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. 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 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 ◦ ◦ ◦ ◦ ◦ ◦ ADAAA Regulations New Focus on Reasonable Accommodations Systemic Activity 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 EEOC v. UPS ◦ Pleading issues EEOC v. St. Alexius Discovery issues Reasonable Accommodations: A quick look $240 million verdict 2 million in compensatory relief 5.5 million in punitive damages per claimant 32 class members, who worked in a turkey processing facilities in Iowa eviscerating turkeys Intellectual disabilities Outrageous facts Verbal and physical harassment ◦ Calling them retarded & stupid ◦ Forcing them to carry heavy weights ◦ Abusive living conditions – denial of medical care Verdict reduced to $1.6 million 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 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 In addition to a publication on the employment rights of persons with intellectual disabilities, EEOC also revised its publications on the employment rights of persons with: ◦ Cancer ◦ Diabetes ◦ Epilepsy Q & A format covers general info about the condition, collection of medical info, accommodations, safety concerns, harassment & retaliation. 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 Iqbal and Twombly – Supreme Court requires that the claim be “plausible” ◦ Rule 8 – short & plain statement of the claim ◦ Fair notice of the claim and grounds upon which it rests ◦ Raise the possibility of relief above the speculative level Ultimately D.Ct. permitted the EEOC’s claims to go forward and denied Defendant’s request for interlocutory appeal on that issue ◦ Reasonable accommodation claim can be asserted for unknown class members ◦ 102(b)(6) claim also permitted When pleading a class complaint under the ADA: When pleading an individual case under the ADA: 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 ◦ ◦ ◦ ◦ Name statute Name the time Plead as much detail as to QUID status as possible Don’t need a prima facie case 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 Broad scope of medical records ordered produced over EEOC’s objection that records were too remote in time or not relevant Past and subsequent employment records permissible subject of discovery ◦ Disability degenerative in nature so defendant entitled to examine the course of her work history ◦ Job functions that applicant could perform for other employers could be relevant to functions that she could perform for this employer 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. Leave ◦ Employee with breast cancer terminated for failure to report to work due to surgery ◦ Employee with mental health condition requested additional leave for treatment Change in positions ◦ Employee with poor physical health sought demotion to less stressful job ◦ Employee who required use of a cane requested a change in positions to an open job with fewer physical demands Change in job responsibilities – non essential function ◦ Employee requested limited travel due to fertility issues ◦ Employee sought to limit lifting Use of an assistive device ◦ Employee with anxiety condition, PTSD denied use of a service dog ◦ Employee not offered the use of an assistive device for lifting Prohibited Pre-employment Inquiry Case ◦ Do you have any health problems? ◦ Do you take medications? ◦ Which medications? Prohibits employers ◦ From collecting genetic information. ◦ From making employment decisions on the basis of genetic information. Genetic information discrimination is one of the emerging issues that was identified in the EEOC’s strategic enforcement plan. EEOC v. Founders Pavilion, 13 cv 1438 (W.D.N.Y. 2013) ◦ GINA violation = collection of family medical history. Post offer, pre-employment collection of information. ◦ ADA violation = fired two employees because of perceived disability. ◦ Title VII violation = fired or failed to hire three pregnant employees. Third case brought by EEOC under GINA and first systemic case. Settled for $370,000. EEOC v. Abatti Group, 13 cv 07196 (C.D. Cal.) ◦ GINA violation = illegal inquiries into applicants’ family medical history ◦ ADA violation = illegal physical examinations of applicants and medication condition inquiries Applicant denied hire because of past hospitalization for a heart condition where family members also had a history of heart problems. EEOC v. Fabricut, 13 cv 248 (N.D. Okla.) ◦ GINA violation = post-offer collection of family medical history ◦ ADA violation = failure to hire because of real or perceived disability Applicant for a memo clerk position performed the job as a temporary employee then applied for permanent hire. Required to undergo medical exam that included inquiry into family history and revealed carpal tunnel syndrome. Though applicant’s doctor denied carpal tunnel, applicant was refused hire. Settled for $50,000 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 In person/phone interviews by appointment only. ◦ Call 1-800-669-4000 to schedule appointment. ◦ M – F / 8:30, 9:30, 10:30, 1:00, 2:00, 3:00 Attorney drafted charges via mail, or in person 8:30 – 4:00 EEOC initiated ◦ ADEA, EPA Directed Investigations ◦ Title VII, ADA, GINA Commissioner Charges Mediation is an extra step in the charge process often made available by EEOC as an alternative to the traditional investigative and litigation processes A mediator is a neutral party to the dispute and helps the parties negotiate a fair and reasonable solution. Mediator does not impose a decision on the parties; instead helps the parties to agree on a resolution If the charge is not mediated successfully, it proceeds to investigation. ◦ 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. Position Statement from employer Requests for Information ◦ Subpoena for information if needed Interviews of charging party witnesses Interviews of third party witnesses Interview of Respondent agents Onsite visit to Respondent facilities If EEOC makes a cause finding, EEOC attempts to eliminate the unlawful employment practice in Conciliation. ◦ Informal, confidential EEOC’s goal is appropriate remedial, corrective and preventative relief given its determination of unlawful employment practices. Conciliation will fail if unable to secure an agreement acceptable to EEOC 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) Work share agreement between EEOC and Illinois Department of Human Rights. ◦ Defer investigation for matters with common jurisdiction Charges cross filed between EEOC and IDHR 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 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 Know The Basics: ◦ i) what is the disability; and ◦ ii) what steps were involved in the reasonable accommodation process A good timeline is a helpful tool ◦ Track the employee’s condition ◦ Track the reasonable accommodation process ◦ Track work history 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 Keep your eyes open for: ◦ ◦ ◦ ◦ Role of subsequent work Danger of SSDI files Challenges of collecting medical evidence Competing medical testimony 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.