Andy Daley, Lead Systemic Investigator
Deborah Hamilton, Trial Attorney
January 22, 2014
The views expressed in this presentation are the views of the authors and
not necessarily the views of the EEOC.
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The EEOC’s ADA work
EEOC’s Strategic Enforcement Plan and the
ADA
EEOC’s Recent ADA Litigation
EEOC’s Recent GINA Litigation
The EEOC’s Administrative Process
The EEOC and the IDHR
ADA Litigation Practical Tips
Questions & Answers
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2012 – A snapshot
99,400 charges
26,400 ADA charges
155 suits (122 merits suits)
45 lawsuits with ADA claims
$44.2 million in total benefits from litigation
$5.4 million in total benefits for ADA claims from
litigation
◦ 280 GINA charges
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ADAAA Regulations
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New Focus on Reasonable Accommodations
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Systemic Activity
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Leadership for the Employment of Americans
with Disabilities – federal workforce
2012 – 2016 Plan to establish priorities
1. Eliminate barriers in recruitment & hiring
2. Protecting immigrant, migrant and other
vulnerable workers including workers with
disabilities
3. Addressing emerging and developing issues
4. Enforcing equal pay laws
5. Preserving access to the legal system
6. Preventing harassment through systemic
enforcement and targeted outreach
1. Eliminating Barriers to Recruitment and
hiring
◦ Steering of applicants to certain positions based on
disability
◦ Restrictive application processes
◦ Use of screening tools, i.e. pre-employment testing
2. Protecting vulnerable groups who are
unaware of rights
3. Addressing emerging and developing issues
◦ the Commission recognizes that elements of the
following issues are emerging or developing: 1)
certain ADA issues, including coverage, reasonable
accommodation, qualification standards, undue
hardship, and direct threat; and 2) accommodating
pregnancy-related limitations under the Americans
with Disabilities Act Amendments Act (ADAAA).
Illustrative cases
 EEOC v. Hill Country Farms
◦ Intellectual disabilities
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EEOC v. UPS
◦ Pleading issues
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EEOC v. St. Alexius
 Discovery issues
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Reasonable Accommodations: A quick look
$240 million verdict
2 million in compensatory relief
5.5 million in punitive damages
per claimant
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32 class members, who worked in a turkey
processing facilities in Iowa eviscerating
turkeys
Intellectual disabilities
Outrageous facts
Verbal and physical harassment
◦ Calling them retarded & stupid
◦ Forcing them to carry heavy weights
◦ Abusive living conditions – denial of medical care
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Verdict reduced to $1.6 million
Significant Trial testimony
◦ Expert testimony from a national expert on
individuals with intellectual and developmental
disabilities
◦ Testimony from social workers at the Iowa
Department of Human Services
◦ Victims
Great weight of evidence on the EEOC’s side
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Litigation consistent with EEOC’s May 2013
release of revised publications regarding the
rights of persons with intellectual disabilities.
Key points:
◦ Collection of information about the disability
limited
◦ Reasonable accommodations required for both
application process and open jobs
◦ Termination for safety concerns limited to direct
threat
◦ Harassment unlawful
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In addition to a publication on the employment
rights of persons with intellectual disabilities,
EEOC also revised its publications on the
employment rights of persons with:
◦ Cancer
◦ Diabetes
◦ Epilepsy
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Q & A format covers general info about the
condition, collection of medical info,
accommodations, safety concerns, harassment &
retaliation.
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Class case brought to challenge UPS’s failure
to accommodate employees who were on the
Company’s twelve month leave of absence
Years of litigation over whether the EEOC had
satisfied the pleading standard to state a
claim for a class of unnamed persons where
EEOC identified two claimants and described
the policy at issue
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Iqbal and Twombly – Supreme Court requires that
the claim be “plausible”
◦ Rule 8 – short & plain statement of the claim
◦ Fair notice of the claim and grounds upon which it rests
◦ Raise the possibility of relief above the speculative level
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Ultimately D.Ct. permitted the EEOC’s claims to
go forward and denied Defendant’s request for
interlocutory appeal on that issue
◦ Reasonable accommodation claim can be asserted for
unknown class members
◦ 102(b)(6) claim also permitted
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When pleading a class complaint under the ADA:
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When pleading an individual case under the ADA:
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Tension because you plead the complaint before you
engage in discovery
◦ Name the statute
◦ Name the timeframe
◦ Provide specific examples of affected employees and their
claims
◦ Describe the class and the conduct at issue as to them
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Name statute
Name the time
Plead as much detail as to QUID status as possible
Don’t need a prima facie case
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Failure to accommodate case brought by the
agency on behalf of an employee with a
cognitive disability who sought work as a
hospital greeter.
Employer hospital failed to offer her a
reasonable accommodation.
Discovery Rulings
 Garden variety emotional distress limit on discovery rejected
because it is a slippery slope and Defendant is entitled to know
employee’s emotional baseline thus Defendant won production
of employee’s mental health information
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Broad scope of medical records ordered produced over EEOC’s
objection that records were too remote in time or not relevant
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Past and subsequent employment records permissible subject of
discovery
◦ Disability degenerative in nature so defendant entitled to examine the
course of her work history
◦ Job functions that applicant could perform for other employers could be
relevant to functions that she could perform for this employer
Advice to practitioners and persons with
disabilities. Prepare for the possibility of
significant discovery into:
- Mental health records
- Medical history
- Past and subsequent employment
All areas where EEOC has tried to limit
discovery.
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Leave
◦ Employee with breast
cancer terminated for
failure to report to
work due to surgery
◦ Employee with
mental health
condition requested
additional leave for
treatment
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Change in positions
◦ Employee with poor
physical health
sought demotion to
less stressful job
◦ Employee who
required use of a
cane requested a
change in positions
to an open job with
fewer physical
demands
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Change in job
responsibilities –
non essential
function
◦ Employee requested
limited travel due to
fertility issues
◦ Employee sought to
limit lifting
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Use of an assistive
device
◦ Employee with
anxiety condition,
PTSD denied use of a
service dog
◦ Employee not offered
the use of an
assistive device for
lifting
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Prohibited Pre-employment Inquiry Case
◦ Do you have any health problems?
◦ Do you take medications?
◦ Which medications?
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Prohibits employers
◦ From collecting genetic information.
◦ From making employment decisions on the basis of
genetic information.
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Genetic information discrimination is one of
the emerging issues that was identified in the
EEOC’s strategic enforcement plan.
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EEOC v. Founders Pavilion, 13 cv 1438 (W.D.N.Y. 2013)
◦ GINA violation = collection of family medical history. Post offer,
pre-employment collection of information.
◦ ADA violation = fired two employees because of perceived
disability.
◦ Title VII violation = fired or failed to hire three pregnant
employees.
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Third case brought by EEOC under GINA and first systemic
case.
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Settled for $370,000.
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EEOC v. Abatti Group, 13 cv 07196 (C.D. Cal.)
◦ GINA violation = illegal inquiries into applicants’
family medical history
◦ ADA violation = illegal physical examinations of
applicants and medication condition inquiries
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Applicant denied hire because of past
hospitalization for a heart condition where
family members also had a history of heart
problems.
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EEOC v. Fabricut, 13 cv 248 (N.D. Okla.)
◦ GINA violation = post-offer collection of family medical
history
◦ ADA violation = failure to hire because of real or
perceived disability
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Applicant for a memo clerk position performed
the job as a temporary employee then applied for
permanent hire. Required to undergo medical
exam that included inquiry into family history
and revealed carpal tunnel syndrome. Though
applicant’s doctor denied carpal tunnel, applicant
was refused hire.
Settled for $50,000
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Patterns of violation seem to occur together.
Where you have an ADA violation, especially
based on perceived disability, look for a GINA
violation.
Investigation
Charge
Filed
Mediation
Settlement
Withdrawal /
Closure /
Right-to-sue letter
Resolution
No-cause finding /
Right-to-sue letter
Cause finding
Resolution
EEOC LITIGATION
Conciliation
Conciliation failure
Right-to-sue letter /
Potential referral to private
attorney
28
Unsuccessful
Conciliation
5%
Successful
Administrative
No Cause
closure
14%
Settlement
Conciliation
4%
Withdrawal with
benefit
Withdrawa
l with
No Cause
benefit
60%
9%
Settlement
8%
Successful
Conciliation
Unsuccessful
Conciliation
Administrative closure
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In person/phone interviews by appointment
only.
◦ Call 1-800-669-4000 to schedule appointment.
◦ M – F / 8:30, 9:30, 10:30, 1:00, 2:00, 3:00
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Attorney drafted charges via mail, or in
person 8:30 – 4:00
EEOC initiated
◦ ADEA, EPA Directed Investigations
◦ Title VII, ADA, GINA Commissioner Charges
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Mediation is an extra step in the charge process often
made available by EEOC as an alternative to the
traditional investigative and litigation processes
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A mediator is a neutral party to the dispute and helps
the parties negotiate a fair and reasonable solution.
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Mediator does not impose a decision on the parties;
instead helps the parties to agree on a resolution
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If the charge is not mediated successfully, it proceeds
to investigation.
◦ Mediators are trained in mediation and EEOC law.
◦ The mediation process is confidential.
◦ Participation in completely voluntary.
◦ There is no financial cost to participating in a mediation.
◦ Mediation usually occurs early in charge process, and many
completed in one meeting.
◦ Agreements secured during mediation do not constitute an
admission by the employer.
◦ Agreements reached in mediation are enforceable in court.
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Position Statement from employer
Requests for Information
◦ Subpoena for information if needed
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Interviews of charging party witnesses
Interviews of third party witnesses
Interview of Respondent agents
Onsite visit to Respondent facilities
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If EEOC makes a cause finding, EEOC
attempts to eliminate the unlawful
employment practice in Conciliation.
◦ Informal, confidential
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EEOC’s goal is appropriate remedial,
corrective and preventative relief given its
determination of unlawful employment
practices.
Conciliation will fail if unable to secure an
agreement acceptable to EEOC
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Remedy for Charging Party and/or class
Training targeted to EEOC’s findings
Reporting related to EEOC’s findings
Policy revisions
Notice Posting
Public Disclosure (if deemed appropriate)
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Work share agreement between EEOC and Illinois
Department of Human Rights.
◦ Defer investigation for matters with common jurisdiction
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Charges cross filed between EEOC and IDHR
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Each Agency investigates the charges it receives,
except
◦ Only need to file at one or the other; duplicate charge
filing could delay processing
◦ Charging party requests transfer
◦ EEOC asserts jurisdiction
◦ Cases transferred to IDHR per work share agreement
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Charging Party can request review/investigation
by other Agency at completion of initial
investigation
EEOC
IDHR
Disability & Genetic
Information
Disability
Nationwide
15 or more
employees
Charge filed within
300 days
Illinois
1 or more
employees
Charge filed within
180 days
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Know The Basics:
◦ i) what is the disability; and
◦ ii) what steps were involved in the reasonable
accommodation process
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A good timeline is a helpful tool
◦ Track the employee’s condition
◦ Track the reasonable accommodation process
◦ Track work history
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Know what you don’t need to know:
◦ i) appropriate accommodation;
 Numerous resources for locating accommodations
including job accommodation network
◦ ii) employer job descriptions
 May not be accurate
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Keep your eyes open for:
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Role of subsequent work
Danger of SSDI files
Challenges of collecting medical evidence
Competing medical testimony
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Employer conduct becomes the focus
Early discovery regarding policies and third
party administrators
Role of 30(b)(6) depositions
Resource intensive
The floor is yours.
Thanks for your attention.