HOW TO ENFORCE EMPLOYMENT RIGHTS UNDER THE

AMERICANS WITH DISABILITIES ACT

Co-Ad, Inc.
 Comprehensive Advocacy, Incorporated
Idaho's Protection and Advocacy System Since 1977
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Acknowledgement: This publication utilizes materials originally developed by the Arizona Center for Disability Law. Used with permission.

 

TABLE OF CONTENTS

A.  Introduction of the Americans with Disabilities Act (ADA) and this Guide
What the ADA Covers 
How Co-Ad, Inc. Assists People with Disabilities 
This Guide is NOT a Substitute for Legal Advice 
Why the ADA Includes Employment Protections 
When the ADA Applies 

B.  What Agency Enforces Violations of the Employment Provisions of the ADA
Introduction to EEOC 
Other Anti-Discrimination Laws 
Other Employment Claims 

C.  Who Can File a Charge of Discrimination
What is a Charge? 
Who Can File a Charge? 
Who Are The Parties in the Charge Process? 
Why is a Charge Filed? 

D.  How to File a Charge of Discrimination 
Where to Go to File a Charge 
Filing under Idaho Law 
Accommodations By the Enforcement Agencies 
Procedures for Completing the Charge Form 
Deadlines for Filing a Charge 
Necessary Information for the Charge 
Which Agency Will Investigate the Charge 

E.  Investigation Process 
Assignment of an Investigator 
Notification to Respondent 
Information Review 
Information Request
Interview Witnesses
Additional Evidence
Dismiss Charge 
Preliminary Findings 

F.  Agency Decision 
Discrimination Finding 
Insufficient Evidence of Discrimination 
Conciliation 
Review of the Findings 
Litigation 
Reconsideration 

G.  Remedies 

H.  Strategies for the EEOC/IHRC Process 
Negotiating with the employer 
Filing a Charge 
Accommodation in the charge process 
Contacts with agency 
Acceptance of charge
Information for the investigator 
Mediation or alternative dispute resolution 
Requesting a right to sue letter 
Review of the findings 
Requesting reconsideration 

Appendix 
Discrimination by recipients of Federal Financial Assistance 
Sample Chronology 

A.  Introduction to the Americans with Disabilities Act (ADA) and this Guide

What the ADA covers

On July 26, 1990 the ADA was passed by Congress. The ADA provides major civil rights protection to individuals with disabilities. The intent of this federal law is to reduce barriers to persons with disabilities and provide equal opportunity in employment, public accommodations, public services, transportation, and telecommunications. The various titles of the ADA affect many aspects of the lives of people with disabilities.

How Co-Ad, Inc. Assists People with Disabilities

If you believe you have been discriminated against on the basis of a disability in employment or access to public services, public accommodations, public transportation or telecommunication services, staff at Co-Ad, Inc. can provide you with information about the ADA and enforcing your rights under the ADA. Co-Ad, Inc. is a non-profit, public interest law firm providing free advocacy, information and referral services, legal research, community legal education, and in selected cases, legal representation to individuals with disabilities. Co-Ad, Inc. is the designated protection and advocacy (P&A) system providing services for Idahoans with a wide range of physical and mental disabilities.

Information about the eligibility requirements and priorities are available from Co-Ad, Inc. upon request. Assistance is provided for disability related issues according to program eligibility requirements, priorities and staff availability.

This Guide is not a Substitute for Legal Advice

Co-Ad, Inc. recommends that persons obtain professional legal advice to resolve a legal dispute regarding discrimination on the basis of a disability. This guide is not a substitute for legal assistance. This guide is meant to provide people with disabilities with information and examples about employment protections under the ADA.

Why the ADA Includes Employment Protections

Often people with disabilities do not have an equal opportunity to work or advance in their employment. People with disabilities are often restricted in employment opportunities by many different kinds of barriers. Some face physical barriers that either make it difficult or impossible to get into and around a workplace or to use work equipment at the site. Some are excluded because they communicate differently than their co-workers. Still others are excluded because of rigid work schedules which do not permit flexibility for people with special needs because of a disability.

In other cases, people are not denied opportunities because of actual barriers, but because of prejudice. These are the barriers in other people's minds: fears, stereotypes, presumptions, and misconceptions about job performance, safety, absenteeism, costs, or lack of acceptance by co-workers and customers.

Congress enacted the ADA to eliminate these barriers to equal opportunity in employment. The ADA makes it unlawful for an employer covered by the law to discriminate against applicants and employees with disabilities. The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing this law. People with disabilities also have the right to bring private lawsuits against employers who discriminate against them if they first file a charge of discrimination with the EEOC within the time limits set out by the ADA.

This guide will provide the reader with information about how to file a charge of discrimination and remedies available for violations of the employment provisions of the ADA. Other guides available through Co-Ad, Inc. on employment include:

When the ADA Applies

The ADA now applies to employers with at least 15 or more employees during a calendar year. Also covered by the ADA are employment agencies, joint labor management organizations, and unions. If employers contract with other agencies to perform services, such as background investigations and reference checks, the actions of the employer through these agents would also be covered by the ADA.

The ADA protects qualified individuals with a disability. Disability is defined under the ADA as a physical or mental impairment that substantially limits an individual in the ability to perform major life activities, such as seeing, hearing, walking, performing manual tasks, working learning, reading, standing, lifting, and having children. A person is qualified under the ADA if s/he has all of the skills, education, and experience necessary for the position and is able to perform the essential functions of the job with or without reasonable accommodations. For more information about what these special terms mean, See Co-Ad, Inc.'s guide, An Overview of the Employment Protections of the ADA.

B.  What Agency Enforces Violations of the Employment Provisions of the Americans with Disabilities Act

Introduction to EEOC

The Equal Employment Opportunity Commission (EEOC) is a federal agency with the responsibility to enforce the employment provisions of the American with Disabilities Act (Title I).(1) This responsibility includes taking charges (or complaints of discrimination) from people who believe that they have been discriminated against in employment on the basis of disability, investigating those complaints, making a determination whether there is reasonable cause to believe that discrimination occurred, and issuing right to sue letters.

The EEOC will also attempt to work out an agreement-sometimes called a "settlement" between the parties to resolve the claim of discrimination if that is possible. Once a finding of discrimination has been issued, the settlement is called a "conciliation" agreement. The EEOC will bring lawsuits against employers in selected cases for violations of the employment provisions of the ADA. However, in most cases, the EEOC will only issue a "right to sue" letter which allows the individual to bring a private lawsuit under Title I of the ADA to enforce his/her own rights.

Other Anti-Discrimination Laws

The EEOC enforces other laws which prohibit discrimination in employment. The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of race, color, religion, national origin, and gender, by employers with 15 or more employees. Title VII claims of discrimination also include discrimination, such as sexual harassment and pregnancy discrimination claims.

EEOC also enforces the Age Discrimination in Employment Act (ADEA) which prohibits job discrimination against persons age 40 and over by employers with 20 or more employees.

The Equal Pay Act (EPA) which prohibits an employer from paying men and women different wages for the same or similar work because of their gender, is also enforced by the EEOC.

Because Co-Ad, Inc. is the protection and advocacy agency for people with disabilities, Co-Ad, Inc. is restricted by its grants from accepting cases which involve discrimination on the basis of another protected status, such as gender, race, national origin, and age. For more information about these other laws, contact the EEOC or a private attorney specializing in employment law. This guide does not address information about these other laws.

Other Employment Claims

This guide is not intended to provide a comprehensive discussion of the procedures for pursuing all employment-related claims. For example, an individual may have a breach of contract claim, wrongful discharge in violation of a public policy, or some claims for retaliatory discharge. These claims may not be covered by a charge of discrimination filed with the Equal Employment Opportunity Commission (EEOC). However, these claims do have a statute of limitations which is the time period in which a claim must be filed in court. The statute of limitations for many of these other employment claims may be as short as one year. Public employees and employees under a collective bargaining agreement may also have other rights and procedures in addition to the ADA. For more information about these claims, you should contact a private attorney specializing in employment law. Do not wait until the EEOC makes a decision on your charge to discuss other possible claims with an attorney because the statute of limitations may have expired. A referral list of attorneys who handle employment discrimination claims may be obtained from Co-Ad, Inc.'s Pocatello or Boise office. In addition, you may be able to file a complaint and/or lawsuit under Section 504 of the Rehabilitation Act if your employer receives federal financial assistance. See Appendix, Discrimination by Recipients of Federal Financial Assistance.

C.  Who Can File a Charge of Discrimination

What is a Charge?

A charge is a term that is used for the document that is completed by the EEOC or other enforcement agencies to initiate a complaint of disability discrimination against an employer.(2) The charge is simply a form that summarizes the complaint of discrimination.

Who Can File a Charge?

An applicant or employee with a disability who feels that s/he has been discriminated against in employment on the basis of disability can file a charge with the EEOC. This includes people who have an actual disability;(3) a record of this type of impairment; or is regarded as having this type of impairment.

Example of filing a charge because of discrimination on the basis of an actual disability: Judy is working for an office supply company as a salesperson. She has rheumatoid arthritis which limits her ability to carry items over 20 pounds and walk distances. Her condition is painful. She asks her employer for a cart to carry her supply and sample cases and a disabled parking space near the back entrance of the warehouse. If her employer refuses to provide these simple accommodations, Judy is protected as an individual with a physical impairment that substantially limits her ability to walk, stand, and lift. She may file a charge of discrimination with the EEOC.

Example of filing a charge because of discrimination on the basis of a history of a disability: Arthur works for a landscaping firm as a foreman. He tells a co-worker that about 5 years ago he used to be addicted to cocaine before he went into a drug rehabilitation program. The co-worker tells Alice, the owner of the landscape company. Alice fires Arthur because she believes "once a drug addict, always a drug addict." If Alice's company has at least 15 employees, Arthur would be protected by the ADA even though he is no longer disabled by a drug addition.

Example of filing a charge based on discrimination on the basis of a perception of disability: Stephen works for a homebuilder as a carpenter. His co-workers know that he is gay. When Allen, his supervisor, discovers that Stephen is gay, he has the company fire him. Stephen may file a charge of discrimination even if he is not HIV-positive and does not have AIDS. He was fired because his employer mistakenly thought he had a disability.

Not only may charges be filed by people with an actual disability, a history of a disability, or perceived disability who believes that they have been discriminated against because of a disability, but charges may also be filed in the following situations. A person who is discriminated against in employment because of his/her association with a person with a disability. That association can be with a child, spouse, parent, brother, sister, friend, or business associate with a disability. Also, a charge can be filed by a person who experiences retaliation for opposing an act or practice of an employer that violates the ADA, made a charge of discrimination under the ADA, or testified, assisted, or participated in an investigation, proceeding, or hearing about discrimination under the ADA. A person who has exercised his/her rights under the ADA or has encouraged another person to exercise his/her rights under the ADA cannot lawfully be terminated, threatened, or coerced by the employer. A person who is subjected to this type of intimidation may file a charge of retaliation.

Example of a charge filed by a person based on associational discrimination: Erin is an applicant for a position as a nurse at a hospital clinic. When asked what shift she prefers, she asks for the night shift so she can be at home during the day to supervise her young son who has a mental illness. Thomas, the personnel director for the hospital, withdraws the job offer, because he fears that Erin's son will need costly psychiatric care that will be a drain on the hospital's self-insurance program. Erin may file a charge of discrimination with the EEOC for discrimination in this hiring decision, even though she does not have a disability. She would file as an individual who has been discriminated against because of her association with her son, who has a disability.

Example of filing a charge because of retaliation: Brad is a person who has mild mental retardation. He applies to be a server at a cafeteria. When he applies for a position he overhears the manager tell Sandra, the cashier, not to give Brad an application because he does not want to hire "people like that." Brad files a charge of discrimination with the EEOC. Brad tells the investigator about the comment that was made to the cashier. The investigator interviews Sandra and she tells the investigator what her supervisor said to her. The manager fires Sandra for cooperating with the investigation. Even though she is not disabled, Sandra may file a charge of retaliation with the EEOC because she was fired for cooperating with the investigation of an ADA complaint.

In some cases, the EEOC may file a "Commissioner's Charge" based on information provided to it by the public. This type of charge is filed when the EEOC has information of a larger discrimination issue and no one has filed a charge. Also, an individual, group or organization can file a charge on behalf of another person. Sometimes a person or organization becomes aware that an employer is discriminating against someone on the basis of a disability. However, there is not an individual who is wiling to come forward and file a charge of discrimination. In this case, the EEOC will allow a group or individual to file on behalf of another for the discrimination by the employer. This type of charge is called a "Third Party Charge."

Example of a Third Party Charge: Elisabeth is a job developer. She works for a non-profit agency that helps people with disabilities find jobs in the community. To help develop possible job sources, she collects applications from different employers in the community. As she is reviewing the applications to help her clients apply for jobs, she discovers that the application has an illegal question about disability. If none of her clients wish to file a charge, Elisabeth may file a Third Party Charge of discrimination with the EEOC.

Who are the Parties in the Charge Process?

The individual, group or organization that files a charge is called the "charging party".

The private employer, state or local government, employment agency, labor union or joint labor management committee who the charge is against is called the "respondent". The EEOC is also a party in the charge process as the enforcement agency. For more information about who is protected by the ADA, See Co-Ad, Inc.'s guide, An Overview of the Employment Protections of the American with Disabilities Act.

Why is a Charge Filed?

Individuals can file charges of discrimination on the basis of disability with the EEOC. Filing a charge is a necessary step if an individual wants to later file a private lawsuit under Title I of the ADA. The following are examples of discrimination where charges could be filed:

These are examples of some discriminatory actions. There are many other actions by an employer that may violate Title I of the ADA.

D.  How to File a Charge of Discrimination

Where to Go to File a Charge

If an individual believes that s/he has been discriminated against in employment because of a disability, then s/he may file a charge of discrimination with the EEOC. There is no fee or cost for filing a charge of discrimination with the EEOC. It is not necessary to have an attorney file the charge on your behalf. An individual may contact the EEOC on his or her own behalf to request that a charge be filed. However, an individual may prefer to consult with an attorney for advice or assistance in the charge process.

The EEOC will take charges of discrimination under the ADA from anyone who believes they have been subjected to employment discrimination. An individual may start the process by going to the EEOC office or calling the office. Its address and telephone number are:

United States Equal Employment Opportunity Commission
909 First Ave Suite 900
Seattle WA 98104
(800) 669-4000
(800) 669-6820 (TDD)

For the convenience of people living in Idaho, the EEOC has entered into an agreement with the Idaho Human Rights Commission, 1109 Main Street Fourth Floor, P O Box 83720, Boise ID 83720 for that office to accept charges under the ADA.

Filing Under Idaho Law

Idaho created the Human Rights Commission to investigate allegations of discrimination in employment on the basis of a physical or mental disability. Charges of discrimination under this state law must be filed within 1 year of the date of the alleged discrimination. Therefore, if an individual believes s/he has been discriminated against on the basis of a physical or mental disability, s/he may file a charge with the Commission on Human Rights. They are located at:

Idaho Human Rights Commission
1109 Main Street Forth Floor
P O Box 83720
Boise ID 83702-0040
(208) 334-2873
(208) 334-4751 TDD/TTY
email: inquiry@ihrc.state.id.us 

When an individual files a charge of discrimination with the state agency, the IHRC will also automatically file a charge under the federal ADA, if the ADA applies, i.e., the employer has 15 or more employees. For Idaho law to apply, the employer has 5 or more employees.

Accommodations By the Enforcement Agencies

Under Section 504 of the Rehabilitation Act, the EEOC must make its programs accessible to and usable by people with disabilities. Under Title II of the ADA, the Idaho Human Rights Commission (IHRC) must do the same. Both agencies must provide effective accommodations to people with disabilities. Accommodations should be determined on a case-by-case basis based on the needs of each individual.

Albert is deaf. He calls on Idaho Relay to make an appointment for his charge to be filed. He requests a sign language interpreter for the interview because he uses American Sign Language and does not understand English. He has been deaf since birth and does not read lips very well. He uses sign language to express himself. The IHRC/EEOC must provide the accommodation so that he can be effectively interviewed about his case.

Jodie has mild mental retardation. She does not understand the information requested on the form. An intake officer may need to explain in simpler terms what information is needed.

Procedures for Completing the Charge Form

A charge can be filed in person at the EEOC office, by telephone, or by mail. If a person calls our EEOC office, the EEOC will either send a questionnaire for the individual to complete or do a telephone interview. The EEOC staff will prepare a charge form and send it to the individual to sign and return to the EEOC office.

Deadlines for Filing Charge

Under Title I of the ADA an individual who believes s/he has been discriminated against on the basis of a physical disability must file within 300 days of the date s/he knew of the discriminatory conduct. Under Title I of the ADA an individual who believes s/he has been discriminated against on the basis of a mental disability must file within 180 days from the date s/he knew about the discriminatory conduct.

Some EEOC intake workers are accepting charges on the basis of a mental disability after 180 days. Therefore, a person should call the EEOC if s/he has missed the 180 day deadline but has not missed the 300 day deadline.

Even if an individual has missed any deadline for filing when s/he discovers the deadline, s/he should call the EEOC and an attorney to see if there are grounds for extending the deadline. Deadlines can be tolled due to an incapacitating disability.

Necessary Information for the Charge

Whether a questionnaire is sent by mail to be completed or an intake officer interviews an individual about the problem, the individual filing the charge will need to provide the following information to the agency:

Which Agency Will Investigate the Charge

Usually, the agency where you file a charge will investigate your charge. If an individual files a charge of discrimination that the IHRC would be able to investigate under its authority to enforce the state employment discrimination law, then IHRC will investigate the charge.

E.  Investigation Process

This section of the guide focuses on what an individual can expect when his/her charge is being investigated by the IHRC or EEOC. First of all, these agencies are understaffed for the number of complaints they are required to accept and investigate. Therefore, an individual can expect an investigation to move slowly, and investigations may take more than a year.(4) However, the following generally occurs in each investigation:

Assignment of an Investigator

All cases are assigned to a mediator. If mediation is not successful, an investigator is assigned to handle the case. The investigator is the contact person on the case for both the employee/applicant who filed the charge and the employer. Generally, any letters that come from the agency will be sent by the investigator. The investigator is in charge of gathering the facts to determine whether there is reasonable cause to believe discrimination has occurred. "Reasonable cause" means that it is more likely than not that discrimination occurred. Investigators will also help the parties explore whether the charge can be settled. If the matter can be settled before the investigation concludes, the parties will enter into a No-Fault Settlement Agreement. A "No-Fault Settlement Agreement" is an agreement in which the employer agrees to provide certain relief to the complaining party if s/he will withdraw the charge and not take any further legal action against the employer. However, do not expect to work directly with an attorney from the agency or receive legal advice on whether to settle.

Notification to respondent

Within 10 days after receipt of a charge, the agency must serve the employer with a copy of the charge of discrimination. The agency asks the employer to send a response to the agency about the charges of discrimination, called a "position statement." Employers are usually given 30 days from the date they receive the charge to respond. The agency will almost always grant an extension of time if an employer asks for one.

Information Review

The EEOC and IHRC begin their investigations by reviewing information received by the charging party during the intake or additional information provided following the employee intake. The investigator compares that information to the response by the employer. The investigator will usually give both sides an opportunity to give additional information to prove that their position is correct.

Information Request

Information may also be requested by the EEOC or IHRC from either the charging party or the employer. The investigator has the authority to request additional information from the employer.

For example, the investigator may ask the employer to answer a series of written questions or provide copies of records, such as:

The agency can issue a subpoena to get the information if the employer does not voluntarily provide the information. If the employee or applicant does not provide the investigator with information that is requested, the agency can dismiss the charge for lack of cooperation.

Interview Witnesses

The EEOC and IHRC have the authority to interview witnesses who have knowledge of acts of which the employee/applicant has complained. The EEOC and IHRC may interview managers, co-workers, and witnesses to the events. The agency has the authority to subpoena a witness to give testimony if the witness will not cooperate.

Additional Evidence

An employer or employee/applicant may also submit additional oral or written evidence on its own behalf. Both the employer and the employee/applicant may be asked to attend a conference to review the allegations, obtain additional evidence, or seek to resolve a charge through settlement.

Dismiss Charge

The EEOC and IHRC may dismiss a charge during the course of the investigation for various reasons, including that the charge is not timely filed or if it finds that the employer is not covered by the ADA. The charge may also be dismissed if after preliminary review, the EEOC determines that further investigation would not necessarily result in any finding of discrimination. Upon dismissal of the charge, the EEOC sends the charging party a notice of right to sue.

Preliminary Findings

The charging party and respondent will be informed of the preliminary findings of the investigation, whether there is cause to believe that discrimination has occurred and the type of relief that may be necessary. Both parties will be provided an opportunity to give further information to the agency, or if possible, reach a settlement.

F.  Agency Decision

Discrimination Finding

If the investigation shows that there is reasonable cause to believe that discrimination occurred, the EEOC and IHRC will send an official "Letter of Determination" to the charging party and the respondent, stating whether it has found "reasonable cause" to believe that discrimination occurred. The agency then will try to settle the issue and get relief for the charging party, such as reinstatement, back wages, or training.

Insufficient Evidence of Discrimination

If through the investigation the EEOC is not able to find sufficient evidence to issue a cause finding, a "Dismissal and Notice of Rights" will be issued. The EEOC will issue a "right to sue" letter to the charging party, who may then file a private suit. If the IHRC finds there was no discrimination, it will issue a "no cause finding" and a "right to sue" notice to the charging party.

Conciliation

If the EEOC or IHRC finds there is reasonable cause to believe discrimination occurred, the agency will attempt to "conciliate" the matter. "Conciliating" means getting an agreement from the employer to provide relief to the employee/applicant to correct the discrimination.

Review of the Findings

If the IHRC processes a charge also filed under the ADA, the EEOC generally accepts the findings of the IHRC and the agency action. However, if a charging party is adversely affected by the IHRC's decision, such as his/her charge is dismissed or there is a no cause finding, s/he can ask for the IHRC's decision to be reviewed by the EEOC. A party must request a review in writing within 15 days of the agency's action.

Litigation

If the EEOC or IHRC has found cause to believe that discrimination occurred, but cannot resolve the issue through conciliation, the agency will consider whether to sue the employer. The EEOC or IHRC may decide to sue the employer. If so, a lawsuit will be filed in court. If the EEOC sues the employer, it is the EEOC who is the plaintiff, not the charging party. However, the employee or applicant can ask the court to be included in the lawsuit. Under state law, the IHRC must sue within one year from the date of the receipt of the complaint.

If the EEOC decides not to litigate, it will send the charging party a "right to sue" letter.

If conciliation fails on an ADA charge against a state or local government, the EEOC will refer the case to the United States Department of Justice to consider whether it will file a lawsuit. If it does not, it will issue a "right to sue" letter.

The charging party must file a lawsuit within 90 days of receipt of the right to sue letter. If the lawsuit is not filed within this deadline, the employee/applicant will lose the right to bring a lawsuit under Title I of the ADA and the state law.

Reconsideration

A charging party may request that the EEOC reconsider a "no cause" finding. It is the EEOC's decision whether to reconsider the matter. See Section H for more information about requesting reconsideration.

G.  Remedies

An employee or an applicant who is filing a charge of discrimination will have to consider what relief s/he wants from the employer, because the employer may make a settlement offer or the agency may ask the employee what relief s/he wants. To make a decision about the relief that might be acceptable to settle the claim or to evaluate whether to file a lawsuit, the employee/applicant should know what kind of relief the ADA provides for the person who successfully sues an employer. The purpose of the relief is to make the individual "whole" by placing the person in the place s/he would have been in had the discrimination not occurred. Remedies for a violation of Title I of the ADA include injunctive relief. Injunctive relief is a court order requiring an employer to take some kind of action or to stop discriminatory actions.

Examples of injunctive relief:

Other relief includes monetary damages. Monetary damages include back pay, compensatory and punitive damages.

Back pay damages include lost wages, benefits, and interest. If you want back pay it is very important that you keep accurate records of your attempts to find work. Be sure to keep a list of (1) employers you called and with whom you spoke; (2) applications you filed and where; (3) interviews you attended, including the date of the interview and the person(s) who interviewed you; and (4) any other activities you engaged in during your effort to find employment (e.g., job skills training, listing your name with an employment agency or other job-service agencies you visited).

Compensatory damages are available to compensate the individual for emotional pain, suffering, mental anguish, inconvenience, loss of enjoyment of life, and humiliation caused by the discrimination. In some cases where reinstatement is sought by the employee, but no longer practical, pay may be awarded representing future salaries and benefits the individual would have earned if the employer had not discriminated against him/her. Punitive damages may be available if an employer acted maliciously or with reckless indifference to the rights of the employee or applicant.

When a person claims that the employer did not accommodate him/her, damages for emotional distress and punitive damages are not available if the employer made good faith efforts to work with the employee to find an effective accommodation. The law is not intended to punish an employer who is actually trying to accommodate an individual.

The total amount of compensatory and punitive damages awarded under Title I of the ADA is limited, based on the size of the employer.

Number of Employees     Damages Limit
   15-100                             $50,000
 101-200                           $100,000
 201-500                           $200,000
 500 and more                   $300,000

Reasonable attorney's fees and costs of litigation may also be awarded to the plaintiff who proves an ADA claim of discrimination.

Olivia applied for a position as an accountant. She was selected for the position. When she asked for a telephone amplification device as an accommodation, the job offer was withdrawn. Olivia filed a dual charge of discrimination with the IHRC and EEOC on the basis of the state and federal law. The EEOC issued a cause finding that Olivia was discriminated against. Full relief might be hiring her for the next available position (opening in one month); wages from the time that the job offer was withdrawn until she begins working; provision of the phone amplification device; and reimbursement of attorney's fees Olivia spent to get the relief.

H.  Strategies for the EEOC/IHRC Process

If you are considering filing a charge of discrimination under the ADA or state employment discrimination law, consider the following suggestions.

Negotiating with the Employer

If you have not done so before filing a charge, consider making one final attempt to work the problem out with the employer. Some employers will end discussions when a charge is filed letting the charge process run its course. If the matter cannot be worked out, you then can file a charge. However, do not miss your deadlines for filing charges trying to work out the problem.

Filing a Charge

When you contact the IHRC or EEOC, have all of the information necessary to complete the charge form, such as the address, telephone number of the employer, and the names, addresses and telephone numbers of people who might be witnesses.

If at all possible, do not wait until near the end of the deadline to file a charge. The sooner the charge is completed, the sooner an investigation may begin. Facts generally are easier to remember and verify closer to the actual events. For example, employees who were witnesses may leave the company as time goes on. If you are filing with the IHRC and have less than one week to file, you should go to the IHRC office in person rather than calling for an appointment.

If you have missed any of the deadlines for filing a charge as outlined in this guide, call the IHRC or EEOC anyway. There may be grounds for accepting your complaint beyond the deadline.

Accommodations in the Charge Process

Request in writing any accommodation you need for the charge process, investigation, or conciliation efforts and send the request to the intake officer or investigator assigned to the case. Date the request and keep a copy for your records. If the request is denied, contact a supervisor at the EEOC or IHRC and make the request. If that fails, contact the Section 504 Coordinator for the EEOC to request a review of the denial not to provide the accommodation. The law does not require the request to be in writing, but a written request will be proof that you provided notice about your needs. If all these steps fail, contact the staff at Co-Ad, Inc. for more information.

Contacts with Agency

The case will be assigned a charge number at the beginning of the process. Keep a record of that number and use the number when calling the IHRC or EEOC for information about your charge.

Respond promptly to requests for information from either the investigator or the intake officer. Do not ignore requests for information by the IHRC or EEOC or the agency may dismiss the case without further investigation. If you have difficulty getting the information in the time given to you, ask for an extension. Make your request in writing. Date the request and keep a copy for your records.

Keep the EEOC or IHRC office informed of any changes in your address or telephone number so that there is no difficulty keeping in touch with you.

Acceptance of Charge

You have a right to file a charge of employment discrimination under the ADA. The IHRC and EEOC have different procedures about accepting charges. The EEOC accepts most charges but dismisses more charges earlier if the agency does not believe the facts support that the employer violated the ADA. The IHRC screens charges more closely and refuses to accept the charge if the staff do not believe the individual has stated enough facts that, if proven, would be a violation of the ADA. It is important to file a charge because if the agency does not take your charge, you will not get a right to sue letter. Without a right to sue letter, you cannot later file a private lawsuit based on Title I of the ADA or the Idaho Human Rights Act. You must file a charge to protect your right to file with the court.

To avoid a misunderstanding, be sure to provide enough information to show that

If the intake officer refuses to take your charge, you can ask a supervisor to review the decision. If you still are not permitted to file a charge, contact Co-Ad, Inc.'s office to complain. If the IHRC refuses to accept your charge under the state law, you may ask them to prepare it and send it to the EEOC for investigation under the federal law. If the IHRC refuses, contact the EEOC directly to file the charge.

Information for the Investigator

The EEOC and IHRC are understaffed. If you can assist the investigation by providing useful information to the investigator, it will help move the charge along faster. For example, you should take steps to assist the investigator in understanding the situation. One important tool to provide to the investigator is a chronology or time line that gives the dates and events that have occurred. See the Appendix for a sample chronology.

a.  Witnesses

Other information to provide is a list of possible witnesses. The list should include full names, addresses, and telephone numbers. It is better if you can provide home telephone numbers. If you know, you should indicate whether any of the witnesses are management.

The charging party should list the most important witnesses first. In most cases, the EEOC or IHRC cannot and will not interview 25 or more witnesses. It is more likely that 3-15 witnesses might be interviewed depending upon the circumstances. In your list, indicate who are the most important witnesses and what information each may provide.

b.  Documents

If you have copies of documents or other paperwork that might be useful, provide copies to the investigator. Examples of documents may be copies of company policies related to the claim, such as accommodations policies.

If there is information that is in the control of the employer that is not available to the employee or applicant, you may wish to make a list of documents that you want the investigator to request. Employees should not take or copy employee records that would not otherwise be available to them for purposes of the investigation because it may give an employer legitimate grounds for discharging the employee.

Mediation or Alternative Dispute Resolution

a.  Advantages/Disadvantages

Both the IHRC and EEOC offer mediation as a method to attempt to resolve employment disputes. Mediation is an informal conference in which the employer and employee/applicant attempt to reach a settlement. A trained mediator meets with the parties to facilitate an agreement. Participation in the mediation is voluntary. Mediation is free to both parties. The advantages to attempting to mediate are that:

The disadvantage is that in some cases, employees or applicants feel intimidated and agree to settle for less than might be a fair settlement.

b.  Attorneys at Mediation

One way to minimize this disadvantage for employees or applicants is to ask to bring an attorney to assist you at the mediation or to have the proposed settlement agreement reviewed by an attorney before you sign it. If an attorney does come to the IHRC mediation, the attorney may be expected to play a limited part in the actual mediation because the mediators expect the parties to talk to each other. The attorney is there to review the mediation agreement and to give advice to the charging party. At the EEOC mediation the attorney's role is not limited. Both parties must agree to go to mediation for a mediation to occur. Attorneys can attend mediation at the EEOC.

c.  Legal Advice Before Signing an Agreement

A charging party who chooses to mediate may consult an attorney about his/her rights prior to the mediation. The other alternative is to consult an attorney after the mediation, but before signing any agreement. Often, agreements are signed the day of mediation. If you intend to have the agreement reviewed by an attorney before you sign, let staff of the IHRC or EEOC know your plan before the mediation.

Requesting a Right to Sue Letter

If you are considering requesting a right to sue letter before the EEOC concludes its investigation, it is better if you have found an attorney who has agreed to represent you. Then the attorney and you can decide when is the best time to request the letter. If you request a right to sue letter before you have an attorney, it is possible that you might not be able to find an attorney or afford an attorney to represent you within the 90-day time period you have to file a lawsuit. If you request a right to sue letter, the EEOC usually will close your case and stop the investigation. Thus, if you are unable to get an attorney, you have closed the door on further efforts by the EEOC.

Review of the Findings

Keep in mind if you filed a charge under the ADA and the state law and the IHRC does the investigation, you may ask the EEOC to review an adverse decision. You must do so in writing within 15 days of the IHRC's decision.

Requesting Reconsideration

If you are dissatisfied with the agency's finding, you may request reconsideration. If you request a reconsideration of the IHRC's final decision, do so within the deadlines in Part F, Section 4. If you request a reconsideration of the EEOC's finding, do so as soon as possible. Most cases are not accepted for reconsideration. The EEOC has the discretion whether to reconsider claims. In your request for reconsideration, you should explain why you believe the decision was wrong, such as:

If possible, you should seek legal advice about the agency's finding and help requesting reconsideration.

Filing a reconsideration request does not stop the 90-day period to file a lawsuit. Therefore, you should continue to prepare to sue within the 90 days of receipt of the right to sue letter from the IHRC or EEOC because you may not get a decision about the reconsideration before the 90-day period expires.

Appendix

DISCRIMINATION BY RECIPIENTS OF FEDERAL FINANCIAL ASSISTANCE

Section 504 of the Rehabilitation Act prohibits disability discrimination by employers who receive federal financial assistance. The Office for Civil Rights (OCR), a federal agency, must investigate complaints of discrimination under § 504 of the Rehabilitation Act. An individual may file dual charges by filing with both the EEOC and OCR. Generally, if a charge is filed with both the EEOC and OCR, the EEOC will do the investigation. The OCR will not investigate while the EEOC is processing the charge. However, if a complaining party chooses to have the OCR process the complaint, s/he must send a written request to the OCR within 20 days of the date s/he receives notice from the OCR that they are not processing the complaint until the EEOC has taken action on it. Complaining parties generally have 180 days from the date of the alleged discrimination to file a complaint with the OCR or with the U.S. Department of Justice. However, an individual is not required to first file a complaint with an OCR before filing a private lawsuit based on § 504 of the Rehabilitation Act. However, filing a lawsuit under § 504 must be done within the appropriate statute of limitations which may be as short as one year from the date of the alleged discrimination. This guide focuses on the EEOC charge process. For more information about filing a complaint or a private lawsuit under § 504, individuals should seek legal advice about the appropriate action and deadlines that may apply.

SAMPLE CHRONOLOGY

Chronology
Raul Chavez v. ABC CO.
Charge No. 12345

July 1, 1996 Applied for position as Clerk I, turned in application
July 10, 1996 Co. called. Spoke to Melinda from the office. Provided appointment for interview on 7/14.
July 14, 1996 Went to interview, met with Manager Susan Will, and Assistant Manager Alan Park. Offered position at Broadway location. Told to take a drug test.
July 21, 1996 Went to XYZ lab for a drug test.
July 24, 1996 Notified by employer that tested positive. Explained took prescription medication for seizures. Offered to provide a prescription from Dr. Ramona Mead.
July 25, 1996 Ms. Will called and withdrew job offer because no longer needed a clerk at the store.
July 27, 1996 Saw newspaper ad for clerks at the store.

 

1. The ADA provides other protections in addition to employment protections. For example, discrimination in public accommodations, such as restaurants and movie theaters is prohibited. Other agencies are charged with enforcing the other provisions of the ADA. For example, the Department of Justice investigates complaints of discrimination in public accommodations. For more information about complaint procedures for violations of other provisions of the Americans with Disabilities Act, contact the staff at Co-Ad, Inc..

2. A charge is also prepared when a person believes s/he was discriminated against because of age, gender, race, national origin, and religion. If a person tells the EEOC staff s/he was subjected to discrimination because of more than one factor, the agency would include all charges of discrimination in one charge form.

3. A disability for purposes of the ADA is a physical or mental impairment that substantially limits at least one major life activity. See Co-Ad, Inc.'s guide, An Overview of the Employment Protections of the ADA.

4. A charging party may choose not to wait for the EEOC to reach a conclusion. The charging party may request a right to sue letter at any time. If 180 days have passed since the party filed the charge of discrimination or if 180 days have not passed and the EEOC determines that it will not be able to process the charge within 180 days, the EEOC will issue a right to sue letter. However, when a right to sue letter is issued, the charging party only has 90 days from the receipt of the right to sue letter to file a lawsuit under Title I.

 

Printing of this document was funded by grants administered by the Department of Education, Rehabilitation Services Administration, Administration on Developmental Disabilities, and National Institute of Mental Health.

The legal information contained in this guide does not necessarily reflect the views of Comprehensive Advocacy, Inc.'s funding sources. The information is also subject to changes in the laws and the reader should research current laws before acting upon the information. Reprinted 7/99