Episode 129: Employment Discrimination and the ADA: Insights from the EEOC
7:31PM Apr 30, +0000
Speakers:
Barry Whaley
Alessandra Rosa
Keywords:
reasonable accommodation
eeoc
ada
employer
disability
adea
employee
complaint
accommodation
request
discrimination
case
reassignment
file
provide
disabilities
process
alessandra
charge
employment
Hi, I'm Alessandra Rosa, and you're listening to ADA live.
Hi, everybody on behalf of the Southeast ADA Center, the Burton Blatt Institute at Syracuse University, and the ADA National Network, I want to welcome you to this episode of ADA live. I'm very wily. I'm the project director here at the Southeast ADA Center. As a reminder, if you have questions about the Americans with Disabilities Act, you can use our online forum anytime at Ada live.org. Or you can call the Southeast ADA Center at 404-541-9001. Those calls are free and confidential. The Southeast ADA Center and the other nine regional ADA centers in the ADA National Network we receive hundreds of calls and emails each month asking for disability related information and guidance on the legal rights and responsibilities people have under the Americans with Disabilities Act. Many callers ask about their employment rights or their employers responsibilities to an employee with the disability. The Equal Employment Opportunity Commission or the EEOC is a federal agency responsible for enforcement of various employment rights laws. The EEOC handles complaints on employment discrimination that are based on issues like disability, age, gender, race, or religion. In this episode, we'll focus on the ADEA the Americans with Disabilities Act and employment discrimination against people who have disabilities. Here's some interesting facts from the EEOC from fiscal year 2023. According to the EEOC in fiscal year 2023 43, disability merit lawsuits were filed. The report found that 34% of total filings were disability discrimination lawsuits and of those lawsuits that were resolved that the 8% involve denial of reasonable accommodation. Our guests for this episode, she's Alessandra Rossa. Miss Rosa is the lead Outreach and Education Manager at the Indianapolis district office of the US Equal Employment Opportunity Commission. So Alessandra, thank you for being with us today.
Thank you for having me. Good afternoon, everyone.
So Alessandra, let's start, maybe you can tell us a little bit what your role is as the lead outreach and education manager.
So the EEOC is committed to working on the prevention of employment discrimination and resolving that employment discrimination once it unfortunately occurs. So my role is to provide training and education for both employees and employers. We can do free presentations, such as conferences, webinars, or podcasts, such as this one. I also can conduct fee based workshops. And we also do customer specific trainings. In those instances, the training is going to be tailored to the organization's request, and any specific area of the law that the organization needs to polish. Or in my role, I also provide organizations with civility training, respectful workplace training, and leading with respect training in order to prevent discrimination and correct it before it happens.
So a lot of what you do it sounds like is preventative right, provide this training. So everybody is clear what their rights and responsibilities are to prevent some sort of either adverse employment action later or some sort of suit being filed in court.
Correct. A lot of the cases that we have, unfortunately, are because either the employers or the employees are not versed in their rights and responsibilities.
So there are a number of laws that EEOC enforces, but I want to focus on Title One of the Americans with Disabilities Act. Can you tell us a little bit about how EEOC enforces disability rights laws in particular ADA.
We educate and encourage the voluntary compliance through these trainings that I just mentioned. However, when we get claims of disability discrimination, we go ahead and we investigate and we solve those charges of discrimination. We also litigate those cases in federal court when necessary. And we also provide technical assistance to employers. So if they have any questions, as to the Americans with Disabilities Act, or any situation or request that has come before them from an employee, and they don't know how to handle it, then they can contact us. And we can provide them with that assistance in order to make sure that the Americans with Disabilities Act is complied with.
Yeah, and we'll talk more about what happens when somebody files with you guys in a few minutes. But just so that we're clear, so we're talking about Title One of the ADEA are all employers covered by Ada Alessandra.
So the ADEA provision is going to apply to state and local governments, employment agencies, labor unions, and any private employer that has 15 employees or more. So usually, we're going to see that the Americans with Disabilities Act provisions are going to apply to most of the employers that we deal with.
So ADA applies to employers with 15 or more employees, there may be state laws that offer a greater protection, would the EEOC be involved in say if there was a state law that businesses of five or more had more covered.
So now, if the state provides more protection, than the employer has a duty to comply with those additional protections, what we would do is in the event that a state law provides less protections, than we would make sure that the protections that the Americans with Disabilities Act provides are the ones that are put in place, so the state can provide more, but not less,
conversely, are all employees or job applicants covered under ADA.
So not necessarily, the ADEA provisions only apply to individuals with disabilities that are qualified for the position with or without a reasonable accommodation. So we can be talking about an applicant and employee or even a former employee. But the important thing to remember is that the individual having the disability under the ADEA, they also must be qualified for the position with or without a reasonable accommodation.
Explain what qualified means, Alessandra,
in order to be qualified, the individual must meet the requirements of the position. So if the position requires educational experience, then the person must have that experience that mandates for experience, then they need to comply with the experience. So they're able to do all of the duties of the job with a reasonable accommodation. So I'll give you an example. A person that is qualified to work as a cashier, they're qualified, because they have the education or their training, but they may need a reasonable accommodation in order to perform the job, whether it's maybe a physical accommodation, such as being able to sit down and instead of being standing up all the time, or in some other instances, maybe they need breaks during their shift, to be able to take care of any disability that they have. But the important thing is that they can still perform to the required duties of the job without reasonable accommodation.
Again qualify being qualified to do the job is very important. So I would imagine conversely, then if you are not qualified to do that job, then you do not have protection under the law.
Correct. So for example, if the job because of its nature, has a requirement to be walking and standing for long periods of time, and your disability does not allow for you to be standing up, then you wouldn't be qualified for that position because he couldn't perform the requirements of that job.
So imagine along with qualified what I'm hearing you say then is you need to be able to perform the essential functions, the reason why the job exists. Correct.
I say thank you. Can you talk maybe for a few minutes It's about the specific workplace practices and activities that are covered by ADA.
Yes, da da, is going to prohibit discrimination in all employment practices. So that's going to include everything from your job application process, hiring, firing, advancement, any compensation, any training in any other privilege of your employment. So it applies to the recruitment, to the advertising, to leave any fringe benefits, or anything that relates to your employment, or any benefit of that employment.
So I'm just kind of curious, because there are a number of accommodations that can be put in place in order for somebody to perform those essential job functions. There are a couple that are kind of outliers, right? So leave of absence or transfer to a different position, how does the EEOC view those accommodations?
If the accommodation is needed, in order for the person to be able to perform their job, then the accommodation is a protection under the Americans with Disabilities Act. And the most common type of requirement that we see is the use of leave. And usually that comes when your disability either has some type of flare up that then the person needs to be able to have an absence for that or because you have medical appointments that you need to go to or medical treatment. So the reason why it's a reasonable accommodation is that those absences cannot be put against the employee when we are looking at their employment performance, or when if there's a policy as to how many times a person can be absent, that type of lead cannot be put against that policy.
Thanks, Alessandra, for this great information, ADA live listening audience. If you have questions about this topic or any other ADA live topic, you can submit your question online at Ada live.org. Or you can call the Southeast ADA Center at 404-541-9001. And we're going to pause now for a word from this episode sponsor the Equal Employment Opportunity Commission.
The US Equal Employment Opportunity Commission is the agency which enforces federal laws, making it illegal to discriminate against the job applicant or an employee because of the person's race, color, religion, sex, including gender identity and sexual orientation, pregnancy and pregnancy accommodations, national origin, age 40 or older disability or genetic information. Laws that the EEOC enforces also provide that workers can get reasonable accommodations if they need them because of disability, religion, pregnancy, childbirth or related medical condition as long as the accommodation does not cause the employer undue hardship. If you believe something happened to you at work for any of these reasons, you can file a charge of discrimination against your employer. There are several ways to contact EEOC about filing a charge of discrimination online by using the EEOC public portal at public portal dot EEOC daco. in person at an EEOC office, or a state or local fair employment practice agency, by mail by phone at 1-800-669-4000. For TTY 1-800-669-6820 for ASL video phones 1-844-234-5122 call is free and you do not need a lawyer to contact us. Thank you.
Hi, everybody. Welcome back. I'm very wily with the southeast ADA Center. Our guest today is Alison DeRosa. She is the lead Outreach and Education Manager for the Indianapolis district office of the US Equal Employment Opportunity Commission. Before the break, we were talking about workplace practices and activities that are covered by the ADEA. And what are some of the most common types of disability discrimination you see in the workplace?
One of the usual ones relate to just what we were talking about those requests for leave as a reasonable accommodation. So that's the usual one that we see when we have a policy that provides for some type of disciplinary action after the employee has a number of days absent. So When there's leave involved as a reasonable accommodation, then that policy needs to be changed. Or there's an exception to that policy in regards to that employee as part of that reasonable accommodation. We also see, the most common type of disability discrimination usually is going to involve the reasonable accommodation request period, just because employees and employers are not necessarily fully aware of the particulars of the reasonable accommodation process, and how they need to provide an interactive process between the parties, and also reassignments as part of a reasonable accommodation process. reassignment is a tool of last tool to be used as a reasonable accommodation process. But it is part of a reasonable accommodation, or it is considered as a reasonable accommodation. Sometimes employers are not aware as to how to handle a request for reassignment. And that usually gives them a place to have a discriminatory termination because of disability.
You mentioned just a second ago, the interactive process, can you kind of give us an idea of what you mean by that.
Of course, that is the most important part of the reasonable accommodation process. Because once an employee needs a reasonable accommodation, and the ones that need comes into knowledge by the employer, there needs to be this process called interactive process, where the employee says this is what I want. And then the employer responds, Yes, I can give this to you, or no, I cannot give this to you. But I can give you this other effective reasonable accommodation. And in that process, if there's a need for medical documentation to support the request for reasonable accommodation, the employer can request that from the employee, as long as it's reasonable medical documentation. And if there's any question as to the connection between the reasonable accommodation request and the disability, that connection may also be requested from the medical provider. So that interactive process is extremely important, because that's the process where the reasonable accommodation, in reality is going to be agreed upon.
So Alessandra, you're just so that I'm clear, just because somebody asks for an accommodation, the final decision on what accommodation is put in place is the responsibility of the employer, so long as it is equally effective.
Correct. And if the reasonable accommodation being requested or available, is something that would create what we call an undue hardship on the employer, then potentially, the employer has that as a defense that they can raise, saying, I cannot provide any reasonable accommodation, because they would cause an undue hardship,
and what's an undue hardship? How do you define that?
an undue hardship mandates, also a separate analysis, because it's going to be very dependent on the position and the duties of the position that the reasonable accommodation is being requested for, it's also going to depend on the size of the employer, the financial resources of the employer, the number of locations, the profitability, if other reasonable accommodations have been provided, etc. So it's, it's a very case by case needed analysis, for example, or shift that maybe has five employees, each employee's job depends on the employee before them. So let's say like an assembly line or something like that, if a reasonable accommodation was requested by one of those employees to be absent for a couple of hours or to have breaks every couple of hours, potentially, the employer could say that would create an undue hardship of my operations because the assembly line does not work unless I have an employee the whole time during that shift. So that's why it really needs to be fact specific.
Yeah, that's interesting. Thank you. Before we go on, I did want to ask you go going back to the as you said, you know reassignment what how happens if there is a collective bargaining agreement in place, would that not perhaps be a violation of the collective bargaining agreement to put an accommodation especially moving to another position in place?
Well the collective bargaining agreement is put in place, and it does have to be respected and looked upon when we are doing reassignments. However, because the ADA provides that protection, there are some exceptions to the collective bargaining agreement, we have to keep in mind that one we are dealing with a reassignment, this person is never going to get a promotion. So the reassignment needs to be to an equal or comparable position as to the one that they're they currently have. And if the only position available is one that is lower than the one that they currently have, then it's up to the employee to decide whether or not they want to accept that reassignment. But the employer has complied with their duty of offering a viable reassignment. Usually, the clash with the collective bargaining agreement will be in the event that, you know, there's a higher position or a promotion. That's the position that's available for reassignment, and that cannot be something that happens as a reassignment under the ADA.
I see. Thank you, you know, we've just emerged from a pandemic. You know, although employment discrimination certainly existed prior to the pandemic, I'm curious as the EEOC seen an increase or decrease in disability related discrimination, ADA complaints.
ADA complaints have remained mostly the same with the majority relating to reasonable accommodations. However, after COVID, what we have seen is a change or shift in the type of reasonable accommodation that's being requested. For example, after COVID, we see a lot more reasonable accommodations being requested regarding telework, or remote work. After COVID, we see a lot more reasonable accommodations related to anxiety, mental health issues that were not necessarily as present prior to COVID. And then we we also have now, no additional disabilities, that came as a result of COVID such as, you know, respiratory disabilities, and what they call long COVID, which were not obviously an issue before. And so it's not necessarily an increase in case numbers, but it is a shift in the type of disability or in the type of reasonable accommodation that's being requested.
We use the phrase kind of broadly with long COVID. The EEOC, I would imagine would have to look at whatever the the long COVID symptom might be that an individual assessment of an impact who a major life activity needs to take in place.
Correct. The Commission encourages employers not to put the burden on themselves in doing that analysis, but rather, that the employers use the right that they have under the ADA to request the medical documentation that makes the connection for them. So what I mean by that is, if I have a disability and I come and request a reasonable accommodation, my employer is always going to have the right to request reasonable medical documentation that sustains the disability and sustains that the reasonable accommodation that I'm requesting is because of my disability. So that's going to be the same with COVID symptoms or COVID. Disabilities, the employer doesn't necessarily have to go into the analysis that this person have COVID, how long did they have it for, et cetera, they should focus more on give me the medical documentation that states that you have whatever condition it is, and because of that, you need this accommodation.
That's good information to know. So if an employee or job applicant believes that they've been discriminated against disability, they can file a complaint under the ADEA with the EEOC. I'm wondering, are there any fees involved with that? Do they have to hire an attorney? What does that process look like?
So our services are free. You do not need to hire an attorney to file a job discrimination complaint. With the EEOC, however, you may hire one at your own expense, if you wish to do so. But you certainly do not need to hire one to file before the EEOC, our services are free. So everything that happens before the Commission, the filing of the charge, the investigation, potential mediation, all of that is going to be free of charge.
So after somebody files a complaint, what's the process? What is EEOC do next? How do they investigate?
There is a process how you mentioned, we start with the basic one of the filing of the complaint. That's what begins everything. And at that point, the complainant or the charging party, which is the term that we use, they're going to get a charge number that's going to allow them to track the progress of their case in our system. The complaint is also then sent to the complainant employer. And that is something that's very important, because we've had complainants tell us? Well, I don't want my employer to know, unfortunately, we are neutral fact finding evidence. So we need to give the benefit to both parties to give us their side of the story. In some cases, once the case is filed, and even before any investigation begins, the EEOC offers the parties the ability to mediate the case, an alternative way to resolve the issue. We provide the mediators also free of charge, and the mediator works with both parties to try to reach an agreement early on that will put an end to that complaint, if the complaint is not sent to mediation. Or if the mediation doesn't resolve the problem, then the employer has a right to give the EEOC a written answer to the complaint, the Trump that we use the position statement, and then the charge is assigned to an investigator at that point. And depending on the facts of the case and the kind of information that is needed, then the investigator will decide if they need to hold interviews, if they need to gather documents, if they need to do that in person, or if they can do it by phone. And then a determination is made based on that investigation as to whether or not discrimination occurred.
Just so I understand the timeline Alessandra. So mediation, which obviously is preferable mediation might occur before there is a formal investigation. Is that correct?
Yes, that is correct. Because depending on the facts of the case, sometimes mediation can resolve the case very quickly on instead of going through the whole process of investigation.
We talked at the beginning about the number of disability discrimination complaints you receive each year, you investigate every complaint that you receive,
Not necessarily some charges are going to be dismissed immediately, because they are on timely, meaning that they came to us after the timeframe that a party has to file a complaint before us, which is 180 days or 300 days depending if you have a state and local agency that works with us in receiving complaints. Other cases may have allegations that are under federal laws, but are not necessarily the laws that we enforce. Other cases like I said, are mediated and therefore not investigated. But if none of the above situations occur, then the case will be investigated. Another instance where the case potentially may not get investigated is if the complainant brings forth the complaint but then doesn't provide any additional information or does not respond to the investigators communications.
That's where that documentation is so important. If you're taking your complaint to the EEOC,
It is always very important. And I tell everyone this in my trainings whether you're an employee or you're an employer, it is extremely important to document the process the requests of reasonable accommodation, the interactive process, any determination because usually by the time that these cases are investigated, at least a year has has passed. It is very unlikely that just from memory, you're going to remember details about negation. So that's why documentation is extremely important to support whether it's a claim or defense.
So we'll say there's a formal investigation that the EEOC finds that some of these rights have been violated, what happens next?
Well, that happens a couple of things that can actually then result if the EEOC finds discrimination. The commission is going to issue what we call a letter of determination that's going to be sent out to the complainant and to the employer. And it's going to explain the finding. At that point, the EEOC will work with both parties to fix the situation. That's what we call the conciliation part of it. If the complainant agrees to a solution, then the case is conciliated. Before the EEOC on the charging party, as result will be waiving the right to go to court, if the solution is not found, meaning that the EEOC cannot conciliate the case between the parties, then the EEOC decide at the commission level whether or not the case should be taken to court on behalf of that charging party. Unfortunately, because of limited resources, we can't file suit in every case that we find discrimination on. So if a determination is made not to file a lawsuit, then we will provide the complainant a notice telling them that we've closed the case at the administrative level. And then the complainant has the right to file their own lawsuit before court within 90 days of that notice.
So I still have other recourse than if you don't move forward, I still have recourse in the court system against my employer,
Right The EEOC is not going to be the last stop unless your case is resolved within the administrative process of the sea. So if there's an agreement between the parties that puts an end to the case, then you would be forbidden to go to court. But if a solution is not reached, even if you have or do not have a resolution in your favor, you still have the right to go to court, within 90 days of the notification.
What if they investigate and they don't feel my rights have been violated? Is that it is is that the end of the story?
So no, just instead of a letter of determination in those instances, the complainant would receive a notice called dismissal and notice of rights. And then from that notification, the complainant would have the same 90 days to file their own lawsuit. Whether we find in your favor, or we don't find in your favor, you're always going to have the right to go to court in the event that your case is not that resolved.
If you found that or believed that my rights were not violated. I do go to court. Would the EEOC investigation then would that be part of the evidence in a civil case?
It depends. There's some information that is confidential and cannot be subjected to what we call a FOIA request foi a which is a Freedom of Information Act request. Under those requests, documents of federal agencies need to be provided. However, like I said, there are some documents that are not going to be provided. So any conversation that happens during mediation, any internal analysis that is done on the deliberative privilege of the commission, those documents will not be produced. But if the case went to court, then the employer can request the administrative file to be produced to present to the court the evidence or the determination that the Commission entered. Now, just because the commission found no violation does not mean that the court is going to immediately dismissed the case. Okay, and that's very important for people to understand the port can determine something else. But how the long stands is that before you can go to court to allege a violation under the Americans with Disabilities Act against your employer, you have to exhaust the administrative process before the EEOC.
That's important to remember. Yep, thank you. So Alessandra, the EEOC has recently developed some new guidance material that explains the rights of people with disabilities and the obligations of employers under the ADEA. Can you tell us about some of these new materials that our listeners would like to know about?
I would encourage everyone to go to the EEOC website. Because our website, there's a complete section on disability, and it's going to contain all the materials needed to answer any question about the rights and responsibilities, there's going to be an updated overview of the law, there's going to be technical assistance documents, and those are really important because there's fact sheets, they're very user friendly. There's also a big section of questions and answers as to what you can do and what you can not do. And there's also the recent cases, where the EEOC has litigated disability related matters. It also contains information on how to file a charge, what happens after the charges filed, and the remedies available if discrimination is found. So there's a world of information there and guidance that really walks everyone through the process of disability discrimination, what it is, what it looks like and what to do when that happens.
Thank you. I want to thank you for sharing your time with us today. I think we've learned a lot about how EEOC enforces the rights of people with disabilities. Do you have any final thoughts, I'll give you the final word,
I would really encourage everyone to take advantage of the resources available to better learn your rights and responsibilities, whether it's through the ADA Center, which amazing resources that you provide, or whether it's the EEOC website, or contacting your local EEOC office for technical assistance, because a well trained organization is going to be key in preventing discrimination. But a knowledgeable employee is going to really be able to understand their rights and know when to request what they have a right to. And if you go to the Outreach and Education tab and the EEOC website, you're also going to have access to a list of trainings that are available nationwide. And lastly, I would encourage everyone to sign up for the EEOC newsletter, because just like you and I did a couple of weeks ago, we put together free webinars that provide the public the opportunity to ask questions, and we provide a lot of information on those webinars free of charge with those newsletters. That's how we send out the information related to any training. And that way, you can make sure that you're receiving all part of pertinent information related to the EEOC and any trainees that you would be interested in.
How do I sign up for that newsletter?
As soon as you go into the website, there's going to be a little pop up. That's going to ask you if you want to sign up for the newsletter.
Very good. Thank you, Alessandra. Thanks again for being with us today. I think it's very important that we all understand what rights and responsibilities we have in the workplace, and how the EEOC enforces them. listeners. Thanks for joining us for this episode, you can access all ADA Live episodes and with archived audio, accessible transcripts and resources at our website, Ada live.org. We invite you to listen to the ADA live SoundCloud channel, go to soundcloud.com forward slash ADA live. Download ADA live to your mobile device. Go to your podcast app and search for ADA live. We have questions about the Americans with Disabilities Act. You can use our online forum anytime at ata live.org or contact your Regional ADEA Center at 1-800-949-4232. And as always, those calls are free and they're confidential. Ada live is a program of the southeast ADA Center the Burton Blatt Institute at Syracuse University, and a collaboration with the disability inclusive employment policy, rehabilitation research and training center. Our producer is Celestia Ohrazda, with Cheri Hoffman, Mary Morder, Marsha Schwanke, Chase Coleman and me I'm Barry Whaley. Our music is from four wheel city movement for improvement. We also invite you to tune into our companion podcast Disability Rights today for in depth discussion on court cases that have shaped disability rights and the Americans with Disabilities Act. To learn more go to disability rights today.org See you next episode.