It is with great pleasure that the U.S. Equal Employment Opportunity Commission (EEOC) issues this report on the occasion of the 10^th Anniversary of the signing of the Americans with Disabilities Act (ADA).

Title I of the ADA, which was signed into law on July 26, 1990, prohibits discrimination in employment against qualified individuals with disabilities. Its enactment made clear that this country will not tolerate outright or subtle discrimination against individuals solely because they have a disability.

The EEOC has taken an active and forceful role in removing barriers and increasing opportunities for people with disabilities in the workplace. More than 21 percent of the EEOC's caseload is comprised of charges filed under the ADA. A significant percentage of those charges is settled in favor of charging parties and, of the charges that the EEOC takes to court, the agency prevails close to 90 percent of the time. Our multi-pronged, comprehensive approach to ADA implementation -- technical assistance, education, and outreach as well as the use of administrative processing, litigation and policy development -- send the loud and clear message that this agency is committed to vigorously enforcing the ADA.

Much progress has been made, but, unfortunately, too many barriers remain for people with disabilities in finding and keeping jobs, getting promotions, obtaining reasonable accommodations, and in other aspects of the employment process. Qualified individuals with disabilities, with or without reasonable accommodation, are entitled to the same employment opportunities available to people without disabilities. This is the purpose and the spirit of the ADA; and as we move forth into its second decade, the EEOC will continue to strengthen and intensify its efforts to fulfill this legislative promise.

Ida L. Castro
Chairwoman

TABLE OF CONTENTS

INTRODUCTION

INITIAL TECHNICAL ASSISTANCE AND OUTREACH EFFORTS

ENFORCEMENT ACTIVITIES

REGULATIONS, POLICY GUIDANCES, AND RELATED DOCUMENTS

CONTINUING TECHNICAL ASSISTANCE AND OUTREACH EFFORTS

CONCLUSION

A REPORT ON THE TENTH ANNIVERSARY OF THE AMERICANS WITH DISABILITIES ACT (ADA)

INTRODUCTION

"I am pleased and proud of the important role EEOC has played in breaking down barriers and expanding opportunities, thereby ensuring that individuals with disabilities take their rightful position at the workplace and participate fully in our society."⁽¹⁾ - Chairwoman Ida L. Castro

The Americans with Disabilities Act (ADA), prohibiting discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications was signed into law on July 26, 1990. The Equal Employment Opportunity Commission (EEOC) was given responsibility to enforce the ADA's employment provisions under Title I of the Act. EEOC's challenge is to ensure that individuals with disabilities have the same workplace rights and opportunities available to all Americans. The significance of this challenge is eloquently articulated in the following statement:

"A steady income is of critical importance, but it is only one of the many advantages of employment. A decent job can enhance self-worth, provide educational opportunities and skills training, give one's life structure and purpose, increase social contacts, and offer important fringe benefits such as health insurance, retirement pensions, travel opportunities, and paid vacation time. Lack of employment can lead to poverty, stagnation, loss of self-esteem, and isolation."⁽²⁾

In order to make the promise of the ADA a reality for millions of job applicants and employees with disabilities, the EEOC has pursued a multi-faceted approach that emphasizes education and voluntary compliance, but that also utilizes administrative enforcement and litigation to end discrimination against persons with disabilities.

Beginning with the publication of the ADA regulations, and followed by an extensive education, training, and outreach program, the EEOC launched an unprecedented effort to educate all interested parties in the fundamental requirements of the ADA. These efforts have been supported by numerous policy documents that address every aspect of the ADA's employment provisions, clarifying difficult issues and offering practical solutions to real workplace problems. As part of the EEOC's effort to promote voluntary resolution of disputes, significant numbers of ADA cases have been settled through EEOC's mediation program. Through vigorous enforcement efforts, both in the investigation of charges and in its litigation program, the EEOC has ensured that individuals with disabilities receive the equal employment opportunities promised by the ADA. In addition, the Commission has filed numerous "friend-of-the-court" briefs, helping to shape judicial interpretations of the ADA and to bring clarity and consistency to the law's development.

These efforts will continue as the ADA enters its second decade. Many challenges remain, but the foundation has been laid for ensuring that persons with disabilities have equal access to the American workplace.

INITIAL TECHNICAL ASSISTANCE AND OUTREACH EFFORTS

Recognizing that employers would need significant lead time to prepare for implementation of the ADA, Congress gave employers with 25 or more employees two years to learn about the law's requirements and begin making any needed changes. Small employers, those with 15-24 employees, were given four years to prepare. The EEOC used this period to begin providing a wide array of services, including training programs, an assortment of publications, and individualized technical assistance.

Below is a summary of the major efforts undertaken from 1991 to 1993:

• 1991 - 1992: Staff from both headquarters and field offices began extensive outreach efforts to disability organizations, employer associations, labor unions, and others affected by the ADA. Through speeches, training seminars, and other presentations, EEOC staff provided the information necessary for implementation of the ADA.
• May 1991: The ADA Policy Division was created in the Office of Legal Counsel to develop policy and provide technical assistance to Commission staff and the public.
• October 1991: The ADA HELPLINE was established to respond to numerous public inquiries about the law. At its peak, the line logged over 1,500 calls per week. Today, EEOC's Office of Legal Counsel continues to respond to over 200 callers per week and hundreds of written inquiries seeking legal and policy advice.
• January 1992: The EEOC published the ADA Technical Assistance Manual and Resource Directory, a 2-volume "plain English" review of the ADA's employment provisions, with numerous examples and illustrations covering all types of disabilities and workplaces. This comprehensive review of every aspect of the ADA's employment provisions provided all interested parties, but especially employers, with a handy guide to explain how the ADA affects every aspect of the workplace. The Resource Directory offered lists of federal, state, and private organizations that could provide employers with assistance on understanding the ADA, information on specific disabilities, and resources for locating reasonable accommodations.
• January 1992: The EEOC published, with the Dept. of Justice, a booklet reviewing the most commonly-asked questions about the ADA, as well as the ADA Handbook, a compilation of the statute, regulations, and other significant documents on the ADA.
• January 1992: The EEOC and the Dept. of Justice published booklets aimed at employers and individuals with disabilities on their rights and responsibilities.
• July 1992: Just before the ADA's employment provisions went into effect, EEOC, working with the Internal Revenue Service, mailed informational inserts to over 5.9 million businesses, informing employers about their basic responsibilities under the Act and explaining how to obtain a free copy of the ADA Technical Assistance Manual and Resource Guide.
• July 1992: The EEOC provided over 2,000 ADA Congressional Constituency Service Kits to Congressional offices in Washington, D.C. and throughout the country to enable Congressional staff to respond to requests for ADA information from constituents.
• July 1992: The EEOC and Dept. of Justice awarded a $1 million contract to the Disability Rights Education and Defense Fund, a nationally known legal advocacy and education organization, for the purpose of training people with disabilities about the ADA. The training program was jointly developed and funded by the Commission and the Department of Justice and focused on provisions of the ADA barring discrimination against persons with disabilities in employment, public services and public accommodations. As a result, a national ADA Network of trainers was established to provide training and other ADA implementation assistance in their local communities, thereby promoting voluntary compliance. This initiative trained 400 individuals, who in turn trained more than 138,000 employers, public accommodations, government agencies, and individuals.

ENFORCEMENT ACTIVITIES

FILING OF CHARGES

From the ADA's enactment through September 30, 1999, individuals have filed almost 126,000 charges (complaints) of disability discrimination. ADA charges account for over 21% of all charges received by the EEOC. Through September 1999, the Commission resolved 129,140 ADA charges, with 18,694 (15%) of these resolutions in favor of individuals with disabilities.⁽³⁾ The remaining charges were closed for administrative reasons or were dismissed.

EEOC obtained $261 million in benefits for individuals with disabilities through September 1999. Monetary benefits include cash payments as well as jobs, promotions, reinstatements, benefits packages and/or restored pay. Over $18.5 million was awarded in compensatory and/or punitive damages. A total of 19,490⁽⁴⁾ individuals received an average of $13,407 per person.

Over 10,000 individuals have received non-monetary benefits, such as reasonable accommodations, training/apprenticeships, seniority, job referrals, and union membership. Following are examples of cases involving non-monetary benefits:

• A large drug store chain, receiving over 50,000 applications annually, agreed to revise its job application forms, which made unlawful pre-employment inquiries about the nature and severity of applicants' disabilities.
• A nationwide defense contractor agreed, through conciliation, to change its policy requiring employees to disclose the use of all prescription medications on an ongoing basis.
• A labor union, representing workers in a nationwide restaurant chain, agreed in a settlement to renegotiate its collective bargaining agreement to remove a requirement that employees be fully recovered from disabilities before being allowed to return to work.
• A State law requiring a GED or high school diploma for day care assistant positions was changed to recognize "Certificates of Learning" awarded to individuals withmental disabilities.

Types of Employment Discrimination Faced by Individuals with Disabilities

Individuals with disabilities face discrimination in all aspects of employment -- the application and hiring process, compensation and benefits, working conditions, and promotion. The predominant issues alleged under the ADA have been illegal discharge, denial of reasonable accommodation, harassment, and different treatment in the terms of employment. In FY 1999, illegal discharge was alleged in 53% of ADA charges; denial of reasonable accommodation in 32%; harassment in 14%; and different treatment in the terms and conditions of employment in 14% of all charges.

Since July 1992, over 11,500 charges have involved allegations of hiring discrimination. Following are examples of cases involving hiring issues and their resolutions:

• An individual with diabetes was denied a position as a firefighter based on the employer's generalized assessment that his condition would prevent him from safely performing his job. The evidence showed that the individual had safely performed as a volunteer firefighter for 11 years and that his medical documentation failed to show that his disability posed any threat to safety. The employer agreed to hire the individual and provide monetary relief.
• An individual with disfigurement of her face and head was denied a job at a bookstore, despite her qualifications, because of concern about customer reaction to her appearance. The employer agreed to offer a job to the individual and monetary relief.

Many employers continue to make pre-offer inquiries regarding individuals' medical histories and then use that information to screen-out applicants with real or perceived disabilities. For example:

• A trucking company regularly made medical inquiries prior to job offers and then used the information to disqualify applicants. The charging party and 175 other affected applicants were offered jobs, with a lump sum monetary settlement divided among the individuals. The company also agreed to revise its medical inquiry policy and practice to conform with the ADA.
• A coal mine agreed to eliminate its requirement that a complete medical history be provided by applicants at the pre-offer stage of the hiring process. The charging party was offered a job with back pay and benefits.

Applicants and employees with disability often encounter discrimination because employers fail to provide reasonable accommodations. For instance:

• A husband and wife, both with hearing impairments, were employed in a potato processing plant. Their repeated requests for a sign language interpreter at monthly safety meetings were denied. While some written safety materials were provided to the charging parties in lieu of hiring an interpreter, the charging parties were unable to participate in discussions about safety that occurred at the meetings. The employer agreed to hire a qualified American Sign Language interpreter for the meetings and pay compensatory damages to the employees.
• A union filed a charge on behalf of a class of individuals with disabilities employed at a meat packing plant. The employer established a "graveyard" shift specifically to "accommodate" any employee who had medical restrictions or needed light duty. There were no attempts to provide individualized reasonable accommodations for employees in their regular jobs or shifts, and many individuals on this segregated shift were harassed or treated abusively by supervisors. The employer agreed to discontinue the segregated shift, establish procedures for determining reasonable accommodations, provide for monitoring, and pay a large monetary settlement to 60 individuals.
• A medical doctor, who returned to work after a stroke, was provided a reasonable accommodation that permitted him to perform charting duties for a group of doctors, in lieu of working "on-call" hours, which his condition prohibited. Upon his retirement, the employer's insurance company refused to recognize his charting duties as physician duty time for purposes of calculating his retirement benefits. The insurance company settled the charge, agreeing to recognize as physician duties all of the duties performed by the employee as part of his accommodation.

Workers with disabilities often found their careers and earning capacity stunted because of discriminatory attitudes. Since implementation of the ADA, over 5,000 charges allege denial of promotion; almost 4,000 charges allege discriminatory demotion; almost 4,500 allege discrimination in wages; and almost 3,000 allege discrimination in benefits.

Following are examples of cases involving charging parties who were denied promotions:

• An individual who used a wheelchair alleged he was denied a promotion to shift manager because he could not physically enter the respondent's main office. He also alleged he had to use the restroom at a nearby restaurant because the restrooms at his work site were not accessible. The employer agreed to promote the employee to shift manager with back pay and to make its business accessible.
• An employee alleged that because of his disability (HIV infection) he was continuously denied promotion to a store manager position at the coffee shop where he worked. The individual had previously been a store manager at another coffee shop owned by the same company. In addition, he was designated acting store manager at his current location and had performed in such an exemplary manner that the employer paid him a $500 bonus and promised him the store manager position once it became available. Subsequent to this promise, the employee notified the employer that he had HIV infection. When the store manager position became vacant on several occasions, the employee was repeatedly passed over. And when the employee complained about the employer's continuous refusal to promote him, he was discharged. After having been found liable for discrimination, the employer agreed to provide a monetary settlement.

Employers frequently discriminate against workers with disabilities by subjecting them toharassment or intimidation. Over 15,500 charges alleging harassment, and over 2,400 alleging intimidation, have been filed. Following is an example of a case alleging harassment:

• An employee with cerebral palsy alleged that he was harassed, denied promotion, constructively discharged, and denied reinstatement because of his disability. He alleged that his supervisor called him a "gimp" and made other derogatory remarks about his disability, including comments about his noticeable limp. The employer provided a monetary settlement.

Individuals were often the target of discriminatory discipline (over 6,600 charges alleging discriminatory discipline), discriminatory suspension (over 2,500 charges alleging discriminatory suspension), and discriminatory layoff (over 5,200 charges alleging discriminatory layoff). Illegal denial of reinstatement also was an issue alleged in almost 4,000 charges. For instance:

• An individual took a leave of absence to care for her child with a disability. After the child recovered sufficiently to allow the individual to return to work, the employer refused to rehire her because it assumed the child would become ill again, requiring the mother to take more leave. The employer reinstated the woman with full benefits and back pay.
• An employee with insulin-dependent diabetes was denied the ability to test her blood sugar level at her work station, and instead was required to walk the entire length of the plant to go to the first aid department for testing. This requirement exacerbated her condition and she was placed on leave after a serious hypoglycemic reaction at work. The employer reinstated the individual, paid a monetary settlement, and allowed her to test her blood sugar level at her work station. It also changed its policy requiring employees to report prescription medications and medical conditions to the first aid staff.

Over 65,500 charges, more than half of all ADA charges, allege discharge as an issue. For example:

• A maintenance worker employed for more than ten years was diagnosed with spinal arthritis. His employer determined that he no longer could perform the essential functions of his job and discharged him, believing he posed a safety risk. Investigation revealed that it was common practice for maintenance workers to help each other with heavy loads and that the employee could perform the essential functions of his job with no accommodation or restrictions. The employer reinstated the employee with back pay, benefits, and compensatory damages. In addition, the employer agreed to provide ADA training to its managers.
• A class of individuals with mental retardation was discharged from their supported employment placements in the dining hall of an apartment building. The employer stated that the customers were unsure of the workers' abilities to perform their jobs safely. The employer failed, however, to document any customer complaints and failed to consider the statements of coworkers indicating that all of the employees were performing well in their positions. The employer agreed to reinstate all of the individuals, and pay a monetary settlement. In addition, the employer agreed to staff training on the ADA.

MEDIATION

EEOC's mediation program, which became fully operational during the last half of FY 1999, has significantly increased the number of voluntary settlements. The number of ADA charges resolved through mediation almost tripled, from 401 in FY 1998 to over 1,800 in FY 1999, with a success rate of over 60%. In FY 1999, 5% of all ADA resolutions occurred through the mediation process. ADA cases account for approximately 24% of all cases resolved through mediation.

The issues involved in these mediations include failure to provide reasonable accommodations, discriminatory discharge, harassment, and discriminatory treatment in the terms and conditions of employment. Almost half of all ADA charges resolved through mediation resulted in the individual receiving non-monetary benefits, such as reasonable accommodation, rehire, or training. Over $17 million has been obtained through mediation, with an average benefit of $11,000 per person.

Examples of successful mediations include:

• An individual alleged that he was fired after the employer learned he had cancer. As a result of mediation, the employer reinstated the employee, gave him back pay, and the reasonable accommodation of leave when he needed to obtain chemotherapy.
• A class of 27 individuals filed charges alleging that an employer required applicants to fill out a health screening questionnaire prior to any job offer and therefore in violation of the ADA. As a result of mediation, the company agreed to stop using the questionnaire, offered all 27 individuals the opportunity to be reconsidered for employment under a modified application process, paid a total of $950,000 to these individuals, and altered its internal procedures to ensure compliance with the ADA.

LITIGATION

From July 26, 1992, when the ADA was implemented, through the end of fiscal year 1999, the EEOC filed 416 lawsuits including 377 direct lawsuits and seven interventions in federal district court under the Americans with Disabilities Act. The other suits were comprised of 27 subpoena enforcement actions and five Temporary Restraining Orders (TROs). Sixty-one (61) or 15% of all ADA district court cases have been filed as class cases. In the same time period, the EEOC resolved 314 of those lawsuits, including 280 direct suits, seven interventions, 24 subpoena enforcement actions and three TROS, obtaining more than $32 million in monetary relief for individuals who had been discriminated against because of their disabilities. The monetary relief included over $16 million in back pay, close to $1 million in punitive damages and almost $15 million in compensatory damages.

Since the beginning of the EEOC's enforcement of the ADA in 1992 through the end of fiscal year 1999, the EEOC has successfully resolved 277 suits, or approximately 88% of all ADA lawsuits it filed in district court, either by settlement or by favorable court decision or jury verdict. In 25 cases, or approximately 8% of all ADA lawsuits resolved during that time period, district courts issued unfavorable decisions. Twelve, or less than 4% of ADA lawsuits, were dismissed voluntarily.

In addition, EEOC has participated as amicus curiae in 87 cases on issues arising from or connected to the ADA, Rehabilitation Act or state disability discrimination laws since the beginning of the Act's enforcement.

Significant District Court Cases

EEOC's ADA litigation covers all types of employment discrimination faced by applicants and employees with disabilities. For example:

• In EEOC v. Showbiz Pizza Time Inc., d/b/a Chuck E' Cheese, a jury found that a district manager fired a custodian with mental retardation because the company did not employ "those type of people." The jury rejected the company's argument that the employee suffered no more than minimal, if any, pain and suffering because his mental retardation prevented him from experiencing much distress from being fired. The jury awarded the employee $70,000 in compensatory damages for emotional distress and $13 million in punitive damages (which was later reduced to $230,000 because of the statutory cap on damages). The judge also ordered the company to provide back pay and reinstate the employee.
• In EEOC v. General Electric Co. d/b/a GE Appliances, and International Brotherhood of Electrical Workers Local No. 2249, the Commission claimed that the company refused to train an employee as a forklift operator because he is deaf. The company agreed to train and transfer the employee to a material handler position operating a forklift and to pay $28,000 to the National Association of the Deaf Law Center on the employee's behalf.
• In EEOC v. Wal-Mart Stores, Inc., a jury found that Wal-Mart violated the ADA by refusing to hire a job applicant because he had paraplegia and used a wheelchair. The jury awarded the applicant $75,000 in compensatory damages and $3.5 million in punitive damages (which the court reduced to $225,000 because of the statutory damages cap).
• In another case involving Wal-Mart Stores, Inc., a jury found the company had wrongfully suspended and fired a stocker because of his disability (hearing impairment). The Commission had also challenged the store's refusal to provide a sign language interpreter during a mandatory employee meeting. The jury awarded the stocker $75,000 in punitive damages and $3,500 in back pay and compensatory damages.
• In EEOC v. The Kroger Company, the Commission claimed that the grocery store discriminated against a cashier with paraplegia who could not use its restroom or break room because they were located down a flight of stairs. After he filed a discrimination charge with the EEOC, the company provided a reasonable accommodation by building an accessible restroom and break room. (The accessible bathroom is also used by customers with mobility impairments.) The store further agreed to provide him with $225,000 in compensatory and punitive damages.
• In EEOC v. Southwestern Bell Telephone Co., the EEOC challenged the phone company's refusal to allow an air conditioning specialist to return to work following treatment for depression. The company agreed to reinstate the specialist, restore his seniority rights and benefits, and pay him over $24,000 in monetary relief. In addition, the company agreed to improve its assessment of each employee's ability to resume work after a medical leave of absence.
• In EEOC v. Hirschfield Sons Co. d/b/a Hirschfield Steel Center, the Commission claimed that the company fired an employee after he took an approved medical leave for back surgery because it perceived him as having a disability. The company settled this case by providing the individual with $25,000 in monetary relief and reinstating him with full benefits.
• In EEOC v. McCann Power and Equipment, Inc., the Commission alleged that the company refused to hire a mechanic because he has diffuse degenerative disease of the lumbar spine. The company paid the individual $70,000 in monetary relief ($20,000 in back pay and $50,000 in compensatory damages) and offered him a job as a mechanic.
• In EEOC v. Amboy Bus Company, Inc., the Commission challenged a bus company's refusal to reinstate a school bus driver after his left leg was amputated below the knee. The company relied on a New York state law that automatically disqualified individuals who had lost a foot, leg, hand or arm. After the suit was filed, the company reinstated the employee. The court agreed that the bus company had violated the ADA. The parties subsequently settled the case and the driver received $49,000 in monetary relief.
• In EEOC v. El Chico Restaurants of Louisiana, Inc., the Commission challenged a restaurant's refusal to hire a job applicant as a dishwasher because he was blind. During the interview, the restaurant did not even allow the applicant to demonstrate how he could do the job. The restaurant agreed to provide the applicant with $24,000 in monetary relief and to train its managers on ADA issues.
• In EEOC v. Guardsmark, Inc., the Commission claimed that the company fired a security guard because he had insulin-dependent diabetes. The company reimbursed the guard $25,000 in back pay and compensatory damages and donated $25,000 to a scholarship fund for persons with disabilities.
• In EEOC v. Armstrong Brothers Tool Co., a subsidiary of Danaher Corp., the Commission challenged the company's firing of a sales representative because he had epilepsy and previously had surgery for a brain tumor. The company paid the former sales representative $135,000 ($27,000 in back pay and $108,000 in compensatory damages).
• In EEOC v. Affine Corporation f/k/a Ruppman Marketing Technologies, Inc., the Commission sued a company that provides technical support for computers and other electronic equipment for refusing to hire a job applicant because he requested an accommodation for his multiple sclerosis. The company paid the applicant $36,000 in damages.
• In EEOC v. Smith Barney, Inc., the EEOC claimed that the firm fired an employee when she tried to return to work after receiving treatment for breast cancer. The company provided the individual with $150,000 in monetary relief.
• In EEOC v. Professional Relief Nurses, Inc., the Commission claimed that the company refused to hire a job applicant as a nursing coordinator because of her history of schizophrenia, even though she was highly qualified for the job. The applicant received $35,000 in compensatory damages and attorneys' fees.
• In EEOC v. Union Carbide, the Commission sued the company for failing to accommodate an employee's bipolar disorder when it refused his request for a non-rotating or relief shift schedule and subsequently fired him because of his disability. The company paid the individual $120,000 in compensatory damages and agreed to provide accommodations for employees with disabilities in the future.

When Congress passed the ADA, it intended, among other things, to outlaw discrimination against individuals with disabilities that arose because of the myths, fears, and stereotypes of employers. Many of EEOC's lawsuits are directed at eliminating these perceptual barriers. Examples include:

• In the very first lawsuit filed by the EEOC under the ADA, EEOC & Charles Wessel v. AIC Security Investigations, Ltd, et. al., the EEOC won a jury verdict finding a security firm had unlawfully fired its Executive Director because he had terminal brain cancer. The company contended that the executive could not continue working with a terminal illness. The executive was awarded $22,000 in back pay, $50,000 in compensatory damages, and $150,000 in punitive damages.
• In EEOC & John Doe v. Campbell University, Inc., the Commission successfully challenged the university's termination of a physical education instructor because he had AIDS. At the outset of the lawsuit, the court ordered the university to continue paying the instructor's health insurance benefits, pending trial. The university later agreed to provide the instructor with continued employment, salary and benefits, and $325,000 in monetary relief.

In the early years of enforcing the ADA, the EEOC challenged several employers who provided lower health insurance benefits for individuals with AIDS and HIV infection than for individuals with other catastrophic disabilities. In every instance, the health insurance plan was changed to provide the same monetary benefits for treatment of AIDS and HIV infection as those provided for treatment of other catastrophic disabilities.

• In EEOC v. The Gage Co., for example, the EEOC obtained the company's agreement to eliminate the $5,000 cap on AIDS-related treatments and replace it with the $1 million cap applicable to other major illnesses. In addition, the company provided $100,000 in a discretionary trust for the employee with AIDS.

In addition, the EEOC has also challenged other illegal limitations in health insurance coverage. For example:

• In EEOC v. The Hertz Corp., et al., the Commission successfully challenged a medical insurance policy that provided only limited reimbursement on the cost of hearing aids. This limit did not apply to any other assistive medical device. The company agreed to change its insurance plan to cover reasonable costs for hearing aids and provide them for an employee's daughter, who had a hearing impairment.

Employers are required to provide reasonable accommodations for qualified individuals with disabilities, unless it would result in undue hardship. Most accommodations are simple and inexpensive.

• In EEOC v. Bloomingdale's, Inc., the Commission claimed that the department store violated the reasonable accommodation requirement by refusing to allow an employee to sit on a stool 5 to 10 minutes per hour when she became fatigued by her systemic lupus. The store provided the individual with $75,000 in monetary relief and agreed to train its managers on the requirements of the ADA.
• In EEOC v. Big Rivers Electric Corp. & International Brotherhood of Electrical Workers, Local 1701, the Commission claimed that the company denied training to a utility coal handler, who was deaf. The Commission also challenged the company's refusal to provide the handler with reasonable accommodations, such as a vibrating pager to communicate instructions to him and a light that flashed when the conveyer belt started. The company provided $10,000 in damages to the worker and agreed to provide him with the reasonable accommodations he needed to perform his job.
• In EEOC v. United Public Workers, AFSCME, Local 646, the Commission sought the provision of sign language interpreters at union meetings for two union members who are deaf. The union has now agreed to provide interpreters for hearing impaired members and accommodations for its members who have other disabilities. The union also provided the two union members with nearly $50,000 in monetary relief.
• In EEOC v. MCI Telecommunications Corp., the Commission claimed that the company wrongfully failed to accommodate an employee with muscular dystrophy when it refused to provide him with wheelchair-accessible transportation to an employer-sponsored event. The company paid the employee $5,000 in compensatory damages and agreed to provide accommodations for employees who use wheelchairs so they could participate fully in any company-sponsored event, along with other employees.
• In EEOC v. Calmat Co., the EEOC sued the company because it routinely fired employees with disabilities at the end of a 90-day leave period, even if they could perform other available jobs or resume their old jobs after additional unpaid leave. The EEOC argued that this policy wrongfully denied reasonable accommodations to employees with disabilities. The company paid a total of $140,000 ($70,000 in back pay and $70,000 in compensatory damages) to three individuals and agreed to modify its policy to provide that a reasonable accommodation for qualified individuals with disabilities may include granting medical leaves of absence in excess of 90 days and/or reassignment to a vacant position.

Harassment based on disability is real. People with disabilities are often harassed on the job by their coworkers, and sometimes even by their supervisors.

• In EEOC v. Chomerics, Inc., et al., the Commission claimed that a chemical worker's co-workers and supervisor harassed and mocked him because he had cerebral palsy. After the worker told his supervisor about being harassed, the supervisor joined in the mocking and criticized the worker's performance. The individual finally quit when he received a threat to blow up his house. The company agreed to provide the worker with $98,000 in back pay and compensatory damages.
• In EEOC v. Gulf Grinding Co., Inc. d/b/a Gulf Precision Industries, Inc., the Commission claimed the company told its workers that a fellow employee had AIDS and then asked them to vote on whether he should be allowed to stay (they voted him "out"). The company settled this case shortly after suit was filed and paid the individual $65,000 in compensatory damages.
• In EEOC v. Orian Rugs, Inc. , the Commission sued the company for allowing employees to call a fellow worker derogatory names because she'd had polio and still experienced some of its effects. The name-calling so demoralized the individual that she left the company. The company provided the former employee with $18,500 in monetary relief and promised to train its managers each year on equal employment opportunity issues.

Although the ADA expressly prohibits employers from asking about disabilities before offering a job to an individual, this practice still persists.

• In EEOC v. Wal-Mart Stores, Inc., a jury agreed with the Commission and found the store's hiring official had illegally asked a job applicant about his disability (amputated arm) in a job interview, and then refused to hire him. The applicant was awarded $7,500 in compensatory damages and $150,000 in punitive damages. The judge also ordered the company to stop questioning applicants about their disabilities. The jury verdict was upheld on appeal.
• In EEOC v. Community Coffee Co., Inc., a jury decided that the company had unlawfully quizzed a job applicant about his disabilities (facial disfigurement, visual and hearing impairments) during a job interview. The jury awarded the applicant $15,000 in compensatory damages.
• In EEOC v. Yale E. Key, Inc. f/k/a Cobra Industries, Inc., the Commission contended that the company routinely asked job applicants about their medical conditions. The company agreed to change its hiring practices and stop asking applicants about disabilities.

One of the primary purposes of the ADA is to eliminate job criteria that screen out individuals because of their disabilities even though they are fully qualified for the job. The Commission has challenged numerous screening devices that unnecessarily kept individuals with disabilities and individuals who were regarded as disabled from working.

• In EEOC v. DSI Transports, Inc., the EEOC claimed the company revoked job offers for truck driver positions when its medical personnel found that applicants had conditions such as back anomalies, non-insulin dependent diabetes, spondylolisthesis or high blood pressure. The company did not try to determine whether the applicants could actually perform the driver jobs. After the Commission filed suit, the company agreed to pay a total of $200,000 to 43 applicants whose offers had been revoked. The company also set up an appeal procedure for applicants who are rejected on the basis of their physical examinations.

The Commission has brought several lawsuits where employers have discriminated against an applicant or employee because that individual had an association with a person with a disability.

• In EEOC v. Jarvis Products Corp., the Commission claimed that the company withdrew an offer to a maintenance mechanic after discovering his wife has multiple sclerosis. The company provided the mechanic with $70,000 in monetary relief ($35,000 in back pay and $35,000 in compensatory damages).

Significant Supreme Court and Appellate Court Decisions

The Commission participates in various appeals by filing a "friend-of-the-court" (amicus curiae) brief that explains the Commission's views on basic legal questions in the case. Participating in these cases gives the Commission an opportunity to make its views known to the courts in more cases than it is able to bring on its own. Furthermore, the Commission can select cases that present important issues where the courts are not in agreement, and it has the opportunity to try to create consistency in the interpretations of the ADA. The three general issues the Commission has addressed in most of its friend-of-the-court briefs are questions about whether people meet the ADA definition of "disability," whether individuals are qualified to perform the job at issue, and whether the reasonable accommodations they need to be able to work are required by the ADA.

Determining whether a person has an ADA "disability" has been a major focus of Commission briefs. One of the most significant issues was whether a person's use of mitigating measures, such as medications and assistive devices that eliminate or reduce the effects of an impairment, should be considered in evaluating whether the person has an ADA "disability."

• In June 1999, the Supreme Court ruled that such a determination requires looking at the person with all the mitigating measures s/he uses to decide how severely the condition limits him/her. In Sutton v. United Airlines, the Supreme Court concluded that individuals whose poor vision is corrected to 20-20 when they wear glasses do not have a disability within the meaning of the ADA. At the same time, in Murphy v. United Parcel Service, the Court decided that a person whose hypertension is largely controlled with medication is not disabled under the ADA. In a related case involving a person with monocular vision, Albertsons, Inc. v. Kirkingburg, the Court said that mitigating measures include any compensating behaviors an individual develops that limit the effects of an impairment, but that "people with monocular vision 'ordinarily' will meet the Act's definition of disability."
• While the Court rejected the government's views on the role of mitigating measures in determining whether an individual has a disability, it emphasized that many persons may still have covered disabilities despite the use of such measures or even because of their side effects.

Other significant cases have established important rulings that persons with various impairments who experience serious limitations are covered under the ADA. For example:

• In Lowe v. Angelo's Italian Foods, the Tenth Circuit agreed that an individual with multiple sclerosis who is significantly restricted in her ability to lift is covered under the ADA.
• In Mondzelewski v. Pathmark Stores, Inc., the Third Circuit agreed that an individual with a back injury who can no longer do the heavy lifting involved in the only type of jobs he is qualified to do by virtue of his training and experience has a disability under the ADA.
• In Pack v. Kmart, the Tenth Circuit agreed with the Commission that an individual with depression that substantially interferes with her ability to sleep would have a covered disability.

The ADA protects not only those persons who currently have impairments that significantly limit them, but the law offers protection to persons who have a record or history of having a disability. In addition, the ADA can protect individuals who employers regard as having a disability.

• In EEOC v. R.J. Gallagher, the Fifth Circuit agreed with the Commission that an individual with cancer has a covered disability, even if he is currently functioning well after treatment, because of his history of disability. The court also agreed that the employer regarded the employee as having a current disability because its offer of a lower position, with a 50 % reduction in salary, demonstrated that the employer did not think the employee, because of his history of cancer, could perform his original, more demanding job.

A second major focus has been whether individuals are qualified to perform the jobs at issue. One question was whether individuals who seek or obtain disability benefits by saying they are "totally disabled" or "unable to work" can also claim to be able to work under the ADA.

• In one of the first ADA cases to reach the Supreme Court, Cleveland v. Policy Management Systems Corp., the Court agreed with the EEOC that claims for disability benefits do not necessarily conflict with ADA claims because the two statutes define disability differently and take different approaches to considering whether someone can work. The Court ruled that someone who has said she is "totally" disabled to get benefits must be given a chance to explain why that is not inconsistent with her ADA claim that she could perform the "essential functions" of her job. As the Court noted, in many cases a person can work if given the reasonable accommodations required by the ADA.

The Commission also has been active in determining the proper standard for assessing whether an individual is qualified to perform the essential functions of the position in question.

• In Deane v. Pocono Medical Center, the Third Circuit agreed with the EEOC's position and decided that if an employer regards a person as disabled, that person only has to prove that she can perform the essential functions of the job at issue, rather than all the functions of the job, including the marginal ones. Thus, the person who is regarded as disabled has to meet the same requirements as a person who is actually disabled.

The third major focus of the Commission's friend-of-the-court filings has been the contours of the reasonable accommodation requirement.

• In Aka v. Washington Hospital Center II, the D.C. Circuit agreed with the Commission that an employer must consider reassigning an employee with a disability to a vacant position as a reasonable accommodation.
• In Smith v. Midland Brake, Inc., the Tenth Circuit agreed with the Commission's legal position, ruling that the reassignment accommodation extends to an employee who, due to a disability, becomes unable to perform his current job. The court also ruled that an employer may be required to reassign a disabled employee to a vacant position for which the employee is qualified even if there is a more qualified individual who could fill the position.
• In Benson v. Northwest Airlines, the Eighth Circuit agreed with the Commission that once an employee points to a possible reasonable accommodation, it is up to the employer to show that the employee is unable to "perform the essential functions of the job" with that accommodation. If the employer cannot show that, it is required to provide the accommodation, unless it would pose an undue hardship.
• In Rascon v. US West Communications, Inc., the Tenth Circuit agreed with the Commission that a leave of absence of nearly five months for a treatment program was a reasonable accommodation.
• In Nunes v. Wal-Mart Stores, Inc., the Ninth Circuit agreed with the EEOC's position that an individual who is fired because she has fainted at work and is unable to work on the day her employer wants her to return is entitled to the reasonable accommodation of leave and that the decision about whether she is qualified to perform essential job functions must be made in light of the leave accommodation.

Finally, the Commission has participated in cases involving other significant issues. For example, the EEOC has argued in support of the right of those without disabilities to challenge pre-employment inquiries.

• In Griffin v. Steeltek, Inc., the Tenth Circuit agreed with the Commission that a job applicant does not have to have a disability in order to challenge an employer who asks prohibited medical questions prior to offering the individual a job, so long as s/he then suffers an adverse employment action.
• In Roe v. Cheyenne Mountain Conference Resort, the Tenth Circuit agreed with the Commission that a current employee who does not have a disability may challenge an employer's illegal inquiries about lawful prescription drug use.

REGULATIONS, POLICY GUIDANCES, AND RELATED DOCUMENTS

The Commission's enforcement and litigation efforts are guided by the statute itself, by its legislative history, and by the regulations and policy documents issued by the EEOC over the past nine years. Beginning with the 1991 publication of the ADA regulations, EEOC has issued numerous policy documents addressing almost every aspect of the law. These guidances promote public understanding of the ADA's requirements and voluntary compliance with its mandates, and assist EEOC staff in investigating and enforcing the ADA. They also influence judicial interpretations of the ADA, thereby contributing to the development of the law. Many of these documents can be found on the EEOC's web site: www.eeoc.gov.

The EEOC has issued the following regulations, policy guidances, and related documents:

• August 14, 1990: Guidance providing information on the major provisions of the ADA and explaining the EEOC's responsibilities to implement and enforce the employment provisions of the Act.
• July 26, 1991: ADA Final Regulations and Interpretive Guidance. The Regulations implement the ADA's employment provisions, while the Interpretive Guidance offers examples and illustrations to further explain the requirements of the ADA.
• January 24, 1992: Regulations (issued jointly with the Department of Labor) addressing the relationship between the ADA's employment provisions and section 503 of the Rehabilitation Act of 1973, which covers federal contractors.
• April 21, 1992: Regulations (issued jointly with the Department of Justice) addressing the relationship between the ADA's employment provisions and section 504 of the Rehabilitation Act, which covers programs and services receiving federal financial assistance.
• June 8, 1993: Guidance on ADA and Employer-Provided Health Insurance, describing the type of health plan provisions that do and do not violate the ADA, and describing defenses available to employers.
  • The guidance was critical to the Commission's early enforcement efforts - when the agency was successful in eliminating many health plan provisions that unlawfully limited the amount of coverage available to people with HIV and AIDS.
• 1994: A Memorandum of Understanding between the EEOC and the National Labor Relations Board (NLRB) to coordinate issues related to the ADA and the National Labor Relations Act.
• March 14, 1995: "Compliance Manual Section on the Definition of Disability," providing a thorough analysis of the most fundamental issue that arises in almost every ADA case - whether the individual alleging discrimination has a "disability."
• May 11, 1995: Fact Sheet on Disability Retirement Plans, explaining the difference between a disability retirement plan and a service retirement plan and providing guidance to EEOC field offices on issues relating to these plans.
• October 10, 1995: Guidance on Disability-Related Questions and Medical Examinations, addressing the most frequently-asked questions on when employers may or may not inquire about the physical or mental conditions of applicants.
  • Congress recognized that historically many employers have used information about physical or mental conditions to deny employment without ever considering an applicant's actual ability to perform a job. For this reason, the ADA generally prohibits disability-related inquiries and medical examinations until after an employer has given an applicant a conditional offer of employment.
• November 1995: Fact Sheet providing answers to commonly-asked questions about the relationship between the ADA, Title VII of the Civil Rights Act, and the Family and Medical Leave Act of 1993.
• September 3, 1996: Guidance on the ADA and Workers' Compensation, addressing the Commission's position on the interaction between the ADA and state workers' compensation laws. This guidance covers fundamental issues such as confidentiality of medical information, return-to-work decisions, reasonable accommodation, and light duty.
• February 12, 1997: Guidance on Relationship between Application for Disability Benefits and Coverage Under the ADA, which explained that statements made in connection with an application for disability benefits, such as Social Security Disability Insurance and workers' compensation, should not automatically bar coverage under the ADA.
  • Prior to the issuance of the guidance, several courts had dismissed ADA claims by individuals who claimed they were unable to work when applying for disability benefits. These courts had viewed these individuals as making inconsistent statements.
  • The guidance played a vital role in reversing a judicial trend that, in effect, required individuals with disabilities who were out of work to choose between their ADA rights and needed income. In 1999, the Supreme Court essentially adopted the position set forth in the guidance that representations in applications for disability benefits are relevant, but not decisive, in determining whether someone is a qualified individual with a disability under the ADA.
• March 25, 1997: Guidance on ADA and Psychiatric Disabilities, addressing challenging questions about psychiatric disabilities that are frequently not understood by employers or the general public.
  • The guidance describes how to determine whether an individual has a psychiatric disability within the meaning of the ADA. The guidance states that questions about mental illness are not permitted on job applications, describes various types of reasonable accommodations that may be effective for employees with psychiatric disabilities, and provides practical answers to questions about workplace conduct issues.
  • The guidance was the catalyst for a constructive public discussion about psychiatric disabilities in the workplace, and it has worked to expose many of the myths, fears, and stereotypes surrounding psychiatric disabilities.
• March 1, 1999: Guidance on Reasonable Accommodation and Undue Hardship, addressing a wide range of issues concerning one of the key requirements of the ADA, reasonable accommodation.
  • The guidance explains what constitutes a request for accommodation and how an employer should respond to a request, provides critical information about documenting non-obvious disabilities, describes many types of effective accommodations, and discusses the defense of "undue hardship."
  • The accommodations of leave and reassignment are given particular attention, because they present some of the most complex and challenging issues for EEOC investigators and attorneys, employers, persons with disabilities, and courts.
• July 26, 1999: Instructions for Field Offices, which reviews three Supreme Court decisions examining the definitions of "disability" and "qualified."
  • The Supreme Court in 1999 ruled that mitigating measures, such as medications and assistive devices, must be considered in determining whether an individual has a disability within the meaning of the ADA. These instructions take investigators through a series of questions designed to determine whether people who use mitigating measures might still meet the ADA definition of disability despite, or because of, the use of a mitigating measure.
  • This document provides EEOC investigators with guidance on evaluating ADA charges involving people who use medications or assistive devices to eliminate or reduce the effects of an impairment.

CONTINUING TECHNICAL ASSISTANCE AND OUTREACH EFFORTS

The EEOC continues to use various mechanisms to provide technical assistance and training to employers and individuals with disabilities. To date, EEOC representatives have spoken at over 3,000 events nationwide, educating hundreds of thousands of individuals representing employers; disability organizations; labor unions; state and local government agencies; legal and business groups; public safety organizations; insurance, workers' compensation, and benefits groups; rehabilitation agencies; and human resource professionals through conferences, workshops, and training programs. Each year the EEOC conducts over 200 education programs nationwide aimed at all interested parties. In FY 1999, 27,000 people attended such events. In addition, EEOC Commissioners have used Commission meetings and media events to highlight critical ADA issues. The EEOC continues its distribution of all of its technical assistance booklets, fact sheets, and policy documents through its Publications Distribution Center and through its web site. In addition, Commission staff provide individualized telephone assistance, answering questions and helping find solutions to difficult workplace issues.

The EEOC has worked in partnership with diverse organizations to promote compliance with the law and to achieve broad support for the ADA's goals. For example:

• EEOC has worked closely with the 10 regional Disability and Business Technical Assistance Centers, which are funded by the U.S. Dept. of Education. These Centers provide a full range of educational and technical assistance services to employers, persons with disabilities, and others. Thus, they represent a critical link in providing timely, accurate, and complete information on the ADA. EEOC has worked with these groups from their inception, providing semi-annual legal updates, conducting in-depth training programs, supplying a wide range of educational and technical assistance materials, participating in their conferences, and consulting on difficult ADA issues.

The EEOC recognized that its efforts alone cannot ensure full compliance with the ADA. Therefore, the EEOC has aimed many of its outreach efforts at key organizations and interested groups who can, in turn, increase awareness of the ADA and promote compliance. At the local, state, and national levels, EEOC field offices and headquarters staff have provided training and materials to assist in these efforts. Examples include:

• A training seminar at an occupational health services program for medical personnel and physical therapists who work with injured employees attempting to return to work. Some of these employees will have various restrictions because of their disabilities. The session provided participants with a better understanding of how their work impacts reasonable accommodation decisions for employees returning to work.
• A training seminar at a conference for long term disability insurance companies that are promoting efforts to enable employees to return to work. EEOC staff showed how the goals of the ADA, and particularly the provision of reasonable accommodations, allow employees to return to their jobs. Thus, by understanding the ADA better, these managers can work with employers to get reasonable accommodations for employees.

Identifying and reaching out to under-served populations is critical to ensure that all individuals with disabilities are aware of their rights. For instance:

• A field office staff visited safe houses and domestic violence shelters to discuss residents' concerns about their coverage under the ADA, including coverage for post-traumatic stress disorder and depression.
• One office made a presentation, in partnership with the Department of Labor Women's Bureau, to the National Center for Latinos with Disabilities. The mostly non-English speaking audience received guidance on identifying possible ADA situations, filing charges, and understanding EEOC's investigative process.
• Staff participated in taping a Spanish legal information show, called "Despacho Juridico," which was broadcasted on a local Spanish-speaking radio station with an audience of almost two million listeners.
• A Commissioner addressed the "Asian Pacific Islanders with Disabilities Regional Conference." The aim of the conference was to promote a deeper understanding of disability from a cultural perspective and to recognize that Asian Pacific Islanders with disabilities are likely to face dual discrimination - race/national origin and disability.

Fostering relationships with community groups, as well as public and private organizations that develop and interpret ADA case law, has been an on-going goal of the EEOC. For example:

• In one district office, attorneys joined the Disability Roundtable, a group of attorneys and advocates for the disability community, who meet monthly to discuss new case law and ways to help the disability community learn more about their rights.
• In another office, field staff conducted annual ADA training sessions with the state vocational rehabilitation agency and employment security commission; the local county employees and bar associations with a human affairs commission, and other local fair employment agencies.

Promoting sensitivity to persons with disabilities and understanding of the ADA has been an important aspect of fighting discrimination in the workplace. Following are examples of how EEOC is working to train management and labor organizations:

• One field office provided ADA training to approximately 300 supervisors, managers, and human resources staff of two public utilities, one of which was the state's largest employer. The office also conducted ADA training for a large group of state government supervisors, managers, and human resources staff. Participants represented hundreds of employers state-wide, significantly impacting employer practices.
• A district office conducted workshops at the AFL-CIO's National Conference on Disability as part of an on-going training process with labor unions.
• Another office conducted a 2-day seminar at the United Steel Workers Local 626 attended by over 150 union stewards and members seeking a better understanding of disability law.
• Staff members appeared on a radio program reaching audiences in a four-state area, to discuss how the ADA applies to persons with psychiatric disabilities.

CONCLUSION

This Report reflects the diverse work of the EEOC during the ADA's first decade. Building on these accomplishments, EEOC will continue its multi-faceted approach to increase understanding of the ADA's requirements and encourage compliance. Education and technical assistance efforts will offer information and training to all interested parties. The ADA will continue to represent a significant portion of EEOC's mediation program, promoting voluntary compliance and a greater understanding of the needs of individuals with disabilities. EEOC will continue to use the administrative enforcement and litigation programs to ensure that the rights of individuals with disabilities are upheld. All of these efforts fulfill one of the ADA's key promises -- ensuring that individuals with disabilities have an equal opportunity to compete and succeed in the American workplace.

Information about the EEOC and the laws it enforces, as well as charge and litigation statistics, can be found at the following web site: www.eeoc.gov.

1. U.S. Equal Employment Opportunity Commission Press Release, "EEOC Celebrates Anniversary of Landmark Disabilities Act", July 27, 1999

2. "Disability Watch: The Status of People with Disabilities in the United States," Disability Rights Advocates, Inc., 1997.

3. Over 13,000 charges were transferred from State and local enforcement agencies to the EEOC for investigation, thus resulting in a higher number of resolutions (129,000) than charges originally filed with the EEOC (126,000).

4. The total of persons benefitted exceeds the total number of ADA charges resolved in favor of charging parties because other aggrieved persons, in addition to charging parties, are often identified during the course of investigations.