rehabilitation Services wrote that

"two EEOC investigators cannot appropriately

investigate ADA complaints for two-thirds of this

state (Middle and East TN) in a timely manner"

and urged increased funding and staff to implement and enforce the ADA." A perennial complaint about EEOC's charge processing is that it

takes too long for EEOC to resolve complaints.17 A

representative of one of the National Institute on

Disability and Rehabilitation Research's disability

and business technical assistance centers wrote

that "Nile time period from filing to resolution is

a hardship on most individuals and many give up

or decide not to file because they have heard from

other people that it takes a long time or have had

other experiences with the process."" Several in14 See, e.g., Kayla A. Bower, Executive Director, Oklahoma

Disability Law Center, Inc., letter to Frederick D. Is ler, Assistant Staff Director, Office of Civil Rights Evaluation (OCRE),

U.S. Commission on Civil Rights (USCCR), Apr. 6, 1998, attachment, p. 3 (hereafter cited as Bower letter); Joyce R.

Ringer, Executive Director, Georgia Advocacy Office, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

Apr. 1, 1998, attachment, p. 3 (hereafter cited as Ringer letter)

(stating: "EEOC's field staff is performing admirably under a

tremendous volume of cases. . . . Staff appear trained."); Kathy

Ertola, Assistant ADA Coordinator, California Department of

Social Services, letter to Nadja Zalokar, Director, Americans

with Disabilities Act Project, USCCR, May 26, 1998, p. 2

(stating: "The charge processing system in the EEOC in San

Francisco has been fine."). 15 Carl Brown, Assistant Commissioner, Division of Rehabilitation Services, Department of Human Services, State of

Tennessee, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, attachment, p. 2. 16 Ibid., attachment, p. 1.

17 See, e.g., David Eichenauer, Access to Independence and

Mobility, fax to Nadja Zalokar, Director, American with

Disabilities Act Project, USCCR, June 4, 1998 (hereafter

cited as Eichenauer fax); Carl Suter, Associate Director,

Office of Rehabilitation Services, Illinois Department of

Human Services, letter to Frederick D. Isler, Assistant Staff

Director, OCRE, June 9, 1998 (hereafter cited as Suter letter); Bower letter, attachment, p. 3. 18 Responses by National Institute on Disability and Rehabilitation Research Americans with Disabilities Act Technical Assistance Program grantees related to DOJ/EEOC Enforcement, Jan. 6, 1998, provided to the Commission by

187

2 :01
dividuals wrote the Commission that proactive

compliance reviews would be a useful addition to

EEOC's ADA enforcement efforts because they

would put employers "on notice that it may be

their company that will be reviewed next and it

will help to keep compliance as a major topic of

everyday business."19

The Commission also received several specific

criticisms of EEOC's charge processing: one that

there had been a report that EEOC's Atlanta

office, "under the pressure of enormous

caseloads, is discouraging what may be legitimate cases if they are inartfully stated or if they

seem difficult to prove or corroborate,"20 another

that the Chicago office had been accused of

"dismissing valid complaints because of their

heavy workload,"21 and a third that EEOC had

not been particularly helpful in resolving an employer's problem of how to maintain safety after

EEOC determined that being able to subdue an

assaultive patient was not an "essential function" of a psychiatric technician's job. According

to a representative of the State of California's

Department of Rehabilitation:

In this situation the agency felt that EEOC did an

incomplete job. They felt the situation was not investigated completely, especially since they were able to

produce statistics on the numbers and kinds of injuries sustained by [psychiatric technicians] doing

takedowns, and how their policy of pairing two technicians physically able to effect a takedown was a

proven matter of safety.22

Another disability professional wrote:

Some of the EEOC investigators our agency have

dealt with were not sensitive to an. . .[individual's]

need for assistance in developing a charge. They had

expectations that an individual who felt they had

been discriminated against should already know their

David Esquith, National Institute on Disability and Rehabilitation Research (OCRE files), p. 3.

19 Suter letter, attachment, p. 5; see also Eichenauer fax, p.

3.

20 Ringer letter, attachment, p. 3.

21 Suter letter, attachment, p. 5.

22 Michelle Martin, Staff Services Assistant, Department of

Rehabilitation, Health and Welfare Agency, State of California, letter to Nadja Zalokar, Director, Americans with

Disabilities Act Project, OCRE, USCCR, May 11; 1998, attachment, p. 11.

rights and be able to identify the particular right

which was violated. Rather, they should be working to

help them identify the violations. Again, limited to

the cases we have worked with or help assist in a referral to EEOC, the investigators were not as receptive to ADA complaints as their legal counterparts.23

Priority Charge Handling Procedures

Because of increasing workload and limited

resources, the Chairman of EEOC appointed a

Task Force on Charge Processing in 1994. The

task force made several recommendations to

streamline EEOC's charge processing procedures. Among these recommendations, the task

force endorsed rescinding EEOC's unwritten

policy, dating back to 1983, to conduct full investigations of every charge.24 The full investigation

process included obtaining relevant evidence or

information, interviewing relevant witnesses,

and verifying the accuracy and completeness of

the evidence obtained.25 The task force also recommended ending the practice of writing substantive no cause determinations for charges

where no reasonable cause is found. Instead, the

task force recommended that EEOC issue letters

of determination using generic language for

dismissing charges.

Another major recommendation of the task

force was for EEOC to develop priority charge

processing procedures to focus resources on

charges with the most law enforcement potentia1.26 The task force recommended that investi23 Amy Maes, Director, Client Assistance Program, letter to

Frederick D. Isler, Assistant Staff Director, OCRE, USCCR,

Apr. 30, 1998, attachment, p. 3.

24 EEOC, "Charge Processing Task Force Report," p. 5. In

1993, EEOC reported that by law, each charge, except those

involving age discrimination, is to be "fully investigated." As

described in EEOC's manual of compliance standards, full

investigation requires EEOC to investigate all charges and

give all the same degree of attention. EEOC reported that

this standard also applied to age discrimination cases, although this was not required. However, at a 1993 hearing,

EEOC reported' that in many instances, charges were not

fully investigated. For example, in 1988, 40 to more than 80

percent of the charges from EEOC and fair employment

practice agencies were not fully investigated. See General

Accounting Office, EEOC: An Overview, Report to the

Chairman, Subcommittee on Select Education and Civil

Rights, Committee on Education and Labor, U.S. House of

Representatives, July 27, 1993, pp. 2, 9 (hereafter cited as

GAO, EEOC: An Overview).

25 GAO, EEOC's Expanding Workload, p. 4.

26 EEOC, "Charge Processing Task Force Report," pp. 4, 19.

188

202
gation of charges should be done in a timely

manner for those cases that appear to be strong

for enforcement, and to remove from the system

those that appear to be nonmeritorious. EEOC

would investigate the remaining charges as resources would permit.27

The purpose of these recommendations was

to use less EEOC staff time on charges with little or no merit.28 The recommendatioiis were

implemented in 1995 with the issuance of the

new Priority Charge Handling Procedures.

These procedures require staff to conduct determination counseling with the charging party to

ensure that the charging party is informed of the

reasons for EEOC's determination. The procedures also provide guidance on the limited situations when an office should consider reopening a

case upon the request of the charging party.29

The new procedures also provide a coordinated

approach to case processing through investigation, conciliation, and litigation, in addition to

technical assistance and public education.30

The focus of the new procedures is a charge

prioritization system.31 The procedures require all

charges to be placed in one of three categories:

Category A includes charges that that are

priority charges under the National Enforcement Plan or the Local Enforcement Plan and

charges that are likely to result in a cause finding, as well as charges where irreparable harm

may result if processing is not expedited.

Category B includes charges that require

further investigation to determine whether they

are likely to lead to a cause finding.

Category C includes those charges where

further investigation is not likely to lead to a

cause finding.32 Category C charges include:

charges that fail to state a claim, those for which

the agency has no jurisdiction, self-defeating

charges, and allegations that are not credible

(which includes charges by individuals who have

filed a large number of repetitive charges).33

27 Ibid., p. 9.

28 Ibid. p. 5.

26 EEOC, "Priority Charge Handling Procedures," pp. 12-13.

30 Ibid., p. 1.

31 Ibid.

32 Ibid., pp. 4-5; EEOC, FY 1995 Annual Report, p. 5.

33 EEOC, "Priority Charge Handling Procedures," p. 5.

In March 1998, Acting EEOC Chairman Paul

M. Igasaki testified before Congress on the effectiveness of the Priority Charge Handling Procedures. The new procedures, he said, "are designed to give [EEOC] the flexibility to immediately dismiss non-meritorious charges from the

system. . jand] have yielded dramatic results in

a relatively short period of time."34 About 29 percent of incoming charges are immediately dismissed or selected for further evaluation before

classification.35 A reduction of EEOC's backlog of

charges has been attributed to the Priority

Charge Handling Procedures. However, testimony before the. House Subcommittee on EmplOer-Employee Relations of the Committee on

Education and the Workforce revealed that

much of the reduction in the backlog has been

due the dismissal of category .0 charges.36

Generally, charge processing involves the

following steps:

Intake: The charging party is interviewed to

determine the merits of the charge and to prepare a formal charge.

Categorization: During or soon after intake,

charges are categorized as A, B, or C, as defined

by the Priority Charge Handling Procedures.

Investigation: Charges are investigated in

relation to the priority category they have been

assigned.

Resolution/Closure: Charges can be resolved

through a "predetermination settlement" or

other settlement, conciliation, or alternative dispute resolution. Cases are also resolved through

litigation or closed when a notice of right to sue

is issued to the charging party.

34 The Future Direction of the Equal Employment Opportunity Comniission: Hearing Before the Subcomm. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. (Mar. 3, 1998) (statement of

Paul M. Igasaki, Acting Chairman, EEOC).

35 Ibid.

36 The Future Direction of the Equal Employment Opportunity Commission: Hearing Before the Subcomm. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. 5 (Mar. 3, 1998) (statement

of Helen Norton, Director of Legal and Public Policy, National Partnership for Women & Families) (hereafter cited

as Norton testimony). Ms. Norton states that "significant

additional resources" will, be required to reduce the backlog

further. Ibid.

189

203
Charge Intake

When individuals contact an EEOC office regarding a potential charge of discrimination, the

office conducts "intake." During intake, EEOC

staff informs the complainant of his or her rights

under the law and obtains sufficient information

from the complainant to develop a charge of discrimination (or to determine that the complaint

is not jurisdictional or otherwise does not warrant a charge of discrimination). During this

process, all charging parties must be informed of

their right to file a charge and that they must

file a charge to be able to file a private suit.

Charging parties must also be informed of the

possibility of retaliation by the respondent. They

should be informed of what to expect during the

processing of their charge.37 They also should be

given staffs "best initial assessment" of their

evidence, to allow them to make an "informed

decision" as to how to proceed, but they never

should be discouraged from filing a charge.38

Charge intake is handled differently in the

various EEOC field offices. Many offices have a

rotation system in which investigative units take

turns performing intake duties. For example, in

the Charlotte District Office four investigative

units rotate into intake on a weekly basis. Both

investigators and supervisors are involved in

intake. Attorneys are available during the intake

process for consultation. If there is something

that is compelling or that might have class implications, the investigators will talk to an attorney during intake. The Charlotte District Office

used to have a permanent charge receipt unit,

but now relies on the rotation system. According

to the enforcement manager, with the rotation

system it takes about the same amount of time

to take charges; however, much more information is collected now than previously.38

Staff in the Los Angeles District Office spend

approximately one-quarter of their time on intake. Investigative units rotate into intake every

37 This information can be provided in various formats, including videos, but must be accessible and provided in languages other than English if necessary. EEOC, "Priority

Charge Handling Procedures," p. 6.

38 Ibid., p. 7.

39 Michael Wit low, Enforcement Manager, Charlotte District

Office, EEOC, telephone interview, Apr. 14, 1998 (hereafter

cited as Wit low interview).

6 weeks and are assigned to intake for 2 weeks.40

Similarly, in the San Diego Area Office, intake is

done by investigators on a rotational basis. Investigators are assigned to intake every 2

weeks.41 In the Dallas District Office, units rotate into intake once every 5 weeks. Each unit

has approximately six investigators and one supervisor.42 In the Dallas office, a staff member

usually investigates the charges taken by him or

her at intake.43

The Chicago District Office has a pilot program to determine the feasibility of assigning

staff permanently to do intake. A group of investigators is assigned to charge receipt for 5 to 6

months. Charges go to another unit for investigation. The district office has six investigators

doing intake every day. Because only five staff

members volunteered to be the permanent intake staff, each day a different investigator from

other units is assigned to be the sixth person."

According to the joint report of the Task

Force on Priority Charge Handling Procedures

and the Litigation Task Force, both models of

intake have advantages. A dedicated intake unit

with permanent staff "provides a level of consistency and specialization in the intake and categorization of charges. "45 Comparatively, according to the task forces, the rotation system

"ensures that all investigators are well-versed in

the [Priority Charge Handling Procedures] principles as applied to intake."48 Thus, the task

forces recommended that the Office of Field Programs assess the results of these two methods

40 Viramontes interview, p. 3.

41 Raul Greene, Investigator, San Diego Area Office, EEOC,

telephone interview, Apr. 15, 1998 (hereafter cited as

Greene interview).

42 Lillie Wilson, Investigator, Dallas District Office, EEOC,

telephone interview, Apr. 14, 1998 (hereafter cited as Wilson

interview).

43 Jim Wallace, Enforcement Supervisor, Dallas District

Office, EEOC, telephone interview, Apr. 14, 1998, p. 3

(hereafter cited as Wallace interview).

" Cheryl Mabry-Thomas, Investigator, Chicago District

Office, EEOC, telephone interview, Apr. 14, 1998 (hereafter

cited as Mabry-Thomas interview).

49 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 42.

46 Ibid.

190

204
and share the information from the assessment

with the field offices.47

Intake varies in other ways as well. The coordination of interviews, information provided,

and time spent with charging parties differs

among field offices. In Dallas, people who come

to the office are handled on a first come, first

served basis. Charges are not taken over the

phone. Sometimes potential charging parties can

make an appointment if the office is very busy,

but the wait is usually only 15 to 20 minutes.

However, a charging party, is usually interviewed as soon as he or she has filled out the

paperwork. Interviews may also be scheduled in

advance. During the intake interview, the investigator reviews the questionnaire that the

charging party has completed (form 283).48

In Charlotte, potential charging parties also

are served on a first come, first served basis. The

office does telephone interviews for charging

parties who cannot go to the office. Potential

parties fill out a preinterview form and are interviewed by a supervisor before meeting with

an investigator for an indepth interview. Investigators try to find out as much as possible during the interview. What is asked depends on the

issues and bases the potential charging party

raises during the interview.49

In Chicago, potential charging parties are

shown a videotape while they wait for their interview. When they meet with the investigator,

the investigator describes the intake and investigation processes and informs the charging parties of their rights. The investigator will assess

the strengths and weaknesses of the case and

informs the charging party of what will happen

if EEOC takes the charge.89 A videotape is also

shown in the Los Angeles District Office, which

has no appointment system. Charging parties

sign in and are given an information package

that describes the interview, the investigation

process, their rights, and the mediation program. After the charging party has completed a

questionnaire, he or she is interviewed.81 The

47 Ibid. 48 Wilson interview. 49 Wit low interview. 59 Mabry-Thomas interview. 51 Viramontes interview, p. 4.

New York District Office has an appointment

system for intake interviews, but generally, approximately 30 people come to the office daily

who have not made an appointment. However,

previously there was no appointment system so

persons coming in to file a charge often had a

long wait before their interview.52 The New York

office also receives approximately 70 phone calls

per day. An investigator in this office stated that

much prescreening is done over the telephone.53

In the Boston Area Office, a potential charging

party is given a questionnaire to complete before

the intake interview. The investigator reviews the

questionnaire before talking to the charging

party. An investigator in this office said that individuals often do not know what EEOC does, so

investigators describe the mission of EEOC and

the laws it enforces. They then discuss the issue

in more detail. If there are sufficient facts a

charge will be drafted along with an affidavit, a

copy of which will be sent to the employer.54

An investigator in the Oklahoma Area Office

stated that during an investigative unit's

(comprised of three investigators) 2-week intake

period, 60 appointments are scheduled, although

only about 30 appointments are kept. In addition, about 120 phone calls per investigator are

received, approximately one-quarter of which

result in charges of discrimination. Other telephone callers ask about their rights, EEOC's responsibilities, and time limits to file claims under various statutes. Other individuals seek

clarification on the statutes enforced by EEOC.

Many of the callers present issues outside of

EEOC's jurisdiction. Most telephone inquiries

last between 2 to 30 minutes. During each intake period, staff also receives more than 40 letters from prospective charging parties. Investigators mail a questionnaire to the 8-10 indi52 Kevin Berry, Enforcement Manager, New York District

Office, EEOC, telephone interview, Apr. 15, 1998 (hereafter

cited as Berry interview). 53 Rachel Fleming, Investigator, New York District Office,

EEOC, telephone interview, Apr. 9, 1998 (hereafter cited as

Fleming interview). 54 Devika Dubey, Investigator, Boston Area Office, EEOC,

telephone interview, Apr. 9, 1998 (hereafter cited as Dubey

interview).

191

2 u.
viduals whose letters raise issues that might result in charges under the ADA.55

The March 1998 joint task force report recommended that the Office of Field Programs coordinate the information provided to charging

parties. All videos, foreign language materials,

and brochures should be made available to all

offices. The report further recommended that the

Office of Field Programs, the Office of General

Counsel, and the Office of Communications and

Legislative Affairs assess information needs and

determine what should be developed centrally

for distribution to field offices.56

Staff interviewed by the Commission said

that intake of ADA charges does not differ

greatly from intake of charges filed under other

statutes; however, there are some differences.

An enforcement supervisor in Dallas stated that

if a person has a disability that is not apparent,

staff gives that person the "ADA Letter" which

tells the charging party that EEOC must receive

written medical information from a physician

that explains what the disability is and how it

rises to the level of a disability that substantially

limits a major life activity. The charging party is

given 30 days to provide this information. Such

cases are usually categorized as B cases, pending

the receipt of medical information. It is the responsibility of the charging party to provide that

information. EEOC will dismiss the case if the

information is not received.57

An investigator in the Chicago District Office

stated that with an ADA case, staff must first determine if the person's disability falls under the

ADA. Staff asks charging parties to sign medical

release forms to get more information on the disability. Thus, the decision of whether the person

is covered under the ADA usually is not made

during the intake interview.58 Similarly, an interviewer in the Charlotte office stated that medical

information and/or verification might be required,

55 Valentine interview, p. 2. See also Peggy R. Mastroianni,

Associate Legal Counsel, EEOC, letter to Frederick D. Is ler,

Assistant Staff Director, OCRE, USCCR, July 17, 1998,

Comments of the EEOC, p. 2 (hereafter cited as EEOC

Comments, July 17, 1998).

56 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 42.

57 Wallace interview.

58 Mabry-Thomas interview.

and that the investigator would have to establish

the essential functions of the job during the investigation.59 The enforcement manager in the New

York District Office said that sometimes a disability is apparent (such as when a person is in a

wheelchair), but in other cases further research

may be needed. For example, the investigator

may wish to interview witnesses to determine the

nature of the disability.60

Charge Categorization

A, B, and C Charges

The Priority Charge Handling Procedures

empowered front-line employees to categorize

charges, with supervisory review.61 During the

intake interview, EEOC staff makes a determination of whether the charge falls under category A, B, or C. In addition, the joint report of

the Priority Charge Handling Task Force and

the Litigation Task Force identifies two categories of A cases. An A-1 case is a potential litigation vehicle. An A-2 case is one in which the investigation will likely reveal a cause finding, but the case probably will not be litigated by

EEOC.62

Many field offices have categorized A, B, and

C cases even further. For example, the Charlotte District Office has two categories for each

priority level. According the enforcement manager, A-1 charges are cases in which there has

been a egregious violation of the law or that

raise class issues or Local Enforcement Plan

issues. A-2 charges are cases in which there is

enough information to determine that there

likely is a violation, but do not raise "impact"

issues as do A-1 charges. Charges where the

information provided is insufficient to determine whether or not a violation has occurred

are labeled B-4 cases; B-5 charges are those

that are candidates for alternative dispute

resolution. Cases in which it is obvious that

there has been no violation of the law are labeled as C-6 charges. Cases in which it appears

59 Tiara Jackson, Investigator, Charlotte District Office,

EEOC, telephone interview, Apr. 16, 1998 (hereafter cited as

Jackson interview).

69 Berry interview.

61 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 44.

62 Ibid., p. 46.

192

206
FIGURE 6:1

Processing Category by Statute

70% -

60% -

0%

ADA

Source: EEOC, Charge Data System.

Title VII ADEA

Statute

EPA

A

N B

D C

unlikely that a violation occurred, although the

charging party has presented sufficient information to file a charge; are labeled C-7.63

Essentially, charges for which charging parties provide only partial information (so that investigators are not sure if it is likely that a violation took place) are categorized as B charges.64 B

cases are investigated until enough information

is gathered so that they can be reclassified as A

or C.65 There is no need to investigate C charges.

Before the new procedures, such cases had to be

investigated, even though staff knew these

charges had no merit.66 In Dallas, for C cases

that are dismissed during intake, the charging

party is given a right to sue letter during the

interview.67

63 Wit low interview, p. 5.

64 See Wilson interview, p. 3.

Viramontes interview, p. 5.

66 Ibid.

67 Wilson interview.

Many staff indicated that under the new procedures there is better screening of charges, and

staff can be honest with charging parties about

the prospects and validity of their cases.68 An enforcement manager in the Charlotte District Office stated that since the new procedures were

implemented, staff can act more expeditiously on

cases and can identify cases with potential to begin working on them more quickly than before.68

According to the Chicago district director, charge

prioritization is not new to that office, which began categorizing charges as priority "1," "2," or "3"

in June 1994. The Chicago office focused on thorough interviews to enable staff to determine the

merit of the charge. Both before and after the introduction of the Priority Charge Handling Procedures, staff spent between 2 and 3 hours in intake

interviews. However, the district director stated

68 See Berry interview; Greene interview; Thelma Taylor,

District Director, Los Angeles District Office, EEOC, telephone interview, Apr. 16, 1998.

69 Witlow interview, p. 1.

193

°
that he is not comfortable stating that staff are

capable of making a determination of the priority

of a charge. Thus, supervisors also are involved in

charge categorization.70

The March 1998 joint task force report noted

some problems with charge categorization. For

example, the Charge Data System data indicate

that C charges are not always dismissed at intake. The report stated that sometimes investigators think they need additional information

before they can categorize charges as C charges.

The task forces also noted an imbalance in the

identification and processing of B cases. According to the report:

Despite innovative approaches taken by some offices

to ensure that B charges are recategorized in a timely

manner, many offices do not have a system of case

management or processing procedures in place to ensure the continuous movement, development and/or

resolution of the aging B cases. One factor contributing to the build-up of the B inventory in some offices

is a hesitancy on the part of investigators to recategorize a case as a C or as an A.71

To resolve these problems, the task forces recommended that C cases be disposed of as soon as

possible, and that those offices with an aging B

case inventory implement measures to ensure

the movement of B cases through the investigative process. The task forces also recommended

that field offices develop standard operating procedures for proCessing B cases.72

Differences in categorization of cases by statute are shown below in figure 6.1. For all four

statutes enforced by EEOC, close to 60 percent

of the charges are placed in category B. Category

A and category C charges are distributed similarly for the ADA, title VII, and Age Discrimination in Employment Act (ADEA). Twenty-six

percent of ADA charges and 27 percent of both

title VII and ADEA charges are placed in category C. Only 16 percent of Equal Pay Act (EPA)

charges are categorized as C. Category A

charges account for 15 percent, of ADA charges,

13 percent of title VII charges, 12 percent of

ADEA charges, and 27 percent of EPA charges.

70 Rowe interview, pp. 2-3.

71 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 48.

72 Ibid., pp. 44, 48.

Data from EEOC's Charge Data System suggest that the Priority Charge Handling Procedures have been implemented differently across

EEOC's field offices. Table 6.1 shows that the

offices vary greatly in the percentage of charges

classified as A, B, and C. For example, the percentage of the categorized charges assigned

category A varies from 6.2 percent in the Birmingham and San Antonio District Offices to

46.4 percent in the New Orleans District Office.

Only 2.9 percent of the cases handled by the El

Paso Area Office are category A charges. Similarly, category C charges range from 4.9 percent

of the categorized charges in the Indianapolis

District Office to 48.1 percent of the categorized

charges in the Dallas District Office. In most

offices, more than two-thirds of the categorized

charges are B charges.

The categorization of charges has received

criticism. The director of Golden State University's Employment Rights Clinic stated that

practitioners do not understand clearly the prioritization system and do not know if they can

influence the decision process. Further, the director stated that categorizing cases at intake is

problematic because charging parties may not

know how to frame their charge so that the important legal facts are made clear. Similarly,

intake personnel may not be able to determine if

there are bases for discrimination other than as

described by the charging party.73

Commissioner Charges

The EEOC Compliance Manual provides for

the investigation of Commissioner charges in

which "[r]espondents may be identified and

scheduled for investigation either in the absence

of an individual charge or when the bases/issues

to be investigated are not adequately covered by

a pending charge."74 According to the manual:

While the principal means for implementing Commission policy is the investigation of individual charges,

EEOC initiated investigations are a necessary part of

the enforcement process. Discrimination victims are

73 "EEOC Officials, Attorneys See Improvements With

Charge, Litigation Processing Changes," Daily Labor Report,

Bureau of National Affairs, Mar. 30, 1998, p. C-1.

74 EEOC, EEOC Compliance Manual, published by the Bureau of National Affairs, § 8.1, p. 8:0001 (hereafter cited as

EEOC, Compliance Manual).

194

208
TABLE 6.1

Priority Charge Processing, by Office

Number of charges Office A B C Total charges Percentage of charges

A B C

Albuquerque 153 703 200 1,056 14.5 66.6 18.9

Atlanta 412 1,641 444 2,497 16.5 65.7 17.8

Savannah 41 238 62 341 12.0 69.8 18.2

Baltimore 405 559 351 1,315 30.8 42.5 26.7

Norfolk 149 256 91 496 30.0 51.6 18.3

Richmond 179 416 295 890 20.1 46.7 33.1

Birmingham 105 1,071 527 1,703 6.2 62.9 30.9

Jackson 116 411 248 775 15.0 53.0 32.0

Charlotte 515 898 472 1,885 27.3 47.6 25.0

Raleigh 125 333 176 634 19.7 52.5 27.8

Greensboro 98 164 126 388 25.3 42.3 32.5

Greenville 88 124 54 266 33.1 46.6 20.3

Chicago 494 2,855 436 3,785 13.1 75.4 11.5

Cleveland 290 830 1,178 2,298 12.6 36.1 51.3

Cincinnati 145 657 248 1,050 13.8 62.6 23.6

Dallas 469 867 1,236 2,572 18.2 33.7 48.1

Oklahoma 102 519 491 1,112 9.2 46.7 44.2

Denver 313 1,370 932 2,615 12.0 52.4 35.6

Detroit 274 1,112 1,142 2,528 10.8 44.0 45.2

Houston 458 1,915 627 3,000 15.3 63.8 20.9

Indianapolis 399 3,269 187 3,855 10.4 84.8 4.9

Louisville 129 877 140 1,146 11.3 76.5 12.2

Los Angeles 254 796 714 1,764 14.4 45.1 40.5

San Diego 80 972 462 1,514 5.3 64.2 30.5

Memphis 167 648 210 1,025 16.3 63.2 20.5

Little Rock 183 812 296 1,291 14.2 62.9 22.9

Miami 463 2,251 700 3,414 13.6 65.9 20.5

Tampa 284 1,263 600 2,147 13.2 58.8 27.9

Milwaukee 142 1,605 492 2,239 6.3 71.7 22.0

Minneapolis 89 1,097 377 1,563 5.7 70.2 24.1

Nashville 175 1,075 327 1,577 11.1 68.2 20.7

New Orleans 490 434 132 1,056 46.4 41.1 12.5

New York 251 1,109 711 2,071 12.1 53.5 34.3

Boston 116 774 561 1,451 8.0 53.3 38.7

Buffalo 203 634 169 1,006 20.2 63.0 16.8

Philadelphia 776 1,346 426 2,548 30.5 52.8 16.7

Newark 189 610 123 922 20.5 66.2 13.3

Pittsburgh 505 1,693 70 2,268 22.3 74.6 3.1

Phoenix 655 1,095 874 2,624 25.0 41.7 33.3

St. Louis ' 146 915 605 1,666 8.8 54.9 36.3

Kansas City 155 835 389 1,379 11.2 60.6 28.2

San Antonio 126 1,607 303 2,036 6.2 78.9 14.9

El Paso 27 824 77 928 , 2.9 88.8 8.3

195

2u9
TABLE 6.1 (continued)

Priority Charge Processing, by Office

Number of charges Office A B C Total chargesPercentage of charges.

A

San Francisco 195 753 494 1,442 13.5 52.2 34.3

Fresno 21 209 88 318 6.6 65.7 27.7

Oakland 60 234 529 823 7.3 28.4 64.3

San Jose 65 178 155 398 16.3 44.7 38.9

Honolulu 40 100 44 184 21.7 54.3 23.9

Seattle 254 579 386 1,219 20.8 47.5 31.7

Washington 230 476 386 1,092 21.1 43.6 35.3

Headquarters 2 136 6 144 1.4 94.4 4.2

FEPA/Other 44 271 27 342 12.9 79.2 7.9

Totals 11,846 46,416 20,396 78,658 15.1 59.0 25.9

Source: EEOC, Charge Data System

often either unaware of their rights or unaware of discriminatory practices. While this is typically so in cases

of systemic discrimination, it is also true in cases where

discrimination is less pervasive. Field offices should not

hesitate to recommend commissioner charges or initiate directed investigations as a complement to individual charge investigations when such action will fulfill

EEOC's law enforcement mission.75

The Priority Charge Handling Procedures

stress that Commissioner charges are an essential component of EEOC's law enforcement

strategy.76 The procedures state that "some

types and incidents of illegal discrimination will

not be the subject of individual charges but,

nonetheless, constitute serious violations of the

laws that should be the subject of enforcement

action" and offer examples of such instances.77

The procedures for Commissioner charges allow

field offices to submit proposed charges directly

to the Commission, rather than seeking approval

from the Office of Program Operations (now

called the Office of Field Operations) and to in75 Ibid., § 8.1 (a), p. 8:0001.

76 The procedures also apply to "directed investigations,"

which are investigations initiated by EEOC staff under the

Age Discrimination in Employment Act or the Equal Pay

Act. EEOC, "Priority Charge Handling Procedures," p. 17. 77 Ibid.

vestigate these charges without headquarters

sup ervision.78

Commissioner charges may also be proposed

by outside organizations and/or individuals.79 In

response to an information request for this report, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities

provided an example of a request for a Commissioner charge. In the request, the general counsel for the State agency said that he was asking

for a Commissioner charge because the agency

did not have the authority to investigate without

a specific request from an individual, nor did it

have jurisdiction beyond the State border. The

request further stated that "the information provided to the EEOC may lead to the conclusion

that the issues are national in scope and dimension, and not unique to one State or EEOC."89

Acting Chairman Igasaki has stated that

Commissioner charges are an important tool for

eliminating discrimination. These charges can be

used in cases where there are witnesses but no

formal charge filed, or where there is fear of reprisal. According to Acting Chairman Igasaki,

78 Ibid., p. 19.

79 EEOC, Compliance Manual, § 8.2, p. 8:0001.

80 Lawrence Berliner, General Counsel, State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, enclosure.

196

20 0
Commissioners are restrained with the charges

because they have to sign them.81 Commissioner

Reginald E. Jones stated that he only signs a

Commissioner charge if he believes that there is

a good reason for an investigation. He noted that

a Commissioner charge triggers only an investigation.82 Commissioner Paul Steven Miller indicated that Commissioner charges are a necessary part of strategic enforcement; EEOC must

choose cases that will have national impact.83

Commissioner charges also have received

support from the National Partnership for

Women and Families. Speaking before the

House Subcommittee on Employer-Employee

Relations, the director of Legal and Public Policy

stated that Commissioner charges are an important tool. Victims of discrimination may be

afraid to file a charge with EEOC, or may not

even realize they are being treated unfairly because they have no basis of comparison. Thus,

Commissioner charges "can help ferret out egregious discrimination that would otherwise go

unremedied."84

Others have questioned the use of Commissioner charges. For example, in testimony before

the House Subcommittee on Employer-Employee

Relations, House Speaker Newt Gingrich asked,

"Why go out seeking discrimination haphazardly

when it can be said that it is sitting on your

doorstep?" Although the Speaker acknowledged

that Commissioner charges are not necessarily

"frivolous and unworthy of support," he stated

that there are other obvious cases of discrimination that must be addressed.85

Commissioner charges account for only a

small proportion of all charges filed with EEOC.

Data received from EEOC indicate that only 99

ADA charges have been commissioner charges.

81 Paul M. Igasaki, Acting Chairman, EEOC, interview, Apr.

7, 1998, p. 2 (hereafter cited as Igasaki interview).

82 Reginald E. Jones, Commissioner, EEOC, interview, Apr.

1, 1998, p. 3 (hereafter cited as Jones interview).

83 Paul Steven Miller, Commissioner, EEOC, interview, Apr.

2, 1998, p. 3 (hereafter cited as Miller interview).

84 Norton testimony, p. 3.

85 The Future Direction of the Equal Employment Opportunity Commission: Hearing Before the Subcomni. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. 4 (Mar. 3, 1998) (statement

of Newt Gingrich, Speaker of the House, U.S. House of Representatives) (hereafter cited as Gingrich testimony).

Of all charges filed between October 1989 and

September 1997, 559 were Commissioner

charges, less than 1 percent of the total.

Charge Investigation

Investigations

The investigation of a charge is designed to

give EEOC the information necessary to determine if there is reasonable cause to believe that

discrimination has occurred. EEOC's investigative staff generally issues a request for information to the respondent employer. Once a response has been obtained from the employer,

EEOC's staff decides how to proceed. EEOC can

go onsite to investigate employers, during which

EEOC's investigative staff can examine the employer's records and interview witnesses. EEOC

has the authority to issue a subpoena to obtain

access to the information necessary for reaching

a determination on a charge.86 During the investigation, an EEOC investigator can help the parties reach a settlement, although the investigator must remain neutral during the parties' negotiations.87

According to the Director of the Office of

Field Programs, a case gets as much investigation as is needed. The investigation is completed

when a cause finding is found or when the investigator determines that additional information

will not lead to a cause finding.88 All cases in

category A are investigated. The Priority Charge

Handling Procedures specify that "the investigation to be made in each case should be appropriate to the particular charge, taking into account

the EEOC's resources."89 EEOC field offices are

to "develop a flexible process" to ensure that

charges that have little merit are not "over investigated." The procedures direct investigators

to decide, as soon as possible after receiving a

response to their request for information from

the respondent, whether to dismiss the charge,

to investigate further, or pursue a settlement.

The Priority Charge Handling Procedures emphasize that investigators should continually

86 Bureau of National Affairs, EEOC Compliance Manual,

vol. 1, "Overview" section, pp. 0:3302-0:3307.

87 Ibid., p. 0:3501.

88 Elizabeth Thornton, Director, Office of Field Programs,

EEOC, interview in Washington, DC, Apr. 1, 1998, p. 3.

89 EEOC, "Priority Charge Handling Procedures," p. 9.

197

211
reassess and recategorize charges as they gather

more information.9°

The Priority Charge Handling Procedures

offer "management options" for reducing the

backlog of cases and for improving the coordination between investigators and attorneys. The

procedures offer a number of suggestions as to

what field offices can do, at their discretion, to

redude their backlogs. For instance, the procedures suggest that field offices may give backlogged charges priority or devote an entire week

to older cases.91

The new procedures also stress the need for

attorneys to be involved in the classification and

investigation stages and suggest organizing investigator-attorney teams or "other collaborative

arrangements" to accomplish this.92 This need

has been identified by those outside of EEOC as

well. For example, the Chairman of the Subcommittee on Employer-Employee Relations of

the House Committee on Education and the

Workforce stated that attorneys should provide

greater supervision over intake and investigation." Similarly, the Speaker of the House

stated at the same hearing that lawyers must be

more involved in intake and investigation and

less involved in litigation."

The joint report of the Priority Charge Handling Task Force and the Litigation Task Force

noted the importance of cooperation between

investigative and legal units. The report stated:

Prior to the implementation of the PCHP [Priority

Charge Handling Procedures], the NEP and the LEPs,

there was often considerable pressure on investigators

to focus on case closure at the expense of cause development and litigation. In addition, approximately 85%

of the agency's litigation docket consisted of cases on

individual charges. While individual cases should be

part of a diversified docket, the limited scope of these

99 Ibid., pp. 9-10.

91 Ibid., pp. 15-16.

92 Ibid., pp. 15-16.

93 The Future Direction of the Equal Employment Opportunity Commission: Hearing Before the Subcornm. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. (Mar. 3, 1998) (statement of

Harris W. Falwell, Chairman, Subcommittee on EmployerEmployee Relations, Committee on Education and the

Workforce, U.S. House of Representatives).

94 Gingrich testimony.

charges meant that they could not be developed into

cases that would advance the law, affect broad discriminatory patterns or practices or provide relief in

cases involving large numbers of people.95

However, attorney involvement in investigations

continues to vary among the field offices. According to the joint task force report:

in some offices, there still exists a culture where finger-pointing is the response to concerns about office

enforcement results. . .we heard from some staff that

the investigations unit was to blame for the lack of

litigation because investigators need training and

focus primarily on resolutions, or that legal does not

adequately support the investigation of cause cases

and does not respect the work of investigators.96

The Director of the Office of Field Programs stated that investigators and attorneys are

working well together; the form of coordination

depends on the office culture.97 However, in his

March 19, 1998, report to the EEOC Commissioners, the General Counsel stated that improvement

in attorney-investigator relations was needed."

Field offices have experimented with different forms of attorney-investigator interaction.

Several offices have developed "hybrid" units

that have both investigative and legal staff. In

some offices, investigators and attorneys report

to the same supervisor. In other offices, an attorney is assigned to an investigative unit to assist in investigations.99 The Director of Field

Management Programs stated that the requirement of greater coordination between investigators and attorneys is an "ongoing process."loo

Several EEOC staff members provided examples of legal staff involvement in investigations.

A trial attorney in the Dallas District Office

stated that she reviews charges that have been

categorized as A or B charges, but usually does

95 EEOC, Priority Charge Handling Task Force/ Litigation

Task Force Report, March 1998, p. 13.

96 Ibid., p. 14.

97 Thornton interview, p. 2.

99 Report on EEOC Commission Meeting, Mar. 19, 1998, p. 3.

99 Ibid., p. 1. See EEOC, Priority Charge Handling Task

Force/ Litigation Task Force Report, March 1998, p. 46.

too Godfrey Dudley, Director, Field Management Programs,

Office of Field Programs, EEOC, interview in Washington,

DC, Apr. 7, 1998, p. 2.

198

212
not review C charges.101 A trial attorney in

Charlotte stated that since the implementation

of the Priority Charge Handling Procedures, she

works more closely with investigators, and at an

earlier stage. She is assigned to an investigative

unit to provide advice as needed. Legal staff in

the Charlotte District Office review all A charges

and some B charges.102 In the New York District

Office, attorneys are assigned to work with each

investigative unit in the office and the area offices they serve (Boston and Buffalo). They coordinate their efforts with the supervisors of the

investigative units and help to identify the cases

to which they want to give the highest priority.

Trial attorneys review category A charges and

some category B charges if they find that the

number of A charges is low and they believe

there may be more.103

According to the enforcement manager in

Charlotte, investigations in that office are done by

two enforcement units, with varying participation

by legal staff. The A-1 enforcement group is comprised of teams: the A-1 team, a class team, and a

South Carolina team. Each team has attorneys

who are involved in the investigation from beginning to end. These teams investigate charges that

have potential litigation and some A-2 charges. In

the A-2 enforcement group, which investigates A2 charges and B charges, attorneys are available

as counselors, but are only involved at the end of

an investigation.104

Processing time also varies from office to office. The enforcement manager in the Charlotte

District Office stated that A cases normally are

assigned to investigators within 3 to 4 weeks. B

cases may take up to 6 weeks to become an active investigation.105 An investigator in the Boston Area Office stated that an investigation begins about 2 months after the intake interview

occurs.106 An investigator in the San Diego Area

Office also stated that it takes about 2 months

for active investigation of a case to begin. He

101 Costas interview, p. 1. 102 Lynette Barnes, Trial Attorney, Charlotte District Office,

EEOC, telephone interview, Apr. 15, 1998, pp. 2-3. 103 James Lee, Regional Attorney, New York District Office,

EEOC, telephone interview, Apr. 8, 1998, p. 2. 104 Wit low interview. 105 Ibid., p. 6. 106 Dubey interview, p. 4.

explained that the delay is due to the backlog of

cases. Each investigator has approximately 70

charges from the backlog to resolve.107

Throughout the investigation, charging parties

are kept informed of the progress of the case in a

variety of ways. Investigators may contact the

charging party at certain points, when they wish

to review certain information, or when more information is needed. Charging parties also may

call the investigator for an update on the status of

the case.08 Respondents are provided a copy of

the charge to which they can respond, but neither

the charging party nor the respondent is provided

access to the investigative file.109

In a review of EEOC's charge processing efforts, one researcher noted problems with the investigative process. The researcher charged,

"There has been an incentive for investigators to

find that 'there is not reasonable cause to believe

that a charge is true."' The researcher noted that

during her review (September 1995 to September

1996), investigators were rated on the number of

cases they closed, not the quality of their investigations.no The researcher also found that onsite

investigations and in-person interviews were

rarely done because of time and resource limitations, "boilerplate" request for information letters

were commonly used, and information from respondents was not verified.m

EEOC investigators interviewed for this report only partially confirm these allegations. Investigators stated that there are standardized

requests for information, although many investigators do modify them to apply to a particular

charge.112 Investigators also noted that information received from respondents is confirmed with

supporting documentation or through inter107 Greene interview. 108 See Wallace interview, pp. 4-5. 109 Ibid., p. 5; Mabry-Thomas interview, p. 5; Dubey interview, pp. 4-5.

110 Kathryn Moss, "Psychiatric Disabilities, Employment

Discrimination Charges, and the ADA," report prepared for

U.S. Department of Education, Office of Special Education

and Rehabilitative Services, National Institute on Disability

and Rehabilitative Research, Sept. 30, 1995Sept. 28, 1996,

pp. 19-20.

Ibid., pp. 18-19. 112 See Wilson interview, p. 4; Witlow interview, p. 6; Taylor

interview, p. 4; Valentine, p. 5.

199

2 1 3
views.113 However, one investigator noted that

unless there is reason to question the credibility

of respondent-provided information, an investigator will continue the investigation assuming

what each side has told and provided to EEOC is

true.'" Further, the enforcement manager in the

Dallas District Office stated that onsite investigations often are not done at respondent's sites

outside of the Dallas area, due to the large geographical area covered by the office and a limited travel budget.115

Determinations

The Priority Charge Handling Procedures

state that substantive no cause determinations

will no longer be issued. Charging parties will be

provided a "short-form" determination stating

that the investigation failed to disclose a violation, using the standard language:

Based upon the Commission's investigation, the

Commission is unable to conclude that the information obtained establishes violations of the statutes.

This does not certify that the respondent is in compliance with the statutes. No finding is made as to any

other issue that might be construed as having been

raised by this charge.116

The procedures state that because the determination no longer explains in detail the disposition of the charge, determination counseling is

critical. The procedures provide four options for

communicating the reasons for the determination to the charging party: in-person interview,

telephone or conference call, written statement,

and referrals to a private attorney, civil rights

organization, or advocacy organization. Offices

are free to adapt the options or develop alternative ways of communicating the reasons for the

determination.117

Most offices attempt to inform the charging

party by telephone when a no cause determination is made. In the Charlotte District Office, the

charging party is given 5 days to provide addi113 See Wilson interview, p. 4; Dubey interview, p. 4.

114 Mabry-Thomas interview, p. 5.

115 Wallace interview, p. 4.

116 EEOC, "Priority Charge Handling Procedures," p. 11.

117 Ibid., p. 12.

tional information; then the case is dismissed.119

The regional attorney for the Los Angeles District Office stated that issuing a "no cause"

finding would be misleading because it would

suggest that EEOC had investigated. Thus, a

standard letter of determination is issued. However, the charging party is notified of the. reasons for the determination either by telephone or

in writing. The regional attorney added that the

Los Angeles District Director is quite open to

reconsidering cases because they do not do a full

investigation, and thus there is room for error.119

The 1998 joint task force report noted that

some offices do not consistently do determination

counseling to inform charging parties of the reasons for a determination. The task forces recommended that field offices should improve communications with charging parties and respondents

and "work towards the agency's goal of open and

full disclosure of [its] procedures and decisions."120

Further, the task forces recommended that "[f]ield

offices should continue to exhibit independence

and creativity in their Determination Interview

techniques, as long as these techniques are consistent with the mandate of the [Priority Charge

Handling Procedures]."121

There are no formal procedures for charging

parties to request reconsiderationof their cases.122

However, the Priority Charge Handling Procedures state that although EEOC has no statutory

requirements to reconsider determinations, district office directors may consider such requests if

the charging party presents new evidence or a

persuasive argument that the decision was wrong.

The procedures state that offices should reconsider determinations only if one of three conditions has been met: misconduct by EEOC staff,

presentation of substantial new evidence, or an

error in interpretation of the law.123

119 Wit low interview.

119 Pamela Thomason, Regional Attorney, Los Angeles District Office, EEOC, telephone interview, Apr. 14, 1998, p. 4

(hereafter cited as Thomason interview).

129 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 49.

121 Ibid.

122 EEOC, "Priority Charge Handling Procedures," p. 12. See

also Rowe interview.

123 EEOC, "Priority Charge Handling Procedures," pp. 12-13.

200

214
Charge Resolutions and Closures

Settlements and Conciliations

The Priority Charge Handling Procedures

state that settlement is "an important enforcement option."124 A predetermination settlement

is the process of resolving a case before EEOC

determines if discrimination occurred.125 The

procedures outline different principles for determining whether to settle a case, depending on

the category of the charge. Charges in category

A that do not fall within the NEP or the relevant

LEP may be settled at any time by the investigators, with or without consulting the legal staff.

Category A charges that do fall under the NEP

or LEP may be settled at any time in consultation with the regional attorney. Category C

charges will not be settled by EEOC.126

EEOC's Charge PrOcessing Task Force recommended rescinding EEOC's former policy,

"Policy Statement on Remedies and Relief for Individual Cases of Unlawful Discrimination,"

which was issued in 1985. To encourage settlements, the task force called for giving field offices

the discretion to determine appropriate relief for

each charge.127 In April 1995, the Commission

approved this recommendation by adopting a motion permitting EEOC to accept settlements providing "substantial relief' in cases where a violation likely occurred and "appropriate relief' at an

earlier stage in the investigation.125 The Priority

Charge Handling Procedures encourage settlement where "amicable resolution" is possible, but

caution against imposing a settlement merely to

close a case.129

When a cause determination is made, the investigator attempts to conciliate the case. The

regional attorney in the San Francisco District

Office stated that respondents have the opportunity to conciliate a claim at any point in the

investigative process, but once EEOC decides to

124 Ibid., p. 10.

125 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 49. A "mediated settlement" is the result of a case that has been mediated through

the alternative dispute resolution (ADR) program. Ibid.

Cases referred to the ADR program are not investigated.

126 EEOC, "Priority Charge Handling Procedures," p. 11.

127 EEOC, "Charge Processing Task Force Report," p. 7.

128 See EEOC, "Priority Charge Handling Procedures," p. 3.

128 Ibid., p. 10.

litigate, conciliation is not an option. The director of the Women's Employment Rights Clinic at

Golden State University stated that conciliation

is difficult because respondents are not provided

access to EEOC's investigative file.13° EEOC

considers the investigative file to be confidential,

although staff has indicated that respondents

are given the information they need to respond

to a charge of discrimination.131

The March 1998 joint task force report states

that after implementation of the Priority Charge

Handling Procedures the number of predetermination settlements decreased, while the monetary relief acquired from such settlements increased. Comparatively, both the number of conciliations and the dollar amount acquired in conciliations increased.132 The report also noted that

although most field offices have accepted the

focus on settlements, some offices have acknowledged that their focus has been on developing A

cases and reducing the inventory. Thus, the task

forces recommended that "fflield offices should

initiate settlement discussions at all appropriate

stages of the investigative enforcement process

to resolve cases."133

Alternative Dispute Resolution

Alternative dispute resolution (ADR) has been

touted as one way to improve EEOC's charge

processing, particularly by reducing the time it

takes for EEOC to resolve complaints. For instance, the associate director of the State of Illinois Department of Rehabilitation Services wrote:

Alternative Dispute Resolution (ADR) could dramatically change the way that ADA complaints are dealt

with and the time frame involved. By setting up Alternative Dispute Resolution Centers in each state (more

than one in larger states), the time frames could be

lowered and become more acceptable. The present

method of investigating each complaint and then issuing right to sue letters is ineffective and does not work.

If the federal government gave [persons with disabili201

130 "EEOC Officials, Attorneys See Improvements with

Charge, Litigation Processing Changes," Daily Labor Report,

Bureau of National Affairs, Mar. 30, 1998, p. C-1.

131 See Wallace interview, p. 5; Mabry-Thomas interview, p.

5; Dubey interview, pp. 4-5.

132 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 50.

133 Ibid.

:i.
ties] a choice of waiting for two years while EEOC. .

.investigated their complaint or having ADR, [more

persons with disabilities] would choose ADR.'34

The Task Force on Alternative Dispute

Resolution was assigned the responsibility of

assessing whether alternative dispute resolution

should be used at the agency.135 Under an ADR

program, mediation would take place after

charge assessment and before any further investigation is performed.136 Mediation is defined as:

a voluntary process in which those involved in a dispute jointly explore and reconcile their differences. The

mediator has no authority to impose a settlement. His

or her strength lies in the ability to assist the parties in

resolving their own differences. The mediated dispute

is settled when the parties themselves reach what they

consider to be a workable solution.137

The difference between the settlement negotiations and conciliation EEOC has used traditionally and mediation under the ADR is that in mediation, EEOC has made no determination. Mediation allows the involved parties to develop

solutions, without having a third party impose a

solution. The ADR Task Force proposed a mediation model whereby the charging party and respondent meet with a neutral third party to resolve their differences.138 Under the task force

proposal, once the mediator determines the nature and scope of the dispute, the mediator can

work with the involved parties to reach an acceptable resolution. If an agreement is reached,

the mediator draws up the terms of the agreement. However, if a resolution cannot be

reached, the mediator is to notify EEOC, and the

134 Suter letter, attachment, p. 3.

135 EEOC, "Task Force on Alternative Dispute Resolution:

Report to Chairman Gilbert F. Case llas," Mar. 5, 1995, p. 2

(hereafter cited as EEOC, "Task Force on Alternative Dispute Resolution Report"). Chairman Casellas appointed

three task forces to "chart a course" for the EEOC.

136 Ibid., p. 6.

137 Colquitt Meacham, "The Use of Mediation to Resolve

Employment Discrimination Complaints," Boston Bar Journal, vol. 28, (May/June 1984), p. 22 (citing Cormick,

"Intervention and Self-Determination in Environmental

Disputes: A Mediator's Perspective," Resolve (Winter 1982)),

as cited in EEOC, "Task Force on Alternative Dispute Report," p. 7.

138 EEOC, "Task Force on Alternative Dispute Resolution

Report," p. 7.

complaint is processed through the traditional

investigative enforcement channels.139

In 1994, before the release of the task force

report, EEOC completed implementation of an

ADR pilot program.140 The program was designed to determine if charges of employment

discrimination could be resolved more quickly

and effectively using mediation than by relying

solely on investigations.141 In the pilot program,

which was conducted in four district offices, mediation was offered to the parties as an alternative for resolving charges of discrimination. The

program showed that, in appropriate circumstances, mediation was an effective method of

early resolution for some types of charges.142 The

task force concluded that ADR works better

(both parties are receptive) when there is an ongoing relationship between the parties (the

charging party has not been terminated).143

The ADR task force emphasized that for mediation to work, all mediators would need to undergo EEOC training. The task force also recommended that each field office be given a new

supervisory ADR administrator position at the

GS-13 level. The ADR administrator would

oversee the office's mediation program, including

recruiting and training mediators. The task force

emphasized that the credibility of the program

would depend on the qualifications and training

of the mediators.144

In 1995, at a symposium on civil rights,

Rosalie Gaull Silberman, then EEOC Commissioner and Vice Chairman and one of the members of the task force, spoke on the use of alternative dispute resolution in ADA charges:145

139Ibid., pp. 7-8.

140 The pilot program began in 1992 in four district offices.

In the program, more than one-half of the charges mediated

were resolved, and the mediations were completed in an

average of 67 days. In cases where the charging party was

still employed, 48 percent of the respondents chose mediation. Where the charging party was terminated, 39 percent

chose mediation. Ibid., p. 5.

141 EEOC, FY 1994 Annual Report, p. 4.

142 EEOC, FY 1995 Annual Report, p. 12.

143 EEOC, "Task Force on Alternative Dispute Resolution

Report," p. 5.

144 Ibid., pp. 16-18.

145 Symposium for the Next Millennium: Evolution of Employment Discrimination Under the Americans with Disabilities Act: The Interaction of the Americans with Disabili202

216
The reasonable accommodation aspects, make ADA

disputes particularly appropriate for alternative dispute resolution. Proponents envision reasonable accommodation as an interactive process in which employer and employee come together, reaching a conclusion as to what reasonable accommodation would

meet the employee's needs within the construct of the

employer's ability to provide that reasonable accommodation. The success enjoyed thus far with ADA can

be enhanced by more widespread use of ADR by employers and employees at the Commission.146

In April 1995, the Commission adopted the

recommendations of the Task Force on Alternative Dispute Resolution for using mediation-based

alternative dispute resolution to promote earlier

and quicker dispute resolution of charges,147 and

in July 1995, the Commission issued its Policy

Statement on Alternative Dispute Resolution

which confirmed the EEOC's commitment to use

voluntary alternative methods for resolving disputes in all of its activities, including all aspects of

the enforcement process.148

The EEOC policy statement on ADR identifies four core principles. First, the ADR program

must further the mission of the agency. Second,

it must ensure fairness for both charging parties

and respondents. Thus, the Program must be voluntary for the parties involved, a neutral

third party must facilitate the process, confidentiality must be maintained, and any agreement reached must be enforceable.149 Third, the

agency's ADR program is to be flexible so that it

can respond to the differing challenges faced by

the agency and its individual offices. Workload,

geographic, and cultural differences must be

taken into account. Further, the ADR program

must provide for training and evaluation.150

The ADR program was to be instituted in

EEOC offices nationwide during 1997.151 The

Director of the EEOC St. Louis District Office

ties Act and Alternative Dispute Resolution, Johns J.L.

Comm., vol. 10 (Summer 1995), p. 573.

146 Ibid., p. 586.

147 EEOC, Office of Program Operations, FY 1995 Annual

Report, p. 5.

148 EEOC, "National Enforcement Plan," p. 9.

149 EEOC, "EEOC Policy Statement on Alternative Dispute

Resolution," July 17, 1995.

150 Ibid.

151 EEOC, "Strategic Plan," p. 12.

predicted that about 70 percent of the charges

filed with her office would be handled through

alternative dispute resolution.152 She expected

that by using ADR, EEOC would resolve discrimination charges more quickly, despite the

agency's decreasing resources. The St. Louis office planned to use volunteers who have experience mediating employment discrimination

complaints as mediators, since the alternative

dispute resolution program does not require that

the mediators be attorneys. The office also

planned to organize a local advisory panel to

make certain that the ADR program is successful.153 However, the director admitted that

EEOC's past experience has been that charging

parties are more interested than companies in

mediating disputes. She said that companies

would have to be convinced to participate in mediation early in the process as an alternative to

litigation.154 She said that with ADR, EEOC

would be able to investigate more effectively

with the current number of investigators and

that persons' rights will not be shortchanged under the new procedures.155

Given resource limitations, field offices have

been given the freedom to develop their own

ADR programs. According to the Director of

Field Management Programs, some offices use

their own staff as mediators. Some offices are

using pro bono mediators, for whom EEOC has

done training. Still other offices refer to the

FEPAs for mediators. A few offices are using law

students or students who are earning advanced

degrees in ADR. In some offices requests for mediators are referred to a contractor and the employer and/or charging party pay for the mediation. In all cases, charging parties and respondents are informed of the options and are assured that mediation is voluntary.156

152 "EEOC Office Ready to Implement ADR By End of July,

District Director Says," Bureau of National Affairs, Employment Discrimination Report, vol. 9 (July 23, 1997), p.

115.

153 Ibid., p. 116.

154 Ibid., p. 115.

155 Ibid., p. 116.

156 Thornton interview. See also Paula Choate, Director,

Field Coordination Programs, Office of Field Programs,

EEOC, interview in Washington, DC, Apr. 1, 1998 (hereafter

cited as Choate interview).

203

2 1 7
In Los Angeles, for example, charging parties

are informed about the ADR program during the

intake interview. Most charging parties make a

decision about using ADR at the time of intake.

The Los Angeles District Office uses four internal mediators and several associations of professional mediators. The office is expanding to use

more outside mediation associations. Outside

mediators must sign a confidentiality agreement. The outside mediator, the charging party,

and the respondent make arrangements to pay

the fees associated with mediation, if any; EEOC

is not involved in the monetary aspects. Outside

mediators are professional mediators with a

minimum of 2 years experience. Before they are

allowed to mediate EEOC cases, they are given

an orientation. All of the investigators in the Los

Angeles District Office went to a formal certified

mediation training course. In addition, support

staff have gone through at least basic mediation

training and most of them advanced training.157

To ensure confidentiality and neutrality,

EEOC staff who are mediators in the Los Angeles District Office are assigned full time to the

ADR unit. Although they carried over some

cases, they cannot mediate those cases, and after

they have completed those cases, they will no

longer investigate charges. Further, mediators

are not given access to the investigative files of

the cases they are mediating. The mediator only

receives the information that the respondent and

the charging party provide during the mediation,

and then that information is destroyed. The investigative file goes to investigators initially. If a

case is undergoing mediation, the file is pulled

and sequestered, so that an investigation will

not take place. The mediator does not communicate with the investigator; they are physically

segregated in the office.158

The ADR coordinator in Los Angeles said that

a respondent or a charging party who has any

concerns about integrity can use a private mediator. However, most employers and charging

parties use EEOC's program rather than a private program, because the EEOC staff in the Los

Angeles District Office are well trained. To en157 Doug Herrera, Program Analyst, Los Angeles District

Office, EEOC, telephone interview, Apr. 13, 1998 (hereafter

cited as Herrera interview).

159 Ibid.

sure that outside mediators are unbiased, the

ADR coordinator ensures that the mediators he

uses are highly experienced; they have had extensive mediation training and settlement experience. They get additional training on the particular form of mediation EEOC does.159

The New York District Office worked with

Cornell University to train volunteer mediators.

The volunteers are primarily attorneys, professional mediators, and instructors. The 2-day

training course covered what EEOC does, the

laws EEOC enforces, the charge processing procedures, sample cases, and previous cases and

remedies. Approximately 20 volunteer mediators

work with the New York District Office, and an

additional 19 volunteer mediators work with the

Buffalo Area Office.160 To ensure confidentiality,

all parties in the mediation sign confidentiality

agreements. Further, investigative files are color

coded to alert staff that the case is in the ADR

unit.165

Charges that are categorized as A or B charges

are considered for mediation; C charges are not

submitted to mediation. However, some A

charges, such as class cases with all parties identified, and charges raising national issues that

need to be investigated and decided, also are excluded from the mediation process. For example, a

charge of discrimination involving English-only

rules or a novel issue relating to immigrants

would not be eligible for mediation.162

EEOC officials noted that it is often difficult

to get employers to use mediation, which leads to

a low participation rate. The Los Angeles District Office, for example, has a respondents' acceptance rate of 36 percent.163 Employers have a

variety of reasons why they do not want to use

mediation. Some may feel that the charge is

meritless; others may not want to spend the

time; or, others do not understand the process.164

159 Ibid.

ISO Michael Bertty, ADR Coordinator, New York District

Office, EEOC, telephone interview, Apr. 8, 1998 (hereafter

cited as Bertty interview).

161 Bertty interview.

162 Herrera interview. See also Bertty interview; Wallace

interview.

163 That is, of those charging parties who agreed to use ADR,

only 36 percent of respondents agreed. Herrera interview.

164 Ibid.

204

218
It is difficult and resource intensive to educate

employers and unions about ADR. Unions are

just as opposed to mediation as employers are. According to the ADR coordinator in Los Angeles, with additional resources to educate people, there would be more success with ADR. On average, employers must be contacted five times

before they say yes or no. Thus, it takes twice as

much time to set up a mediation as it takes to

complete it.165

According to the ADR coordinator, the ADR

program in the Los Angeles District Office is advanced relative to those in most other district

offices. It is unusual for a district office to have

four investigators assigned full-time to the ADR

program. In addition, the office can call upon 170

private mediators. Because Los Angeles District

Office is understaffed in a number of areas, some

people question why the office has four investigators in the ADR unit. According to the ADR

coordinator, that would be less of a concern if

there was specific funding to support the ADR

program.166

The average time to mediate and close a

charge is about 171 days, less time than it takes

to investigate and close a charge. EEOC officials

stated that approximately 50 percent of the

cases that have gone through mediation have

been successful.167 If mediation is successful, an

agreement between the charging party and the

respondent is signed. The cases that are successful are usually those in which the employee is still employed. These often involve issues of

terms and conditions, failure to promote, or salary. Mediation is less successful when an employee is no longer employed by the company.168 The Director of Field Coordination Programs noted that ADR may be more successful with the

ADA than with other statutes that EEOC enforces because the ADA is a new law, and as employers learn about the ADA and potential violations, they may be willing to resolve issues

through voluntary compliance.169

169 Ibid.

166 Ibid.

167 Thornton interview. See also Choate interview.

168 Wallace interview.

169 Choate interview.

The new Priority Charge Handling Procedures and the use of alternative dispute resolution are reinforced in the agency's National Enforcement Plan.179 The President's fiscal year 1999 budget request to Congress also has embraced the use of alternative dispute resolution

by EEOC. The President has requested $13 million to enhance EEOC's ADR program by allowing the agency to hire contract mediators. The

President's request notes that EEOC has been

forced to use trained investigators as mediators, taking away "scarce investigative resources"171 from cases that require investigation, and

stresses that "EEOC will need to use more expe- rienced and credible mediators in the future."172

An increase in EEOC's budget for ADR has also

received support from Congress. The Speaker of

the House stated that increased funding should

be provided to EEOC in return for reforms in six

areas, including an expanded use of ADR.173

In his April 1998 statement before a subcommittee of the House Committee on Appro- priations, Acting Chairman Igasaki noted that

"[t]his modest effort is receiving praise from employees and employers who have chosen to participate. Participants are impressed with both

the efficiency and the quality of the process."174 He said that given the increase in the number of

charges mediated and the benefits received in

mediated cases, "a substantive increase in resources will yield significant results and improvements in service."175

Experts have noted that ADA disputes are a

significant portion of all issues mediated through ADR. Issues such as reasonable accommodation

are conducive to the ADR process.176 Mediation

179 EEOC, "National Enforcement Plan," p. 9. 171 "Excerpts from Analytical Perspectives on Federal

Budget for Fiscal 1999," released Feb. 2, 1998, as published

in Bureau of National Affairs, Daily Labor Report, Feb. 3, 1998, p. E-5.

172 Ibid.

173 Gingrich testimony.

174 Hearing Before the Subcomm. On Commerce, Justice, State, the Judiciary and Related Agencies of the House

Comm. On Appropriations, 105th Cong. 2 (Apr. 1, 1998)

(statement of Paul M. Igasaki, Acting Chairman, EEOC).

179 Ibid.

176 Gary Phelan, Garrison, Phelan, Levin-Epstein & Penzel, P.C., "Plaintiffs Analysis of ADA Cases," presentation at The National Employment Law Institute, Americans with

205

21.9
allows the parties to present their issues and

identify their resolution objectives in a nonlegal

environment, affording the opportunity to develop a creative, voluntary solution.'" In addition, mediation is less expensive than litigation

or other types of settlements.178 However, because charging parties and respondents often

are not familiar with ADR, it is one of the most

underutilized processes related to the ADA.

Litigation

If conciliation or any other resolution is not

achieved with a charge, remedy can be sought

through litigation. EEOC also can participate in

a civil action in an amicus curiae capacity. As of

September 1997, EEOC reported 98 active ADA

or ADA-related cases,08 142 resolved cases,180 6

appeals, and participation as amicus curiae in 57

cases on issues relative to the ADA, the Rehabilitation Act of 1973, or State civil rights laws

on to disability.181

In the past, EEOC has been criticized for

failing to litigate more cases. For example, a

1993 GAO study reported that of the total

charges received each year, EEOC litigates less

than 1 percent. In GAO's report, EEOC stated

that it had no plans to increase either staff in

the Office of General Counsel or litigation efforts.182 The Charge Processing Task Force recommended that EEOC not be required to litigate

every case where reasonable cause had been

found because of limited resources. It recomDisabilities Act Briefing, Washington, DC, Apr. 30, 1998, p.

2 (hereafter cited as Phelan presentation).

177 Ibid., pp. 5-6.

178 Ibid.; and David K. Fram, Director, ADA and EEOC

Services, National Employment Law Institute, "Update on

Who is an 'Individual with a Disability' Under the ADA,"

presentation at The National Employment Law Institute,

Americans with Disabilities Act Briefing, Washington, DC,

Apr. 30, 1998 (hereafter cited as Fram presentation).

179 EEOC, "Docket of Americans with Disabilities Act (ADA)

Litigation, As of September 30, 1997," p. 7 n.1 (hereafter

cited as EEOC, "ADA Docket").

18o Ibid., p. 30 n.2.

181 Ibid., p. 73 n.3. Appellate cases are currently under

appeal or have been decided on appeal. The docket lists 22

issues, including accessibility, disability benefits, harassment, health insurance coverage, promotion, reasonable

accommodation and record keeping. Ibid., Table of Contents.

182 GAO, EEOC: An Overview, p. 12.

mended discretion to choose those cases that

support the National and Local Enforcement

Plans.183 The task force recommended that the

field offices be given discretion to distinguish

between "reasonable cause" cases and cases that

are "litigation worthy" and decide whether to

litigate a case. The task force further recommended that the Commission only review litigation decisions for certain types of cases. Cases

recommended for such reviews included ADA

cases, cases involving major expenditure of resources, and cases identified as raising novel

legal issues or having the potential for adverse

publicity. All other decisions to file litigation

should be delegated to the General Counsel or

the designee(s).184

In addition, EEOC and the Department of

Justice (DOJ) do not coordinate their ADA litigation activities very well. This is particularly true

with regard to employment issues under title II

(State and local employers). DOJ only litigates a

small portion of its State and local employment

cases. Part of the problem is that there is not

much employment expertise at DOJ.

Under the National Enforcement Plan, the

General Counsel is delegated the authority to

make the decision to commence or intervene in

all litigation except cases involving a major expenditure of resources; cases where the EEOC

has not adopted a position through regulation,

policy guidance, decision, or compliance manuals; cases where the likelihood of controversy

may warrant Commissioners' consideration; and

all recommendations in favor of agency participation as ainicus curiae.185 Under title VII and

the ADA, EEOC must seek the court's permission to intervene in a case by certifying that the

case is of general public importance.188

In the NEP, the Commissioners delegated to

the General Counsel the authority to refer public

sector title VII and ADA cases that fail conciliation to the Department of Justice, as well as to

redelegate this;: authority to #egional attor

183 EEOC, "Charge Processing Task Force Report," p. 21.

184 Ibid., pp. 21-2.

185 EEOC, "National Enforcement Plan," p. 8.

186 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 19. See 42 U.S.C. §

2000e-5(f)(1)(1994).

206

220
TABLE 6.2

EEOC Involvement in Cases by Issue

Issue

Trial

docket

Number of cases

Appellate

docket

Amicus

curiae Accessibility 1 1 0 Arbitration 0 0 1 Association 2 0 0 Confidentiality 16 0 0 Demotion 2 0 1 Disability benefits 6 1 3 Disability-related inquiries 41 1 3 Dual filing 0 0 1 Forced leave 9 0 0 Harassment/hostile work environment 8 0 0 Health insurance coverage 17 0 3 Hiring 61 1 3 Limiting, segregating, and/or classifying 10 0 0 Post and/or keep posted EEOC notices 1 0 0 Promotion 4 0 1 Qualified individual with a disability/disability 0 0 28 Reasonable accommodation 81 3 13 Record keeping 6 0 1 Reinstatement 13 0 0 Retaliation 12 0 0 Termination 113 2 18 Terms and conditions 24 0 0

Total* 427 9 76

* Because many cases involve more than one issue, the total Source: EEOC Charge Data System. number of cases in the table does not equal the total number of

cases in which EEOC has been involved.

neys.187 The NEP also gives the General Counsel

the authority to redelegate to regional attorneys

the authority to start litigation.188 However, the General Counsel did not redelegate litigation

authority for ADA cases. According to an Assistant General Counsel in Litigation Management

Services, regional attorneys recommend ADA

cases for litigation to the General Counsel, who

approves the case or forwards it to the Commissioners for approval.189 If the case is approved

for litigation, the trial attorney files the case and

187 EEOC, "National Enforcement Plan," p. 8. 188 Ibid. 189 Jerome Scanlan, Assistant General Counsel, Litigation Management Services, Office of General Counsel, EEOC, interview, Apr. 6, 1998.

207

handles the case like any other.199 The joint re- port of the task forces on litigation and priority

charge handling procedures recommended that 5

years of experience with the ADA was sufficient

for regional attorneys to be able to make litigation decisions on ADA cases.191

EEOC has litigated cases, or participated as arnicus curiae, on a variety of ADA issues. Trial

cases are handled primarily by trial attorneys in

the field offices, with the exception of cases litigated by the Systemic Litigation Services unit of

the Office of General Counsel (OGC). Appeals cases are handled by attorneys in OGC's Appel

188 Katherine Bisset, Trial Attorney, New York District Office, EEOC, telephone interview, Apr. 16, 1998. See also Lee

interview.

181 EEOC, Priority Charge Handling Task Force/Litigation

Task Force Report, March 1998, p. 18.

f)

kg:Pc,
TABLE 6.3

EEOC Involvement in Cases by Impairment

Number of cases

Appellate Amicus

Impairment Trial docket docket curiae

Arm/shoulder/hand 10 0 1 Asthma 3 0 1 Back impairments 32 0 5

Blood disorders 1 0 1 Cancer 16 0 2

Cardiovascular/heart 8 0 2

Cumulative trauma disorder/

carpal tunnel syndrome

9 0 2

Diabetes 12 0 0

Emotional/psychiatric impairments 11 2 1 Epilepsy/seizures 12 1 6

Hearing impairments 16 0 2

HIV/AIDS 36 0 5

Knee/leg 7 0 0

Mental retardation 1 0 0

Mobility 7 1 1 Neck/head 1 0 0

Obesity 2 0 1

Paralysis 6 0 0

Speech 3 0 0

Spinal 7 0 2

Substance abuse 5 0 1.

Visual impairments 6 0 1 Other 36 1 6

Total* 247 5 40

Because some cases involve more than one impairment, Source: EEOC, Charge Data System.

the total number of cases in the table does not equal the

total number of cases in which EEOC has been involved.

late Services unit who also prepare arnicus curiae briefs. Table 6.2 describes EEOC's involvement in litigation by the issues involved. The

issues EEOC has litigated the most are termination (113 cases litigated), reasonable accommodation (81 cases), and hiring (61 cases). Appeals

cases have involved the issues of accessibility,

disability benefits, hiring, reasonable accommodation, termination, and the definition of disability and whether a person is a qualified individual with a disability.192 EEOC also has writ192 According to EEOC, this issue: "encompasses cases where

the issue is whether the individual is substantially limited

in a major life activity, i.e., is the person an individual with

208

ten a number of arnicus briefs on the definition

of disability/qualified individual with a disability

(28 briefs), termination (18 briefs) and reasonable accommodation (13 briefs).193

EEOC also tracks its litigation by the disability or impairment involved in the case, as

shown in table 6.3. EEOC has litigated 36 cases

a disability, and also where the issue is whether the individual can be considered a qualified individual with a disability because, for example, s/he stated in another forum

for purposes of obtaining disability benefits that s/he was

unable to work because of a disability. The latter issue often

overlaps with the issue of judicial estoppel." EEOC, "ADA

Docket, " p. 119.

193 Data derived from EEOC, "ADA Docket," pp. 105-41.

222
involving HIV/AIDS. EEOC has also been involved in a number of cases involving back impairments (32 cases litigated) and cancer (16

cases litigated). Appellate cases have involved

emotional/psychiatric impairments (2 cases),

epilepsy/seizures (1 case), and mobility impairments (1 case). EEOC's ainicus curiae participation has focused on a number of impairments,

including emotional/psychiatric impairments (6

briefs), HIV/AIDS (5 briefs), back impairments

(5 briefs), and cancer (2 briefs).194

According to an Assistant General Counsel in

Appellate Services, the decision to appeal a case

is made based on the chances of success, in light of how the case has progressed.195 Similarly, in

deciding whether to file an amicus brief, EEOC

looks at cases at the appeals level that might resolve unsettled issues of law. The Assistant

General Counsel stated that amicus participation is an important part of policy because often

there are questions about the existing regulations or guidance. Such documents cannot always address the many applications of the policy, nor can they anticipate all of the issues that

might be related. Further, if EEOC's position has not been accepted in one court and an issue

is up for trial in another court, EEOC might get involved in an attempt to influence the outcome.196

Data from the Charge Data System show that

the district offices vary by the number of ADA

cases they have litigated, as shown in table 6.4.

The EEOC District Offices in Detroit, Memphis,

Philadelphia, and Miami have litigated the most

ADA cases with 23, 16, 15, and 13 cases, respectively. The Baltimore, Chicago, and Indianapolis District Offices have each litigated 12 ADA

cases, while Phoenix has been involved in 11

ADA cases. The remaining district offices have

been involved in 9 or less ADA cases.197

194 Data derived from EEOC, "ADA Docket," pp. 142-63.

195 Vincent Blackwood, Assistant General Counsel and Robert Gregory, Senior Attorney, Appellate Services, Office of

General Counsel, EEOC, interview in Washington, DC, Apr. 2, 1998, pp. 1-2 (hereafter cited as Blackwood interview).

196 Blackwood interview, p. 2.

197 EEOC, Charge Data System, data from October 1, 1989,

to September 30, 1997, prepared March 9-11, 1998, by the

Charge Data System Division, Office of Information Resources Management Services (hereafter cited as EEOC, Charge Data System).

TABLE 6.4

ADA Cases Litigated by EEOC District Offices

District office

Atlanta, GA

Baltimore, MD

Birmingham, AL

Charlotte, NC

Chicago, IL

Cleveland, OH

Dallas, TX

Denver, CO

Detroit, MI

Houston, TX

Indianapolis, IN

Los Angeles, CA

Memphis, TN

Miami, FL

Milwaukee, WI

New Orleans, LA

New York, NY

Philadelphia, PA

Phoenix, AZ

San Francisco, CA

Seattle, WA

St. Louis, MO

No. of ADA cases

3

12

6

5

12

4

7

1 23

9

12

5

16

13

6

2

8

15

11

5

8

6

Source: EEOC, Charge Data System.

Top EEOC officials agree that litigation is one way that EEOC can have an impact. Acting

Chairman Igasaki has stated that the mission of

EEOC is to eliminate discrimination, not just to handle cases. Therefore, litigation and other

tools, such as Commissioner charges, are important activities.198 Similarly, Commissioner Miller stated that as a small, underfunded agency, EEOC must focus its resources on cases that will

have a wide impact.199 According to the General

Counsel, it is important for EEOC to get in- volved in cases where it can advance the public

interest. In cases of egregious violations of the

law, EEOC involvement in a lawsuit shows that

the agency is serious about enforcing the law.299

209

198 Igasaki interview.

199 Miller interview.

EEOC Commission Meeting, Mar. 19, 1998.

223
Charges of Discrimination

In addition to ADA charges, charging parties

may file charges of discrimination with EEOC

under title VII of the Civil Rights Act of 1964,

the Equal Pay Act, and the Age Discrimination

in Employment Act. Charge intake and investigation are essentially the same for the four laws.

EEOC and FEPA staff enter data on charges

into the Charge Data System (CDS) after charge

intake. (FEPAs are required to enter data into

the system within 5 days of accepting a

charge.201) The CDS is maintained by the Charge

Data System Division in EEOC's Office of Information Resources Management Systems. The

database maintained by the CDS Division is updated daily by the field offices as staff process

charges. The field offices and FEPAs electronically transmit updates to the database. Every

quarter the Program, Planning, and Analysis

Division of the Office of Research, Information,

and Planning reconciles the data and produces

reports. Errors found during the data "cleaning"

process are reported to the appropriate field office and corrections are requested.202

Data from the CDS are used for internal and

external reports. Data are also used in workload

planning and monitoring of FEPA contracts.203

The Program, Planning, and Analysis Division

uses the data to prepare reports on charge processing, including quarterly and annual reports

and responses to information requests from outside researchers.204

The Director of the Program, Planning, and

Analysis Division stated that CDS is a more

powerful system than the previous system, the

Complaint Statistical Report System (CSRS).

The CSRS was designed for use by field staff and

did not meet the needs of all EEOC staff.205

However, the Director noted that one improve201 EEOC, FEPA Task Force, "EEOC's State and Local Program and Relationship with Fair Employment Practice

Agencies," Mar. 15, 1995, p. (hereafter cited as EEOC,

"FEPA Task Force Report").

202 James Goldweber, Director, Program, Planning, and

Analysis Division, Office of Research, Information, and

Planning, EEOC, interview in Washington, DC, Apr. 1,

1998, p. 2 (hereafter cited as Goldweber interview).

203 EEOC, "FEPA Task Force Report," p. XII-1.

204 Goldweber interview, p. 1.

2" Ibid., p. 2.

ment needed in the system is a better way of

tracking bases and issues. Because charges can

be filed concurrently under more than one statute, and because several bases and issues can be

identified, it is not possible to distinguish benefits, bases, and issues for one statute from those

of another statute. In addition, because of multiple bases, statutes, and issues, the total number

of charges appears to be greater than the actual

number. Staff and other researchers have experimented with different ways of reporting data

on bases and issues, but the problem remains

unresolved.206

The Director of the Program, Planning, and

Analysis Division noted that the CDS does a good

job of meeting the needs of headquarters staff,

given that EEOC never received additional funding to develop it. The system could be improved in

several ways, such as in improving the reports

generated from the system.207 Constant updating

and programming is needed to keep the reconciled

data up to date with the data in the national database; however, EEOC has done this only twice

in the past several years. Similarly, programmers

are not available to create new reports and expand the information contained in the database.

For example, currently there is no report to track

charges reclassified from one priority category to

another.208 Additional programming is also

needed to add new data categories to the automated report used to reconcile data. EEOC is

planning to update the system into an integrated

management system, but has not begun the design phase of the project.209 Technology limitations may also affect the

usefulness of the CDS. Both EEOC and outside

commentators have noted that EEOC needs to

upgrade its computer systems.210 For example,

the EEOC task force report on FEPAs noted that

FEPAs were using computers that could not

2" Ibid., pp. 2-3.

207 Ibid., p. 2.

208 Ibid., p. 3.

2" Ibid., p. 2.

210 The Future Direction of the Equal Employment Opportunity Commission: Hearing Before the Subcomm. on Employer-Employee Relations of the House Comm. on Education

and the Workforce, 105th Cong. 5 (Mar. 3, 1998) (statement

of David A. Cathcart, Esq., Gibson, Dunn, & Crutcher). See

also Igasaki interview.

210

224
TABLE 6.5 . Characteristics of Charging Parties, by Statute

Total number of charges

Race

ADA

172,553

Title VII

885,823

ADEA

241,508

EPA

11,587

Asian or Pacific Islander 0.9 1.8 1.2 0.6 Black 16.3 46.9 13.0 14.8 American Indian or Alaskan Native 0.6 0.7 0.4 0.4 White 60.7 18.1 23.9 14.9 Other/Not specified 21.6 32.5 61.5 69.3 National origin

East Indian 0.2 0.4 0.4 0.2 Hispanic 4.8 7.1 4.7 3.9 Mexican 1.2 2.1 1.2 0.8 Other/not specified 93.8 90.3 93.7 95.1 Sex

Female 45.5 59.0 40.1 91.2 Male 54.2 40.6 59.4 8.1 Not specified 0.3 0.3 0.4 0.7

Note: Data based on charges received between October 1, dude those filed only under the statute and those filed jointly 1989, and September 30, 1997. Charges for each statute in under other statutes.

Source: EEOC, Charge Data System.

FIGURE 6.2

Closures by Statute

60%

50%

40% -

.8

30% - a. 20% -

10% -

0%

CO 0

0

Source: EEOC Charge Data System.

..

:-. . - .

.._ . a

2 CO ....:-.. v .52 `5 in ,co 0 c Z =

a, .0w c 0 773- c o o

u) 0 (/) o

Closure

D ADA

Title VII

D ADEA

DEPA

211

224:'
handle the large volume of charges. Further,

FEPAs had data transmission problems due to

modem or phone line deficiencies and some staff

were not sufficiently trained on the operation of

the system. These problems lead to inaccurate

and incomplete data.211

In regards to technology, Commissioner

Miller stated that EEOC staff has no e-mail capability, no access at their desks to the Internet

or legal research tools, and no easy access to the

CDS.212 Similarly, at a congressional oversight

hearing, Acting Chairman Igasaki stated,

"Unfortunately, the Commission has never had

the resources to make the necessary investment

to modernize its outdated and overburdened information systems, or build an adequate communications infrastructure."253 He also noted

that a significant portion of the proposed $37

million increase in EEOC's budget will go toward improved technology.214

The U.S. Commission on Civil Rights obtained data for this report from the CDS Division. Thus, the data reported below are from the

national database, not the reconciled database

prepared by the Program, Planning, and Analysis Division. Because these data have not been

through the data "cleaning" process, some

charges with incomplete or erroneously entered

information were not included in the analyses.215

Charges Under All Statutes

Charging party characteristics vary by the

statute under which the claim is filed. Charging

parties may identify up to eight issues on employment policies and practices involved in dis211 EEOC, "FEPA Task Force Report," pp. XII-1XII-8.

212 Miller interview, p. 6.

213 Hearing Before the Subcomm. on Commerce, Justice,

State, the Judiciary, and Related Agencies of the House

Comm. n on Appropriations, 105th Cong. 4 (Apr. 1, 1998)

(stateinent bf Paul M. Igasaki, Acting Chairman, EEOC).

214 Hearing Before the Subcomm. on Employer-Employee

Relations of the House Comm. on Education and the Workforce, 105th Cong. 8 (Apr. 1, 1998) (statement of Paul M.

Igasaki, Acting Chairman, EEOC).

215 All data presented in this report are based on charges

received by EEOC and FEPAs between October 1, 1989, and

September 30, 1997. ADA charges were identified by selecting all charges which indicated ADA as the statute involved and are not date-constrained. Charges for each statute include both those filed only under the statute and those

filed jointly under other statutes.

crimination charges. Issues involve various employment practices, including benefits, disciplinary measures, and wages. The majority of all

EEOC charges involves involuntary termination

of employment (discharge). For example, in fiscal year 1996, almost half (47.5 percent) of all

EEOC charges received identified discharges.

EEOC also receives many charges on the denial

or inequitable application of rules, privileges, or

benefits.216 The basis for. the charge must also be

identified. Charging parties must state the reason, or basis, they believe they were discriminated against. Bases vary by statute and include

religion, gender, national origin, race, and disability.

Table 6.5 shows that the demographic characteristics of charging partied varies by statute.

Persons filing charges unde'r the ADA are more

likely to be white (60.7 percent) than persons

filing charges under the other statutes

(approximately 18 percent, 24 percent, and 15

percent for title VII, ADEA, and EPA, respectively). However, ADA charges are more evenly

spread between males (54.2 percent) and females

(45.5 percent), unlike the other statutes. There

are relatively few differences among charging

parties by national origin and statute.217

Charges differ not only in demographic characteristics of the charging party, issues involved,

and bases for discrimination, but in the ways

they are closed as well. EEOC identifies several

closure types:

settlement

withdrawal with benefits

conciliation

unsuccessful conciliation

no cause finding

administrative closures

remands218

218 EEOC, National Database Automatic Reporting Facility,

"EEOC Receipts, FY-1993," Oct. 26,. 1997. See also, EEOC,

Charge Data System (CDS) Codes, March 1997 (hereafter

cited as EEOC, CDS Codebook), pp. 70-75.

217 EEOC, Charge Data System.

218 Remands are a small proportion of all closures. Thus,

they are included with "Other Closures" in figure 6.2. Other

Closures also includes cases closed by a FEPA determination, hearings discrimination finding, cases settled by the

legal unit, open charges settled by the legal unit, and hearing class accepted. EEOC, CDS Codebook, pp. 16-40.

212
FIGURE 6.3

ADA Charges by Basis

Miscellaneous

20%

Diabetes

3%

Heart/

Cardiovascular

impairment

3%

Regarded as

disabled

6%

Extremities

9%

Neurological

impairment

10%

Source: EEOC, Charge Data System.

Other disability

23%

Back impairment

15%

Emotional/

Psychiatric

impairment

11%

FIGURE 6.4

ADA Charges by Issue

Discharge

Reasonable

accommodation

Terms and conditions

Harassment

Hiring

Other issues

Miscellaneous issues

0%

Source: EEOC, Charge Data System.

5% 10% 15% 20% 25% 30% 35%

213
The four statutes EEOC enforces differ little

by type of closure. As shown in figure 6.2, most

closures result from no cause findings. Over 50

percent of charges under the EPA, ADEA, and

title VII, and just under 50 percent of all ADA

cases, result in no cause findings. Close to 30

percent of all closures are administrative closures, which includes notice of right to sue requested by the charging party, no jurisdiction,

withdrawal without benefits, and charging

party's failure to cooperate.219 Approximately 15 percent of all charges are closed due to the

charging party withdrawing the charge after

receiving benefits or settling with benefits. Successful conciliations and conciliation failures are

each only about 1 percent of all closures.220 It is

not clear under which closure category ADR closures would fall.

A no cause finding is issued when a full investigation fails to support the allegations.221

However, the large number of no cause findings

suggests that either many charging parties file

nonmeritorious claims that waste EEOC staff

time and resources, or EEOC needs to reevaluate its charge processing procedures to ensure

that charges are being properly evaluated and

investigated.

Charges Under the ADA

Bases

As shown in figure 6.3, ADA charges can

identify a number of disabilities as the basis for

the alleged discrimination. For example, between fiscal year 1992 and fiscal year 1997, onefifth of the charges citing the ADA involved

"miscellaneous" disabilities, such as mental retardation, allergies, speech impairments, etc.,

which, when considered individually, are each

less than 3 percent of all ADA charges.222

219 EEOC, National Database Automatic Reporting Facility,

"EEOC Closures, FY-1996," Oct. 26, 1997. See also, EEOC,

CDS Codebook, pp. 42-54.

220 EEOC, Charge Data System.

221 EEOC, CDS Codebook, p. 31.

222 EEOC, Charge Data System. Impairments identified in

the Charge Data System, but represented as Miscellaneous

in figure 6.3 are: hearing impairment, vision impairment,

cancer, alcoholism, record of disability,. asthma, HIV, drug

addiction, gastrointestinal impairment, other blood disorder,

respiratory/pulmonary disorder, speech impairment, allergies, relationship/association with an individual with a dis228

"Other" disabilities, disabilities not specifically

identified in the EEOC charge data system, account for 23 percent of all ADA charges.

Back impairments, emotional/psychiatric disabilities, and neurological impairments account

for 15 percent, 11 percent, and 10 percent of all

ADA charges, respectively. Disabilities involving

the extremities (such as missing digits/limbs,

arthritis, and other inability to move or use certain body parts) account for 9 percent of all ADA

charges.223 ADA charges by all disabilities are

presented in appendix A. Being regarded as disabled is the basis for 6 percent of all ADA

charges. Having a record of a disability and

having a relationship or association with an individual with a disability, respectively, account

for almost 2 percent and less than 1 percent of

all ADA charges. Other higher profile224 impairments, such as drug addiction, alcoholism, and

HIV/AIDS, each accounts for less than 2 percent

of all ADA charges.225 The category "other" has changed over the

years. According to the Director of the Program,

Planning, and Analysis Division, when EEOC

was given jurisdiction over the ADA, a committee did outreach and worked with outside groups

to develop the bases to be used in writing

charges. When the ADA first went into effect,

the Program, Planning, and Analysis Division

monitored the reporting trends closely. The

categories changed as EEOC learned about what

types of complaints were being filed. For instance, at first many ADA charges identified

"other disability" as the basis. Thus, the list of

disabilities was expanded to include more specific disabilities. Similarly, repetitive motion injury was added later after staff noted a rise in

charges based on repetitive motion disorders.226

Issues

Charging parties may identify up to eight

issues in their charge of discrimination. As

ability, kidney impairment, mental retardation, chemical

sensitivities, disfigurement, and dwarfism. See app. A.

223 EEOC, Charge Data System.

224 See chaps. 4 and 5 for discussion of disagreements within

the courts concerning the applicability of the ADA to certain

disabilities and impairments.

225 EEOC, Charge Data System. See app. A.

225 Goldweber interview, p. 2.

214
FIGURE 6.5

Processing Time: ADA Charges

35%

30% -

25% -

20% -

15% .

10%

5%

0% I 1 I 1 I III I M I I Less 6-12 12-18 18-24 24-30 30-36 More

than 6 months months months months months than 3

months years

Source: EEOC, Charge Data System.

FIGURE 6.6

Average Number of Days to Close ADA Charges

800 -

700

600 .

500

400 .1

300 .

200

100 .

a) C

a)

Source: EEOC, Charge Data System.

O

Closure

215

229
TABLE 6.6

Months to Close Charge, by Processing Time

Months to

close charge

Percentage of charges

Category A charges Category B charges Category C charges

All charges ADA charges All charges ADA charges All charges ADA

charges

0-6 22.8 22.7 31.3 30.1 44.2 45.4

6-12 26.2 26.4 27.7 27.8 20.8 21.1

12-18 16.7 16.4 16.8 17.0 16.1 15.6

18-24 11.9 12.5 11.5 12.4 10.1 9.7

24-30 8.7 9.4 6.9 6.8 5.6 5.4

30-36 7.9 6.4 2.4 3.6 1.2 1.9

36 or more 5.8 6.1 3.5 2.3 2.0 0.8

Source: EEOC, Charge Data System.

shown in figure 6.4, over one-third of ADA

charges involve the issue of discharge, or involuntary termination of employment. Another 14

percent involve the failure of an employer to

provide reasonable accommodation. Terms and

conditions are identified in almost 12 percent of

ADA charges. This issue relates to the "denial or

inequitable application of rules relating to general working conditions or the job environment

and employment privileges which cannot be reduced to monetary value."227 Harassment, hiring, and other issues not defined by EEOC account for approximately 7 percent, 6 percent,

and 3 percent, respectively, of ADA charges.228

Several issues, separately, each accounts for

less than 3 percent of all ADA issues. However,

jointly they are almost 25 percent of the issues

identified in ADA charges. These include promotion (2.34 percent of ADA issues), benefits (1.23

percent), and prohibited medication inquiries or

exams (0.28 percent). All issues appear in appendix B.229

Processing Time

By the close of fiscal year 1997, EEOC had

closed 142,743 charges, approximately 83 percent of the total number of ADA charges it has

227 EEOC, CDS Codebook, p. 76.

228 EEOC, Charge Data System.

228 Ibid.

230

received.230 Another 19,890 charges (11.5 percent) remained open at the end of the fiscal

year.231 Almost two-thirds of all ADA charges

that have been closed were processed within 12

months, as shown in figure '6.5. Slightly more

than 9 percent of all ADA charges took more

than 2 years to be closed, with 1.8 percent requiring 3 years or more to be closed.

However, as shown in figure 6.6, the number

of days to close an ADA charge depends on the

type of closure.232 On average, it takes 281 days

to close a charge in cases where the charging

party settles with benefits. In contrast, it takes

an average of 608 days to conciliate a case, for

those cases with successful conciliations. Unsuccessful conciliations have required slightly more

time-635 days. As seen in table 6.6 and figure 6.7, among

cases that have been prioritized as A, B, or C

under the Priority Charge Handling Procedures,

processing time for ADA charges is similar to

that of all charges filed with EEOC.

230 83,664 of these charges were handled by EEOC, the rest

were handled by FEPAs. See EEOC Comments, July 17,

1998, p. 3.

231 An additional 9,920 charges included in the database

provided to the Commission for this report had missing or

incorrect data. Thus, the length of time charges were open

or the length of time to close such charges could not be determined.

232 This is shown in more detail in app. C.

216
FIGURE 6.7

Processing Time by Priority

50%

40%

30%

20%

10%

0%

0-6

months

59%

6.7a. All EEOC Charges

6-12

months

45%

40%

35%

30% _

25%

20%

15%

10%

5%

0%

0-6 6-12

months months

Source: EEOC, Charge Data System.

12-18

months

-_I

18-24 24-30 30-36 36

months months months months

or more

Completion Time

6.7b. ADA Charges

I I I 12-18 18-24 24-30 30-36 36

months months months months months

or more

Completion Time

A

B

A

B

217

p 1
FIGURE 6.8

Charge Processing Time Before and After Priority Charge Handling Procedures

35%

30%

25%

20% --

15%

10%

5%

0% I I I I I I 0-6 6-12 12-18 18-24 24-30 30-36 36

months months months months months months months

or more

Source: EEOC, Charge Data System.

Before

- After

FIGURE 6.9

Status of Open Charges

36 months or more

30-36 months

24-30 months

18-24 months

12-18 months

6-12 months

0-6 months

I 0% 5% 10% 15% 20% 25% 30% 35% 40% 45%

Source: EEOC, Charge Data System.

DADA charges

NAB charges

218

232
Processing time has changed little since the

introduction of the Priority Charge Handling

Procedures. As shown in figure 6.8, before

charges were prioritized, 33.8 percent of all

charges were closed within 6 months, and another 30.5 percent were closed between 6 and 12 months of receipt of the charge. Similarly,

among the charges that have been categorized

since 1995, 33.9 percent have been closed after 6

months, while 25.6 percent have been closed between 6 and 12 months of receipt. Overall, the

percentage of cases that takes more than 2 years

to close has risen slightly, from 9.4 percent before the implementation of the Priority Charge

Handling Procedures to 12.5 percent under the

new procedures.

In figure 6.9, ADA charges are compared to

all charges filed under title VII, ADEA, and

EPA. Open ADA charges differ only slightly from

all EEOC charges, and differences may reflect

the relative ages of the various civil rights laws.

For example, 17 percent of open ADA charges

have been open for 2 years or more, compared to

20 percent of all open charges received by EEOC.

Benefits

Of all ADA charges, approximately 16 percent receive benefits of some form. Of those receiving benefits, almost half (48.1 percent) receive direct monetary benefits, such as restored

pay, fringe benefits, compensatory damages, or

punitive damages.233 Another 14.4 percent of

ADA charges receive indirect monetary benefits

such as promotion, reinstatement/recall, or new

hire. The remaining 37.5 percent of charging

parties who receive benefits in relation to their

ADA charges receive nonmonetary benefits.234

These benefits include policy change, training/apprenticeship, seniority, job referral, union

membership, EEO notices, and reasonable accommodation.235

233 Those receiving monetary benefits account for 7.5 percent of all ADA charges. EEOC, Charge Data System.

234 5.8 percent of all ADA charges receive nonmonetary

benefits. EEOC, Charge Data System.

235 EEOC, CDS Codebook, p. 55.

219

233
Assessment of EEOC's Outreach, I Education, and Technical Assistance

The U.S. Equal Employment Opportunity

"Commission does outreach and provides technical assistance to the public on rights and obligations under the laws that the agency enforces

through presentations to professional organizations, business owners, advocacy groups, and

Federal and private employers and employees.

Presentations have included workshops, conferences, and announcements on radio and television, as well as technical assistance and training

documents disseminated to the public.

EEOC staff provided outreach and education

on the ADA before and during its first full year

of ADA enforcement.1 The Office of Legal Counsel established an ADA speakers bureau to provide speakers from headquarters and field offices for public presentations on the ADA.2 During 1991-92, the Commission established a tollfree ADA "helpline" and developed several informational booklets for employers and persons

with disabilities, explaining ADA requirements

in "simple, practical language and responding to

frequently asked questions."3

1 U.S. Equal Employment Opportunity Commission (EEOC),

Fiscal Years 1991 and 1992: Combined Annual Report, p. 13

(hereafter cited as EEOC, FYs 1991 and 1992 Annual Report); EEOC, Annual Report 1993, p. 13 (hereafter cited as

EEOC, FY 1993 Annual Report).

2 EEOC, FYs 1991 and 1992 Annual Report, p. 13. From

October 1991 through October 1992, the Office of Legal

Counsel staff made 263 of 300 public presentations on the

ADA to a wide range of organizations, including employer

groups, disability advocacy organizations, and legal associations.

3 Ibid., pp. 13-14.

Because of its limited resources for outreach

and related activities, EEOC requested legislation that would create funds for outreach and

technical assistance programs.4 The EEOC Education, Technical Assistance, and Training Revolving Fund Act of 19925 created a revolving

fund to pay for the cost of providing education,

technical assistance, and training relating to the

laws administered by the Commission.6 The revolving fund is supported by fees charged to recipients for technical assistance and training

services.? Although many medium-size employers participate in the technical assistance seminars, a significant proportion of the recipients of

technical assistance under the revolving fund

are major or large employers.8

EEOC is required, as part of its enforcement

responsibilities, to provide technical assistance to

employers and interested individuals and organizations on their rights and obligations under the

4 See Budget of the United States Government, Fiscal Year

1992, Equal Employment Opportunity Commission

(hereafter cited as EEOC Fiscal Year. 1992 Budget), p. Part

Four-1095.

5 Pub. L. No. 102-411,106 Stat. 2102 (codified at 42 U.S.C. §

2000e-4(k) (1994)).

6 Id. See also Budget of the United States Government, Fiscal Year 1995, Equal Employment Opportunity Commission

(hereafter cited as EEOC Fiscal Year 1995 Budget).

7 Pub. L. No. 102-411,106 Stat. 2102 (codified at 42 U.S.C. §

2000e-4(k) (1994)).

8 Budget of the United States Government, Fiscal Year

1992, Equal Employment Opportunity Commission

(hereafter cited as EEOC Fiscal Year 1992 Budget).

220

234
ADA.9 The Attorney General is required to develop a plan, in consultation with the EEOC and

other agencies with ADA enforcement responsibilities, to assist covered entities in understanding

and carrying out their responsibilities under the

act. EEOC and the Attorney General implement

the plan for title Po The ADA also required

EEOC to develop and publish a technical assistance manual to help employers comply with title

I of the ADA within 6 months after publication of

the final implementing regulations."

EEOC prepared an ADA technical assistance

manual and three question and answer brochures, all of which were widely distributed.12

The technical assistance manual has been widely

praised by the disability community. For instance, one disability professional wrote, "The

technical assistance manuals are very helpful.. .

."13 Another wrote, "The TA manuals from both

entities [EEOC and DOJ] are excellent. The

EEOC's is the best because it uses many examples to illustrate almost every point it makes.

They are written in plain, simple, easy to understand language, which is quite an accomplishment, considering the complexity of some of the

topics involved."" In addition, the Office of Legal

Counsel staff made 100 public presentations to a

9 See 42 U.S.C. § 12206 (c)(2) (1994). See also EEOC, "Policy

Guidance: Provisions of the Americans with Disabilities Act

of 1990: Summary of the Act and Responsibilities of the

EEOC in Enforcing the Act's Prohibitions Against Discrimination in Employment on the Basis of Disability," (EEOC

Notice 915-055), Aug. 14, 1990, p. 11 (hereafter cited as

EEOC, "Policy Guidance: Provisions of the ADA"); EEOC,

FYs 1991 and 1992 Annual Reports, p. 13.

10 EEOC, "Policy Guidance: Provisions of the ADA," p. 11.

11 Ibid.

12 See EEOC FY 1993 Annual Report, p. 13; See also Peggy

R. Mastroianni, Associate Legal Counsel, EEOC, letter to

Frederick D. Is ler, Assistant Staff Director, Office of Civil

Rights Evaluation (OCRE), U.S. Commission on Civil Rights

(USCCR), July 9, 1998, Comments of the U.S. Equal Employment Opportunity Commission, p. 19 (hereafter cited as

EEOC Comments).

13 Joyce R. Ringer, Executive Director, Georgia Advocacy

Office, letter to Frederick D. Is ler, Assistant Staff Director,

OCRE, USCCR, Apr. 1, 1998, attachment, p. 4 (hereafter

cited as Ringer letter).

14 Michelle Martin, Staff Services Analyst, Department of

Rehabilitation, State of California Department of Rehabilitation, letter to Nadja Zalokar, Director, Americans with

Disabilities Act Project, USCCR, May 11, 1998, attachment,

pp. 14-15 (hereafter cited as Martin letter).

variety of organizations representing employers,

managenient and human resources professionals, pUblic safety occupations, legal professionals, and disability and medical groups.18 The Office of Legal Counsel also delivered training on

ADA policy guidance and other ADA issues, and

its ADA staff provided legal and policy interpretations to approximately 200 callers weekly

throughout the fiscal year.18 Informal assistance

and guidance on the ADA were also provided in

response to several hundred written inquiries

about the act.

During fiscal year 1993, the Office of Legal

Counsel provided technical assistance for the

public on requirements of EEOC-enforced laws,

with the major emphasis on ADA requirements.

The Office of Legal Counsel also provided assistance to other Federal agencies on the ADA

through seminars sponsored under the revolving

fund.17 In 1995, the revolving fund helped finance 49 technical assistance program seminars

(TAPS), which were attended by more than

5,700 managers, human resource specialists,

legal and other officials, and employers nationwide. The seminars provided information on

rights and obligations under laws enforced by

the Commission.18

Each field office now delivers at least two

TAPS programs every year. In 1997, EEOC offices

held 66 TAPS programs, which were attended by

8,629 participants.19 Field offices are also aware of

the need to reach small businesses and have developed different ways to do so, including offering

half-day TAPS programs.20 Further, there is a

recognized need to develop outreach programs

targeted toward underserved populations. In fact,

the joint report of the priority charge handling

and litigation task forces recommended that outreach efforts should focus on reaching under15 EEOC, FY 1993 Annual Report, p. 13.

16 Ibid.

17 Ibid.

18 EEOC, Office of Program Operations, FY 1995 Annual

Report, p. 15 (hereafter cited as EEOC, Office of Program

Operations, FY 1995 Annual Report).

19 EEOC, March 1998 Task Force Report, p. 38.

20 Elizabeth. Thornton, Director, Office of Field Programs,

EEOC, interview in Washington, DC, Apr. 1, 1998 (hereafter

cited as Thornton interview).

221

23%0
served populations and "filling gaps in LEP implementation and case development."21

Besides revolving fund programs for which a

fee is charged, each district office has undertaken

various outreach and stakeholder activities that

are free to the participants. These activities involve community groups, various organizations

and the public as targeted by each district office's

Local Enforcement Plan. As outreach funds have

become available, these programs were significantly expanded in 1997 and 1998.22

As of October 1997, EEOC had prepared eight

technical assistance documents to be used by employers, persons with disabilities, and the general

public. The documents cover employment questions, rights of individuals with disabilities, employer responsibilities, disability and service retirement plans, and general information and

technical assistance. Most of the technical assistance documents are fact sheets presented in

question and answer format. EEOC and the Department of Justice's (DOJ's) Civil Rights Division

jointly prepared the technical assistance document, "Americans with Disabilities Act: Questions

and Answers."23 EEOC has stated that technical

assistance and outreach and education are a critical part of the agency's mission. According to

Commissioner Paul Steven Miller, the purpose of

outreach and education is to eliminate discrimination by helping employees know their rights and

providing information to employers.24 EEOC continues to do outreach, technical assistance, and

training to inform and assist the public in understanding and applying the ADA. EEOC has

broadened its contact with print and electronic

media, disability rights organizations, small business trade associations, and the Small Business

Administration field offices.25

21 EEOC, Priority Charge Handling Task Force, Litigation

Task Force Report" March 1998, p. 40.

22 Peggy R. Mastrioanni, Associate Legal Counsel, EEOC,

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, July 17, 1998, Comments of the U.S. Equal Employment Opportunity Commission, p. 4 (hereafter cited as

EEOC Comments, July 17, 1998).

23 EEOC and U.S. Department of Justice, Civil Rights Division, "Americans with Disabilities Act: Questions and Answers," (undated brochure).

24 Miller interview, p. 5.

25 EEOC, Fiscal Year 1994 Annual Report, p. 29 (hereafter

cited as EEOC, FY 1994 Annual Report).

h.

When the Americans with Disabilities Act

was signed into law on July 26, 1990,26 certain

responsible Federal agencies were mandated to

provide technical assistance as an integral part

of the pre- and post-implementation phases. Section 506 required that the DOJ, in consultation

with EEOC, the Department of Transportation,

the Architectural and Transportation Barriers

Compliance Board, and the Federal Communications Commission, develop a technical assistance

plan within 180 days of enactment to assist entities covered by the ADA and other Federal agencies in understanding their responsibilities under the new law.27 For the first time, a Federal

civil rights statute required that the Federal

agencies charged with implementing the law

provide technical assistance to entities with responsibilities and individuals with rights so that

each could better understand the law and ensure

more effective enforcement and compliance.

As required by the ADA, DOJ published a

technical assistance plan in the Federal Register

on December 5, 1990.28 This was done in consultation with the responsible agencies, including

EEOC.29 The plan covered the period through

fiscal year 1994. Because of the heavy workload

that the agencies were experiencing with the

implementation process, a final plan never was

published.38

The ADA recognized the importance of technical assistance and outreach to covered entities

and individuals, but the law also provided that

no covered entity could use failure to receive

technical assistance as a reason for noncompliance with the statute. The ADA specifically

stated in section 506:

An employer, public accommodation, or other entity

covered under this chapter shall not be excused from

compliance with the requirements of this chapter be26 Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C.

§§ 12101-12213 (1994)).

27 See 42 U.S.C. § 12206(a) (1994).

29 Technical Assistance' Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. 50,237 (1990).

29 See 42 U.S.C. § 12206 (a) (2) (1994).

39 Ruth Lusher, ADA Technical Assistance Program Manager, Disability Rights Section, Civil Rights Division, U.S.

Department of Justice, interview in Washington, DC, Feb.

23, 1998 (hereafter cited as Lusher February 1998 interview).

222

236
cause of any failure to receive technical assistance

under this section, including any failure in the development or dissemination of any technical assistance

manual authorized by this section.31

ADA Technical Assistance Plan

EEOC, as one of the four implementing agencies, was given primary responsibility for carrying out major portions of the Federal Government's technical assistance efforts for implementation of the ADA.32 The statute authorized

these four agencies, within their respective

spheres of responsibility under the ADA, to provide technical manuals to institutions and individuals that have duties or rights under the

ADA.33 The agencies were further required to

publish regulations within 1 year of the signing

of the ADA for their respective areas.34

EEOC worked closely with DOJ in formulating

the governmentwide technical assistance plan.

EEOC's portion of the plan included a wide range

of activities to provide information and to promote

voluntary compliance with the law.35 Technical

assistance was defined in the plan as "the provision of expert advice, and both general and specific information and assistance, to the public and

to entities covered by the ADA."38 The purpose of

the plan's technical assistance program was "to

inform the public (including individuals with

rights protected under the Act) and covered entities about their rights and duties; and to provide

information about cost-effective methods and procedures to achieve compliance."37

Based on the Federal Government's experience with implementing section 504 of the Rehabilitation Act of 1973, the four implementing

agencies believed that once the covered entities

were given information on how to comply with

31 42 U.S.C. § 12206(e) (1994).

32 See Technical Assistance Plan for the Americans with

Disabilities Act of 1990, 55 Fed. Reg. at 50,239.

u 42 U.S.C. § 12206(c)(3) (1994).

34 See id. §§ 12116, 12134(a), 12143(b), 12149(a), 12164,

12204(a) (1994); 47 U.S.C. § 225(d)(1) (1994).

35 EEOC, "EEOC's Implementation of Title I of the Americans with Disabilities Act of 1990," January 1993, p. 9

(hereafter cited as EEOC, "EEOC's Implementation of Title

I of the ADA").

36 Technical Assistance Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,239.

37 Ibid.

the ADA, they would comply voluntarily. That

experience had demonstrated that a "publicized,

readily available, comprehensive technical assistance program"38 that was responsive to the

problems and needs of the covered entities offered many advantages. These included such

benefits as a reduction of misunderstandings

about rights and responsibilities, facilitation of

voluntary compliance, promotion of the exchange

of information, and the development of more effective, and less costly, methods to address compliance issues. The technical assistance program

also sought to avoid an unnecessary reliance on

enforcement and litigation to achieve compliance

by the covered entities.39

The proposed technical assistance program

included virtually all forms of communication.

Agencies were expected to use publications, exhibits, videotapes and audiotapes, public service

announcements, and electronic bulletin boards.

As an essential component of the technical assistance program, materials were to be developed

and disseminated in alternative formats which

were accessible to individuals with disabilities.

In addition, the agencies were expected to make

presentations at conferences, workshops and

training programs, and provide advice to individuals on specific topics through such mechanisms as a telephone hotline, information clearinghouse, and onsite experts:10

The four agencies also were expected to create a clearinghouse function "to benefit from the

experiences of covered entities and individuals

with disabilities in complying with the ADA."41

The agencies were to exchange information "to

enhance the development, assessment, and replication of new and improved compliance methods and techniques."42 The technical assistance

plan provided for the extensive use of the skills,

knowledge, and experience of various groups

concerned with disability rights. Such groups

included trade associations, advocacy groups,

and other similar organizations that communicate and have credibility with covered entities

38 Ibid.

35 Ibid.

4° Ibid.

41 Ibid.

42 Ibid.

223

237

f. _
and individuals with disabilities. The input of

these groups was intended to maximize the resources of Federal agencies devoted to technical

assistance. The goal was to build the capacity of

these organizations to provide technical assistance to their constituencies after the period

covered by the technical assistance plan and for

as long as was necessary in the future.43

Outreach in the Development of

Implementing Regulations

EEOC was responsible for issuing regulations

for title I of the ADA.44 The development of

"clear and concise regulations, policies and procedures" was part of EEOC's enforcement strategy for implementing title I of the ADA. EEOC

did extensive outreach in soliciting feedback in

the development of the regulations beginning

with the publication of the advance notice of

public rulemaking in the Federal Register on

August 1, 1990.45 In response, comments were

received from 138 disability rights organizations,

employer groups, and individuals.46 Also,

EEOC's field offices throughout the country held

62 ADA input meetings that were attended by

more than 2,400 representatives from disability

rights organizations and employer groups.47

Before issuing a notice of proposed rulemaking, EEOC held briefings for congressional staff,

representatives of disability rights groups, employer organizations, and the media. The notice

was published, with an interpretive appendix, in

February 1991. Comments were received from

697 interested groups and individuals. EEOC

revised and clarified the final regulations and

interpretive guidance based on the feedback received. Since publication, the agency has distributed tens of thousands of copies of the final

regulations, which also have been made available in such alternative formats as Braille and

large print, and on audio cassette and computer

diskette.48

43 Ibid.

44 42 U.S.C. § 12116 (1994).

45 Advance Notice of Proposed Rulemaking, 55 Fed. Reg.

31,192 (1990).

46 Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. 35,726 (1991).

47 EEOC, "Implementation of Title I," p. 2.

48 Ibid., p. 3.

Technical Assistance Manual

EEOC, along with the other implementing

agencies, also was required to publish a technical assistance manual no later than 6 months

after the publication of the final regulations.49

EEOC published a comprehensive technical assistance manual in January 1992, which included an explanation of the legal requirements

of the ADA and the regulations as they applied

to specific employment practices.59 The manual

also included examples of reasonable accommodation and other key aspects of compliance,

along with an extensive directory of technical

assistance resources.51 Single copies were made

available without cost. Additional copies were

available from the Government Printing Office

for $25. As of January 1993, EEOC had distributed more than 180,000 copies of the manual.52

In May 1994, at a briefing on the Americans

with Disabilities Act at the U.S. Commission on

Civil Rights, Peggy Mastroianni, then Director of

the ADA Policy Division at EEOC, said that the

ADA technical assistance manual was the most

important part of the agency's educational effort

on the ADA. She stated that the manual was not

written by a lawyer, and information was presented very clearly. The response the manual

received was favorable.53

Interagency Coordination

The 1990 ADA technical assistance plan

stated that the Federal agencies involved in the

implementation efforts recognized the importance of coordinating their efforts to avoid overlap or duplication of efforts. Further, the agencies recognized the need to share information

and evaluate the effectiveness of their respective

technical assistance activities.54 EEOC worked

closely with DOJ on several outreach and educa48 42 U.S.C. § 12206(c)(3) (1994).

5° EEOC, A Technical Assistance Manual

Provisions (Title I) of the Americans with

(EEOCMA-1A), January 1992 (hereafter

ADA Technical Assistance Manual).

51 EEOC, "Implementation of Title I," p. 9.

52 Ibid., pp. 9-10.

53 USCCR, Briefing on the Americans with Disabilities Act,

May 6, 1994, p. 7.

54 Technical Assistance Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,239.

on Employment

Disabilities Act,

cited as EEOC,

224

238
tion efforts. With, funding provided by the National Institute on Disability Rehabilitation Research (NIDRR), the two Federal entities published two .editions of the "The Americans with

Disabilities Act Questions and Answers." This

booklet was designed to answer the most commonly asked questions about the ADA.65 It was

made available in Spanish and alternative formats (Braille, audiotape, large print, and computer diskette).

In conjunction with DOJ, EEOC held a

training program in fiscal year 1992 to develop a

national network of individuals who would provide training and facilitate other ADA implementation in their local communities promoting

voluntary compliance.56 In Phase I, a 1-week

training course, on disability rights under the

ADA was conducted in Houston, Denver, San

Francisco, St. Louis, and Washington, D.C., for

400 disabled persons. After the training was

completed, each of the trainees was required to

provide ADA training and technical assistance to

persons with disabilities, employers, and other

covered groups.57 In phase II, a select group of

100 of the 400 initial trainees was chosen to receive advanced training in title I and alternative

dispute resolution. When the advanced training

was completed at the end of 1992, the trainees

were available to assist EEOC offices and employers in providing technical assistance and in

resolving ADA disputes.58

In conjunction with its ADA implementation

responsibilities, EEOC coordinated regulatory

development with other Federal agencies. The

agency developed and issued coordinated regulations with the. Department' of Labor in January

1992, "to avoid duplication of effort and inconsistent standards in processing complaints falling

within the overlapping jurisdiction of title I of

the ADA and Section 503 of the Rehabilitation

Act of 1973."59 DOJ and EEOC developed a

similar joint regulation addressing complaints

falling within the jurisdiction of the ADA and

section 504 of the Rehabilitation Act. The joint

55 EEOC, "Implementation of Title I," p. 9.

56 EEOC, FYs 1991 and 1992 Annual Report, p. 13.

57 EEOC, "Implementation of Title I," p. 11.

58 Ibid.

EEOC, FYs 1991 and 1992 Annual Report, p. 12.

,O

regulation was published in the Federal Register

in April 1992 for public comment.60 The final

regulation was published in August 1994,61

"following extensive coordination with DOJ and

25 Federal agencies with Section 504 enforcement responsibilities."62 EEOC also reviewed

existing Federal agency regulations to identify

provisions that might conflict with the ADA. For

example, several agencies had issued regulations

that established physical qualification standards

for certain categories of employment that appeared to conflict with ADA requirements.63

One national disability organization official

has expressed concern that there was inadequate coordination between EEOC and DOJ on

the ADA technical assistance program.64 However, both agencies have worked together on two

interagency ADA technical assistance committees. EEOC established an ADA title I technical

assistance coordinating group, chaired by EEOC.

The other member agencies were: DOJ, the

President's Committee on Employment of People

with Disabilities, National Institute on Disability and Rehabilitation Research, and the Rehabilitation Services Administration.65 EEOC also

participates in the interagency ADA Technical

Assistance Coordinating Committee (originally

the ADA Technical Assistance Working Group).66

The 22-member committee, chaired by DOJ,

meets every 3 to 4 months to exchange information on technical assistance and to coordinate

outreach efforts and deal with technical assistance issues that arise.67

69 Coordination Procedures for Complaints or Charges of

Employment Discrimination Based on Disability Subject to

the Americans With Disabilities Act and Section 504 of the

Rehabilitation Act of 1973, 57 Fed. Reg. 14,630 (1992)

(proposed Apr. 21, 1992).

61 See 29 C.F.R. pt. 1640 (1997).

62 EEOC, FY 1999 Annual Report p. 25.

63 EEOC, "Implementation of Title I," p. 4.

64 Andrew Imparato, General Counsel and Director of Policy,

National Council on Disability, telephone interview, Nov.

25, 1997.

65 EEOC, FYs 1991 and 1992 Annual Report, p. 24.

66 Technical Assistance Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,239.

67 Roster of ADA Technical Assistance Coordinating Committee, dated Feb. 3, 1998.

225
Technical Assistance Plan

The technical assistance plan proposed for

EEOC to reach out to a wide range of organizations and associations representing employers,

other covered entities, and individuals with disabilities at the national and local levels. The

purpose was to explore ways in which their established information channels could be used to

provide general and specific information on the

employment provisions of the ADA. The organizations were to be asked to identify specific

technical assistance needs of their respective

constituencies so that EEOC could direct its efforts better to meet those needs.68

Before passage of the ADA, in March 1990,

EEOC initiated a survey of the fair employment

practice agencies to learn what their experiences

had been in enforcing State employment discrimination laws similar to the ADA and to assist in developing information on the estimated

impact on EEOC's enforcement program. Later

in 1990, EEOC staff held informal consultations

with national organizations representing employers and individuals with disabilities to solicit

suggestions for the technical assistance program

and the technical assistance manual.69 The

agency staff also held informal meetings in all 23

district offices and in Washington, D.C., seeking

feedback on ADA title I regulations from the

employer and disability communities. More than

2,400 representatives from disability rights organizations and employer groups participated in

these meetings." In early 1991, the staff held

briefings for congressional staff and representatives from disability rights organizations, employer groups, and the media to announce the

publication of the agency's title I notice of proposed rulemaking.71 In May 1991, EEOC sponsored focus groups to learn what employers

wanted to know about the ADA and in what

format they would like to receive the information.72

The technical assistance plan also stated that

employers and other covered organizations

68 Technical Assistance Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,240.

ss EEOC, FYs 1991 and 1992 Annual Report, p. 23.

7° Ibid.

71 Ibid., p. 24.

72 Ibid.

would be actively encouraged to seek information and assistance to maximize their voluntary

compliance. Assurances were given that EEOC's

program would be separate and distinct from its

enforcement responsibilities.73 The plan stated

that employers and others who participate in

training conducted by the agency or who request

information or assistance in regard to a particular aspect of compliance would not be subject to

investigation or other enforcement activity on

the basis of such participation or inquiries.74

ADA Technical Assistance Program

Phase I

The proposed 1990 technical assistance plan

was linked to the implementation of the ADA

and issuance of the title I regulations by EEOC.

The first phase of the outreach and assistance

program, covering the period ending July 26,

1992 (when the act first took effect), was intended to inform covered entities and individuals with disabilities about their obligations and

rights. During this phase, general information

would be provided on rights and responsibilities,

in employment under the ADA and specific information on the application of ADA nondiscrimination requirements to a range of employment practices. In addition, guidance would be

provided to employers on complying with the

law's reasonable accommodation provisions."

To ensure that the proposed activities would

be carried out within the tight mandatory target

dates established in the statute, EEOC created a

new Americans with Disabilities Act Services

Unit (ADAS) in the Office of Legal Counsel.

More than 2 years after the ADA was enacted,

EEOC dissolved ADAS and integrated its functions into those offices already responsible for

providing policy guidance and technical assistance under all of the statutes that the agency

enforces." The technical assistance functions

were dispersed to the Office of Communications

and Legislative Affairs, the Office of Legal

73 Technical Assistance Plan for the

abilities Act of 1990, 55 Fed. Reg. at 5

74 Ibid.

75 Technical Assistance Plan for the

abilities Act of 1990, 55 Fed. Reg. at 50

Americans with Dis0,240.

76 EEOC, "EEOC's Implementation of

2.

226

240

Americans with Dis-

,241.

Title I of the ADA," p.
Counsel, and the Office of Field Programs

(formerly Office of Program Operations).

The initial focus of EEOC's implementation

efforts was "the development of clear and concise

regulations, policies and procedures."77 When

the ADA was passed, only a small portion of the

agency's staff had experience with disability

law,78 so EEOC also focused on training staff:78

In fiscal year 1990, the Office of Legal counsel

provided initial training on the ADA to EEOC

district offices and headquarters managers and

supervisors." Subsequently, an intensive 1-day

training program, "ADA Into the Twentieth Century," was developed and delivered to 2,600 staff

members in all of the agency's field offices between November 1991 through February 1992.81

Both training programs were videotaped and

made available to all EEOC offices.82 In fiscal

year 1992, approximately 80 percent of the

agency's training activities focused on implementation of the ADA and the Civil Rights Act of

1991. During June 1992, EEOC held intensive

week-long training sessions on both laws for

1,400 field managers, supervisors, attorneys,

and investigators in preparation for the ADA

effective date of July 26, 1992.83

In its implementation document, EEOC also

stated that it would develop and implement a

significant outreach and public education program.84 This would include development of a

wide range of informational materials, including

pamphlets and brochures on the basic statutory

requirements. The target audience of this information would be both employers and disabled

job applicants and employees. These informational materials would also be available in alternative formats to make them accessible to individuals with disabilities."

77 Ibid.

78 Ibid., p. 4.

79 See chap. 3 for a detailed discussion of staff training.

80 EEOC, FYs 1991 and 1992 Annual Report.

81 Ibid. p. 25.

82 EEOC, FY 1990 Annual Report, p. 8; EEOC, FYs 1991 and

1992 Annual Report, p. 12.

83 EEOC, "EEOC's Implementation of Title I of the ADA," p.

6.

84 Ibid., p.. 7.

85 Technical Assistance Plan for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,241.

EEOC proposed to disseminate the information to public media and to specialized communications media of employer and disability rightsoriented organizations. The plan also stated that

EEOC staff would provide information on the

ADA through participation in conferences, workshops, and meetings of these organizations

throughout the country. The agency planned to

create an exhibit for display at conferences and

conventions. EEOC also planned to respond to

individual inquiries about the other statutes it

enforces through expansion of its existing system. The agency would use the existing toll-free

telephone number to provide basic ADA information. Questions that could not be answered by

recorded information would be transferred to the

nearest field office for a personal response.

EEOC staff would be trained to provide accurate

and responsive information and also be equipped

to refer employers and others to appropriate

specialized sources of information. This information could provide assistance in making accommodations and in meeting other compliance requirements."

After the title I implementing regulations

were issued in July 1991, EEOC stated in the

technical assistance plan that information and

outreach programs for employers and individuals with disabilities would be expanded. The required technical assistance manual was to be

one source of such increased guidance on the

ADA.87

EEOC conducted a comprehensive outreach

and public information and education program.

The ADA speakers bureau provided, on request,

trained speakers from headquarters and the

field offices to explain the ADA. From July 1990

through September 1992, EEOC staff made

more than 1,675 presentations to a wide range of

business and trade associations and disability

rights organizations. In fiscal year 1992, Office

of Legal Counsel staff made more than 250 presentations on the ADA to a wide range of organizatiOns.88 In fiscal year 1991, the field offices

made 305 presentations on the ADA. During fiscal year 1992, field office staff made 1,061 ADA

88 Ibid.

87 Ibid.

as EEOC, "Implementation of Title I," pp. 10, 12.

227

241
presentations before 150,000 people, while headquarters staff made 250 ADA presentations before 30,750 people. The field office personnel also

held briefings and other meetings with employers and community groups to educate them and

establish contact.89

EEOC also published a resource guide,

"Library Resources on the Employment of Individuals with Disabilities." This guide described

ADA materials (books, periodicals, videos) that

had been collected and made available in

EEOC's library in November 1990.90 EEOC also

upgraded its toll-free telephone system to deal

with the 30 percent increase in the monthly average to 6,500 calls.91 Calls through EEOC's tollfree system to the caller's nearest EEOC field

office increased from a monthly average of

11,000 to an average of 15,000 calls per month.

The toll-free service continues to play a significant role in helping employers, employees, and

job applicants obtain information on their responsibilities and rights under the laws enforced

by EEOC, including the ADA.92 From October

1991 to October 1992, EEOC established a special ADA helpline as part of its toll-free service.93

In addition, EEOC's Office of Communications

and Legislative Affairs recorded 14,824 ADArelated calls for information during the second

quarter of fiscal year 1992. During the same period, the agency received approximately 5,100

mail requests for ADA materials.94

Callers to the helpline have had mixed experiences. One disability professional wrote,

"EEOC hotline staff is generally friendly and

informative if you can wait long enough for them

to get back to you. "95 Another wrote, "Our staff

have used the EEOC . . . hotline but found the

89 Ibid.,. p. 7. 99 EEOC, Library Resources on the Employment of Individuals with Disabilities, 2nd edition, December 1991. 91 EEOC, FY 1990 Annual Report, p. 11. 92 EE0C,."Implementation of Title I," p. 8. 93 Ibid., pp. 7-8, 10. 94 Ibid., p. 7. 95 Carl Suter, Associate Director, Office of Rehabilitation

Services, Illinois Department of Human Services, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

June 9;1998, attachment, p. 6.

process to be very slow and cumbersome, placed

on hold waiting for assistance."98

During this period, the Office of Legal Counsel's attorney-of-the-day service provided legal

and policy advice to an increasing number of

callers. The service handled about 200 calls

weekly, and two-thirds concerned the ADA. In

the 2 years of the initial implementation phase,

the Office of Legal Counsel responded to approximately 2,000 inquiries from a variety of

sources, including private attorneys, counsel for

State and local governments, law enforcement

agencies, public interest law groups, universities, and national, State, and local legislators.97

Because of an overwhelming volume of requests for technical assistance and educational

materials, most related to the ADA, EEOC's Office of Legislation and Communication Affairs

established an EEOC Publications and Distribution Center to provide distribution services for

these materials.98 Before establishing the center,

EEOC had used a number of distribution sources

including the Department of Education-funded

disability business and technical assistance centers (DBTACs), but these resources were insufficient to meet the demand for publications and

ADA informational materials. Therefore, the

agency entered into an interagency agreement

with the Environmental Protection Agency

(EPA) for warehouse facilities and for distribution of EEOC informational materials.99 The

agency was able to improve its distribution response on publication requests from a 1-week

turnaround to 48 hours guaranteed. The Acting

Director of the Office of Communications and

Legislative Affairs stated that staff periodically

test the efficiency of the distribution system, and

the average response rate to a telephone publication request actually is 24 hours. Since the

Publications and Distribution Center was estab96 Amy Maes, Director, Client Assistance Program, Michigan Protection and Advocacy Service, letter to Frederick D.

Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 30,

1998, attachment, p. 5. 97 EEOC, "Implementation of Title I," pp. 7,10. 98 Ibid., p. 8.

99 William White, Acting Director, Office of Communications

and Legislative Affairs, EEOC, interview in Washington,

DC, Dec. 5, 1997 (hereafter cited as White interview).

228

242
lished, it has distributed more than 2 million

documents on ADA.100

Early in fiscal year 1992, EEOC opened a

new training center in headquarters to accommodate training activities and special events for

up to 180 individuals or provide space for four

simultaneous events. The center was mandated

by a provision in the Civil Rights Act of 1991,101

but it has been used extensively for ADA training.102 EEOC staff also aided the ADA technical

assistance efforts of many other Federal agencies and private organizations. EEOC staff

worked closely with the ADA Technical Assistance Working Group, which was chaired by

DOJ. EEOC staff reviewed training modules for

the Rehabilitation Services Administration,

which were designed to train rehabilitation and

independent living professionals on the ADA and

its effect on vocational rehabilitation, client assistance, and independent living programs. Ongoing technical assistance and/or onsite training

was provided to Federal employees at the Small

Business Administration, the Centers for Disease Control, the Department of Health and

Human Services' National AIDS Program Office,

the Department of Education's Office for Civil

Rights, and the Department of Labor's Office of

Federal Contract Compliance Programs.103

In April 1992, EEOC headquarters staff held

three briefing sessions for congressional staff on

responding to constituent requests for information on the ADA. In July 1992, the agency distributed an ADA information kit to more than

2,000 congressional offices on guidance and information to assist staff in responding to constituent inquiries on the ADA. Included in the

information kit were a copy of the ADA technical

assistance manual, the ADA handbook, and

other ADA-related EEOC publications.104 Further, in June 1992, EEOC distributed an insert

on ADA in the Internal Revenue Service's quarterly mailing to approximately 6 million employers: The insert informed employers of the effective dates and basic requirements of the ADA

100 Ibid.

101 See 42 U.S.C. § 2000 e-4 (1994).

102 EEOC, "Implementation of Title I," p. 6.

103 Ibid., pp. 10-11.

I" Ibid., p. 12.

and the availability of the ADA technical assistance manual.105EEOC also made mass mailings

to the major civil rights groups to inform them

about the ADA.106

In fiscal year 1992, EEOC conducted, with

professional assistance, a nationwide needs assessment to develop a comprehensive technical

assistance plan.107 The needs assessment focused

on the statutes that EEOC enforces, including

the ADA. The resulting technical assistance and

outreach plan included:

defining target audiences, objectives, barriers

(cultural, legal and economic) and tactics that

overcome such barriers;

unifying messages and themes that support

EEOC's enforcement intent;

recommending the mix of sustained outreach

vehicles and products and dissemination models, including analysis of the utility of

existing training and education materials;

establishing a strategy for national, regional,

and local collaboration activities with business, trade, and community-based organizations representing the cultural and social interests of potential charging parties, thus

leveraging additional resources for national

educational and technical assistance activities; and

developing evaluation criteria.108

The goal of the needs assessment was to improve

the effectiveness of EEOC's educational and outreach efforts and the technical assistance pro -

gram.1o9

In its proposed technical assistance plan, EEOC stated that it would develop a public

service announcement (PSA) on the ADA to be

distributed to radio and television stations.110

However, the Acting Director of the Office of

Communications and Legislative Affairs said

that EEOC did not, in fact, produce a PSA. The

office researched the feasibility of a national

multimedia PSA campaign on the ADA but

found that funds were not available to meet the

105 Ibid., p. 11.

106 White interview.

107 EEOC, "Implementation of Title I," p. 12.

108 Ibid., p. 13.

109 Ibid., p. 12.

110 Technical Assistance Plan 'for the Americans with Disabilities Act of 1990, 55 Fed. Reg. at 50,241.

229

X43
anticipated $400,000 cost." Disability professionals contend that increased use of PSAs is

necessary to inform the general public about the

ADA. For instance, one disability professional

wrote: "the need for public knowledge continues

to be an issue. The use of media should be increased for public announcements, to all agencies and the general public. This is an area that

needs work, because the discrimination complaints based on disabilities are still there."112

Another wrote, "The dissemination of information has been excellent. However, some businesses, employers and members of the general

public are still not aware of the ADA and its

provisions. Simple and informative public service announcements might be helpful as well as

presentations or booths at certain employer or

human resources conventions.""3

The intensive work necessary to prepare for

implementing the ADA without additional

staffing resources placed a substantial burden on

EEOC. The statutory mandate to provide technical assistance for the implementation of the ADA

required a tremendous effort by EEOC staff responsible for providing guidance and coordination under the agency's other legal authorities."4

After the ADA became effective, the legal

policy function for the ADA was placed in the

Office of Legal Counsel. The technical assistance

function was moved to what is now the Office of

Field Programs (the former Office of Program

Operations). The plan was to train the Office of

Field Programs staff on the ADA so that they

could do outreach at the local level. A series of

training programs was held for field personnel

on ADA. The first was in December 1991 and the

most recent was completed in the summer of

1997.115 Other offices were also responsible for

parts of EEOC's technical assistance program,

including the Office of Communications and

I" White interview.

112. Kathy Ertola, Assistant ADA Coordinator, California

Department of Social Services, letter to Nadja Zalokar,

Americans with Disabilities Act Project, Director, USCCR,

May 26, 1998, p. 2 (hereafter cited as Ertola letter).

113 Ringer letter, attachment, p. 2.

114 EEOC, "Implementation of Title I," p. 4.

115 Linda Lawson, Operations and Policy Specialist, Office of

Field Programs, EEOC, interview in Washington, DC, Dec.

23, 1997 (hereafter cited as Lawson interview).

Legislative Affairs, which was responsible for

the toll-free information helpline and the publications and distribution center. That continues

to be how the technical assistance functions are

organized within EEOC.116

Funding

EEOC officials said that funding for technical

assistance for the implementation of the ADA

was limited. However, in fiscal year 1991, the

agency was appropriated $1,000,000 to begin the

statutorily required preparations for implementing section 506 of the ADA, which mandated the technical assistance program. Further,

EEOC received a 1-year supplemental appropriation of $3,630,000 in fiscal year 1991. In fiscal year 1992, EEOC was appropriated $4,044,000 and 32 additional staff persons for

ADA implementation, as well as a supplemental

appropriation of $1,000,000 which was available

through fiscal year 1993. Despite additional

funding in fiscal year 1992, EEOC stated that it

experienced a fiscal crisis due to years of underfunding in the 1980s and the enactment of the

Civil Rights Act of 1991, for which no additional

implementation funds were appropriated that

year."?

To deal with the implementation demands of

both new laws, EEOC stated that it "was forced

to reallocate its resources.""8 Since 90 percent of

its funding was allocated to such nondiscretionary costs as salaries, rent, communications, and

utilities, only 10 percent of the funding was

available for discretionary costs, such as litigation support, travel, and training."9 However,

EEOC was able to establish the new program

initiatives in headquarters "by streamlining certain headquarters functions and shifting slots

from those programs that the agency considered

to be duplicative."120 The shift of slots permitted

EEOC to support such initiatives as the staffing

of the ADA Services Unit.121

230

116 White interview.

117 EEOC, "Implementation of Title I," p. 16.

119 Ibid.

119 Ibid.

129 Ibid., p. 17.

121 Ibid.

2 4.1
Technical Assistance Revolving

Fund and the TAPS Program

In October 1992, the EEOC Education, Technical Assistance and Training Revolving Fund

Act of 1992 was signed into law.122 The new law

amended title VII of the Civil Rights Act of 1964

to establish a revolving fund for use by the

EEOC in providing technical assistance, training, and education to the public on the laws it

enforces.123 Initial startup funding was provided

by a one-time transfer of $1 million from EEOC's

salaries and expenses account to the fund. The

fund subsequently was supported, like other

governmental revolving funds, by collections and

payments from recipients of technical assistance

training and materials.124

The fund supports the technical assistance

program seminars (TAPS), which are conducted

primarily by field office personne1.125 Generally,

the TAPS programs consist of 1-day seminars for

groups that can afford to reimburse the government. Thus, the audience usually is employer

groups. EEOC officials stated that these seminars are not at the expense of "no cost" training

and technical assistance that the agency has

been doing on ADA; EEOC's revolving fund activities have amounted to approximately $4 million over the life of the program thus far.126

Although the fund is not self-sustaining, it

generates sufficient funds to reimburse EEOC for

staff time required to do ADA training. During

the last 2 years, the fund has become increasingly

self-sustaining. With the additional funds, the

Office of Field Programs has been able to fund

travel, printing, and supplies for outreach to

groups who cannot afford to pay for the training.

The additional funding also permits the Office of

Field Programs to send staff to locations farther

from field offices to do training on ADA.127

EEOC hired a business consultant to advise it

on how to manage and market the TAPS pro122 Pub. L. No. 102-411, 106 Stat. 2102 (codified at 42 U.S.C.

§ 2000e-4 (k) (1994)).

123 Id.

124 EEOC, "Implementation of Title I," p. 13.

125 Lawson interview.

126 White interview.

127 Paula Choate, Director, Field Coordination Programs,

Office of Field Programs, EEOC, interview in Washington,

DC, Apr. 2, 1998 (hereafter cited as Choate interview).

grams. Focus groups were convened, and 20,000

letters were sent to various groups and individuals to determine what type of technical assistance and outreach programs the agency's

stakeholders wanted and needed. The priority

need for the respondents was training videos

with leader and participant guides.128

TAPS training has no set agenda; the programs can cover any of the laws that EEOC enforces. A staff inventory of all of the TAPS seminars had more than 7% pages of ADA topics,

making it the most covered specific topic. The

field staff does more TAPS programs on the ADA

than any other specific topic or law that EEOC

enforces.129

The current cost of a full-day TAPS program

is $199 per person.130 The seminar must have a

minimum of 100 participants to reach the breakeven point. Those attending the seminars also

receive resource books providing them with the

relevant information on the topic of the seminar.131 Half-day seminars cost $75 or $50, depending on the amount of materials or resource

books furnished to the participants.132 More recently, the field staff has been holding TAPS

seminars at employers' worksites.133 Several disability professionals noted that the cost of the

TAPS programs was high relative to their agencies' budgets. For instance, a representative of

the Department of Social Services for the State

of California wrote, "[t]he chief of our EEOC office has attended seminars conducted by EEOC

and feels they are very informative. Unfortunately, the fee tends to be costly (approx. $200) a

person, and it is impossible to send all EEOC

investigators, which would be ideal."134

128 Ibid.

129 Ibid.

138 EEOC, Cost of Technical Assistance Program Seminars

(TAPS), prepared January 1998.

131 Choate interview.

132 EEOC, Cost of Technical Assistance Program Seminars

(TAPS), prepared January 1998.

133 Choate interview.

134 Ertola letter, p. 3. Ms. Ertola also indicated that the costs

of EEOC brochures were high for State agencies. She indicated that "[w]hen calling the local EEOC, we were informed

that a brochure is available, and the fee for the materials is

$75.00. State agencies don't always have the funds available

for materials, and it is disappointing that some kind of tax

dollar should cover this for state agencies." Ibid. Another

231

2 4
Many disability advocates and professionals

say that small businesses are not informed of

their obligations under the ADA. For example,

one disability professional wrote, "Large companies may know something about the ADA, but

small businesses know very little. . . ."135 Recently, the Office of Field Programs has made

efforts to conduct TAPS training programs so

that they are more affordable for small employers. The Office of Field Programs has used the

half-day seminars or has held programs for

smaller groups, offsetting the costs with larger

seminars for other groups. EEOC also gives the

participants of the half-day seminars a full set of

the resource books, which helps them to gain the

information on ADA and the other laws that

EEOC enforces. Outreach to small business employers initially was not as great as it should

have been, EEOC staff acknowledges, and136 the

field office staff is trying to remedy that now

with more innovative use of the TAPS program.

The TAPS seminars are evaluated for effectiveness. Participants are asked to fill out an

evaluation form at the conclusion of each seminar. On the forms, participants are asked,

among other things, what technical assistance

products would be helpful to them. If a participant is attending a second seminar, he or she is

asked what information was helpful at the previous seminar.137 This information is used to

gauge the effectiveness of the presentations by

Office of Field Programs staff and staff in the

district office that presents the TAPS program.138 The revolving fund's business plan will

outline additional products and services that will

address the needs of smaller employers.139

disability professional wrote, "To my knowledge, we have

been invited to only one seminar and although I have forgotten the price, the amount seemed expensive per person."

Kayla A. Bower, Executive Director, Oklahoma Disability

Law Center, letter to Frederick D. Is ler, Assistant Staff

Directoi, Office of Civil Rights Evaluation, U.S. Commission

on Civil Rights, Apr. 6, 1998, attachment, p. 3.

135Martin letter, attachment, p. 7.

136 Choate interview.

137 Ibid.

138 Julie Bowman, Enforcement Supervisor, Chicago District

Office, EEOC, telephone interview, Apr. 8, 1998.

138 See EEOC Comments, July 17, 1998, p. 5.

ADA Outreach, Education, and Technical

AssistanceFiscal Year 1993 to Present

After the ADA was implemented in July

1992, the ADA technical assistance functions

were dispersed to the Office of Communications

and Legislative Affairs, the Office of Legal

Counsel, and the Office of Field Programs. After

1992, there was less emphasis on the ADA as a

separate component of EEOC's overall technical

assistance program, and field office staff became

the group primarily responsible for technical

assistance at EEOC.149 However, ADA still was

the most frequently requested topic in the education and outreach programs conducted by

staft141 although it is declining. In fiscal year

1992, the ADA represented 49 percent of the

topics covered in technical assistance programs.

In fiscal year 1993, ADA represented 32 percent

of the topics discussed, and by fiscal year 1994

the ADA had declined to only 24 percent of the

topics. In fiscal year 1995, the ADA represented

22 percent of the topics, and the ADA represented only 12 percent and 11 percent, respectively, in fiscal years 1996 and 1997. A staff

member said that although the percentage of

ADA presentations had declined in this period,

she thought that, in the last 18 months, the field

staff were doing substantially more presentations, so that the actual number on ADA had

remained the same or increased.142

In fiscal year 1993, the first full year of ADA's

enforcement, EEOC staff provided extensive

education and technical assistance in support of

the ADA.143 That same year, the Office of Legal

Counsel issued interim enforcement guidance

interpreting ADA's application to disabilitybased provisions in employer health plans. As a

result, Office of Legal Counsel staff provided extensive information about and interpretation of

these ADA provisions and other parts of the law

in response to hundreds of written and telephonic inquiries. Staff also made speeches and

other presentations on ADA throughout the

year. The Office of Legal Counsel made over 100

public presentations on the ADA to a diverse

232

140 Lawson interview.

141 Choate interview.

142 Lawson interview.

143 EEOC, FY 1993 Annual Report, p. v.

2413
group of organizations representing private and

public employers, management and human resources professionals, attorneys, the disability

community, and medical and many other specialized groups. Through its attorney-of-the-day

service and ADA staff, the Office of Legal Counsel provided legal and policy interpretations on

the ADA to an average of 200 callers weekly.

The staff also provided ongoing support and

technical assistance to the DBTACs and to staff

in other Federal agencies, such as the Department of Health and Human Services, Small

Business Administration, Centers for Disease

Control, and others.'" Fiscal year 1993 was the

first year of operation of the Publications Distribution Center, which distributed almost 1.6 million publications.145 In addition, according to a

1995 EEOC report, because of concerns expressed by certain groups, Congress mandated

in the agency's fiscal year 1992 appropriation

law that it conduct outreach and education to

historically underserved groups such as Hispanic Americans, Asian/Pacific Islander Americans and Native Americans.146

Most of the outreach and education efforts

are done by EEOC's field offices. Selected field

offices began a pilot program in fiscal year 1993

to institutionalize and coordinate comprehensive

technical assistance, outreach, and education

programs; to establish a standardized approach

to internal development and delivery of training

to EEOC staff and the general public; and to

provide a specific point of internal coordination

of special activities throughout the field.147 Six

districts participated in the pilot program, and a

new position of program analyst was created to

work with the district director on it. The pilot

program was successful and has been extended

to all of the district offices.148 In fiscal year 1993,

ADA was the most frequently presented topic at

the field outreach and education activities. An

overview of EEOC's enforcement program, in1,14 Ibid., p. 13.

145 Ibid., p. 16.

146 EEOC, Technical Assistance and Education in EEOC,

The Role of the Office of Program Operations, Report to the

Commission, Jan. 10, 1995, p. 4.

147 Ibid., pp. 1-2.

148 Ibid., pp. 2-5.

cluding the ADA, was the most frequent agenda

item for the presentations.149

A focus of EEOC's outreach program in fiscal

year 1994 was an effort to alert the public and

the media of the expanded coverage of the ADA,

which took place on July 26, 1994. Employers

with 15 to 24 employees were now covered under

the statute.159EEOC increased contact with both

the print and the electronic media, disability

rights organizations, small business trade associations, and Small Business Administration

field offices. The Publications Distribution Center mailed 509,721 ADA-related publications.'51

In addition, Office of Legal Counsel staff made

over 90 presentations on title I of the ADA' at

conferences and seminars sponsored by a ,bkoad

range of organizations, associations, and governmental agencies, including many disability

rights groups.152 ADA continued to be the single

most frequently addressed topic in the field outreach activities.153

By fiscal year 1995, the ADA technical assistance program was integrated into the agency's

overall technical assistance and outreach effortg.

In the field, ADA continued to be the single topic

most frequently addressed.154 Field staff made

presentations to more than 65,000 people who

attended over 1,100 presentations. Almost 40

percent of EEOC's presentations were made to

professional organizations for attorneys, human

resources professionals, business owners, and

employers. Staff in the Office of Legal Counsel

also made presentations to various groups on a

number of topics, including the ADA. The ADA

Division held monthly meetings with attorneys

149 EEOC, FY 1993 & FY 1994 Outreach Activities, Pie

Charts.

150 For the preceding 2 years, employers with fewer than 25

employees were not covered under the ADA. See 42 U.S.C. §

12111 (5) (A) (1994).

151 EEOC, FY 1999 Annual Report, p. 29.

152 Elizabeth M. Thornton, Deputy Legal Counsel, Office of

Legal Counsel, EEOC, memorandum to Cynthia Clark Matthews, Director, Office of Equal Employment Opportunity,

re: Accomplishments of the Office of Legal Counsel Regarding Individuals with Disabilities for FY 1994, Dec. 21, 1994.

153 EEOC, FY 1993 & FY 1994 Outreach Activities, Pie

Charts.

154 EEOC, Office of Program Operations, FY 1995 Annual

Report; Education, Technical Assistance and Outreach, p.

15.

233

247
from the Departments of Justice, Labor, Education, and Health and Human Services to facilitate discussion on the ADA. Further, when attorneys from the Office of Legal Counsel go to

the field to hold a TAPS seminar, they try to arrange either to give training to the staff in the

field office or arrange to give a'free seminar to a

group in the same locale who cannot afford to

pay for a TAPS seminar. This permits Office of

Legal Counsel staff to maximize the agency's

limited resources for technical assistance.155

Concerns about the effectiveness of EEOC's

education, outreach, and technical assistance efforts were raised in a 1995 congressional oversight hearing. In testimony before the Committee

on Labor and Human Resources of the United

States Senate, a General Accounting Office representative stated that EEOC "has direct contact

with a small portion of the millions of workplaces

and workers in the United States,"156 and noted

that EEOC devoted relatively few resources to

outreach and technical assistance activities.157

Local Enforcement Plans

In July 1996, the National Enforcement Plan

was implemented, and it required each field office to develop a technical assistance and outreach component as part of its Local Enforcement Plan (LEP). Most of the LEPs identify specific ADA outreach and technical assistance programs; however, a few do not specifically target

the ADA. For example, the Seattle District Office

will focus on reasonable accommodation of persons with disabilities. Also, disabilities such as

diabetes and multiple sclerosis (MS) and the impact of rotating shift work, overtime, and the

need for frequent snacks or breaks are areas to

be addressed, because there is a high incidence

of MS in the North Western States.158 The

Philadelphia District Office agreed to do four

programs for "Inside Government," a radio pro155 Kathleen Courtney, Office of Legal Counsel, Coordination

and Guidance Programs/ADA, interview in Washington, DC,

Dec. 5, 1997.

156 Hearing before the Senate Comm. on Labor and Human

Resources, 104th Cong. 36 (May 23, 1995) (statement of

Linda G. Morra, Director, Education and Human Resources

Division, GAO).

157 Ibid.

158 EEOC, Seattle District Office, "Local Enforcement Plan

for Fiscal Years 1996 & 1997," August 1996, p. 3.

gram in Philadelphia that covers Federal agencies and the services they provide. Two shows

were to be on ADA.159 The New York District

Office planned to hold a seminar on the .ADA

and reasonable accommodation for EEO officials,

personnel specialists, and human resource managers, to provide a greater awareness of ways to

employ individuals with disabilities by providing

effective reasonable accommodations.160

The Memphis District Office stated that outreach efforts would be directed toward educating

employers on their responsibilities in the areas

of reasonable accommodation and questions involving terminal illness.161 The Los Angeles District Office LEP noted that of the 8.8 million

people in the County of Los Angeles, approximately 19 percent, or 1.6 million, are individuals

with disabilities. The office planned to organize

an educational focus group to develop an action

plan °.162 The plan for the Dallas District Office

stated that the feasibility of developing and producing videotapes for very small employers on

disability accommodations, among other topics,

would be explored.163

The Indianapolis District Office identified

two employment practices related to ADA that

were the subject of recurrent charges of discrimination. The first dealt with applicants being disqualified for employment after post-offer

medical examinations and the other involved

speculative predictions of harm as a result of

prior existing medical conditions or asymptomatic predispositions to possible future impairments. The LEP noted that respondents had relied on advice from occupational medical specialists unaccustomed to the requirements of the

ADA. The office stated that it planned to contact

159.EE0C, Philadelphia District Office, "Local Enforcement

Plan," section A, p. 5.

160 EEOC, New York District Office, "Local Enforcement

Plan," August 1996, p. 14.

161 EEOC, Memphis District Office, "Local Enforcement

Plan," July 1996, p. 5.

162 EEOC, Los Angeles District Office, "Local Enforcement

Plan," First Edition 1996-1997, p. 9.

163 EEOC, Dallas District Office, "Local Enforcement Plan,"

May 1996-September 1997," p. 11 (hereafter cited as EEOC,

Dallas District Office LEP).

234

2 4 8
associations of occupational medical personnel

and offer to conduct training on the ADA.164

The Detroit District Office established an ongoing working relationship with the Michigan

Protection and Advocacy Service to discuss potential charges of discrimination. The staff also

actively participated in the conference of the

President's Committee on Employment of People

with Disabilities, which was held in Detroit in

May 1996.165 The Charlotte District Office noted

that the ADA was:

without a doubt the least understood statute administered by EEOC. The concept of a disability, the requirements concerning medical exams and records,

the duty to provide a reasonable accommodation and

the treatment of communicable diseases are widely

misunderstood.'66

The LEP further noted that there were serious

differences between the South Carolina disability law and title I of the ADA, which led to a

misunderstanding of the Federal law. The LEP

planned to address these issues through TAPS

programs and through providing speakers, when

requested, to employer and professional

groups.167

The San Antonio District Office identified

disability discrimination, especially cases involving terminal or degenerating illnesses, egregious discriminatory condUct, and reasonable

accommodation as focal topics of its training

program. These were identified by a review of

the inventory of cases and feedback from stakeholders. However, the LEP did not identify specific outreach efforts to deal with this issue.168

The Milwaukee District Office said that it and

the Minneapolis Area Office take in a higher

percentage of disability charges than most

EEOC offices, but most of the charges are from

disabled persons in metropolitan areas. The office stated that it wanted to be sure that em164 EEOC, Indianapolis District Office, "Local Enforcement

Plan," June 28, 1996, Section A.

165 EEOC, Detroit District Office, "Local Enforcement Plan,"

PP. 7-8.

166 EEOC, Charlotte District Office, "Local Enforcement

Plan," section A, Outreach, p. 10.

167 Ibid., section A, Outreach, pp. 6, 10.

168 EEOC, San Antonio District Office, "Local Enforcement

Plan," section A, pp. 4-5.

ployment opportunities are available to all citi

zens within its jurisdiction regardless of where

they live.169 Specific ADA-related outreach efforts included a series of speeches in Wisconsin

and Minnesota.179

Education and technical assistance to diverse

disability groups has been an integral part of the

Miami District Office's outreach program since

1993. Its LEP noted that the office had worked

jointly with many groups from the disabled

community to provide information about the

ADA to employers and the public. The LEP proposed to establish a stakeholder committee for

the disabled to enhance the office's outreach activities.171 The Albuquerque District Office identified persons with disabilities among its targeted populations for outreach. During the sec- ond quarter of fiscal year 1997, the office

planned one outreach activity related to ADA, a

seminar with all department heads at New

Mexico State University in Las Cruces.172 Individuals with disabilities were also identified as a

targeted population by the Phoenix District Office. A number of strategies for addressing its

outreach program were described in the Local

Enforcement Plan, but only one was described as

an ADA-related effortworking with advocacy

organizations, e.g., the Arizona Center for Disability Law, to coordinate training activities.173

Headquarters and Field Office Management

of ADA Technical Assistance Programs

The management and functions of EEOC's

technical assistance programs are diffused

throughout EEOC. Two offices are primarily responsible for EEOC's technical assistance programs: the Office of Communications and Legislative Affairs, which is responsible for the publications and distribution operations and the tollfree information line, and the Office of Field

166 EEOC, Milwaukee District Office, "Local Enforcement

Plan," July 1, 1996, p. 4 (hereafter cited as EEOC, Milwaukee District Office LEP).

17° Ibid., pp. 8-9.

171 EEOC, Miami District Office, "Local Enforcement Plan",

p. 7 (hereafter cited as EEOC, Miami District Office LEP).

172 EEOC, Albuquerque District Office, "Local Enforcement

Plan," section A.

173 EEOC, Phoenix District Office, "Local Enforcement

Plan," section A, pp. 2, 4.

235

249
Programs, which is responsible for the local

technical assistance and outreach programs, including the TAPS seminars funded by the revolving fund. In addition, some other aspects of

the agency's technical assistance program are

carried out by other offices such as the library,

which is responsible for EEOC's Web site. In interviews, staff acknowledged that there is no

technical assistance staff in EEOC that is comparable to the unit in DOJ's Disability Rights

Section,174 where the Department's ADA technical assistance function is consolidated.

EEOC's Commissioners acknowledge the importance of the technical assistance efforts to the

successful implementation of the ADA. Former

Chairman Gilbert Case llas cited technical assistance as one of the three ADA areas in which

EEOC has had significant accomplishments. He

noted that EEOC had increased the number of

technical assistance seminars in fiscal year 1997

to approximately 70, a BO percent increase from

the previous year.176

In a 1998 statement before Congress, Acting

Chairman Igasaki said that while EEOC has

been able to devote only a small portion of its

budget to outreach and education activities, the

agency has found that these programs have been

invaluable in communicating what and who is

covered by Federal equal employment laws. In

order to get the most from its limited funds,

EEOC has actively sought ways to expand its

outreach activities through creative and costefficient strategies and techniques. For example,

he said, to get information to small businesses,

which are not always able to purchase information-based products or to attend seminars,

EEOC created a special Web site with information targeted for the small business owner. The

Acting Chairman said that EEOC's free and feepaid outreach programs were attended by almost

100,000 individuals in fiscal year 1997. He noted

that there were plans for the future development

of direct sale items to reach those who cannot

afford to access EEOC's technical assistance

174 White interview.

175 Gilbert Case llas, Chairman, EEOC, interview in Washington, DC, Dec. 1, 1997.

programs and for expanded activities for underserved groups and communities.176

Commissioner Reginald Jones said that he

thought that outreach and technical assistance

are important for all statutes. In fact, he noted

that in the EEOC strategic plan, outreach and

education have the same priority as litigation.

Commissioner Jones also stated that the EEOC

conducted a lot of outreach programs to educate

the public about the ADA.177

Commissioner Paul Stephen Miller said that

technical assistance, outreach, and education are

critical to EEOC's mission. He said that discrimination cannot be eradicated simply by enforcement and processing charges. In his opinion, EEOC must provide training to give employers a network for getting answers to questions. At the same time, it is also important to

inform the public about their rights. According

to Commissioner Miller, while technical assistance is not a central driving force in what the

agency does, it is important. EEOC's technical

assistance efforts complement those of other organizations that provide technical assistance on

the ADA. Commissioner Miller said the goal of

technical assistance should be to eliminate discrimination and he would like to see EEOC do a

better job in outreach.178

EEOC's Legal Counsel said that Office of Legal Counsel staff does more travel for technical

assistance and outreach purposes on ADA than

any other law that EEOC enforces. She noted

that participation in seminars and meetings fosters an informal network of communication.

However, technical assistance is delivered principally through the district offices and is required in their LEPs. The district offices are held

accountable, she said, for outreach and technical

assistance. She believes that the decentralized

approach works well.176 The Director of the Office of Legal Counsel's ADA Division said that

176 Hearing before the Subconun. on Commerce, Justice,

State, The Judiciary and Related Agencies of the House

Comm. on Appropriations, 105th Cong. 2 (Apr. 1, 1998)

(statement of Paul M. Igasaki, Acting Chairman, EEOC).

177 Reginald Jones,. Commissioner, EEOC, interview in

Washington, DC, Apr. 1, 1998.

178 Paul Steven Miller, Commissioner, EEOC, interview in

Washington, DC, Apr. 7, 1998.

in Ellen Vargyas, Legal Counsel, Office of Legal Counsel,

EEOC, interview in Washington, DC, Apr. 8, 1998.

236

250
his organization provides technical assistance to

field staff on ADA in addition to requests for information from outside EEOC. Each field office

has an ADA policy contact in the Division. The

staff also does public speaking on ADA to a wide

variety of groups as part of the Office of Legal

Counsel's outreach responsibilities.180

The Director of the Office of Field Programs

explained that the three offices are doing different things with respect to EEOC's technical assistance program. The Office of Communications

and Legislative Affairs has a national perspective on EEOC's outreach program. The field offices deal with outreach in terms of their jurisdictional and geographical areas, and the Office

of Field Programs oversees the activities of the

field offices and reviews how these fit into the

National Enforcement Plan. Office of. Legal

Counsel staff members speak on issues as requested.'" There is extensive coordination between the Office of Field Programs and the Office of Communications and Legislative Affairs,

because the Office of Communications and Legislative Affairs is responsible for national publications. A headquarters office for outreach, she

said, would be a problem because it would not

have jurisdiction over the field offices.182 Eventually, EEOC hopes to implement a national

outreach plan, once the LEPs are in place. This

will permit the agency to identify the areas of

technical assistance that need strengthening.

Local offices tell headquarters where outreach is

needed, so the Office of Field Programs does not

direct the offices.183 However, the Director of

180 Christopher Kuczynski, Director, Americans with Dis:

abilities Act Division, Office of Legal Counsel, EEOC, interview in Washington, DC, Apr. 8, 1998.

181 The staff of OLC are the primary spokespersons for the

agency on policy matters. They provide policy interpretations as requested. This is distinguishable from the field

responsibility for identifying underserved groups, employers, and geographic areas and providing outreach and technical assistance services. See EEOC Comments, July 17,

1998, p. 5.

182 Thornton interview. Since field offices, organizationally,

report directly to the Office of Field Programs, superimposing a separate office to handle this single function would

bifurcate management. See EEOC Comments, July 17, 1998, p. 5.

183 Thornton interview. Field offices are asked to identify

where outreach is needed and submit proposals for addressing these needs within their jurisdictions. The Office of

Field Programs reviews these plans and provides appropriField Coordination Programs stated that she

now has an outreach coordinator on her staff

who coordinates field technical assistance activities with staff in the Office of Legal Counsel and

the Office of Communications and Legislative

Affairs. She hoped with future money generated

by the revolving fund to put one outreach coordinator in each field office.'"

In July 1997, EEOC held its first national

conference for EEOC staff engaged in outreach.

A conference on the revolving fund was scheduled for August 1998. In addition, EEOC disseminates a newsletter to all offices that includes information on field office outreach activities. This permits staff to borrow ideas from each

other.185 Finally, field staff mentioned that each

field office outreach contact point files a quarterly report on outreach and education activities

covering all presentations made, stratified by

category, and listing the particular groups that

were reached.186

Several field offices planned to use the local

media to publicize EEOC's programs and the

laws it enforces, including ADA, either with ap- pearances by staff on public affairs shows or

PSAs. Additionally, a few field offices have indicated plans for producing PSAs and videos.

These include the following:

The Los Angeles District Office planned to

produce PSAs in English, Spanish and Asian

languages that would run on television and radio

stations and in the print media.187 The office also

has an orientation video for people who file

charges. Many of the other offices had similar

videos; however, some, like the Boston Area Office, did not.188

ate feedback based on overall needs. As such, the Office of

Field Programs does not dictate field outreach activities.

EEOC Comments, July 17, 1998, p. 5.

184 Choate interview.

185 Ed Elizondo, Outreach and Education Coordinator, Dallas District Office, EEOC, telephone interview, Apr. 13,

1998.

186 Larry Pincus, Program Analyst, New York District Office, EEOC, telephone interview, Apr. 20, 1998 (hereafter

cited as Pincus interview).

187 Los Angeles District Office Local Enforcement Plan, First

Edition 1996-1997, p. 10.

188 Devika Dubey, Investigator, Boston Area Office, EEOC,

telephone interview, Apr. 10, 1998.

237

2 5j
The Miami District Office, as part of its

strategies for providing EEOC services to underserved communities, plans to produce PSAs for

radio and television.189

The Atlanta District Office planned to produce an educational video, using office staff and

a task force of stakeholders who will identify

topics, write the script, and act. It planned to

distribute the joint venture video throughout the

district community.199

The San Francisco District Office planned in

fiscal year 1997 to hold a series of symposia to

educate community groups about equal employment opportunity laws. It planned to market and

publicize these events through PSAs and direct

mail.191

The feasibility of developing and producing a

videotape for very small employers was being

explored in fiscal year 1997 by the Dallas Digtrict Office. The tape would provide information

on correct job interviewing, sexual harassment,

and religious and disability discrimination.192

The Milwaukee District Office planned to

contact local advertising councils to seek their

help in producing PSAs throughout its threeState jurisdiction. The plan was to have the first

PSAs aired in fiscal year 1997.193

In carrying out their technical assistance and

outreach responsibilities, the field offices have a

significant amount of flexibility and discretion. A

regional attorney in the Los Angeles District Office noted that the Office of Field Programs has

allowed the field offices to be creative.194 As

demonstrated above, the district offices' creativity does appear to have resulted in some very

innovative approaches to outreach, especially in

light of EEOC's limited resources. As an example

of the creative efforts of the field office technical

assistance efforts, the New York District Office

had developed a brochure explaining the laws

189 EEOC, Miami District Office LEP, p. 7.

199 EEOC, Atlanta District Office, "Local Enforcement Plan,"

revised Aug. 16 1996, p. 3.

191 EEOC, San Francisco District Office, "Local Enforcement

Plan," pp. 5-6.

192 EEOC, Dallas District Office LEP, p. 11.

193 EEOC, Milwaukee District Office LEP, p. 12.

194 Pamela Thomason, Regional Attorney, Los Angeles District Office, EEOC, telephone interview, Apr. 15, 1998

(hereafter cited as Thomason interview).

that EEOC enforces but oriented toward its immigrant population. It was published in seven

languages and was distributed by the Office of

Field Programs to district offices with large immigrant populations.195 The New York District

Office also published a "know your rights brochure" for distribution at outreach programs.195

Recognizing these innovations, Acting Chairman

Igasaki directed the Office of Field Programs to

make available to all field offices the most useful

information that has been developed by the various offices. The Acting Chairman also directed

the Office of Communications and Legislative

Affairs to take the lead in developing information packets, videos, and questionnaires for distribution to the public.197

Outreach to Underserved Groups

According to the Director of the Office of

Field Programs, some technical assistance programs have been developed for small businesses,

for example, half-day TAPS seminars. One-half

day seminars have proven attractive to small

business because they cost less than full-day

seminars. District offices are aware that they

need to make an effort to reach small businesses.

She noted that earlier in the ADA implementation process, both the Office of Legal Counsel

and Office of Program Operations (now the Office of Field Programs), had some programs

aimed at small businesses,198 and added that last

year's focus was to reach small businesses by

making revolving fund courses cheaper.199

EEOC prepared a small business information

sheet in conjunction with the National Federation of Independent Business (NFIB) and placed

the document on the agency's Web site, which

also contains EEOC's policy guidance.299 The

manager of Legislative Affairs at NFIB said that

EEOC was interested in reaching out to the

small business community and placing the small

business information on the Web site was a good

195 Choate interview.

196 Pincus interview.

197 Paul Igasaki, Acting Chairman, EEOC, operational recommendations made at the Apr. 21, 1998 EEOC meeting.

198 Thornton interview. See EEOC Comments, July 17, 1998,

p. 5.

199 Thornton interview (statement of Linda Lawson).

299 Mastroianni interview.

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example of effective outreach and technical assistance. Although she was unaware of any

technical assistance materials prepared by either EEOC or DOJ other than the ADA technical

assistance manual, she said the manual was

very well done and informative.201

Several of the district offices mentioned that

they had made efforts to reach out to the small

business community. In Los Angeles, staff has

made presentations to groups such as chambers

of commerce, roundtables, employer groups, and

personnel management association meetings.202

The Chicago District Office recognized that the

full-day TAPS programs do not reach the small

business community, so in 1997 it held a halfday seminar cosponsored with the Small Business Administration specifically aimed at small

businesses. Two more half-day seminars for

small businesses were planned for 1998.203

EEOC staff acknowledged that EEOC needed

to reach the minority disability community, another underserved group.204 Former Chairperson

Gilbert Casellas also acknowledged that EEOC

had been told that minorities with the disabilities have a harder time learning about the ADA.

He said the National Enforcement Plan is trying

to deal with this by addressing intersection

cases, those involving discrimination based on

age, race, sex, etc., in addition to disability.205

Disability is disproportionately higher in the

minority community. For example, the presence

and prevalence of disability for African Americans is almost twice as high as it is for the general population. Minorities who are disabled are

not only faced with issues of discrimination; they

also must deal with issues that relate to low socioeconomic status. Minorities tend to live in the

least accessible areas of their communities, thus

201 Mary Reed, Manager, Legislative Affairs (House Spokesperson), National Federation of Independent Business, telephone interview, Jan. 14, 1998.

202 Rosa Viramontes, Enforcement Manager, Los Angeles

District Office, EEOC, telephone interview, Apr. 10, 1998.

203 Julie Bowman, Enforcement Supervisor, Chicago District

Office, EEOC, telephone interview, Apr. 8, 1998.

2" Thornton interview.

2" Gilbert Case llas, Chairperson, EEOC, interview in Washington, DC, Nov. 25, 1997.

receiving lower levels of health, rehabilitation,

and educational services.206

In the quarterly meeting of the National

Council on Disability in November 1997, Council

Member Hughey Walker voiced concerns about

outreach to minorities with disabilities because

many are unaware of the protections available to

them under the ADA. Council Member Ela Yazzie-King raised similar concerns about obstacles

faced by individuals with disabilities who speak

English as a second language.207 Alternatively, a

staff person at the President's Committee on

Employment of People with Disabilities said that

both EEOC and DOJ had made a good effort to

reach out to minority group members. However,

he said there is always room for improvement in

this area.208

The director of the Research and Training

Center at Howard University recently said that

the Federal outreach effort had been fairly effective, but she indicated greater familiarity with

what DOJ has done than with what EEOC has

done. She also said there was still a need to pre- pare informational and educational materials

that target people with low reading skills.209 The

executive director of the National Center for Latinos with Disabilities stated that she had not

seen any technical assistance or informational

materials on the ADA from either EEOC or DOJ.

She said that it would be very helpful to have

publications in Sp anish.210

Because of the mandate to reach underserved

groups, the field offices are required as part of the

outreach component of their LEP to describe how

they plan to reach these groups. Some district offices are more specific than others. For example,

206 USCCR, Briefing on the Americans with Disabilities Act,

May 6, 1994, p. 17.

2" National Council on Disability, Quarterly Meeting, Nov.

6, 1997.

208 Claudie Grant, Employment Advisor, Office of Plans,

Projects and Services, President's Committee on Employ.

ment of People with Disabilities, telephone interview, Nov.

19-20, 1997. 209 Sylvia Walker, Director, Research and Training Center

for Access to Rehabilitation and Economic Opportunity,

Howard University and Vice Chairperson, President's

Committee on Employment of People with Disabilities, telephone interview, Nov. 19, 1997.

210 Maria Elena Rodriguez-Sullivan, Executive Director,

National Center for Latinos with Disabilities, telephone

interview, Nov. 25, 1997.

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the Charlotte District Office has taken a

"grassroots" approach to reaching out to minority

and other underserved groups through contacts

with such groups as the NAACP, human relations

commissions, and veterans' groups. The office has

also developed contacts with state-affiliated

groups that then contact the district office when

they need information. In the Charlotte District

Office, the Hispanic community is the primary

underserved group which is targeted for technical

assistance. Because this ethnic group is composed

mostly of transient migrant workers, they are difficult to contact, track and educate on a consistent

basis. The office attempts to assist these individuals by working with various departments of labor,

unions, and school systems.211

Future of EEOC's Outreach, Education, and

Technical Assistance Program

A staff official of the National Council on Disability criticized EEOC's technical assistance

because it has primarily benefited employers,

who are most able to pay the cost of reimburse- ment to the revolving fund for TAPS programs.212 This was acknowledged by several

EEOC officials. However, most provided assurances that the TAPS programs, while designed

primarily to reach employers on their ADA responsibilities, were not at the expense of the

"free" training and technical assistance that

EEOC has been doing on ADA.213

The Director of Field Coordination Programs,

acknowledged that the training and technical

211 Billy Sanders, Technical Assistance Coordinator, Charlotte District Office, EEOC, telephone interview, Apr. 13,

1998..Mr. Sanders said that interacting with the Hispanic

communities in the district's target cities (Rocky Mount, NC,

and Greenville, Charleston, Florence, Beaufort, and Waterboro, SC), who seem to be victims of "indigenous slavery," is

a somewhat depressing task. As sharecroppers, the Hispanic

individuals in these communities are charged a fee for

renting houses; and they buy their "bosses" supplies from

the store. At the end of the week, they can owe their bosses

more money than they are paid. Consequently, they are

never able to save money. Mr. Sanders has contacted health

departments to inspect some of the communities where migrant workers reside. Mr. Sanders has a good relationship

with the Department of Labor: According to Mr. Sanders,

although he is somewhat limited in jurisdiction, he does

monitor geographical areas where people are putting in long

hours. 212 Imparato interview. 213 White interview.

assistance programs that are funded by the revolving fund are for groups that have the resources to pay. But the money that is received

for the TAPS programs is used to reimburse

EEOC for staff time. These funds in turn, she

said, are used to provide "free" or "no fee" outreach training to groups who cannot afford to

pay.214 Staff expects to have a better coordinated

and planned outreach and technical assistance

effort in the future. One focus will be the development of technical assistance products, for example, educational videos with leader and participant guides.215

With funding provided by the revolving fund,

the goal will be to put one outreach coordinator

in each field office who will not only conduct revolving fund programs but will enable other staff

members to do more outreach without charging

fees. EEOC also wants to experiment with new

approaches to providing technical assistance.

Each field office has a stakeholder council which

it consults, and some send out newsletters to

their stakeholders. The goal is to have expanded

communications in the field.216 EEOC will use

various communications strategies to reach underserved communities in its outreach programs.

As long as there is a requirement that outreach

is a component of each LEP, on which field staff

is held accountable,217 there is an assurance that

EEOC's commitment to technical assistance will

continue. Several EEOC staff members also

dicated that with additional resources the

agency could do an even more effective job of

carrying out its outreach, education and technical assistance responsibilities.218 The anticipated

increase in funding in fiscal year 1999 and the

use of funds generated by EEOC's revolving

fund may ultimately provide the agency with the

resources to expand its outreach, education, and

technical assistance programs to all segments of

society on all the laws EEOC enforces, including

the Americans with Disabilities Act.

214 Choate interview. 215 Ibid. 216 Ibid. See EEOC Comments, July 17, 1998, p. 6. 217 Vargyas interview. 218 White interview.

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8 Findings and Recommendations

Since acquiring responsibility for enforcing

the Americans, with Disabilities Act of 1990

(ADA), EEOC has faced enormous challenges.

With responsibility for the ADA and with another major responsibility EEOC acquired at the

same time, enforcement of the Civil Rights Act of

1991, came a 38 percent increase in the number

of charges of discrimination filed with the

agency. The increased workload was not

matched by a concomitant increase in budget,

resources, or staff. In real dollars, EEOC's fiscal

year 1997 budget was 8 percent below its appropriation level for 1989, several years before the

ADA went into effect. EEOC also lost staff. Its

fisCal year 1997 staffing level of 2,586 FTEs was

well below its staff level of approximately 2,800

in the years before the agency acquired respon- sibility for the ADA. Not surprisingly, EEOC's

increased workload in the face of its declining

resources resulted in a large increase in EEOC's

backlog. EEOC's pending inventory of charges

more than 180 days old more than doubled, from

46,000 charges to 98,000 charges, between fiscal

years 1991 and 1995.

Over the past several years, EEOC has taken

a number of creative and innovative steps to attempt to deal with the reality it faces: an overwhelming workload with insufficient resources.

Under the leadership of former Chairman Gilbert Case llas, the agency created several Commissioner-led task forces to conduct a comprehensive review of EEOC's enforcement activities

and to make recommendations that would

"articulate the vision and chart the course that

will take [EEOC] into the 21st century." A principal outcome of these task forces was the implementation, in 1995, of Priority Charge Handling Procedures, which attempted to focus EEOC's limited resources on the most

"meritorious" charges. EEOC also began experimenting with using alternative dispute resolution techniques, in particular, mediation, to encourage charging parties and respondents to

come to mutually beneficial agreements and to

reduce the number of charges that needed investigation. EEOC increased its emphasis on outreach and education and technical assistance to

encourage voluntary compliance with employment discrimination statutes. Finally, EEOC

attempted to focus its enforcement efforts

through the development of its National Enforcement Plan, along with Local Enforcement

Plans for each district office.

These innovations have had mixed success in

improving EEOC's effectiveness as a civil rights

enforcement agency. They undoubtedly can be

credited with a major reduction in the agency's

backlog by fiscal year 1996. Civil rights advocacy

groups and employers alike generally have reacted favorably to the changes. However,

EEOC's abandonment of its commitment to do a

full investigation of all charges has led to fears

among some that individuals with meritorious

charges of discrimination may find their charges

dismissed without a proper review by EEOC

staff and hence be left to fight discrimination on

their own. EEOC also has been criticized for expending resources on systemic cases or cases

that develop the law that some would argue

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255
could be spent better on investigating and conciliating individual charges of discrimination.

During the same time that EEOC has been

implementing major changes in its approach to

its work, it has developed a highly credible ADA

implementation, compliance, and enforcement

program. The agency published detailed ADA

regulations within 1 year of the law's enactment;

provided comprehensive initial training on the

statute for all of its staff; set about developing a

series of policy documents laying out and explaining its interpretation of controversial or

unsettled aspects of the law; provided extensive

outreach and education and technical assistance

on the statute; and engaged in ADA litigation to

protect the rights of individuals with disabilities

and to develop the law. By most accounts,

EEOC's efforts in implementing the ADA far outstripped its previous efforts on other employment discrimination statutes. It is clear that

implementing the ADA has been a major focus of

the agency since the law was passed.

EEOC has been particularly effective in the

ADA policy guidance it has published. Generally,

these guidance documents provided thoughtful

and well-researched interpretations of the statute on issues that were controversial or unsettled. In developing the guidance documents,

EEOC was very faithful in interpreting the ADA

consistent with congressional intent. EEOC's

policy guidance has been very influential in development of the law, but on some issues, some

courts have issued opinions at odds with EEOC's

policy guidance. Where Federal courts have done

so, they have interpreted the ADA very narrowly

and restricted its coverage in ways that are at

odds with congressional intent. Many Federal

judges appear either to misunderstand the ADA

or be hostile to it, and EEOC has been somewhat

limited in its ability to influence them. However,

on issues where some courts have disregarded

EEOC's policy guidance, the agency has continued to make concerted efforts to develop the law

consistent with congressional intent through its

litigation activities. In particular, EEOC has effectively and efficiently used its authority to file

amicus curiae briefs, to intervene in lawsuits,

and to file systemic lawsuits to promote correct

interpretations of the ADA, consistent with congressional intent.

In light of the resource constraints it faces,

EEOC's ADA implementation, compliance, and

enforcement efforts have been reasonably effective in clarifying the meaning of the ADA and

developing the law, in protecting the rights of

individuals charging discrimination on the basis

of disability, and ensuring that persons with disabilities, employers, and the general public are

informed of their rights and responsibilities under the law. Through this study, the U.S. Commission on Civil Rights has identified both areas

of strength and areas that can be improved. The

findings and recommendations below are intended to assist EEOC in its efforts to enhance

its effectiveness in carrying out its mission to

enforce the ADA.

General Findings and Recommendations

Cost of Compliance with the ADA

Finding: Many critics of the ADA argue that

it imposes large costs on employers, both

through the expenses associated with providing

reasonable accommodations to individuals with

disabilities and through the expense of defending against frivolous lawsuits. Cost of compliance is not an appropriate argument against

remedying the denial of civil rights.

Recommendation: The National Institute

on Disability and Rehabilitation Research might

undertake a comprehensive report on the costs

and the benefits of the ADA in order to provide

additional information on the subject.

Media Coverage of the ADA and Disability

Finding: For the ADA to achieve its primary

goal of equal opportunity for individuals with disabilities, it needs to be understood by the American public as a truly important civil rights statute

that provides essential civil rights to individuals

with disabilities. However, in general, the national media have provided misleading and inaccurate coverage of the ADA and related disability

issues, with the result that many Americans not

only do not understand the ADA, but also are hostile to it. One particularly egregious example of

the poor quality of media coverage of ADA issues

was the grossly inaccurate coverage of EEOC's

guidance on psychiatric disabilities, which suggested that EEOC required employers to hire and

retain workers who posed a safety threat to their

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fellow employees, where this plainly was not the

case. The poor quality of coverage has led tb a

gross misunderstanding of the ADA on the part of

the general public, as well as to increased hostility

to individuals with disabilities. As one disability

advocate has told the Commission, "the' public

relations battle is being lost" and the ADA is being viewed as a source of frivolous lawsuits and

not as an important means of guaranteeing the

rights of the disabled.'

Recommendation: Because the ADA never

truly will become an effective civil rights statute

if it continues to be misunderstood and viewed

negatively by the American public, Federal

agencies charged with enforcing the ADA, espe- cially EEOC and the U.S. Department of Justice,

along with other Federal agencies charged with

protecting the interests of individuals with disabilities, particularly the National Council on

Disability and the President's Committee on

Employment of People with Disabilities, should

work together to promote greater understanding

of and support for the ADA. These agencies should mount a national public relations campaign for the ADA. Furthermore, they should

make concerted efforts to ensure that journalists and other media professionals are well informed

about the ADA and understand the need for accurate and balanced coverage of the statute and

other disability issues.

Judicial ADA Enterpretations

Enconsistent with EEOC Guidance

Finding: Some Federal courts have issued

decisions restricting the coverage of the ADA.

These decisions often have conflicted with congressional intent as expressed in the statute's

legislative history. These decisions also have

generally interpreted the language of the statute

more narrowly than EEOC. Many disability

rights advocates have contended that these

courts have gone far toward denying civil rights

protections to many individuals with disabilities

whom Congress, in drafting the ADA, clearly

desired to protect. Unless or until the U.S. Supreme Court resolves these differences between

judicial and EEOC interpretations by ruling on

specific ADA-related issues, or Congress amends

the statute or its regulations to clarify its intent,

EEOC and some courts in the Federal judiciary,

particularly Federal judges who issue decisions

contrary to the ADA's legislative history, will

continue to develop the law along two separate,

contradictory lines. Because these differences in

interpretation relate to fundamental aspects of

the statute, such as whether mitigating measures should be considered in determining the

presence of a disability and whether some impairments are "inherently" disabling, they have

created serious concerns about the purposes of

the statute and its ability to provide civil rights

protections for individuals with disabilities.2

Recommendation: For all Federal judges to

better understand and more carefully consider

EEOC's legal interpretations and Congress' legislative intent in creating the ADA, the Federal

Judicial Center, in partnership with EEOC,

should take steps to ensure that all Federal

judges are provided comprehensive training on

the ADA. Specifically, EEOC should work with

the Federal Judicial Center Judicial Education

Division to develop curricula for training and

workshops for Federal judges on ADA law. This

training should be conducted by experts in the

civil rights and disability advocacy field. EEOC

should offer its expertise' on the ADA, including

attorneys from EEOC's Office of Legal Counsel,

in speaking before Federal judges and in pro- viding them with written materials to accompany training sessions. This training should address the intent and purpose of the ADA, as well

as particularly complex areas of the law. To develop and coordinate this training, EEOC should

enter into a partnership with the Federal Judicial Center based on a memorandum of understanding between the two agencies that would

specify EEOC's role in the development of

training projects relating to ADA. EEOC should

ensure through this partnership that its officials

have frequent opportunity to address new as

well as seasoned Federal judges on ADA law.

The ADA and Disability Policy

Finding: Although the ADA often is thought

of as a culmination of a long line of statutes 'extending civil rights protections to different

groups of Americans, it also needs to be understood as a major new component of the Nation's

2 See chap. 1, pp. 7-8; chap. 4, pp. 76, 81-83, 91 -99; chap. 6, ' See chap. 1, pp. 6-7; chap. 5, p. 121. pp. 125-26.

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broader policy towards people with disabilities.

With the exception of section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act is the only major component of the set of

programs that constitute America's disability

policy that is premised on a recognition that

people with disabilities have a right and, indeed,

a responsibility, to work. The Americans with

Disabilities Act sets a goal of assuring "equality

of opportunity, full participation, independent

living, and economic self-sufficiency" for individuals with disabilities.3 Most of the rest of the

Nation's disability policies are premised on what

has been termed a "medical" or "charity" model

of disability. Under this model, people with disabilities are injured, or limited, and deserve assistance in the form of health care, vocational

rehabilitation, and, when they cannot work, income supports. Based on the medical model, over

the years, the United States has put in place a

variety of supports for people with disabilities,

including social security disability insurance,

supplemental security income, State workers'

compensation programs, and disability coverage

for veterans.

Many of these disability benefit programs

have created powerful work disincentives. For

instance, the loss of health care coverage from

medicare or medicaid that ensues when an individual with a disability finds gainful employment is .a major impediment preventing many

individuals with disabilities from seeking work.

As a result of these work disincentives, many

individuals with disabilities are trapped in the

disability benefit system. Without a major reform of the national disability benefit programs

to remove their work disincentives, the ADA will

never achieve its goals of "equality of opportunity, full participation, independent living, and

economic self-sufficiency" for individuals with

disabilities.

In addition to the work disincentives, individuals with disabilities are often prevented

from working because of lack of adequate training for available jobs, inaccessible transportation, and the need for personal assistance supports. Government provision of these needed

supports could allow many individuals with disabilities to enter the work force and make sub3 42 U.S.C. § 12101 (1994).

stantial contributions to the economy, while

saving at least some of the money taxpayers currently spend on the disability benefits system.4 Recommendation: Congress and the President should work together to enact legislation

reforming national disability benefit programs to

remove disincentives to working and provide

needed supports to enable individuals with disabilities to take advantage of employment opportunities. A useful first step in this direction is for

Congress to act on legislation currently pending

in the U.S. House of Representatives (the Ticket

to Work and Self Sufficiency Act of 1998) and the

U.S. Senate (The Work Incentive Improvement

Act of 1998). Congress should speedily draft a

workable bill and forward it to the President for

his signature. Furthermore, the National Task

Force on Employment of People with Disabilities

created by Executive Order on March 13, 1998,

should move aggressively to fulfill its mission "to

create a coordinated and aggressive national

policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population."

The task force should make concrete recommendations to the President and Congress, and Congress and the President should act on those recommendations and implement other reforms as

needed to ensure that individuals with disabilities are able to make the ADA's goals of

"equality of opportunity, full participation, independent living, and economic self-sufficiency"

reality. The task force should ensure that, as it

works in this direction, it seeks and incorporates

input from the disability community, employers,

disability experts, and the general public, as well

as Federal agencies that are not represented on

the task force.

Chapter 3. Organization and Administration of the U.S. Equal Employment Opportunity Commission

EEOC's Structural Organization

Finding: EEOC's structural organization generally is conducive to effective implementation of

the ADA and other employment discrimination

statutes. By having a specialized unit, the ADA

Policy Division in its Office of Legal Counsel devoted to ADA, EEOC has in place a mechanism

4 See chap. 2, pp. 31-37.

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for ensuring effective ADA regulatory and policy

development and a nationwide outreach, education, and technical assistance program for the

ADA, and that EEOC has a cadre of ADA experts

who can provide training and technical assistance

to its investigators and attorneys.

In addition, EEOC's division of legal responsibilities into two office, the Office of General

Counsel, for litigation, and the Office of Legal

Counsel, for policy development and representing EEOC, is a sound division of labor that prevents conflicts of interest within a given legal

office. Where necessary for consistency in

EEOC's policy positions and other matters, staff

from the two offices appear to interact and communicate effectively with each other.5

Recommendation: The Commission commends EEOC's designation of a particular office

to conduct litigation and another to concentrate

on policy development. The Commission recommends that EEOC's structural organization be

used as a model for other Federal agencies, particularly civil rights enforcement agencies.

Systemic Enforcement Plan

Finding: In their joint report published in

March 1998, the Priority Charge Handling Task

Force and the Litigation Task Force recommended that the Systemic Enforcement Services

unit develop a Systemic Enforcement Plan. Such

a plan would explain how the unit plans to supplement the systemic work done by the field offices. According to the report, the plan should set

expected results, and the unit should be responsible for achieving these results.6

Recommendation: EEOC should implement

the recommendation of the joint report for a Systemic Enforcement Plan as soon as possible.

Such a plan could set priorities for the Systemic

Enforcement Services unit and provide for specifically targeted issue areas. The plan should

have built-in flexibility to ensure that when new

issues emerge they can become a plan priority.

Commissioner Task Forces

Finding: Under the leadership of former

Chairman Gilbert Case llas, EEOC has instituted

the constructive practice of having Commis6 See generally chap. 3, pp. 38-51.

6 See chap. 3, p. 43.

sioner-led task forces evaluate strategies, polices, procedures, and practices and develop recommendations for improving the agency's operations. These task forces have produced thoughtful reports that were acted upon and resulted in

substantial improvements in the way EEOC

conducts its business. However, to date, the task

forces have not focused sufficiently on EEOC's

enforcement of the ADA. For instance, the recent

task force report on "Best" Equal Employment

Opportunity Policies, Programs, and Practices

provides very little information on employment

practices that promote the purposes of the ADA.'

Recommendation: The Commission commends EEOC for its use of Commissioner-led

task forces to evaluate its operations and make

recommendations for improvement. However,

EEOC should create a Commissioner-led task

force to evaluate its enforcement of the ADA.

This task force should also work to provide information to employers on "best" ADA practices,

or practices that advance the purpose of the

ADA. In particular, the task force should emphasize that employers need to take a proactive

approach to compliance with the ADA and not

merely respond on an ad hoc basis to the needs

of individual employees with disabilities. The

task force should emphasize that compliance

with the ADA is an interactive process, and employers are responsible for anticipating and responding to the needs of employees with disabilities and developing a workplace that provides

true equal employment opportunity for individuals with disabilities.

Local Enforcement Plans

Finding: EEOC's National Enforcement Plan

requires each district office to produce a local

enforcement plan (LEP) that identifies underserved populations, geographic areas, and employment practices important to their districts;

identifies and prioritizes local issues under the

National Enforcement Plan, and describes how

the office intends to manage its charge inventory. The first generation of LEPs, developed

and implemented in 1996-1997, clearly have

failed to achieve their intended purpose of being

valuable strategic, policy, and management tools

for EEOC. The district offices were not given

7 See chap. 3, pp. 51-53.

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much guidance on how to develop their LEPs,

and as a result, there is little uniformity in what

was produced. Furthermore, in general, the district offices' efforts to seek and incorporate local

stakeholders' input as they developed their plans

were inadequate. Although some district offices

made a serious effort to include stakeholders,

others relied primarily on staff input. Finally,

the LEPs generally did not include clearly articulated and achievable goals and objectives

and thus cannot be used effectively as management tools. The 1998 joint report of EEOC's Priority Charge Handling Task Force and its Litigation Task Force recognizes the shortcomings of

the first generation of LEPs and made a number

of important recommendations for making the

LEPs more effective strategic, policy, and management tools.8 Recommendation: EEOC should adopt and

implement the recommendations of the joint report of the Priority Charge Handling Task Force

and the Litigation Task Force with respect to the

local enforcement plans to ensure that the plans

become the truly valuable strategic, policy, and management tools they are intended to be,

rather than mere pieces of paper thrown together to meet a requirement. In particular, the

Office of Field Programs and the Office of General Counsel should work together to provide

detailed guidance on what is expected in a LEP,

including providing a uniform format. The LEPs

should be designed to include clearly articulated

and measurable goals and objectives, so that

they can represent a type of "contract" between

the district offices and EEOC headquarters.

Measurable goals and objectives also will permit

EEOC headquarters and district offices to be

evaluated on their success in achieving the goals

and objectives. Finally, the district offices should

make an enhanced and substantial effort to consult with stakeholders in the development of

their plans, and the LEPs should clearly reflect

that input. District offices should use the LEPs

as a way to develop an ongoing partnership with

stakeholders to ensure that EEOC is responsive

to local needs and priorities.

Finding: EEOC's National Enforcement Plan

encourages "joint investigative and enforcement

8 See chap. 3, pp. 53-56.

activities" between field offices and the fair employment practices agencies (FEPAs). It also encourages district offices to solicit suggestions

from the FEPAs in developing their Local Enforcement Plans. Currently, there is little coordination between FEPAs and EEOC field offices

on investigations. Furthermore, although FEPA

directors attend an annual meeting, usually at

EEOC headquarters, which provides training on

different areas, the joint report of the Priority

Charge Handling Task Force and the Litigation

Task Force stated that this training was not. sufficient to meet the needs of all FEPA staff.9

Recommendation: In keeping with recommendations made in EEOC's National Enforcement Plan, EEOC should develop more coordination between FEPAs and EEOC's field offices with

respect to investigations. Also, EEOC should ensure that training is sufficient to meet the needs

of all FEPA staff, not just FEPA directors.

Strategic Plan

Finding: EEOC's 1997-2002 Strategic Plan,

developed in accordance with the mandate of the

Government Performance and Resolution Act,

does not adequately fulfill the requirements of

the act. Although it effectively recounts EEOC's

recent initiatives and accomplishments and

identifies barriers to the agency's effectiveness,

especially the continuing lack of sufficient resources, the plan does not establish clear performance objectives and measures and provides

little detail as to how EEOC intends to accomplish its goals and objectives. The plan points to

the difficulty in measuring the extent of equal

employment opportunity, but does not make a

serious attempt to grapple with the problem of

how to establish meaningful and measurable

goals and objectives.19

Recommendation: EEOC should enhance its

Strategic Plan by developing a companion document with clear performance objectives and

measures. In doing so, EEOC should use the best

measures available for determining outcomes.

Such a document could be the foundation for the

annual performance plans that also are required

by the Government Performance and Results Act.

9 See chap 3, pp. 52-53. 10 See chap. 3, pp. 56-59.

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Budgetary and Staff Resources

Finding: EEOC clearly is an agency that is

straining to accomplish its mandate in the face of

insufficient budgetary and staff resources. Despite

several creative efforts to make the most of its

available resources, EEOC cannot truly accomplish its mission of promoting equal employment

opportunity without an increased budget appropriation from Congress. However, the agency has

not conducted any formal internal studies, nor

has it contracted with an outside entity, to assess

or prioritize its budgetary and staffing needs in

light of its workload and its Strategic Plan and

National Enforcement Plan. Without such a

study, EEOC cannot make a convincing case for

why it should be given more resources and explain clearly what it would do with additional

funds if it receives them. At the President's request, Congress is considering increasing EEOC's

budget appropriation substantially. At the same

time, Congress is deciding where any additional

funding should go. Without a serious budgetary

study by EEOC, Congress likely will make these

appropriation decisions based on political factors

and insufficient inform ation.11

Recommendation: EEOC should do a formal study of its budgetary and staffing needs in

light of its workload, Strategic Plan, and National Enforcement Plan and develop a detailed

plan for what it would do with additional budgetary and staffing resources. The plan should

include accountability factors to ensure that any

additional resources are used appropriately, effectively, and efficiently. Congress should consider such a study and plan seriously and provide increased appropriations to EEOC to permit

the agency to fulfill its statutory mandate.

Staff Training on ADA

Finding: EEOC provided comprehensive initial training on the ADA to all of its staff, and

both EEOC headquarters and field offices have

pursued an active staff training agenda on the

ADA since the initial training. Some in the disability advocacy community have voiced concerns

that EEOC field office staff do not have sufficient

training on the ADA to handle ADA charges appropriately, but most EEOC staff interviewed by

the Commission appear to be satisfied that they

have received adequate training on the ADA.

" See chap. 3, pp. 59-62.

EEOC's ADA training manual is excellent and

comprehensive. Given its limited resources,

EEOC's level of commitment to providing ADA

training to its staff has been exceptional, and the

training appears, to have been superior to that

provided on other employment discrimination

statutes EEOC enforces. Nevertheless, because

ADA law continues to develop, ongoing staff

training on the ADA is needed. EEOC has no

budget for staff training. A recent EEOC initiative

to develop training partnerships with the American Bar Association to provide free training to

field office staff on specific issues shows promise

as a way of ensuring that staff are provided necessary training on the ADA and other employment discriminationlaws and issues.12

Recommendation: The Commission commends EEOC for the quality training it has provided its staff on the ADA and, in particular, the

excellent ADA training manual it has developed.

EEOC should continue to provide ongoing

training to staff on the ADA, as well as on other

employment discrimination statutes and issues.

EEOC should make maximum possible use of its

training partnership with the American Bar Association to ensure that staff are trained on

emerging ADA issues. However, such training

cannot take the place of systematic training,

which can only be accomplished if EEOC obtains

congressional funding for staff training. In its

budget requests to the Office of Management

and Budget and in testimony before Congress,

EEOC should identify the ongoing need for staff

training on the ADA and other employment discrimination laws and issues, including civil

rights investigations. Congress should provide

specific funds targeted to training EEOC's staff.

Finding: Although EEOC investigators have

received considerable training on the ADA, the

law is complex and may present them with particular challenges when handling charges of discrimination based on disability. Furthermore,

because it is new, the ADA is a developing law,

and issues can arise in a particular ADA case

that were not covered in the ADA training.13

Recommendation: EEOC should contract

with an independent outside auditor to review

12 See chap. 3, pp. 62-65.

13 See chap. 3, pp. 62-63.

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the case files for all ADA investigations to

evaluate their quality and ensure that investigators used the proper analyses in their investigation. Where problems are uncovered based on

the case file reviews, EEOC should develop and

provide targeted training to ensure that all of its

investigators have the knowledge to do quality

ADA investigations. If the reviews uncover evidence that some investigations have been done

improperly or have not been sufficiently thorough, these cases should be reopened and reinvestigated.

Chapter 4. Assessment of EEOC's Rulemaking and Policy Development

EEOC's Title I Rulemaking and Policy

Development

Finding: EEOC has actively pursued ADA

rulemaking and policy development. EEOC released a comprehensive title I regulation a year

after the law was enacted and since then has

issued a series of policy guidance documents on

ADA issues. The creation of an ADA Policy Division in the Office of Legal Counsel has brought

together in one office the legal expertise on the

ADA necessary to develop sound policy. In addition, EEOC has developed and furthered its policy positions through the litigation activities carried out by the Office of Legal Counsel. The interactions and communication between staff in

the Offices of Legal Counsel and of General

Counsel on ADA issues are positive and have

permitted EEOC to develop and pursue a unified

and sound ADA policy agenda. Furthermore, the

recent creation of a policy development committee should enhance EEOC's effectiveness in developing and publishing sound ADA policy.

However, EEOC does not adequately include

views of stakeholders in the policy development

process. Some disability advocates have criticized

EEOC for not having a formal mechanism in

place for advocacy groups to raise issues or concerns with EEOC on specific issues before issuance of EEOC policy guidance. Although EEOC

follows the formal notice and comment procedures

for issuing substantive regulations, it has no

similar mechanism in place for interpretive policy

guidance. EEOC has frequent informal interactions with stakeholders, but no formal mechanism

for obtaining stakeholders' participation as it develops particular ADA policies. EEOC "floats"

ideas at meetings and welcomes letters on policy

issues from stakeholders, but it does not solicit

comments on or circulate drafts of proposed policies outside of the agency before they are approved by the Commissioners. As a result, stakeholders have felt left out of EEOC's ADA policy

development process. Both EEOC and its stakeholders could benefit from more formal interaction during the policy development process."

Recommendation: The Commission commends EEOC for the creation of an ADA Policy

Division and the sound ADA policy it has developed. However, EEOC should take steps to increase stakeholders' participation in its policy

development process. It would be impractical for

EEOC to provide for formal review and comment

of its proposed policies and that would likely

slow the policy development process. However,

EEOC should develop a formal mechanism for

obtaining stakeholders' views during its policy

development process. An example of such a

mechanism might be a notice in the Federal Register that EEOC has begun working on a draft of

an enforcement guidance on a specific topic and

invites comments, or that EEOC has finished a

draft of an enforcement guidance document that

is available for review and comment pending

completion of a final version. More generally,

EEOC should create an ADA Policy Advisory

Committee consisting of representatives of disability advocacy groups, disability experts, and

employers to advise the Commission on where

further ADA policy guidance is needed and provide input on what it should say. Members of the

advisory committee should be chosen to represent the wide array of stakeholders' interests,

including people from all regions of the country

and individuals with different kinds of disabilities. This committee should meet regularly, at

least twice a year, with the newly formed staff

policy development committee.

EEOC's Policy and Enforcement

Guidance on Title I of the ADA

Finding: EEOC's guidance on the ADA to

date, both in regulations and policy, has been

exemplary both in implementing Congress' intent to ensure civil rights for people with disabilities and in elucidating and clarifying the

248

14 See chap. 4, pp. 66-77.

262
statute's more ambiguous language, based on

congressional intent as stated in the ADA's legislative history.15 EEOC has published important ADA policy guidance documents in a number of areas that inform the public of its position.

In addition, the legal interpretations that EEOC

advances in its ADA policy guidance play an important role in shaping nearly every aspect of

the agency's ADA implementation and enforcement efforts.16

However, EEOC has not delivered on its

promise, in an early policy guidance on the major provisions of the ADA, that it would develop

several policy documents on "Theories of Discrimination" under the ADA, "Definition of

Qualified Individual with a Disability," and

"Reasonable Accommodation and Undue Hardship." These issues, particularly reasonable accommodation and undue hardship, lie at the center of some of the most heavily disputed debates

that have arisen since the passage of the ADA.

The issues are of extreme importance for employers and people with disabilities alike, in

terms of understanding their rights and responsibilities under title I. EEOC policy guidance on

these topics would help to clarify the agency's

position, develop the law, and improve employers' and employees' understanding.17

Recommendation: EEOC should proceed

expeditiously to develop and publish policy/enforcement guidance on the definition of

qualified individual, reasonable accommodation,

and undue hardship within 6 months from publication of this report. In addition, EEOC should

continue to develop, publish, and disseminate

policy guidance on other key issues that it has

not already addressed. For instance, EEOC

should also issue guidance on health insurance

and disability-based insurance in one comprehensive policy document.

Finding: EEOC typically does not issue enforcement guidance on every unresolved ADA

issue causing conflict among the courts, reserving its enforcement guidance for larger topics of

importance. One reason for this is that EEOC's

Office of General Counsel, in litigation and ami16 See chap. 4, pp. 72-76. 16 See chap. 4, pp. 72-73. 17 See chap. 4, pp. 75-76.

cus activity, advances EEOC's position on these

issues. However, in the past, the Office of Legal

Counsel issued brief, 1-page documents on discrete topics relating to the ADA. For example, on

May 11, 1995, EEOC issued a 1-page "guidance

memorandum" on disability plans under the

ADA. On July 17, 1995 EEOC issued a "policy

statement" on alternative dispute resolution.

These brief documents address specific ADArelated topics without the indepth analysis of the

much longer ADA enforcement guidance documents. The short documents, nonetheless, offer

an effective mechanism for enunciating or clarifying EEOC's position on specific topics or issues, particularly issues in which the courts are

in conflict.18

Recommendation: EEOC should reinstitute

the practice of issuing brief "policy statements"

to offer an official position on ADA issues on

which it chooses not to do enforcement guidance.

Such policy documents could serve to state, reinforce, or elaborate on specific issues, particularly

those on which the courts are in conflict. In addition, these statements could be used to help disseminate EEOC's positions to employers.

Finding: In many of its activities, EEOC addresses issues and topics that may require the

advice of subject-matter experts in social science

or medicine. For instance, in EEOC's enforcement guidance on the ADA and psychiatric disabilities, EEOC attorneys not only drafted a legal discussion and analysis, but also addressed

clinical issues, such as separating mere traits

from a diagnosis of a personality disorder and

determining when traits, such as poor ability to

concentrate or think, become signs of an impairment. Furthermore, EEOC investigators and

attorneys investigating charges of discrimination

or pursuing litigation often need to understand a

charging party's medical condition to determine

whether he or she has a disability under the

ADA. Thus, EEOC staff in the ADA Policy Division and in the field offices could benefit from

consultation with inhouse experts. EEOC has

inhouse experts, including social scientists,

economists, psychologists, and other subject

matter experts, in its Research and Analytic

Services unit in the Office of General Counsel.

18 See chap. 4, p. 75.

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However, the Office of Legal Counsel and its

ADA Policy Division apparently have had little

contact with that office. Furthermore, despite

evident need, EEOC does not have inhouse

medical experts in the Research and Analytic

Services unit or any other.unit.19

Recommendation: EEOC should enhance

its use of subject-matter experts in ADA policy

development and case handling. Office of Legal

Counsel staff should use more fully the Research

and Analytic Services expertise in subject matter

fields, particularly during the development of

policy guidance. At a minimum, if staff in the

Research and Analytic Services have expertise

in an area in which the ADA Policy Division is

preparing guidance, then the Office of Legal Counsel should have such staff review the

document for accuracy. Furthermore, EEOC

should consider whether hiring an inhouse

medical expert would be beneficial to its staff

doing ADA investigations and litigation.

Defenses

Finding: Although an understanding of the

concepts of "job related" and "business necessity"

is crucial to any case in which the employer is

relying on qualification standards as a defense,

EEOC's treatment of these concepts has been

limited to providing definitions of the terms in

its title I regulations and the appendix to its

regulations. These definitions are not always

clear. For example, EEOC's regulations and

their appendix do not provide a simple, direct

discussion of the meaning of business necessity.

The interpretive guidance/appendix states that

"[s]election criteria that exclude, or tend to exclude, an individual with a disability or a class of

individuals with disabilities because of their disability but do not concern an essential function

of the job would not be consistent with business

necessity." This explains, in a somewhat convoluted way, what business necessity is not but not

what it is. A definition of both business necessity

and job relatedness, framed in simpler, more

direct, language can be found in the ADA legislative history. The House Committee on Education and Labor report states:

19 See chap. 4, p. 75.

The interrelationship of these requirements in the

selection procedure is as follows: If a person with a

disability applies for a job and meets all selection criteria except one that he or she cannot meet because of

a disability, the criterion must concern an essential,

non-marginal aspect of the job, and be carefully tailored to measure the person's actual ability to do this

essential function of the job. If the criterion meets

this test, it is nondiscriminatory on its face and it is

otherwise lawful under the legislation. However, the

criterion may not be used to exclude an applicant

with a disability if the criterion can be satisfied by the

applicant with a reasonable accommodation. A reasonable accommodation may entail adopting an alternative, less discriminatory criterion.20

Recommendation: EEOC should include a

discussion and analysis of the meaning of "job

related" and "business necessity" in its future

policy guidance on "qualified individual with a

disability" and reasonable accommodation., This

discussion should build on EEOC's previous

guidance in the appendix to its title I regulations, as well as the definition in the House

Committee on Education and Labor report.

EEOC Policy Guidance: Defining Disability

Finding: The ADA statute provides a broad

framework for ensuring equal employment opportunity and nondiscrimination for people with

disabilities in employment. However, the broadness of its language has created room for controversy among policy makers and in the Federal

courts as to the definition of such keys terms as

"disability," and "reasonable accommodation."

EEOC has sought to clarify the meaning of key

terms in title I and its implementing regulations,

such as "substantial limitation" and "major life

activity." In keeping with congressional intent,

EEOC has interpreted these terms broadly.

However, some courts have disagreed with

EEOC's interpretation and have applied a more

narrow reading.21

Recommendation: EEOC should continue a

dialogue with the private bar and the Federal

judiciary to establish understanding of and create consensus on the meaning of key terms contained in the ADA's definition of "disability" and

20 H.R. REP. NO. 101-485(11), at 71 (1990) reprinted in 1990

U.S.C.C.A.N. 303,353-54. See chap. 4, pp. 79-80.

21 See chap. 4, pp. 81-83.

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their proper applicability in a title I analysis.

EEOC should adopt a policy of pursuing regulatory additions in areas where the courts have

consistently opposed the EEOC's position on key

ADA issues, such as mitigating measures, even

though EEOC has the statute's legislative history behind its position.

Finding: Ever since the passage of the ADA,

there have been fears that the statute would

lead to numerous frivolous lawsuits by individuals with mild or imaginary impairments. However, the ADA is a carefully crafted document

that relies on section 504 of the Rehabilitation

Act for its primary substantive requirements.

These requirements are rigorous and include the

need to show a substantial limitation to a major

life activity. Whether an impairment is substantial requires an evaluation of the nature, severity, and potential for permanence. Thus, it is

very unlikely that a claimant with a mild or

imaginary impairment will survive EEOC priority charge processing system or prevail in court.

If accurate information on the ADA's requirements were readily available to potential claimants whose claims are meritless, as well as to

their employers, the number of meritless lawsuits could be minimized. Sithilarly, if employers

were well informed of their obligations under the

statue, the need for individuals with meritorious

cases to file suit to obtain compliance would be

reduced.22

Recommendation: To minimize the costs

associated with meritless or unnecessary ADA

lawsuits, EEOC should work extensively with

human resources, management officials, labor

union representatives, and clinicians, to ensure

that the criteria, standards, and processes for

determining who is .a qualified individual with a

disability and what is a reasonable accommodation are disseminated widely among these professionals and others who need to understand

these concepts to ensure compliance with the

ADA and avoid litigation.

EEOC Policy: Substantial Limitation

Finding: The decisions of the Federal courts

have helped to define the scope of the term

"physical or mental impairment" with respect to

22 See chap. 4, pp. 72,79-80,85.

the length of time needed for a limitation of a

major life activity to be "substantial." In the

courts, claimants bringing cases based on temporary disabilities largely have failed to achieve

protection under the ADA. This is an area where

the majority of courts agree with EEOC. However, it appears that some attorneys continue to

bring meritless ADA cases on behalf of individuals with temporary impairments that waste time

and resources of plaintiffs, defendants, and the

judicial system.23

Recommendation:. EEOC should conduct a

program with the private bar to exchange information and analysis on the ADA that would allow the agency to clarify or explain its policy positions and address other relevant issues. EEOC

should undertake this effort through its current

partnership with the American Bar Association

to train EEOC attorneys and any other partnerships it has already or will develop with the employment law divisions of major attorneys' professional organizations such as the American

Bar Association and the National Bar Association. EEOC should work with these organizations to develop training, workshops, and conferences addressing such themes as "understanding

the ADA" and "avoiding frivolous litigation in

civil rights cases." To minimize the litigation of

meritless cases, EEOC should rely on its technical assistance staff working with its ADA Policy

Division to ensure wide dissemination among

plaintiffs' attorneys of as much written guidance

and technical assistance material as possible

focusing on ADA claims where precedent and

EEOC's guidance make clear that the alleged

"disability" will not meet the ADA standard.

ElEOC Policy: The Major Life Activity Analysis

Finding: Much of the controversy surrounding the ADA has to do with whether particular

activities can be considered "major life activities"

for purposes of the statute. Although EEOC has

given examples of major life activities in its regulations and policy guidance, it has never issued a

comprehensive list of major life activities, nor has

it attempted to define further the term's meaning,

perhaps by developing specific criteria for what

constitutes a major life activity.24

23 See chap. 4, pp. 86-87. 24 See chap. 4, pp. 87-89.

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Recommendation: In light of continued controversy over what a major life activity is, EEOC

should issue some form of guidance, perhaps a

brief 1- or 2-page policy statement that would rely

in part on the ADA's legislative history and the

U.S. Supreme Court's decision in Bragdon. v. Abbott. The policy statement should provide some

specific criteria for determining whether a given

activity constitutes a major life activity.

Finding: In general, a major problem with the

regulatory requirements relating to showing a

substantial limitation in the major life activity of

working is that they are too vague. As a result,

the EEOC's regulatory guidance on doing this

analysis appears to require courts to place an extremely high burden on claimants seeking to

show substantial limitation. EEOC's requirement

for ADA claimants to show substantial limitation

in a "class or broad range of jobs" has resulted in

courts disagreeing on the proper criteria for defining a class or broad range of jobs. Using these

guidelines, what one court would include as a job

in which the claimant must prove that he or she

would be substantially limited, another court may

find irrelevant to its analysis.

For example, one court has found that a pilot

must show that he is limited in nonpilot jobs for

which his training qualifies him, as opposed to

only showing that he or she has a disability that

prevents, or is perceived as preventing him or

her, from performing the job of a pilot. However,

another court found that the relevant class of

jobs was limited to pilot jobs. This court stated

that the relevant class of jobs was "that of all

pilot positions at all airlines." However, even

this characterization presents a disagreement

because another court has found that the relevant class of jobs was limited to pilot jobs only at

the defendant airline. These regulations have

been criticized on several other grounds.25

Recommendation: EEOC should issue a

notice of proposed rulemaking and hold hearings

on better ways to ensure that the regulations do

not create discrimination through the provisions

on a broad range or class of jobs. At a minimum,

EEOC should issue enforcement guidance or a

policy statement addressing the issue that pro25 See chap. 4, pp. 89-91.

vides analysis and offers examples to clarify this

standard.

Finding: The factors for determining

whether a person is substantially limited in the

major life activity of working provided in the

title I regulations can be criticized on two

grounds. First, disabled individuals will, in some

cases, have to expend resources proving that

they are substantially limited by showing evidence for these criteria. Second, the factors include geographical limitations that could undercut protection from discrimination because they

could mean that an individual with a disability

who resides in one geographical region would

have the protection of the statute while an individual in another region may not.26

Recommendation: EEOC should issue a notice of proposed rulemaking and hold hearings on

better ways to ensure that the regulations do not

create discriminationbased on geographical area.

Finding: EEOC's guidance clearly indicates

that in determining whether an individual has a

disability under the ADA, it first must be determined whether the individual has a substantial

limitation to a major life activity other than

working and then, if the individual does not,

whether the individual has a substantial limitation to the major life activity of working. However, there is still misunderstanding or misapplication of the distinction between "major life

activity" in general and the "major life activity of

working." At least one recent court decision

shows faulty reasoning in finding that a plaintiffs impairment was not a disability because it

did not prevent her from doing her job duties,

without first considering whether the plaintiff

had a substantial impairment to any other major

life activity.27

Recommendation: EEOC should issue new

policy guidance, perhaps in the form of a brief

policy statement specifically addressing the

analysis for the major life activity of working.

This guidance should explain that a title I claimant only needs to show a substantial limitation in

the major life activity of working as an alternative

argument, when the claimant cannot show a sub26 See chap. 4, pp. 90-91. 27 See chap. 4, pp. 90-91.

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stantial limitation in any other major life activity.

Since this is a very important distinction that, if

misapplied, could significantly change the outcome of a case, the proper analysis for distinguishing between the concepts of "major life ac:

tivity" in general and "major life activity of working" should be reiterated. In addition, EEOC

should continue to file amicus briefs in cases

where this issue is likely to be present.

EEOC Policy: Mitigating Measures Finding: EEOC has been clear in stating

that mitigating measures should not be considered in determining whether an impairment or a

substantial limitation exists. However, EEOC

has not addressed in policy the courts' concerns

that for all practical purposes the substantial limitation has been removed in a situation

where the disability is controlled through a mitigating measure. EEOC has not explained clearly

what the substantial limitation is for an individual whose disability is controlled through mitigating measures.

To date, EEOC's efforts in strengthening its

position on mitigating measures and working to

ensure that it prevails in the courts have been

somewhat limited. For example, EEOC has not

issued guidance on mitigating measures in the

form of a substantive regulation, which would

carry substantially more legal weight and would

require the courts' deference; nor has EEOC addressed the issue in comprehensive policy guid,

ance that provides a careful, thoroughly developed rationale explaining EEOC's position as it

has done for other discrete topics and issues

such as psychiatric disabilities and the effects of

representations made in disability benefits

claims on ADA claims. EEOC has addressed the

mitigating measures issue in significant ways in

its enforcement guidance on other title I issues

and in its litigation and amicus curiae briefs. In

addition, EEOC has continued its program to

conduct technical assistance and outreach and

education with members of the Federal judiciary

and the private bar explaining EEOC's interpretation of mitigating measures under the first

prong of the ADA's definition of disability.28

Recommendation: Barring a Supreme

Court ruling resolving the mitigating measures

28 See generally chap. 4, pp. 91-99.

issue, at a minimum, EEOC should issue new

policy guidance addressing the issue of mitigating measures and explaining what exactly the

substantial limitation is in situations where

mitigating measures are reducing the effect of

the impairment on the individual's life. In other

words, EEOC should address the arguments

that some courts are making that the mitigating

measure removes the substantial limitation for

all practical purposes.

EEOC should file more amicus briefs in cases

in which mitigating measures have been at issue. EEOC should consider issuing any guidance

on this issue in the form of a substantive regulation that would have greater legal authority,

thereby making it more difficult for the courts to

ignore as they. have ignored EEOC interpretive

and policy guidance on this issue. Finally, EEOC

should hold training or conferences with members of the Federal judiciary and the private bar

on this issue.

EEOC Policy: Per Se Disabilities

Finding: EEOC's policy guidance supports

the idea that some disabilities can be considered

per se disabilities, or inherently substantially

limiting under the ADA. EEOC's guidance states

"[i]n very rare instances, impairments are so severe that there is no doubt that they substantially limit major life activities. In those cases, it

is undisputed that the complainant is an individual with a disability." However, EEOC's position on per se disabilities is not entirely clear.

EEOC's Associate Legal Counsel has said that

EEOC's position is that in determining whether

an individual has a disability under the ADA, it

always should be considered whether the individual meets the criteria laid out in the three

prongs of the ADA's definition of disability. On

the other hand, she said that EEOC acknowledges that there is legislative history suggesting

that asymptomatic HIV is covered as inherently

substantially limiting and that some courts have

found that other impairments, such as insulindependent diabetes, alcoholism, and manic depression are per se disabilities.

Some courts have rejected the language in

EEOC's guidance stating, that "[o]ther impairments, however, such as HIV infection, are inherently substantially limiting," because they

have determined that it "effectively negates the

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statutory requirement that one must be substantially limited in order to be covered," thus creating a category of per se disabilities that arguably do not require the analysis indicated in the

ADA's definition of disability. Thus, EEOC's

guidance relating to per se disabilities under the

first prong appears directly at odds with these

recent court decisions.

To date, EEOC has issued no new policy

guidance or substantive regulation addressing

the apparent contradiction noted by recent court

decisions relating to whether the requirement

for a showing of substantial limitation can be

waived for some disabilities, as EEOC has stated

in its guidance. The Associate Legal Counsel indicated that she does not believe EEOC will address the issue "because there is nothing EEOC

can add to the debate."

The U.S. Supreme Court decided the case of

Bragdon v. Abbott in June 1998, addressing the

question of whether asymptomatic HIV infection

is a disability within the meaning of the ADA.

However, the Court did not address the issue of

whether HIV infection is, as EEOC states in its

guidance, an inherently disabling condition that

does not require any showing of a substantial

limitation of a major life activity to be considered

a disability within the meaning of the ADA.29

Recommendation: EEOC should issue new

policy explaining the implications of the Supreme Court's ruling in Bragdon v. Abbott for

title I claims, clarifying the analysis required

and addressing any language in previous guidance that seems to contract the substantial limitation requirement. In addition, EEOC should

clarify whether it considers impairments, such

as alcoholism or manic depression, as inherently

substantially limiting, as it seems to indicate in

its enforcement guidance on the definition of

disability, and whether there should be an express exception to the substantial limitation requirement for these impairments.

EEOC Policy: The Use of the Third Prong

Finding: A question that has arisen under

the third prong of the ADA's definition of disability is whether a claimant must show that his

or her perceived condition or impairment is one

that substantially limits a major life activity. In

29 See generally chap. 4, pp. 99-101.

the case of disabilities such as asymptomatic

HIV infection, under-control diabetes, and others

that have been the subject of dispute under the

first prong as to whether they actually create

substantial limitations on major life activities,

some courts that have found no disability under

the first prong have taken this finding 'and applied it to the third prong. This analysis assumes

that if the condition is not substantially limiting

on a major life activity in fact, it cannot be perceived as such. However, the ADA's legislative

history makes clear that a person who is rejected

from a job because of the myths, fears, and

stereotypes associated with disabilities is covered under the third prong, whether or not the

employer's perception was shared by others in

the field and whether or not the person's physical

or mental condition would be considered a disability under the first or second part of the definition.

EEOC states in its title I regulations and enforcement guidance that a determination of

whether there is a substantial limitation is relevant for all three prongs. Howeve.r, this position

appears to contradict the House Judiciary Committee report, which clearly states that the first

prong requirement that a disability must be substantially limiting to a major life activity does

not apply to the third prong. As a result, there is

a certain lack of clarity in EEOC's guidance with

respect to the third prong.30

Recommendation: EEOC should issue new

policy guidance addressing both the first and the

third prong with respect to the requirement of a

showing of a substantial limitation of a major

life activity, specifically, whether the third prong

can bypass the substantial limitation requirement by focusing on perception of disability not

actual disability.

EEOC Policy: Reasonable Accommodation

Finding: To date, EEOC has not issued comprehensive policy guidance on the term

"reasonable accommodation." The issue of reasonable accommodation has engendered much

controversy and the question of what constitutes

reasonable accommodation remains unresolved.

EEOC has indicated that it is developing guid3° See chap. 4, pp. 101-03.

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ance on the meaning of "qualified individual"

and "reasonable accommodation."

One area of some disagreement is the question of whether and when reassignment to a vacant position can constitute reasonable accommodation. EEOC's title I regulations and interpretive guidance include reassignment to a vacant position as an example of reasonable accommodation. However, in a recent case, the

Tenth Circuit held that employers are not obligated under the ADA to provide another job as a

reasonable accommodation. The court reasoned

that reassignment can be used as a means of

accommodation only when it would be possible to

accommodate the employee in his or her current

position but doing so would cause the employer

undue hardship. However, where accommodation in the current position is impossible because

the employee cannot perform the essential functions of his or her current job even with reasonable accommodation, the employee is no longer a

qualified individual with a disability within the

meaning of the ADA and is therefore no longer

covered under the statute.

This argument, which directly conflicts with

EEOC's position on the issue, raises several

questions. The first question that arises in the

context of reassignment is whether, to be covered, the individual with a disability needs to be

qualified for the job he or she currently holds or

for the one to which he or she seeks reassignment The second question is whether the qualified individual standard demands that individuals with disabilities be able to perform the essential function of the job with or without reasonable accommodation.31

Recommendation: EEOC should discuss the

issue of whether and when reassignment can constitute reasonable accommodation in its enforcement guidance on reasonable accommodation.

The discussion should address the two questions

above relating to reassignment as a reasonable

accommodation. The guidance also should clarify

EEOC's position on the many other issues relating to reasonable accommodation.

31 See generally chap. 4, pp. 108-12.

Business Necessity and the

Direct Threat Standard

Finding: An issue that has arisen under the

ADA is when an employer's policy that screens

out individuals based on their disabilities is justified as a "business necessity." Some employers

have argued that when such a policy is motivated by safety concerns, it constitutes a

"business necessity" and therefore may be permitted under the ADA. However, EEOC and at

least one court have applied a more rigorous

standard, stating that a safety-based policy that

has an adverse effect on individuals with disabilities only is permitted if it can be shown that

the excluded individuals pose a direct threat to

the health or safety of others in the workplace.

EEOC's position that the more rigorous direct

threat standard should apply appears to be consistent with the spirit and purpose of the ADA.

However, although EEOC has expressed this

position by bringing suit against an employer

whose drug and alcohol policy barred all employees with current or former substance abuse

problems from working in safety-sensitive jobs,

the agency has not issued policy guidance or

technical assistance materials explaining its position to employers.32

Recommendation: EEOC should include a

discussion and analysis of its position on safetybased qualifications as a business necessity in its

enforcement guidance on reasonable accommodation and "qualified individual with a disability." This analysis should explain fully from a

practical perspective, using actual workplace

situations as examples, EEOC's position that all

safety-based qualifications standards must meet

the "direct threat" test to be considered as a

business necessity.

Undue Hardship

Finding: The courts have not always agreed

with EEOC's interpretations of the undue hardship requirement. One notable example is Lori 1.

Vande Zande v. State of Wisconsin,33 where the

Seventh Circuit suggested that the term "undue

hardship" should be evaluated in relation to "the

benefits of the accommodation to the disabled

32 See chap. 4, pp. 112-15.

33 44 F.3d 538; 1995 U.S. App. LEXIS 99; 133 A.L.R. Fed.

713; 3 Am. Disabilities Cas. (BNA) 1636 (7th Cir. 1995).

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worker as well as to the employer's resources."

Thus, in effect, the Seventh Circuit disagrees

with EEOC's position that for an accommodation

to be reasonable it need merely be "effective."

The Vande Zande decision suggests that an employer may apply a cost-benefit analysis to determine whether a particular accommodation is

reasonable. This contradicts EEOC's position

that the cost of an accommodation does not enter

into the analysis of whether or not the accommodation is reasonable.

Another issue relating to reasonable accommodation that remains unresolved is whether a

plaintiff who proves that he or she was perceived

as having a disability, and can perform the essential. functions of the job, is entitled to reasonable

accommodation. EEOC has not issued any guidance on this issue. However, Congress included

within the meaning of disability both actual as

well as perceived disability without making any

distinctions between the two in terms of the

threshold showing of qualifications. It follows that

if a plaintiff with an actual disability is entitled to

reasonable accommodation, then one with a perceived disability may be as well."34

Recommendation: EEOC should clarify its

position on the undue hardship issue, perhaps in

its enforcement guidance on reasonable accommodation and qualified individual with a disability. Given the significant concerns of numerous stakeholders, including businesses, policy

makers, and at least one court, EEOC should

acknowledge the opposing perspectives on the

interplay between "reasonable accommodation"

and "undue hardship." EEOC should demonstrate in policy guidance that its view that the

only criterion for an appropriate reasonable accommodation is that it be "effective" is fully supported in the ADA and its legislative history.

EEOC should issue an interim guidance on these

issues to give all stakeholders, including businesses and disability rights groups, an opportunity to comment.

In addition, in its enforcement guidance on

reasonable accommodation and qualified individual with a disability, EEOC should include a discussion and analysis of its position on whether

plaintiffs who show that their employer perceived

them as disabled are entitled to reasonable ac34 See chap. 4, pp. 115-17.

commodation, and that the undue hardship

analysis does not permit a cost-benefit analysis.

Chapter 5. Assessment of Enforcement Guidance on Title 1

Topics and Issues

Enforcement Guidance on Psychiatric

Disabilities

Finding: EEOC's enforcement guidance on

psychiatric disabilities is unclear in its statement that the DSMIV may be "relevant" to

identifying mental disorders that may qualify for

ADA coverage. To some, use of the term

"relevant" appears to suggest that there may be

other means of identifying mental disorders.

However, the guidance does not specify whether

other means of identifying mental disorders are

acceptable or what those means may be. As the

guidance is written, it appears to suggest that in

some circumstances mental disorders not covered in the DSMIV and thus not diagnosed in

accordance with DSMIV criteria might be disabilities covered under the act. Thus, the guidance is far more vague than both the statute's

legislative history and accepted practices of the

psychiatric community, which regards the DSM

IV as the only means of diagnosing the presence

of mental disorders. Addressing concerns relating to the use of the term "relevant" with regard

to the DSMIV, EEOC staff have explained that

this term must be understood as a legal term

that is used to evaluate evidence. It is not a

judgment as to the weight of the evidence.35

Recommendation: EEOC should clarify in

policy guidance or in a brief policy statement

whether it considers the DSMIV as the only

relevant diagnostic manual for identifying and

diagnosing mental disorders. It may be useful for

EEOC to address in policy the concerns expressed

about use of the term "relevant" with regard to

the DSMIV. EEOC also should explain that the

term must be understood as a legal term that is

used to evaluate evidence and not as a judgment

as to the weight of the evidence.

Finding: EEOC uses a standard of whether

the person has different abilities from "the average person in the general population" for psychiatric disabilities. This is a comparative meas35 See chap. 5, pp. 119-21.

256
urement that creates a large margin of error.

How many hours the average person in the general population sleeps or how much or how

clearly the average person thinks or concentrates are difficult assessments to make and are

probably useless in doing an EEO investigation.

In addition, this generalized standard seems

oddly at variance with Congress' and EEOC's

"individualized" and "case-by-case" approach in

implementing the ADA. It is difficult to see the

utility of this standard since its practical value

seems limited. At a minimum, it seems the

"general population" element might be narrowed

in some way.36

Recommendation: EEOC should seek the

advice of clinicians in the psychiatric field to determine a more precise measurement for assessing whether an individual is "substantially

limited in major life activities," such as sleeping,

thinking, and concentrating. EEOC should issue

a brief policy statement further defining the

means by which the "substantial limitation" determination can be made and explaining

whether the "average person" standard should

be applied literally or whether it is intended as

an approximation of some kind.

Finding: EEOC's enforcement guidance on

psychiatric disabilities states that self-reporting

and the testimony of family and friends will

serve as credible evidence for the presence of a

psychiatric disability under the ADA. This language appears to suggest that self-reporting by

itself is enough to establish the presence of a

psychiatric disability.37

Recommendation: EEOC should revisit its

statement that self-reporting and testimony of

family and friends can serve as credible evidence

for the presence of a psychiatric disability under

the ADA to determine whether it needs clarification or elaboration, such as clarifying that selfreporting is not sufficient when the employer

requests medical documents.

Finding: EEOC's enforcement guidance on

psychiatric disabilities does not answer important

questions relating to reasonable accommodation.

The guidance does not address the issue of docu36 See chap. 5, pp. 124-27. 37 See chap. 5, p. 127.

mentation to show the medical need for an accommodation, specifically how much information

the employer is entitled to get under the ADA, or

from whose doctor the information can come, the

employer's or the employee's doctor. A second issue that the guidance does not discuss is the reasonable accommodation process. For example, the

guidance does not address whether, in the interactive process that courts require to reach a reasonable accommodation, the employer or the employee has to suggest a potential accommodation.

Furthermore, the guidance also does not address

whether, in cases where reassignment might be

appropriate, it is the employer's responsibility to

identify possible job vacancies. Another issue that

the guidance does not discuss is whether there is

a continuing requirement for reasonable accommodation if one or more accommodations are attempted and prove unsuccessful. Finally, with

respect to undue hardship, the guidance does not

clarify its scope. For example, if a high level employee with a psychiatric disability needs a long

term leave of absence, the guidance offers no information to determine at what point his or her

absence amounts to an undue hardship on the

company.38

Recommendation: EEOC should issue

guidance, perhaps in the form of a brief policy

statement, addressing all of these issues in the

context of psychiatric disabilities. EEOC should

follow up with technical assistance efforts to ensure that employers and employees alike know

their rights and responsibilities with respect to

psychiatric disabilities in the workplace.

Finding: In the case of violence or threats of

violence, the EEOC enforcement guidance on

psychiatric disabilities notes, "nothing in the

ADA prevents an employer from maintaining a

workplace free of violence or threats of violence."

Several courts have found that maintaining an

acceptable standard of conduct generally is an

essential function of any job. Any individual engaging in abusive, violent, or threatening behavior, regardless of whether such an individual

claims a psychiatric disability, may therefore be

considered no longer capable of performing an

essential function of the job and thus no longer

"otherwise qualified." The only caveat EEOC

38 See chap. 5, pp. 128-30.

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adds to this rule is that if the sanction is not job

related and consistent with business necessity,

"imposing discipline under them could violate

the ADA." It would be rare, if not never, that

some form of sanction for violent behavior in the

workplace would be considered inconsistent with

business necessity and not job related. Therefore, a policy of firing those who engage in violent behavior is not a violation of the act as long

as it is implemented uniformly, against both

people with disabilities and those without. However, the guidance does not make clear that, if

an employee who has engaged in violent behavior related to his disability has put the employer

on notice as to his disability, the employer might

also have to conduct a direct threat analysis to

ensure that the employee is no longer a

"qualified individual with a disability."39

Recommendation: EEOC should address in

a policy statement or letter the issue of whether

the fact pattern changes significantly where the

employee has put the employer on notice about

his disability rather than claiming it after a violent episode. If EEOC considers these two circumstances to be different, the agency should

explain in what way and how it changes the

analysis. In particular, EEOC should explain

whether the employer has to do a direct threat

analysis or whether the employer can rely on the

precedent in the courts stating that any violent

behavior makes the employer no longer qualified

with a disability and therefore no longer a member of the statute's protected class.

Finding: Among the most significant barriers confronting people with psychiatric disabilities in the workplace today are attitudinal barriers created by a lack of understanding by both

employers and employees. This problem has

been exacerbated by negative portrayals of people with psychiatric disabilities in the news media, particularly since EEOC issued its enforcement guidance in March 1997.49

Recommendation: EEOC should undertake

a concerted technical assistance, outreach, and

education effort to combat the negative myths,

fears, and stereotypes that surround psychiatric

disabilities. EEOC should begin by developing

39 See generally chap. 5, pp. 130-34.

4° See chap. 5, pp. 133-35.

an interagency task force on issues confronting

people with psychiatric disabilities. EEOC

should develop more technical assistance documents specifically addressing issues involving

psychiatric disabilities in the workplace. Along

these lines, EEOC should work with private disability rights groups, including advocacy and

policy research groups to produce reports on this

issue. EEOC should also develop a program of

outreach and education activities such as workshops, conferences, and training with public and

private employers to educate them about appropriate reasonable accommodations for people

with psychiatric disabilities. For example, EEOC

should encourage employers to provide flexible

and part-time work schedules where possible for

people with psychiatric disabilities.

EEOC Policy: Interim Enforcement Guidance

on Employer-provided Health Insurance

Finding: EEOC's policy position on actuarial

data and its uses has been an important subject

of debate. Some commentators contend that specific aspects of the interim enforcement guidance

relating to actuarial data are inconsistent with

the express statutory language of the ADA. For

example, a disability rights advocacy group

claims that the guidance fails to define what

types of information courts are to consider as

"legitimate" actuarial data. The same group also

points out that the guidance does not require

that employers or insurers provide such actuarial data to employees who are refused insurance

coverage, and calls upon EEOC to mandate that

employers/insurers make such information

available. Further, one author has raised concerns that the interim guidance deviates significantly from the statutory language of the ADA

because of its "undue reliance" on actuarial

standards to define subterfuge. According to this

author, the plain language of section 501(c) and

legislative history indicate that actuarial principles are only to be considered in "determining

whether insured plans are consistent with state

law" and "do not apply to self-insured plans

subject to ERISA. . . ."41

Recommendation: EEOC should issue guidance addressing the actuarial data issue and

should consider requiring employers or insurers

41 See chap. 5, pp. 135-36,140-44.

258
to provide actuarial data to employees who are

refused insurance coverage. EEOC should also

address the issue of whether it has been allowing

"undue reliance" on actuarial principles by applying them to self-insured plans under ERISA.

Finding: In its interim guidance on disability-based distinctions in employer-provided

health insurance, EEOC stated clearly that it

does not consider distinctions between mental

health and physical health benefits to be disability-based distinctions. However, EEOC does

consider this precise distinction to be a disability-based distinction in the context of long term

or disability insurance. In its litigation and amicus briefs, EEOC has sought to prohibit the

practice of providing a shorter term of coverage

for mental disability than for physical disability

in disability insurance benefit plans, but it has

not taken the same position on health insurance

plans for people who are still working. Thus,

EEOC clearly makes a distinction between

health insurance and long term disability insurance. However, EEOC never has clarified this

distinction in policy guidance or litigation. As a

result, it remains unclear why EEOC has taken

arguably contradictory policy positions in its interim enforcement guidance as compared to its

recent litigation posture in insurance cases.

EEOC's distinction between mental and

physical for health insurance but not for disability insurance abrogates the important purpose of

the ADA to prevent any kind of different treatment on the basis of a disability. Under EEOC's

current position, all people with mental disabilities can legally have fewer health insurance

benefits than people who have physical illnesses.

In addition, this distinction is creating confusion

considering that at least one court has cited to

EEOC's interim health insurance guidance as

support for a finding that a disability insurance

plan distinguishing between physical and mental health benefits is not prohibited under the

ADA. This apparent confusion as to EEOC's position further suggests the need for updated guidance in this area from EEOC. Finally,

EEOC never issued final guidance do employerprovided health insurance. It withdrew proposed

plans to issue such guidance in August 1997.42

42 See chap. 5, pp. 144 47, 148.

Recommendation: EEOC should issue final

guidance on employer-provided health insurance. When EEOC issues new policy guidance

announcing its positiOn on both parity of benefits

between mental and physical for both health and

long term disability insurance plans, EEOC

should eliminate the distinction between health

insurance and long term disability insurance

and reverse its position so that both kinds of insurance require insurers to provide parity between mental and physical.

If EEOC chooses not to reverse its position, at

a minimum, it should explain in policy guidance

the basis for its differing positions on whether

the physical-mental distinction is "disabilitybased" as between health insurance and disability insurance. In addition, EEOC should finalize

its "interim" guidance to address not only health,

but disability insurance plans.

Finding: One issue not directly addressed by

EEOC in policy or by the ADA's legislative history is whether retired employees may sue under

the ADA although technically they are no longer

"qualified individuals with disabilities." The Second Circuit has recently reversed a lower court's

ruling that retired employees can no longer perform the essential functions of the jobs they once

held and therefore are not qualified individuals

with disabilities. EEOC filed an amicus brief in

this case in which it agreed with the appeals

court's decision that retired employees may be

eligible to sue under the ADA even if they are no

longer capable of performing the essential functions of their former jobs. In this brief EEOC

argued:

The language of the ADA shows that Congress clearly

intended to prohibit employers from discriminating in

the area of fringe benefits, many of which are distributed in the post-employment period. If former employees may not challenge discrimination in postemployment fringe benefits, the entitlement to which

they earned by virtue of employment, Congress' goal

of providing comprehensive protection from disability

discrimination would be severely undermined."

43 Amicus Curiae Brief for the EEOC at 5, Castellano v. City

of New York, No. 96-7920, 1998 U.S. App. LEXIS 3646, 21

E.B.C. 2697 (2nd Cir. Feb. 24, 1998).

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However, EEOC has not addressed this issue in

its policy or enforcement guidance."

Recommendation: In its enforcement guidance on reasonable accommodation and qualified

individual with a disability, EEOC should include a discussion and analysis of its position on

whether retired employees who can no longer

perform the essential functions of their former

jobs are ineligible to sue under the ADA because

technically they are not qualified.

EEOC Policy: Enforcement Guidance on

Preemployment Inquiries and Medical Exams

Finding: EEOC's enforcement guidance on

preemployment inquiries and medical exams

appears mired in a set of complex prohibitions

and requirements under which employers must

labor to remain within the boundaries of permissible, nondiscriminatory conduct while doing

pre-offer hiring practices such as interviews. The

guidance seems entirely focused on details without ever clearly setting forth the broad principles

on which the numerous requirements are based.

Although the guidance attempts to clarify

EEOC's position with respect to mention of need

for reasonable accommodation during the interview process, it nonetheless suggests a fairly

complicated and highly specific set of "do's" and

"don'ts" of which employers must be aware. For

example, according to the guidance, an employer

may ask an applicant if he or she can perform

job functions "with or without reasonable accommodation"; however, "an employer may not

ask a question in a manner that requires an individual to disclose the need for reasonable accommodation." This seems a subtle and easily

overlooked distinction.

Any employer who has not read EEOC's guidance thoroughly is in danger of running afoul of

the statute. More than any other ADA-related

issue, this one seems to require the strongest efforts on the part of EEOC to ensure dissemination

to all job applicants, employers, and businesses.

These efforts will require a significant amount of

technical assistance, outreach, and education to

ensure that all of these stakeholders have a good

understanding of how to proceed through the

stages of the hiring process.45

44 See chap. 5, p. 148. 46 See generally chap. 5, pp. 148-57.

I

Recommendation: Due to the subtlety and

complexity of the preemployment inquiry requirements, EEOC should devote particular attention to this area of ADA law, with increased

efforts in technical assistance, outreach, and

education.

Enforcement Guidance on Effects of

Representations Made in Applications for

Disability Benefits

Finding: As a response to a growing trend in

the courts barring ADA claims by plaintiffs who

had previously applied for disability benefits

such as social security or workers' compensation,

EEOC issued enforcement guidance in February

1997. In this guidance, EEOC advances legal

and public policy arguments to support its position that the application of judicial estoppel in

this context wrongly interprets the ADA and

thwarts its purposes. In making these arguments, the guidance relies on a comparison dem-t

onstrating the differences between the purposes

and standards of the ADA and those of the various disability benefit schemes. EEOC supports

its arguments with a thorough, carefully crafted

analysis that incorporates the relevant caselaw

and makes excellent use of hypothetical examples. Overall, the document's analysis of the judicial estoppel issue demonstrates both common

sense logic and consistency with the purposes of

the ADA as set forth in the law and its legislative history.

However, this is one of only a few examples of

enforcement guidance EEOC has issued on discrete smaller issues that have been the source of

controversy between EEOC and the Federal

courts.46

Recommendation: EEOC should continue

to issue guidance on discrete policy issues, such

as this one, that have been the source of controversy between EEOC and the Federal courts.

EEOC could better and more thoroughly explain

and support its position on such issues as mitigating measures, the use of the third prong, and

the "major life activity of working" concept.

46 See generally chap. 5, pp. 162-72.

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Chapter 6. Assessment of EEOC's Charge Processing and Title I Enforcement Activities

Finding: The ADA is a complex statute for

which legal interpretation and caselaw are still in

their initial phases of development, suggesting a

need for EEOC investigative and legal staff handling ADA charges to have a specialized knowledge of the ADA. Several EEOC staff noted that

the complexity of the statute affects charge processing. This is due to the vagueness and complexity of ADA concepts, such as "qualified individual

with a disability." One district director stated that

the qualitative differences between the ADA and

other statutes that EEOC enforces have presented difficulties. Because of the complexities of

the law and its relative newness, EEOC has yet to

take on some of the more serious issues, as it has

with other laws. In addition, EEOC may have underestimated the difficulties staff have had with

the law.

Although EEOC has specialized staff on the

ADA in its headquarters Office of Legal Counsel,

EEOC's field offices do not have investigative or

legal staff who specialize on ADA charges or

litigation. Investigators and attorneys work on

all statutes. EEOC staff and officials have given

several arguments for not having investigative

or legal staff assigned to work exclusively on

ADA. For instance, in field offices where there

are only one or two attorneys, to assign one of

them exclusively to the ADA might not make

sense in comparison to the workload the office

has. In addition, having all staff be familiar

with all the statutes EEOC enforces may serve

to give them deeper understanding of

employment discrimination on which they can

draw in ADA investigations and litigation.

Although these arguments are persuasive, they

do not prevent EEOC from designating

investigative and legal staff in field offices to

become "ADA experts" to whom other field office

staff can turn informally for advice and

assistance should a particularly complex or novel

ADA case present itself.47

Recommendation: The Commission commends EEOC for its implementation of the law

thus far. Staff have been sufficiently trained in

the basics of the law. Because of the complexities

47 See chap. 6, pp. 187-88; see generally, chap. 6.

of the law, however, EEOC should ensure that

its staff are prepared to handle difficult issues

related to applicability and enforcement of the

law. Unless EEOC receives considerably more

resources and increases the number of investigators and attorneys in its field offices substantially, the agency should not assign investigators

and attorneys to work exclusively on the ADA.

However, each field office should designate investigative and legal staff to become ADA experts who can serve as resources for other field

office staff and handle particularly complex or

novel ADA charges that arise. Although these

individuals should not work exclusively on the

ADA, they should be provided advanced training

on the ADA, they should interact regularly with

staff in the ADA Policy Division, and they should

be given particularly complex or ADA charges to

handle. Furthermore, they should provide outreach and education and technical assistance on

the ADA.

Enforcement Generally

Finding: EEOC staff generally agree that

EEOC has done a good job, overall, of enforcing

the ADA. In addition, they appear satisfied the

EEOC's Priority Charge Handling Procedures

have empowered staff, giving investigators more

autonomy in charge processing, increasing the

interaction between investigators and attorneys,

and eliminating layers of review. They appear

confident that the Priority Charge Handling

Procedures' categorization system is beneficial

and allows them to process charges more efficiently.

However, there is a danger that meritorious

charges may end up being dismissed because

they are not recognized as meritorious during

the intake process and therefore are categorized

as "C" charges. Because of the complex nature of

the ADA, this danger is particularly acute for

ADA charges. Although some investigators indicated that they rarely categorized ADA charges

as "C" charges during intake, the field offices

generally do not appear to have in place adequate safeguards to ensure that meritorious

cases are not miscategorized as "C" charges.48

48 See chap. 6, p. 1888.

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Recommendation: EEOC's Office of Field

Programs should ensure that EEOC's field offices are implementing the Priority Charge

Handling Procedures properly. The Office of

Field Programs should review the procedures

used in each field office to ensure that meritorious ADA charges, as well as meritorious charges

under the other statutes EEOC enforces, are investigated and resolved. The effectiveness of

such procedures should enter into district directors' performance evaluations.

Charge Intake

Finding: Because the intake process determines whether EEOC will accept a charge of discrimination and hence whether an individual

who has experienced discrimination on the basis

of disability has any chance of redress, it is essential that the intake process be thorough and

effective. In general, EEOC's intake process appears to be sound. During intake, EEOC staff

inform the complainant of his or her rights under the law and obtain sufficient information

from the complainant to develop a charge of discrimination. All charging parties are informed of

their right to file a charge, that they must file a

charge to be able to file a private suit and that

there is a responsibility of retaliation by the respondent. Charging parties also are informed of

what to expect during the processing of their

charge and are given the staff member's assessment of the charge. However, some disability

advocates contend that EEOC's intake personnel

are not sufficiently trained on the ADA or do not

take sufficient time to interview potential

charging parties.49

Recommendation: EEOC's Office of Field

Programs, in conjunction with representatives

from the field offices, should develop common

procedures for intake and periodically evaluate

the quality of the intake process in each field

office. In addition, EEOC should develop a thorough training module for intake personnel and

ensure that all personnel who perform intake

duties are provided such training.

Finding: Charge intake is handled differently

in the various EEOC field offices. Many offices

49 See chap. 6, pp. 191-92.

have a rotation system in which investigative

units take turns performing intake duties. Other

offices have permanent intake staff. The task

forces on priority charge handling procedures and

litigation recommended in their joint report that

the Office of Field Programs assess the results of

these two methods and share the inforination

from the assessment with the field offices.59

Recommendation: The Office of Field Programs should review each field office to evaluate

the effectiveness of its form of charge intake and

recommend changes where needed. Based on the

results of the review, EEOC should develop a

model charge intake system that can be implemented where district office officials feel there is

a need for change.

Finding: The different field offices have different ways of providing information to potential

charging parties. For example, the Chicago and

Los Angeles district offices show potential

charging parties a videotape while they wait for

their interview. The joint task force report recommended that the Office of Field Programs coordinate the information provided to charging

parties. All videos, foreign language materials,

and brochures should be made available to all

offices. The report further recommended that the

Office of Field Programs, the Office of General

Counsel, and the Office of Communications and

Legislative Affairs assess information needs and

determine what should be developed centrally

for distribution to field offices.51

Recommendation: All field offices should

have the same resource materials available for

their use. When a field office develops resource

materials for its own use, it should forward the

materials to the Office of Field Programs for dissemination to the other field offices. Charging

parties across the country should be provided

the same information.

Finding: Staff interviewed by the Commission stated that intake of ADA charges does not

differ greatly from intake of charges filed under

other statutes; however, there are some differences. An enforcement supervisor in Dallas said

that if a person has a disability that is not ap59 See chap. 6, pp. 192-93. 51 See chap. 6, pp. 191-93.

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parent, staff give that person the "ADA letter,"

which tells the charging party that EEOC must

receive written medical information from a physician that explains what the disability is and

how it rises to the level of a disability that substantially limits a major life activity. The

charging party is given 30 days to provide this

information. Such cases usually are categorized

as "B" charges, pending the receipt of medical

information. It is the responsibility of the

charging party to provide that information.

EEOC will dismiss the case if the information is

not received.52

Recommendation: EEOC should ensure

that ADA cases, as well as other cases, are being

handled in the same manner by all field office

staff. Procedures should be developed for obtaining medical information from charging parties. EEOC should have inhouse contractors with

the expertise needed to assess medical information. For example, EEOC should contract with

NIH, an agency known for its medical expertise,

for medical advice.

Charge Categorization

Finding: During the intake interview, EEOC

staff decide if a charge falls under category "A,"

"B," or "C." Many staff indicated that under the

new procedures there is better screening of

charges, and staff can be honest with charging

parties about the prospects and validity of their

case. However, one district director reported that

he is not comfortable stating that staff are capable of making a determination of the priority of a

charge. Thus, supervisors also are involved in

charge categorization. For all four statutes enforced by EEOC, close to 60 percent of the

charges are placed in category "B." Category "A"

charges account for 15 percent of all ADA

charges, while category "C" charges account for

27 percent of all ADA charges.53

Recommendation: Although intake staff

should make an initial determination of which

category a charge should be in, the categorization of charges should be reviewed by supervisors after the interview to ensure that the correct category has been assigned. The Office of

Field Programs should conduct a review based

52 See chap. 6, p. 193.

53 See chap. 6, pp. 193-95.

on a comparative sample of offices to assess how

well offices are doing with the categorization

procedures currently in place. Additional training should be provided to those offices where

OFP determines there is a problem with correct

charge categorization.

Finding: Charge categorization is not handled uniformly across field offices. Many field

offices further categorize "A," "B," and "C"

charges. For example, the Charlotte District Office has two categories for each priority level. In

Dallas, for "C" charges that are dismissed during

intake, the charging party is given a right to sue

letter during the interview. Furthermore, the

joint task force report noted some problems with

charge categorization. For example, the Charge

Data System data indicate that not all "C" charges are dismissed at intake. The report

stated that sometimes investigators feel they

need additional information before they can

categorize charges as "C" charges. The task

forces also noted an imbalance in the identification and processing.54

Recommendation: EEOC should ensure

that all offices are using the same system for

categorizing charges. Although EEOC has a

document that briefly explains the "A, B, C"

categories, it should provide further assistance

to field office staff. Along these lines, EEOC

should develop and issue a comprehensive staff

reference guide providing specific examples and

other useful information for field office use.

Finding: Charge categorization may be misunderstood by respondents, charging parties,

and other individuals outside of EEOC. For example, the director of Golden State University's

Employment Rights Clinic stated that practitioners do not understand clearly the prioritization

system and do not know if they can influence the

decision process. The director also stated that

charging parties may not know how to frame

their charge so that the important legal facts are

made clear. Similarly, intake personnel may not

be able to determine if there are bases for discrimination other than as described by the

charging party.55

34 See chap. 6, p. 195. 55 See chap. 6, p. 195.

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Recommendation: EEOC should develop

materials to explain the Priority Charge Handling Procedures to groups outside of EEOC,

particularly charging parties. These materials

should include user-friendly outreach and education documents that would clearly explain EEOC

procedures for charge intake and categorization.

In addition, these documents should thoroughly

explain the types of information EEOC relies on

in reviewing and categorizing charges. Also,

these documents should contain complete information that tells people planning on filing a

charge with EEOC what they can expect from

the moment they walk in the door until they

have a determination on their case. These materials should be disseminated widely among the

public to ensure that as many people as possible

have access to specific information on how to file

an ADA complaint and how EEOC addresses

complaints once they have been filed.

Commissioner Charges

Finding: Commissioner charges are an important tool for eliminating discrimination in

those cases where the victims cannot or do not

file individual charges. Commissioner charges

are used as an enforcement tool in cases where

there is no individual charge, often when victims

of discrimination may be afraid to file a charge

with EEOC, or even may not realize that they

are being treated unfairly because they have no

basis of comparison. EEOC staff or outside individuals or organizations may request a Commissioner charge. EEOC Commissioners told the

Commission that they take the Commissioner

charges very seriously and only file them when

they are convinced that discrimination has occurred. Commissioner charges account for only a

small proportion of all EEOC charges. Only 99

ADA charges have been Commissioner charges.

Of all charges filed between October 1989 and

September 1997, 559 were Commissioner

charges, representing less than 1 percent of all

charges.56

Recommendation:. EEOC should continue

the judicious use of Commissioner charges to

advance the purposes of the ADA and the other

statutes that EEOC enforces when there is sufficient evidence to suggest that discrimination has

56 See chap. 6, pp. 195-98.

occurred. EEOC should use Commissioner

charges the greatest extent possible in conjunction with the National Enforcement Plan to ensure that priority issues are addressed fully.

Further, EEOC should use this tool to ensure

that ADA compliance is occurring in work environments where people with disabilities are particularly vulnerable to employment practices

banned by the statute.

Charge Investigation

Finding: The new Priority Charge Handling

Procedures stress the need for attorneys to be

involved in the classification and investigation

stages of cases and suggest organizing investigator-attorney teams or "other collaborative arrangements" to accomplish this. This need has

been identified by those outside of EEOC as well

such as the Chairman of the Subcommittee on

Employer-Employee Relations of the House

Committee on Education and the Workforce and

the Speaker of the House. Attorney involvement

in investigations varies among the field offices.

The Director of the Office of Field Programs

stated that investigative staff and attorney staff

are working well together; the form of coordination depends on the office culture. However,

even with increased attorney involvement, attorneys are not involved in the intake process

unless specifically requested to do so by an investigator.57

Recommendation: EEOC should continue

efforts to improve attorney-investigator coordination. EEOC should explore ways of using attorneys during charge intake and other investigative procedures. For example, EEOC should

initiate a pilot program in which attorneys and

investigators jointly conduct intake and investigate charges. EEOC should review and assess

any differences in quality or length of time to

complete investigations when attorneys are involved. Both attorneys and investigators should

participate in this review by providing their personal observations and assessments on the

strengths and witnesses of the program.

Determinations

Finding: Under the Priority Charge Handling Procedures, EEOC no longer issues sub57 See chap. 6, pp. 198-201.

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stantive no cause determinations. The procedures state that because the determination no

longer explains in detail the disposition of the

charge, determination counseling is critical.

Most offices attempt to inform the charging

party by telephone when a no cause determination is made. In the Charlotte District Office, the

charging party is given 5 days to provide additional information; then the case is dismissed.

The 1998 joint task force report noted that some

offices do not consistently do determination

counseling to inform charging parties of the reasons for a determination. Further, there are no

formal procedures for charging parties to request

reconsideration of their cases. Field offices respond to such requests on a case-by-case basis.58

Recommendation: The determinations sent

to charging parties should provide sufficient detail as to why no cause was found, or why the

charge was dismissed, and EEOC should establish a formal policy for responding to requests for

reconsideration of cases. In addition, the reasons

for no cause findings should be in writing.

Alternative Dispute Resolution

Finding: Over the past several years, EEOC

has begun to implement alternative dispute

resolution (ADR) to resolve certain charges of

discrimination more quickly and efficiently than

they could be resolved through the traditional

investigation, negotiation, and settlement or litigation process. ADR has proven to be effective

with issues such as reasonable accommodation.

However, because EEOC has not had funding for

the ADR program, in most field offices, the program has been implemented on a very small

scale and relies almost entirely on volunteer mediators. The President has proposed increasing

EEOC's funding, with much of the increase specifically designated for the ADR program. Such

an increase would enable EEOC to mount fullscale ADR programs in all of its field offices, allowing more charges to go through the ADR

process and generally decreasing the amount of

time it takes for EEOC to process a charge.59

Recommendation: The Commission strongly

supports EEOC's use of ADR as an alternative to

its traditional investigation process to reduce its

58 See chap. 6, pp. 201-02. 59 See chap. 6, pp. 202-07.

backlog and obtain speedier resolution of cases.

ADR should continue to be emphasized by EEOC.

However, because EEOC cannot implement ADR

effectively without the additional resources requested by the President, Congress should provide EEOC with the resources needed to mount

an effective, full-scale ADR program. EEOC

should use the additional funds to create a formal

ADR program in each of its district offices. In addition, EEOC should ensure that charging parties

and respondents do not have to pay for ADR.

Litigation

Finding: Litigation is an essential element of

EEOC's ADA enforcement program. In cases of

egregious violations of the law, EEOC involvement in a lawsuit demonstrates that it is serious

about enforcing the law. EEOC's use of litigation

encourages respondents who have discriminated

to settle charges of discrimination rather than run

the risk of being sued by EEOC. Furthermore,

cases EEOC litigates receive a great deal of public

attention and as a result have an effect far beyond

the parties involved. EEOC believes that it is important to get involved in cases where the agency

can advance the public interest"

Recommendation: EEOC should continue to

use litigation as a central component of its ADA

enforcement strategy. EEOC should choose cases

it litigates judiciously to ensure that the cases are

meritorious and advance the public interest.

EEOC should pursue such cases aggregsively.

Finding: EEOC and the Department of Justice do not coordinate their ADA activities very

well. This is particularly true with regard to employment issues under title II (State and local

employers). DOJ only litigates a tiny portion of

its State and local employment cases. Part of the

problem is that there is not much employment

expertise at DOJ.61

Recommendation: EEOC and the Depart- ment of Justice should coordinate better by

working together to ensure that charges relating

to State and local employers are handled appropriately. The Department of Justice, for example, should make greater use of EEOC's em6° See chap. 6, p. 202. 61 See chap. 6., pp. 202-07.

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ployment expertise through better cooperative

efforts and information-sharing programs.

Technology

Finding: EEOC suffers from technology limitations that may affect the usefulness of the

charge data system (CDS). Both EEOC and outside commentators have noted that EEOC needs

to upgrade its computer systems. For example,

the EEOC task force report on FEPAs noted that

FEPAs were using computers that could not

handle the large volume of charges. Further,

FEPAs had data transmission problems due to

modem or phone line deficiencies, and some staff

was not sufficiently trained on the operation of

the system. These problems lead to inaccurate

and incomplete data.62

Recommendation: The CDS provides much

valuable information. Funding should be provided for improvements in technology to ensure

the accuracy of the data contained in the system.

Upgrades to equipment, particularly in the FEPAs, is necessary to ensure accurate and

complete data. In addition, future changes to the

system should provide for more detailed information. For example, data fields should be

added so that EEOC can track when a charge is

reclassified into a different category.

Finding: Other technology limitations affect

the ability of EEOC's staff to do their jobs.

EEOC has outdated and inadequate computer

technology that impedes the ability of its staff to

conduct aggressive and coordinated enforcement

of the ADA and the other civil rights statutes the

agency is charged with enforcing. EEOC staff

have no e-mail capability, no access at their

desks to the Internet or legal research tools, and

no easy access to the CDS. In addition, EEOC's

headquarters and field offices are not linked

through a network system, and as a result are

unable to obtain critical information to improve

their investigative and litigation efforts. For instance, if EEOC has more than one charge

against the same company on the same issue,

but these charges are filed in different district

offices, EEOC's inadequate computer technology

62 See chap. 6, p. 211.

prevents EEOC staff from having access to, this

information.63

Recommendation: Congress should approve

the President's request for additional funds for

fiscal year 1999 to enhance EEOC's computer

technology, and EEOC should move expeditiously

to update and network its computers and provide

Internet and e-mail capability to its staff.

Finding: Data used for this report had not

been through the data "cleaning" process. Thus,

some charges contained incomplete or erroneously entered information were not included in

the analyses.64

Recommendation: Changes should be made

to the system so that data entry is easier and,

thus, less prone to error. Rather than requiring

staff to enter codes, the system should provide a

list of bases, for example, from which to choose.

Further, date fields should be changed so that

only valid dates are accepted. In addition, organizations requesting data should be provided

the most recent corrected data set.

Charges Under All Statutes

Finding: More than 50 percent of charges

under the EPA, ADEA, and title VII, and just

under 50 percent of all ADA cases, result in no

cause findings. A "no cause" finding is issued

when a full investigation fails to support the allegations.65 Close to 30 percent of all closures are

administrative closures, which includes notice of

right to sue requested by the charging party, no

jurisdiction, withdrawal without benefits, and

charging party's failure to cooperate. Therefore,

80 percent of all charges indicate that no discrimination has occurred. The large number of

no cause findings suggests that either many

charging parties file nonmeritorious claims that

waste EEOC staff time and resources, or EEOC.

needs to reevaluate its charge processing procedures to ensure that charges are being evaluated

and investigated properly.66

Recommendation: EEOC should conduct a

study to determine the reasons for the large

number of no cause findings and administrative

63 See chap. 6, pp. 211-13.

64 See chap. 6, p. 213.

65 See chap. 6, pp. 213-15.

66 See chap. 6, p. 215.

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closures. If the reason is that many nonmeritorious claims are filed, EEOC should attempt to

improve its outreach and education efforts so

that members of the public become better informed as to what types of charges have merit

under the ADA and other nondiscrimination in

employment statutes. Beyond this, EEOC should

keep more detailed data on no cause findings.

For example, EEOC should keep data on why

there was a no cause finding.

Finding: Since a major new thrust of

EEOC's charge processing system is the use of

alternative dispute resolution, it is essential for

EEOC to have data on ADR closures. It is not

clear under which closure category ADR closures

fall in EEOC's charge database system.67

Recommendation:. EEOC should revise its

charge database system to include ADR closures

as a separate closure category.

Charges Under the ADA

Finding: One-fifth of the charges citing the

ADA involved "miscellaneous" disabilities, such

as mental retardation, allergies, and speech impairments, each less than 3 percent of all ADA

charges. "Other" disabilitiesdisabilities not

specifically identified in the EEOC charge data

systemaccount for 23 percent of all ADA

charges.68

Recommendation: EEOC should consider

expanding its disability categories, or collapsing

some of the less frequently noted categories.

EEOC should work hand-in-hand with the disability community to determine which disabilities it should track. Furthermore, EEOC should

consider revising this list as the Nation ages and

as disability becomes more prevalent in society.

However, EEOC should provide a crosswalk to

previous disability categories so that trends can

be analyzed over time.

Finding: Charge processing time has

changed little since the introduction of the Priority Charge Handling Procedures. Virtually the

same percentage of charges are closed in less

than 6 months and in 6 to 12 months as before

EEOC adopted the new procedures. Further67 See chap. 6, p. 215.

68 See chap. 6, pp. 215-17.

more, the percentage of charges that take more

than 2 years to resolve has risen slightly.69

Recommendation: EEOC should do an internal audit to determine why charge processing

time has not changed with the institution of the

Priority Charge Handling Procedures. Depending on the results of the audit, EEOC should

provide further training to its staff on implementing the procedures or revise the charge

processing procedures to ensure that the time it

takes for EEOC to process charges of discrimination is reduced.

Chapter 7. Assessment of EEOC's Outreach, Education, and

Technical Assistance

EEOC Technical Assistance Program

Finding: Title I of the ADA, and the ADA in

general is a very complicated statute. Many people, particularly employers, do not know their

rights and responsibilities under ADA. Moreover, many disabled people do not know that the

ADA exists. EEOC and its field offices, particularly the New York and Detroit offices field offices, have designed and implemented generally

effective ADA technical assistance programs. In

addition, EEOC has developed a significant

amount of technical assistance material on the

ADA. However, overall, EEOC does not have a

very proactive technical assistance program. For

example, EEOC's Office of Legal Counsel goes on

sponsor-reimbursed travel to speak on the ADA,

but OLC does not have a travel fund specifically

earmarked for presentations and other technical

assistance activities. In addition, EEOC does not

have a strategic plan for its technical assistance

efforts. Although EEOC can recount past efforts,

it has not produced any clear statements of goals

for future efforts in this area.

Technical assistance responsibilities are scattered throughout the agency without an overall

plan and clearly defined organizational structure

to guide technical assistance activities. EEOC's

senior management recognizes the importance of

the technical assistance program to accomplishing

the agency's overall mission. Since the establishment of the National Enforcement Plan in July

1996, there has been a more focused approach to

technical assistance, education, and outreach ef69 See chap. 6, pp. 217-20.

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forts. However, there does not appear to be significant institutionalized coordination of these

efforts by the responsible officesOffice of Field

Programs, Office of Legal Counsel, and Office of

Communications and Legislative Affairs.70

Recommendation: EEOC needs to revitalize its technical assistance program for the ADA.

First, EEOC must create a central technical assistance office in its headquarters to provide direction and coordination of technical assistance

efforts on the ADA and the other civil rights

statutes EEOC enforces. This office should encompass all technical assistance efforts of the

agency including liaison with the field offices. In

addition, EEOC should establish an internal

outreach, education, and technical assistance

coordination committee, composed of representatives of the three responsible offices and the office of the Chairperson, to work in consultation

with the central technical assistance office. The

committee should meet quarterly to advise the

central technical assistance office through the

development and implementation of Commissionwide approaches to outreach, education, and

technical assistance. Once established and operational, the committee also should review annually the implementation of previously approved efforts and report to the Commissioners.

Second, EEOC should work closely with the

President's Committee on Employment of People

with Disabilities, which has its own separate

technical assistance program, to develop an integrated technical assistance program. For example, the two agencies should develop a memorandum of understanding on technical assistance activities.

Finding: EEOC stated in the ADA technical

assistance plan that it would develop and distribute public service announcements to radio

and television stations. However, because it was

estimated that the cost for a multimedia PSA

campaign would be in excess of $400,000, the

agency was unable to carry out this initiative.71

Recommendation: EEOC should consider

developing a national radio PSA campaign as

part of its overall technical assistance effort.

The agency headquarters central technical assistance office should develop and coordinate the

70 See generally chap. 7.

71 See chap. 7, pp. 230-31.

program so that the agency has a consistent, coherent public voice. To ensure that the program

covers all geographical areas, the headquarters

office should work closely with all agency field

offices. The agency should specifically earmark

funding for this project.

Finding: The field offices operate with a significant amount of independence and flexibility

in conducting their outreach, education, and

technical assistance responsibilities. This has led

to the development of some innovative technical

assistance materials such as the New York District Office's brochure on immigrants' employment civil rights that, was published in seven

languages and was distributed by the Office of

Field Programs (OFP) to other dikrict offices

with significant immigrant populations. Until

recently, there does not appear to have been a

systematic approach by OFP to ensuring that

information and materials are exchanged among

all of the field offices. Under the current organization, however, a staff person is now responsible for coordinating technical assistance in the

field. Further, if funds are available from the

revolving fund, there are also plans to establish

an outreach coordinator in each district office. In

the summer of 1997, OFP held a meeting with

the technical assistance coordinators to share

ideas to enhance the overall effectiveness of the

field technical assistance program. Finally, at

the April 21, 1998, EEOC Commission meeting,

Acting Chairman Igasaki directed that OFP

make available to all field offices the innovative

information that has been developed by some of

the field offices. The Chairman also directed

OCLA to take the lead in developing information

packets, videos, and questionnaires for distribution to the public.72

Recommendation: The Commission commends EEOC for recognizing the importance of

sharing information about the innovative approaches to outreach, education, and technical

assistance being developed by its field offices.

The agency should institutionalize this process.

An annual meeting of the technical assistance

coordinators would be one method of ensuring

that there is a formal process for sharing accomplishments in the outreach program. At the end

72 See chap. 7, pp. 236-39.

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of each conference, OFP and the participants

should submit a report to the Commissioners.

Finding: Officials at EEOC acknowledge

that the agency has had limited success in

reaching underserved communities such as

small businesses and minorities with disabilities. Congress also has recognized that the

EEOC needed to make a greater effort to reach

these groups. The introduction in July 1996 of Local Enforcement Plans with a mandatory

technical assistance component ensures that

management can evaluate the efforts of the field

offices to reach underserved groups. However, it

is not evident from interviews with EEOC officials that there is any mechanism to evaluate

the effectiveness of past and future outreach and

technical assistance efforts specifically designed

to reach underserved communities.73

Recommendation: EEOC should develop a

means of periodically evaluating the effectiveness

of the agency's outreach, education, and technical

assistance progiams to underserved groups. The

agency should establish an advisory committee of

representatives from outside the EEOC to assist

in the development of methods to evaluate the

effectiveness of these efforts and to advise on

ways to improve the technical assistance program's outreach to underserved communities.

EEOC should file periodic reports with the Commissioners on the evaluation of this effort.

73 See chap. 7, pp. 239-41.

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Statement of Chairperson Mary Frances Berry,

Vice Chairperson Cruz Reynoso, and

Commissioners A. Leon Higginbotham and Yvonne Lee

Introduction

The Americans with Disabilities Act (ADA) is one of the most important civil rights laws

ever enacted. Its ongoing purpose is nothing less than "a national mandate to end discrimination against individuals with disabilities and to bring those individuals into the economic and

social mainstream of American life."1 As this Commission report concludes, in the short period since its enactment, the employment provisions of the ADA have already begun to help

do just that. However, in spiteor perhaps becauseof its success, the ADA has been subjected to a great deal of criticism. To be sure, the nature of that criticism is mostly inconsistent, not to say outright incoherent. Thus, critics have accused the ADA of doing both too little and too much: too little because it has not increased by a large enough margin the number

of people with disabilities in the work force; too much because it has forced employers to hire

people whose disabilities render them unqualified to perform job functions; too little because

it has made employers wary of taking a chance on people with disabilities; too much because

it has encouraged frivolous lawsuits from people whose disabilities are not genuine.

Of course, the easiest response to the criticism that the ADA is not working fast enough is

to point out, as did Justin Dart, the former Chairman of the President's Commi4ee on Employment of People with Disabilities, that "[i]t is misleading and dishonest to suggest that the

ADA is a failure because it has not in sixty months solved problems that the ten commandments have not solved in more 3,000 years."2 It is equally easy to answer the criticism that

some ADA lawsuits may have been without merit by pointing out that, just as Justice John

Harlan cautioned that "hard cases make bad law,"3 marginal cases make for bad arguments.

In short, much of the criticism of the ADA would not necessarily deserve a response if it did

not betray a deeper philosophical viewpoint on the value of civil rights legislation in our society and the role of administrative agencies in assuring justice for all Americans. Because we

believe in the enduring value of civil rights statutes, and because we favor vigorous enforcement of such statutes, we write this additional statement.

The ADA Empowers People with Disabilities and Enriches Our Society

Individuals with disabilities have been called the largest minority group in this country.

Data from a 1990 U.S. Census Bureau survey exposed a staggering 49 million Americans

with disabilities,4 many of whom were unemployed. Specifically, 56 percent of the disabled

population were of working agebetween the ages of 21 and 64. Yet, over 60 percent were

unemployed.5 Obviously, the incorporation of the disabled into the work force is a matter of

grave concern just as increasing the hiring of the disabled is an enormous challenge.6 However, to claim that the ADA has a negative impact on hiring is wrong for two reasons.

As an initial matter, such an argument is counterfactual. Recent data from the U.S. Census Bureau revealed a marked increase in the employment of persons with disabilities since

the enactment of the ADA. For example, the employment of persons with severe disabilities

increased almost 3 percent from 1991 (23 percent) to 1994 (26.1 percent), resulting in 800,000

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more jobs.? Improvement in the quality of life for Americans with disabilities have also been

attributed to the ADA. In a private survey by the United Cerebral Palsy Foundation, an

overwhelming 96 percent of the sampled 1,330 disabled people and their families reported

that the law had improved their lives.8 Empirical studies also register positive results. A re- cent longitudinal study of the experiences of over 1,100 adults with mental retardation in

Oklahoma found that, through government funding and private efforts, positive change oc- curred in their lives since the passage of the ADA. Relative unemployment levels for partici- pants declined, and the proportion of participants in competitive employment increased sig- nificantly.9

More important however, one wonders whether critics who wield numbers and statistics

have ever considered it worthwhile "to place the ADA within a framework apart from that of marketplace morality."19 After all, that 49 million people areand have remaineda

"minority" is not a twist of fate nor an accident of history, nor a matter of individual discrimination. Rather, "throughout history, people with disabilities lived with two limitations:

one, the actual physical or mental impairment, and two, society's differential treatment

caused by reactions to the impairment."11 Accordingly, the ADA was enacted, not only to protect people with disabilities from acts of discrimination, but also "to attack the myths and

stereotypes associated with disabilities and in order to change the attitudes of people in this

country."12 Certainly, since its enactment, the ADA has done much to change the attitude of employers and to empower people with disabilities.13 In other words, "it is justice that [the ADA is] after, and justice is not always, or even often, amenable to precise measurement, or

even any measurement at all."14 Thus, to always insist on "counting heads" is, in.a real sense,

a regrettable diminishment of both the ADA's success for people with disabilities and its beneficial value to our society.

EEOC Enforcement of the ADA Is Fair and Consistent with

Congressional Intent

As is the case with any other civil rights statute, the ADA would not be effective unless it

was vigorously enforced through administrative resolution and private litigation. Effective administrative enforcement of civil rights legislation requires that the agency responsible for its

implementation not just mechanically carry out the law, but also use its constitutional discretion and rule-making authority to give the statute shape and substance. It is far too late in the

day to think that administrative agencies serveor should serveany other purpose. As far back as 1825, Chief Justice John Marshall recognized that any time Congress enacts a statute it necessarily gives the power "to those who are to act under [the] general provisions to fill up the

details."15

Yet one recurring criticism of the act is that the EEOC and private litigants have engaged

in frivolous lawsuits. To begin with, the argument rests on the false premise that these law- suits were frivolous because, on occasion, a finder of fact may have ruled against a plaintiff. This is wrong as a matter of law and as a matter of fact. A frivolous lawsuit is prohibited by

Rule 11 of the Federal Rules of Civil Procedure. The fact that these cases were adjudicated on

the merits is proof enough that the court found them not to be frivolous. Moreover, there is

absolutely no evidence that the ADA has encouraged more lawsuits than other statutes. Indeed, the fact that critics of the ADA tend to recycle the same few marginal case examples is

a strong indication that in the overwhelming majority of cases the act is working to integrate

people with disabilities into the work force.18 Certainly, a fair and reasoned examination of

the statute would focus on the cases that lie at the center not those that hang on the margins. In any event, more often than not, the claim that the ADA encourages frivolous lawsuits

is a thinly veiled attempt at perpetuating the stereotype "that there are two groups among

the disabled population: those with 'traditional' disabilities such as the blind or people who

use wheelchairs who are worthy of compassion or pity, and those whose disabilities are not

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`genuine' but are convenient excuses for special treatment."17 This stereotype is not only pernicious, but it also goes against the very mission of the ADA which, after all, was enacted to

combat the myth that there are more or less deserving disabled people. In fact, Congress expressly refrained from providing an exhaustive list of disabilities under the ADA precisely

because it recognized that the term disability should not be subject to a limited and limiting

definition. Admittedly, we all have our own definition of who is disabled and, for most of us,

that definition may be perfectly sincere. However, if as Shakespeare wrote "there are more

stars in heaven and earth U than are dreamt of in [our] philosophy,"18 then surely one of the

purposes of the ADA is to expand our own philosophy on what a disability is and what a person with a disability can do.

Conclusion

Obviously, we need to do more work if we are to achieve the "national mandate to end discrimination against individuals with disabilities and to bring those individuals into the economic and social mainstream of American life." 19 In particular, we should be concerned that the

pattern of EEOC filings with an emphasis on termination and not hiring claims may suggest

that the majority of individuals with disabilities still are not yet able to take full advantage of

their ADA rights. They may need greater education, information and help in utilizing what is

available. However, to say that is not to imply that the ADA has not been effective. Rather it is

to suggest that more vigorous enforcement is needed.

Those who argue that vigorous enforcement discourages employers from hiring people

with disabilities seem to believe that civil rights enforcement should operate according to the

principles of the biblical definition of faith: the evidence of things unseen and the hope of

things to come. The "unseen evidence" is the belief that the ADA is a hindrance to employment, even though it has already increased employment; the "hope of things to come" is the

supposition that without the ADA we will stop discriminating, even though our history, culture and customs taughtand teachesus to discriminate. We need not deny the real evidence of our experience; we need not deny the hope the ADA has so far brought us. The

promise of the ADAto provide opportunities for persons with disabilitiesbenefits us all if

we achieve' their inclusion in every aspect of American life. This enforcement report is a

small contribution to the goal of realizing that promise through effective implementation of

the ADA.

House Committee on Energy and Commerce, H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 4, at 25 (1990).

2 Quoted in Paul Steven Miller, The EEOC's Enforcement of the Americans with Disabilities Act in the Sixth Circuit, 49 Case W. Res. 217, 221 (1998).

3_United States u. Clark, 96 U.S. 37, 49 (1878).

4 John M. McNeil, U.S. Dep't of Commerce, Americans With Disabilities: 1991-1992 Data from the Survey of Income and Program Participation 5 (1993).

5 President's Committee on Employment of People with Disabilities, Statistical Report: The Status of People with

Disabilities.

For a general discussion on EEOC efforts at enforcement of the employment provisions of the EEOC, see Paul

Steven Miller, The EEOC's Enforcement of the Americans with Disabilities Act in the Sixth Circuit, 49 Case W.

Res. 217 (1998); Paul Steven Miller, The Americans With Disabilities Act in Texas: The EEOC's Continuing Efforts

in Enforcement, 34 Houston L. Rev 777 (1997).

7 Employment Rate of People with Disabilities Increases under the Americans with Disabilities Act, (President's

Comm. on Employment of People with Disabilities, Washington, D.C., July 22, 1996) (jobs for the severely disabled

increased from 2.91 million in 1991 to 3.71 million in 1994).

8 United Cerebral Palsy Ass'n, Is ADA Working?: 1994 Progress Report on ADA, American Business 4 (1994).

9 Id.

19 David J. Popiel, The Debate over the Americans with Disabilities Act: A Question of Economics or Justice? 10 St.

John's J.L. Comm. 527, 528 (1995).

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)
11 Elizabeth Clark Morin, Americans With Disabilities Act of 1990: Social Integration Through Employment, 40 Cath. U.L. Rev. 189, 192 (Fall 1990). 12 Louis Graziano, The Americans with Disabilities Act: Both Sword and Shield, 10 St. John's J.L. Comm. 511 (1995). 13 Paul Steven Miller, The EEOC's Enforcement of the Americans with Disabilities Act in the Sixth Circuit, 49 Case W. Res. 217, 224 n.38 (1998) (reporting that a July 1995 Louis Harris and Associates Survey of senior corporate

executives found that 70% of the executives surveyed supported the ADAand did not favor a weakening of the law.)

14 David J. Popiel, The Debate over the Americans with Disabilities Act: A Question of Economics or Justice? 10 St. John's J.L. Comm. 527, 528 (1995). 16 Waynian v. Southard, 10 Wheat. 1 (1825); See also, United States v. Grimaud, 220 U.S. 506 (1911) (applying Justice Marshall's theory specifically to administrative agencies.)

16 Below are some often-recycled examples. A careful examination of the facts show these cases to raise far from frivolous issues.

In 1997, a Ryder Systems Truck driver won a 5.5 million verdict after claiming under ADA that the company un- fairly removed him from his position as truck driver based on safety concerns after he suffered an epileptic sei- zure. In fact, the employee was desperately seeking an alternative jobso that he might not become dependent and unemployed. He asked the company to place him in March 1993 in a job loading automobiles onto railroad cars within a confined area. Medical experts hired by the plaintiff and the company said he could perform the essential functions of the proposed job safely, but the company refused to place himin that position.

In Davidson v. Midelfort Clinic, 133 F.3d 499 (1998), the plaintiff disclosed during her interview for a job that she suffered from ADD, a chronic psychological disability that affects a person's ability "to concentrate, to

learn, to organize one's thoughts, to verbalize them, and to formulate explanations." The plaintiff had strug- gled with ADD for many years, although she was not diagnosed with the disability until late in life. Notwith- standing her disability, the plaintiff, through "hard work, adaptive techniques, and help from her professors," had excelled in both high school and college. In her graduate course work she obtained a 3.87 on a 4.0 point scale. Throughout her education, the plaintiff would compensate for her disability by laboriously writing out passages of everything she read. Her claim was whether her employer should have reasonably accommodated her disorder by cooperating with her to find solutions, rather than firing her for having a backlog of dictation.

In EEOC v. Wal-Mart Stores, Lac., No. CV-95-1199JP (D.N.M. Feb 21, 1997), the EEOC sued Wal-Mart for

refusing to hire a plaintiff who did not have a right arm. The refusal to hire followed questions to the plaintiff about his current and past medical conditions. The EEOC based its suit upon requirements in the ADA pro- hibiting such questions. Prior to the ADA, such information was frequently used to exclude applicants with disabilitiesboth hidden and visiblebefore there was any determination about the individual's capability to perform the particular job.

Paul Steven Miller, The EEOC's Enforcement of the Americans with Disabilities Act in the Sixth Circuit, 49

Case W. Res. 217, 221 (1998). 19 Hamlet, Act 1, sc. 5. 19 See supra note 1.

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Statement of Commissioner Russell G. Redenbaugh

The two-part report by the U.S. Commission on Civil Rights assessing Federal enforcement of title I (EEOC) and title II, subtitle A (DOJ), of the Americans with Disabilities Act is

an important effort. It represents the first indepth study of disabilities issues by the Commission since the ADA was signed into law by President Bush on July 26, 1990. As the Commission's statutory enforcement report for fiscal year 1998, it also aims to fulfill our annual

statutory obligation to report to the President and to Congress on the enforcement of Federal

civil rights law in a particular areathis year, the ADA.

The report is important for me, professionally and personally. I am blind. As a member of

a class protected under ADA, and as a Commissioner, I am committed to expanding opportunities for all Americans, and especially for the 54 million Americans who are disabled. I am

also committed to doing what works. Now that 8 years have passed since the passage of the

ADA, it is important to stop and look at what has happened. Consider these findings from a

new, landmark survey by Louis Harris and Associates, commissioned by the National Organization on Disability:

71 percent of disabled persons of working age (18 to 64) are not employed, versus 21 percent

of nondisabled Americans, a gap of 50 percentage points. In 1986 (when Harris first conducted this poll), 66 percent of the disabled were not employed, versus less than 10 percent

of all Americans.

34 percent of adults with disabilities live below the poverty line (i.e., in households earning less than $15,000 in annual income), versus 12 percent of those without disabilities.

The income gapapproximately 20 percentage pointshas remained virtually constant

since 1986, when the percentages were 51 percent and 29 percent, respectively.1

The Harris survey also looks at gaps between those with and without disabilities in other

areas, including education, frequency of socializing, attendance at religious services, political

participation, and access to transportation and health care. But as the survey's findings

make clear, "Employment continues to be the area with the widest gulf between those who

are disabled and those who are not." The new findings are disturbing, especially when one

considers that there are approximately 20 million more people working today than in 1986

and the overall unemployment rate has gone down by 35.7 percent, from 7 percent in 1986 to

about 4.5 percent today. Obviously, the unemployment rate for the severely disabled is a serious social problem and, in the 8 years since passage of the ADA, there is no evidence of any

improvement. In fact, there is reason to believe the EEOC's enforcement of title I may diminish the employment prospects for persons with disabilities by actually encouraging employers to discriminate for fear of future legal liabilities.

I must commend the staff of the USCCR's Office of Civil Rights Enforcement for preparing

a report that, on the whole, is carefully researched and clearly written. The report provides a

thorough outline of the ADA enforcement activities of both the EEOC and the DOJ. It also

provides a thoughtful analysis of the background and history of America's disability policy

and the debate that gave rise to the passage of ADA. The discussions of the complexity of the

11998 National Organization f n Disability/Louis Harris & Associates Survey of Americans with Disabilities, Washington, D.C., July 23, 1998.

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law and the numerous and often contradictory decisions by the courts over the past several years are especially helpful in- illuminating both the challenges and opportunities that the ADA continues to present for disabled Americans and for employers and employees alike. It was not the original purpose of the Commission's report to ask whether the law is bringing about its intended consequences. However, the report does stray into the policy area, albeit without producing the necessary analytical framework to support its policy rec- ommendations. It advocates an expansion of EEOC's interpretation of the law, in a way that may or may not have been contemplated in the original legislation, without ever addressing this fundamental question: Are the EEOC's regulations for enforcing title I actually improv- ing employment possibilities for the disabled?

As the report clearly points out, since the passage of the ADA "many basic issues, such as who is protected by the act and what employers or other covered entities are required to do under the act, remain unresolved." The report also rightly acknowledges that, "In large part, these issues arise out of inherent ambiguities in the language of the statute that have not been resolved through the issuance of implementing regulations or by the Federal courts." While I certainly agree with the problems the report identifies in this regard, I strongly disa- gree with its basic direction for encouraging the executive branch to expand the ADA beyond its current interpretations in a way that would only serve to further distort and trivialize the law's intent and that would perhaps even increase public hostility toward the disabled. My greatest concerns withthis report are based not on the problems it has identified, but on its recommendations for addressing those problems. For example, the report contains numerous calls for expanding EEOC's rulemaking and/or the development and issuance of additional "policy guidance" with respect to the definitions and concepts of "qualified individual with a dis- ability," "reasonable accommodation," "undue hardship," "mitigating measures," and "major life activities." The underlying thrust of the recommendations is that "EEOC should adopt a policy of pursuing regulatory additions in areas where the courts have consistently opposed the EEOC's position on key ADA issues.. . ."

The report repeatedly takes the position that EEOC is doing an "exemplary" job in inter- preting and enforcing the ADA. It positsthat where the courts may have struggled or disagreed with the EEOC's interpretations, this is because "Many Federal judges appear either to misun- derstand the ADA or be hostile to it." Although conceding that the law is complex, the report does not draw the corollary that difficulties of legal interpretations can result from such com- plexity and are not necessarily an indication of bad will. Consider this array of cases, which constitute only a small sampling of the issues that have come before almost every Federal cir- cuit over the past few years. Many of these cases defy credulity and are absolutely not what we intended when we passed the ADA in 1990:

A Federal jury awarded a New Mexico man who lost part 'of his arm in a car accident $157,500 after a Wal-Mart interviewer asked him an illegal question when he applied for .a stocker's job. The question was, "What current or past medical problems might limit your ability to do a job?" The February 1997 awardwhich included $150,000 in punitive damagesis the largest ever involving an unlawful preemployment medical inquiry. See EEOC v. Wal-Mart Stores, Inc., 1998 WL 278758 (D.N.M.).

o A Wisconsin psychotherapist with attention deficit disorder who was fired for falling be- hind on her paperinfork won reinstatement of her claim under ADA as a result of a Sev- enth Circuit decision last January. The court noted that ADA may reach those "who may require some kind of accommodation from their employer, notwithstanding their inability to demonstrate a present impairment that is substantial enough to qualify as disabling under the ADA." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998) o In January 1997, the EEOC won a $5.5 million verdict for a former Ryder Systems truck driver, claiming under ADA that the company unfairly removed him from his position citing

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safety concerns after he had suffered an epileptic seizure. The driver was hired by another

firm, had a seizure while driving, and crashed into a tree. The trial judge reduced the award

to approximately $491,000, and both sides have filed appeals with the Sixth Circuit. EEOC

v. Complete Auto Transit, Inc., E.D.Mich., verdict entered on Jan. 6, 1997, notice of appeal

filed Nov. 10, 1997 (No. 97-2202), notice of cross-appealfiled July 22, 1998 (No. 98-1806)

A former Federal employee claimed that his threatening behavior on the job was tied to

his alcoholism (a covered disability under the both the Rehabilitation Act of 1973 and the

ADA). The Tenth Circuit Court of Appeals rejected the man's claim, reasoning that "We

cannot adopt an interpretation of the statute which would require an employer to accept

egregious behavior by an alcoholic employee when that same behavior, exhibited by a nondisabled employee, would require termination." (Williams v. Widnall, 79 F.3d 1003 (10th

Cir. 1996))

In February 1997, a secretary with depression failed to persuade the Court of Appeals for

the Seventh Circuit that her employer's refusal to grant her an indefinite leave of absence

or permission to work at home violated the ADA. The court reasoned that, "Not only is it

doubtful that an executive secretary could perform her essential job functions at home,

but we have stated as a matter of law that working at home is not a reasonable accommodation." Johnson v. Foulds, Inc., 111 F.3d 133 (7th Cir. 1997), unpublished disposition, 9

NDLR P 165, 1997 WL 78599 (7th Cir. (Ill.))

Also in February 1997, the U.S. District Court for the Eastern District of Michigan threw

out the ADA claim of a computer salesman with a facial scar, ruling that although a scar

might qualify as a disability, the employee had failed to show any nexus between the scar

and management's decision to fire him. Van Sickle v. Automatic Data Processing, Inc., 952

F.Supp. 1213 (E.D.Mich. 1997)

InSeptember 1997, a Federal judge in New York dismissed the ADA claim of a fired employee who was diagnosed with colitis and depression. After a 2-week stay in a psychiatric

hospital, the woman had returned to work and was offered an alternative assignment by her

employer. She refused to accept the assignment and was fired for insubordination.The judge

rejected the woman's claim that her colitis preventedher from working and that her depression substantially limited her ability to perform her job. The court also rejected the woman's

assertion that her condition caused her to be disinterested in sex, which she argued was a

major life activity covered by ADA. Johnson v. New York Medical College, 10 NDLR P 370,

1997 WL 580708 (S.D.N.Y.)

Several years ago, an AT&T employee sued the company for failing to accommodate his

alleged disability (depression and severe anxiety) by providing him with a job without

prolonged and inordinate stress. The Third Circuit ruled in January 1998 that a request

for a stress-free workplace is not a reasonable accommodation under the ADA. Gaul v.

Lucent Technologies, Inc., 134 F.3d 576 (3rd Cir. 1998)

After he was fired in 1994, an industrial process engineer at Guilford of Maine filed suit

Under ADA based on his inability to get along with others. In response to several warnings he had received from his supervisor about a marked deterioration in his attitude, his

psychologist told the company that the man's duties should be restricted "to avoid responsibilities which require significant interaction with other employees." The First Circuit

rejected the ADA claim, saying that while "ability to get along with others" might be considered a major life activity under the ADA in some circumstances, in the plaintiffs case

the evidence did not establish that he had difficulty in interacting with anyone other than

his supervisor. Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997)

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Characterizing EEOC's position as "troublesome," a Federal judge in Detroit ruled last January that the agency should not have sued the Hertz Corp. for disabilities discrimination

when Hertz dismissed, for reasons of misconduct, a "job coaching service" engaged to help

mentally retarded workers. Three months after the employees started working for Hertz at

the Detroit airport in early 1994, the two job coaches were observed by several Hertz supervisors "engaged in rather passionate lovemaking" in the front seat of a car, while their two

charges were in the back seat. The EEOC filed suit for the job firm (which received govern- ment funds for its coaching service), alleging that the provision of a job coach was a reason- able accommodation under ADA, and that once the company hired the employees, it was obligated to continue that accommodation indefinitely. The court compared the lawsuit to the

fairy tale about the emperor's new clothes, and characterized EEOC's position as an unwarranted expansion of the ADA that would have the effect of punishing employers for hiring

persons with disabilities. EEOC v. Hertz, 7 A.D. Cases 1097, 11 NDLR P 293, 1998 WL 5694

(E.D.Mich.)

In the case of Smith v. Midland Brake Inc., the Tenth Circuit Court of Appeals ruled last March that Midland Brake did not violate the ADA by refusing to rehire a former light as- sembler, who was terminated after he became unable to work because of a chronic skin

condition. The company attempted to accommodate the employee by assigning him to work that involved less lifting and reducing his exposure to irritants in the job. The man

took a leave of absence, received $20,000 to settle his workers' compensation claim, and was terminated. In his suit against Midland Brake, he argued that the company was obliged to find an alternative position for him within the company. Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998)

Also last March, the First Circuit Court of Appeals ruled that a Massachusetts trucker

who asked to be allowed to maintain a special driving route to accommodate his fear of

crossing bridges was not fired in violation of the ADA. The court ruled in favor of the employer, who testified that the man had been fired because he was caught along with two other drivers falsifying travel logs required by the U.S. Department of Transportation.

Champagne v. Servistar Corporation, 138 F.3d 7 (1st Cir. 1998)

A 20-year veteran employee of Southwestern Bell Telephone Co., who was fired for verbally

abusing and striking a female coworker, had his ADA claim dismissed in the Fifth Circuit.

His contention was that his outburst was caused by post-traumatic stress disorder (PTSD)

that resulted from an incident .4 months earlier when he rescued a drowning woman. During

an evaluation period following the outburst, the company decided to dismiss him after receiving an anonymous letter from employees in the man's department accusing him of being

a "disgusting, dangerous and abusive man and manager." The court found that the plaintiff

failed to demonstrate that his PTSD substantially limited his major life activities, observing

that after he left Southwestern Bell, the man ran his own software distribution business for

almost a year and eventually was hired as a senior consultant with another company. Hamilton v. Southwestern Bell Telephone, 136 F.3d 1047 (5th Cir. 1998)

In the Sixth Circuit last May, the court found that the offer of the City of Middletown, Ohio, to reassign a disabled police officer to a desk job was a reasonable accommodation under the

ADA, even though it was not the accommodation preferred by the employee. As a result of on-the-job injuries to his neck, shoulders, back, and legs in the late 1980s, the police officer had missed a considerable amount of work time, and disputes arose about the legitimacy of his absences. The officer ended up receiving a 45 percent permanent disability retirement,

but then filed suit under ADA, arguing that the city had failed to accommodate his disability

by not allowing him to work the 11:00 p.m. to 7:00 a.m. shift or transferring him to a detective position, both of which he claimed were less stressful. Because the man's injuries re- stricted him to lifting no more than 50 pounds and he needed a job in which frequent ab277

29
sences would not adversely affect the operation of the department, the court found that the

city's offer of the desk job constituted a reasonable accommodation. Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998)

In the case of Mathews v. Trilogy Communications, the Eighth Circuit Court of Appeals

ruled that the termination of an insulin-dependent diabetic traveling sales representative,

after he became uninsurable because of his bad driving record, did not establish disabilitybased discrimination, since at the time of termination he no longer met the same professional requirementsi.e. having a valid driver's license and being insurable under the

employer's insurance policyas when he was hired. The court's reasoning was that these

were not just mere company rules, but rather objective qualifications for the job because

sales personnel must be able to drive to clients' locations. The decision also referenced the

man's failure to tell management about his prior arrest for driving under the influence of

alcohol. Mathews v. Trilogy Communications, Inc., 143 F.3d 1160 (8th Cir. 1998)

In another Eighth Circuit decision, Cody v. Cigna Healthcare of St. Louis, the court of appeals rejected a nurse's claim (previously rejected by the EEOC) that she was constructively discharged because of her alleged disability which caused her to become "anxious in

elevators, while driving, and while in perceived high-crime neighborhoods." After the

nurse's request for reassignment to other neighborhoods was denied, she was observed by

other employees "sprinkling salt in front of her cubicle to 'keep away the evil spirits,'

staring off into space for an hour at a time, drawing pictures of sperm, and talking about a

gun." Cigna offered a paid medical leave on account of the woman's alleged depression

and requested that she see a psychologist before returning to work. The woman refused

that offer and decided to quit. The court found that even though the woman was diagnosed three years after she quit her job as having schizotypal personality disorder, she

was always able to work and got good reviews prior to quitting, and she offered no evidence of diagnosis of depression. Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595

(8th Cir. 1998)

Most of these cases speak for themselves. While they involve a range of claims and outcomes, they all help illustrate the extent to which the definitions and concepts of title I have

been expanded in alfiiost every way imaginable, with the resultant trivialization of "disability."

Is it any wonder that the courts are "all over the map" on the ADA? These cases also show the

extent to which a law like the ADA can be used as a tool for turning the workplace into what

Walter Olson has aptly called "The Excuse Factory."2

It might be argued, perhaps, that for all the claims that are dismissed, overturned, or

deemed frivolous, there could be an equal number of legitimate, well-founded complaints involving disabled persons who have been unjustly shut out of a job or denied a reasonable accommodation to allow them to perform a job they are both qualified and eager to perform. It is

interesting to note that, according to one estimate, between 1992 and 1997 the EEOC received

more than 90,000 complaints filed under title I of the ADA, and almost half (49.6 percent) were

found, by the EEOC, to have no reasonable cause. What seems to be happening is that, even

with the EEOC's rejection of half of its complaints, the courts are dealing with many cases that

appear outrageous to most Americans and that damage the reputation of both the ADA and

those of us with severe disabilities. The fact that these kinds of cases are growing in number is

especially disturbing at a time when 70 percent of the severely disabled are not employed and

about 7.5 million Americans remain on the social security disability rolls.

Disabilities do exist. They do limit the abilities of people, perhaps not as much as some

think, but the effect is not trivial and it is certainly real. Prejudice and ignorance are also

2Wa lter K. Olson, The Excuse Factory: How Employment Law is Paralyzing the American Workplacc(New York: The

Free Press, 1997).

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undeniably real. Often employers "globalize" a disability that may exist in one area by as- suming an inability in all areas. That is why the Americans with Disabilities Act is needed.

The tragedy is that public attention, which should be focused on ways to encourage the em- ployment of persons with disabilities, has been diverted by the continued abuse of title I, as illustrated by the kinds of cases listed above. And as more and more of these cases come to

light, more and more Americans have begun to think of the ADA (to borrow the title of a recent news report) as "The Americans with Minor Disabilities Act."3

One clear indication that those who have benefited most from the ADA are not the severely disabled is that about 87 percent of complaintsto the EEOC come from individuals who are al- ready in a job. Similarly, from my research, it appears that the overwhelming number of ADA- related court cases involves firing, rather than hiring, decisions. Considering that the hiring of

the disabled was a key motivator of the ADA, and that only about 30 percent of the severely

disabled are in the work force, this is rather shocking. It seems to me to be what Sherlock Holmes might call "the dog that didn't bark."

Why is there so little caselaw claiming discrimination in the hiring of the disabled? It is unlikely that this is because no discrimination occurs in the hiring process. From my own experience, I have found that discrimination, particularly when it occurs at the hiring stage, is very difficult to measure and very difficult to prove. In fact, there is probably no direct evi- dence. There is only evidence coming from an understanding of economicsfrom the notion

of trade-offs and economic scarcity and choice. If we look from this perspective, we can see that the EEOC's title I regulations may actually encourage discrimination, insofar as they

tend to reduce the thousand-fold considerations of hiring down to one: membership in a pro- tected class.

My personal experience is that discrimination against people with disabilities is largely

based on ignorance and misunderstanding, ratherthan exploitation and malicious intent. What comes into play are the "myths, fears, and stereotypes" that are mentioned frequently in the Commission's report. But the proliferation of cases like the ones cited above only deepens the misunderstanding and increase the distrust. Similarly, with its approach of expanding the ap- plication of the ADA's key definitions and concepts, this report would only take us in a direction

that could encourage further abuse and misunderstandings. Again, it is not the purpose of the report to decide where the law has strayed far from its original good intentions. Nevertheless, throughout its discussions of the complex issues that have arisen since passage of ADA, these crucial questions remain unanswered: Where is the

enforcement effort not helping? Where may it actually be harming those it was intended to help?

I have found that when you are seeking a job you usually have to be able to demon- strate that you are equally competent, if not better than other candidates. That is a high

standard, but the right one. EmplOyers should always seek to hire the most qualified. But this can be doubly hard for the disabled candidate, particularly if the potential employer operates from an assumption that you cannot perform the duties of the position because of your disability. How can you demonstrate competence before you are hired, especially for

that first job? Also, the added cost of providing "reasonable accommodation" and the risks of a future EEOC lawsuit are powerful incentives for an employer to perpetuate his pre- sumption that you with your disability cannot do the same job an "abled" worker can. Imagine, if you will, that there are five candidates for a position; that two are obviously not qualified; and that of the three remaining candidates, you are the only one with a disability. The obvious incentive for the employer is to take what may look like the safest (and

less costly) course of action and hire one of the other two candidates. Thus, your career is

3Joseph P. Shapiro, "The Americans with Minor Disabilities Act: The Surprising Beneficiaries of the Law,U.S. News & World Repor4 July 6, 1998, pp. 41-42.

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stunted before it even begins. Your only hope is to find an employer who wishes not to discriminate and who is willing to pay extra to exhibit virtuous behavior.

As a member of a class that is protected under ADA, I think it would be hard for me to

secure employment today. In 1969 (more than 20 years prior to enactment of the ADA), I was

hired by a Philadelphia investment firm on the basis that if it didn't work they would call it

off"no harm, no foul." The standard that applied to me was basically the one that applied to

everyone else: If you can do the job, it's yours, but if it turns out you cannot do the job, we're

under no obligation to keep you. Today, we could not make that contract and expect it to stick

without potential legal liabilities under title I. It is much easier to not hire someone who

might be a future legal liability than it would be to terminate him once he has been hired.

This higher risk is a barrier to hiring members of the protected class. An over-expansive

application of ADA may create the impression that members of the class it protects essentially become what is termed in human resources jargon "fire proof." The impression (and

sometimes the reality) can also be that the "normal" standard (i.e., that if you are disabled

and can do the job you are protected by the ADA) becomes distorted to the extent it becomes

a tool which an employee may use to become "fire proof." The effect that Federal enforcement

efforts can have in this regard, although very difficult to measure, cannot be discounted if the

ADA is,to achieve its purpose, which is to integrate the disabled into American society to the

fullest extent possible.

I had hoped that, in assessing EEOC's enforcement efforts for title I, the Commission's report would have explored the impact that these efforts might have on the hiring process. I could

not help but be struck by the number of times the report characterized EEOC's regulations and

policy guidance as "thoughtful," "insightful," "thorough," "skillful," "consistent," and "common

sense." However, there is very little discussion, if any, as to whether employees and employers

involved in the actual hiring process, particularly small businesses, share that assessment.

As I have explained above, my own fear is that the ADA implementing regulations can

have a chilling effect on the hiring of the disabled. I confess that it was not until I read the

section on EEOC's ADA enforcement guidance on "Preemployment Inquiries and Medical

Examinations," that I really understood the length and breadth of some of the current requirements. For example:

In the "pre-offer stage," an employer is not permitted to ask any kind of disabilityrelated questions or questions that are likely to elicit information about a disability.

An employer may ask an applicant whether he or she can perform different functions of

the job itself, including whether an applicant can perform those functions "with or without

reasonable accommodation." But the employer may not "ask a question in a manner that

requires the individual to disclose the need for reasonable accoinmodation."

An employer may not ask, at the pre-offer stage, how many days an applicant was sick

or on sick leave in his or her former position, because this question relates directly to

the severity of an individual's impairments, and severity is a criterion for determining

whether an impairment is "substantially limiting" to a "major life activity" and thus a

disability under the ADA.

Unless they are asking specifically about the ability to perform a job function, employers

may not ask whether applicants can perform "major life activities" such as standing, lifting, or walking because such questions "are likely to elicit information about a disability."

Potential employers may not ask applicants questions about their workers' compensation

history because, again, such questions are likely to elicit information about a disability.

Employers may not ask questions about lawful drug use, since these, too, go to the severity

of an impairment. An employer may ask questions about prior illegal drug use, so long as

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the employer does not ask about addiction to drugs, since this is a covered disability under

the ADA.

What I believe this sampling of forbidden questions helps illustrate is this: that laws and

regulations that are designed to enhance opportunity and expand rights often can end up

serving as constraints and limitations to both. With its numerous calls for the issuance of

additional regulations and/or "policy guidelines," and its many recommendations for "clarifying" or "expanding" its interpretations of the key terms and concepts of the ADA, the present report takes an approach that may only add to the regulatory disincentives to the

hiring of the disabled. Perhaps what is needed is an additional study by the Commission to

explore the tremendous disincentives and problems that the current system may present, for

the potential employer and job seeker alike.

In general, the present report tends to endorse the EEOC's position with respect to the vari- ous controversies of the past several years (for instance, the debate regardingpsychiatric dis- abilities). However, I was pleased to note that it does attempt to factor in some noteworthy

views from the private sector. The report includes, for example, a few references to the response

from the Equal Employment Advisory Council (EEAC), which represents over 300 of the Nation's largest private sector corporations. The EEAC was asked, among other things, for its as- sessment of EEOC policy guidance and, specifically, for its views as to whether EEOC guidelines adequately reflect the intent of Congress in enacting the ADA. It is important to read the

council's response, beyond the excerpts contained in the USCCR report:

The EEOC's initial substantive regulations, for the most part, adequately tracked Congressional intent

in enacting the ADA. Since adoption of the regulations, however, the EEOC's enforcement guidance has pushed the boundaries of Title I in every .conceivable direction. Over the years, through these documents, the agency has doubled the number of "major life activities" that give rise to ADA coverage, has adopted an interpretation of "qualified individual with a disability" that contradicts the statutory definition, and has attempted to read the word "reasonable"a critical modifier in defining

"accommodation"out of the statute.4

The council's response then goes on to cite specific examples of where the EEOC's guid- ance has taken some .positions that "defy common sense." To the staffs question as to whether the association could identify "any areas where EEOC needs to clarify [its] positions

further or where EEOC has not issued policy guidance but should," the council responded, "EEAC does not believe that there are other areas in which the EEOC needs to clarify its po- sition further."5 In fact, a key point the council makes is that the EEOC "should place itself on constant guard against external and perhaps internal pressures to broaden either the

scope of coverage or the scope of an employer's responsibility."6

The Commission's report would have done well to follow up on these points in greater detail. There is a growing perception, especially among the severely disabled, that the enforce- ment agencies have been ignoring their personal experiences and trying to fit everything

from paraplegia to personality disorders, epilepsy to allergies, blindness to attention deficit disorder, to name a fewinto the same kind of legal mold and, thus, the same kind of traditional civil rights framework. To the extent that the report acknowledges this problem, it does so by advocating, in a number of its recommendations, that the EEOC "clarify" its cur- rent guidelines. Certainly, there is something to be said for clarification, especially in those areas where controversies have arisen. But what is the best way to seek such clarification?

4Ann Elizabeth Reesman, General Counsel, EEOC, letter to the Assistant Staff Director for Civil Rights Evaluation, U.S. Commission on Civil Rights, Mar. 2, 1998, p. 5.

5Ibid., p. 6.

6Ibid., p. 4.

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And would this be accomplished more effectively and appropriately by the executive' branch,

or by the legislative branch, of government?

Many will argue that now is not the time to reopen the ADA for legislative discussion. Nevertheless, my view is that, as the elected branch of government, Congress can and should be

held accountable for the laws it passes. When Congress delegates so much of its regulationmaking authority to an executive agency, it not only blurs the separation of powers but also

invites precisely the kinds of challenges and conflicts that are described in this report and in

reports appearing across the country. That is why the United States Commission on Civil

Rights' recommendations for having EEOC "develop" the law through its litiga-tion activities

are especially troubling. The role of the Federal agencies is not to develop or shape the law but,

rather, to carry out the law and, when necessary, perhaps provide a thumb on the scales.

Eight years ago, the Americans with Disabilities Act was passed with high expectations

for addressing those areas where Congress had documented real and pervasive disabilitybased discrimination, and for promoting economic opportunity and full participation. ADA

passage also was achieved despite serious concerns about the potential for abuse of such a

law. With respect to employment of the severely disabled, the effects of title I are completely

disappointing: There have been no real employment gains for the disabled. Those who were

concerned about abuses have an abundance of evidence to justify their concerns. The difficulty is that the core ideal of the law is being pushed to extremes that are not defensible to

the American public, thus undermining and jeopardizing the acceptance and long term goals

of the ADA.

As someone who has had to deal with disability-based discrimination in my own life, I

must say that my decision to vote against this report was not an easy one. The staff of the

USCCR's Office of Civil Rights Enforcement has worked diligently to produce some very useful research and to elucidate the major issues raised by EEOC and DOJ's enforcement activities. As Commissioners, we have a special responsibility to facilitate, encourage, and contribute to the marketplace of ideas. In that marketplace, reasonable people can disagree. From

my own experience, both personally and professionally, this is particularly true when we debate a topic as complex as Federal enforcement of the ADA. We may differ as to the steps we

recommend for achieving our goal, but we are united in our commitment to the goal itself:

Protecting the rights of the millions of disabled citizens who continue to struggle for equal

access, equal opportunity in the workplace, and an equal chance to contribute to America's

future.

282

2 9 6
APPENDIX A

ADA Charges by Bases

Bases*

Number of

ADA charges

Percentage of

ADA charges Other disability 41,872 23.05

Back impairment 26,437 14.55

Emotional/psychiatric impairment 20,651 11.37

Neurological impairment 17,723 9.75

Extremities 16,247 8.94

Regarded as disabled 11,162 6.14

Heart/cardiovascular impairment 6,320 3.48

Diabetes 5,372 2.96

Hearing impairment 4,763 2.62

Vision impairment 4,044 2.23

Cancer 3,577 1.97

Alcoholism 3,318 1.83

Record of disability 3,098 1.71

Asthma 2,635 1.45

HIV 2,566 1.41

Drug addiction 1,606 0.88

Gastrointestinal impairment 1,427 0.79

Other blood disorder 1,394 0.77

Respiratory/pulmonary disorder 1,391 0.77

Speech impairment 1,100 0.61

Allergies 1,089 0.60

Relationship/association with an individual

with a disability 1,059 0.58

Kidney impairment 978 0.54

Mental retardation 674 0.37

Chemical sensitivities 605 0.33

Disfigurement 506 0.28

Dwarfism 74 0.04

Totalt 181,688 100

Note: Charges include both ADA-only charges and charges identifying ADA and another statute(s). *Charging parties may identify up to six bases.

Total represents total bases identified (not total charges). Non-disability bases filed jointly with other statues (such as discrimination based on race, religion, sex, etc.) have been excluded from the total.

Source: EEOC, Charge Data System.

283

297
APPENDIX B

ADA Charges by Issue

Issue*

Number of

ADA charges

Percentage of

ADA charges

Discharge 87,507 34.29

Reasonable accommodation 34,528 13.53

Terms and conditions 29,275 11.47

Harassment 17,345 6.80

Hiring 15,054 5.90

Other 8,128 3.19

Discipline 6,546 2.57

Layoff 6,420 2.52

Promotion 5,915 2.32

Wages 5,042 1.98

Demotion 4,924 1.93

Constructive discharge 4,896 1.92

Reinstatement 4,695 1.84

Suspension 3,543 1.39

Benefits 3,168 1.24

Intimidation 2,931 1.15

Sexual harassment 2,595 1.02

Assignment 2,056 0.81

Recall 1,841 0.72

Benefits-insurance 1,310 0.51

Training 1,198 0.47

Union representation 944 0.37

Prohibited medical inquiry/exam 711 0.28

Retirement involuntary 689 0.27

Job classification 585 0.23

References unfavorable 477 0.19

Benefits-retirement/pension 342 0.13

Exclusion 343 0.13

Referral 335 0.13

Maternity 294 0.12

Qualifications 306 0.12

Seniority 312 0.12

Testing 214 0.08

Record keeping violation 172 0.07

Tenure 183 0.07

Severance pay denied 90 0.04

Filing EEO forms 57 0.02

Advertising 31 0.01

Apprenticeship 35 0.01

Waiver of ADEA suit rights 16 0.01

Early retirement incentive 35 0.01

Posting notice 25 0.01

Segregated facilities 29 0.01

284
Number of Percentage of

Issue* ADA charges ADA charges

English language only rule 2 0.00

Other language/accent issue 8 0.00

Paternity 12 0.00

Segregated locals 5 0.00

Totals 255,169 100.00

Note: Charges include both ADA-only charges and charges identifying ADA and another statute(s). Charging parties may identify up to eight issues.

Total represents total issues identified (not total charges). Total includes issues identified in ADA-only complaints and complaints

filed jointly with other statues.

Source: EEOC, Charge Data System.

285

299
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291

National Council on Disability, Cognitive Impairments and the Application of Title I of the ADA

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Jan. 26,. 1996).

National Council on Disability, Disability Perspectives

and Recommendations on Proposals to Reform the

Medicaid and Medicare Programs (Washington,

DC: National Council on Disability, Nov. 9, 1995).

National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act (Washington, DC: National Council on

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National Council on Disability, Foreign Policy and

Disability (Washington, DC: National Council on

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National Council on Disability, Furthering the Goals

of the Americans with Disabilities Act Through

Disability Policy Research in the 1990s: Summary

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(Washington, DC: National Council on Disability

and National Institute on Disability and Rehabilitation Research, Dec. 31, 1993).

National Council on Disability, Making Health Care

Reform Work for Americans with Disabilities;

Summary Information on Five "Town Meetings"

On Health Care Reform: A Report to the President

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National Council on Disability, Meeting of the Unique

Needs of Minorities with Disabilities: A Report to

the President and the Congress (Washington, DC:

National Council on Disability, Apr. 26, 1993).

National Council on Disability, National Disability

Policy: A Progress Report, July 26, 1996October

31, 1997 (Washington, DC: National Council on

Disability, Oct. 31, 1997).

National Council on Disability, Removing Barriers to

Work: Action Proposals for the 105th Congress and

Beyond (Washington, DC: National Council on

Disability, Sept. 24, 1997).

National Council on Disability, Sharing the Risk and

Ensuring Independence: A Disability Perspective

on Access to Health Insurance and Health-Related

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National Council on Disability, Study on the Financing of Assistive Technology Devices and Services

for Individuals with Disabilities: A Report to the

President and the Congress of the United States

(Washington, DC: National Council on Disability,

Mar. 4, 1993).

National Council on Disability, Voices of Freedom:

America Speaks out on the ADA: A Report to the

305
President and Congress (Washington, DC: National Council on Disability, July 26, 1995).

National Council on the Handicapped, Toward Independence: An Assessment of Federal Laws and

Programs Affecting Persons with Disabilities

With Legislative Recommendations (Washington,

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National Council on the Handicapped, On the Threshold of Independence: A Report to the President and

to the Congress (Washington, DC: National Council on the Handicapped, January 1988).

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(Washington, DC: President's Committee on Employment of People with Disabilities, 1996).

President's Committee on Employment of People with

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Committee on Employment of People with Disabilities, January 1995).

President's Committee on Employment of People with

Disabilities, Operation People First: Toward a Na.

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Committee on Employment of People with Disabilities, 1993 Teleconference Project

(Washington, DC: President's Committee on Employment of People with Disabilities, March 1994).

President's Committee on Employment of People with

Disabilities, Pathways to Employment for People

with Learning Disabilities: A Plan' for Action, by

Dale S. Brown, Paul J. Gerber, and Carol .Dowdy

(Washington, DC: President's Committee on Em-.

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President's Committee on Empioyment of People with

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President's Committee on Employment of People with

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President's Committee on Employment of People with

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Civil Service Commission Report to the Congress by

the Comptroller General of the United States, System for Processing Individual Equal Employment

Opportunity Discrimination Complaints: Improvements Needed, April 8, 1977FPCD-76-77.

General Accounting Office, Accessibility for the Disabled: Standards for Access to State 'DepartmentDesigned Buildings Overseas, April 1991.

General Accounting Office, Age Employment Discrimination: EEOC's Investigation of Charges Under 1987 Law, Report to Congressional Requesters, September 1992.

General Accounting Office, Americans with . Disabilities Act: Challenges Faced by Transit Agencies in

Complying with the Act's Requireinents, Report to

Congressional Requesters, March 1994.

General Accounting Office, Americans with Disabilities Act: Effects of the Law on Access to Goods and

Services, Report to the' Chairman, Subcommittee

on Select Education and Civil Rights, Committee

on Education and Labor, U.S. House of Representatives, June 1994.

General 'Accounting Office, Americans with Disabilities Act: Initial Accessibility Good But Important

Barriers Remain, Report to the Chairman, Subcommittee on Select Education and Civil Rights,

Committee on Education and Labor, U.S. House of

Representatives, May 1993.

General Accounting Office, Appealed Disability

Claims: Despite SSA's Efforts, It Will Not Reach

Backlog Reduction_ Goal, Report to the Chairman,

Subcommittee on Social Security, Committee on

Ways and Means, U.S. House of Representatives,

November 1996.

General Accounting Office, EEOC: An Overview, Testimony Before the Subcommittee on Select Education and Civil Rights, Committee on Education

and Labor, U.S. House of Representatives, Statement of Linda G. Morra, Director, Education and

Employment Issues, Health, Education, and Human Services Division, Jrily 27, 1993.

General Accounting Office, EEOC: Burgeoning Workload Calls for New Approaches, Testimony Before

the Committee on Labor and Human Resources,

U.S. Senate, statement of Linda G. Morra, Director, _Education and Employment Issues, Health,

Education, and Human Services Division, May 23,

1995.

General Accounting Office, EEOC's Expanding Workload: Increases in Age Discrimination and Other

Charges Call for a New' Approach, Report to the

Chairman, Special Committee on Aging, U.S..Senate, February 1994.

General Accounting Office, Employment Discrimination: Most Private-Sector Employers Use Alternative Dispute Resolution, Report to Congressional

Requesters, July 1995.

General Accounting Office, Equal Employment Opportunity: EEOC and State Agencies Did Not Fully

Investigate Discrimination Charges, October 1988.

292

306
General Accounting Office, Federal Reorganization:

Congressional Proposal to Merge Education, Labor, and EEOC, June 1995.

General Accounting Office, Financial Management

Problems, at the Equal Employment Opportunity

Commission, Oct. 30,1981.

General Accounting Office, The Equal Employment

Opportunity. Commission Has Made Limited Progress in Eliminating Employment Diserimination,

Sept. 28,1976.

General. Accounting Office, Further Improvements

. Needed. in EEOC Enforcement Activities, Apr. 9,

1981. .. . . General Accounting Office, People with Disabilities:

Federal PrograMs Could Work Together More Efficiently to Promote, Employment, Report to the

Chairman, Subcommittee on Employer-Employee

Relations, Committee on Economic and Educational Opportunities, U.S. House of Representatives, September 1996.

General Accounting Office, Social Security: Disability

in Promoting Return to Work, Report to Congressional Committees, March 1997.

General Accounting Office, Social Security: Disability

Programs Lag in Promoting Return to Work, Testimony before the Special Committee on Aging,

U.S. Senate, statement of Jane L. Ross, Director,

Income Security Issues, Health,' Education, and

Human. Services Division, June 5,1996.

Scholarly Articles (Except Law Reviews),

Joumals, Papers, and Manuscripts

Reginald J. 'Alston, Tyronn J. Bell, Sonja Feist-Price,

"Racial 'Identity and African Americans with Disabilities: Theoretical and Practical Considerations," Journal of Rehabilitation (April/May/June

1996), pp.' 11-15.

M. Jocelyn Armstrong and Maureen H. Fitzgerald,

"Culture and Disability Studies: An Anthropological Perspective," Rehabilitation Education, vol. 10,

no. 4 (1996), pp. 247-304.

Charles A. Asbury et al., "Attitudinal and Perceptual

Correlates .of Employment Status Among African

Americans with Disabilities,". Journal of Rehabilitation (April/May/June 1994), pp. 28-32.

Marjorie L. Baldwin, "Can the ADA Achieve its Employment Goals?," The Annals of the American

Academy (January 1997), pp. 37-52.

Marjorie' Baldwin and William G. Johnson, "Labor

Market Discrimination Against Men with Disabilities," The Journal of Human Resources, vol. 29, no.

1 (Winter 1994), pp. 1-19.

Sharon N. Barnartt, "Disability Culture or Disability

Consciousness?," Journal of Disability Policy

Studies, vol. 7, no. 2 (1996), pp. 1-19.

Andrew. I. Batavia, "Ideology and Independent Living:

Will Conservatism Harm People with Disabilities?" The. Annals of the American Academy

(January 1997), pp. 10-23.

Andrew I. Batavia, "Relating Disability Policy to

Broader Public Policy: Understanding the Concept

of 'Handicap'," Policy Studies Journal, vol. 21, no.

4 (1993), pp. 735-739.

Edward D. Berkowitz, "Disabled Policy: A Personal

Postscript," Journal of Disability Policy Studies,

vol. 3, no. 1 (1992), pp. 1-16.

Herbert L. Bernsen and Glenn E. Gauger, "ADA's

Impact: Requirements for Cell and Housing De

sign," Corrections Today (April 1995), pp. 96-102.

Ernest F. Biller, "Employment Testing of Persons

. with Specific, Learning Disabilities," Journal of

Rehabilitation (January/February/March 1993),

pp. 16-23.

Peter C. Bishop and Augustus J. Jones, Jr.,

"Implementing the Americans with Disabilitiei

Act of 1990: Assessing the Variables of Success,"

Public Administration Review, vol. 53, no. 2

(March/April 1993), pp. 121-128.

Peter David Blanck, "Empirical Study of the Americans with Disabilities Act (1990-1993)," Journal

of. Vocational Rehabilitation, vol. 4, no. 3 (1994),

pp. 211-223.

Frank G. Bowe, "Access to the Information Age: Fundamental Decisions in Telecommunications Policy," Policy Studies Journal, vol. 21, no. 4 (1993),

pp. 765-774.

Suzanne M. Bruyere, Dale S. Brown, and David M.

Mank, "Quality Through Equality: Total Quality

Management Applied to the Implementation of Title I of the Americans with Disabilities Act of

1990," Journal of Vocational Rehabilitation, vol. 9

(1997), pp. 253-266.

Richard V. Burkhauser, "Beyond Stereotypes: Public

. Policy and the Doubly Disabled," The American

Enterprise (no date), pp. 60-69.

Richard V. Burkhauser, "Post-ADA: Are People with

Disabilities Expected to Work?," The Annals of the

American Academy (January 1997), pp. 71-128.

Richard V. Burkhauser, Robert H. Haveman, and

Barbara L. Wolfe, "How People with Disabilities

Fare When Public Policies Change," Journal of

Policy Analysis and Management, vol. 12, no. 2

(1993), pp. 251-269.

Wayne F. Cascio, "The Americans with Disabilities

Act of 1990 and the 1991 Civil Rights Act: Requirements for Psychological Practice in the

Workplace," pp. 175-211 in Bruce D. Sales and

-.Gary R. VandenBos, eds., Psychology in Litigation

and Legislation (Washington, DC: American Psychological Association, 1994).

293

307
James I. Charlton, "The Disability Rights Movement

and the Left," Monthly Review, vol. 46, no. 3 (JulyAugust 1994), pp. 77-85.

Dale Close, "Arrest Procedures Under the ADA," The

Policy Chief (April 1995).

Troy Coleman and Rebecca Furr, "The Americans

with Disabilities Act: Crisis or Challenge for

Workforce 20007' Public Management (April

1992), pp. 4-8.

Frederick C. Collignon, "Is the ADA Successful? Indicators for Tracking Gains?," The Annals of the

American Academy (January 1997), pp. 129-147.

Ellen D. Cook, Anne K. Judice, and Anita C. Hazelwood, "The Americans with Disabilities Act: Prescription for Tax Relief," 1997HFM Resource

Guide (undated).

David Copus, "Americans with Disabilities Act: Conduct and Drug/Alcohol Issues, Benefits Issues, Mental Disabilities Cases," April 1997, in National Employment Law Institute, 1997 Americans with Disabilities Act Compliance Manual (Washington, DC:

National Employment Law Institute, 1997).

Barbara C. Deinhardt, "Title I of the Americans with

Disabilities Act and Workers' Compensation: A

Call for Discussion," Employee Benefits Journal,

vol. 18, no. 4 (December 1993), pp. 20-27.

Gerben De Jong and Andrew I. Batavia, "The Americans with Disabilities Act and the Current State of

U.S. Disability Policy," Journal of Disability Policy

Studies, vol. 1, no. 3 (Fall 1990), pp. 65-82.

Denetta L. Dow ler, Anne E. Hirsh, Ryan D. Kittle,

and Deborah J. Hendricks, "Outcomes of Reasonable Accommodations in the Workplace," Technology and Disability, vol. 5 (1996), pp. 345-354.

Chai R. Feldblum, "Employment Protections," Milbank Quarterly, vol. 69, supp. 2 (Winter 1991), pp.

81-110).

Thomas F. Fisher and Patricia A. Bender, "Medical

Inquiry for Employment Before and After Title I of

the Americans with Disabilities Act of 1990: The

Role of the Rehabilitation Counselor," Journal of

Rehabilitation (October/November1995), pp. 62-65.

Keith Fitzgerald, "The Politics of Plagues: Responses

to the AIDS Epidemic in Historical Perspective,"

Journal of Policy History, vol. 8, no. 2 (1996k), pp.

253-259.

Robert B. Fitzpatrick and Jonathan R. Topazian,

"Understanding the Family and Medical Leave

Act," Trial (March 1995), pp. 34-39.

Catherine L. Flanagan, "The ADA and Police Psychology," The Police Chief (December 1991), pp.

14-16.

David K. Fram, "Complex Issues Regarding DisabilityRelated Questions and Medical Examinations Under the ADA," April 1997, in the National Employment Law Institute, 1997 Americans with Disabilities Act Compliance Manual (Washington, DC: National Employment Law Institute, 1997), p. 18.

Gary D. Friedman and Joyce Phillips, "Is Infertility

an ADA 'Disability'?" The National Law Journal,

Feb. 24,1997.

James G. Frierson, "Medical Treatments Should Not

Be Considered When Courts Determine 'Disability' Under ADA," Employment Discrimination

Report (BNA), vol. 10 (Feb. 4, 1998), pp. 166-170.

Jan C. Galvin and Dennis R. La Buda, "United States

Health Policy Issues into the Next Century," International Journal of Technology and Aging, vol.

4, no. 2 (Fall/Winter 1991), pp. 115-127.

Jennifer M. Gardner, "Worker Displacement: A Decade of Change," Monthly Labor Review (April

1995), pp. 45-57.

Lawrence 0. Gostin, "The Americans with Disabilities

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(undated).

Lawrence 0. Gostin, "Public Health Powers: The Imminence of Radical Change," (unidentified publication).

Vicki Gottlich, "Protection for Nursing Facility Residents Under the ADA," Current Ethical Issues in

Aging (Winter 1994), pp. 43-47.

Bruce Growick, "ADA and Workers' Compensation:

What are the Critical Issues?" Work Injury Management (July/August 1993), pp. 7-9.

Bruce S. Growick and Patrick L. Dunn, "The Americans with Disabilities Act and Workers' Compensation: Critical Issues and Major Effects," Cornell

University, School of Industrial Relations and the

National Institute on Disability and Rehabilitation Research.

Thomas E. Guild, "The Americans with Disabilities

Act: Pandora's Box for Employers or Panacea for

Disabled Workers?" Free Inquiry in Creative Sociology, vol. 20, no. 2 (November 1992), pp. 211-215.

Harlan Hahn, "The Potential Impact of Disability

Studies on Political Science (As Well as ViceVersa)," Policy Studies Journal, vol. 21, no. 4

(1993), pp. 740-751.

Beth Haller, "Rethinking Models of Media Representation of Disability," Disability Studies Quarterly,

vol. 15, no. 29 (Spring 1995).

Donald D. Hammill, "A Brief Look at the Learning

Disabilities Movement in the United States,"

Journal of Learning Disabilities, vol. 26, no. 5

(May 1993), pp. 295-310.

Gwen Thayer Handelman, "Health Benefit Plans and

the Americans with Disabilities Act," Cornell University, School of Industrial Relations and the National Institute on Disability and Rehabilitation

Research.

Tom Harkin, "Our Newest Civil Rights Law: The

Americans with Disabilities Act," Trial (December

1990), pp. 56-61.

294

308
Paul G. Hearne, "Employment Strategies for People

with Disabilities: A Prescription for Change," Milbank Quarterly, vol. 65, supp. 2 (Winter 1991).

Jeffrey Higginbotham, "The Americans with Disabilities Act," FBI Law Enforcement Bulletin (August

1991), pp. 25-32.

Gary F. Holmes, "The Historical Roots of the Empowerment Dilemma in Vocational Rehabilitation,"

Journal of Disability Policy Studies, vol. 4, no. 1

(1993), pp. 2-63.

Weihe Huang and Stanford E. Rubin, "Equal Access

to Employment Opportunities for People with

Mental Retardation: An Obligation of Society,"

The Journal of Rehabilitation, vol. 63, no. 1

(January 12, 1997), p. 27.

William G. Johnson, "The Future of Disability Policy:

Benefit Payments or Civil Rights," The Annals of

the American Academy (January 1997), pp. 160-

172.

William G. Johnson and Marjorie Baldwin, "The

Americans with Disabilities Act: Will It Make a

Difference," Policy Studies Journal, vol. 21, no. 4

(1993), pp. 775-788.

Nancy Lee Jones, "Essential Requirements of the Act:

A Short History and Overview," Milbank Quarterly, vol. 69, supp. 2 (Winter 1991).

Mary Louise Kandyba, "Protecting Railroad Workers

with the ADA," Trial (March 1995), pp. 55-57.

Gail C. Kaplan, "Lawyers with Disabilities: Entering

Through the Front Door," Trial (August 1993), pp.

57-58.

Marjorie E. Karowe, "The Americans with Disabilities

Act of 1990: Employment Screening Practices,

Medical Examinations, and Health Insurance Interface with Other State and Federal Laws,"

Cornell University, School of Industrial Relations

and the National Institute on Disability and Rehabilitation Research, 1993.

Robert F. Kilbury, John J. Benshoff, and Stanford E.

Rubin, "The Interaction of Legislation, Public Attitudes, and Access to Opportunities for Persons

with Disabilities," Journal of Rehabilitation (October/November/December 1972), pp. 6-9.

Mitchell P. La Plante, "The Demographics of Disability,"

Milbank Quarterly, vol. 69, supp. 2 (Winter 1991).

Barbara A. Lee, "Reasonable Accommodation Under

the Americans with Disabilities Act," Cornell University, School of Industrial and Labor Relations

and National Institute on Disability and Rehabilitation Research, 1993.

John A. Leonard, "The Americans with Disabilities

Act," FBI Law Enforcement Bulletin (June 1993),

pp. 22-23.

Dennis Lindsey, "Workplace 'Psychological Disabilities' and the ADA," Behavioral Health Management (July/August 1995), pp. 34-36.

Jody M. Litchford, "Implementing the Americans with

Disabilities Act: Guidance for Law Enforcement

Agencies," The Police Chief (December 1991), pp.

11-12.

Linda Pax Lowes and Susan Effgen, "The Americans

with Disabilities Act of 1990: Implications for Pediatric Physical Therapists," Pediatric Physical

Therapy (1996), pp. 111-116.

Romel W. Mackelprang and Richard 0. Salsgiver,

"People with Disabilities and Social Work: Historical and Contemporary Issues," Social Work, vol.

41, no. 1 (January 1996), pp. 7-14.

Douglas A. Martin, Ronald W. Conley, and John H.

Noble, Jr., "The ADA and Disability Benefits Policy:

Some Research Topics and Issues," Journal of Disability Policy Studies, vol. 6, no. 2 (1995), pp. 2-15.

Monica E. McFadden, "The Americans with Disabilities Act: Fighting Discrimination," Trial

(September 1995), pp. 67-70.

Jeffrey A. Mello, "Employment Law and Workers with

Disabilities: Implications for Public Sector Managers and Human Resource Practices," Public Personnel Management, vol. 24, no. 1 (Spring 1995),

pp. 75-87.

Paula Mergenhagen, "Enabling Disabled Workers,"

American Demographics (July 1997), pp. 37-42.

Dennis Moore and Jo Ann Ford, "Policy Responses to

Substance Abuse and Disability: A Concept Paper," Journal of Disability Policy Studies, vol. 7,

no. 1 (1996), pp. 92-99.

Frank C. Morris and Andrea W. Selvaggio, "Insurance

Coverage Issues in Employment Law: ERISA §

510 Litigation After Inter-Modal Rail Employees

Association" (Washington, DC: Epstein Becker &

Green, P.C., 1997).

Nancy R. Mudrick, "Employment Discrimination

Laws for Disability: Utilization and Outcome," The

Annals of the American Academy (January 1997),

pp. 53-83.

Mary Anne Nester, "Pre-Employment Testing and the

ADA," Cornell University, School of Industrial and

Labor Relations and National Institute on Disability and Rehabilitation Research, 1993).

Susan R. Noe, "Societal Concerns: Discrimination

Against Individuals with Mental Illness," Journal

of Rehabilitation (January/February/March 1997),

pp. 20-26.

Margaret A Nosek and Carol A. Howland, "Personal

Assistance Services: The Hub of the Policy Wheel

for Community Integration of People with Severe

Physical Disabilities," Policy Studies Journal, vol.

21, no. 4 (1993), pp. 789-800.

Malinda Orlin, "The Americans with Disabilities Act:

Implications for Social Services," Social Work, vol.

40, no. 2 (March 1995), pp. 233-239.

John T. Pardeck and Woo Sik Chung, "An Analysis of

the Americans with Disabilities Act of 1990,"

295

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Journal of Health and Social Policy, vol. 4, no. 1

(1992).

Wendy E. Parmet, "Discrimination and Disability:

The Challenges of the ADA," Law, Medicine, and

Health Care, vol. 18, no. 4 (Winter 1990), pp. 331-

344.

Fred Pelka, "Bashing the Disabled: The Right-Wing

Attack on the ADA," The Humanist

(November/December 1996), pp. 26-30.

Fred Pelka, "Big Fight in a Small Town," Mainstream

(December 1995/January 1996), pp. 22-26.

Stephen L. Percy, "The ADA: Expanding Mandates for

Disability Rights," Intergovernmental Perspective

(Winter 1993).

David Pfeiffer, "Overview of the Disability Movement:

History, Legislative Record, and Political Implications," Policy Studies Journal, vol. 21, no. 4 (1993),

pp. 724-734.

Gary Phelan, "Reasonable Accommodation: Linchpin

of ADA Liability," Trial (February 1996), pp. 40-

44.

Lawrence J. Raifman and McCay Vernon, "Important

Implications for Psychologists of the Americans

with Disabilities Act: Case in Point, the Patient

Who is Deaf," Professional Psychology: Research

and Practice, vol. 27, no. 4, pp. 372-377.

Charles L. Reischel, "The Constitution, the Disability

Act, and Questions About Alcoholism, Addiction,

and Mental Health," The Bar Examiner (August

1992).

Kay Robinson, "Model Plan for Implementation of

Title I of the Americans with Disabilities Act of

1990 From the Human Resources Perspective,"

Cornell University, School of Industrial Relations

and the National Institute on Disability and Rehabilitation Research, 1993.

Paula N. Rubin, "The Americans with Disabilities Act

and Criminal Justice: Hiring New Employees,"

National Institute of Justice Research in Action

(Washington: DC: U.S. Department of Justice, October 1994).

Paula N. Rubin, "The Americans with Disabilities Act

and Criminal Justice: An Overview," National Institute of Justice Research in Action (Washington:

DC: U.S. Department of Justice, September 1993).

Paula N. Rubin, "Civil Rights and Criminal Justice:

Employment Discrimination Overview," National

Institute of Justice Research in Action

(Washington, DC: U.S. Department of Justice,

June 1995).

Paula N. Rubin and Toni Dunne, "The Americans

with Disabilities Act: Emergency Response Systems and Telecommunication Devices for the

Deaf," National Institute of Justice Research in Action (Washington, DC: U.S. Department of Justice,

February 1995).

Paula N. Rubin and Susan W. McCampbell, "The

Americans with Disabilities Act and Criminal Justice: Mental Disabilities and Corrections," National Institute of Justice Research in Action

(Washington, DC: U.S. Department of Justice,

September 1995).

Paula N. Rubin and Susan W. McCampbell, "The

Americans with Disabilities Act and Criminal Justice: Providing Inmate Services," National Institute of Justice Research in Action (Washington,

DC: U.S. Department of Justice, July 1994).

Michael R. Santos, "Program and Services Accessibility: The Non-Employment Requirements of the

Americans with Disabilities Act," The Police Chief

(March 1992), pp. 10-12.

Jamie Satcher, "Improving Quality of Work Life for

Persons with Learning Disabilities: ADA Rights

and Responsibilities," Journal of Applied Rehabilitation Counseling, vol. 24, no. 1 (Spring 1993), pp.

16-18.

Dayl L. Scherich, "Job Accommodations in the Workplace for Persons Who are Deaf or Hard of Hearing: Current Practices and Recommendations,"

Journal of Rehabilitation (April/May/June 1996),

pp. 27-35.

Richard K. Scotch, "Understanding Disability Policy:

Varieties of Analysis," Policy Studies Journal, vol.

22, no. 1 (1994), pp. 171-175.

Richard K. Scotch and Edward D. Berkowitz, "One

Comprehensive System? A Historical Perspective

on Federal Disability Policy," Journal of Disability

Policy Studies, vol. 1, no. 3 (Fall 1990), pp. 1-18.

Richard K. Scotch and Kay Schriner, "Disability as

Human Variation: Implications for Policy," The

Annals of the American Academy (January 1997),

pp. 148-172.

James D. Slack, "Workplace Preparedness and the

Americans with Disabilities Act: Lessons from

Municipal Governments' Management of

HIV/AIDS," Public Administration Review, vol. 56,

no. 2 (March/April 1996), pp. 159-167.

Earl B. Slavitt and Terrence M. LaBant, "Living and

Leaving Life on One's Own Terms: Certain Legal

Rights of Older Adults and Persons with Disabilities," Topics on Stroke Rehabilitation, vol. 2, no. 4

(1996), pp. 44-53.

Theodore J. Stein, "Disability-Based Employment

Discrimination Against Individuals Perceived to

Have AIDS and Individuals Infected with HIV or

Diagnosed with AIDS: Federal and New York

Statutes and Case Law," AIDS & Public Policy

Journal, vol. 10, no. 3 (Fall 1995), pp. 123-139.

Arthur P. Thompson and Wesley Ridlon, "How ADA

Requirements Affect Small Jail Design," Corrections Today (April 1995).

Beatriz Trevino and Edna Mora Szymanski, "Career

Development of Hispanics: A Qualitative Study of

296
the Career Development of Hispanics with Disabilities," Journal of Rehabilitation (July/August/September 1996), pp. 5-13.

Bonnie Poitras Tucker, "The ADA and Deaf Culture:

Contrasting Precepts, Conflicting Results," The

Annals of the American Academy (January 1997),

pp. 24-36.

Vera Tweed, "Transition to Success," Rehab Management: The Interdisciplinary Journal of Rehabilitation, vol. 7, no. 4 (June/July 1994), p. 7.

Darlene Van Sickle, "Avoiding Lawsuits: A Summary

of ADA Provisions and Remedies," Corrections Today (April 1995).

Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd.,

"Workers' Compensation and the Americans with

Disabilities Act," North Dakota Employment Law

Letter, vol. 2, no. 4 (May 1997).

Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd.,

"Workers' Compensation and the Americans with

Disabilities Act Part II," North Dakota Employment Law Letter, vol. 2, no. 5 (June 1997).

Sara D. Watson, "Applying Theory to Practice: A Prospective and Prescriptive Analysis of the Implementation of the Americans with Disabilities Act,"

Journal of Disability Policy Studies, vol. 5, no. 1

(1994).

Sara D. Watson, "Holistic Policymaking: 'NeoLiberalism' as Illustrated by the Women's and

Disability Rights Movements," Policy Studies

Journal, vol. 21, no. 4 (1993), pp. 752-764.

Sara D. Watson, "Introduction: Disability Policy as an

Emerging Field of Mainstream Public Policy Research and Pedagogy," Policy Studies Journal, vol.

21, no. 4 (1993), pp. 720-723.

Jane West, "IntroductionImplementing the Act:

Where We Begin," Milbank Quarterly, vol. 69,

supp. 2 (Winter 1991).

Jane West, "The Social and Policy Context," Milbank

Quarterly, vol. 69, supp. 2 (Winter 1991).

Edward H. Yelin, "The Employment of People With

and Without Disabilities in an Age of Insecurity,"

The Annals of the American Academy (January

1997), pp. 117-128.

Edward H. Yelin and Patricia P. Katz, "Labor Force

Trends of Persons With and Without Disabilities,"

Monthly Labor Review, vol. 117, no. 10 (October

1994), p. 36.

Richard A. Zappile and Debbie Jankowski, "The

Philadelphia Police Department's Response to the

Americans with Disabilities Act," The Police Chief

(March 1993), pp. 51-54.

Michele A. Zavos, "Federal ADA Protections for People with HIV," Trial (December 1994), pp. 58-60.

G.E. Zuriff, "Medicalizing Character," The Public Interest (Spring 1996), pp. 94-99.

Law Review Articles

Authors Named

Patricia M. Bailey, Note, "Significant Risk" Concept

Justifies Practice Restrictions of an HIV-Infected

Surgeon: Scoles V. Mercy Health Corp., 40 Vim,. L.

REV. 687 (1995).

Carol J. Banta, Note, The Impact of the Americans

with Disabilities Act on State Bar Examiners' Inquiries Into the Psychological History of Bar Applicants, 94 Mich. L. Rev. 167 (October 1995).

Anne E. Beaumont, Note, This Estoppel Has Got to

Stop: Judicial Estoppel and the Americans with

Disabilities Act, 71 N.Y.U.L. REV. 1529 (1996).

Peter David Blanck, Symposium, Empirical Study of

the Employment Provisions of the Americans with

Disabilities Act: Methods, Preliminary Findings,

and Implications, 22 N.M. L. REV. 119 (1992).

Peter David Blanck, Symposium: Individual Rights

and Reasonable Accommodations Under the

Americans with Disabilities Act: The Economics of

the Americans with Disabilities Act: Part I

Workplace Accommodations, 46 DEPAUL L. REV.

877 (Summer, 1997).

Suzanne M. Bruyere, Susana Gomez, and Gwen

Thayer Handelmann, The Reasonable Accomodation Process in Unionized Environments, LAB.

L.J. 629 (October 1996).

Kathlynn L. Butler, Securing Employee Health Benefits Through ERISA and the ADA, 42 EMORY L.J.

1197 (Fall 1993).

Keith Alan Byers, No One is Above the Law When It

Comes to the ADA and the Rehabilitation ActNot

Even Federal, State, or Local Law Enforcement

Agencies, 30 LOY. L.A. L. REV. 977 (April 1997).

Stephen Cormac Carlin and Christopher M. Fairman,

Squeeze Play: Workers' Compensation and the Professional Athlete, 12U. MIAMI ENT. & SPORTS L.

REV. 95 (Fall 1994/Spring 1995).

John Chwat, Symposium, The ADA and Its Effects on

American Industries, Civil Rights for the Next Millennium: Evolution of Employment Discrimination

Under the Americans with Disabilities Act, 10 ST.

JOHNS' J.L. Comm 613 (Summer 1995).

Catherine C. Cobb, Comment, Challenging a State

Bar's Mental Health Inquiries Under the ADA, 32

HODS. L. REV. 1384 (Winter 1996).

John J. Coleman, II and Marcel L. DeBruge, A Practitioner's Introduction to ADA Title II, 45 ALA. L.

REV. 55 (Fall 1993).

Phyllis Coleman and Ronald A. Shellow, Ask About

Conduct, Not Mental Illness: A Proposal For Bar

Examiners and Medical Boards to Comply with the

ADA and Constitution, 20 J. LEGIS. 147 (1994).

Phyllis Coleman and Ronald A. Shellow, Restricting

Medical Licenses Based on Illness Is Wrong Re297

311

BEST COPY AVAILABLE
porting Makes It Worse, 9 J.L & HEALTH 273

(1994/1995).

Julie Davies, Federal Civil Rights Practice in the

1990's: The Dichotomy Between Reality and Theory, 48 HASTINGS L.J. (January 1997).

Gregory M.P. Davis, Comment, More than a Supervisor Bargains For: Individual Liability Under the

Americans with Disabilities Act and Other. Employment Discrimination Statutes, 1997 Wis. L.

REV. 321 (1997).

Amanda G. Dealy, Note, Compulsory Arbitration in

the Unionized Workplace: Reconciling Gilmer,

Gardner-Denver and the Americans with Disabilities Act 37 V.C. L. REV. 479 (May 1996).

Jack P. DeSario, To Provide Medical Care to Persons

with HIV/ AIDS: The Americans with Disabilities

Act and Refusals, 27 J. MARSHALL L. REV. 347

(Winter 1994).

John J Donohue III, Advocacy Versus Analysis in Assessing Employment Discrimination Law, 44 STAN.

L. REV. 1583 (July 1992).

Marc E. Elovitz, Combating AIDS Discrimination in

Health Insurance, 10 ST. JOHN'S J.L. Comm 537

(Summer 1995).

Janet Eriv, Persistent Misconceptions: A Response to

Robert Hammel, 23 FORDHAM URB. L.J. 1219

(Summer 1996).

H. Miriam Farber, Note, Subterfuge: Do Coverage

Limitations and Exclusions in Employer-Provided

Health Care Plans Violate the Americans with Disabilities Act?, 69 N.Y.U. L. REV. 850

(October/November 1994).

Jeffrey P. Ferrier, ADA and ADR: Approaching an

Adequate Adjudicatory Allocation, 45 CATHOLIC U.

L. REV. 1281 (1996).

Robert B. Fitzpatrick, Recent Developments in Employment Law, 32 TORT & INS. L.J. 339 (Winter

1997).

John L. Flynn, Note, Mixed-Motive Causation under

the ADA: Linked Statutes, Fuzzy Thinking, and

Clear Statements, 83 GEO. L.J. 2009 (June 1995).

James G. Frierson, Heads You Lose, Tails You Lose: A

Disturbing Judicial Trend in Defining Disability,

43 LAB. L.J. 419 (July 1997).

Elaine Gardner, The Legal Rights of Inmates with

Physical Disabilities, 14 ST. LOUIS U. PUB. L. REV.

175 (1994).

James V. Garvey, Health Care Rationing and the

Americans with Disabilities Act of 1990: What Protection Should the Disabled Be Afforded, 68 NOTRE

DAME L. REV. 1 (1993) at 4.

Andrew K. Glenn, Note, Disclosure of Executive Illnesses Under Federal Securities Law and the

Americans with Disabilities Act of 1990: Hobson's

Choide or Business necessity? 16 Cardozo 1. Rev.

537 (December 1994).

Janet E. Goldberg, Employees with Mental and Emotional Problems Workplace Security and Implications of State Discrimination Law, the Americans

with Disabilities Act, the Rehabilitation Act, Workers' Compensation, and Related Issues, 24 STETSON

L. REV. 201 (Fall 1994).

David Harger, Comment, Drawing the Line Between

Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act: Reducing the Effects of Ambiguity on Small Businesses,

41 KAN. L. REV. 783 (Summer 1993).

Tracy L. Hart, Note, The Americans with Disabilities

Act Title I: Equal Employment Rights for Disabled

Americans, 18 U. DAYTON L. REV. 921 (1993).

Amy L. Hennen, Protecting Addicts in the Employment Arena: Charting a Course Toward Tolerance,

15 LAW & INEQ. J. 157 (Winter 1997).

Rhonda K. Jenkins, Note, Square Pegs, Round Holes:

HIV and the Americans with Disabilities Act, Doe

v. Kohn Nast & Graf. P.C. 862 F. Supp 1310 (E.D.

Pa. 1994), 20 S. ILL. U. L. J. 637 (Spring 1996).

Christopher Aaron Jones, Legislative "Subterfuge"?:

Failing to Insure Persons with Mental Illness Under the Mental Health Parity Act and the Americans with Disabilities Act, 50 VAND. L. REV. 753

(April 1997).

Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996).

Lianne C. Knych, Note, Assessing the Application of

McDonnell Douglas to Employment Discrimination

Claims Brought Under the Americans with Disabilities Act, 79 MINN. L. REV. 151 (1995).

Candace Saari Kovacic-Fleischer, United States v. Virginia's New Gender Equal Protection Analysis

with Ramifications for Pregnancy, Parenting, and

Title VII, 50 VAND. L. REV. 845 (May 1997).

Lisa Lavelle, Note, The Duty to Accommodate: Will

Title I of the Americans with ADA Emancipate Individuals with Disabilities Only/to Disable Small

Businesses?, 66 NOTRE DAME L. REV. 1135 (1991).

Gloria Y. Lee, Wiping the Slate Clean: Expunging Records of Disability-Caused Misconduct as a Reasonable Accommodation of the Alcoholic Employee

Under the ADA, 81 MINN. L. REV. 1641 (June

1997).

Steven S. Locke, The Incredible Shrinking Protected

Class: Redefining the Scope of Disability Under the

Americans with Disabilities Act, 68 U. COLO. L. REV.

107(1997).

William J. McDevitt, Seniority Systems and the

Americans with Disabilities Act: The Fate of

"Reasonable Accommodation" After Eckles, 9 ST.

THOMAS L. REV. 359 (Winter, 1997).

John D. McKenna, Note, Is the Mental Health History

of an Applicant a Legitimate Concern of State Professional Licensing Boards? The Americans with

298

312
Disabilities Act vs. State Professional Licensing

Boards, 12 HOFSTRA L. REV. 335 (Spring 1995).

Michael K. McKinney, The Impact of the Americans

with Disabilities Act on the Bar Examination Process: The Applicability of Title II and Title III to the

Learning Disabled, 26 CUMB. L. REV. 669 (1996).

Patrick J. Morgan, Comment, Applicability of ADA

Non-discrimination Principles to Self-Insured

Health Plans: Do "AIDS Caps" Violate the Law?,

11 J. CONTEMP H. L. & POL'Y 221 (Fall 1994).

Ellyn Moscowitz, Outside The "Compensation Bargain: " Protecting The Rights Of Workers Disabled

On The Job To File Suits For Disability Discrimination, 27 SANTA CLARA L. REV. 587 (1997).

Rosalie K. Murphy, Note, Reasonable Accommodation

and Employment Discrimination Under Title I of

the Americans with Disabilities Act, 64 S. CAL. L. REV. 1607 (1991).

Thomas P. Murphy, Disabilities Discrimination Under

the Americans with Disabilities Act, 36 CATH. U. L. REV. 13 (1995).

Ranko Shiraki Oliver, The Impact of Title I of the

Americans with Disabilities Act of 1990 on Workers' Compensation Law, 16 UALR L.J. 327 (1994).

Mary K. O'Melveny, The Americans with Disabilities

Act and Collective Bargaining Agreements: Reasonable Accommodations or Irreconcilable Conflicts?, 82 KY. L.J. 219 (1994).

David Orentlicher, Destructuring Disability: Rationing of Health Care and Unfair Discrimination

Against the Sick, 31 HARV. C.R.C.L. L. REV. 50

(1996).

Wendy E. Parnet and -Daniel J. Jackson, No Longer

Disabled: The Legal Impact of the New Social Construction of HIV, 23 AM. J.L & MED. 7 (1997).

James A. Passamano, Employee Leave Under the

Americans with Disabilities Act and the Family

Medical Leave Act, 38 S. TEx. L. REV. 861 (July

1997).

David J. Popiel, The Debate Over the Americans with

Disabilities Act: A Question of Economics or Justice?, 10 ST. JOHN'S J.L. Comm. 527 (1995).

Danielle Priola, Disability LawBurden Of Proof

An Individual Challenging The Capacity Of A Developmentally-Disabled Person To Make An Independent Decision Bears The Burden Of Proving By

Clear And Convincing Evidence That The Disabled

Person Has The Specific Incapacity. To DecideIn

Re M.R., 135 N.J. 155, 638 A.2d 1274 (1994), 26

SETON HALL L. REV. 407 (1995).

Frank S. Ravitch, Beyond Reasonable Accommodation: The Availability and Structure of a Cause of

Action for Workplace Harassment Under the

Americans with Disabilities Act, 15 CARDOZO L. REV. 1475 (May 1994).

Edward D. Re, Symposium, Remedial Legislation:

Sword or Shield? Civil Rights for the Next Millenium: Evolution of Employment Discrimination

Under the Americans with Disabilities Act, 10 ST. JOHNS J.L. COMM 477 (Summer 1995).

Aaron J. Reber, Note, Learning and Mental Disability

Protection Under the Americans with Disabilities

Act in the Quest for Certification for the Practice of

Law, 10 J.L. & Health 209 (1995/1996).

Ira P. Robbins, George Bush's America meets Dante's

Inferno: The Americans with Disabilities Act in

Prison, 15 YALE L. & POL'Y REV. 49 (1996).

W. Sherman Rogers, The ADA, Title VII, and the Bar

Examination: The Nature and Extent of the ADA's

Coverage of Bar Examinations and an Analysis of

the Applicability of Title VII to Such Tests, 26

How. L.J. 2 (1993).

Leonard S. Rubenstein, Symposium: Ending Discrimination Against Mental Health Treatment in

Publicly Financed Health Care, 40 ST. LOUIS L.J.

1-40 (1996).

James P. Sadler, Comment, The Alcoholic and the

Americans with Disabilities Act of 1990: "The

Booze made Me Do It" Argument Finds Little Recognition in Employment Discrimination Actions,

28 TEX. TECH. L. REV. 861 (1997).

Stacy E. Seicshnaydre, Comment: Community Mental

Health Treatment for the Mentally IllWhen Does

Less Restrictive Treatment Become a Right, 66

Tub. L. REV. (1992).

Sarah O'Neill Sparboe, Comment, Must Bar Examiners Accommodate the Disabled in the Administration of Bar Exams?, 30 WAKE FOREST L. REV. 391

(1995).

Janet M. Spencer, Symposium, Civil Rights for the

Next Millennium: Evolution of Employment Discrimination Under the Americans with Disabilities

Act: Clearing the DocketAlternative Dispute

Resolution under the Americans with Disabilities

Act, 10 ST. JOHN'S J.L. COMM589 (Summer 1995).

Michael Ashley Stein, Mommy Has a Blue Wheelchair: Recognizing the Parental Rights of Individuals with Disabilities, 60 BROOKLYN L. REV. 1069 (Fall 1994).

Douglas M. Staudmeister, Comment, Grasping the

Intangible: A Guide to Assessing Nonpecuniary

Damages in the EEOC Administrative Process, 46

AM. U.L. REV. 189 (October 1996).

Rebecca Newman Strandberg, Americans with Disabilities Act of 1990: A Compliance Overview, 36

How. L.J. 91 (1993).

Kathryn W. Tate, The Federal Employer's Duties Under the Rehabilitation Act: Does Reasonable Accommodation or Affirmative Action Require Reassignment? 67 TEx. L. REV. 781, 797 (1989).

Anne B. Thomas, Beyond the Rehabilitation Act of

1973: Title II of the Americans with Disabilities

Act, 22 N.M. L. Rev. 243 (1992).

299

313
Bonnie P. Tucker, Section 504 of the Rehabilitation

Act After Ten Years of Enforcement: The Past and

the Future, 1989 U. ILL. L. REV. 845 (1989).

Bonnie P. Tucker, Symposium, The Americans with

Disabilities Act of 1990: An Overview, 22 N.M. L.

REV. 13 (1992).

Mark C. Weber, Disability Discrimination by State

and Local Government: The Relationship Between

Section 504 of the Rehabilitation Act and Title II of

the Americans with Disabilities Act, WM. AND

MARY L REV. 1089 (Winter 1995).

James J. Weisman, Dignity and Non-Discrimination:

The Requirement of "Reasonable Accommodation"

in Disability Law, 23 FORHAM URB. L.J. 1235

(Summer 1996).

Wendy Wilkinson, Judicially Crafted Barriers to

Bringing Suit Under the Americans with Disabilities Act, 38 S. TEX. L. REV. 907 (July 1990).

Christopher J. Willis, Comment, Title I of the Americans with Disabilities Act: Disabling the Disabled,

25 CumB. L. REV. 715 (1994).

Matthew Graham Zagrodzky, When Employees Become Disabled: Does the Americans with Disabilities Act Require Consideration of a Transfer as a

Reasonable Accommodation? 38 SOUTH TEX. L.

REV. 939 (1997).

Authors Not Named

Symposium, Civil Rights for the Next Millennium:

Evolution of Employment Discrimination Under

the Americans with Disabilities ActSpeakers:

Keynote Address: The Interaction of the Americans

with Disabilities Act and Alternative Dispute Resolution within the EEOC, 10 ST. JOHN'S J.L. Comm.

573 (Summer 1995).

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American Association of Retired Persons, Americans

with Disabilities Act: Annotated Bibliography of

Resources (Washington, DC: American Association

of Retired Persons, undated).

Suzanne M. Bruyere, Rebecca K. DeMarinis, and

Joyce A. Hoying, The Americans with Disabilities

Act (ADA) of 1990: A Bibliography of Selected Topics on Employment Practices, Cornell University,

Program on Employment and Disability, School of

Industrial and Labor Relations, Ithaca, NY, March

1997.

Massachusetts Rehabilitation Commission, Bibliography on Employment and Persons with Disabilities, 1990.

Matrix Research Institute and The Matrix Research

Institute/University of Pennsylvania Research and

Training Center on Vocational Rehabilitation and

Mental Illness, An Annotated Bibliography of the

Current Literature on Job Accommodations for

Persons with Mental Illness: 1995, by Barbara

Granger, prepared under National Institute on

Disability and Rehabilitation Research Grant #

H133B30007 (undated).

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Research, U.S. Department of Education, Director

of National Information Sources on Disabilities,

vol. 1(Washington, DC: U.S. Department of Education, 1994).

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of National Information Sources on Disabilities,

vol. 2 (Washington, DC: U.S. Department of Education, 1994).

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Part 1630," Apr. 23, 1991.

U.S. Equal Employment Opportunity Commission,

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29 C.F.R. Part 1630 (1996). [EEOC's Title I Regulation]

U.S. Equal Employment Opportunity Commission

and U.S. Department of Labor, "Procedures for

Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers

Holding Government Subcontracts," Joint Final

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[EEOC's Regulations at 29 C.F.R. Part 1641].

U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, "Procedures for

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Charges of Employment Discrimination Based on

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of 1973," Final Rule, Aug. 4, 1994, 59 Fed. Reg.

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Commission,

Commission,

Commission,
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Report.

U.S. Equal Employment Opportunity Commission,

FiScal Year 1994 Annual Report.

U.S. Equal Employment Opportunity Commission,

Office of Legal Counsel, FY 1996 Annual Report.

U.S. Equal Employment Opportunity Commission,

Office of Program Operations, FY 1995 Annual

Report.

Ellen J. Vargyas, Legal Counsel, U.S. Equal Employment Opportunity Commission, memorandum to

Claire Gonzales, Director, Office of Communications and Legislative Affairs, "FY 1995 Annual

Report Submission," Feb. 7, 1996 and attachment.

Policy and Enforcement Guidance

U.S. Equal Employment Opportunity Commission,

"ADA Enforcement Guidance: Preemployment

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U.S. Equal Employment Opportunity Commission,

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1995.

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"EEOC Enforcement Guidance on the Americans

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(EEOC Notice 915.002), Mar. 25, 1997.

U.S. Equal Employment Opportunity Commission,

"EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits

on the Determination of Whether a Person Is a

'Qualified Individual with a Disability' Under the

Americans with Disabilities Act of 1990 (ADA),"

(EEOC Notice 915.002), Feb. 12, 1997.

U.S. Equal Employment Opportunity Commission,

"EEOC Enforcement Guidance: Workers' Compensation and the Americans with Disabilities Act,"

(EEOC Notice 915.002), Sept. 3, 1996.

U.S. Equal Employment Opportunity Commission,

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Civil Rights Act of 164," (undated).

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U.S. Equal Employment Opportunity Commission,

"Policy Guidance: Provisions of the Americans

with Disabilities Act of 1990: Summary of the Act

and Responsibilities of the EEOC in Enforcing the

Act's Prohibitions Against Discrimination in Employment on the Basis of Disability," (EEOC Notice 915-055), Aug. 14, 1990.

U.S. Equal Employment Opportunity Commission,

"Section 902Definition of the Term `Disability'."

Ellen J. Vargyas, Legal Counsel, U.S. Equal Employment Opportunity Commission, letter to Barry

Kearney, Associate General Counsel, National Labor Relations Board, re Memorandum of Understanding Between the Equal Employment Opportunity Commission and the National Labor Relations Board, Nov. 1, 1996.

Technical Assistance, Outreach, and

Education Documents

U.S. Equal Employment Opportunity Commission,

"Americans with Disabilities Act (ADA) Training

and Implementation Network: List of Participants," September 1993.

U.S. Equal Employment Opportunity Commission,

"Facts About Disability-Related Tax Provisions,"

September 1996.

U.S. Equal Employment Opportunity Commission,

Library Resources on the Employment of Individuals with Disabilities, 2nd ed., December 1991.

U.S. Equal Employment Opportunity Commission,

"The ADA: Questions and Answers Employment," Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission,

"The ADA: Your Employment Rights as an Individual with a Disability," Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission,

"The ADA: Your Responsibilities as an Employer,"

Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission,

"Facts About the Americans with Disabilities Act,"

Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission,

"Questions and Answers about Disability and

Service Retirement Plans under the ADA," (EEOC

Notice 915.002), May 11, 1995.

U.S. Equal Employment Opportunity Commission, A

Technical Assistance Manual on the Employment

Provisions (Title I) of the Americans with Disabilities Act, (EEOCM-1A), January 1992.

U.S. Equal Employment Opportunity Commission, A

Technical Assistance Manual on the Employment

301

315

BEST COPY AVAILABLE
Provisions (Title I) of the Americans with Disabilities Act: Resource Directory, (EEOCM-1B), January 1992.

U.S. Equal Employment Opportunity Commission,

1995 Training Conference EEOCFEPA: Partners

for the 90's.

U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, Civil Rights Division, "Americans with Disabilities Act: Questions

and Answers," (undated brochure).

Budget Documents

Budget of the United States Government, Fiscal Year

1997, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1996, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1995, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1994, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1993, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1992, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1991, Equal Employment Opportunity Commission.

Budget of the United States Government, Fiscal Year

1990, Equal Employment Opportunity Commission.

Training Documents

U.S. Equal Employment Opportunity Commission,

"Headquarters ADA Training for Supervisors and

Managers," Sept. 11 & 13, 1990.

U.S. Equal Employment Opportunity Commission,

"Priority Charge Handling Training: Participants'

Manual," November 1995.

Task Force Reports

U.S. Equal Employment Opportunity Commission,

Charge Processing Task Force Report, December

1994March 1995.

U.S. Equal Employment Opportunity Commission,

EEOC's State and Local Program Relationship

with Fair Employment Practice Agencies:

EEOC / FEPA Task Force Report to Chairman Gilbert F. Casellas, Mar. 15, 1995.

U.S. Equal Employment Opportunity Commission,

Priority Charge Handling Task Force, Litigation

Task Force Report, March 1998.

U.S. Equal Employment Opportunity Commission,

Task Force on Alternative Dispute Resolution: Report to Chairman Gilbert F. Casellas, March 1995.

U.S. Equal Employment Opportunity Commission,

Task Force Report on 'Best' Equal Employment

Opportunity Policies, Programs, and Practices in

the Private Sector, December 1997.

U.S. Equal Employment Opportunity Commission,

Task Force Report on 'Best' Equal Employment

Opportunity Policies, Programs, and Practices in

the Private Sector, February 1998.

Other

Evan J. Kemp, Jr., Chairman, U.S. Equal Employment Opportunity Commission, testimony before

the Subcommittee on Employment Opportunities,

U.S. House of Representatives, Oct. 30, 1991.

Clare Gallagher, memorandum to Chris Bell et al.,

"ADA Hill Briefings Handout Materials," and attachments, Apr. 2, 1992.

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on "Updated List of EEOC ADA Cases," Nov. 9,

1994.

U.S. Equal Employment Opportunity Commission,

Americans with Disabilities Act (ADA) Training

and Implementation Network: List of Participants,

September 1993.

U.S. Equal Employment Opportunity Commission,

The Digest of Equal Employment Opportunity

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U.S. Equal Employment Opportunity Commission,

"Directives Transmittal: Organization, Mission

and Functions," (EEOC Notice 110.002), May 11,

1997.

U.S. Equal Employment Opportunity Commission,

"Docket of Americans with Disabilities Act (ADA)

Litigation," Mar. 31, 1997.

U.S. Equal Employment Opportunity Commission,

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Disabilities Act (EEOC Notice 915.002), Mar. 14,

1995.

U.S. Equal Employment Opportunity Commission,

"EEOC's Implementation of Title I of the Americans with Disabilities Act of 1990," January 1993.

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Investigative Procedures Manual, vol. 1, October

1987.

U.S. Equal Employment Opportunity Commission,

"National Enforcement Plan," February 1996.

U.S. Equal Employment Opportunity Commission,

"Priority Charge Handling Procedures," June

1995.

U.S. Equal Employment Opportunity Commission,

"Substantial Weight Review ProceduresEEOC

Order 916

Appendix A, August 1979."

U.S. Equal Employment Opportunity Commission,

"Strategic Plan: 1997-2002," OMB Review Copy,

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U.S. Equal Employment Opportunity Commission,

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302
fice of Program Operations, Report to the Commission, Jan. 10, 1995.

U.S. Equal Employment Opportunity Commission

Enforcement and Litigation 8/4/97.

U.S. Equal Employment Opportunity Commission

Technical Assistance and Training Programs8/4/97

U.S. Equal Employment Opportunity Commission,

"Overview of the Americans with Disabilities Act's

Employment-Related Requirements."

U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, Americans with

Disabilities Act Handbook.

EEOC Responses to OCRE Information Request

EEOC, Response to Preliminary Information Request

(9/5/97)

EEOC, Response to Preliminary Information Request

(2/10/98)

EEOC, Response to Preliminary Information Request

(3/6/98)

U.S. Department of Justice Documents

Regulations

Architectural and Transportation Barriers Compliance Board, "Americans with Disabilities Act

(ADA) Accessibility Guidelines for Buildings and

Facilities, State and Local Government Facilities"

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(1998) (36 C.F.R. Part 1191).

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the Basis of Disability in State and Local Govern.

ment Services," Final Rule, July 26, 1991, 56 Fed.

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28 C.F.R. Part 36 (1994), U.S. Department of Justice,

"Nondiscrimination on the Basis of Disability by

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U.S. Department of Justice, "New or Proposed Americans with Disabilities Act Regulations."

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with People Who Have Hearing and Speech Disabilities: Trainers Guide," prepared under a grant

from the U.S. Department of Justice, Apr: 4, 1996.

Police Executive Research Forum, The Police Response to People with Mental Illnesses: Including

Information on the Americans with Disabilities Act

Requirements and Community Policing Approaches, prepared under a grant from the U.S.

Department of Justice (Washington, DC: Police

Executive Research Forum, 1997).

Police Executive Research Forum, "Recognizing and

Responding to People Who Have Mental Retardation: Trainers Guide," prepared under a grant

from the U.S. Department of Justice, Aug. 11,

1997.

Police Executive Research Forum and Epilepsy Foundation of America, The Police Response to People

with Seizures & Epilepsy: A Curriculum Guide for

Law -Enforcement Trainers, prepared under a grant from the U.S. Department of Justice

(Washington, DC: Police Executive Research Forum and Epilepsy Foundation of America, February 1993).

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Accessible Stadiums,"

(undated).

.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA Design Guide: Restriping Parking Lots," (undated).

.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA Information from

the Department of Justice," June 26, 1997.

.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA Information

Services," revised August 1997.

.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA Materials in

Spanish and Other Languages," undated.

.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA Outreach and

Service to Minority and Rural Communities," undated.

S. Department of Justice, Civil Rights Division,

Disability Rights Section, "ADA. Technical Assistance Program," attachment A, undated.

S. Department of Justice, Civil Rights Division,

Disability Rights Section, The Americans with

Disabilities Act: ADA Guide for Small Businesses,

May 1997.

S. Department of Justice, Civil Rights Division,

Disability Rights Section, Certification of State and local Building Codes (ADA Web site10/27/97).

S. Department of Justice, Civil Rights Division,

Disability Rights Section, ADA Settlements and

Consent Agreements (ADA website-10/27/97).

S. Department of Justice, Civil Rights Division,

Disability Rights Section, The Americans with

Disabilities Act: Technical Assistance Program

Grant Application Package, (undated).

S. Department of Justice, Civil Rights Division,

Disability Rights Section, The Americans with

Disabilities Act: Title II Technical Assistance

Manual Covering State and Local Government

Programs and Services, November 1993.

S. Department of Justice, Civil Rights Division,

Disability Rights Section, ADA Training ManualSteps in a Title II or Title III Investigation

(undated).

U

U

U

U

U

U.

U.

U.

U.

U.

U.

U.

303

, 317
U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Common ADA Errors

and Omissions in New Construction and Alterations," June 1997.

Accessible Route. (ADA Accessibility Guidelines

(ADAAG 4.3) Tech Sheet Series, Barrier Free Environments, Inc. (under grant from the National

Institute on Disability and Rehabilitation Research (NIDRR)) 1994.

Areas of Rescue Assistance (ADA Accessibility Guidelines (ADAAG. 4.3.11) Tech Sheet Series, Barrier

Free Environments, Inc. (under grant from the

National Institute on Disability and Rehabilitation Research (NIDRR) 1994.

Toilet Stalls (ADA Accessibility Guidelines

(ADAAG.4.17)) Tech Sheet Series, Barrier Free

Environments, Inc. (under grant from the National Institute on Disability and Rehabilitation

Research (NIDRR), 1994.

Checklist for Existing FacilitiesThe Americans with

Disabilities ActChecklist for Readily Achievable

Barrier Removal, Mar. 31, 1992.

Medical Care Facilities (ADA Accessibility Guidelines

(ADAAG.6.0), Tech Street Series, Barrier Free

Environments, Inc. (under grant from the National Institute on Disability and Rehabilitation

Research (NIDRR), 1994.

The Americans with Disabilities Act Title IIIA

Guide for Making Your Business Accessible to

People with Mental RetardationThe Arc (under

a grant from DOJO, March 1994No. 30-18.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Commonly Asked

Questions About the Americans with Disabilities

Act and Law Enforcement," Sept. 12, 1996.

U.S. Department of Justice, Civil Rights Division,

Disability Rights, Section, "Commonly. Asked

Questions About Child Care Centers and the

Americans with Disabilities Act," October 1997.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Commonly Asked

Questions About Service Animals in Places of

Business," July 1996.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Commonly . Asked

Questions About Title II of the Americans with

Disabilities Act (ADA)," November 1994.

U.S. Department of Justice, Civil Rights Divikon,

Disability Rights Section, "Commonly Asked

Questions Regarding Telephone Emergency Services," December 1994.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, A Guide to Disability

Rights Laws, May 1997.

U.S. Department of Justice, Civil Rights DiviSion,

Disability Rights Section, "Learn About the ADA

in Your Local Library," (undated).

U.S. Department of Justice, Civil Rights Division

(under a grant to Chief Officers of State Library

Agencies (COSLA) and Interhab, Inc. The Resource Network for Kansans with Disabilities),

"Libraries and the ADA: An Annotated Listing of

Documents in the 1996 ADA Information File,"

November 1996.

U.S. Department of Justice, Civil Rights Division

(under a grant to Chief Officers of State Library

Agencies (COSLA) and Kansas Association of Rehabilitation Facilities) "Libraries and the ADA: A

Programming & Press Kit for the 1995 ADA Information File," November 1995.

U.S. Department of Justice, Civil Rights Division

(developed under a grant to Chief Officers of State

Library Agencies and Kansas Association of Rehabilitation Facilities), "Libraries and the ADA: A

Programming & Press Kit for the 1994 ADA Information File," July 1994.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Questions and Answers: The Americans with Disabilities Act and

Hiring Police Officers," Mar. 25, 1997.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Questions and Answers: The Americans with Disabilities Act and

Persons with HIV/AIDS," (undated).

U.S. Department of Justice/Civil Rights Division,

Disability Rights Section, "Technical Assistance ProgramGrant Application Package, May 22,

1996.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Technical Assistance

Materials Produced by Department of Justice that

Apply to Title II of the ADA," Attachment C, undated, provided in response to U.S. Commission on

Civil Rights Request for Information.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Technical Assistance

Materials Produced by Department of Justice

Grantees that Apply to Title II of the ADA," Attachment F, undated, provided in response to U.S.

Commission on Civil Rights Request for Information.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Technical Assistance

Materials Produced by Other Federal Agencies or

their Grantees and Reviewed by the Department

of Justice that Apply to Title II of the ADA," Attachment E, undated, provided in response to U.S.

Commission on Civil Rights Request for Information.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "DOJ ADA Technical

Assistance Program: January 1993June 1997,"

attachment B, undated.

304

318
U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, Technical Assistance

Update, no. 1 (August 1996).

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Title II Highlights,"

(undated).

U.S. Department of Justice, Civil Rights Division,

Public Access Section, Americans with Disabilities

Act Title II Technical Assistance Manual 1994

Supplement, 1994.

U.S. Department of Justice, Civil Rights Division,

Public Access Section, "Title II Highlights"

(undated).

U.S. Department of Justice, Office of the Inspector

General, Inspection Report: Americans with Disabilities Act Technical Assistance Grant Program,

Report Number 1-94-05, November 1994.

U.S. Department of Justice, Justice Management Division, Equal Employment Opportunity Staff,

"1997 EEO Related Conferences and Activities."

Quarterly Reports

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Special Status Report from

the Department of Justice, July 26, 1995.

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice, April 1994.

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice (April-June 1994).

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice (July-September 1994).

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice (October-December 1994).

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice (January-March 1995).

U.S. Department of Justice, Civil Rights Division,

Enforcing the ADA: A Status Report from the Department of Justice (April-September 1995).

U.S. Department of Justice, Civil Rights Division

Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(October 1995March 1996).

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(April-June 1996).

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(July-September 1996).

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, Enforcing the ADA. A

U.

U.

U.

Status Report from the Department of Justice

(October-December 1996).

S. Department of Justice, Civil Rights Division,

Disability Rights Section Enforcing the ADA: A

Status Report from the Department of Justice

(January-March 1997).

S. Department of Justice, Civil Rights Division,

Disability Rights Section Enforcing the ADA: A

Status Report from the Department of Justice

(April-June 1997).

S. Department of Justice, Civil Rights Division,

Public Access Section, Enforcing the ADA A

Status Report from the Department of Justice,

April 4, 1994.

Other

Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of

Justice, memorandum to Arthur B. Culvahouse,

Jr., Counsel to the President, "Application of Section 504 of the Rehabilitation Act to HIV-Infected

Individuals," Sept. 17, 1988.

Steven Boone, "Libraries and the Americans with

Disability Act: Year Two Evaluation Report,"

(undated).

U.S. Department of Justice, "ADA Mediation Program," Feb. 19, 1997.

U.S. Department of Justice, "State Listing of Centers

for Independent Living and ADA Resources."

U.S. Department of Justice, "Strategic Plan: 1997-

2002," August 1997.

U.S. Department of Justice, Civil Rights Division Activities and Programs, June 1995 edition.

U.S. Department of Justice, Civil Rights Division,

Disability Rights Section, "Title II of the Americans with Disabilities Act / Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint

Form," (undated).

Training Seminar given by J&H March & McLennan

re: Insurance Planning for Lawyers.

The Access Board (also known as U.S. Architectural

and Transportation Barriers Compliance Board's)

Update on their Accomplishments (undated).

DO! Responses to OCRE Information Requests

Preliminary Information Request for DOJ/CRD/DRS:

Complaint ProcessingResponseto Question No. 1

Preliminary Information Request for the DOJ/CRD

Response to Question No. 1

Preliminary Information Request for the

DOJ/CRD/DRSMission, Function, Responsibilities, Planning, Organization, Staffing and Budget

Response to Request for Documents No. 4

Preliminary Information Request for DOJ/CRD

Response to Request for Documents No. 1

Preliminary Information Request for DOJ/CRD

Response to Question No. 1

305

319
Statutes

Pub. L. No. 101-336, 104 Stat. 327 (codified at 42

U.S.C. §§ 12,101-12,213 (1994)). [Americans with

Disabilities Act of 1990]

Public Law 102-140, October 28, 1991, Departments

of Commerce, Justice, and State, the Judiciary,

and Related Agencies Appropriations Act, 1992

Public Law 102-395October 6, 1992, Departments

of Commerce, Justice, and State, the Judiciary,

and Related Agencies Appropriations Act 1993

Public Law 101-162November 21, 1989, Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act

1990

Public Law 102-166, 101 Stat. 1071 (codified at 42

USC 1981 (November 21, 1991))[Civil Rights Act

of 1991]

ADA Court Cases and Amicus Curiae Briefs

Brief for the Petitioner, Randon Bragdon v. Sidney

Abbott, 107 F3rd 934 (1st Cir. 1997), cert. granted,

Nov. 26, 1997.

DOJ Amicus Curiae Brief , Williams et al., v. Wasserman et al., USDC D. MD. , C.A. #CCB-94-880, 91-

2564 & 94-1107, filed April 1996Memorandum of

the United States in Support of Plaintiffs' Motion

for Partial Summary Judgment Claim and In Opposition to Defendants' Motion for Summary Judgment, or In the Alternative Motion for Partial

Summary Judgment (Integrated Setting)

DOJ Amicus Curiae Brief, Ricky Wyatt, et al.. v. Diane Martin, et al., USDC M. ALA, Northern Division, C.A. #3196N, filed February 1995United

States' Response to Defendants' Motion for Judgment on the Pleadings and Plaintiffs' Motion for

Summary Judgment on Plaintiffs' Claims Under

ADA of 1990 (Integrated setting)

DOJ Amicus Curiae Brief, Lakes Region Consumer

Advisory Board (Cornerbridge) v. City of Laconia,

NH, USDC D. NH, C.A. #93-338M, Supplemental Memorandum of the United States as Amicus

CuriaeRe: If Title II of the ADA and Section 504

of the Rehabilitation Act of 1973 apply to zoning

enforcement activities.

Lakes Region Consumer Advisory Board (Cornerbridge)

v. City of Laconia, NH, USDC D. NH, C. A. # 93-

338M Memorandum of the United States As Amicus Curiae.(Re: Zoning)

Innovative Health Systems, Inc. , Martin A., Maria B.

et al. V. The City of White Plains, S.J., USDC S.D.

NY, Memorandum Decision and Order issued

June 12, 1996, C.A. # 95 CIV 9642 (BDP)

Innovative Health Systems, Inc., Martin A., Maria B.

et al. V. City of White Plains, USDC S.D. NY, C.A.

#95 CIV 9642 (BDP), Memorandum of Law of the

Untied States Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction and in

Opposition to Defendants' Motion to Dismiss the

Complaint

DOJ Amicus Curiae Brief, Innovative Health Systems, Inc., Martin A., Maria B., et al. v. The City

of White Plains, NY, et al., (4th Cir. ), Docket No.

#96-7797, Brief for the United States of America

as Amicus Curiae filed Nov. 8, 1996.

Frederick Arthur Shotz, v. the County of Palm Beach,

Florida, et al., USDC S.D. FLA., C.A. #98-8182,

Complaint, Class Action filed Mar. 24, 1998.

EEOC Amicus Curiae Brief, Robert W. Smith v. Midland Brake, Inc., (10th Cir.), Docket No. # 96-3018,

Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of the Plaintiff-Appellant's Petition for Rehearing and Suggestion for Rehearing En Banc filed Mar. 26, 1998.

Robert P. Burch v. COCACOLA, Co., 119 F.3d 305

(5th Cir. 1997), Cert. Denied Jan. 20, 1998.

Glen Arnold v. United Parcel Service, Inc.., 136 F.3d.

854; (1st Cir. 1998), Judgment of District Court

Reversed and Remanded, Feb. 20, 1998.

Joseph R. Matczak v. Frankford Candy and Chocolate

Company, 133 F.3d 910 (3rd Cir. 1997). Affirmed

the grant of summary judgment to Matczk's

claims of negligent and intentional infliction of

emotional distress. Reversed the grant of summary judgment as to the ADA claims. Remanded

to the District Court for further proceedings.

William Runnebaum v. NationsBank of Maryland,

123 F.3d 156 (4th Cir. 1997). Affirmed USDC D.

MD decision.

Whitman-Walker Clinical Legal Services Department,

EEOC, Amici Curiae.

Congressional

Senate Bill 2345-100th Cong. 2d Sess.

Senate HearingsCommerce, Justice, State, the Judiciary and Related Agencies Appropriations, Fiscal Year 1984

98th Congress, First Session, H.R. 3222/ S. 1721.

Senate HearingsCommerce, Justicel, State, the Judiciary and Related Agencies Appropriations, Fiscal Year 1987

99th Congress, Second SessionH.R. 5161.

Senate Hearings,Commerce, Justice, State, the Judiciary and Related Agencies Appropriations, Fiscal Year 1988

100th Congress, First Session.

Proceedings and DebatesAmericans with Disabilities Act, 135 Cong. Rec. S-933, 9/7/89.

H.R. 4498--100th Congress, Second Session, Apr. 29,

1988

H.R. 3433-105th Congress, Second Session, May 18,

1998

H.R. 2273-101st Congress -1st. Sess.

306

320
S. 1858-105th Congress-Second Session, Mar. 30,

1998.

Proceedings and Debates-Americans with Disabilities Act, 136 Cong. Rec. H.R. 2273-5/17,22, 1990.

S. 933 and H.R. 2273-101st Congress, Conference

Negotiations-5/24, 6/6. 7/11-13, 1990.

Selected Executive Statements-S. 933, H.R. 2273

Affirmative Action, Preferences, and the Equal Employment Opportunity Act of 1995, Hearing of the

Comm. On' Labor and Human Resources, U.S.

Senate, 104th Cong., 2nd Sess. (Apr. 30, 1996).

Americans with Disabilities Act of 1990, H.R. REP. No.

101-485, pt. 3 (May 15, 1990).

Developmental Disabilities Assistance and Bill of

Rights Act Amendments of 1993, S. REP. 103-120

(Aug. 3, 1993).

Hearing on Equal Employment Opportunity Commission (EEOC) Administrative Reforms/Case Processing: Hearing Before the Subcomm. On Employer-Employee Relations of the House Comm. On

Economic and Educational Opportunities on S.

1085, 104th Cong. (1995).

Serial No. 104-20, Hearing before the House Subcommittee on Employer-Employee Relations of the

Committee on Economic Educational Opportunities re: Equal Employment Opportunity Commission (EEOC) Administrative Reforms/Case Processing, 104th Congress, First Session, May 23, 1995.

Report 105-95, Individuals with Disabilities Education Act Amendments of 1997, Report of the House

Committee on Education and the Workforce on

H.R. 5-105th Congress, First Session, May 13, 1997.

Report 105-207 to accompany H.R. 2267, House

Committee on Appropriations, Committee on the

Departments of Commerce, Justice, and State, the

Judiciary and related Agencies Appropriations

Bill, Fiscal Year 1998, 105th Congress, First Session, July 25, 1997.

Report 103-875, Report on Legislative Review Activity during the 103d Congress of the House Committee on Ways and Means, 103d Congress, Second Session, December 20. 1994.

Report 101-485 Part 3 to accompany H..R. 2273

Americans with Disabilities Act of 1990, Report of

the House Committee on the Judiciary, 101st

Congress, Second Session, May 15, 1990.

S. Hrg. 104-114, Hearing of the Senate Committee on

Labor and Human Resources re: Affirmative Action and the Office of Federal Contract Compli- ance, 104th Congress, First Session, June 15,

1995.

Individuals with Disabilities Education Act Amendments of 1997, H.R. REP. No. 105-17 (May 13, 1997).

Individuals with Disabilities Education Act Amendments of 1997, S. REP. No. 105-17 (May 9, 1997).

Report on Legislative Activities of the Comm. On Labor and Human Resources, U.S. Senate, 102nd.

Cong. (1991-1992).

S. Report 102-39, Report on Legislative Activities of

the Senate Committee on Labor and Human Resources during the 101st Congress, 1989-1990,

102d Congress, First Session, April 18, 1991.

Report 104-863 Conference Report to accompany H.R. 3610, Making Omnibus Consolidated Appropriations for Fiscal Year 1997, 104th Congress, Second

Session, September 28, 1996.

Hearing Before the House Subcommittee on Civil and

Constitutional Rights, Committee on the Judiciary

re: Authorization Request for the Civil Rights Division of the Department of Justice for Fiscal Year

1993, Serial No. 129, 102d Congress, Second Session, May 7, 1992.

Report 104-96 to accompany H.R. 2076, House Committee on Departments of Commerce, Justice, and

State, the Judiciary, and Related Agencies Appro- priations Bill, Fiscal Year 1996, Committee on

Appropriations, 104th Congress, First Session, July 19, 1995.

Report 103-120 to accompany S. 1284, Developmental Disabilities Assistance and Bill of Rights Act

Amendments of 1993, 103d Congress, First Session, Calendar No. 178, Senate Committee on Labor and Human Resources, 103d Congress, First

Session, Aug. 3, 1993.

Report 103-442 Conference Report to accompany S. 1284, Developmental Disabilities Assistance and

Bill of Rights Act Amendments of 1994, 103d Congress, Second Session, May 21, 1994.

Report 103-208 to accompany H.R. 2339, Technology- related Assistance for Individuals with Disabilities Amendments of 1993, House Committee on

Education and Labor, 103d Congress, First Session.

Report 103-227, on Legislative Activities of the Senate Committee on Labor and Human Resources

during the 102d Congress, 1991-1992, 103d Congress, Second Session, Feb. 22, 1994.

Report 104-22, on the Legislative Activities of the

Senate Committee on Labor and Human Resources during the 103d Congress, 1993-1994 , 103d Congress, First Session, Mar. 30, 1995.

S. Hrg. 104-470-Affirmative Action, Preferences, and the Equal Employment Opportunity Act of

1995

Hearing on S. 1085 before Senate Committee on Labor and Human Resources, 104th Congress, Sec- ond Session, Apr. 30, 1996.

Report 103-105 to accompany H.R. 2244, House

Committee on Appropriations, Second Supplemental Appropriations bill for Fiscal Year ending Sept.

307

321
30. 1993, 103d Congress, First Session, May 24,

1993.

Report 103-105 to accompany H.R. 2519, House Subcommittee on Departments of Commerce, Justice,

and State, the Judiciary, and Related Agencies

Appropriations Bill, 1994, 103d Congress, First

Session, Calendar 150, July 22, 1993.

Report 103-552 to accompany H.R. 4603, House Subcommittee on Departments of Commerce, Justice

and State, the Judiciary and Related Agencies

Appropriations Bill, Fiscal Year 1994, 103d Congress, Second Session, June 21, 1994.

Report 103-157 to accompany 2519, House Subcommittee on Departments of Commerce, Justice, the

Judiciary, and Related Agencies Appropriations

Bill, Fiscal Year 1994, 103d Congress, First Session, June 24, 1993.

Report 102-106 to accompany H.R. 2608, House Subcommittee on Departments of Commerce, Justice,

the Judiciary, and Related Agencies Appropriations Bill, Fiscal Year 1992, 102d Congress, First

Session, June 11, 1991.

Report 104-872, Report on the Activities of the House

Committee on Ways and Means during the 104th

Congress, 104th Congress, Second Session, Union

Calendar No. 475, December 20, 1996.

Report 102-331 to accompany S. 3026, Senate Subcommittee on Departments of Commerce, Justice,

the Judiciary, and Related Agencies Appropriations Bill, 1993, Committee on Appropriations,

102d Congress, Second Sesssion, Calendar No.

557, July 23, 1992.

Oversight of the Equal Employment Opportunity

Commission: Hearing Before the Committee on Labor and Human Resources, United States Senate,

104th Congress, May 23, 1995.

Oversight of the Equal Employment Opportunity

Commission: Hearing Before the Subcommittee on

Select Education and Civil Rights of the Committee

on Education and Labor, United States House of

Representatives, 103rd Cong., July 26, 1994.

Oversight Hearing of the Equal Employment Opportunity Commission; Hearing Before the Subcommittee on Selected Education and Civil Rights of the

Committee on Education and Labor, United States

House of Representatives, 103rd Congress, Second

Session, Mar. 24, 1994.

Report 104-676 to accompany H.R. 3814, Departments

of Commerce, Justice, and State, The Judiciary,

and Related Agencies Appropriations Bill, Fiscal

Year 1997, 104th Congress, Second Session, July

16, 1996.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies, House Committee

on Appropriations for 1996, Part 5, DOJ FY 1996

Budget, 104th Congress, First Session, Feb. 22,

1995.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

for '1996, EEOC FY 1996 Budget, Part 9, 104th

Congress, First Session, May 11, 1995.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

for 1994, DOJ Budget for Fiscal Year 1994, Part

2B, 103d Congress, First Session, May 4, 1993.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

for 1989, EEOC Budget for Fiscal year 1989, Part

1, 100th Congress, Second Session, February 1988.

Report 102-709 to accompany H.R. 5678, Departments

of Commerce, Justice and State, the Judiciary, and

Related Agencies Appropriations Bill, Fiscal Year

1993, 102d Congress, Second Session, July 22,

1992.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

for 1992, EEOC FY 1992, 102d Congress, First

Session.

Hearings before the House Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

for 1992, EEOC Budget for Fiscal Year 1992, Part

5, Budget 102d Congress, First Session, Feb. 21,

1991.

Report 103.309 to accompany H.R. 4603, Departments

of Commerce, Justice and State, the Judiciary, and

Related Agencies Appropriation Bill, 1995 and

Supplemental Appropriation Bill, 1994, 103rd

Congress, Second Session, July 14, 1994.

Hearing before the House Subcommittee on the Department of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations for

1997, EEOC Budget for Fiscal Year 1997, Part 4,

104th Congress, Second Session, March 1996.

Testimony of Tony E. Gallegos, Commissioner, EEOC

and other EEOC staff concerning the Fiscal Year

1994 Budget Request for the U.S Equal Employment Opportunity Commission (EEOC) Mar. 31,

1993 before the House Subcommittee of the Committee on Appropriations, 103rd Congress, First

Session-Departments of Commerce, Justice, and

State, the Judiciary, and related agencies appropriations for 1994.

Testimony of Tony E. Gallegos, Commissioner, EEOC

and other EEOC Staff concerning the Fiscal Year

1995 Budget Request for the U.S. Equal Employment Opportunity Commission (EEOC) Mar. 24,

1994 before the House Subcommittee of the Corn308

3 2 2
rnittee on Appropriations, 103rd Congress, Second

Session, Departments of Commerce, Justice, and

State, the Judiciary, and related Agencies appro- priations for 1995.

Rehabilitation Act Amendments of 1992, S. REP. No.

102-357 (Aug. 3, 1992).

Report on Legislative Activities of the Comm. On Labor and Human Resources, U.S. Senate, S. REP.

No. 103-227 (1991-1992).

Report on Legislative Activities of the Comm. On Labor and Human Resources, U.S. Senate, S. REP.

No. 102-22 (1993-1994).

Technology-Related Assistance Act Amendments of

1993, S. Rep. 103-119 (Aug. 3, 1993).

Vocational Rehabilitation Act Reauthorization S. HRG.

105-174 (July 10, 1997), Hearing Before the Subcommittee on Employment and Training of the

Committee on Labor and Human Resources, U.S.

Senate.

Testimony and Statements

Fred Alvarez, Partner, Testimony on behalf of Wilson

Sonsini Goodrich & Rosati, Palo Alto, CA., before

the House Subcommittee on Employer/Employee

Relations, Committee on Education and the Workforce re: "The Future Direction of the Equal Employment Opportunity Commission (EEOC)," Mar.

3. 1998.

Alfred W. Blumrosen, Thomas A. Cowan Professor of

Law, Rutgers Law School, testimony before the

Subcommittee on Select Education and Civil

Rights, U. S. House of Representatives, "Oversight

Hearing on the Equal Employment Opportunity

Commission (EEOC)," July 26, 1994.

William H. Brown III, Esq., Schnader, Harrison, Segal & Lewis, Philadelphia, PA, "Testimony before

Committee on Education and the Workforce,

Hearing to Review the Equal Employment Opportunity Commission," Oct. 21, 1997.

Michael A. Carvin, "Testimony before the House Subcommittee on the Constitution, Committee Civil

Rights Division Oversight," May 20, 1997.

Gilbert Case llas, Chairman, U.S. Equal Employment

Opportunity Commission, "Testimony before the Senate Committee on Labor and Human Resources, re: Equal Employment Opportunity

Commission Oversight Hearing," May 23, 1995.

David A. Cathcart, Partner, "Testimony of Behalf of

Gibson, Dunn & Crutcher, Los Angeles, CA., before

the House Subcommittee on Employer-Employee

Relations, Committee on Education and the Workforce re: The Future Direction of Equal Employment Opportunity Commission," Mar. 3, 1998.

Midgdia Chinea-Varela, "Statement" for Hearing on

the Equal Employment Opportunity Commission

(EEOC): Is it Providing Fairness and Efficiency?"

Oct. 21, 1997.

Robert Clegg, General Counsel, "Testimony on Behalf

of the Center for Equal Opportunity," at the U.S.

House Judiciary Subcommittee on the Constitution, House Judiciary Committee re: Civil Rights

Division Oversight, February 25, 1998.

Charles B. Craver, Professor, George Washington

University, statement before the Subcommittee on

Select Education and Civil Rights Committee on

Education and Labor, U.S. House of Representatives, "Oversight Hearing on the Equal Employment Opportunity Commission," July 26, 1994.

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tr U. S. GOVERNMENT PAINTING OFFICE: 1998-444-783/90797

Miscellaneous

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312

326
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