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 providers and professional organizations, has developed guidance for mediators and others titled "ADA Mediation Guidelines" (see Appendix C). Approximately half of the work group's members have disabilities. The final standards, released in January 2000, contain detailed provisions categorized in four broad areas of program administration, mediation process, training, and ethics. They seek to ensure high-quality mediation services in the context of ADA disputes, much as standards of practice for family and divorce mediation provide in those specialty areas.

3.3.7 Findings and Recommendations

Finding 19: EEOC processing of ADA charges is similar to its processing of charges under Title VII (race, sex, national origin).

• ADA charges received allege approximately the same proportion of failure to hire versus termination or other employment issues as is evident for charges coming in under the other statutes.
• The distribution of ADA charge resolutions is similar to the distribution of resolutions obtained for charges under the other EEOC enforcement statutes.
• Approximately one-third of all charge processing (including ADA) is performed for the EEOC by a FEPA (state or local Fair Employment Practices Agency), with charges considered dually filed. The EEOC does not routinely include the data from FEPA charge processing in its report of charge volume, performance, or outcome. For ADA, this means that instead of approximately 108,000 charges having been filed since 1992, there have been approximately 175,000 ADA charges filed (including those dually filed with a FEPA).
• A small percentage of charges filed with the EEOC, including ADA charges, produce a finding of reasonable cause; altogether, approximately 15 percent of ADA charges close with a merit finding, while nearly 30 percent close administratively.

Recommendation 22: The EEOC should do a better job of explaining to the public and to complainants the FEPA role in charge processing.

This could also include a reevaluation of whether data from dually filed charges should be routinely reported with EEOC data and whether the EEOC needs to engage the FEPA staff more actively in its ADA update training and its implementation of measures such as priority charge processing.

Finding 20: The EEOC has initiated a number of administrative measures, applied across all statutes of enforcement, to increase the speed of its charge processing, focus its enforcement strategically, and produce resolutions through mediation.

Recommendation 23: The EEOC should offer more support, oversight, and training to the staff of the Fair Employment Practices Agencies where ADA enforcement is performed under contract.

As the EEOC methods of charge handling change, inattention to the procedures of the FEPAs may produce a widening gap in a complainant's experience of charge handling as a function of whether the charge is filed with the EEOC or a FEPA.

Recommendation 24: As the EEOC continues to expand its use of alternate dispute resolution, it should engage in a careful evaluation of how mediation is working and should adopt standards along the lines of the "ADA Mediation Guidelines" to govern mediations of ADA disputes.

Recommendation 25: The EEOC should develop a greater research and evaluation capacity, either in-house or through research contracting, as a means of providing information useful to policy development, litigation, and charge processing.

Better research is needed in the area of the outcome of charge processing and its context as an antidiscrimination enforcement strategy. Research also could compare ADA experience with what occurs for complaints under the other statutes.

3.4 Compliance Monitoring

Agencies usually perform some compliance monitoring by requiring organizations covered by a statute to write out plans or to report annual data. These plans and data are then evaluated by the enforcement agency and compared with the requirements of the statute. An assessment is made of the extent to which the covered entity appears to be operating in conformance with the law. Compliance monitoring is an activity that aims to achieve adherence to a statute in advance of a complaint alleging a violation.

While the overall mission of the EEOC is to "promote equal opportunity in employment by enforcing the federal civil rights employment laws through the use of administrative, judicial, educational, and technical assistance mechanisms," the EEOC has not included compliance monitoring among the techniques it uses for ADA enforcement. Some compliance monitoring occurs for Title VII, through the requirement that employers annually provide data on the demographic characteristics of their workforces. Disability is not, however, one of the characteristics subject to this monitoring. ADA prohibition on inquiries about disability contributes to the difficulty of requesting such information.

One other avenue for assessing compliance is to engage in "testing." Testing refers to the technique in which two individuals are sent to apply for housing, a job, etc., with matched characteristics or qualifications except for the characteristic that is the focus of testing. In the case of employment, testing would involve a situation in which two individuals, one with a disability and one without, but otherwise with matching job qualifications, experience, and education, apply for the same job. Their experience with the job application process--the information about job availability, follow-up contacts and inquiries, possibilities for further interview--are then compared. If the testers are well matched, differences in their experiences with an employer, especially in the initial stages of job application, can be evidence of discrimination. Although testing is conducted in the area of housing by the Department of Housing and Urban Development, it has not been conducted by the EEOC or any other federal agency for employment as a means of both measuring compliance with all the civil rights laws and preventing further discrimination. In fact, the EEOC is currently forbidden by Congress from engaging in employment testing.

Despite this prohibition, the EEOC did make a small move to support testing as a compliance strategy by issuing in May 1996 the "Enforcement Guidance on Whether 'Testers' Can File Charges and Litigate Claims of Employment Discrimination." This guidance expresses the EEOC view that persons who apply for jobs as testers (and their organizations) may subsequently file suit for any employment discrimination to which they have been subjected in the course of testing. Thus, while the EEOC, itself, is not currently engaging in any testing activities, it has provided some legal guidance that may encourage private organizations to assess EEO compliance through the use of testers.

3.4.1 Office of Federal Contract Compliance Programs

The Office of Federal Contract Compliance Programs (OFCCP) enforces nondiscrimination and affirmative action requirements placed upon federal contractors. Section 503 of the Rehabilitation Act requires that employers with federal contracts in excess of $10,000 provide equal job opportunity and affirmative action for qualified individuals with disabilities. The OFCCP, located within the Employment Standards Administration of the Department of Labor, is responsible for monitoring and enforcing employer compliance with these requirements.

Since 1981, the OFCCP and the EEOC have had a memorandum of understanding (MOU) because discrimination charges covered under Title VII can also be under the jurisdiction of the OFCCP if the employer is a covered federal contractor. The MOU addresses the overlapping jurisdiction and outlines how the two organizations will work together so there is no unnecessary duplication of effort. With the passage of ADA, the memorandum of understanding was amended to include handling of cases with dual coverage under ADA and Section 503.

For charges that may have dual coverage under ADA and Section 503, the charge is processed at the agency where it is filed. Unlike the arrangement with the FEPAs, there is no contract between the EEOC and the OFCCP and no monetary exchange associated with the processing of the cases by one agency on behalf of the other. Amendments to the Rehabilitation Act have made the definitions used in the two statutes consistent. The coverage of the two statutes is not identical, however, so a small number of persons are covered under one and not the other. For example, an employer with fewer than 15 employees is not covered under ADA but may be covered under Section 503 if there is a federal contract.

A key area of difference between the two agencies is that the OFCCP enforces a requirement for affirmative action, as well as nondiscrimination. The OFCCP pursues this aspect of its charge through compliance reviews. While companies are asked to report the race and gender profiles of their workforces as part of affirmative action under Executive Order 11246, such reporting is not used for Section 503 because there are no inquiries about disabilities. However, the OFCCP does include disability access criteria in its on-site compliance reviews. When an investigator performs a compliance review, the physical accessibility of a worksite is observed, personnel records are examined (comparisons are made between the applicants who identified a disability versus those employed who identify a disability), and an assessment is made about whether the application process or criteria would screen out someone on the basis of disability unrelated to essential job functions. Several recent cases summarized in a report from the OFCCP suggest that on-site compliance reviews have both observed and produced a remedy for discriminatory practices that were not the subject of a specific complaint from the employees affected.[52]

The OFCCP compliance reviews are a proactive measure to combat employment discrimination. Asked whether the findings from such reviews were ever shared with the EEOC as a means of assisting in the identification of pattern or practice cases or employers with especially egregious practices, staff members of the OFCCP said no. While the two agencies communicate to prevent duplication, they pursue their own investigative and resolution methodologies and their own litigation against employers.

Recommendation 26: The EEOC should develop a stronger collaboration with the OFCCP that might involve sharing information from compliance reviews or other strategies for proactive compliance or for pattern and practice enforcement.

3.5 Litigation

Litigation is an important tool for the enforcement of civil rights law. The EEOC has the authority to litigate individual complaints where a reasonable cause finding is not accompanied by a successful conciliation, and it may pursue litigation of a systemic nature after finding cause and conciliation has failed, where there are pattern or practice issues. Commissioner-initiated charges and individual charges where investigation reveals that there may be many persons affected are often the source of pattern or practice litigation. In addition to initiating its own litigation, the EEOC also participates in litigation as amicus curiae and as intervener in private lawsuits when warranted, for example, in suits that have significant policy issues.

As a result of the 1995 task force reports, the EEOC has reformulated its litigation strategy. Following the recommendations of the Charge Processing Task Force, the EEOC has separated litigation decisions from cause findings. Thus, not every charge where there is a cause finding and a conciliation failure will be considered litigation-worthy and result in EEOC-initiated litigation. Instead, the EEOC now chooses the cases it will litigate, using the goals enunciated in the National and Local Enforcement Plans and the principles articulated by the Charge Processing Task Force. The FY 1999 Annual Performance Plan also articulates a goal of expanding the identification of pattern and practice and other systemic cases through the administrative process by 10 percent and increasing by 10 percent the proportion of cases filed in court involving multiple aggrieved parties or discriminatory practices.[53]

The ultimate authority for decisions about litigation rests with the EEOC commissioners. The general counsel makes recommendations on amicus participation to the commissioners, who review the recommendations and decide whether the Commission will participate. Following the recommendations of the Charge Processing Task Force, the Commission delegated litigation authority over certain types of cases to the general counsel, who, in turn, redelegated authority to make litigation decisions in some cases to the field legal units. Cases meeting certain criteria must still be approved through the general counsel's office and in some cases by the commissioners. In the summer of 1999, the Commission requested that the Office of the General Counsel refer all ADA cases temporarily to the commissioners for litigation decisions. The Office of the General Counsel currently reviews all field legal unit recommendations on litigating ADA cases and refers them, with its own analysis and recommendation, to the commissioners to decide whether to pursue litigation. As in other areas under the EEOC's jurisdiction, the commissioners will make the determination if a case involves an evolving issue of the law where no previous position has been taken by the Commission, if the case may involve significant expenditure, or if the case is likely to generate controversy.

The development of ADA cases takes place primarily in the field offices of the EEOC through its investigative work and its cause findings. The regional attorneys refer ADA cases in which they find cause to the Office of the General Counsel. Before the summer of 1999, the general counsel made decisions about which cases to litigate, except for cases involving new ADA issues and those that were identified as potentially especially expensive or controversial, which the general counsel passed on to the commissioners for a decision. The joint task force report of March 1998 advocated that the field offices be allowed to make litigation decisions for ADA cases with the same provisos that apply to cases under the other EEOC statutes, but the Office of the General Counsel retained decision-making authority regarding potential ADA litigation under the rationale of ensuring that the same legal analysis is applied across the various sites and because new ADA issues were still emerging. Since the summer of 1999, all litigation decisions regarding ADA cases have been referred to the commissioners.

The EEOC had filed 278 lawsuits under ADA by March 31, 1998 (98 were active as of that date). Approximately 95 percent of the lawsuits brought by the EEOC have resulted in monetary or injunctive relief; the EEOC has lost only 5 percent of ADA cases resolved to date.[54] The researchers derived information concerning the issues raised in ADA cases from the March 31, 1998, issue of EEOC's "ADA Litigation Docket." With regard to this data, discussed here and shown in Table 3-8, the EEOC cautions that, although the docket is generally accurate, it was not intended to give a precise count of each issue filed in each case; thus, the numbers presented in this paragraph and in Table 3-8 should be considered merely as estimates. Table 3-8 summarizes the issues raised in EEOC's ADA litigation docket. Altogether the cases raise 611 issues, of which approximately 490 (83 percent) involve cases EEOC filed in district court and 103 (17 percent) involve cases in which the EEOC participated as amicus curiae. The distribution of issues in the docket suggests that the selection of cases is not based only upon the relative frequency with which an issue is brought to the EEOC but on other factors as well. For example, the pool of cases from which litigation is drawn is not charges filed but charges in which cause has been found and conciliation has failed. The issues in this pool are not necessarily numerically correlated with the issues raised by all charges filed. While approximately 8 percent of the charges involve hiring issues, nearly 21 percent of the issues raised in litigation are those that involve hiring procedures. Cases with issues involving job promotion and termination (approximately 60 percent of complaints) constitute 34 percent of the docket. A noticeable proportion of cases involve judicial estoppel and eligibility under ADA, an area in which there has been unexpected difficulty in the interpretation of the law. In these areas, the EEOC has participated primarily as amicus curiae. Several of the cases listed in the Table 3-8 docket have since been heard and decided by the Supreme Court (in May and June 1999). Cleveland v. Policy Management Systems Corp.[55] involved the issue of judicial estoppel with regard to ADA suits brought by individuals who had asserted inability to work in applying for disability benefits. Sutton v. United Airlines,[56] Murphy v. United Parcel Service,[57] and Albertsons, Inc. v. Kirkingburg[58] focused primarily on whether the existence of disability should be determined with or without corrective measures (such as eyeglasses or blood pressure medication). The Supreme Court's rulings in these cases are described in subsequent sections of this report.

Both the Charge Processing and Joint Task Force reports advocate that the EEOC not be obliged to litigate every unconciliated cause finding but view its litigation docket as supporting "strategic enforcement." The Joint Task Force report recommends, as well, that there be more emphasis on commissioner-initiated charges and on case development in support of the national and local enforcement goals.

The EEOC had identified the definition of disability and hiring issues as litigation priorities. With the decisions of the Supreme Court in the Sutton, Murphy, and Kirkingburg cases, the EEOC will need to reconsider its litigation involvement with regard to the definition of disability, although many issues remain unresolved and the full implications of the more favorable decision in Bragdon v. Abbott[59] have not yet been charted.

Other areas of emphasis for litigation and amicus participation include cases involving what is a reasonable accommodation, harassment based on disability, caps in employee benefits that involve disabilities, and postemployment long-term disability benefits.

In interviews, attorneys and others outside the EEOC generally expressed satisfaction with the EEOC selection of cases to litigate. There were recommendations for the EEOC to pursue more ADA class action suits, not only suits with individual complainants. It was felt that greater impact might be achieved by taking on the pervasive practices of large companies. Strengths and weaknesses of the EEOC's policy positions and priorities, including some of its litigation priorities, are discussed in section 3.9.

Table 3-8

EEOC Litigation Docket by Issue

(July 26, 1992-March 31, 1998)

Source: EEOC, Docket of Active and Resolved EEOC Litigation, as of March 31, 1998, at www.eeoc.gov/docs/ada.pdf. The numbers cited should be considered estimates rather than an exact count. Since a single case may raise more than one issue, the total number of issues in the docket exceeds the total number of cases.

3.5.1 Findings and Recommendations

Finding 21: Decisions about litigation priorities have been made at EEOC headquarters in the Office of the General Counsel or by the EEOC commissioners. Currently, the commissioners are responsible for making decisions on whether or not the EEOC will litigate ADA cases; these decisions have predominantly favored cases having individual plaintiffs in lieu of class action suits.

In its response to a review draft of this document, the EEOC disputed any implication that it prefers individual cases over cases involving numbers of employees or job applicants and stated that ADA cases litigated are simply reflective of the type of cases available in the pool of cases with cause findings that have failed conciliation. The National Council on Disability does not intend for this finding to cast doubts on or to second-guess the commissioners' decision making based on the potential cases that have come before them; the point of the finding is simply that relatively few class cases are being brought by the EEOC. In fact, the EEOC's litigation of class action cases has grown in recent years, from 8 percent of ADA lawsuits it filed in 1996, to 17 percent in 1997 and 1998, and 22 percent in 1999.[60] As Recommendation 27 indicates, NCD supports the EEOC's efforts to continue to increase the proportion of class actions it litigates.

Recommendation 27: The EEOC should litigate more class action suits in appropriate circumstances for the enforcement of ADA.

The Commission expressed its agreement with the recommendation to bring more class cases. The Office of the General Counsel and the Office of Field Programs have taken steps to develop more class cases that can be brought to litigation. For example, the Office of the General Counsel developed and conducted a week-long seminar in September 1999 to train more than 90 field investigators and attorneys on how to investigate, develop, and litigate class cases. The Office of the General Counsel has indicated that, depending on budgetary constraints, several iterations of this seminar are planned for the near future.

Finding 22: The processes of investigating, developing, and selecting cases to recommend for litigation and the actual litigation of cases have been primarily the responsibility of the individual district offices of the EEOC, with little collaboration or communication between the district offices.

The "generalist" approach of the EEOC, in which enforcement personnel are expected to handle matters arising under any of the civil rights statutes under the EEOC's jurisdiction, was noted at the outset in this report.[61] This approach is manifested throughout the process of investigating charges, developing cases, and recommending cases for agency litigation; investigators generally do not specialize in any particular type of civil rights violation,[62] and the same is typically true of attorneys in the field offices. The activities of handling charges and identifying potential litigation are highly decentralized, occurring in the individual field offices of the EEOC.[63] Generalism and decentralization appear to afford local and regional insight into issues, integration of ADA charges into the general pattern and culture of the EEOC's overall operations, and inducements to enforcement personnel to gain familiarity with individuals with disabilities, disability discrimination, and the requirements of ADA. At the same time, however, these approaches engender isolation and lack of consistency in the handling of cases, necessitate handling of ADA claims by individuals who may have little expertise, and require "reinventing the wheel" each time field office personnel face an ADA issue they have not previously encountered. These approaches also result in piecemeal handling of geographically widespread and recurring discriminatory practices of an employer or industry and precipitate the haphazard pursuit of individual lawsuits instead of more deliberate, strategically calculated legal actions.

The Commission's response is that it has instituted numerous initiatives to enhance a team approach among field offices, including (1) regional meetings of regional attorneys; (2) monthly regional attorney conference calls to discuss litigation strategies and successes; (3) the assignment of headquarters liaison attorneys to each field legal unit--the liaison attorneys not only discuss difficult cases with the field attorneys but also often refer them to other offices and attorneys who have been working on similar cases or with similar issues; and (4) regular visits by assistant general counsels from Appellate Services to field offices to discuss novel issues and new developments in the law. The Office of the General Counsel constituted a task force to review all ADA cases in active litigation in the wake of the Supreme Court's ADA decisions to develop consistent theories of coverage and strategies on developing evidence to support those theories. The Office of the General Counsel has also developed a computerized bank of significant district court and appellate briefs as a resource tool for field personnel and distributes to the field offices on a regular basis material concerning ADA cases and issues: ADA Litigation Docket, a weekly list of all cases filed and resolved, a monthly list of all active lawsuits, and a monthly list of all district court decisions and significant settlements.

Recommendation 28: The EEOC should continue and enhance its initiatives to attain a team approach on appropriate categories of ADA cases; teams of investigators and attorneys with particular expertise should be assembled across field offices and EEOC headquarters to pool resources and knowledge by conducting cross-office and cross-cutting investigations and litigation.

Cases should be referred to a relevant team at whatever stage in the handling of a charge it becomes apparent that a particular charge could benefit from team expertise.

3.6 Training Activities

Since the passage of ADA, the EEOC has developed and offered training to its own staff, attorneys, the judiciary, other federal agencies, and members of the disability community.

3.6.1 EEOC Staff Training

The first ADA training activities began in 1990 and focused on headquarters staff of the EEOC. Since then, the EEOC, through its headquarters staff, has offered training across the country. This training, usually in the form of a one-to-two-day intensive workshop or by video, has been presented to field office managers, supervisors, investigators, and attorneys. Some training has also been offered the FEPA staffs. Additional training has been provided to individual field offices in response to specific requests. Some of the field offices have initiated their own training programs.[64] In some offices, experienced field office staff with a strong interest in ADA have provided in-service training to other investigators and attorneys, and in some instances they have extended this training to the staffs of the FEPAs in their area.

In every year since 1992, the EEOC has provided training on ADA to some of its staff at headquarters and in the field offices, although not all employees have received the same level or intensity of training. Some employees may have received some training on ADA only once, while others have been provided both initial training and more advanced training or training focused on a guidance or other aspect of ADA that presents a complex issue. In FY 1997, the EEOC committed $1.6 million to training overall; the proportion of such training related to ADA is not separately identified.[65]

In its interviews with EEOC field office staff about the adequacy of their ADA training, the U.S. Commission on Civil Rights found that many people in the field offices believe the training they have received on ADA has been very good. Staff at headquarters and the field offices expressed the view that investigators and attorneys in the field had been better prepared for ADA enforcement than they had been for other statutes. Nonetheless, many also expressed the view that more training was needed because of the complexity of ADA and the new issues it raises, such as reasonable accommodation, substantially limited, essential function, and undue hardship. The need for continued training was also based on the view that as the case law develops and as investigators begin to see the broad range of situations that form the basis of charges, issues not previously recognized as important for training will be identified.[66]

The Joint Task Force report states that the EEOC's training needs far exceed its resources. While the increase in the FY 1999 budget does not include money targeted for training, the increased staff and programming that will be funded by the increase will also add to the need for staff training. The EEOC has made specific plans for training its new investigators that include one day (out of four) devoted exclusively to ADA. Another round of two-day training sessions for existing staff is also planned. The focus of this training will be employers' defenses, among them direct threat and undue hardship. Approximately one of the two days is expected to be devoted to ADA. How much of this training will occur in FY 1999 and how much will be postponed to FY 2000 is not currently known.

One issue regarding training is the extent of training of the FEPA staff. In its 1999 Annual Performance Plan, the EEOC identifies as a goal the provision of training to 30 Fair Employment Practice Agencies to improve charge investigative capabilities. This goal is not specific to ADA investigations, but it does raise the issue of whether the FEPAs, which handle approximately 35 percent of ADA charges, have received training that is at a minimum equivalent to that received by the EEOC field staff. To date, it appears that the FEPA staff may be invited and sometimes do participate in training when it occurs in a nearby regional or field office. However, attendance by the FEPA staff at such training events is not mandated by the EEOC.

A second issue is whether several days of training for an investigator is sufficient, especially in light of the new and complex investigative issues posed by ADA. Some persons outside the EEOC expressed concern about the ability of investigators to perform the sophisticated analysis required by some ADA charges.

3.6.2 Attorney, Judicial, and Other Federal Agency Training

In addition to training its own attorneys about ADA, the EEOC, through the Office of Legal Counsel, has been involved in offering, coordinating, facilitating, or reviewing training for other federal attorneys and for the federal judiciary. There have been several training activities that involve attorneys at the Department of Justice. Other federal agencies where there has been training of attorneys or other federal staff include the Departments of Labor, Education, Health and Human Services, and State. Presentations have also been made to such offices as the Federal Emergency Management Agency, the President's Committee on the Employment of People with Disabilities, the U.S. Customs Agency, and the U.S. Army Reserve.[67]

Some training of the federal judiciary has also occurred through presentations made by EEOC staff at the National Judicial College and other forums. A persistent complaint on the part of the private disability lawyers and disability advocates is that many of the federal judges do not understand disability issues, have not been able to place disability within a civil rights paradigm, and are insufficiently versed in the provisions of ADA. Persons both inside and outside the EEOC agreed that a more proactive program of ADA training for federal judges is needed.

3.6.3 Findings and Recommendations

Finding 23: The EEOC promptly initiated ADA training of its staff and ADA consumers. It has continued to update staff training as ADA matures.

Recommendation 29: The EEOC should follow up ADA Supreme Court decisions with guidance and training for its field staff and for stakeholders on what the decisions mean for the enforcement of ADA.

Recommendation 30: The EEOC should initiate another round of consumer training about Title I to update the information of persons who may have been trained at an earlier point and to increase the cadre of persons who can themselves disseminate the training.

Recommendation 31: The EEOC should work to improve the understanding of disability issues and of ADA through increased training of the federal judiciary.

3.7 Technical Assistance

The EEOC has been engaged in providing technical assistance on ADA since before Title I went into effect in 1992. As required in the law, it participated in the development of the initial ADA technical assistance plan, in collaboration with the Department of Justice. The focus of EEOC technical assistance has been employers, interested individuals and organizations, and people with disabilities. However, it appears that, on balance, more technical assistance has been delivered to employers than to employees or potential employees.

Technical assistance offered by the EEOC has included

• short brochures on Title I in question-and-answer format
• a detailed technical assistance manual
• public presentations to employers, human resource personnel, legal professionals, medical groups, and disability organizations
• seminars and training sessions offered to staff in other federal agencies
• Technical Assistance Program Seminars (TAPS), primarily attended by human resource specialists and managers
• videotapes, audiotapes, and public service announcements about Title I
• train-the-trainers courses jointly sponsored with the Department of Justice
• an ADA speakers bureau that provides speakers from headquarters and the field offices on request
• a special ADA helpline as part of its toll-free telephone assistance line

Some of the funding for the training seminars, especially those labeled TAPS, has come from a source called the Revolving Fund. The Revolving Fund was set up in 1992 by special legislation in response to a request from the EEOC. This legislation--the Education, Technical Assistance, and Training Revolving Fund Act of 1992--allocated $1 million to the EEOC to be put in a fund for technical assistance education. These funds are replenished by charging a fee to the participants in the EEOC technical assistance program seminars. Most of the participants in these seminars are from the business community or other federal agencies. The EEOC acknowledges that people in the disability community and small businesses may find the fee prohibitive. Half-day seminars at a reduced cost and other low-cost or free outreach activities are one way that the EEOC is trying to respond to this criticism. Some of the field offices have offered their own training at no cost, some of it aimed at small businesses and people with disabilities.

The technical assistance efforts of the EEOC have been augmented by the network of Disability and Business Technical Assistance Centers (DBTACs), set up and funded through the National Institute for Disability and Rehabilitation Research. These centers have been a key distribution point for a great deal of Title I technical assistance information, including that developed by the EEOC. However, there is no formal coordination between the DBTACs and the EEOC with respect to a strategy for Title I technical assistance (a more detailed discussion of the DBTAC role in technical assistance is presented in Chapter 7).

The EEOC has had a Web site since February 1997. Although it was slow to create a Web site, the EEOC is now using its site to provide a great deal of information to the public about its activities, its plans, and its record of charge processing. The four task force reports are all available on the Web, as well as the strategic plan, regulations, and various other documents. There is information about the laws enforced by the EEOC and the procedures to follow to file a charge. More information is available on the Web site about ADA than about the other statutes, a fact that has both advantages and disadvantages. ADA information includes the litigation docket and the charge statistics for fiscal years 1992-1998, broken down by total number of charges, type of issue, type of disability, and type of closing. The richness of ADA information on the Web site makes information about EEOC's ADA enforcement activities easily accessible. The disadvantage of this admirable openness is that comparable information is not provided about EEOC processing under the other statutes. Thus, there is no context for assessing whether ADA charges and their outcomes are unique or are comparable to what occurs with the other civil rights laws. A second caveat, which is not explained clearly on the Web page, is that the charge data are only from the charges filed directly with the EEOC. Because the dually filed FEPA charges are not included, the total number of ADA charges is underreported. These issues aside, the EEOC is to be commended for making so much information publicly available.

While some of the technical assistance information made available by the EEOC has probably reached people living in rural areas or who are from diverse cultural backgrounds, it appears that the EEOC technical assistance efforts have not sufficiently targeted these groups. The field offices have articulated a priority to reach out to underserved populations in their Local Enforcement Plans. However, the U.S. Commission on Civil Rights report on Title I documents the inadequate outreach to rural and culturally diverse populations.[68] Title I information may have been targeted on these communities as part of the efforts of the DBTACs and the President's Committee on the Employment of People with Disabilities. The 1999 priorities of the EEOC do focus on outreach to underserved communities of persons from diverse cultural backgrounds; it was an explicit topic of discussion at a January 1999 meeting that Chairwoman Castro held with representatives of civil rights groups. For FY 2000, the EEOC has identified issues of multiple discrimination as a major outreach, educational, and enforcement priority, including cultural diversity and disability issues. Whether this includes a focus on rural populations and youth with disabilities who are preparing to enter the labor force is less clear.

3.7.1 Findings and Recommendations

Finding 24: The EEOC has provided technical assistance in the form of training, speakers, and written materials to other federal agencies and to employers. It has reached members of the disability community to a lesser extent and has not targeted specific groups such as persons from diverse cultural backgrounds, rural residents, or youth with disabilities.

Recommendation 32: The EEOC should engage in increased outreach to the disability community. This outreach should involve a special effort to reach persons from diverse cultural backgrounds, rural residents, and youth with disabilities who are ready to move into employment.

Such outreach should include additional efforts to educate people about their rights under ADA and efforts to use the experiences and expertise of people with disabilities to identify issues for policy development and strategic litigation.

3.8 Media Contact

The EEOC has made some effort to respond to incorrect press reports of ADA employment cases. One way this has occurred is through letters to the editor. Publicity about important cases is another avenue. EEOC staff expressed the view that as an enforcement agency, the EEOC could not take too strong an advocacy position in the media without seeming to "take sides." However, several persons outside the EEOC expressed the view that the EEOC could and should be engaged in more proactive work with the media around ADA. It was observed that the negative press gets a lot of attention, and this may undermine voluntary compliance with ADA. A second issue involves the negative publicity that focuses on the diagnostic categories of ADA complainants. The EEOC could take a stronger role in confronting the confusion around this aspect of disability definition. It is not only a problem for legal definition, it is also strongly related to public support for ADA. A more detailed discussion of the media coverage of ADA and some examples of the negative and inaccurate information it contains is presented in Chapter 9.

3.8.1 Findings and Recommendations

Finding 25: The EEOC has not taken a sufficiently active role in responding to negative and inaccurate media and other public comments about ADA.

• The EEOC has made some efforts to issue written or other responses to negative and inaccurate media reports about ADA.
• Advocates and agency staff both agree that the EEOC ought to be taking a more proactive stance in explaining ADA and in countering the inaccurate negative media reports.
• The definition of disability is an issue that has been the focus of much negative publicity that the EEOC has not addressed vigorously with the media.

Recommendation 33: The EEOC should devote greater attention and more resources to actively explaining ADA to the public in a positive manner.

This effort should include countering, where appropriate, incorrect or inappropriately negative presentations or statements about ADA in the media. In its relationships with the media, the EEOC should take a clearer and stronger position in relation to the definition of disability and judicial precedents interpreting it, consistent with the recommendations presented in section 3.9.3, both as a matter of legal principle and as a key factor affecting public understanding of and support for ADA.

3.9 Policy Positions and Leadership

Previous sections discuss the processes and mechanisms by which the EEOC takes positions on policy matters arising under Title I of ADA. These include, in particular, setting policy by issuing regulations and regulatory guidance (discussed in section 2.2) and by the selection and implementation of litigation priorities (discussed in section 2.5). This section examines the substantive content of EEOC policy decisions and the leadership the agency has shown in promoting effective and vigorous implementation of the requirements of ADA.

3.9.1 Accomplishments

In a number of instances, the EEOC has furthered the goal of effective and enlightened implementation of ADA by taking strong, timely, and appropriate stances on issues, sometimes controversial ones. Some such positions were taken at the time the EEOC issued ADA Title I regulation in July 1991. Others have been taken in subregulatory guidances, in litigation, and in other ways subsequent to the issuance of the Title I regulation.

The EEOC took a strong stance on the issue of mitigating measures (unfortunately, one that was eventually rejected by the Supreme Court in Sutton v. United Airlines,[69] Murphy v. United Parcel Service,[70] and Albertsons, Inc. v. Kirkingburg[71]) by providing in the interpretive guidance for its Title I regulation that whether an impairment exists or substantially limits a major life activity should be determined without regard to mitigating measures such as medicines or assistive or prosthetic devices.[72] The EEOC reiterated its stance on mitigating measures in its March 15, 1995, guidance memorandum on the definition of disability.[73] The Commission consistently sought to advance its position in litigation, filing numerous lawsuits that advanced that position and participating as amicus curiae in a number of lawsuits in various judicial circuits to argue the EEOC position on the issue. The Commission followed a persistent strategy to ensure that its position on the mitigating measures issue was adopted by the courts.

The guidance memorandum on the definition of disability included some other noteworthy forward-looking positions. The EEOC included an example of a person with genetic predisposition to disease or disability in the "regarded as" prong of the definition of disability.[74] This is an emerging issue area, and the EEOC showed considerable leadership in taking the position it did when discussions were still at an early, formative stage. Among other significant policy stances in the memorandum, the EEOC took the following positions for the first time:

• Voluntariness does not affect whether a condition is an impairment (we give an example of someone who acquires lung cancer as a result of smoking) (p. 902-14).
• Major life activities include mental and emotional processes such as thinking, concentrating, and interacting with others (p. 902-15).
• HIV is inherently substantially limiting and thus constitutes a disability (p. 902-21). [The Supreme Court cited this discussion of HIV in the Bragdon v. Abbott decision.]

An excellent example of the EEOC's taking initiative in formulating sound ADA policy is its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, issued in March 1997. This document was groundbreaking in many respects. It provided much-needed guidance to employers regarding their obligations to employees and applicants with psychiatric conditions. It clarified the types of job accommodations that might be necessary for employees with psychiatric disabilities; among these, it recognized that the employer might in some cases be required to permit an attendant or job coach to be present on a job site--a type of reasonable accommodation that had not to that time been explicitly recognized. It made clear that the concept of "major life activity" should not be interpreted in an overly medical fashion, by recognizing the role of input and evidence from nonmedical personnel in making determinations regarding the impact of impairments on activities. It also recognized that standards of conduct imposed by employers must be job-related and consistent with business necessity or they may not be used to exclude or disadvantage employees with disabilities; this was an important clarification by the EEOC, although the agency complicated the matter somewhat by choosing an ill-advised example of dress and appearance requirements applied to a disheveled warehouse worker. The guidance also took the following additional important policy position for the first time:

• The Commission declared that sleeping is a major life activity (p. 5).
• The Commission explained when "novel" major life activities such as sleeping, concentrating, and interacting with others are (and are not) substantially limited (pp. 10-12).
• The Commission stated that questions about mental illness are not permitted on job applications (p. 13).
• The "job-related and consistent with business necessity" standard for employee inquiries and exams was defined as a "reasonable belief, based on objective evidence" that an employee's ability to perform essential functions would be impaired or that she or he would pose a direct threat (p. 15).
• The Commission declared that physical changes to the workplace, changes in workplace policies, and changes in supervisory methods are all forms of reasonable accommodation (pp. 25-27).[75]
• The Commission stated that a person who takes medication that may cause side effects does not, for that reason alone, pose a direct threat (p. 34).

An outstanding instance of EEOC leadership with regard to a particularly volatile issue under ADA were its efforts in relation to two lines of court decisions. Some courts had ruled that employees' disclosures in their applications for disability benefits rendered them not "qualified" and thus, through what is referred to as "judicial estoppel," precluded them from maintaining ADA actions. In the second group of decisions, some courts reasoned that ADA and the Rehabilitation Act only protect "employees" from discrimination, and that persons not currently working for the employer could not sue, even if their claims involved discrimination with regard to disability or retirement benefits that, by definition, were only available to former employees.

With regard to the judicial estoppel issue, the EEOC played a forceful and positive role in challenging the estoppel/preclusion approach. On February 12, 1997, the EEOC issued Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990 (ADA).[76] The Introduction to the Executive Summary of the document indicated that it "explains why representations about the ability to work made in the course of applying for social security, workers compensation, disability insurance, and other disability benefits do not bar the filing of an ADA charge."[77] The enforcement guidance was an extensive document that analyzed the differences between ADA's purposes and standards and those of other statutory schemes, disability benefits programs, and contracts; discussed court decisions that addressed this issue; and explained how to assess what weight, if any, to give to such representations in determining whether an individual is a "qualified individual with a disability" for purposes of ADA.[78]

The guidance discussed the particular standards and purposes of ADA, the Social Security Act, workers compensation, and disability insurance plans.[79] Among its conclusions, the EEOC found the following:

• ADA's Purposes and Standards Are Fundamentally Different from the Purposes and Standards of Other Statutory Schemes and Contractual Rights.[80]
• ADA Definition of "Qualified Individual with a Disability" Always Requires an Individualized Assessment of the Particular Individual and the Particular Position; Other Definitions Permit Generalized Inquiries and Presumptions.[81]
• ADA Definition of "Qualified Individual with a Disability Requires Consideration of Reasonable Accommodation; Other Definitions Do Not Consider Whether an Individual Can Work with Reasonable Accommodation.[82]
• Because of the Fundamental Differences Between ADA and Other Statutory and Contractual Disability Benefits Programs, Representations Made in Connection with an Application for Benefits May Be Relevant to--but Are Never Determinative of--Whether a Person Is a "Qualified Individual with a Disability."[83]
• Representations Made in Connection with an Application for Disability Benefits Are Not Determinative of Whether a Person Is a "Qualified Individual with a Disability."[84]
• A Determination of What, if Any, Weight to Give to Representations Made in Support of Applications for Disability Benefits Depends on the Context and Timing of the Representations.[85]
• Public Policy Supports the Conclusion that Representations Made in Connection with an Application for Disability Benefits Are Never an Absolute Bar to an ADA Claim.[86]
• Permitting Individuals to Go Forward with Their ADA Claims Is Critical to ADA's Goal of Eradicating Discrimination Against Individuals with Disabilities.[87]
• Individuals Should Not Have to Choose Between Applying for Disability Benefits and Vindicating Their Rights Under ADA.[88]

The EEOC concluded that neither judicial estoppel nor summary judgment was appropriate in such cases.[89] The EEOC also appeared as amicus curiae in lawsuits to advocate for its views on the judicial estoppel issue, making such arguments as that court decisions applying judicial estoppel were stretching the doctrine and ignoring the legislative purposes of antidiscrimination underlying ADA, and that plaintiffs' representations of total disability were "after-acquired evidence" that should be relevant only as a defense not to the question of whether plaintiffs had made a prima facie case.[90] In addition to these vigorous efforts of its own, the EEOC also reached out to the Department of Justice and the Social Security Administration, and cooperated with those agencies in devising joint strategies for opposing the judicial estoppel lines of cases.

The EEOC also appeared as amicus curiae[91] or as plaintiff[92] in several of the leading cases addressing the rights of former employees to bring ADA suits. It argued that such rulings undermine ADA's express prohibition against discrimination in fringe benefits,[93] that former employees occupy the "employment position" of "benefit recipient" and can be "qualified" for that position even though unable to perform their former jobs,[94] that status as a former employee is sufficient to confer authority to sue for wrongs occurring in the employment context,[95] that ADA language of "employment position" in defining "qualified individual with a disability" is broader than the Rehabilitation Act reference to "job,"[96] that there are prior precedents permitting ADA actions challenging health and disability insurance limitations by plaintiffs who were qualified for the benefit but not able to work,[97] that "qualified" in the context of benefits means qualified to meet the requirements of the plan,[98] and that interpretations of the term "employee" under Title VII of the Civil Rights Act of 1964 allowing former employees to bring suit should apply to the use of the same terms under ADA.[99]

The position advocated by the EEOC on the judicial estoppel issue ultimately prevailed to a considerable degree when the United States Supreme Court ruled, in Cleveland v. Policy Management Systems Corp.,[100] that claims for Social Security Disability Insurance (SSDI) benefits and for damages under ADA were not in inherent conflict and that plaintiffs should be given the opportunity to explain apparent discrepancies between statements made in pursuing disability benefits and in their ADA claims.

The interim Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations, issued on May 19, 1994, and the final guidance, issued in October 1995, broke new ground in clarifying the restrictions on preemployment inquiries and medical examinations, an issue that is unique to ADA. Among the matters of first impression in the guidance were the following:

• the definition of "disability-related" ("likely to elicit information about a disability") (p. 4);
• the circumstances under which preoffer questions about reasonable accommodation are permissible (pp. 6-7);
• the prohibition against preoffer questions about workers compensation history (p. 10); and
• the factors for determining when an examination is medical; and the application of these factors to psychological exams (p. 14).

For the most part, and with some specific exceptions noted in the section that follows, the EEOC has taken sound policy positions in most of its litigation activities. As the following section makes clear, the policy stances and legal analysis the EEOC has advanced in its regulatory and guidance documents have unfortunately often not been as enlightened or as effectively championed as the positions the agency has taken in litigation.

The EEOC has demonstrated considerable leadership, sensitivity, and initiative in the style in which it has delivered its subregulatory guidance. For the most part, the EEOC has issued enforcement guidance documents that are user-friendly. The guidances are generally not too technical and are easily readable by laypersons; they contain numerous concrete examples to illustrate the principles discussed. The accessible style of EEOC's enforcement guidances provides an excellent model for all ADA guidance documents.

3.9.2 Shortcomings

Despite the various examples, described in the prior section, of laudable efforts by the EEOC to ensure effective implementation of requirements of ADA, in other instances the agency has fallen short in the content of its policy positions or in the zeal and foresight with which it has pursued them. At times, these lapses appear to have stemmed from a lack of doctrinal clarity and analytical insight on the part of the EEOC; at other times, they appear to result from insufficient commitment to providing the dynamic leadership required to ensure comprehensive and robust achievement of the purposes that prompted Congress to enact ADA.

A critical and illustrative example of the EEOC's inadequate performance of some of its policy-setting responsibilities involves the definition of the term "individual with a disability." Despite repeated congressional statements about its intent to provide "comprehensive" protection against discrimination on the basis of disability, the EEOC has repeatedly taken unnecessarily restrictive positions on the definition and erected a number of obstructions that have impeded persons who seek to claim the protection of ADA. Such constricted interpretations of "individual with a disability" surfaced in the original ADA Title I regulation the EEOC issued in 1991 and have continued to arise periodically in subsequent EEOC policy documents.

One way in which the EEOC took an unnecessarily inhibiting stance in the Title I regulation was its adoption of a position that in order to be "substantially limited" in the major life activity of working, individuals alleging discrimination have to show that they are significantly restricted in ability to perform either "a class of jobs or a broad range of jobs in various classes."[101] Moreover, the EEOC added a statement that "[the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."[102] The class-of-jobs-or-broad-range-of-jobs and the single-particular-job-is-not-sufficient criteria are not found in the statutory language of ADA, and yet they were incorporated into ADA Title I analysis by the EEOC. In its regulatory guidance, the EEOC supported these standards by citing dubious judicial precedents,[103] while ignoring other judicial precedents, explicitly mentioned in ADA committee reports, to the contrary.[104] Some legal commentators have been strongly critical of this position of the EEOC.[105]

In its response to a review draft of this document, EEOC contended that its class-of-jobs-or-broad-range-of-jobs analysis was in fact based on substantial Rehabilitation Act case law and insisted that it is not accurate to state that the EEOC developed the criteria. The National Council on Disability, however, believes that the precedents did not compel the result EEOC arrived at and that EEOC's analysis was derived from a selective and partial marshaling of the case law.

Whether such a standard was or was not appropriate under the first (actual disability) prong of the definition, neither the EEOC Title I regulation nor the regulatory guidance declare that being denied or terminated from a single job because of a physical or mental impairment would be sufficient to constitute being "regarded as" having a disability under the third prong of the definition. The regulatory guidance suggests only that complainants can satisfy the "regarded as" prong of the definition if they can prove that an employer rejected them from a job because of "myths, fears, and stereotypes" about disabilities. This requires complainants to prove what was going on in the mind of the employer, a difficult evidentiary burden. To ameliorate the concerns of disability rights advocates who had argued that the EEOC's proposed regulation regarding the phrase "substantially limited in working" unduly limited coverage and presented potential plaintiffs with onerous burdens of evidence and proof,[106] the EEOC revised its interpretive guidance to expressly assert the contrary. The final interpretive guidance states that standards regarding numbers and types of jobs that are limited "are not intended to require an onerous evidentiary showing."[107] They are meant to require only evidence of "general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., 'few,' 'many,' 'most') from which an individual would be excluded . . . ."[108]

Despite these conciliatory platitudes, the fact is that the regulatory framework left persons alleging that they had been subjected to discrimination with highly onerous burdens of proof. It would have been relatively simple, and fully consistent with ADA's intent to provide a comprehensive remedy for discrimination, for the EEOC to have declared that whenever complainants show that employers have taken adverse actions against them based on the employees' physical or mental conditions, a presumption is created that the employer regarded the person as having an impairment that substantially limits a major life activity. The illogic of permitting employers to terminate a person from a job because of a physical or mental condition and then to argue that the condition is not serious enough to constitute a disability is starkly apparent.

In issuing its March 1995 guidance memorandum on the definition of disability,[109] the EEOC tried again to soften the blow, as it were, by stressing the "myths, fears, and stereotypes" route for proving that an employer regarded an individual as having a substantially limiting impairment and by providing a number of concrete examples of the application of the "regarded as" prong of the definition of disability. This discussion, however, was still tied to proof that the employer regarded the complainant as substantially limited to perform a class of jobs or a broad range of jobs; it engendered a highly convoluted and confusing discussion of proof issues in relation to the "regarded as" prong; and in the end it still left complainants with the burden of proving what was in the employer's mind when it took an adverse action toward them.

Thus, the EEOC went out of its way in its regulatory language to establish a strong standard that restricted access to ADA protection under the first prong; but was hazy, convoluted, and ineffective, at best, in clarifying the application of the third prong to those who had been subjected to substantially disadvantageous treatment by employers based on their physical or mental impairments. The EEOC's creation of explicit and stringent standards protecting employers alleged to have discriminated, while leaving ambiguous and indefinite the standards and analysis that might provide protection for job applicants and employees who have been subjected to discriminatory treatment, was highly unfortunate and, sadly, is not an isolated occurrence.

When the EEOC first articulated its class-of-jobs-or-broad-range-of-jobs and single-particular-job-is-not-sufficient criteria, the judicial precedents supporting them were few and wobbly, and there were counterprecedents. With the EEOC's regulatory endorsement of the restrictive criteria, judicial adoption of such analysis soon became predominant under the first (actual disability) prong of the definition. More ominously, the EEOC's strong stance on the first prong, coupled with its feeble and nebulous position under the third (regarded as) prong of the definition, facilitated the extension of the restrictive interpretation to the third prong as well, and a number of courts so held, although there were some substantial judicial precedents to the contrary.

The absence of solid EEOC pronouncements and informed analysis of the "regarded as" prong contributed to the outcome in decisions of the Supreme Court in Sutton v. United Airlines,[110] Murphy v. United Parcel Service,[111] and Albertsons, Inc. v. Kirkingburg.[112] Although in a narrow sense these rulings focused primarily on whether the existence of disability should be determined without corrective measures (such as eyeglasses or blood pressure medication), their language and implications as to the "regarded as" prong appear to be much broader and are potentially quite damaging. Most unfortunately, the Court applied the EEOC's class-of-jobs-or-broad-range-of-jobs and single-particular-job-is-not-sufficient criteria in its analysis under the "regarded as" prong of the definition of disability.

It is, of course, far from certain that if the EEOC had taken a different stance on the impact of exclusion from a single job under the "regarded as" prong, the Supreme Court would have reached a different outcome in the Sutton, Murphy, and Kirkingburg cases. After all, the EEOC did take a definitive and consistent stand on the issue of mitigating measures, and the Supreme Court ruled precisely to the contrary. It should be acknowledged that during the past decade, the courts have at times been ill-informed, if not outright hostile, with regard to the interpretation and application of ADA. In light of this demonstrated tendency of courts to construe the statute narrowly, however, the need for the EEOC to play a leadership role in developing progressive ADA policy has been all the more critical.

Now that the Supreme Court has ruled, the EEOC should take action to mitigate the potential harmful effects of these decisions upon complainants, seek to confine the impact of the decisions to their particular facts, and try to distinguish other situations as not within their precedential scope. But what is a certainty is that the EEOC could and should have played a more constructive role in promoting a broader interpretation of the definition of disability in order to ensure the elimination of discrimination on the basis of disability. The EEOC bears a strong responsibility for fostering and not challenging an atmosphere in which the definition of disability became viewed as a technical and restrictive ticket to admission to an exclusive private club of persons entitled to ADA protection.

The fact that the Supreme Court misinterpreted the 43 million figure in the Findings section of ADA (derived from figures in a tabulation issued in 1984 by the Congressional Research Service)[113] as the number of people protected from discrimination rather than only an estimate of those having "actual" disabilities under the first prong of the definition is a travesty, and it is one that the EEOC helped engender by not clarifying the breadth of the third prong to include any American who suffers discrimination on the basis of disability, even if that discrimination occurs on only one occasion in connection with one particular job with a particular employer. The EEOC should have consistently promoted the notion that the "protected class" under ADA encompasses all people who have been subjected to disability discrimination, not just those with actual, substantially impairing disabilities.

Instead, the agency became overly concerned with fringe examples and unlikely hypotheticals and tailored its definitional standards to address these rather than the more usual incidents of disability discrimination that occur every day in the workplace. In the original proposed interpretive guidance accompanying its proposed Title I regulation, the EEOC cited the example of a surgeon unable to perform surgery because of a shaky hand and suggested that such a situation would not establish a substantial limitation on working because it affected only a narrow range of jobs.[114] After the example was challenged by commenters, the EEOC agreed that "[it] confused, rather than clarified, the matter," deleted the example, and replaced it with a scenario of an individual unable to be a commercial airline pilot because of a minor vision impairment but who is able to be a copilot or pilot for a commercial service.[115] The final guidance also referred to two other examples: (1) a professional baseball pitcher who develops a bad elbow and is no longer able to throw a baseball, and (2) a person who "has an allergy to a substance found in most high rise office buildings, but seldom found elsewhere."[116]

While no one could say that the cited examples are impossible, they are certainly not the stuff of everyday employment discrimination. The courts are certainly capable of addressing such exceptional instances if and when they arise and of devising exceptions to the general rules to deal with unusual and idiosyncratic situations. But there was no reason for the EEOC to frame its analytical standards around these extraordinary situations rather than the much more common and harmful problem of employers eliminating individuals from jobs because the worker has a physical or mental impairment. In so doing, the EEOC proved the old legal maxim that "hard cases make bad law."

The difference is quite dramatic between instances when the EEOC manifests strong leadership, takes a definitive and enlightened position on an issue, and advocates robustly for it, as it did with the judicial estoppel issue; and when the EEOC forsakes a leadership role, takes an equivocal and muddled position, and plays only a minor and somewhat negative role in the resolution of an issue, as it did in relation to the application of the single-particular-job-is-not-sufficient criterion to the "regarded as" determination.

On July 26, 1999, the ninth anniversary of the enactment of ADA, the EEOC issued Instructions for Field Offices Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified." These instructions applied some positive aspects of the Bragdon v. Abbott decision, which the EEOC characterized as having "broadly interpreted the terms 'impairment,' 'major life activity,' and 'substantial limitation' ...." They also clarify the relationship between a charging party's application for or receipt of disability benefits on the issue of whether the charging party is "qualified," in light of the Supreme Court's decision in Cleveland v. Policy Management Systems Corp. The instructions seek to limit, to some extent, some of the damaging aspects of Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons, Inc. v. Kirkingburg, by indicating that mitigating measures that are not fully effective or that themselves cause activity limitations may not prevent an individual from being found to have a disability.

At the same time, the instructions continue some of the EEOC's problematic stances, including the class-of-jobs-or-broad-range-of-jobs criterion and an overemphasis on probing the exact dimensions of the charging party's impairments and limitations. The instructions note that the Sutton and Murphy decisions apply the class-of-jobs-or-broad-range-of-jobs standard but do not add that the Supreme Court simply accepted these standards from the EEOC Title I regulations. A more helpful and conscientious position for the EEOC would be to formally reconsider and repudiate its class-of-jobs-or-broad-range-of-jobs criterion as engendering an unnecessary preoccupation with the details of the employee or applicant's condition instead of focusing on the allegedly discriminatory actions of the employer. The instructions illustrate the harmful effects of the EEOC approach as they call for a veritable inquisition into the details of a person's physical and mental impairments, medications, compensatory techniques, and effects upon the whole gamut of life activities, including reproduction, to be followed by interviews with family members, friends, coworkers, rehabilitation specialists, and doctors to corroborate or supplement the person's information.

The instructions direct that only if a charging party is found not to have an actual disabling condition or a record of a disability (based on other detailed questioning and inquiries into and reviews of various records) does the inquiry ever turn to the question whether the employer regarded the individual as having a substantially limiting impairment. This continues the turning of ADA on its head by focusing on the worker's characteristics and limitations rather than the allegedly discriminatory conduct of the employer. And it is not that the courts have forced such a state of affairs on a reluctant EEOC. It is, rather, a situation in which the EEOC took the lead in developing restrictive and technical stances as to the class of persons protected by a new civil rights law.

In an official response to a review draft of this document, the EEOC took exception to the criticism that the field instructions have contributed to the development of bad policy, stating that policy-making is not their purpose. Rather, these documents were intended to respond to practical questions arising in the field about how investigators should handle charges in light of Sutton, Murphy and Albertsons. The EEOC further asserts that to use the instructions for purposes of policy development would be irresponsible and would violate its own rules and statutory mandates, since only the Commission and its members can make policy decisions.[117] In NCD's view, this response begs the question of whether the field instructions, while not official policy pronouncements, do in fact establish official interpretations of legal decisions that set the course of public policy.

As to the substance of the instructions, the EEOC acknowledged NCD's criticisms while taking the position that detailed inquiries to establish whether someone has a disability are unavoidable, given the case-by-case approach outlined by the Supreme Court in Sutton. The EEOC reports that its experience has been that the instructions have helped attorneys and investigators establish coverage in situations where they might otherwise have been inclined to dismiss charges or litigation. Moreover, the EEOC maintains that the instructions have actually been extremely well received outside the Commission, in particular by the plaintiffs' bar.[118] The National Council on Disability agrees that the instructions include some salutary analysis and attempt to provide some amelioration for some of the harmful effects of the Sutton, Murphy, and Albertsons decisions. The NCD's view, however, is that the instructions do not go nearly far enough to tackle the core issues raised by the decisions. And the central problem is not the case-by-case approach employed by the Court in Sutton; the critical question is whether the case-by-case approach is going to be used to dissect the mental and physical characteristics of the complainant or is going to focus on what the employer did or did not do to the complainant.

In response to the NCD's suggestion that ADA "regarded as" coverage be extended to all persons who are denied an equal employment opportunity on the basis of an impairment, the EEOC responded that this position was rejected by the Supreme Court in Sutton and indicated that it did not believe that the "class/broad range" requirement can be eliminated, although it may be possible to clarify these terms in future guidances, consistent with the Supreme Court's decisions in Sutton and Murphy. As indicated above, NCD would like to see the EEOC accept some responsibility for having created the context in which the Supreme Court was led to its interpretation of the third prong of the statutory definition of disability in Sutton, Murphy, and Albertsons and would like to see the EEOC take some emphatic steps to try to redirect the jurisprudence on this issue.

Another way in which the EEOC created an unnecessary restriction on the interpretation of the definition of disability was through its imposition of a duration factor. In defining the term "substantially limits" in its Title I regulation, the EEOC provided that the following factors are to be considered, in addition to the "nature and severity of the impairment," in determining whether an individual's major life activity is substantially limited:

(ii) the duration or expected duration of the impairment; and

(iii) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.[119]

In its interpretive guidance, the EEOC elaborated that "temporary, nonchronic impairments of short duration, with little or no long-term or permanent impact, are usually not disabilities."[120] In creating a duration standard and excluding temporary conditions, the EEOC departed from the position of its sister agencies; neither the Department of Justice nor the Department of Transportation ADA regulations include a duration standard.[121]

The language of ADA as proposed and enacted never has contained any limitation or exclusion for "temporary" conditions or any other language imposing or suggesting a duration-of-impairment restriction on conditions that might constitute disabilities under the legislation. Nor does the legislative history of ADA offer any support for such a limitation. The only discussion of impairments that do not substantially limit a major life activity occurs in a sentence in the Senate and the House Education and Labor committee reports on ADA indicating that individuals "with minor, trivial impairments, such as a simple infected finger, are not impaired in a major life activity."[122]

Thus, the EEOC developed the duration requirement and the concept of excluding temporary impairments on its own initiative. The illogical consequences, arbitrariness, proof implications, and other problems with the EEOC's position will not be detailed here, but the critical issue is that the EEOC took upon itself the function of devising a new limitation on ADA protection that Congress had not seen fit to establish.

In its official response to a review draft of this chapter, the EEOC contended that the duration requirement is consistent with both the legislative history and Rehabilitation Act case law, and argued that Congress clearly intended to exclude short-term impairments and that the regulations follow this dictate. Moreover, the Commission declared that it has made clear in the appendix to its regulation and various guidances that impairments do not have to be permanent in order to be considered a "disability" and that intermittent symptoms may still meet the duration requirement. The NCD respectfully disagrees with the EEOC's characterization of both the minuscule prior case law and the legislative history of ADA; while there is a small amount of evidence that Congress intended not to have ADA cover minor and trivial conditions under the first prong of the statutory definition, there is absolutely no suggestion in the congressional debates of excluding otherwise sufficiently serious conditions on the basis of how long they may last. The focus on duration of an impairment is particularly inappropriate, as that factor may not be known with certainty at the time the alleged discrimination occurs and has no bearing on the individual's ability to perform job tasks at the time the alleged discrimination occurs.

In NCD's view, it is highly unfortunate that the agency exercised its discretion to exclude some individuals from the opportunity to challenge acts of discrimination and to erect additional proof obstacles in the path of complainants, instead of using its regulatory authority to foster broad access to the protection afforded by ADA. The result of the narrow, legalistic conception of the definition of disability has been that far too many ADA complainants are overcome by harrowing burdens of proof and severe technicalities and never get their day in court on the issue of the discrimination they claim they were subjected to.

Apart from the definition of disability, similar concerns arise with regard to various other issues. One of these is the EEOC's interpretation of the "direct threat" defense. In the "defenses" section of Title I, ADA states that a covered entity may have a qualification standard requiring "that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace."[123] The statute defines the term "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."[124] In its Title I regulation, the EEOC added substantially to the statutory definition of direct threat by declaring that "Direct threat means a significant risk of substantial harm to the health or safety 'of the individual or others' ...."[125]

While Congress had seen fit to define "direct threat" only in terms of risks to the health or safety of other individuals in the workplace, the EEOC expanded this definition to include risks to the health or safety of the individual himself or herself. In the preamble to the regulation, the EEOC acknowledged that many commentators had "expressed concern that the reference to 'risk to self' would result in direct threat determinations that are based on negative stereotypes and paternalistic views about what is best for individuals with disabilities."[126] Nonetheless, the Commission decided to include "risk to self" in the final regulation.

NCD has serious concerns that the addition of "risk to self" serves as an invitation to employers to get involved in paternalistic conjecturing about perceived dangers to individuals with disabilities, often based on nothing more than employers' ignorance and misconceptions about the particular conditions at issue. Having employers making uninformed judgments that the stress involved in a particular job is too much for an individual with a psychiatric disability, for example, or might cause an individual to commit suicide, is highly contrary to the spirit and language of ADA. The focus on "risk to self" also fosters a perception that individuals with disabilities are often irrational, self-destructive persons.

In the rare situation in which there is objective evidence consistent with current medical evidence,[127] that an individual poses a direct threat to himself or herself, the situation will usually be one in which the individual is not qualified to perform the essential functions of the job and thus can be disallowed from performing the job even without the "direct threat to self" defense. In addition, a person who is a threat to self will frequently also constitute a direct threat to others. But even if a case can be made that there is a need for a threat to self defense in some limited circumstances, the EEOC should leave it to the courts to develop such a defense. The EEOC had no responsibility to invent a new defense to discrimination actions where Congress specifically did not include the defense and easily could have done so had it chosen to.

The EEOC has been largely silent on an important issue related to reasonable accommodation: whether an employee or applicant whom an employer "regards as" having a disability, and who therefore falls within the definition of an individual with a disability under the third prong of the definition, is entitled to reasonable accommodation under ADA. The issue is not mentioned in the Enforcement Guidance on Reasonable Accommodation and Undue Hardship.

Such a position forces individuals whom an employer regards as having a disability and subjects to a negative employment action because of the perceived impairment to resort not to the third prong but rather to the first prong to gain the protection of the statute. At best, this compels an employee unnecessarily to provide medical documentation, including what may be sensitive details about the condition, to verify the existence of a disability that the employer already perceives the worker to have. It also permits the employer to speak out of both sides of its mouth: to say to the worker, I am going to terminate you or deny you a job or take some other negative action toward you, because you have X disability, but I am not going to afford you a reasonable accommodation to permit you to perform the job tasks successfully because you have not proven that your condition is serious enough.

Such a stance once again imposes a formalistic, technical precondition on workers rather than focusing on eliminating discriminatory practices of employers, which is the aim of Title I of ADA. And, once again, such a position creates an exception to a right granted by Congress in the statutory language of ADA: Title I gives employees who meet the definition of an individual with a disability a right to receive reasonable accommodation to permit them to perform essential job tasks. Nowhere in ADA is there any indication that the statutory duty to provide reasonable accommodation is limited to the first prong of the definition or does not apply to persons who fall under the third prong. The EEOC should seek to have Title I implemented to the fullest extent of the law; it should not be carving out exceptions or technical loopholes that Congress did not see fit to create. Nor should it sit by silently and not weigh in on this significant issue.

The Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer-Provided Health Insurance, issued by the EEOC in June 1993, is not as effective as it might have been in advancing the objectives of ADA. The interim guidance differentiates between health insurance distinctions that are "disability-based" and those that are not. In the process of doing so, the guidance generates an analysis that is artificial and highly convoluted and is confusing as to who has to prove what. It veers away from the critical question of whether particular distinctions are discriminatory or not. It does not make clear the simple but pivotal principle that a health insurance distinction that disadvantages individuals with a particular disability or class of disabilities is discriminatory unless it is based on sound and legitimate actuarial data.

The interim guidance indicated that treating mental and physical disabilities differently with regard to health insurance benefits is not discriminatory under ADA because, astoundingly, it does not involve a distinction that is "disability-based." In so doing, the EEOC took the broadest possible interpretation of the Supreme Court's decision in Traynor v. Turnage,[128] and never reached the overriding issue of whether the differential treatment of physical and mental conditions in health insurance is based on sound and legitimate actuarial date. Again, the EEOC missed an opportunity to lead the developing law on an important issue in a positive direction to help eliminate a form of discrimination on the basis of disability. It should be noted that the EEOC has challenged a mental/physical distinction in disability insurance in litigation, construing it to be "disability-based." The agency should have taken a similar position on health insurance benefits.

With regard to the impact of the terms of collective bargaining agreements on ADA obligations, the EEOC has not taken a sufficiently strong stance. For many years, Section 504 regulations have provided that employer obligations under that act are not affected by the terms of any collective bargaining agreement.[129] The legislative history of ADA indicates a congressional intent that this policy should also apply under ADA.[130] In its amicus curiae participation in the case of Eckles v. Consolidated Rail Corp.,[131] the EEOC took the position that the labor union should be required to negotiate a variance to protect workers' ADA rights. This was a split-the-difference stance by the EEOC rather than a principled legal position. There is substantial legal precedent for the notion that collective bargaining agreements should not be permitted to limit the rights of employees to protection from discrimination under a civil rights law.[132] The EEOC should have taken a clear and proactive position that ADA rights are not subject to limitation by the terms of collective bargaining agreements.

In an official response to a review draft of this chapter, the EEOC disagreed with NCD's position. In the Commission's view, the legislative history does not support the view that the reasonable accommodation requirement always takes precedence over the provisions of a collective bargaining agreement (CBA) but indicates, rather, that a conflict between a CBA and a reasonable accommodation is a factor in determining whether undue hardship exists, but that such a conflict is not per se undue hardship. The EEOC believes that its position that unions and management must negotiate a change in the CBA, unless it unduly burdens the expectations of other workers, is consistent with this statement of legislative intent. The National Council on Disability disagrees with the EEOC's interpretation of the legislative history and believes that the terms of collective bargaining agreements should not be permitted to undercut or defeat any of the rights of individuals with disabilities under ADA. NCD considers it appropriate that the terms of a collective bargaining agreement should always be construed within a limitation that they may not violate federal law, including, in particular, ADA.

Some very effective uses by the EEOC of subregulatory guidance are described in the previous section. Another noteworthy example is the March 1999 Enforcement Guidance on Reasonable Accommodation and Undue Hardship; apart from the silence on the third prong of the definition of disability, the guidance is generally a constructive and helpful document. In particular, it helps to clarify that working at home can be an appropriate accommodation in the right circumstances and helps to put the problematic, maverick judicial precedent of Vande Zande v. Wisc. Dept. of Admin.[133] into a more proper context. In addition, the guidance contains a number of other first impression policy positions, including the following:

• In a detailed discussion of the kind of documentation that can be required to support a request for reasonable accommodation, the guidance emphasized that an employer cannot require an individual to see the employer's doctor where the individual submits sufficient documentation (pp. 12-17).
• The Commission stated that employers must take an active role in the reasonable accommodation process, including identifying vacancies (pp. 11-12, pp. 42-43)
• The Commission emphasized that employers must respond swiftly to requests for reasonable accommodation (p. 19).
• The Commission stated that no-fault leave policies must be modified for individuals with disabilities who need additional leave, absent undue hardship (p. 27).
• The Commission stated that employees cannot be penalized for work missed during leave that is taken as a reasonable accommodation (pp. 28-29).
• With respect to reassignment, the Commission stated that, while an employee with a disability must be qualified for the new position, she or he need not be the best qualified person in order to obtain it (p. 38, p. 34).[134]
• The Commission stated that probationary employees may be entitled to reassignment in some circumstances (p. 40).
• The Commission stated that reassignment is not limited to a specific facility, etc. (p. 42).
• The Commission clarified that reasonable accommodation must be provided to address the side effects of medication or treatment related to disability (p. 50).
• The Commission stated that the lack of a fixed date of return from leave does not automatically pose an undue hardship (pp. 57-58).

Each of these represents a significant, positive policy stance by the EEOC.

The EEOC has also shown that it can use subsequent subregulatory guidances to correct problems precipitated in earlier ones. Thus, the interim Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations, issued on May 19, 1994, and described in the previous section, included a convoluted and confusing discussion of what employers were permitted to ask about a physical or mental impairment that was visible or otherwise legitimately known to them. The final guidance, issued in October 1995, contains a much more definitive and cogent discussion of the issue.

There are many more areas, however, in which subregulatory guidance is needed, especially to help employers fulfill their obligations under the act with regard to particular areas and issues. Additional guidance addressing certain areas of application of the reasonable accommodation requirement could be very helpful; technological accommodations, accommodations regarding transportation and parking, and additional clarification regarding working at home are some areas in which such guidance would be valuable.

An especially critical area in which employers need additional assistance is in identifying and hiring more applicants with disabilities. Employment rates of individuals with disabilities continue to be horrendously low. In the current economy, many employers are actively seeking qualified workers but are nonetheless underemploying potential workers with disabilities. Moreover, despite the requirements of ADA, applicants for employment who have disabilities of which employers are aware often have no way of knowing or proving whether they were subjected to discrimination when they do not get jobs they apply for; for such individuals, discrimination complaint procedures are of little avail. To address this situation, the EEOC should provide employers with additional guidance about barriers in the application and hiring process and assistance in developing application and hiring procedures that are free from such barriers. In addition, it would be helpful for EEOC's Web site and publications to include references and links to information for employers about networks providing access to potential workers with disabilities, resources available in particular states (including those provided by state government agencies), and such resources as the résumé bank of the President's Committee on the Employment of People with Disabilities.

The EEOC should also make more proactive use of subregulatory guidance prompted by developments in the courts or otherwise. Sometimes it has done so; it followed up certain decisions of the United States Supreme Court with explanatory guidances.[135] It did not, however, issue a guidance with regard to the Supreme Court's decision in Bragdon v. Abbott,[136] an important decision in which the Court manifested a receptive interpretation of major life activities other than working, although the Commission did eventually include an interpretation of some aspects of the Bragdon decision in its July 1999 Instructions for Field Offices Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified." The EEOC could have demonstrated more leadership in addressing various types of barriers to employment, such as health and safety standards imposed with regard to jobs in the transportation field and other preconditions to specific types of employment.

The guidance on psychiatric disabilities provides a unusual example of the EEOC issuing a guidance that is linked to a particular category of disability. The Commission is reluctant to frame its guidances as focusing on specific disabilities and thus suggesting that ADA treats different disabilities differently. On the contrary, the EEOC believes the legal requirements and analyses should be the same, regardless of the type of disability. If the EEOC began issuing guidance on individual disabilities, it believes it would then be pressured to do so for every condition. In its view, such guidance would be repetitive and serve little purpose in increasing employer or judicial understanding of ADA. The Commission explains that it chose to issue the Guidance on Psychiatric Disabilities because (1) many employers and persons with psychiatric disabilities were unaware that ADA protected people with such disabilities; (2) there is pervasive stigma attached to psychiatric disabilities; and (3) some unique legal issues are raised by the application of ADA to psychiatric disabilities.

The National Council on Disability respects the EEOC's position that the legal principles applicable under ADA are not disability-specific and certainly does not believe that the EEOC should issue a separate guidance for each type of disability. Nonetheless, there are certain clusters of disabilities--for example, nonpsychiatric mental disabilities such as learning and cognitive disabilities--for which such guidance or technical assistance documents are needed. Regarding the example of learning and cognitive disabilities, these affect a relatively large number of people; they are not understood by many employers; and they often raise substantial common legal issues, particularly with regard to their identification in the employment context, the appropriateness of and need for documentation of the conditions, and techniques for accommodating them. Moreover, NCD believes that additional policy clarification may on rare occasions be necessary with regard to more narrow categories of disability or perhaps even a particular disability. If, for example, the Centers for Disease Control (CDC) had not issued various documents outlining appropriate workplace procedures relating to HIV protection, it would have been quite appropriate and prudent for the EEOC to have taken a leadership role in issuing a policy document addressing this issue (including appropriate accommodations and the application of ADA's "direct threat" standard).

NCD recognizes that the EEOC has a range of possible ways of providing information and direction with regard to disabilities and categories of disabilities. These include the use of disability-specific examples in policy and technical assistance documents (which the EEOC has done with admirable frequency), devoting all or a portion of technical assistance documents to issues raised by a particular disability or category of disability, and addressing such issues in all or a portion of a policy guidance. In most cases, which of these means is employed is not critical as long as the information and direction are provided. But it is necessary that the EEOC systematically review its policy and technical assistance documents to determine what disabilities and categories of disability are insufficiently represented and addressed, and develop additional technical assistance and policy instruments to address unmet needs. As but two examples, the workplace implications of multiple chemical sensitivity and traumatic brain injuries have not received adequate attention in EEOC policy and technical assistance documents.

Likewise, many employers could use additional instruction regarding barrier removal and accommodations for people with sensory impairments, particularly impaired hearing and vision, including direction to employers on how to design universally accessible technologies for their employees. In an official response to a review draft of this chapter, the EEOC suggested that these issues are more appropriately addressed by the Architectural and Transportation Barriers Compliance Board (Access Board), which is issuing guidance on these issues pursuant to Section 508 of the Rehabilitation Act. The EEOC also noted that the attorney general has released a report in which she asks that the president direct the Department of Justice, in consultation with the EEOC, the Office of Personnel Management, and the Access Board, to issue guidance explaining the relationship of Sections 501, 504, and 508 of the Rehabilitation Act. The EEOC suggests that this guidance would probably address at least some of the concerns raised in the NCD draft report.

NCD believes, however, that the EEOC has a particular responsibility to bring necessary information to the attention of employers, many of whom will have little familiarity with or likelihood of monitoring the issuances of the Access Board or the Department of Justice's reports regarding Section 508 and other provisions of the Rehabilitation Act. Even if Access Board guidelines address workplace settings, the EEOC should, as part of its technical assistance function, summarize relevant provisions or at least include specific references to the appropriate Access Board materials in EEOC documents, to direct employers to the appropriate information.

The EEOC also points out that its Enforcement Guidance on Reasonable Accommodation and Undue Hardship contains numerous examples of technological accommodations. These examples include the following:

• Example B in the answer to question 6 (on documenting disability and the need for reasonable accommodation) discusses an individual with a learning disability who needs a laptop computer in order to take notes at meetings.
• Example B in the answer to question 10 (concerning an employer's obligation to provide accommodations without unreasonable delay) involves a person who is blind and needs adaptive equipment for a computer, an extremely important type of technological accommodation.
• Question 14 focuses entirely on the issue of providing accommodations necessary to make information communicated in the workplace accessible. Example A deals with an unfortunately all-too-common problem that people with disabilities face when technology in the workplace changes. The example emphasizes that an employer must provide new adaptive computer equipment for someone whose current adaptive equipment does not work with the employer's "upgraded" system. Example B involves the use of electronic mail for certain types of communications with persons who have hearing impairments.
• Example B in Question 38 illustrates an employer's obligation to provide accommodations for the limitations of conditions arising from an underlying disability. The example concerns an individual with diabetes who develops retinopathy and, as a result, needs a computer program that will enlarge the size of text on the screen.

The National Council on Disability recognizes and applauds these and other attempts by the EEOC to address technology issues. It continues to believe, however, that as the nation's workplaces move rapidly into the technology and telecommunications age, it would greatly advance ADA enforcement for the EEOC to issue a guidance or a separate technical assistance document that presents, in a single place, information and direction about the application of ADA requirements to workplace technology.

In short, subregulatory guidance and technical assistance documents have proven to be a very useful tool for facilitating ADA implementation. At times, the EEOC has made very positive use of policy guidances. There is still, however, plenty of room for more creative, proactive, and frequent issuance of such guidances and of additional technical assistance materials.

In its official response to a review draft of this chapter, the EEOC strongly objected to the tone of the discussion of its policy-making activities in the review draft and declared that the discussion did not serve EEOC's and the National Council on Disability's collective interest in more effective enforcement of ADA. The EEOC indicated its belief that

[a]s currently written, the discussion appears to go beyond a statement of policy differences, and instead suggests that the Commission has intentionally disregarded the interests of people with disabilities and deliberately undermined enforcement of ADA. The draft chapter strongly suggests that the Commission has reached out to find obstacles to enforcement, that it has addressed policy issues in an unprincipled manner, and that it has essentially caused the Sutton decision. We strongly disagree with these suggestions. Furthermore, such an intemperate discussion does not advance the government's enforcement interests.[137]

In response to other, specific suggestions of the EEOC, NCD made revisions to the section and added materials to section 3.9.1 describing the considerable accomplishments of the EEOC. NCD regrets any impression that the review draft vilified the Commission or its staff or that NCD was attributing intentional misconduct or unprincipled performance to the EEOC in its policy-making activities. NCD recognizes that the EEOC has been responsible for a number of very positive developments and has many accomplishments to be proud of. NCD is also very aware that many of the policies of EEOC that NCD takes issue with in this report were established many years ago and were not the product of the current Commission. Nor does NCD doubt that the policy positions criticized in this section, whenever they were espoused, were adopted in good faith and with positive intentions.

It is NCD's view, however, that many of these policy stances by the EEOC were and are misguided and have resulted in substantial harm to persons with disabilities who have encountered employment discrimination. And while the current Commission was not responsible for developing most of the policies complained of, it must bear some responsibility for not having repudiated them and setting a new, more positive course. Further, while it is true that the EEOC did not "cause" the Supreme Court's decisions in the Sutton, Murphy, and Albertsons cases, nor that it desired such outcomes, it is also true that standards and analysis articulated and repeated by the EEOC have affected countless lower court decisions, and EEOC's approach, coupled with its silence or lack of clarity on some other critical conceptual issues, created an analytical context within which the Supreme Court's restrictive interpretation of the definition of disability was not only possible but a reasonably probable outcome. The restrictive approach to the definition of disability that the EEOC helped to spawn ultimately proved more potent than the EEOC's analysis on the specific issue of mitigating measures.

Far from thinking that the EEOC wanted the Sutton, Murphy, and Albertsons cases to turn out as they did, NCD is cognizant that the EEOC's litigative efforts have been drastically and negatively affected by these decisions, as have individual Title I plaintiffs and their advocates in pursuing their cases. NCD would like EEOC to take dynamic and concrete steps, described in the following recommendations, to try to redirect the course of jurisprudence in this area and to have ADA become the powerful engine for eliminating discrimination that it was intended to be and not stay bogged down in technical restrictions as to how provably severely impaired a person must be in order to be eligible for the protection of ADA.

3.9.3 Findings and Recommendations

Finding 26: The EEOC has taken strong, timely, and appropriate policy positions on various issues.

Examples include the following:

• Providing in the interpretive guidance for its Title I regulation that whether an impairment exists or substantially limits a major life activity should be determined without regard to mitigating measures such as medicines or assistive or prosthetic devices.
• Including, in the guidance memorandum on the definition of disability, as an example included within the "regarded as" prong of the definition of disability, a person with genetic predisposition to disease or disability.
• Issuing its groundbreaking and helpful Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities.
• Multifaceted efforts, including enforcement guidance and litigation, related to the issue of judicial estoppel.
• Taking, with only a few exceptions, sound policy positions supported by cogent analysis in its litigation activities.

Finding 27: The accessible, user-friendly style of the EEOC's enforcement guidances, with numerous concrete examples, provides an excellent model for all ADA guidance documents.

Recommendation 34: The other ADA enforcement agencies should seek to employ the readable, example-filled, accessible style of EEOC's enforcement guidances.

Finding 28: The EEOC's performance of its policy leadership role regarding the enforcement of Title I of ADA has fallen short in a number of instances.

The EEOC has often not provided the leadership one would expect of the agency statutorily designated to oversee the implementation of a major new civil rights law. Instead of trying to vigorously spur ADA compliance to the fullest extent of the law, the EEOC has too often created technical exceptions to ADA requirements and narrowly restricted the application of Title I. It has sometimes seemed more anxious to reassure employers or to earn their good will than to root out tenaciously the discrimination in employment that ADA condemns as unlawful.

Recommendation 35: The EEOC should take a dynamic leadership role in ensuring the vigorous, full, and timely implementation of Title I requirements in complete fulfillment of the spirit and language of ADA and should adopt proactive positions that will further to the greatest possible extent the elimination of discrimination prohibited by ADA and the achievement for American workers and job-seekers with disabilities of the "equality of opportunity, full participation, independent living, and economic self-sufficiency" that Congress declared was ADA's purpose.

The EEOC should review its current policy positions and revise those that are not consistent with ADA's general purposes and the specific language and spirit of Title I's provisions. It should also engage in strategic planning to identify and "get ahead of the curve" on current and upcoming issues. It should not create or maintain any restrictions on ADA protection or on the rights afforded employees or job applicants that are not imposed by the statute itself.

Finding 29: The EEOC has repeatedly taken unnecessarily restrictive positions regarding the definition of "disability" and has erected obstructions that have impeded persons who seek to claim the protection of ADA.

The EEOC developed class-of-jobs-or-broad-range-of-jobs and single-particular-job-is-not-sufficient criteria not found in the statutory language of ADA and remained silent when some courts started applying these criteria under the second and third prongs of the definition in addition to the first. While the EEOC made some efforts to ameliorate the harshness of its stance, it never corrected the central defect, that its criteria require complainants to prove what was in the mind of an employer--an onerous evidentiary burden. The EEOC's confined, technical approach to the definition of disability helped to create a judicial climate that culminated in the decisions of the Supreme Court in the Sutton, Murphy, and Kirkingburg cases, restrictively construing the definition.

The EEOC also imposed a duration limitation on ADA Title I protection that Congress had not seen fit to establish and that neither the Department of Transportation nor the Department of Justice found necessary.

Recommendation 36: The EEOC should reorient its policy positions on the interpretation of the definition of disability and take clear and explicit actions to mitigate the impact of its previous restrictive positions and to promote, to the maximum extent possible, an inclusive interpretation of the scope of ADA protection to extend to all persons whom an employer disadvantages because they have a physical or mental impairment. At a minimum, the EEOC should

• Issue subregulatory guidance clarifying that the third prong of the definition of individual with a disability includes any American who suffers discrimination on the basis of physical or mental impairment, even if that discrimination occurs on only one occasion in connection with one particular job with a particular employer, and explaining that the portions of the Sutton, Murphy, and Kirkingburg decisions interpreting the third prong of the definition represented an uninformed misapplication of first prong analysis to the third prong.
• Issue subregulatory guidance explaining the Sutton, Murphy, and Kirkingburg decisions and seeking to confine the impact of these rulings to their particular factual contexts.
• Pursue in litigation and in policy activities a proactive and concerted strategy of distinguishing the Sutton, Murphy, and Kirkingburg rulings as much as possible from other factual situations, with the goal of confining the impact of these rulings to their peculiar facts.
• Issue subregulatory guidance elaborating on the Bragdon v. Abbott decision and stressing its broad, nontechnical interpretation of substantial limitations with regard to major life activities other than working.
• Issue, as part of its responsibility to review the Title I regulation on the 10-year anniversary of ADA, a supplemental Title I regulation to (1) remove the duration limitation that its original regulation inserted as a standard in the determination of substantial limitation, and make it clear that a condition that an employer treats as substantial satisfies the definition no matter how temporary it may prove to be; and (2) promote an inclusive interpretation of the definition of disability and, in particular, the third prong of the definition.

In the first of the specifically recommended guidances, the EEOC should point out that the portions of Sutton, Murphy, and Kirkingburg addressing the "regarded as" prong were based on misimpressions of previous EEOC guidance rather than substantive legal analysis by the Supreme Court, and should articulate the broad interpretation of the third prong that Congress intended. The EEOC should expressly repudiate any application of the class-of-jobs-or-broad-range-of-jobs and the single-particular-job-is-not-sufficient criteria under the third prong of the definition and clarify that an employer's action that excludes or significantly disadvantages an applicant or employee on the grounds of physical or mental impairment is sufficient to constitute the employer as having "regarded" the applicant or employee as having a disability.

In its official response to a review draft of this chapter, the EEOC reported that it has already taken or is taking steps consistent with the second, third, and fourth of the bulleted specifically recommended actions. Specifically, the EEOC states that it issued the field instructions several weeks after the Sutton, Murphy, and Kirkingburg decisions were issued in order to analyze their impact and suggest ways that individuals can still show a "disability." The EEOC also observes that the field instructions emphasized the need to expand the list of major life activities, consistent with the Supreme Court's interpretation of "major life activities" in Bragdon v. Abbott. The EEOC declares that it is closely monitoring case law developments and working to pursue appropriate litigation regarding these issues and also is considering whether further guidance would be appropriate and helpful. Since the field instructions were not subject to a formal vote of the Commission and were not intended as a policy-making vehicle, the National Council on Disability recommends that the EEOC issue guidance documents to address these issues in a forceful, dynamic, and forward-looking manner.

Finding 30: The EEOC added a risk-of-harm-to-self component to the "direct threat" defense; Congress had specifically limited the defense to risks to "others."

Such a statutorily unwarranted expansion of "direct threat" invites employers to engage in paternalistic conjecturing about perceived dangers to individuals with disabilities, often based on nothing more than employers' ignorance and misconceptions about the particular conditions at issue. It also arouses fears that workers with disabilities are irrational, self-destructive, and unable to take care of themselves.

Recommendation 37: The EEOC should issue, as part of its responsibility to review the Title I regulation on the 10-year anniversary of ADA, a supplemental Title I regulation to remove the risk-of-harm-to-self component from the direct threat defense, with interpretive guidance to explain why such a component is problematic and generally unnecessary.

To the extent that a particular set of facts may suggest the need for recognizing such a component, the EEOC should leave it to the courts to devise exceptions to the statutory standard that may be deemed necessary in extreme circumstances.

Finding 31: The EEOC has largely remained silent on whether employers are required to provide reasonable accommodations for workers who satisfy the third prong of the definition of disability; that is, they are regarded by the employer as having a substantially limiting impairment.

Title I of ADA gives employees who meet the definition of individual with a disability a right to receive reasonable accommodations to permit them to perform essential job tasks and does not indicate that the duty to provide reasonable accommodations is limited to the first prong of the definition or does not apply to persons who fall under the third prong.

Recommendation 38: The EEOC should clearly and forcefully declare that individuals who satisfy any of the three prongs of the "individual with a disability" definition are entitled to reasonable accommodations.

Finding 32: The EEOC's interim enforcement guidance on Disability-Based Distinctions in Employer-Provided Health Insurance presents an analysis that is convoluted and confusing, particularly as to who has to prove what, and does not make it clear that a health insurance distinction that disadvantages individuals with a particular disability or class of disabilities is discriminatory unless it is based on sound and legitimate actuarial data.

The interim guidance takes an unnecessarily broad view of the ruling of the Supreme Court in Traynor v. Turnage and does not confront the critical issue of whether differences in treatment of physical and mental conditions in health insurance are or are not based on up-to-date, sound, and legitimate actuarial date. In general, the EEOC has not been as active and clear as it should be regarding the implications of ADA for the entire area of insurance benefits, including life, accident, disability, liability, and other types of insurance programs, in addition to health insurance.

Recommendation 39: The EEOC should issue enforcement guidance that takes a clear position that any disadvantageous, differential treatment of individuals based on disability with regard to any type of insurance benefit that is not supported by sound, current, and legitimate actuarial data is prohibited by ADA.

This principle should be applicable to life insurance, accident insurance, disability insurance, liability insurance, health insurance, and other types of insurance. It should apply to differences in insurance programs' treatment of physical conditions and mental conditions, as well as to other differences based on disability.

Finding 33: The EEOC has not sufficiently addressed the issue of medical standards employed to make insurance determinations, nor has it examined the actuarial evidence insurance companies use to support such standards.

Insurance companies support their standards with actuarial data that are not equally available to complainants for scrutiny and potential challenge.

Recommendation 40: The EEOC should initiate a project to determine what medical standards are being applied by insurance companies; identify what actuarial data and information the medical standards insurance companies assert to justify the standards; assess how accurate, timely, and relevant the asserted justifying data are; and develop independent data and information to serve as a comparative yardstick.

Finding 34: Not enough is known about the medical standards and data employers rely on in making hiring, rehiring, and return-to-work decisions.

Recommendation 41: The EEOC should initiate a project to determine what medical standards are being applied by employers in making hiring, rehiring, and return-to-work decisions, and to assess the reliability and relevance of such standards.

Finding 35: The EEOC has taken a compromising position that labor unions should be required to negotiate variances to protect workers' ADA rights instead of a principled legal position that ADA rights are not subject to limitation by the terms of collective bargaining agreements.

Recommendation 42: The EEOC should take a clear position that the rights and procedures guaranteed to applicants and workers under ADA are not subject to elimination or limitation by the terms of collective bargaining agreements.

Finding 36: The EEOC has shown that subregulatory guidance can be used very effectively to promote the implementation of Title I requirements; much more use of such guidance is needed.

Recommendation 43: The EEOC should make considerably more use of subregulatory guidance on a proactive basis; it should regularly identify issues and areas upon which additional direction and information are needed, and then should issue technical assistance materials or, as appropriate, subregulatory guidance providing such direction and information.

Additional guidance or technical assistance materials are needed to: (1) address particular areas of application of the reasonable accommodation requirement, such as technological accommodations, accommodations regarding transportation and parking, and additional clarification regarding working at home; (2) react to significant developments in the courts or elsewhere; (3) provide needed information and advice concerning particular categories of disabilities; and (4) provide additional direction regarding barrier removal and accommodations for people with sensory impairments, particularly impaired hearing and vision, including instruction to employers about designing universally accessible technologies. The EEOC may be able to adequately address some such issues through technical assistance materials and may not need to issue a guidance. The Commission should, however, systematically identify the various areas in which more direction and information are needed and then take timely action, by issuing guidances or producing technical assistance materials, to address the needs.

Finding 37: The EEOC has not engaged in any proactive strategies to address discrimination in the hiring process, a problem that charge processing does not address well. There is a critical need for assistance for employers in identifying and hiring qualified applicants with disabilities; employment rates of people with disabilities continue to be dismal.

Recommendation 44: The EEOC should place a priority on addressing problems faced by potential workers with disabilities in entering the workforce and securing appropriate jobs and should provide employers with guidance on how to eliminate barriers to people with disabilities in the application and hiring processes.

The EEOC should provide a variety of guidance and information to employers with regard to eliminating barriers in identifying and hiring applicants with disabilities. The EEOC should develop and implement strategies for addressing discrimination in the application and hiring processes. Among these strategies, the EEOC should consider

• Targeted monitoring and enforcement efforts directed at employers who appear to engage in a pattern or practice of hiring discrimination.
• Compliance reviews and monitoring of employer job application practices.
• Assessment of hiring policies and standards, including medical standards, in targeted industries or professions.
• Use of job applicant testers.

The EEOC's Web site and publications should include references and links to networks, information, and resources for employers to increase their access to potential workers with disabilities.

Recommendation 45: As the EEOC considers future amendments to its National Enforcement Plan, it should place a priority on facilitating the filing and handling of charges by individuals with particular categories of disabilities for whom EEOC litigation is occurring at a rate substantially under that expected in relation to their proportion of the population

Some people with particular types of disabilities--mental retardation and other cognitive impairments, for example--may have difficulties recognizing violations of ADA, filing charges, or convincing the EEOC of the need to pursue court action. The EEOC should consider whether these or other categories of disabilities are being insufficiently addressed in the courts and other forums for resolving ADA complaints and should take steps to facilitate increased EEOC activity on behalf of individuals with such disabilities. In its official response to a review draft of this chapter, the EEOC indicated its agreement with increasing outreach efforts toward all individuals with disabilities, including those who may have difficulty recognizing that their rights may have been violated, but disagrees that outreach should target individuals with specific disabilities. The National Council on Disability considers the EEOC's articulation of its position to miss the point of the recommendation; if enforcement of Title I is not sufficiently addressing discrimination against people with certain types of disabilities because they have difficulty, because of their particular disabilities, recognizing a violation or in knowing how to file a complaint to assert their rights, a targeted response is necessary to address the gap in enforcement. A generic response, as the EEOC articulates its position, is nearly equivalent to no response at all. The EEOC should examine court decisions and its litigation docket to identify categories types of employment discrimination--whether against certain subgroups of the class of individuals with disabilities or involving particular categories of jobs or industries--in which the enforcement process does not appear to be adequately addressing the discrimination problems that exist. The EEOC should then take corrective action that is specifically focused to correct the inadequacies identified, including, when needed, outreach to workers and applicants with particular types of disabilities.

3.10 Resources and Enforcement Limitations

As with other areas of EEOC responsibility, its activities for the enforcement of ADA occur within and are affected by limitations on the financial and personnel resources it has available for such enforcement activities. A major purpose of the EEOC's National Enforcement Plan is formulating a "strategic enforcement strategy" to enable it to use its limited enforcement resources proactively for greatest effect.[138] Among the areas in which EEOC enforcement of ADA has been deficient or less than optimal, many, although certainly not all, are related in some degree to limitations in the EEOC's fiscal and personnel resources for ADA activities.

Various aspects of the EEOC's ADA enforcement efforts--including charge processing, investigation, litigation, maintenance of its database, use of mediation for alternative dispute resolution,[139] and, in particular ADA training programs--are influenced by resource limitations. With regard to charge processing, for example, the EEOC's approach of categorizing charges as A, B, or C, derived from a recommendation of the Charge Processing Task Force, results in certain cases (Category B, which initially appear to have some merit, but need further evidence to determine whether a cause finding is likely) only being investigated to the extent that resources permit. This results in some cases that would have proven meritorious and been reclassified as Category A if they had been investigated not being investigated because sufficient resources were not available. This three-category approach was devised to address the serious problem of backlogged charges that had plagued the EEOC from the beginning of its ADA enforcement responsibility.

The EEOC's ability to provide needed training to its employees, FEPAs, and contractors engaged in ADA enforcement activities has similarly been hampered by insufficient funding for training efforts. The Joint Task Force report explicitly acknowledged that the EEOC's training needs far exceed its resources. Although funding levels have been increased, they still do not adequately provide for sufficient ADA training. For example, although the FEPAs handle approximately 35 percent of ADA charges, many FEPA staff members handling ADA charges have not received sufficient training on the content, standards, and unique features of ADA. The complexities and ongoing development of ADA standards and analysis necessitate that even those enforcement personnel who may have received adequate initial training need continuing training on a periodic basis. Likewise, resource limitations have contributed to deficits in the EEOC's technical assistance activities, including particularly technical assistance for members of the disability community. Resource limitations contribute to the EEOC's failure to provide sufficient technical assistance targeted to specific groups, such as those from diverse cultural backgrounds, rural residents, and youth with disabilities. Resource restrictions may also help to explain the insufficiency of the EEOC's efforts to explain ADA to the public in a positive manner.

3.10.1 Findings and Recommendations

Finding 38: A shortage of fiscal and personnel resources has played a role in many of the shortcomings of EEOC ADA enforcement.

The resource limitations factor should not be overplayed. Fiscal and personnel limits are certainly not the sole problem. Prior recommendations identify numerous improvements that the EEOC could make, irrespective of additions to its funding. Nonetheless, the enforcement of ADA is a highly important and very resource-intensive endeavor and cannot be accomplished without an adequate infusion of resources, considerably beyond what has been provided to date.

Finding 39: Despite substantially increased EEOC responsibilities associated with ADA enforcement beginning in 1992, the EEOC did not see an addition to its budget in real dollars until FY 1999; even with recent budget increases, the EEOC's budget is still not sufficient to support a full array of strong and comprehensive ADA enforcement activities.

The over-15-percent budget increase the EEOC received in 1999 was long overdue and much needed. It enabled a number of improvements and positive initiatives in ADA enforcement activities. To conduct an adequate and effective ADA enforcement program that fully meets the statutory responsibilities assigned to it, however, the EEOC requires still more in resources.

Recommendation 46: Congress should approve President Clinton's request for a 14 percent increase in the annual budget of the EEOC, and the EEOC should apply this increase proportionately to increase resources devoted to ADA enforcement. In conjunction with this funding increase, Congress should attach conditions on how the increased resources shall be used, including placing a priority on the following ADA enforcement activities:

• investigating and processing additional charges
• increasing ADA training
• expanding and improving technical assistance
• updating and maintaining the CDS database
• overseeing and evaluating mediation efforts
• making more culturally competent training and public education materials available, and
• pursuing more strategic litigation, including class action suits.

President Clinton proposed the increased civil rights funding during a speech on Martin Luther King, Jr.'s birthday on January 15, 2000, and referred to it again during his State of the Union message on January 27, 2000. The receipt of such funding should enable the EEOC to accomplish many of the objectives whose nonachievement is related to insufficient resources. In particular, with regard to its ADA training responsibilities, the EEOC should increase its training for ADA enforcement staff members of the FEPAs and, at such time as resources permit training of all such staff members, the EEOC should require, as a precondition of its contractual funding to FEPAs, that all staff members of FEPAs who will be called upon to handle ADA matters must attend such training.

Endnotes

[1] EEOC Strategic Plan, September, 1997, p. 33.

[2] EEOC, Strat Plan egic, op. cit., p. 34.

[3] U.S. Civil Rights Commission, Helping Employers Comply with the ADA, September, 1998, p. 41.

[4] See EEOC, Directives Transmittal: Organization, Mission, and Functions, EEOC Notice 110.002, May 11, 1997.

[5] Directives Transmittal, op. cit.

[6] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 60, interviews cited in notes 213, 214, 215, 216, 216.

[7] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 58, row 2.

[8] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 59.

[9] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 59.

[10] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 60.

[11] EEOC, Budget and Staffing, at www.eeoc.gov/budget.html, last update, December 10, 1998.

[12] In 1998, EEOC staff data indicate that approximately 6.7 percent of the EEOC managerial staff reported a disability. Because employees are not obligated to report a disability, this may underestimate the percentage.

[13] EEOC, Budget and Staffing, at www.eeoc.gov/budget.html, last update, December 10, 1998.

[14] EEOC, Charge Processing Task Force, report, March 1995.

[15] EEOC, Priority Charge Handling Procedures, June 1995.

[16] EEOC, EEOC's State and Local Program and Relationship with Fair Employment Practice Agencies, March 15, 1995.

[17] EEOC, EEOC's State and Local Program and Relationship with Fair Employment Practice Agencies.

[18] EEOC, Task Force on Alternative Dispute Resolution, March 1995.

[19] EEOC, National Enforcement Plan, February 1996, p. 2.

[20] EEOC, National Enforcement Plan, p. 3.

[21] These are "Claims raising unresolved questions under the Americans with Disabilities Act regarding the meaning of 'reasonable accommodation' and the term 'qualified individual with a disability,' as well as the defenses of 'undue hardship' and 'direct threat;' claims presenting questions regarding the interpretation of the prohibition of disparate impact discrimination under the Civil Rights Act of 1991, the Age Discrimination in Employment Act, and the Americans with Disabilities Act claims based on the intersection of two or more prohibited bases of discrimination (e.g., discrimination against women of color, older women, or persons from culturally diverse backgrounds with disabilities); claims presenting unresolved issues regarding the provision of employee benefits, including claims arising under Title I of the Older Workers Benefits Protection Act and the Americans with Disabilities Act." EEOC, National Enforcement Plan, p. 5-6.

[22] U.S. Civil Rights Commission, Helping Employers Comply with the ADA p. 53, interviews cited in notes 155, 156, 157, 158.

[23] EEOC, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998.

[24] EEOC, "Commission Hears Recommendations from Civil Rights Groups on Agency Priorities for 1999," press release, January 27, 1999, at www.eeoc.gov/press/1-2799.html, last update February 3, 1999.

[25] U.S. Commission on Civil Rights, Helping Employers Comply with the ADA, p. 67. This report also provides a more detailed description of the procedure and a summary of the comments received.

[26] U.S. Commission on Civil Rights, Helping Employers Comply with the ADA, p. 70.

[27] EEOC, Priority Charge Handling Procedures, June 1995.

[28] U.S. Civil Rights Commission, Helping Employers Comply with the ADA, p. 190-91.

[29] EEOC, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998, p. 35.

[30] U.S. Civil Rights Commission, Helping Employers Comply with the ADA, p. 192.

[31] 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999).

[32] 119 S.Ct. 2139 (1999).

[33] 119 S.Ct. 2133 (1999).

[34] 119 S.Ct. 2133 (1999).

[35] EEOC, Charge Processing Task Force, p. 19.

[36] EEOC, Charge Processing Task Force, p. 4-5.

[37] Charge Processing Task Force, p. 4-5

[38] Charge Processing Task Force, p. 8

[39] U.S. Commission on Civil Rights, Helping Employers Comply with the ADA, p. 195.

[40] EEOC, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998, p. 5.

[41] EEOC, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998, p. 17.

[42] EEOC, EEOC's State and Local Program and Relationship with Fair Employment Practice Agencies, 1995, p. VIII-6.

[43] EEOC, Priority Charge Handling Procedures, p. 11.

[44] Interview with Leo Sanchez, August 26, 1998.

[45] Nancy Mudrick, "Employment Discrimination Laws for Disability: Utilization and Outcome, The Annals of the American Academy of Political and Social Science, W.G. Johnson (special editor), v. 549, January 1997.

[46] EEOC, Commission Hears Recommendations from Civil Rights Groups on Agency Priorities for 1999, press release, January 27, 1999, found at www.eeoc.gov/press/1-27-99.html.

[47] The expanded effort was marked by a joint press release from Vice President Al Gore and EEOC Chairwoman Ida L. Castro. The text of the press release, a question-and-answer explanation of mediation, and other information about the EEOC mediation program were put on the EEOC Web site on February 11, 1999, www.eeoc.gov/mediate/index.html.

[48] EEOC, Task Force on Alternative Dispute Resolution, March 1995; EEOC, Annual Performance Plan Fiscal Year 1999, Congressional Transmittal, February 1998 at www.eeoc.gov/plan/app.html.; and EEOC, EEOC Enforcement Activities, at www.eeoc.gov/enforce.html, last update, December 10, 1998.

[49] These statistics are based upon summary data provided by the EEOC.

[50] U.S. Commission on Civil Rights, Helping Employers Comply with the ADA, p. 205.

[51] This information is available at www.eeoc.gov/mediate/history.html.

[52] U.S. Department of Labor, Office of Federal Contract Compliance Programs, Cases Involving Equal Employment Opportunities for Individuals with Disabilities, no date.

[53] Annual Performance Plan Fiscal Year 1999, Congressional Transmittal, February 1998 at www.eeoc.gov/plan/app.html, Goal I.A., p. 2.

[54] Presentation by Sherry Powers, Office of the General Counsel, EEOC, to Interagency Subcommittee on Disability Statistics, December 9, 1998.

[55] 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999).

[56] 119 S.Ct. 2139 (1999).

[57] 119 S.Ct. 2133 (1999).

[58] 119 S.Ct. 2162 (1999).

[59] 118 S.Ct. 2196 (1998).

[60] The percentages are rounded off. Due to variations in the total number of ADA cases filed, the actual number of class action suits fell slightly in 1999 to 13 cases, down from 14 in 1997 and 15 in 1998. The EEOC explains the drop of total ADA suits filed from 69 in 1997 and 73 in 1998 to 45 in 1999 as follows: " In the aftermath of the Supreme Court's decisions in Sutton and related cases, the EEOC undertook an in-depth analysis of its ADA litigation docket, including cases pending filing, and restructured its cases to meet the additional evidentiary requirements imposed by those Supreme Court decisions. This process slowed down the filing of new ADA cases in fiscal year 1999." Memorandum of Bill White, acting director, Office of Communication and Legislative Affairs, EEOC, May 4, 2000, p. 3.

[61] See section 3.1.

[62] See section 3.3.3.

[63] See id. and section 3.5.

[64] This field-office-initiated training is described in the report of the U.S. Civil Rights Commission, Helping Employers Comply with the ADA, p. 64.

[65] EEOC, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998, p. 21.

[66] U.S. Civil Rights Commission, Helping Employers Comply with the ADA, p. 64-65.

[67] EEOC, Office of Legal Counsel, FY1996 Annual Report, p. 13-14.

[68] U.S. Commission on Civil Rights, Helping Employers Comply with the ADA, pp. 232- 240.

[69] 119 S.Ct. 2139 (1999).

[70] 119 S.Ct. 2133 (1999).

[71] 119 S.Ct. 2162 (1999).

[72] 29 C.F.R. pt. 1630 app. (commentary on §1630.2(h)).

[73] Compliance Manual § 902.5.

[74] Id. § 902.8.

[75] In Taylor v. Phoenixville, 9 AD Cas. (BNA) 1187 (3d Cir. 1999), a seminal decision involving psychiatric disability, the court cited extensively to the reasonable accommodation section of this guidance.

[76] Notice number 915.002 (Feb. 12, 1997), 8 Employment Discrimination Rep. (BNA) 253 (Feb. 19, 1997).

[77] Id. at 253.

[78] Id. at 255.

[79] Id. at 255-58.

[80] Id. at 255.

[81] Id. at 258-60.

[82] Id. at 260-61.

[83] Id. at 261.

[84] Id. at 261-62.

[85] Id. at 262-63.

[86] Id. at 263.

[87] Id. at 263-64.

[88] Id. at 264.

[89] Id. at 261-62.

[90] See, e.g., McNemar v. Disney Stores, Inc., 91 F.3d 610, 619-21 (3d Cir. 1996).

[91] E.g., in Gonzales v. Garner Food Services, 89 F.3d 1523 (11th Cir. 1996), and in Parker v. Metropolitan Life Ins. Co., 99 F.3d 181 (6th Cir. 1996).

[92] E.g., in EEOC v. CNA Ins. Companies, 96 F.3d 1039 (7th Cir. 1996).

[93] Parker, 99 F.3d at 186; district court decision in CNA Ins. Companies, 5 AD Cases at 1767.

[94] Parker, 99 F.3d at 186; CNA Ins. Companies, 96 F.3d at 1043-44; Leonard F. v. Israel Discount Bank of N.Y., No. 95 Civ. 6964, 1996 WL 634860, *2-*3 (S.D.N.Y. Sept. 24, 1996).

[95] CNA Ins. Companies, 96 F.3d at 1045.

[96] District court decision in CNA Ins. Companies, 5 AD Cases at 1766.

[97] District court decision in CNA Ins. Companies, 5 AD Cases at 1766-67, citing: Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995); Felde v. City of San Jose, 839 F.Supp. 708 (N.D.Cal. 1994), aff'd, 66 F.3d 335 (9th Cir. 1995); Schroeder v. Connecticut General Life Ins. Co., No. CA-93-M-2433 (D.Col. Apr. 22, 1994); >Northen v. City of Chicago, 841 F. Supp. 234 (N.D. Ill. 1993).

[98] Gonzalez, 89 F.3d at 1529; CNA Ins. Companies, 96 F.3d at 1043-44.

[99] CNA Ins. Companies, 96 F.3d at 1045 (discussing retaliation charges). See, also, Gonzales, 89 F.3d at 1529 (appellant proffered argument, based upon EEOC Interpretive Guidance, that term "employee" in ADA should be interpreted as under Title VII).

[100] 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). The Solicitor's Office filed an amicus brief in the Cleveland case on behalf of the EEOC; the EEOC does not have the authority to file briefs in the Supreme Court on its own.

[101] 29 C.F.R. §1630.2(j)(3)(i).

[102] Id.

[103] The regulatory guidance cites Forrisi v. Bowen, 794 F.2d 931, 932 (4th Cir. 1986); Jasany v. United States Postal Serv., 755 F.2d 1244 (6th Cir. 1985); and E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980). 29 C.F.R. pt. 1630 app. (commentary on §1630.2(j)). The EEOC has been incredibly fixated on these three precedents, including the Forrisi court's serious misstatement of the ruling in E.E. Black, to the point of ignoring contrary court rulings.

[104] S. Rep. No. 116, 101st Cong., 1st Sess. 24 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 2, at 53-54 (1990) (Education & Labor Committee). These reports cite Thornhill v. Marsh, 866 F.2d 1182 (9th Cir. 1989) and Doe v. Centinela Hospital, No. CV87-2514 PAR, 57 U.S.L.W. 2034, 1988 WL 81776 (C.D. Cal. June 30, 1988).

[105] See, e.g., Richard A. Bales, Once Is Enough: Evaluating When a Person Is Substantially Limited in her Ability to Work, 11 Hofstra Lab. L. J. 203, 210-11 (1993); Robert L. Burgdorf Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Villanova L. Rev. 409 (1997).

[106] 56 Fed. Reg. 35,728 (1991) (commentary on §1630.2(j)).

[107] 29 C.F.R. pt. 1630 app. (commentary on §1630.2(j)).

[108] Id.

[109] Compliance Manual § 902.5.

[110] 119 S.Ct. 2139 (1999).

[111] 119 S.Ct. 2133 (1999).

[112] 119 S.Ct. 2162 (1999).

[113] Mathematica Policy Research, Inc., Digest of Data on Persons with Disabilities (Congressional Research Service, The Library of Congress, 1984), pp. 4-5. Based on statistics from the 1979 National Health Interview Survey, a figure of 43,783,000 was presented as the unduplicated total of persons with "impairments or chronic conditions." Id.

[114] 56 Fed. Reg. 8593 (1991).

[115] 56 Fed. Red. 35,728 (1991) (commentary on §1630.2(j)).

[116] 29 C.F.R. pt. 1630 app. (commentary on §1630.2(j)).

[117] Letter from Ida Castro, chairwoman of the Equal Employment Opportunity Commission, to Marca Bristo, chairperson of the National Council on Disability, April 12, 2000 (on file at NCD).

[118] Id.

[119] Id., § 1630.2(j)(2).

[120] 29 C.F.R. pt. 1630, app. (commentary on §1630.2(j)).

[121] In its proposed regulations for the implementation of Titles II and III of ADA, DOJ defined "disability" as "a permanent or temporary physical or mental impairment that substantially limits one or more of the major life activities of such individual ...." 56 Fed. Reg. 7482, § 36.104 (Feb. 22, 1991) (proposed regulation, Title III) (emphasis added); 56 Fed. Reg. 8551, § 35.104 (Feb. 28, 1991) (proposed regulation, Title II) (emphasis added). The identical definition was included by DOT in its proposed regulation to implement the transportation requirements of ADA. 56 Fed. Reg. 13879, § 37.5 (Apr. 4, 1991) (proposed regulation).

In the interest of interagency harmony, the DOJ dropped the words "temporary or permanent" from both sets of its final regulations. 28 C.F.R. § 35.104 (definition of "disability," Title II); 28 C.F.R. § 36.104 (definition of "disability," Title III). It explained that commenters had objected to the inclusion of this language "both because it is not in the statute and because it is not contained in the definition of `disability' set forth in the title I regulations of the [EEOC]." 28 C.F.R. pt. 35, app. A (commentary on § 35.104); 28 C.F.R. pt. 36, app. A (commentary on § 36.104). DOJ decided to delete the phrase from the final rule "to conform with the statutory language."Id. In its Title II Technical Assistance Manual and its Title III Technical Assistance Manual, DOJ explicitly rejected EEOC's rationale in the following identical language in each manual: "Are 'temporary' mental or physical impairments covered by [title II/title III]? Yes, if the impairment substantially limits a major life activity." Title II Technical Assistance Manual at 5, § II-2.4000; Title III Technical Assistance Manual at 11, § II-2.4000.

The Department of Transportation also agreed to delete the words "temporary or permanent" from its regulation in the interest of uniformity, 49 C.F.R. § 37.3 (definition of "disability"), but strongly rejected the exclusion of impairments that only limit activities temporarily. In the section-by-section analysis accompanying its final regulation, DOT declared: A few comments addressed "disability." Some suggested removing "permanent or temporary," suggesting that this language is unnecessary. The DOJ definition does not include these words, so we have deleted them for consistency. In our view, the terms are unnecessary because any condition that meets the criteria of the definition, regardless of its duration, is a disability. 49 C.F.R. pt. 37, app. (commentary on § 37.3) (emphasis added).

[122] S. Rep. No. 116, 101st Cong., 1st Sess., 22 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 2, 52 (1990).

[123] 42 U.S.C. § 12113(b).

[124] 42 U.S.C. § 12111(3).

[125] 29 C.F.R. §1630.2(r) (emphasis added).

[126] 56 Fed. Reg. 35,730 (1991) (commentary on §1630.2(r)).

[127] These are criteria for direct threat pursuant to 29 C.F.R. § 1630.2(r).

[128] 485 U.S. 535 (1988).

[129] 45 C.F.R. §84.11(c) ("a recipient's obligation to comply with this subpart [employment] is not affected by any inconsistent term of any collective bargaining agreement").

[130] S. Rep. No. 116, 101st Cong., 1st Sess. 32 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 2, at 63 (1990) (Committee on Education and Labor).

[131] 94 F.3d 1041 (7th Cir. 1996).

[132] In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), Justice Powell, speaking for the Court, explained that civil rights claims are not subject to agreements to arbitrate or other collective agreements: "We think it clear that there can be no prospective waiver of an employee's rights under Title VII." Id. at 51. The Court distinguished civil rights claims from employment agreements, stating that "the primary incentive for an employer to enter into an arbitration agreement is the union's reciprocal promise not to strike," and that incentive is not affected at all by civil rights claims. Id. at 54. See, also, Bowe v. Colgate Palmolive, 272 F. Supp. 332, 337 (S.D. Ind. 1967) (there is a "fundamental difference between a claim for the violation of a collective bargaining agreement and a claim for the violation of the Civil Rights Act of 1964"), aff'd in part, rev'd in part on other grounds, 416 F.2d 711 (7th Cir. 1969).

[133] 44 F.3d 538 (7th Cir. 1995).

[134] The Tenth Circuit relied heavily on this guidance in concluding that reassignment means more than the opportunity to compete for a vacant position, Smith v. Midland Brake, 9 AD Cas. (BNA) 738 (10th Cir. 1999) (en banc).

[135] For example, it issued guidances regarding each of the following Supreme Court decisions: McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997).

[136] 118 S.Ct. 2196 (1998).

[137] Memorandum of Bill White, acting director, Office of Communication and Legislative Affairs, EEOC, May 4, 2000, p.4.

[138] EEOC, National Enforcement Plan, p. 3.

[139] Congress specifically authorized $13 million to support expansion of the mediation program in FY 1999; it is not yet apparent whether and to what extent additional funding is necessary for optimal operation of this program.