3.1 Organization and Structure

The Equal Employment Opportunity Commission (EEOC) is the primary agency for enforcement of Title I of the Americans with Disabilities Act (see Figure 3-1). The EEOC is responsible for developing and issuing regulations for Title I, receiving and resolving complaints of employment discrimination, initiating litigation for Title I violations and filing amicus briefs, and setting policy for the interpretation and enforcement of Title I.

The EEOC was established in 1965 to carry out enforcement of Title VII of the Civil Rights Act of 1964. Since then it has also been given responsibility for enforcement of the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), Section 501 of the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act (ADA). Its overall 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."[1] The EEOC defines the functions associated with its administrative and judicial responsibilities to include investigation, adjudication, settlement, and conciliation of charges; resolution of claims using other forms of alternative dispute resolution; litigation; and the issuance of policy guidance. The functions associated with the education and technical assistance responsibilities are defined to include outreach to employers and employees and the groups or organizations that represent them; seminars, training sessions, technical assistance site visits, speeches, and meetings with constituent groups; and information and guidance on the issues and laws related to employment discrimination.[2]

The EEOC is headed by five commissioners, appointed by the president and confirmed by the U.S. Senate. All major decisions about policy, organizational structure, staffing and budget are made by the commissioners.[3] One of the commissioners is designated chairman, and is responsible for implementation of EEOC policy and administration; the vice chairman, also a commissioner, serves as acting chairman in the absence of the chairman. The work of the EEOC occurs in the headquarters office in Washington, D.C., and in 50 field offices spread across the nation. This work is augmented by state and local fair employment practices agencies (FEPAs) under contract with the EEOC for the processing of "dually filed" charges that allege a violation of a statute enforced by the EEOC and a state or local antidiscrimination law.

At the Washington headquarters of the EEOC, the Office of the General Counsel, the Office of Legal Counsel, and the Office of Field Programs are most directly involved in ADA Title I policy development and enforcement. The Office of the General Counsel oversees six units: (1) Administrative and Technical Services Staff, (2) Research and Analytic Services Staff, (3) Systemic Enforcement Services, (4) Appellate Services, (5) Litigation Management Services, and (6) Litigation Advisory Services.[4] These units are involved with EEOC litigation, including the decision to litigate, litigation in trial courts, overseeing litigation in field offices, EEOC pattern or practice litigation, providing expert advice on cases in litigation, tracking data on cases in litigation, and appeals of EEOC cases or EEOC participation as amicus curiae in private litigation. The Office of Legal Counsel is responsible for regulations, guidance, policy decisions, and legal advice with respect to the statutes enforced by the EEOC. One of the three divisions of the Office of Legal Counsel is the ADA Policy Division. This division has principal responsibility for interpreting ADA and Sections 501 and 504 of the Rehabilitation Act for the EEOC, developing policy guidance, and providing technical assistance on ADA to other staff of the EEOC, the field offices, the FEPAs, and other organizations.[5]

The Office of Field Programs also has a major role in ADA enforcement because it oversees the investigation, conciliation, and resolution activities of the EEOC field offices and the FEPAs (see Figure 3-2). Charge filing and processing occur in the field offices. Alternative dispute resolution activities, training and technical assistance, and the monitoring of the field offices and the FEPAs are also the responsibility of the Office of Field Programs.

[Figure 3-1. EEOC Organizational Chart is not available.]

[Figure 3-2. EEOC Field Management Programs is not available.]

The EEOC enforcement structure for Title I of ADA is the same structure used for the other civil rights statutes enforced by the EEOC. Within the Office of the General Counsel, there are no ADA-specific offices or staff. The same is true for the Office of Field Programs. Thus, ADA enforcement occurs via an organizational structure aimed at enforcing civil rights laws generally, not a structure uniquely developed for the enforcement of ADA. This structure presumes that the methods and issues of enforcement are similar across the various statutes for which the EEOC has responsibility and requires that staff be well-informed generalists. To the extent that complaints often have multiple bases (e.g., race and disability, gender and disability), this structure is sensible. In interviews conducted by the U.S. Commission on Civil Rights, staff at headquarters and in the field offices also felt that the generalist approach was more efficient and allowed a flexible approach to the flow of complaints.[6] However, the generalist approach does require that staff be knowledgeable (and trained) in the issues and perspectives that may be unique to each of the covered population groups.

3.1.1 Budget and Staffing

Despite the addition of ADA enforcement to its responsibilities, the EEOC did not see an addition to its budget in real dollars until FY 1999.[7] ADA enforcement not only required the development of regulations, guidance, training, and technical assistance, it also resulted in the receipt of additional charges of employment discrimination. Since ADA enforcement began in July 1992, the number of charges of discrimination received by the EEOC has increased noticeably. The U.S. Civil Rights Commission analysis of the increase between 1991 and 1993 concludes that ADA charges account for most of the increase in this period and that ADA charges continue to account for a substantial portion of the increased charge workload of the EEOC.[8] In partial response to this increase, the EEOC changed the manner in which it processes charges (see discussion of complaint processing), and that has resulted in an increase in the number of resolutions per staff member.[9] However, because the investigative staff of the EEOC stayed fairly constant between 1991 and 1995 while the number of charges filed increased, the average caseload per staff member rose from 63 to 145.[10]

The EEOC's budget appropriation for FY 1998 was $242 million. Of this, $27.5 million was for contract payments to the FEPAs. Approximately 90 percent of the agency's budget is allocated to salaries, benefits, and rent, allowing 10 percent for litigation support, technology, and staff training.[11] At the end of FY 1998, the EEOC reports it had 2,544 full-time employees, well below the 3,390 employees it had in 1980, before the implementation of ADA and the expansion of charges.[12] Congress has approved a FY 1999 appropriation of $279 million, a 15.3 percent increase over FY 1998.[13] Of this, $29 million will pay for FEPA services. The increase will also result in the hiring of 12 trial attorneys for the field offices and approximately 48 additional investigators.

3.1.2 Planning Activities

Since 1994, the EEOC has engaged in significant self-evaluation and strategic planning. In October 1994, former EEOC chairman Gilbert F. Casellas appointed three task forces, each to examine a different aspect of agency process and function. The Charge Processing Task Force considered ways to increase the efficiency of charge processing and reduce the increasing backlog of charges.[14] It reported its recommendations in March 1995, and they were largely adopted by the EEOC in April 1995.[15] The most significant change resulting from this task force involved terminating the policy of fully investigating every charge and substituting a priority system for handling charges that allows the EEOC to fully investigate some charges but not others. The new charge priority system is discussed in more detail in the section on complaint processing.

A second task force, the EEOC/FEPA Task Force, reviewed and assessed the relationship between the federal EEOC offices and the state and local FEPAs.[16] Because the FEPAs process a large number of complaints for the EEOC (those that are dually filed under federal and state law), the EEOC needs to ensure that complaints filed under a federal statute are properly determined, even if the FEPA has performed the investigation and reached a determination. This task force made a number of recommendations to change the manner in which the EEOC provides oversight of the FEPA/EEOC contract activities. These included proposals to reduce the reporting burden experienced by both the EEOC and the FEPAs related to transferring information about complaints between them and to reduce the EEOC's "micromanagement" of FEPA activities, once a FEPA has been certified by the EEOC.[17]

The Task Force on Alternative Dispute Resolution (ADR) was the third task force. It examined the various means that the EEOC could use to produce resolutions of discrimination complaints without litigation and recommended how such techniques could be integrated into the new charge processing procedure.[18] Further discussion of the ADR initiative is in section 3.3.6.

Following the work of the three task forces, in 1996 the EEOC developed a National Enforcement Plan (NEP) establishing the agency's overall priorities for civil rights enforcement. The NEP articulates three areas of focus for EEOC enforcement: "(1) prevention through education and outreach; (2) the voluntary resolution of disputes; and (3) where voluntary resolution fails, strong and fair enforcement."[19] The NEP also describes the EEOC's "strategic enforcement strategy" to enable it to use its limited enforcement resources proactively for greatest effect.[20] Enforcement priorities are listed in three major categories, with a series of subcategories. While most of the priorities listed could involve an ADA complaint, four subcategories specifically list ADA or persons with disabilities. One of the subcategories that includes disability focuses specifically on the intersection of covered bases, such as disability and race or national origin. All of these subcategories are found within the larger priority to focus on "claims presenting unresolved issues of statutory interpretation."[21]

The U.S. Commission on Civil Rights questioned staff members at EEOC headquarters and in a couple of the district offices about the impact of the NEP. These individuals reported that while the work and workload had not changed dramatically, they did have a greater sense of priorities and focus and strategic decision making about cases.[22] Following adoption of the NEP, each district director and regional attorney were also required to develop a Local Enforcement Plan (LEP). The LEPs were to reflect the particular priorities of their geographic area within the larger context of the National Plan priorities. Initially, the LEPs used a variety of methods to develop their priorities and formats to present them. In recognition of concerns about a lack of consistency among the LEPs, the 1998 joint report of the Priority Charge-handling Task Force and the Litigation Task Force recommended means for greater consistency across the local plans and with the national plan.[23] In response, the Office of Field Programs (OFP) and the Office of the General Counsel (OGC) developed a set of instructions intended to ensure that a consistent format is used in the development of the LEPs. It is difficult to judge at this time the extent to which the local plans tailor their settings to the national plan or whether they continue to chart independent courses.

Finally, the EEOC developed a strategic plan, issued in August 1997 in accordance with the requirements of the Government Performance and Results Act of 1993. The Strategic Plan 1997-2002 primarily reviews the accomplishments of the EEOC since 1994 and reiterates the goals articulated through the NEP and the recommendations of the three task forces. Under the leadership of the new Chairwoman of the EEOC, Ida L. Castro, the EEOC has targeted for its 1999 priority initiatives "improved communications and enhanced outreach to minorities, women, and the disability community."[24]

All these efforts have produced change at the EEOC. The fact that the task forces worked quickly, that their recommendations were largely accepted, and that those accepted were promptly implemented is impressive. Faced with a rising workload and a flat budget, the EEOC responded to the rising backlog that this caused in a proactive fashion through self-evaluation and the proposal of feasible structural changes.

3.2 Regulatory Activities and Policy Development

The EEOC develops policy through three avenues: the development and publication of regulations, the issuance of policy and enforcement guidance, and selective and strategic litigation. With respect to ADA, the EEOC has actively utilized all three strategies. In addition, in partnership with the Department of Justice, the EEOC has organized cross-agency ADA coordination meetings. The coordination meetings started when ADA was new and included not only the ADA Policy Division staff of the EEOC and ADA staff from the Department of Justice, but also persons with ADA interests and responsibilities from such other agencies as the Departments of Labor, Health and Human Services, and Education. The focus of the coordination meetings was to identify policy issues that needed clarification or coordination across agencies. Topics for guidance were sometimes identified or discussed at a meeting, as well as other emerging issues for which a policy position might need to be developed. The coordination meetings took place monthly for a long time; currently they take place less regularly, although other forms of coordination and consultation continue to occur. At both the EEOC and the Department of Justice, the reduced frequency of coordination meetings is attributed to the fact that many of the most pressing issues have been handled.

3.2.1 Title I Regulations

A key ADA regulatory responsibility of the EEOC is the development and issuance of regulations for Title I of ADA. As required by the statute, the Title I regulations were issued by the EEOC within one year of the law's passage, on July 26, 1991. Since that date, the EEOC has also issued regulations on ADA record-keeping and reporting requirements and on coordination procedures for the processing of complaints filed under both ADA and the Rehabilitation Act.

In development of the Title I regulations, the EEOC published an advance notice of proposed rulemaking in August 1990 and solicited public comment. In addition to the written comments received, the EEOC also conducted 62 meetings throughout the country. Comments and responses were received from persons with disabilities, employers, lawyers, disability advocates, and physicians. Following the development of the proposed Title I regulations, comments were again received during the period following the publication of the notice of proposed rulemaking issued on February 28, 1991.[25] The EEOC feels that it both solicited and effectively received comments on the proposed regulations from the disability community, as well as from employers, labor attorneys, and other business interests. The U.S. Commission on Civil Rights report summarizes the content of the comments received and notes that the comments are generally targeted at the aspects of ADA and its regulations that continue to elicit criticism and confusion in interpretation. These include the definition of disability (this was of particular concern to people with disabilities and disability advocacy organizations) and the requirements for reasonable accommodation, the determination of undue hardship, and the interpretation of direct threat (this was of particular concern to employers).[26]

3.2.2 Policy and Enforcement Guidance

The EEOC has acted to advance policy development by providing policy and enforcement guidance on a number of topics for which it has deemed further interpretive assistance is needed. To date, 12 enforcement guidances that have significant relevance to ADA have been issued. These are listed in Table 3-1. In addition to the guidances, the EEOC has issued some shorter documents that also offer guidance (also in Table 3-1) and a Title I Technical Assistance Manual and Resource Directory. Together, these documents have elaborated on the key definitions in the statute and provided more detailed and specific methodologies for compliance with requirements regarding such issues as preemployment disability-related inquiries and medical examinations; defining disability; the interactions of ADA with workers compensation; the interaction between application for disability insurance and coverage under ADA; the Family and Medical Leave Act; the employment and accommodation requirements of ADA for persons with psychiatric disabilities; and reasonable accommodation issues in general.

The topics for which guidance needs to be provided are determined through a process that starts in the Office of Legal Counsel. The experience of the EEOC investigators and attorneys, the types of questions that come into the Commission, the suggestions of commissioners, and informal information gathered from staff as they speak around the country and speak with people with disabilities are all sources of information that may influence the identification of a topic for guidance. The Office of Legal Counsel then works with a committee with representatives from the commissioners and other units within EEOC. A proposed policy guidance goes through review in several offices; the final step is review and approval by the commissioners.

Some of the guidances have been well received in both the business community and among people with disabilities and have been relatively uncontroversial. Others (including, in particular, the guidance on ADA and psychiatric disabilities) have been viewed as controversial by employers.

Interviews in January and February 1999 with persons outside the EEOC who are familiar with Title I identified reasonable accommodation as a topic for which a guidance from the EEOC would be helpful. On March 1, 1999, the EEOC issued a new enforcement guidance, "Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act."

Both inside and outside the EEOC, the research team was told that the EEOC guidances have had some effect in guiding judicial interpretations of ADA. While not every court decision has concurred with the EEOC interpretation set out in a guidance, the feeling is that the EEOC guidances are having some impact. The strengths and weaknesses of substantive policy positions taken by the EEOC are discussed in section 3.9.

Table 3-1
EEOC Enforcement Guidance and Related Documents-ADA Related

3.2.3 Litigation as Policy Development

Strategic choices in cases for direct litigation or participation as amicus curiae offer an additional avenue for policy development. Within the EEOC, the Systemic Enforcement Services unit pursues cases on behalf of the EEOC that address novel or problematic legal issues, where a case decision can set policy. The Appellate Services unit addresses policy by amicus briefs in private litigation in the courts of appeal and through appeals of the EEOC's own cases. Table 3-8 in section 3.5 lists the topics that have been the focus of EEOC litigation through trial, appeals, and amicus participation. Greater discussion of EEOC litigation procedures can be found in section 3.5, and the substantive policy decisions taken by EEOC in litigation and otherwise are discussed in section 3.9.

3.2.4 Findings and Recommendations

Finding 17: The EEOC issued its regulations for the enforcement of Title I in a timely fashion and with input from the public and has issued a number of enforcement guidances and related policy documents to clarify Title I requirements.

Finding 18: The EEOC has developed National and Local Enforcement Plans that articulate the agency's strategies for utilization of its resources, including, specifically, aspects of its ADA enforcement activities.

• Local enforcement plans have not always been consistent with enforcement priorities established in the National Enforcement Plan. The EEOC has developed instructions intended to establish such consistency in its LEPs and NEPs.

Recommendation 21: The EEOC should ensure that local enforcement plans are fully consistent with the National Enforcement Plan and the priorities it establishes.

Local plans need not be totally uniform and can account for geographical, population, and other differences, but they should generally follow the same enforcement priorities as are established in the National Enforcement Plan. The LEPs should be regularly reviewed to ensure that they cover the same basic areas and are consistent with the NEPs.

3.3 Charge Processing

A key enforcement activity of the EEOC is the receipt, investigation, and resolution of individual charges of employment discrimination. Charges under any of the federal laws enforced by the EEOC are received by the EEOC field offices or by a state or local Fair Employment Practices Agency. Most charges are filed by individuals; however, EEOC commissioners may initiate a charge even when no individual complainant has come forward. Complainants may state a charge under more than one statute (e.g., Title VII and ADA) and may raise more than a single issue. Charge processing follows the same procedures regardless of the federal statute under which the charge is filed. In general, charge processing involves several steps: intake, categorization, investigation, and resolution/closure. The nature and extent of the information developed at each step will vary substantially depending upon how the charge is categorized (See discussion in section 3.3.2). The charge may also be withdrawn from EEOC processing at the request of the charging party.

3.3.1 Charge Intake

The first step of a discrimination complaint involves the charge intake. The charging party may contact one of the 50 field offices of the EEOC or a state or local Fair Employment Practices Agency to file the charge. A copy of a charge first filed with a state or local FEPA that is also covered by federal law is sent on to the EEOC and entered in its database system. At intake, the charging party is interviewed and information about the charge is obtained. The purpose of the intake interview is to assist in the subsequent categorization of the charge and in the preparation of the formal charge. A manual, Priority Charge Handling Procedures, specifies the "essential elements" of the initial intake.[27] These include

• explicitly informing the charging party that he or she has a right to file a charge and that a formal charge must be filed to preserve the right to file a private suit
• informing the charging party that the EEOC must provide a notice of the charge to the respondent
• warning the charging party about the risk of retaliation and that retaliation is itself a violation of federal discrimination law
• noticing and responding to the particular needs of charging parties to ensure that the explanation of the process is in a format accessible to the charging party (includes consideration of language and communication media)
• counseling the charging party about the likely process where the charge appears to be weak, but not discouraging the filing of the charge
• providing the charging party with their "best initial assessment" of the evidence to assist the charging party in decisions about whether and how to proceed
• conveying to the charging party "fairly and honestly" the status of the case, how it fits within the agency's priority procedures, and what can be expected to happen.

Whether the initial contact occurs in person, by phone, or by mail, the procedures manual specifies that the charge receipt process should include an interview with the charging party conducted by experienced personnel. The EEOC has developed an intake form, EEOC Form 5, through which the complainant formally files the charge. The exact procedures used to conduct the intake interview--including whether intake is performed by a dedicated intake staff or by rotating investigative staff--and the extent of attorney involvement in the intake assessments varies among the EEOC offices.[28] Some of the field offices insist that the intake interview take place in person, while others allow telephone interviews where it is difficult for the charging party to get to the office. Some offices augment the information provided in person through the use of videos and information packets. In response to a recommendation of the joint task force report of 1998, the Office of Field Programs collected various materials developed by the field offices and made them available to all offices. The joint task force also recommended that several of the offices at EEOC headquarters assess what information should be centrally developed and distributed.[29]

One way in which the intake of an ADA charge differs from the general intake procedures involves the need to determine if the charging party has a disability that falls under ADA. As part of this process, the charging party is asked to sign an authorization to release medical and other information (EEOC Form 626). Field offices report some variation as to whether all ADA complainants are automatically asked to sign the release or whether only those where the disability is not visible or evident are asked.[30] The need for verification of a disability means that the decision about whether the individual is covered by ADA may not occur during the intake interview. In assessing whether a disability has been verified, the EEOC relies heavily on medical information to determine disability.

The Supreme Court recently issued several ADA decisions that had significant impact on the EEOC's processing of charges: Cleveland v. Policy Management Systems Corp,[31] Sutton v. United Airlines,[32] Murphy v. United Parcel Service,[33] and Albertsons, Inc. v. Kirkingburg.[34] In response, the EEOC issued field instructions entitled Instructions for Field Offices Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," which modified previous field instructions and emphasized the individual analysis that should be used in determining whether a charging party has a disability as defined by ADA and whether a person is qualified. In addition, the instructions provided advice to field staff responsible for collecting and analyzing evidence under ADA. The content of these instructions is discussed in subsection 3.9.2.

3.3.2 Charge Priority Categorization

The second step in charge handling is the categorization of the charge as Priority A, B, or C. This categorization is a new procedure, instituted in 1995, following the recommendations of the Charge Processing Task Force. The move to a charge priority procedure was stimulated in large part by the growing backlog of unresolved charges experienced in the early 1990s. According to the Task Force Report, 125,000 pending charges were expected by the end of FY 1995. Charges considered "backlog" were those older than 180 days. There were 68,000 such charges in the pending inventory in February 1995, with an average processing time for all charges of over 300 days.[35]

The Charge Processing Task Force attributed this backlog and the long processing time to a combination of factors related to the manner in which the EEOC handled charges. Among the factors identified were the requirement for "full investigation" of all charges, even where it was evident from the start that the charge had little merit and further investigation would not likely change that; the absence of a policy about agency enforcement priorities as a means to focus limited agency resources; minimal use of early resolution techniques, such as alternative dispute resolution; the issuance of substantive "no cause" letters of determination; and the linking of reasonable cause determinations and litigation actions. This assessment resulted in a number of recommendations. Among them was the elimination of the policy of full investigation of all charges and the institution of a priority categorization of charges that would focus investigation activities.[36]

Under the new policy, all charges are categorized as A, B, or C. Category A charges are those that fall within the national or local enforcement plans, cases where further investigation is expected to produce a cause finding, and cases where irreparable harm may result without expedited processing. Category B charges are those that initially appear to have some merit but need further evidence to determine whether a cause finding is likely. These cases will be investigated as resources permit (following Category A) with the aim to determine whether they should be reclassified as A or C. Category C charges are labeled "charges suitable for dismissal." Charges are placed in this category if there is no jurisdiction, the charging party fails to state a claim, the charges are unsupported, the evidence is weak or circumstantial, or the allegations are not credible or self-defeating. Category C charges include charges dismissed where there is sufficient information to indicate that further investigation will not likely result in a cause finding.[37] The determination of the charge priority category is to take place as quickly as possible. It is made by the investigators with supervisory review and, where appropriate, with assistance from legal staff. Field offices are encouraged to quickly dismiss charges in Category C.[38]

ADA charges are approximately 22 percent of all charges filed with the EEOC. Table 3-2 displays the distribution of initial categorization across the four statutes the EEOC enforces. The distributions indicate that the majority of charges are initially categorized as B. From Table 3-2, there does not appear to be much difference, overall, in the initial priority categorization by statute, except that a larger proportion of EPA cases are classified as A compared with the other statutes. ADA charges are distributed across the categories in a proportion similar to the distributions for the other statutes. However, an analysis of the distribution across the field offices performed by the U.S. Commission on Civil Rights shows there is some variation across the offices. Some of the field offices initially categorize fewer than 10 percent of the charges as C, while others classify in excess of 40 percent of the complaints to category C.[39]

Table 3-2
Initial Priority Categorization Across EEOC Enforcement Statutes

Category A charges are generally broken further into A-1 or A-2. A-1 charges are those that are initiated as commissioner charges, coincide with NEP/LEP issues, or present a possible cause finding with litigation potential. These generally have the highest priority for both investigation and litigation. A-2 cases are those with a possible cause finding without litigation potential for the EEOC because they do not fit the national or local priorities, are cases for which DOJ has litigation responsibility, or are suitable for the private bar.

The charge priority system applies only to those cases filed and processed by the EEOC. Charges that come in through a FEPA are not given a priority. A very small number of FEPA-processed charges have an assigned priority, usually because they were transferred from the EEOC to a FEPA.

3.3.3 Charge Investigation

Charge investigation is a primary activity of the EEOC. Investigations are performed by the EEOC field offices or by a FEPA under contract with the EEOC. An investigation starts by informing the respondent about the charge against it. This is done with a formal notice (EEOC Form 131 or 131-A) that includes pertinent information about applicable statutes, EEOC rules and regulations, requirements for the preservation of records, use of an attorney, and the prohibition of retaliation against the complainant. Investigations are performed by staff members trained for investigation of discrimination complaints and in the requirements of the statutes enforced by the EEOC. Investigators generally do not specialize in specific laws, although some offices are experimenting with having a staff member with special expertise in ADA. Most offices are organized with investigations units, although a couple have developed a team that includes attorneys. The Joint Task Force report recommends that field agencies try to use a model that increases the communication and collaboration between investigators and attorneys during the charge investigation process, both to facilitate an appropriate classification of a charge and to aid in case development in line with the national and local enforcement plans.[40] Information collected by the Joint Task Force and from other interviews suggests that while the historic divide between the investigators and attorneys has been diminishing over the past several years, there is still a greater need for team work in the prioritization of charges and the identification and development of specific cases for litigation.

There has been some discussion as to whether investigators should be generalists or specialists. So far, the consensus from Headquarters and the field offices seems to be that specialization is not necessary and not efficient. However, ADA does present some issues for investigation that are new to the investigative process (also noted in the Joint Task Force Report). Among the new issues that investigators must factor into their case prioritization and investigative determinations are whether the medical evidence supports the presence of a covered disability, the definition of essential job functions, and the range of available reasonable accommodations. In fact, the Joint Task Force acknowledges that generalists may not be adequately prepared for all cases by suggesting that outside experts may need to be retained in the prelitigation, investigative, or conciliation stages of some ADA charges.[41]

Approximately 35 percent of employment discrimination charges in the national workload are investigated and determined by FEPAs. Where cases are initially filed at a FEPA but dually covered under state and federal law, the FEPA may retain the case for processing. Contracts between the EEOC and the FEPA provide for federal reimbursement for case processing. A number of procedures have developed through which the EEOC offices monitor FEPA processing of federally covered charges. These involve "designation" and later "certification" of the FEPA under EEOC regulations. A FEPA must spend four years in designated status, during which 100 percent of its EEOC contract cases are reassessed in a Substantial Weight Review before being able to be certified. A certified FEPA is an agency that has demonstrated consistent high quality in conforming to EEOC guidelines in its charge processing. A certified agency has 10 percent of the charges it processes (recently reduced from 25 percent) subjected to a follow-up Substantial Weight Review by the EEOC. Additional reporting requirements by the FEPAs also aim to ensure that charge outcomes are consistent with the applicable federal statute. The EEOC/FEPA Task Force found that fewer than 4 percent of the resolutions produced by FEPAs were later rejected by the EEOC as incorrect.[42]

Because many states had fair employment practices laws prior to ADA, not all FEPAs are enforcing disability discrimination statutes that are similar in their provisions to ADA. Some state statutes use a different definition of disability; others do not include a requirement for reasonable accommodation; and others apply to employers with fewer than 15 employees. One concern in using FEPAs to investigate and determine ADA cases is whether their staffs are adequately informed about the provisions of ADA, whether they are applying the correct ADA standards to their investigations, and whether they are knowledgeable about disability issues and discrimination. The EEOC has endeavored to determine where there are substantial differences between the disability discrimination law enforced by a FEPA and the provisions of ADA. Where there are differences, the FEPA is not certified to investigate ADA cases. As an additional measure of quality control, the certified FEPAs have 100 percent of their ADA case findings subjected to a Substantial Weight Review. While there were no data to indicate that FEPA investigations were substantively any different, this question was raised in interviews as an area that might merit a careful look. From an alternative perspective, the FEPAs may have more expertise at investigating disability cases, as many of them have two decades of experience in enforcing a disability discrimination law. Researchers spoke to several private attorneys in different regions of the country who expressed different preferences for filing with the EEOC or with their local FEPA, depending upon their sense of the competence of agencies in their localities.

3.3.4 Charge Resolution and Charge Closure

Charges may be closed at a number of points following filing, including closures that occur before an EEOC determination is made. In fact, the EEOC encourages predetermination settlements. Resolved charges can be classified into several broad categories that describe the type of resolution achieved. Resolutions before a determination are listed as "settlements," "withdrawals with benefits," or "administrative closures." Charges are administratively closed for a variety of reasons that include failure to locate the charging party, charge not filed in time, charging party failed to accept full relief, charging party withdrew the charge without benefits, charging party requested a notice of right to sue, or no jurisdiction over the charge existed. Investigated charges are resolved with a finding of "no reasonable cause" or "reasonable cause." In the reasonable cause category, the EEOC distinguishes between those with "successful conciliations," in which substantial relief has been received by the charging party, and "unsuccessful conciliations," where conciliation efforts have failed. Charges closed as unsuccessful conciliations are reviewed for litigation consideration. The EEOC considers merit resolutions to be those resolutions that result in benefits for the charging party. Charges that close via a predetermination settlement, a withdrawal with benefits, or a reasonable cause finding (either category) are considered merit resolutions.

As part of the effort to reduce the backlog, the EEOC has placed an increased emphasis on facilitating the resolution of cases prior to determination. Where the parties have reached a settlement early in the investigative process, the EEOC will accept the settlement if it provides "appropriate relief"; if the settlement is proposed prior to a determination but where it is likely that a cause finding will be issued, the EEOC will accept the settlement only if it provides for "substantial relief." This standard was set as policy at the April 1995 meeting of the EEOC commissioners.[43] Another means being used by the EEOC to produce resolutions prior to a formal cause finding is alternative dispute resolution (ADR). ADR uses mediation techniques to produce an agreement between the parties voluntarily, without the imposition of a solution from an outside third party. (See ADR discussion in section 3.3.6.)

When an investigation has produced sufficient evidence to make a determination, charges are resolved as either no reasonable cause or reasonable cause. When a charge is closed as no reasonable cause, the charging party receives a short letter notifying him or her about the finding. Prior to 1996, the notification of a no cause finding included substantive information about the finding. Following the recommendation of the Priority Charge Handling Task Force, the no cause finding letters now include only a short statement informing the charging party of the finding. More information can be sought by the charging party from the office that made the determination; the EEOC suggests that offices try to speak to the charging party by telephone when a no cause determination is made. While there are no formal procedures to appeal a no cause finding, the EEOC may reconsider a decision if the charging party presents substantial new and relevant evidence that was not previously considered and that may have affected the outcome; information on misconduct by an agency official; or a persuasive argument that the EEOC's decision was contrary to law. One criticism heard from persons interviewed outside the EEOC was that the possibility of reconsideration was not well known; the EEOC should make a better effort to inform complainants of the possibility and the standards that may allow the reconsideration of a decision.

A reasonable cause determination is issued when the investigation produces evidence that indicates that discrimination occurred. A cause finding is usually followed by efforts to reach an agreement with the respondent that produces substantial relief for the charging party. This effort is referred to as conciliation. However, not every cause finding produces a successful conciliation. When a respondent refuses to participate in any sort of settlement or to provide relief to the charging party, the EEOC must then determine whether it will litigate. Cause charges where conciliation is not achieved are closed, whether or not the EEOC later pursues litigation.

If the respondent in a cause finding on a Title VII or ADA charge that cannot be successfully conciliated is a state or local government, the EEOC will send the case to the Department of Justice, where further actions are under its jurisdiction. The EEOC has the authority to litigate charges filed under the ADEA and the EPA. In cases where a charge has been referred to the Department of Justice, it may reinvestigate the charge, make additional efforts at settlement, or choose to litigate. Some additional information on these cases can be found in the chapter on the Department of Justice.

EEOC's procedural regulations provide that it must issue a notice of right to sue if requested by the charging party 180 days after the filing of the charge. If the request is made prior to 180 days after filing the charge, the EEOC will issue the notice of right to sue only if it determines that it is probable that it will not be able to complete the administrative processing of the charge within the 180-day time period. If a right-to-sue letter is requested early in the process, before a cause determination, the investigation will likely go no further, and the case will be considered an administrative closure. Following a determination, the EEOC attempts conciliation; if its efforts are unsuccessful, it will issue a right-to-sue letter after its legal unit makes a determination not to litigate on the charge. If the EEOC decides to pursue the matter in litigation, the charging party may request a right-to-sue letter and bring a private suit against the respondent.

Table 3-3 displays the distribution of charge resolutions by statute for FY 1998. These data indicate that the majority of charge resolutions across all statutes are not merit resolutions. The percentage of all charge resolutions that closed with a reasonable cause finding was 4.6 percent. The two largest categories of closure are administrative closures and no cause closures. There is only modest variation in the percentage of such closures by statute. ADA complaints do not close administratively or with no cause findings in a proportion that is significantly different from the outcomes of charges brought under the other statutes. ADA charges do show the largest percentage of reasonable cause findings, and within that the largest percentage of successful conciliations, across all the statutes.

Those who have been following ADA charge statistics issued by the EEOC since ADA enforcement began in 1992 have expressed concern about the large percentage of no cause and administrative findings; some of the criticism appears to assume that ADA charge resolution distribution is atypical compared with the other statutes. The data from all the statutes indicate that ADA cases produce the largest percentage of merit findings (14.7 percent) compared with the other statutes. Nonetheless, it would be useful to understand why such a small proportion of all charges result in a merit resolution.

Table 3-3
Resolutions of Discrimination Charges Filed with the EEOC, FY 1998

3.3.5 Charge Statistics

All charges filed under the federal discrimination statutes enforced by the EEOC are entered in a database called the Charge Data System (CDS). Both EEOC and FEPA staff enter charges into the system, so that it contains not only the charges received at an EEOC field office but those filed through a FEPA as well. The CDS contains demographic information about the charging party; the name, industry, location, and size of the respondent; and the charge as it moves through the agency process. Complainants may file a charge that alleges more than one basis (e.g., disability and sex) and also alleges more than a single issue (e.g., discriminatory hiring, failure to reasonably accommodate). The CDS allows the entry of up to eight bases and eight issues. Dates of filing and of various actions on the charge are recorded in the CDS, as are the resolution codes.

Because an individual may state more than one basis and raise more than one issue, the database is complex. The U.S. Commission on Civil Rights report notes that the complex structure of the database makes it difficult for staff other than programmers to develop reports or special data analyses from the data. Programmers do not always have the time to produce a custom report. The relative inflexibility in data analysis of the CDS reduces the extent to which it can be used not only to track cases but also to develop agency policy and assess success.

The EEOC is aware of the limitations of its current database system. The need to upgrade its technology, particularly computer technology, is mentioned in several of the task force reports and in its budget requests.

Despite the limitations of its database system, the EEOC has done a commendable job of producing summary information about its caseload, which it has made freely available to the public on its Web site and provided to organizations upon request.

3.3.5.1 Profile of Charges

Table 3-4 and Table 3-5 provide some summary data about ADA charges received since July 26, 1992. The data in these tables come from the CDS. The data analysis that produced the tables comes from the EEOC tables on its Web site, from tables in the U.S. Commission on Civil Rights report, or from original analyses performed on the data for this report. The source of the data analysis is noted on each table.

Table 3-4 shows the number of ADA charges received for the period July 26, 1992-February 28, 1998. The totals include all charges in which coverage under ADA is claimed; some of the charges may have dual coverage (e.g., ADA and Title VII). It is worth noting that the total number displayed here is larger than the total number of ADA charges that the EEOC cites when asked about its ADA charge caseload. The reason for the difference is the inclusion of the FEPA-processed dually covered charges. Thus, while the public generally believes that approximately 108,000 ADA discrimination charges have been filed since 1992 (the number on the Web site as of 9/30/98), the true number is approximately 73 percent higher if ADA-applicable charges received by the FEPAs are also considered. The count of charges is not identical to the number of people who have filed charges, as an individual may file more than one charge. The EEOC estimates that there are, on average, 1.085 charges per person in the CDS database.[44]

The office that receives the charge is not necessarily the office that is responsible for processing it. Charges are transferred to other offices for handling based upon issues of jurisdiction and whether the FEPA is certified for ADA charge processing. The CDS indicates that the FEPAs process approximately 37 percent of the disability discrimination charges filed under ADA. Table 3-4 also displays the demographic characteristics of the charging parties for those who filed with the EEOC and those who filed at a FEPA. The differences between these distributions are small, although women and nonwhites seemed slightly more likely to file at the FEPA.

Table 3-5 shows the disabilities of ADA charging parties. The distribution has been broken down according to whether the charge was received at an office of the EEOC or at a FEPA. The categories in Table 3-5 are based upon the categories developed by the EEOC and present in the CDS. For purposes of display, some categories have been combined (e.g., leg and arm extremities have been put into a single extremities category, and various blood disorders have been combined into a single non-HIV category). Table 3-5 suggests that, overall, the disabilities of those filing through the EEOC are little different from those filing through a FEPA. However, there is a large discrepancy between the two agencies in the percentage categorized as "other disability." This discrepancy, and the large percentage of FEPA cases classified as other disability, raises a question about the how the FEPAs assess disability and whether that assessment is comparable to that performed by the EEOC. The "other" category is intended for persons whose disabilities do not neatly fit in any of the specific categories. Because those categories are fairly comprehensive, it is unclear what kinds of impairments fall into the "other" category. The percentage of cases that fall into the "other" category in FEPA-processed charges is even larger than the proportion at the EEOC. It may be that persons who file through a FEPA disproportionately have disabilities that are not neatly categorized. However, an equally likely explanation is that there are some differences in the manner in which the EEOC and the FEPA offices evaluate and classify disabilities. In both cases, the "other" category seems rather large.

The distribution shown in Table 3-5 indicates that the largest categories of disability or impairment among ADA charging parties (besides "other") are back impairments, emotional or psychiatric impairments, neurological impairments, and impairments of the extremities. These have been the major categories of complainant disabilities since ADA enforcement began. A second grouping of impairments, each accounting for approximately 3 percent of the charges, includes cancer, diabetes, hearing impairments, heart or cardiovascular disorders, substance abuse, and vision impairments. Nearly 7 percent of the EEOC-received charges are based on the third prong of ADA definition of disability, regarded as a person with a disability.

Table 3-4
Profile of ADA Charges Received by the EEOC or a FEPA
July 26, 1992-February 28, 1998

Table 3-5
Type of Disability of ADA Charging Parties by Filing Agency

3.3.5.2 Charging Issues

With one exception, all the civil rights statutes enforced by the EEOC define prohibited employment discrimination to include discriminatory hiring practices, various discriminatory actions experienced by persons who are in a job, and discriminatory discharge. The statutory exception is the EPA, which only covers wage discrepancy claims. One of the persistent criticisms of ADA has been that it has not increased the employment rate of persons with disabilities. Critics have used the issues about which charging parties have complained as evidence to support this assertion. As Table 3-6 shows, approximately 92 percent of ADA charges involve issues related to having a job, such as terms of employment, harassment, promotion, or termination. Approximately 8 percent of complainants allege failure to hire. What many of ADA critics have failed to note is that over all the civil rights statutes, the proportion of complainants alleging failure to hire is below 10 percent (see Table 3-6). This had been true of discrimination charges prior to ADA. Disability discrimination charges filed with the FEPAs under state and local antidiscrimination laws have historically shown a similar pattern.[45]

Table 3-6
Charge Issues Most Often Cited, by Statute
Percentage of Total Charges for Each Statute

3.3.5.3 Charge Resolutions

Table 3-7 displays the types of charge resolutions for ADA charges processed between July 26, 1992, and February 28, 1998, by processing agency. While the proportion of charges that are determined no reasonable cause is similar whether the charge was processed by the EEOC or by a FEPA on contract, some differences are notable. The FEPA statistics show a higher proportion of charges that close with a settlement or a withdrawal with benefits. The EEOC considers both these kinds of closures merit closures (i.e., they produce a good outcome for the charging party). The FEPAs also have a smaller percentage of administrative closures. The EEOC produces a higher rate of reasonable cause findings. Some of the differences in these resolution statistics are the result of EEOC policies that result in the transfer of cases to the EEOC where the EEOC disagrees with the FEPAs determination or where national priority issues are present. These differences may also arise from the fact that the FEPAs do not prioritize charges. Some of the predetermination settlements may come from cases that the EEOC would have put in the C category and closed quickly. However, the higher rate of predetermination merit resolutions (settlement and withdrawal with benefits) does raise the question of why the FEPAs produce a higher rate of merit resolutions for charging parties. Beyond a few speculations, EEOC staff were not able to provide a firm explanation for this.

Table 3-7
ADA Resolutions by Type for EEOC and FEPA-Processed Charges

3.3.5.4 Charge Processing Time

One of the persistent complaints about the enforcement of discrimination charges has been the long time that elapses between the filing and the resolution of a charge. It was the large number of cases over 180 days old (66 percent of the charge inventory in 1995) that was part of the motivation for instituting the Priority Charge Handling Procedures. Since 1995, the EEOC has dramatically decreased the number of cases in its pending inventory. An EEOC press release in January 1999 states that the pending inventory was reduced from 111,000 in 1995 to 52,000 at the end of 1998. This has been accomplished by reducing the time required to resolve charges.[46]

3.3.6 Alternative Dispute Resolution

The EEOC promotes the use of mediation as a method of alternative dispute resolution (ADR). On February 11, 1999, the EEOC launched an expanded mediation program made possible by $13 million in its FY 1999 budget earmarked by Congress for mediation.[47]

The use of mediation started at the EEOC with a pilot project in 1992. Following a task force report, the agency endorsed ADR as a key strategy for decreasing processing time and increasing case resolutions.[48] The ADR Task Force set out several principles for using ADR that include the following:

• ADR is to be voluntary for both parties to the charge.
• ADR must be fair to the charging party and the respondent in perception and reality.
• All discussions and deliberations must remain confidential, and any third parties involved must be neutral and insulated from the EEOC enforcement process.
• ADR is to be used primarily before an investigation and is to be seen as an integral part of charge processing.
• Agreements reached through ADR will be signed and enforced by the EEOC, as are settlements achieved through other means.

The EEOC feels that the use of ADR has been largely successful. It reports that since the program's inception in 1996 through FY 1999, more than 7,300 charges have been resolved through mediation with benefits of approximately $87.5 million obtained for the charging parties. During FY 1999, the first year of its expanded mediation program, 65 percent of the cases taken to mediation were successfully resolved. Data for ADA closures following ADR show that in FY 1997 there were 202 closures; in FY 1998 there were 401 closures; and in FY 1999 there were 1,026 closures that involved a settlement or withdrawal with benefits. The benefits totaled $3.7 million in FY 1997, $4.8 million in FY 1998, and $10.2 million in FY 1999. Eighty percent of the ADR ADA closures were by settlement. ADA cases constituted approximately 21.3 percent of all cases resolved through ADR (Title VII cases constituted 60.6 percent and ADEA cases were 9.2 percent).[49] ADR cases appear to settle somewhat more quickly than other cases.

The EEOC acknowledges that not all charges are appropriate for mediation and that charging parties may be more interested in mediation than respondents. In the interviews conducted by the researchers and the staff of the U.S. Commission on Civil Rights, persons inside and outside the EEOC felt that ADR was often appropriate and effective for ADA reasonable accommodation charges.[50] However, persons outside the EEOC also expressed some reservations.

A big challenge to the EEOC interest in increasing the use of mediation is getting the parties to agree to it. In FY 1999, 81 percent of charging parties offered mediation agree to try it. However, employers are much more reluctant to participate in mediation. In FY 1999, only 36 percent of employers agreed to participate in the mediation process. The EEOC believes that to change this ratio, greater education of employers about mediation must take place. It is preparing videos and brochures aimed at employers for this purpose. The effort currently required to obtain employer agreement increases the transaction cost of mediation. For mediation to be of benefit to the agency as well as the parties, these costs need to be reduced.

A second issue that arises in mediation involves the use of attorneys. An employer is more likely to already have an attorney than a complainant. In fact, the person representing the employer in the mediation may be an attorney. On the other hand, it is important that the employer's representative at the mediation have the authority to reach an agreement. Complainants are less likely to come to a mediation with counsel, although some do. The researchers were told that, in general, if the parties want their attorneys with them, that is permitted. However, an attorney from the disability community told of an instance where only the complainant came with an attorney, and the mediator at first would not permit the attorney to attend the mediation. From past experience, the EEOC believes that agreements are easier to reach when the parties mediate without counsel. It would like to see a process where neither side feels obliged to come to mediation with additional representation. EEOC staff stated that when one party in a mediation is represented and the other is not, the mediator is empowered to intervene if he or she feels the process is railroading one of the parties.

When the parties resolve a charge through mediation and sign a settlement agreement, they also sign away further legal rights on that charge. The charge will be dismissed and the charging party and the EEOC agree not to use the charge as a basis for any future legal action. The EEOC relies on the mediators to ensure that the process is fair and the result balanced. However, the EEOC does not second-guess the agreement. It does not review the agreement to assess whether the charging party came away with too much or too little. After the parties have reached a settlement, the EEOC signs the agreement to allow its enforcement.

Under the new initiative, the use of ADR will increase over the next few years. All field offices have been asked to develop a plan for implementing ADR and have been given some targets for the percentage of cases that should be recommended for ADR. In FY 1999, Congress specifically authorized $13 million to support the expansion of the mediation program. Mediations will be performed by a combination of internal mediators employed directly by the EEOC, external mediators employed on contract, and pro bono or volunteer mediators. Mediators were to be trained and experienced in mediation and in the laws enforced by the EEOC. The EEOC contracted with an outside expert to develop a participant survey for evaluating the effectiveness of the mediation program. The survey is currently being tested in several field offices and will be used by all offices during FY 2000. The EEOC hopes that this program will enable it to quickly identify any problems and resolve them. The EEOC has plans to expand its outreach and training activities related to its mediation program aimed at the public, employers, and persons protected by the laws enforced by the EEOC.[51]

The use of ADR raises several issues. Because there have still not been many ADR cases, it may be too soon to have the answers to these questions. However, the following issues identified in the pilot program require follow-up in the current mediation program:

• Are mediators able to maintain a balance of power between the parties? Do charging parties really feel free to refuse to go to mediation when it is offered or is there a subtle sense that refusal may result in little progress on the complaint?
• How often does mediation occur where one or both parties must pay the mediator? The EEOC has trained mediators across the country in the requirements of the civil rights laws. In some field offices, all the mediators are EEOC employees, some of them in special and separate mediation units. Other field offices have found outside, pro bono mediators; in some regions, mediators from outside organizations who are paid by one or both of the parties to mediation are used.
• Does mediation produce benefits for charging parties that are as large as they might have achieved from a more traditional EEOC settlement or from a reasonable cause finding and conciliation? Because mediation occurs before a determination, is the charging party more likely to settle easily because he or she does not understand how strong the case is against the respondent?
• Are potentially precedent-setting litigation vehicles getting mediated?

The Commission responds that under the current expanded mediation program (1) the parties do not pay for the mediation sessions--all expenses associated with the mediation are borne by the EEOC or the contract mediator; (2) mediators are trained in the civil rights laws and in mediation skills and techniques; and (3) during FY 1999, EEOC mediators came from three sources--EEOC employees, contract mediators, and pro bono mediators. The EEOC has trained its mediators on the requirement that they attempt to maintain a balance of power between the parties and that they should terminate a mediation session if they determine, despite their best efforts, that an imbalance of power exists and that one party is not capable of participating in the mediation session. The EEOC has also trained its coordinators and mediators that they should not pressure either party to participate in the mediation process, that the process is completely voluntary. The parties are informed orally and through written materials that the process is voluntary and that if they decide not to participate in mediation or if they participate and the charge is not resolved in mediation, the charge will be investigated just like any other charge.

Although the EEOC does not have meaningful data comparing mediation settlements with negotiated settlements and conciliations, it states that mediation produced substantial monetary ben efits for charging parties in FY 1999. Resolutions obtained through mediation resulted in $58.6 million in benefits, three times the $16.9 million obtained in FY 1998. Potentially precedent-setting litigation vehicles are not mediated. As a general rule, category A charges are not eligible for mediation. Such charges are mediated only if both the district director and the regional attorney determine that the charge will not be litigated.

ADA Mediation Standards Work Group, a national body made up of practicing mediators and representatives of media service provid