U.S Equal Employment Opportunity Commission and
Department of Justice Civil Rights Division
Town Hall Listening Session on the ADAAA Proposed Regulations
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Please note: The text below was provided by a Communication Access Realtime Translation (CART) contractor for attendees with hearing impairments at the town hall listening session. As the name of the service indicates, the CART text is typed by the contractor as it is heard and displayed simultaneously so that attendees with hearing impairments can read what is being said at the time it is being said. By its nature, it is not likely to capture accurately every word, point or nuance intended by the speaker. The CART translation is not intended to be a verbatim transcript and may not be entirely accurate. It is included here only to provide general information on the speakers and the gist of their remarks. Any errors or apparent gaps should not be attributed to the speaker but to the nature of the simultaneous translation methodology.
CHRISTINE GRIFFIN, Acting Vice Chair, EEOC;
SAMUEL BAGENSTOS, Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice;
CONSTANCE BARKER, Commissioner, U.S. EEOC;
JOHN WODATCH, Chief of the Disability Rights Section of the Civil Rights Division, U.S. Department of Justice;
MAZEN BASRAWI, Counsel to the Assistant Attorney General for Civil Rights, U.S. Department of Justice.
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>> CHRISTINE GRIFFIN: Hi, everyone. My name is Christine Griffin. I'm Acting Vice Chair of the Equal Employment Opportunity Commission, and I would like to welcome everyone here and get everyone up here to introduce themselves, if I could. And I think -- do you want me to pass this -- I guess we all have access to –
>> CONSTANCE BARKER: This appears to be turned off. I'm Constance Barker, and I'm one of the five Commissioners -- two of whom are here today. And thanks so much for coming. We appreciate you taking the time to come and give us your thoughts on this.
>> JOHN WODATCH: Good morning; my name is John Wodatch, I'm the Chief of the Disability Rights Section in the Civil Rights Section at the Department of Justice. We'll be joined later in the morning by Samuel Bagenstos, who is Deputy Assistant Attorney General for Civil Rights.
>> MAZEN BASRAWI: Good morning, everyone. My name is Mazen Basrawi; I am a counsel to Tom Perez, the Assistant Attorney General for Civil Rights. And thank you for having us here, and I look forward to hearing from you.
>> CHRISTINE GRIFFIN: Before we begin, I want to thank Access Living for hosting this and letting us use the space. If you haven't seen the epitome of accessibility before, this is it. Those of you going back to your offices, note all these things that are in this marvelous building that Access Living built -- and give you ideas about access. I want to thank our EEOC office for helping put this together. Jack, do you want to say anything?
>> JACK ROWE: Welcome everybody, and we're glad we were able to be of assistance in putting it together.
>> CHRISTINE GRIFFIN: You know we're here to talk about the ADA Amendments Act. This is a listening session, not a dialogue. We want to hear from you. I guess we're going to start with Barry Taylor. We're asking people to stay around five minutes or so, but we're not -- this isn't hard and fast, so...
>> BARRY TAYLOR: Good morning. My name is Barry Taylor; I'm the Legal Advocacy Director at Equip for Equality. Equip for Equality is an independent not-for-profit organization designated by the Governor in 1985 to administer the Protection and Advocacy system for people with disabilities in Illinois. Equip for Equality's mission is to advance the civil and human rights of people with disabilities, and this is accomplished through self-advocacy training and technical assistance, legal services, abuse investigations and public policy initiatives.
Among the legal issues that Equip for Equality focuses upon is discrimination under the ADA. We appreciate the opportunity to give our perspective on the EEOC's proposed regulations under the Act of 2008. We will be submitting more detailed written comments, but today want to give our perspective on broader issues raised by the ADA Amendments Act and proposed regulations.
Since the passage of the ADA, Equip for Equality has responded to thousands of calls about discrimination people have experienced in the workplace, from state and local governments, from transit authorities, and private businesses. We brought numerous, successful individual and systemic ADA cases on behalf of people with disabilities across the State of Illinois.
However, for many people with disabilities, Equip for Equality cannot provide them with assistance. Our decision was not because their claims of disability discrimination were without merit, but because the narrow interpretation of the definition of disability by the United States Supreme Court and the lower courts meant that their cases would likely be dismissed without the courts addressing whether they experienced discrimination or not. As a result, people with all types of disabilities, including people with mental illness, diabetes, epilepsy, and learning disabilities, were unable to obtain the legal redress for the discrimination they experienced.
We were very pleased when Congress passed the ADA Amendments Act to correct the overly narrow interpretations of the definition of disability by the courts. We were pleased that Congress found that the inquiry into whether a person's impairment is a disability should not demand extensive analysis. Rather, the focus should be on whether the entities covered by the ADA have complied with their obligations.
We were also very pleased with the EEOC's proposed regulations under the ADA's Amendments Act. We believe the regulations provide useful interpretations and examples that will provide guidance to the court, entities covered under the ADA, and people with disabilities.
In the ADA Amendments Act, Congress explicitly listed numerous life activities,but made clear the list was not exhaustive. We commend the EEOC for enumerating additional major life activities and bodily functions that will provide further assistance to the courts.
We agree with the EEOC's position that disability should be based on common sense and not on scientific or medical evidence. Many people with disabilities have limited resources, and requiring them to hire an expert witness to confirm their disability often poses an insurmountable barrier that prevents them from pursuing their ADA cases.
We appreciate the EEOC taking a broad view of what constitutes a mitigating measure and providing numerous examples. The Supreme Court's decision in Sutton prevented so many people who use mitigating measures from enforcing their ADA rights. The EEOC's regulation on this issue will ensure that courts shift their focus off of how people choose to address the manifestations of their disabilities and instead focus on whether they have been treated differently because of their disabilities.
We commend the EEOC for providing more in-depth analysis and specific examples of impairments that are episodic or in remission. Disabilities are often unpredictable and changing, but that should not preclude people from obtaining vindication for discriminatory treatment.
We also agree that certain impairments will require a quick and easy individualized assessment to determine that they are substantially limited in a major life activity. The EEOC's regulation on this issue is consistent with Congress' desire that courts not spend significant time on the determination of disability when common sense would make it clear that the person has an ADA disability.
We commend the EEOC for providing various examples on the "regarded as" and "record of" prongs of the definition of disability. The examples the EEOC provides in its proposed regulations should be very beneficial to the courts as they adjust their interpretation for these prongs.
While today's focus is on the Proposed Regulations under the ADA Amendments Act, we would like to take this opportunity to make two quick points to our colleagues at the Department of Justice. First, we want to commend the DOJ for its recent focus on the Supreme Court's Olmstead decision. DOJ's report on Howe Developmental Center will make an enormous difference in the lives of people seeking to transition to community living. We hope DOJ will make it a continuing priority and recommend that DOJ issue formal guidance on what constitutes a fundamental alteration in Olmstead cases. Second, we implore DOJ to issue a regulation making clear that "place of public accommodation" under Title III does not require physical space and thus would allow people with disabilities to obtain redress for inaccessible websites, discriminatory insurance policies, and other nonphysical public accommodations.
I wouldn't be a good advocate if I didn't take that chance to express that to you.
Thank you very much for this opportunity. I'm happy to answer any questions you might have.
>> CHRISTINE GRIFFIN: Thank you. Next we have Rae Vann.
>> RAE VANN: Good morning, Acting Vice Chair, colleagues. On behalf of the Equal Employment Advisory Council, my name is Rae Vann; I'm General Counsel, and I thank you for the opportunity to appear before you to discuss the Commission’s proposed revisions to the ADA regulations and interpretive guidance in light of the ADA Amendments Act of 2008.
My testimony today will summarize some of our most pressing concerns about the proposed rule. We do look forward to submitting detailed written comments later this month describing more fully our views and recommendations on the proposal as a whole.
As you know, EEAC is a nationwide association of employers that are committed to providing sound approaches to the elimination of employment discrimination. EEAC’s membership includes over 300 of the nation's largest private sector companies, collectively providing employment to over 20 million people throughout the United States. Its members are committed to the principles of nondiscrimination and thus fully support the ADA's continuing aim of eliminating discrimination against employees and applicants with disabilities. As was the case when the ADA was first passed in 1990, protecting the rights of individuals with disabilities is a public policy imperative, and EEAC commends the Commission on its efforts to revise its existing ADA regulations and interpretive guidance to reflect this important goal.
While several aspects of the proposed rule reflect, in our view, a reasonable interpretation of the ADA Amendments Act, we believe a number of others well exceed the specific rulemaking mandate conferred upon the Commission by Congress and represent interpretations of that law that may be extremely confusing and thus difficult to apply in practice.
I will focus my remarks this morning on four specific areas. First, the proposed deletion of the "condition, manner or duration" standard in determining substantial limitation; second, the Commission’s proposed revisions to its interpretations of the major life activity of working; third, the proposed creation of a "per se" disabilities list; and then finally, the proposed regulatory expansion of the "regarded as" prong of the definition of disability.
First, the EEAC strongly disagrees with the Commission’s proposed deletion of the condition, manner or duration standard used to determine whether an individual is substantially limited in a major life activity.
Despite the quite specific mandate given to it by Congress, the Commission has proposed to revise its current regulatory definition of "substantially limits" not only by removing the specific language expressly rejected in the ADA Amendments Act, but also by deleting the condition, manner or duration factors that currently are to be used in determining whether or not an individual is substantially limited in a major life activity.
The Commission explains the proposed change by reciting Congress's clear instruction in the Amendments Act that "substantially limits" is not to be misconstrued to require the level of limitation and the intensity of focus applied by the Supreme Court in the Toyota case. Yet, there is no indication whatsoever from either the plain text of the Amendments Act or its legislative history that Congress intended that the Commission modify or eliminate the functional condition, manner, duration standard which has served as a practical and useful means for determining whether or not a particular impairment substantially limits an individual's performance of a major life activity.
To the contrary, the condition, manner or duration test is referenced specifically in the legislative history leading up to the 1990 ADA, and Congress in enacting the Amendments Act also cited it with approval, calling it a useful test. The Commission’s Office of Legal Counsel also has described the standard as being relevant in assessing the extent to which a major life activity can be performed, the way it is performed, the effort required to perform it, or the effects on an individual of performing it.
Because there's no indication, from what we've been able to see, that the plain text of the Amendments Act or its legislative history -- that Congress intended that the Commission modify or eliminate functional condition, manner or duration test, which as I said, is a practical means of establishing substantial limitation, EEAC respectfully urges the Commission to reinstate condition, manner, or duration in the final rule.
Second, EEAC believes that the Commission’s proposed revisions to the major life activity of working are unworkable -- no pun intended -- as a practical matter and are inconsistent with Congressional intent. The Amendments Act, as you know, incorporates a two-prong statutory definition of the term "major life activities." The Commission in its proposed rule adopts the statutory definition but, with respect to the major life activity of working, again has gone, in our view, beyond legislative intent by suggesting sweeping changes to how that activity long has been assessed by the courts and by the Commission itself.
Specifically, the proposed rule would eliminate entirely the specific factors set out in the Commission’s current regulations for determining whether an individual is substantially limited in the major life activity of working. These factors include the geographic area in which the individual reasonably may find another job, and the availability of other jobs that use similar training, knowledge, skills or abilities as the job for which the individual was disqualified.
The Commission proposes to replace those factors with the new "type of work" standard, which focuses on the individual's educational and vocational background and his or her subjective perceptions of the limitations posed by the impairment in question.
Regrettably, in our view, the "type of work" standard establishes no meaningful parameters for determining whether or not an individual is substantially limited in the major life activity of working; and we're concerned that the proposed changes are likely to create more, not less, confusion regarding when an individual will be able to establish coverage on that basis.
Furthermore, the proposed revisions are inconsistent with the legislative history of both the 1990 ADA and the 2008 amendments in which Congress stated expressly that it did not intend for the Commission to revisit this aspect of the regulations.
Because the proposed revisions to the regulatory interpretation of working were not mandated by the ADA Amendments Act and are unnecessary and confusing, in our view, EEAC strongly recommends that the Commission abandon the proposed revisions in favor of the existing standards set out in its existing regulations.
Third, the EEOC's proposed "per se" list of impairments that consistently will constitute covered disabilities strikes us as extremely arbitrary; and again, in our view, exceeds the Agency's conferred rulemaking authority.
Significantly, neither the text nor the legislative history of the ADA Amendments Act endorses the establishment of a "per se" list of conditions that categorically will constitute disabilities, regardless of how the impairments actually affect the -- each member of the disabled class.
In addition, while the Commission emphasizes that the "consistently meets" standard or list is nonexhaustive, it’s entirely unclear to us how and under what circumstances other conditions would be deemed eligible for inclusion on the list.
Surely there exist many other possibly more severe conditions that could have been, but were not included on the "per se" list; and it's unclear whether the Commission means to suggest that a more extensive coverage analysis would be required for those conditions, or that a plaintiff, a court, or the EEOC itself would be free to declare other conditions worthy of inclusion on the "per se" list as each additional case arises.
Furthermore, and perhaps most importantly, establishment of "per se" list of covered disabilities, in our view, would undermine the ADA's policy aim of treating persons with disabilities as individuals, not as members of the collective.
Finally, we believe that "regarded as" liability under the ADA Amendments Act is limited to actions taken because of an actual or perceived impairment, not symptoms of impairments as the proposed regulations suggest.
Again, consistent with the Amendments Act, the proposed regulations would revise the definition of "regarded as" to remove the requirement that an individual establish that an employer view them as substantially limited in one or more major life activities as a result of an actual or perceived impairment.
Instead of stopping there, though, the proposal goes on to provide that "regarded as" liability can attach whenever an employer acts based on a symptom of an impairment or based on use of medication or some other mitigating measure.
One of the examples cited in the proposed rule is of the individual who is not hired for a driving job because he takes anti-seizure medication, even if the employer is unaware of the reason the employee is taking the medication. That example illustrates, in our view, the problem with the proposed "regarded as" revisions. It provides unequivocally that an employer that fails to hire an applicant presumably because a pre-employment drug test revealed the presence of medications that would impair this person's ability to operate, in this case, a motor vehicle -- not because of an actual or impairment -- or, actual or perceived impairment -- nevertheless would violate the ADA.
Yet that's not what the Amendments Act provides. The Amendments Act establishes coverage under the "regarded as" prong whenever an individual is subjected to an adverse employment action because of an actual or perceived physical or mental impairment. Stated differently, "regarded as" coverage is not established unless an employer takes a prohibited action on account of an actual or perceived impairment -- nothing more and, importantly, nothing less.
By way of further example, the Commission’s proposed rule would subject an employer that terminates a worker for sleeping on the job to automatic "regarded as" liability, to the extent that excessive fatigue and/ or uncontrollable sleeping episodes can constitute a symptom of any number of physical or mental impairments -- even if not known or contemplated by the employer. In many if not most cases, falling asleep on the job is a consequence of some factor completely unrelated to an actual or perceived physical or mental impairment.
Because we believe the "regarded as" proposed regulatory revisions are inconsistent with the plain language of the Amendments Act, EEAC urges the Commission to delete them in their entirety.
Once again, thank you very much for allowing me the opportunity to appear before you. We appreciate the opportunity to remark on the proposed rule, and we look forward, again, to submitting more detailed written comments that more fully set out our views on the proposed changes. Thank you.
>> CHRISTINE GRIFFIN: Thank you. Questions?
Next is Mary Lamielle on a call.
>> MARY LAMIELLE: I'm Executive Director of the National Center for Environmental Health Strategy, an organization focused on protecting the public health and improving the lives of people sick, injured or disabled by chemical and environmental exposures. Thanks for the opportunity to speak today; I intend to submit detailed written comments.
For over 25 years I've represented the needs of people that were disabled by chemical/environmental exposures.
>> CHRISTINE GRIFFIN: Mary, can you slow down a little bit. The CART reporter is having a little trouble keeping up with you.
>> MARY LAMIELLE: I'll slow down. I might be slightly over five minutes, though.
>> MARY LAMIELLE: That's all right. That's okay.
>> AUDIENCE MEMBER: We're going to be good on that? Then I will gladly slow down.
CHRISTINE GRIFFIN: We're going to be good on that.
>> MARY LAMIELLE: Thank you. Just start where I was?
>> CHRISTINE GRIFFIN: Yes, please. That would be great.
>> MARY LAMIELLE: For over 25 years I've represented the needs of people sick, disabled by chemical and environmental exposures. People disabled by chemical and electrical sensitivity and related disabilities have not fared well under the ADA.
Changes in the implementing regulation and accompanying interpretive guidance in order to implement the ADA Amendments Act 2008, including interpreting the definition of disability broadly to include physical diseases and conditions affecting one or more body systems and the operation of body function without extensive analysis, should make it feasible for people with chemical and electrical sensitivity to secure protection from discrimination.
I'm going to highlight some of our comments. First I want to recommend that chemical and electrical sensitivity be added to the list of types of impairment that will consistently meet the definition of disability, a list that begins, individuals with autism, cancer, cerebral palsy, and diabetes.
Number two, I want to add definitions for chemical sensitivities and electrical sensitivities to the list of examples of impairment that will consistently meet the definition of disability as follows -- so I would add an (H) -- chemical sensitivities, an individual with individual chemical sensitivities who is substantially limited in neurological function, with other multi-system involvement, compared to those people,as indicated by the effects experienced when exposed to substances such as cleaning agents, perfumes, pesticides, building materials, and cigarette smoke, as an individual with disability; and (I), electrical sensitivities, an individual with electrical sensitivities who is substantially limited in neurological function, movement and cognition, compared to those people, as indicated by the effects experienced when exposed to computers, fluorescent lighting, cell phone and transmission equipment, as an individual with a disability.
People with chemical sensitivity are a substantial and growing population. A series of federal and university-based studies found that up to one third of the U.S. population may react to low level exposures, with as high as 6 percent of the population chronically ill and disabled.
A California survey found 3 percent of the population reported being allergic or very sensitive to being very near electrical devices. This extensive research that focuses on the toxicity and public health impact from exposure to certain cleaning agents, perfumes and fragrance products, cigarette smoke and building materials and furnishings, and the disabling reactions experienced by persons affected by these exposures.
The U.S. Census Bureau recently issued a fragrance-free policy with implementing language in an effort to protect employees and accommodate disabled workers. In June 2009 the CDC issued an Indoor Environmental Quality Policy and accompanying Indoor Environmental Quality Guidelines to help ensure the health, safety of all individuals in its workplace who might be affected by indoor air contaminants.
Scented or fragranced products are prohibited at all times in all its user space owned, rented or leased by the Centers For Disease Control. This includes incense, candles, fragrance-emitting devices, potpourri, spray air fresheners, urinal and toilet blocks, and other fragranced deodorizer/reodorizer products. The policy notes some of the products with fragrance may be detrimental to the health of workers with chemical sensitivities, allergies, asthma and chronic headaches or migraines.
Three, I support the example on Page 48-442 and recommend the addition of pesticides in the list of inciting exposures. Pesticides are a significant and disabling exposure for those with chemical sensitivity and asthma. Pesticide-triggered asthma has become increasingly prevalent subsequent to the Federal Food Quality Protection Act which restricted the use of certain organophosphate pesticides from use in buildings and homes. Pyrethroids, a class of pesticides more frequently used subsequent to the law are known to have a more significant impact or breathing for some people due to the active ingredient an inert piperonyl butoxide, which is known to trigger asthma.
Number four, training and educational materials. The proposed rule notes that the EEOC expects to issue a new or revised small business handbook as part of revisions made to all ADA publications including enforcement, guidance, technical assistance materials. I'd recommend that the EEOC take this opportunity to issue guidance and technical assistance on chemical and electrical sensitivities, including a Q and A on this topic. I'll include additional literature with my written comments. The U.S. Access Board's Indoor Environmental Quality Report includes extensive information appropriate for this effort. No. 5, the concept of extensive analysis and medical models. The proposed regulations note a number of instances that the determination of disability should not require extensive analysis. Page 48-442, however, the proposal notes that some disabilities may need more analysis. This is cause for concern. People with chemical sensitivities have long been at the mercy of medical models which have worked against protecting them from discrimination in the workplace. Some individuals have been required to undergo exposure tests to prove their disability. Testing exposures have intensified the level of illness and disability, sometimes permanently. Others have reported being required to undergo double-blind challenges involving exposure to toxic substances including pesticides. People with these disabilities are being penalized by the failure of the federal government to fund research in this area. Six, accommodations and cost to accommodate. The EEOC has tracked MCS charges since 1993. The statistics reveal a population with a high rate of failure to accommodate, twice the rate of all other disabilities. This is not because it's impossible or expensive to accommodate people with these disabilities, but more frequently due to failure to acknowledge and address the disability. People with chemical and electrical sensitivities can frequently be accommodated at modest expense by removing exposure barriers or moving the employee. Doctors’ recommendations are frequently ignored by employers in favor of the status quo. Thank you for your time.
>> CHRISTINE GRIFFIN: Thanks, Mary. Any questions from anyone? Thank you very much.
I'm assuming you're Douglas.
>> DOUGLAS DARCH: First, let me note that since I'm an attorney, I'm operating here as a disabled individual since you don't have a clock behind you to guide me in keeping time. But thank you very much.
>> CHRISTINE GRIFFIN: We're going to watch it. (Laughter.)
>> DOUGLAS DARCH: All right.
Good morning, Acting Vice Chair and Commissioners and panel members. Thank you very much for allowing public comment regarding this very important issue, the rules and regulations to be adopted by the Equal Opportunity Commission interpreting the Americans with Disabilities Act as amended.
My name is Douglas Darch, and I represent employers.
My experience over the 25-plus years that I have practiced is that employers by and large want to comply with the law; and that employers are more inclined to comply with laws which are balanced and rational. In the area of disabilities employers also are motivated by compassion -- compassion that is tempered, though, as they are compassionate for those less fortunate, but who are willing to give full measure during work hours.
The EEOC has for many years had a technical assistance manual. This manual has been extraordinarily helpful in providing plain spoken advice, real life examples, and constructive suggestions to the employment community. The EEOC is to be commended for its outreach efforts exemplified by the technical assistance manual. We would like to strongly encourage the publication of a revised or updated manual to reflect the changes in the Americans with Disabilities Act.
My more important concern today which I would like to address is a request that the EEOC address the fraud that seems to have permeated some aspects of the Americans with Disabilities Act as the Act has matured. Unabated fraud has a deleterious and significant impact on employer compliance with the ADA. It has calloused the very people who are charged with enforcing it or administering it at America's employers. Without their involvement and their support, this nation's outreach effort to the disabled community is doomed to be one of frustration, conflict and controversy.
Employers do not take exception to those members of the disabled community who are willing to work at 100 percent of capacity, or those who greet each day with enthusiasm and optimism. Disillusionment with the ADA is caused by those who are capable but who do not perform, by those who are intent upon investing their intellect and energy in gaming the system.
Let me illustrate this point with a few examples. An employee reports his job as machine operator has caused repetitive motion injury to his shoulder. His physician has imposed medical restrictions. The employer creates a job, provides light duty within the employee's restrictions. The employee continues to complain he is unable to perform the light duty job. His co-workers, all union members, report that he is taking karate classes in the afternoon. The company hires a private detective to follow up on this tip. The detective videotapes the employee throwing punches with the very arm he has been medically certified not capable to perform work with during the day. His discharge is pursued by his union to arbitration -- unsuccessfully I might add.
Another employee reports he is unable to work because of a bad back. His back does not improve despite the best medical treatment that money can buy. He is directed to take a functional capacity examination because the lack of improvement is medically inexplicable. The functional capacity report indicates he is faking his limitations.
Now, a functional capacity examination, in case you're not intimately familiar with them, is a physical examination in which an employee lifts weights, sits, stands, bends, stoops, or climbs ladders. In the case of the individual I'm describing, his functional capacity evaluation required him to climb a ladder. He claimed he was unable to climb it.
The company retained a private investigator who videotaped the employee hobbling in and out of the doctor's office with a cane; but when he drove to the Harley Davidson store near the doctor's office, unaided by a cane, he was able to walk around the Harley's on display and able to walk over the curbs on his way back to his truck.
Upon his return to home he spent several hours cleaning and removing the top of his backyard swimming pool, a sizeable above ground swimming pool, a pool that could only be entered by using a ladder. Astonishingly, in the course of cleaning the pool, this employee was able to climb in and out of the pool using the ladder, and was able to lift, bend, twist and stoop, apparently with no pain.
Now, what do these examples have in common?
The employer was compliant, who sought to accommodate, who created work. Another common thread, there was a doctor who was willing to provide doctor's notes imposing physical restrictions. Lastly, we all have a failure to cooperate by the employee that leads to the purpose of my appearance here today.
And that is, I would like to urge the EEOC to adopt a rule which applies to employees rather than just adopt rules that apply to employers. The proposed final rule currently addresses the expectations and obligations of the employer. There are no corresponding regulations imposing on employees the obligation to cooperate fully, or to tell the truth.
The EEOC should strive for a balance in its regulations; should strive to gain their acceptance by demonstrating to the employer community that the EEOC is cognizant of potential for abuse and can empathize with these concerns.
The rule I would propose the EEOC consider is that, quote, employees or applicants are expected to cooperate fully with medical examinations, requests for information, medical documentation, or other evaluations. Employees who fail to cooperate fully and truthfully are subject to discipline by the employer and the loss of right to sue under the statute.
Adopting a rule like this manifests an even hand and puts the obligations under the Act on a balance. Both parties are obligated to cooperate in good faith.
The rule will go a long way to ensuring that the employer community receives the regulations with open mind, open arms, that compliance is willing rather than coerced, and that those who are truly disabled will not be met with suspicion. Thank you very much.
>> CHRISTINE GRIFFIN: Thank you.
Theresa Perry, is that right?
>> Theresa Perry: Yes. Good morning.
It is a pleasure to meet all of you and to be given an opportunity to make this presentation.
My name is Theresa Perry; I'm a Board member on the Family Resource Center on Disabilities. I'm also the Legislative Chair of that organization for that -- on that committee.
I'm also a social worker. But more importantly, my husband and I are the proud -- are the parents of a child who has spastic cerebral palsy with cognitive delays.
The Family Resource Center is also a parent- training center for families who have children with disabilities.
Every human being is entitled to all the rights and benefits granted through the United States Constitution. The ADA Amendments Act of 2008 clearly states that these rights, especially the rights granted by the 14th Amendment, which guarantees equal protection of the law to all citizens of the United States, also applies to persons with disabilities.
The ADA Amendments Act of 2008 provides for an all-encompassing legislative force, whose purpose is to enhance the quality of life for persons with disabilities, so that they can join the general population in the enjoyment of all the rights previously enjoyed mainly by persons without disabilities.
For the above reasons, the Family Resource Center on Disabilities supports the ADA Amendments Act of 2008. We are especially encouraged that the Amendments are expanding the scope of disability to ensure universal coverage to a population disregarded in previous ADA statutes: persons with mental health problems.
We expect the following positive outcomes for persons with disabilities from the implementation of the new ADA Amendments of 2008.
Increased opportunity for educational development;
Increased opportunities for professional development;
Increased opportunities for vocational training in preparation for employment;
Increased opportunities for employment; Increased participation in all aspects of community life to the fullest extent possible, including educational, vocational, professional, and social endeavors; Increased opportunities to reach their full potential to become independent and to become taxpayers as opposed to being tax users.
Persons with disabilities are the last group to be deprived of their educational rights to equal protection of the laws, and their right to participate as equals in all aspects of life.
It is time to ensure that persons with disabilities are protected and available to them without delay.
>> CHRISTINE GRIFFIN: Thank you. Any questions? Thank you very much.
>> THERESA PERRY: Thank you.
>> CHRISTINE GRIFFIN: You must be Donald.
>> DONALD ELLISON: Yes. Good morning.
>> CHRISTINE GRIFFIN: Good morning.
>> DONALD ELLISON: Again, good morning, and thank you for the opportunity to speak here this morning. My name is Donald Ellison, and I have cerebral palsy, and I am an advocate for the disabled from Detroit, Michigan.
I would like to use my five minutes this morning to address the impact analysis of the new rules for which the Commission has said it seeks public comment as well as any additional burden the Amendments may place on state and local governments.
What I would like the Commission to consider is that perhaps the cost to the disabled employee should also be part of any equation in this analysis.
>> CHRISTINE GRIFFIN: Did you say cost to employee?
>> DONALD ELLISON: I'm sorry?
>> CHRISTINE GRIFFIN: Did you say cost to employee?
>> DONALD ELLISON: Yes. The disabled employee should be part of the analysis.
When Chrysler Corporation essentially fired me after I requested an accommodation, my abrupt job loss resulted in me standing in line for food stamps as well as other public assistance. I no longer paid income tax; I went from being a consumer of goods to a person in need. To this day I certainly cannot buy one of their cars.
These are facts that probably ought to be part of any impact analysis.
I know that the Commission recognizes that the cost of implementing the new regulations will affect small businesses differently than large corporations. Large corporations may have to revise detailed policy manuals and retrain its staff.
But please note the HR vice president on whose watch I was fired received $6.5 million as of February of this year. Which clearly demonstrates that even a bankrupt corporation should be able to handle the cost associated with implementing new rules to make equal employment more within the reach of a disabled employee.
With regard to the handbook that the Commission expects to be giving to small businesses on the changes, this is the leaflet that we get in Detroit when we file a disabled -- disabled employee files a charge.
Nowhere in here does the -- is the employee given any information on how bringing a charge under the ADA is significantly different than bringing any charge under any other job discrimination -- charge. I'm sorry.
>> CHRISTINE GRIFFIN: You're fine.
>> DONALD ELLISON: Shouldn't the employee essentially have -- I'm sorry. Shouldn't the employee, especially one who is dealing with a corporate-trained HR and legal staff, be given a charge-specific handbook?
And finally, in its preliminary discussion of assumptions, the Commission states that the employers will often provide accommodations that are requested based on their own policies or under some other statutes.
Again, by way of example, under the facts of my case, I clearly had an FMLA claim, I also had a private attorney who was ready and willing and able to assert my rights under this statute. He was going to make sure I was included in the buyouts that the employers -- that -- that employees were all -- who were and are still being offered to retire early.
The EEOC attorney who was working on my case called and said I didn't need a private attorney, and why pay an attorney when my case was being resolved by the EEOC as we spoke.
Well, I listened. And the statute of limitations on the FMLA ran out.
Therefore, please, somewhere in the rules make sure that if the EEOC cannot actually help the disabled employee assert their rights under the statutes or at least make sure that the local regional offices do not thwart or attempt to get private counsel when we are devastated by a job loss.
Thank you for your time.
>> CHRISTINE GRIFFIN: Thank you very much, Donald. Thanks for traveling from Detroit to be here.
I appreciate it.
>> CONSTANCE BARKER: Let me say one thing. I think that brings to mind the fact that, you know, we're here with Justice today. And it's a reminder that we need to coordinate more and more with other agencies who are responsible for parallel statutes. In this case it was Department of Justice.
>> CHRISTINE GRIFFIN: Labor. For the FMLA.
>> CONSTANCE BARKER: Labor.
>> DONALD ELLISON: Thank you.
>> CHRISTINE GRIFFIN: Thank you, Donald. I know I'm going to say this wrong. Abizer Zanzi.
>> ABIZER ZANZI: Actually, you did quite well. Thank you.
My name is Abizer Zanzi. First of all, I'd like to thank the panel for holding this session today and for allowing for public comment and for allowing me the opportunity to speak today.
As I said, my name is Abizer Zanzi; I'm an associate of the law firm of Franczek Radelet, P.C.; it's a law firm here in Chicago that represents employers.
We have been discussing the proposed regulations with our clients over the past couple months, and I'm here today to ask you to raise a couple of issues that they -- they would like us to raise to basically ask for some clarification in the regulations, potential areas of confusion.
First, the EEOC's proposed new definition of substantially limited in working has caused some confusion amongst our management clients. The proposed regulations indicate that ordinarily most disabled employees will be substantially limited in another area and that this provision will not necessarily be addressed.
On the one -- but the regulations suggest that might not actually be the case in the examples as well. On the one hand, the proposed regulations require employers to use a common-sense approach and compare the employee's limitations to most people in the general population in order to evaluate whether an employee's impairment is disabling. On the other hand, the definition of substantially limited in work -- in working and the examples cited direct the employer to, in some cases, ignore whether an individual is more limited than the general population when the individual's impairments substantially limit his or her ability to perform the job at issue.
The -- our clients have expressed some confusion about this, and that it potentially -- this definition of substantial limited in working appears to be inconsistent with the general analysis in determining whether an impairment is substantially -- is substantially limiting.
And it also creates some confusion for employers when assessing whether or not -- an individual's mental or physical qualifications for a job and how they should respond and their obligations.
The second issue is regarding short-term impairments. Management clients have raised concerns about the ambiguity in addressing short-term impairments. In the past they've always recognized that there's no durational minimum or magic number in terms of length of impairment that constitutes a disability. But in the past it was clear to employers that disabilities meant impairments were long term or permanent.
It's unclear in the regulations whether or not that's still the law. The examples cited suggest that an employee with a short-term physical restriction lasting several months may be disabled; and what complicates matters is that the "regarded as" prong of disabilities specifically includes transitory impairments which typically lasts six months.
This ambiguity appears to blur the distinction between the short-term disabilities and long-term disabilities and may create some confusion both for employers and obligations and in judicial interpretation.
We raise these issues only to ask that the panel consider them in providing further clarification to employers so they may properly fulfill their obligations.
>> CHRISTINE GRIFFIN: Thank you.
I'm going to guess Deborah Robinson is not here yet.
>> She's not here yet.
>> CHRISTINE GRIFFIN: We'll fit her in when she does get here. You must be Luke?
>> CHRISTINE GRIFFIN: And before that we have Susan Molloy on the phone?
No. Okay, Luke, you're up.
>> LUKE CURTIS: I'm up early.
Susan Molloy, from California?
>> CHRISTINE GRIFFIN: I don't know. It just says Susan Molloy. She was supposed to call in, so...
>> LUKE CURTIS: Okay. I know she does some work with people with chemical sensitivity and other environmental problems and has done a lot of good work in that regard.
My name is Luke Curtis; thank you for coming.
I have been a public health expert for 20 years. I publish a number of papers on environmental and occupational topics; I'm a certified industrial hygienist; also an M.D., but I'm -- haven't been able to get a residency in two and a half years.
I have come here to speak to urge that people with environmentally triggered conditions like asthma, severe allergies, Gulf War syndrome, and multiple chemical sensitivity be given more consideration in housing, and other life activities.
People with these conditions are actually fairly common. Asthma is about 5 to 10 percent of the population, depending upon the stringency of the definition. Perhaps 15 percent of the population report allergies, about 5 percent report unusual sensitivity to chemicals.
Perhaps as many as 25 percent of the Gulf War veterans have reported lots of symptoms such as chronic fatigue and sensitivity to common chemicals. Now, we certainly need more funding for research and health effects of chemical exposures, especially non-cancer effects. We also need to train more M.D.s and Ph.D.s in environmental health issues. For example, this year the U.S. is only training 30 physicians in residency programs and occupational environmental residency programs.
NIOSH director Linda Rosenstock in 1999, Director under the Clinton years, recommended we train 500 occupational M.D.s a year, which means that 30 a year is only 6 percent of that recommendation.
At any rate, what are some exposures which often affect people?
Well, there are hundreds of them, but the most common include tobacco and wood smoke -- I notice there was a no-smoking sign as I entered the building. Pesticides are a big problem; solvents, molds and bacteria. If there -- if there's a heavy infestation, that can often cause lots of chronic problems. Faulty combustion products, carbon monoxide, another problem as well, as is poor ventilation.
Indoor exposures can affect a lot of the body systems, especially the respiratory, circulatory and nervous systems. What is often sort of confusing when dealing with people with, say, occupational asthma or chemical sensitivity is their system -- their symptoms are often quite transient and fluctuating. This has been well documented. Asthma -- a person with asthma can be perfectly fine one day, and the next day, if exposed to lots of chemicals in a bad environment, can have a terrible asthma attack, be unable to work, may even need expensive respiratory care as well.
Effects of chemical exposures on the nervous system can also be serious, and in many cases they can also fluctuate, depending upon a person's exposure and general situation.
Carbon monoxide exposure can cause lots of problems, like headaches and poor concentration.
Pesticides exposure often gives people trouble who have asthma or chemical sensitivity. They offer similar symptoms of poor concentration, worsened memory, poor balance.
These symptoms often abate when moved to a cleaner environment.
There was a recent Spanish study involving spec scans of the brain which indicated that patients with chemical sensitivities show abnormal flow -- blood flow to many parts of the brain, only when exposed to chemicals. And they also tend to experience symptoms only when exposed in bad environments.
Now, for many people with environmentally triggered conditions like occupational asthma and chemical sensitivity, they often have trouble, obviously, in the workplace, and they often have trouble finding housing.
What sorts of accommodations are helpful for them?
Well, many of these accommodations are quite inexpensive and common sense. A good first step is, obviously, no smoking, prohibit smoking indoors. There have been numerous studies with public smoking bans. They had lots of beneficial health effects. They reduce asthma attacks. Even reduce the rates of heart disease and strokes in the communities in which they have been promulgated. And generally, most but not all studies have shown that such smoking bans do not reduce business in places like restaurants or bars.
Better ventilation and safer pest control are two more inexpensive ways we can improve the indoor environment for everyone and make it possible for people with asthma and chemical sensitivities to work in environments.
Thanks for listening to my talk. I urge the EEOC to consider the many patients with asthma, chemical sensitivities, Gulf War Syndrome, and other environmentally triggered illnesses in designing programs and regulations for people with disabilities.
And as -- you know, I think it needs to be emphasized that many of these conditions fluctuate quite a bit. So a person can appear quite healthy at some times, but put them in a bad environment, and they can be quite disabled and unable to work.
>> CHRISTINE GRIFFIN: Thank you very much. Any questions?
>> JOHN WODATCH: I just had one question. If you are planning on submitting written evidence, I would appreciate you -- you mentioned some of the articles and background information. If you could give us citations to those and anything you would send to us, that would be very helpful.
>> LUKE CURTIS: Should I do that right now?
>> CHRISTINE GRIFFIN: No, no.
>> JOHN WODATCH: In your written. If you're going to send us written, that would be very helpful for us to follow up.
>> LUKE CURTIS: No problem. That's a good idea. You need them soon, you need them today?
>> CHRISTINE GRIFFIN: No. We don't need them today. But you know, the sooner you could get them -- so that they're considered when we're looking at these issues.
>> LUKE CURTIS: Okay.
>> JOHN WODATCH: What is the due date?
>> CHRISTINE GRIFFIN: November 23rd is the end of the comment period.
>> LUKE CURTIS: That's plenty of time.
>> CHRISTINE GRIFFIN: Getting close. Thank you very much.
>> LUKE CURTIS: Thank you.
>> CHRISTINE GRIFFIN: We're running well ahead of time.
And we skipped over a couple of people.
And Luke was here and wasn't scheduled to talk until 10:30. I would suggest if there are other people here that are already scheduled later in the day, and they want to come forward, we will -- were waiting for Debra Robinson, and she still isn't even scheduled to be here till 10:15. So she may show up.
And then we have a call-in.
But if there's anybody else here that wants to go early. We'd be happy to entertain that.
Oh, great. Okay. Thank you
. I guess we'll -- no one here that wants to go early?
No one here that's decided they weren't going to speak and now they want to?
Because you have the floor?
Where are the lawyers in this crowd?
All right. We'll take a short break until we catch up with the time. Running ahead of something, so unusual.
>> AUDIENCE MEMBER: I have one question. I'm not sure if it's applicable.
Because I am a social worker and I work with a lot of parents to make sure that they are -- I'm not sure if this is applicable, but I do work with a lot of parents, because I am a social worker, to make sure that their children's rights are adhered to. But we're very concerned about the public education that the children are receiving.
Is that applicable to you?
>> CHRISTINE GRIFFIN: No, it isn't, actually. That would be the Department of Education.
>> AUDIENCE MEMBER: Okay.
>> CHRISTINE GRIFFIN: And -- but, hey, the head of -- the Secretary of Education is from Chicago. You have an "in." Mr. Duncan.
>> AUDIENCE MEMBER: I plan to write him and also copy the president, because we're having so much issues with the children's rights being violated. But I think this is applicable, because sometimes a lot of cases, the children who do have special needs, the staff may be sharing the information without the parents' permission.
So therefore to me it's a violation of their civil rights. So is that applicable to you?
>> CHRISTINE GRIFFIN: It's a privacy -- no, it would still come under the Department of Ed rules and under the IDEA, Individuals with Disabilities Education Act. It would fall under all of that.
Is there an overlap with you guys at all, in Justice?
>> AUDIENCE MEMBER: Let me give you a specific example.
My daughter, her teacher was sharing information to other parents about her disability without our knowledge. So to me –
>> CHRISTINE GRIFFIN: That isn't something that the Equal Employment Opportunity Commission or these regulations would address whatsoever. But DOJ overlaps.
>> JOHN WODATCH: We work were the Education Department on some of these issues. There are -- if you have a specific complaint, I think if you send it to us at the Department of Justice, we would make sure it got to the right agency.
And so before you're gone, I will give you a card and you can send it to me.
>> AUDIENCE MEMBER: Thank you so much.
>> JOHN WODATCH: And we will get it. It may be the jurisdiction of the Department of Education; we may be able to do something as well.
But it's a big federal government. We'll make sure it gets to the right place.
>> AUDIENCE MEMBER: Thank you.
>> CHRISTINE GRIFFIN: We're going to get back on track here. And we have I think Susan Molloy on the phone; is that right?
>> SUSAN MOLLOY: Yes. I'm right here. All right. Thanks very much. Hope things are going well in Chicago this morning.
>> CHRISTINE GRIFFIN: Yeah, they are. Thank you, Susan. And just -- just to let you know, we have a CART reporter here, and it would be great if you could just speak a little slow so that she gets everything. Okay?
>> SUSAN MOLLOY: Okay, I'll give it a try. All right.
I'm going to rush through several pages -- page numbers that I'd like to have thought about in the near future by the EEOC and DOJ. This seems to me like the fastest way to proceed.
I -- my name is Susan Molloy, M-o-l-l-o-y, I'm in northern Arizona, up in the mountains. The high desert.
I work with people who have disabilities that are triggered or exacerbated by chemical and electrical exposures. That usually happens after there's been some sort of a toxic event in the workplace, or sometimes in the home. Even something as small as a new carpet or insecticide in the house, things like that. That brings on this illness and disability.
What I'd like to do now is give you page numbers, say what I want, and then -- I'm sorry, just a moment.
Give you page numbers and then say what it is that I need from that page. The first one would be at page -- the first one would be –
>> CHRISTINE GRIFFIN: Actually, Susan, you know what? You don't have to go by the page numbers. You can just give us your oral testimony, and then you can submit the pages as written comments. If that –
>> SUSAN MOLLOY: All right. I'll give that a try, then.
>> CHRISTINE GRIFFIN: Okay. That would be great.
>> SUSAN MOLLOY: Actually, I might give you page numbers too to keep my notes straight.
Would that be okay with you?
>> CHRISTINE GRIFFIN: Yeah, that would be fine.
>> SUSAN MOLLOY: Page 48436.
It's where we have a description of what's a disability and what isn't. And elsewhere in the document that we don't need to name different medical conditions and disabilities; there will be an extensive -- we'll have extensive leeway this time with the amendment. And I think that's probably true in most cases; nevertheless, I would still like to have chemical and electrical sensitivities added to that list.
Because some of our accommodations are going to be of a very different nature than those that are afforded people with other disabilities.
So I would like to have it pointed out, please.
On Page 48438, we have a statement that says, "The proposed rule does not include reporting requirements and imposes no new recordkeeping requirements."
And I'm wondering how to -- how to think about that. I believe that not keeping some kind -- not keeping some kind of reports won't give us the opportunity to figure out whether employees or applicants are being accommodated who have chemical and electrical sensitivities. I don't want us to get lost in the rush again.
On Page 48439, I think it would be a good idea to be sure that chemically and electrically sensitized people are included in any primer for small business. It would be very simple to include some examples for small businesses such as, for example, remove plug-in air freshener from the employee restroom, and unplug nonessential electrical office equipment.
Page 48441, we have a description of impairments that are episodic or in remission.
Am I going too fast?
>> CHRISTINE GRIFFIN: No, no, you're fine.
>> SUSAN MOLLOY: All right. On Page 48441 we have a list of impairments that are episodic or in remission.
And once again, I think it's important there to add chemical and electrical sensitivities to the list of disabilities that are to be accommodated.
Page 48442, we have examples of impairments that may be disabling for some individuals but not for others.
And there I think you've done a real good job in the example A about an individual with asthma. That's very, very helpful.
I would request that we add another example, possibly h, or example 8, and say -- add language to the effect that an individual who is substantially limited in neurological function, movement and cognition compared to most people, as indicated by the effects experienced when exposed to computers, fluorescent lighting, cell phones, and wireless transmission equipment, is an individual with a disability.
Then (7), No. (iii), (C) under type of work, I'd like to have us say an example of job-related requirements that are characteristic of types of work include but are not limited to jobs requiring -- to that list I would like you to add examples such as chemical fumes, dust, fluorescent lighting, wireless communication devices.
That section's going to help us tremendously with those additions.
Page 48443, has a record of such impairment. And on that section, I'm not sure how to approach this, but it seems to me like it's important that people with chemical and electrical or other environmental sensitivities have historically been, and continue to be, actually, misclassified as having somatoform or comparable psychiatric or behavioral disorders. And I think that that diagnosis very seriously undermines our request for appropriate accommodations.
There are lots of us who have a whole range of disabilities that can in fact affect cognition; and seizure disorders and closed-head injuries are of course examples of that. But we need to have some physical material accommodation in addition to time off for breaks, or considerations about medication, or one thing or another that -- the physical parts of those disabilities are just critical.
On Page 48444 we have interpretive guidance on Title I of the ADA. Introduction.
And there I think it's -- this is personal. The last time I had a real job was in behavioral health clinic, and I was supposed to be helping out with recreation and support groups and so forth. Sort of hands-on within the clinic, the support group.
And after I had been accepted for the job, I found out that I had to be able to tolerate cigarette smoke, the microwave oven going off and on all day, I had to eat with the consumers, which meant MSG and artificial sweetener and gluten, use of cell phone. And we had very harmful flickering of the lights on all the time, lots of electrical equipment.
And one day a fellow showed up in a costume to spray insecticide around the inside of the clinic. And I of course had to leave. And within the next few days I was pretty much forced out of that workplace and had to quit.
And that sure damaged my work history. And I know that you all know, it's hard enough to keep a work history going in a positive direction when you're not accommodated. And that was -- that -- that was devastating.
So I think that the way I would address that would be that criteria would have to be revealed if a job is going to require exposures to those kinds of things in advance. So that we can make a determination upfront whether we will be able to tolerate the workplace or not.
And I know that that's -- that's counter to some of what we've learned before about applying for jobs, or applying for accommodations if we're in a job.
Next, on Page 48449, limiting, segregating and classifying. I'm thinking that chemically and electrically sensitive employees at some point do require segregation as an accommodation.
I know segregation is not the ideal word to use there, but frequently we do need to have separate space or ways to take part in workplace activities that are other than co-mingling with our non-chemically sensitive cohorts, because of issues like perfumes and cell phones and things like that.
There's -- I have some huge problems with section 1630.10, and that's qualification standards, tests, and selection criteria.
Because, for example, nonessential exposures to chemically and electrically sensitive individuals can include, as I said before, a microwave oven in the employee break room, having to have a synthetic professional uniform instead of cotton, expectation of a particular standard for make-up and hair style, and choices of disinfectant such as chlorine that would be pretty universally very hard on us. Cosmetic remodeling of the workplace, if we don't need to remodel it, please don't remodel it, until there's a real need for it. Florescent lighting, management that deliberately or negligently chooses products when -- toxic products when equally effective nontoxic products are available similarly priced.
Lastly, there's -- there's a phrase that shows up repeatedly in the document that I need to clarify. And that is more extensive analysis, or extensive analysis, or more analysis.
I see that having a real stinger for people with chemical and electrical sensitivities. And I -- I'd like to hear how we're not going to be damaged by this one.
Extensive analysis and so forth, as the proposal as now stands, people with chemical and electrical sensitivity, I believe will remain at risk of being evaluated in terms of an employer's common knowledge or snap judgment of what seems to them like a disability.
And I wonder by what criteria we'll have to prove that disability exists and that requests for accommodation are justified. And to what standard will we be held.
The concept appears, for example, on Page 48440, where we say, individual shall be construed in favor of a broad coverage of individuals to the maximum extent permitted by terms of the ADA and should not require extensive analysis. That's the part where I'm afraid that we'll get a knee-jerk response from an employer that will, in effect, discard us.
It shows up again on Page 48442.
I'm afraid that testing us, the more analysis part, is going to mean, as it does currently, that non-standardized, life-threatening, double-blind tests in a medical setting will be required of us at that -- at our enormous expense. That can cost thousands of dollars and huge travel expenses, and damage, for that matter, with the results of testing being interpreted by an under-informed or even an ignorant employer.
It appears again extensive analysis -- appears again on 48442, again on 48442, on 48443, 48444 where we say in the introduction, determination of whether an individual has a disability should not demand extensive analysis.
On Page 48446 we have another example of it; and 48447 in definition of disability, we say, some types of impairments allow an individualized assessment to be conducted quickly and easily.
And I'd like some assurance that that will apply to us too. I don't know how assessment of chemical and electrical sensitivities can be conducted quickly and easily. Other than, again, relying on snap judgment. But I think that will hurt us.
And with that, I'll stop. And if any people have questions, I will be glad to take them by telephone or e-mail later, or now, or however the schedule's arranged.
>> CHRISTINE GRIFFIN: Well, we're going to actually move on, unless anyone has any questions, Susan. Susan, I know this supplements your testimony at the listening session in Oakland.
>> SUSAN MOLLOY: That's right.
>> CHRISTINE GRIFFIN: If you want to submit written comments, please feel free to do so.
>> SUSAN MOLLOY: I will. Thank you very much.
>> CHRISTINE GRIFFIN: All right. Thank you.
>> SUSAN MOLLOY: Bye.
>> CHRISTINE GRIFFIN: Rebecca, I assume.
>> REBECCA SALAWDEH: Yes. Although I understand you have another call coming in. I can wait.
>> CHRISTINE GRIFFIN: Why don't you go ahead with you, and we'll stay on track.
>> REBECCA SALAWDEH: Well, my name is Rebecca Salawdeh; I'm a solo practitioner in Milwaukee, Wisconsin, and I have represented only individuals in employment actions for about 14 years now. I'm also the executive secretary of the National Employment Lawyers Association and was involved with NELA's task force on helping to get the ADA-AA passed; and NELA will also be submitting written comments.
And so I come here today primarily to just highlight a couple of the areas that I think are so important that you have included, and urge you to even improve upon those in the regulations.
And the main hope that I'm getting from -- and the purpose as I see the new ADA is to make it easier, and as the statute -- or the law says, as well as your regulations repeatedly state -- to make it easier to establish that a person has a disability, to get the focus back where it should be as to whether or not discrimination happened.
And to this end, what I am hoping to do is that we are able to accomplish with all of this is that we have less emphasis on discovery, less emphasis on mini trials about whether a person has a disability, and less need for extensive medical evidence.
The, I guess, most blatant example I've seen of the evils of the old system came even this past summer in a case a colleague of mine was trying, in which her client, who is a quadriplegic, and the defendants insisted that she present extensive medical testimony to prove that her client had a disability. Obviously this is not what we're trying to do. And that's not what the law was ever made to be.
And for this reason I -- NELA and myself applaud the inclusion of the J-5 list of conditions which will generally be considered to be disabilities. And we strongly encourage you to include the J-5 list in the final regulations. I know there has been some criticism of this, stating that the EEOC is essentially making a per se list of disabilities. But I think the J-5 list is very important and will be significant for all concerned if it short circuits unnecessary discovery, motion practice, briefing and trial proceedings by limiting the amount of evidence needed to prove these disabilities.
What we would like to see, though, is even improvement on the J-5 list; and we believe it can be significantly improved by inclusion of a statement to the effect that the conditions to which the J-5 list applies, because of their very nature as at least generally inherently substantially limiting, should usually require limited evidentiary support, and a resolution of the issue of disability in such cases should usually require minimal analysis by and proceedings before the court.
And just as sort of an anecdotal story I have is I have a client who this year, since January 1st, was terminated because she had the gall to need one extra week of time off to -- for her cancer treatment. And the instant message I got -- have gotten back from the defendant so far is to tell me that despite the new laws, despite my showing them the proposed regulations, they've been telling me that cancer is like a broken leg and she is certainly not disabled and so they could do whatever they wanted with her.
And so we really need to get the message out that we do have a new regime, we do have a new law here, and we aren't going to be having disputes over whether cancer is like a broken leg or cancer is a disability.
We would also like to see further direction on this same issue that would preclude the extensive analysis; encouraging -- a statement encouraging parties to stipulations as to disability. And if there is to be discovery or litigation, at most, a highly focused and only on the very narrowly disputed issues. And not extensive discovery and going into the background and every medical treatment that a client has ever had in their entire life going back 20 years.
We did not want to see battle of the experts. Besides being a waste of time and creating these mini trials, I have to tell you as a solo practitioner representing people who are unemployed, my clients don't have the money to pay it, so I pay it. And as a solo practitioner, that gets awfully expensive.
And I will tell you, I have to look at how many cases can I take -- and I don't mind risking my time; it's when I'm paying out of pocket thousands of dollars. And you all know how much some -- you know, some of these experts charge. I've had doctors charge $1,000 an hour.
You know. And I can't afford that.
And so I have -- so I have -- and I know colleagues of mine have made decisions about litigation based on the expense of experts.
Do we risk a finding by the judge that we -- that our client does not have a disability because we can't afford to pay the expert?
That's not how this is supposed to be.
So more directions of how we can limit testimony by experts, expense of experts; and again, get the focus back on where it should be: Was this person discriminated against because of a disability?
Did -- is there a reasonable accommodation and away from, you know, thousands upon thousands of dollars in expert fees.
We would also think it would be helpful that if we would -- and useful for the EEOC to state that expert testimony offered to challenge an affirmative showing on the issue of disability should be focused on genuinely disputed issues and should not be entertained otherwise lest the courts be drawn in again to these mini trials. Give the courts some support to be able to say, I don't need to hear that, that's not what we're here about, and let's move on.
Another issue I'd like to raise is with respect to the "regarded as" prong and transitory and minor.
The statute -- the ADA-AA provides that it is -- that it is not -- if the disability is -- if the impairment -- sorry -- if the impairment is transitory and minor, it is not regarded as a disability.
Now, I'd like to stress this is transitory and minor, not transitory or minor. And therefore, as I read this, if an individual is regarded as having a transitory but not minor disability, then they are disabled under the definition of "regarded as" disable -- disability. The opposite is also true.
And therefore, as I look at the list under the J-6 list of conditions which will sometimes be considered disabilities, or even the J-8 list of conditions which are not disabilities, while I understand that these lists and this discussion was done under the substantially limited and the prong of the definition, I think it's important to point out that many of these conditions, while perhaps not substantially limiting, not falling into those category, would fit into the definition of disabled under the "regarded as" prong.
For example, carpal tunnel, asthma, learning disabilities. These all are not transitory and minor.
So while it may be an issue under whether a person is substantially limited in major life activities if they have asthma, it is certainly not a minor condition; and therefore I would argue should be considered "regarded as." And I note that that is -- that those are very different.
Because I'll be honest, when I first read through this, it took me a while to realize that that -- where that difference was, and found it confusing for myself.
Similarly, even the J-8 list of conditions, which are generally not disabilities, I do believe are arguably disabilities under the "regarded as."
A person with a severe sprain, while that may be transitory, it certainly is not minor. A person with a severe case of H1N1, while it may be transitory, it certainly is not minor.
So these do, I would argue, fit into the definition of "regarded as" disabilities.
And then finally, in an issue where I see some confusion in the regulations is with respect to surgical interventions. And specifically I've seen this somewhat on the issue of cancer, but it's also noted other ways in which it's stated, if the surgical intervention completely cures the condition, then that is not a disability. And without a clarification of what does that mean. If somebody has a total knee replacement, is that completely cured, or does that person still have the disability in their knee?
There's -- I don't have it handy -- there's reference to even with cancer, somebody who had cancer treatment and then are better, there's even reference that they now -- as I read it, the statement was that they no longer had -- they were no longer substantially limited, and so they had the record of disability.
Which seems contrary, again, to the J-5 list, with somebody who has cancer being a person with a disability.
And other instances of the surgical intervention and what does it mean to be completely cured?
I don't think that's really necessary. Somebody to have the qualification of completely cured, it seems to go backward, even from what the law was pre-ADA, pre-Amendments Act, in which there were cases that found that somebody who had a surgical intervention and was -- was cured, was still considered a person with a disability.
So I would urge you to remove that qualification. Because I think it does take a step back even from where we were pre-January 1st of this year.
And thank you very much for your time.
>> CHRISTINE GRIFFIN: Thank you.
You said NELA was going to be submitting written comments. Especially like the statement that you quoted earlier that you wanted us to add.
Will that be in those?
>> REBECCA SALAWDEH: I read it right from our paper; yes.
>> CHRISTINE GRIFFIN: Good. Because I didn't write it down; and I'm hoping. Thank you.
>> REBECCA SALAWDEH: Thank you so much.
>> CHRISTINE GRIFFIN: Schedule-wise, I think we have a call. Is that right?
Is this Steen?
Steen, can you -- actually, Steen, we need to get you a little more volume here.
>> STEEN HVIID: Okay.
>> CHRISTINE GRIFFIN: All right. That's better.
>> STEEN HVIID: Good. You can hear me fine now?
>> CHRISTINE GRIFFIN: Yes.
>> STEEN HVIID: Great. Thank you.
My name is Steen Hviid. I hearby request that the EEOC includes references to two additional disabilities in the updated regulations to implement the equal opportunity -- equal -- I'm sorry, equal employment provisions of the ADA.
The underserved disabilities are multiple chemical sensitivity and electromagnetic hypersensitivity.
People with multiple chemical sensitivity are unable to tolerate even low levels of many chemical compounds that otherwise are considered safe, such as many laundry products, personal care products, certain building products, pesticides, et cetera.
The prevalence of multiple chemical sensitivity has been documented by many epidemiological studies in the United States, Canada, Sweden, Denmark and Germany.
This -- sorry -- successful workplace accommodation of people with this condition in the workplace may include allowing the person to work from home, implementation of a fragrance-free policy for the staff, or issuing the person a private office with an operable window.
People with electromagnetic hypersensitivity, sometimes just called electrical sensitivity, are unable to tolerate low levels of electromagnetic radiation that are not bothersome to other people. This can be from cell phones, computers, cordless phones, and wireless networks such and Wi-Fi. The vast majority of people with electromagnetic hypersensitivity also have multiple chemical sensitivities.
The prevalence of electromagnetic hypersensitivity has been documented by a number of studies in both United States, Sweden, Great Britain and perhaps other places.
Workplace accommodations may including allowing the person to work from home, placing the person's desk in an area with lower levels of electromagnetic radiation, replacing cordless phones with corded models, implementation of a no-cell phone use staff policy or conversion of the building's computer network to use land lines instead of wireless networks.
I request that both multiple chemical sensitivity and electromagnetic hypersensitivity be included as examples in the updated regulations of the ADA. Specifically I would suggest two places. In part 1630.1, (j)(s)(i), examples of impairment that will consistently meet the definition of disability, I suggest adding capital (I), multiple chemical sensitivity, which substantially limits major life activities such as interacting others, breathing, concentrating and working; and to add a capital (J), electromagnetic hypersensitivity, which substantially limits major life activities such as communicating using electronic devices, interacting with others, and working.
And also I suggest you add to part 1630-1(j)(6) (i) two new entries. One is capital (H), example 8, an individual with multiple chemical sensitivity who is substantially limited in breathing as indicated by the effects, experiences, exposure to substances such as scented personal care products, common laundry products, cleaning products, and pesticides, is an individual with a disability.
And then capital (I), example 9, an individual with electromagnetic hypersensitivity who is substantially limited compared to most people in the length of times she can use a computer, any sort of wireless device, or even be near other people using these devices, is an individual with a disability.
Then we go to personal comments on this.
I hold two engineering degrees; one is from one of the top technical universities in Europe.
I emigrated to the United States 22 years ago to work for a university in Ohio. I had a gradual onset of multiple chemical sensitivity. To cope with it, I worked from home part of the week and had a segregated office on campus, and I used a respirator in some situations.
It would be unreasonable and totally impractical to require everybody I associated with to stop using fabric softener, perfumes, colognes, and many other products that would totally agitate me to be near these people.
I was told informally that the accommodation of my needs would not have happened if I had a lower job title. Some years later I also acquired electromagnetic hypersensitivity.
It took too long to figure it out, so it kept getting more severe, and it was by then very severe and nearly killed me. At that level there were no possible accommodations at my workplace. I have not even -- I was not even able to continue living in my home and had to move. I moved from Ohio to be near a physician in Texas who specializes in these conditions. Eventually I moved to rural Arizona where I now live.
I have met well over 200 people with these conditions. A few struggle on in their jobs to reach retirement or similar reasons, despite serious impact on their health.
The record of workplace accommodations of our needs is absolutely abysmal. I was a very lucky exception.
I have been told stories of unimaginable harassment, even where co-workers conspire to all, on a certain day, put on really strong fragrances to hurt a person with multiple chemical sensitivity.
We are clearly covered by the ADA. My own management told me about this law around 1996, and it has now been strengthened. But this was event. If you can include the requested wording, that would help us.
I can provide large amounts of background information, research and access to medical specialists if you need it. But please, don't ignore this anymore, would you.
Are there any more -- is there any questions or anything I can clarify for this?
I will submit in writing once I am done typing it in. Thank you.
>> CHRISTINE GRIFFIN: Thank you very much.
And again, if you could submit those in written form, that would be helpful. Okay?
Thanks. All right. Next is Ken Skord; is that right?
>> KEN SKORD: Yes.
>> CHRISTINE GRIFFIN: But Ken, I just want to take a second to welcome Sam Bagenstos from the Department of Justice, who is the Deputy Assistant Attorney General for Civil Rights. And Sam just got into town.
And Ken, if you'd --
>> KEN SKORD: Okay. My name is Ken Skord. I am a rehabilitation counselor and -- by profession, and I have concerned myself most of my career with employment of persons with disabilities; and like a lot of folks, thought that the ADA would be a vehicle to increase rates of qualified people with disabilities getting jobs; and like a lot of people, have been disappointed that there hasn't been more of an impact in the area of the employment rate among qualified persons with disabilities.
And my comments are more of a general or a broad nature based on my experience.
One of the things I do now and I have been doing for the last eight years is a job opportunity Web site called AbilityLinks.org. It's for persons that have a disability that which to voluntarily disclose that they do. And for -- our tagline is "inclusive employers"; in other words, employers that are seeking to make sure that they're recruiting from this applicant pool so they can increase their diversity.
Oftentimes our customers are federal contractors because there's a higher standard for them to, you know, show that they're making efforts to recruit and have applicants with disabilities in their workforce.
Sometimes it's just employers that are seeking to make sure they're doing the right thing, and they want to capture the best talent that's out there, and they don't want to exclude persons with disabilities. And we welcome all of the businesses.
But I think that in a general way -- and I don't know that it -- it fits directly with these changes -- I certainly applaud that these changes are going forward and that there's going to be an effort to kind of strengthen the ADA and better define it so that businesses kind of understand better what a disability is and isn't, so that the individuals know their rights.
But I'm looking at it more from a recruiting point of view. And I think from a general comment, I think that what -- what would drive recruiting and what should be considered, what should be studied, what should be looked at, what should be -- there should be gathering of more input from -- on the business side and the business community, and the disability community -- is developing a mechanism of voluntary disclosure of disability in the application process and the employment process similar to or the same way as gender information is voluntarily collected, race information is voluntarily collected, and ethnicity information is voluntarily collected.
You know, I think that those things are done now and that they've had great impact. And I'm not speaking just for myself. I know that what happens when that information is collected -- and the vehicle that it's collected on is the EEO-1 form which requires employers that have 50 or more persons to report annually their -- not only the presence of women, of ethnic groups and racial groups in the workforce, but the stratification, how many managers do you have, how many professional people do you have, how many technical people do we have, how many skilled and unskilled people do we have.
I know that that information helps those businesses drive recruiting so that they -- that they go out and find qualified people that are part of those protected classes.
Disability is missing as a category. And I think that there should be some consideration given to studying the impact of including it. And you know, making sure, just like you make sure when you collect for gender, when you collect for race and ethnicity, that that information is kept confidential and person's identity isn't revealed, that the process of giving that information is -- is voluntary.
I mean, I got a standard kind of form here that maybe I'll just read from. Just so that the record shows it.
I won't say the name of the company, but this is a federal contractor, and this is how they collect data. Name of company -- is subject to certain governmental record keeping and reporting requirements for the administration of civil rights laws and regulations. In order to comply with these laws -- name of company -- invites applicants to voluntarily self disclose their race, ethnicity and gender. Submission of this information is voluntarily. Refusal to provide it will not subject you to any adverse treatment. Information will be kept confidential, will only be used in accordance with provisions of applicable laws, executive orders, regulation, including those that require the information to be summarized and reported to the federal government for civil rights enforcement.
Then lower on the form you have the option to disclose your sex, your race, whether you're Hispanic, Latino, white, black, or African-American, native, Hawaiian or other Pacific islander, Asian, American Indian, Alaska native, of two or more races. And below that they define. They use the definitions there that are accepted.
Now, I realize disability is a more complex issue to measure and define; but in a similar way, you know, one possibility is that this can be looked at to add disability as a category, to add whatever definition of disability is agreed on. Maybe to add some of these categories that the attorney was speaking about that are a little bit clearer.
And again, I'm not saying this should be done, but I'm saying that this should kind of be discussed and talked about.
And people in the disability community and business community that I have spoken with both think that it's a good idea to start the discussion. Because just like collecting this data has -- has helped women advance in the labor pool, and people of different races and ethnic groups, I think it could have a similar impact on disability as long as there's, you know, protection of persons' rights to not disclose the information, it's kept confidential, and then it's used by recruiters and businesses in -- in organizations to go out and to find good candidates and to -- and it gives them a benchmark.
You know, businesses have a hard time saying, okay, we want to do it this, we know it's the right thing to do, but we're kind of not supposed to know if we have more folks with disabilities represented one year or another. So this gives them a way of measuring and having a benchmark and having a more inclusive workplace. So that's my comment.
>> CHRISTINE GRIFFIN: Good. Thank you, Ken. Thank you very much.
I have one question.
So for the federal contractors that are your clients and sign up for AbilityLinks, do you have a way of measuring of whether they actually employ people or not?
>> KEN SKORD: I get calls from folks that work for the EEOC that do enforcement. And all I can really report is if -- if the jobs are posted. And we're working towards developing technology on our site so that we can tell the employers how many hits their job got, how many resumes were sent through our site.
So we can potentially take it that far. We can say that for this position these AbilityLinks candidates applied.
We do ask our -- the folks that post resumes on our site, that voluntarily disclose presence of a disability, if they found employment; and if they want to share that, we collect it. But we don't always know that data.
>> CHRISTINE GRIFFIN: All right. Thank you very much. Thanks. Mr. Schwartz; right?
>> RONALD B. SCHWARTZ: Yes, thank you.
My name is Ronald B. Schwartz, I'm a private practitioner with the law firm of Katz, Friedman, Eagle, Eisenstein, Johnson and Bareck. Have to make sure Bareck gets in there or...
I have been practicing under the Americans Disability Act since 1990. I've seen its strength and how it was weakened by the U.S. Supreme Court. I think it's obvious that the Act has been strengthened again. And as a private practitioner, I welcome the opportunity to represent disabled people who are qualified to work with reasonable accommodation.
I'm here to discuss Section 1630.B (b), and that section is -- makes very clear that state and local laws will work in coordination, which will not be preempted. Very important point. And I think that that should hopefully resolve issues regarding preemption.
Now, this section also says that federal law will also be used in conjunction with the ADA. And I'm here just to make one simple point. And that is, I believe that the Family Medical Leave Act should be specifically referenced in this section, because it's so important as a remedy for employees. Especially employees who need 12 weeks to get back on their feet.
And I think it would be a good signal for practitioners who are counseling persons with disabilities that they have those 12 weeks to recover. And it will help, I think, in terms of what a reasonable accommodation means, so that it will be available for employees.
I mean, I think it's available anyway, whether or not it's mentioned. But I think a specific mention of Family Medical Leave Act is important in this section.
>> CHRISTINE GRIFFIN: Just because you think people aren't familiar and this will be a reminder, is that –
>> RONALD B. SCHWARTZ: Exactly. You know, practitioners who have been at this for a long time should realize that. But you know, there are attorneys who will be representing clients under the ADA and may not have as much familiarity; and if it's in the regulation, I think that would be a good idea.
>> CHRISTINE GRIFFIN: Thank you very much. And thanks for taking the time.
We're now a little ahead of ourselves again. I know next at noontime is Carlos Escabedo.
If Carlos is here and wants to testify a little earlier? Anybody else, for that matter?
No one sitting in the audience saying, now I'm burning to say something?
Okay. Then I guess we'll take a break. The next person is actually Carlos, who's actually due to speak at 12:00 noon.
I guess we'll take a break until Carlos is here. All right? Thank you.
>> CHRISTINE GRIFFIN: We're back. Thank you for waiting. All right. I think we'll start with you, Mike?
Is that right?
Go right ahead.
>> MICHAEL PETERSON: All right. Just going to take this out so I can time myself.
I appreciate the opportunity to appear here today before you, to talk with you about the ADA, the AD-Triple A, and the Amendments thereto that would implement the changes made under that caption.
As you know, Commissioner Griffin, I was one of the negotiators from the employer side of things. And worked very diligently and in good faith with the disability community in coming up with an agreement that we presented to members of Congress, specifically Representatives Hoyer and Sensenbrenner. And true to their word, they went through and were able to enact the changes that were negotiated by this group.
And I'm very proud to have been a participant in that process.
And during that process we discussed many issues; and many of those issues actually have come up in the regs. So what I'd like to do today is comment on -- on different aspects of the regs, what our understanding was at the time, and where we believe that the -- that the proposed rule varies from that.
And then we also will follow-up quite soon with written comments that will cover more -- much more broadly areas where we agree and also our -- expressed areas of concern with -- with the proposed rule.
But, you know, at the base of it, the AD Triple A is a balance, a balance of interests, essentially, for those individuals with disabilities and at the same time attempting to maintain a functional workplace. That was really the goal in -- if you look at the different provisions and how they're drafted up, you can -- you can see that running throughout.
And so what I'd like to do today is talk about some of the important aspects that we believe are concerning about the regs -- or the proposed rule.
First of all, the elimination of the condition, manner, and duration test is very concerning. First and foremost, we have discussed this numerous times with the disability groups, and with members of Congress. We believe that it was set out very clearly in legislative history that the test would be continued. It was intended that it would be continued.
And so to a great extent we feel like, you know, it's kind of -- the rug's been pulled out from under us on that, and a few others with respect to these regs.
We believe that the condition, manner and duration test is a useful test. And I think Scott's going to talk a little bit more about that in terms of, you know, from a practical standpoint.
But just a few things. I think sticking with the condition, manner and duration test is the -- is I think the best policy decision. First of all, it was cited favorably in the first ADA legislative history. The methodology, again, was approved expressly in the -- both the House and Senate legislative history from the AD-Triple A. And it was -- it was a key point, as I mentioned, in negotiation between the business community and disability community. And we really didn't have it misunderstanding about that.
There was some negotiation -- and it's more -- set out more fully in my written comments -- about the comparative standard. And we did agree to revise the comparative versus the average person in the general population versus most people in the general population. And we reached agreement. And the Commission got it right.
With possibly one small exception that I note in the comments. I'm not really sure about the inter-reference -- reference to -- I'm trying to come up with exact phrase. It's in the appendix. But it talks about -- uses the example of dyslexia. I was a little concerned that it may be actually adopting -- while expressly stating it's not adopting a similarly situated standard, it actually does seem to adopt that.
So some concern there. But -- but that will -- that will come up in our written comments.
I think by eliminating the condition, manner and duration, and also by not really providing a substantive definition of substantially limiting, what it's -- and by using examples, some of the examples -- before I get to the list that will consistently be disabilities -- some of the examples are concerning because they're relatively conclusory. They'll list some different things, they'll list an impairment, they'll list possibly how it may affect something, and then how -- and then a number of major life activities.
And so if the Commission could expand upon that, I think that would be helpful.
The -- and I also think it's -- it's easier for employers and for the employer community to understand what "substantially limits" means in terms of a positive definition, as opposed to what it doesn't mean.
And I know that the Senate pretty much gave the EEOC not by saying, here's what it doesn't mean, now you -- you figure out what it means.
So I understand your quandary there.
But it is -- it is easier -- I think that the Commission was -- is accurate in its characterization of the mitigating measure of surgical -- surgical interventions. It's clearly mentioned in the House report.
I will say I wasn't exactly thrilled about it; when I first saw it, I even remember where I was standing in the Capitol. And we discussed it.
But it's in there. We knew it was in there when we -- when we went forward with it. But I think what the Commission’s done with it is good.
I would, however, like to see some examples, if possible. Maybe looking to the Washington versus HCA case out of the 5th Circuit. That also cites some other cases talking about -- expressly discussing the issue of -- of conditions that are permanently corrected or permanently ameliorated.
So I think that would be helpful.
And I -- one of the big things was the per se list. I know that folks at the EEOC don't like to call it the per se list.
>> CHRISTINE GRIFFIN: Because it's not a per se list.
>> MICHAEL PETERSON: I know it's not a per se list. But at the end of the day –
>> CHRISTINE GRIFFIN: Did you say I know it's not a per se list? Let the record show –
>> MICHAEL PETERSON: Let me rephrase that.
I know the EEOC does not like to call it a per se list; but I think at the end of the day, here's what happened. If you're on the list, the analysis is does the individual have a -- does the individual have that impairment?
If the individual has that impairment, they've got a disability. And I think the statute requires a deeper analysis than does the person have that impairment. Because that's -- that's the end result of the per se list is that's the only analysis that will occur.
So I think the per se list runs contrary to the definition in the statute. Because it doesn't require an analysis of the -- whether there's a substantial limitation of a major life activity.
Additionally, I was going over my notes recently, and -- you know, we talked about the per se list in the negotiations for over two months. And we came up with -- we amassed a list of 29 major life activities. I think that was the -- that was the last draft I could find, there were 29 of them.
>> CHRISTINE GRIFFIN: Major life activity, or impairments?
>> MICHAEL PETERSON: I'm sorry. Impairments. Disabilities. Per se disabilities.
>> CHRISTINE GRIFFIN: Right.
>> MICHAEL PETERSON: And then through a number of -- for a number of reasons -- because of disagreement on the disabilities side, because of concern on the employers' side, frankly, because of very serious concern from members of Congress -- we scrapped it, because it just didn't work.
And I think that by adopting it in the regulations, in effect the Commission is going beyond -- not only is it -- is it outside what the statutory authority, but it's going beyond what Congress intended. It was clearly on the table, it was discussed --
>> CHRISTINE GRIFFIN: But correct me if I'm wrong. When you folks were talking about a per se list, it was per se. Like end of story, these -- you know, there's no assessment, individualized assessment at all; isn't that right?
>> MICHAEL PETERSON: Yeah. The difference here would be –
>> CHRISTINE GRIFFIN: This is different.
>> MICHAEL PETERSON: -- you only look at whether the individual has that impairment. The same thing would happen under the per se list. The employer would still look at whether that individual has that impairment that's on the list.
So you know, in the end it's the same thing. It's the same analysis that happens. So I think that that's an important point to make.
And then, you know, with a per se list, while I agree -- you know, while I can agree with the rationale, the way the rationale is set out in the appendix and how -- in some of the conditions that are listed there, there are some conditions that just we simply -- you know, I simply can't agree with. And the one that was consistently brought up was the cancer.
Largely because of my father, and we used his example every time. And he's very proud to know that his head was used as an example for this.
>> CHRISTINE GRIFFIN: His skin cancer is famous –
>> MICHAEL PETERSON: Yes.
>> CHRISTINE GRIFFIN: -- among discussions.
>> MICHAEL PETERSON: Yes. And he just had it removed not too long ago once again. Which, again, absolutely impacts his life zero. But another one was -- I looked at obsessive- compulsive disorder. You know, what about a minor case of obsessive-compulsive disorder? Can we always say that this impairment will automatically substantially limit a major life activity?
I don't think we can.
And what the per se list shows also is that the Commission really isn't considering the level of limitation. That's what the disability groups like to refer it to. And the business community likes to say the level of severity. So I'll include both.
But it doesn't really consider the level of limitation that a person is subjected to. It's really, do you have the impairment?
If so, you are disabled.
And I -- as I mentioned, I don't think that the statute supports that.
Just quickly, major life activity of working, I think the change, it was expressly discussed that the major life activity would not change from the -- from the current definition of broad range or classic jobs to a particular job. And it has.
I know it's called a type of job, but if you look at all the examples, all the examples list a particular job, or the individual's particular job. So it's a particular job.
And that -- which will be fleshed out more in my written comments -- causes significant problems going back to the court cases early in the Rehab Act, pointing out what the problems are with the major life activity working, if you limit it to a job.
And then finally, the new causes under the regarded-as prong, new causes -- what I call new causes of action, because, frankly, they are.
Under -- the most sweeping change with the AD-Triple A was the change to the regarded-as problem. All of a sudden you move from a being regarded as someone who has an impairment that substantially limits one or more major life activities to a person who suffers an adverse employment action based on a physical or mental impairment. Whether -- you know, whether it's actual or perceived.
That's a significant change. Significant lowering in the standard. And I think -- you know, I know it caused significant concern among the employer community and continues to do so. But with these new -- with these new provisions, effectively it would make -- not only does it add impairments, but it says symptoms of such impairments, if an employer takes actions based on those symptoms, or mitigating measures, so medicine.
And the problem here is, you know, they're not even considering whether the employer has knowledge. So it's not important whether the employer knows that -- of the person's underlying impairment. The focus here is just simply on the symptoms and the -- the mitigating measures, and not on employer knowledge.
And frankly, I think that raises some constitutional issues, because employers are subjected to punitive damages under the ADA. And if they're subjected to punitive damages for activity they had no idea they were engage -- they were engaging was unlawful, I think that that raises some serious constitutional issues. Not only that, establishing damages.
You know, how it is -- where does willful and reckless disregard for an employee's rights come on if you have no knowledge of that?
So there's a number of issues raised by that. And also, I think it makes it incredibly difficult for an employer to enforce safety and conduct policies. Because an employer -- you know, take for example, an individual who has depression and will openly admit it's a non-minor, non-transitory impairment.
And one of the -- and let's say one of the -- one of these side effects is sleepiness. They get tired. So they fall asleep at work. You know, maybe the second or third time this has happened. And the supervisor suspends them for three days without pay.
That is an adverse employment action taken on the basis of a symptom. And that would violate the regulation as it's currently written.
Even if the employer didn't know.
I mean, you can also take that and expand it to a person -- an alcoholic. Alcoholic -- alcoholism is an impairment. What if a person is drinking at work?
Takes a work break, goes to drink, and comes back, they're a forklift driver, they hop on their forklift, they start driving?
Now, the response to that is, well, you can respond by arguing they're not qualified for the job, they're violating the –
>> CHRISTINE GRIFFIN: Right.
>> MICHAEL PETERSON: But the simple fact is, these cases are going to court when they never should be going to court. The statute is simply -- does not create a cause of action for symptoms or mitigating measures, only for impairments. And once you lower it down to those notches, I think -- I think the Commission has actually engaged in legislation as opposed to rule-making on these points expressly.
And so I would just urge the Commission to seriously consider those two points before the Constitutional issues, also for the -- the policy issues.
But I look forward to working with the Commission. I appreciate you listening to me and letting me run over my time.
>> CHRISTINE GRIFFIN: No, no. Thank you very much. You know, a lot of what you have to say is thoughtful. And I think it's good to get a perspective from the folks that were -- were, you know, involved in the negotiation.
>> JOHN WODATCH: Can I just follow up with a question -- your cancer example. We weren't -- obviously the federal government wasn't involved in the negotiations; it was the disability community and the business community and members of Congress. But you seem to think that cancer wouldn't be covered.
But the way I look at the statute without regard to that is normal cell growth is specifically listed as a major body function, and cancer is, from everything I understand, substantial limitation of normal cell growth.
>> MICHAEL PETERSON: Or an overproduction. Which is covered as well.
>> JOHN WODATCH: So why wouldn't -- why isn't your father's skin cancer –
>> MICHAEL PETERSON: First of all, I think –
>> JOHN WODATCH: Just by the –
>> MICHAEL PETERSON: -- I should explain what happens. About every two years he gets a growth on his forehead, and he goes to the physician, and the physician removes it. That's the extent. It's not -- and it pops up, it reoccurs.
And the point I'm making is I'm not sure if that level of cancer constitutes an impairment or a limitation on a major bodily function. I just don't know that it does.
I simply don't know.
And with respect to major life activity, I would say no, because I've seen it.
And it literally takes him two hours, and there's no pain.
>> JOHN WODATCH: In terms of the statute, you're looking at major bodily function, which is a form of major life –
>> MICHAEL PETERSON: Exactly. Yeah. Both. I've looked at both. And I can't say that it's -- he's closer under the major bodily function, but I can't say that that level of -- I don't want to -- it's just not a severe level of cancer. It is technically cancer, however.
So you know, the -- the issue is would -- should he be automatically considered disabled?
And I just don't think he -- I don't think you can categorically say every person who has some level of cancer is.
>> JOHN WODATCH: So in that case your testimony would be that if he was fired from his job because of that, that would not be covered by the ADA.
>> MICHAEL PETERSON: No, I'm not saying that.
>> JOHN WODATCH: Okay.
>> MICHAEL PETERSON: Because then you'd have an issue of impairment. You're under a different standard.
He suffered an adverse employment action based upon an impairment that is not transitory. And is questionably as to whether it's minor. Okay?
So I -- I can't -- I can't say that it wouldn't be, but I think it's -- I think it's a much easier case to establish coverage under prong 3, under the firing issue, as opposed to prong 1 or 2, if he's requesting a reasonable accommodation.
>> JOHN WODATCH: Although, if he was -- that same analysis, if he was asking for extra time off every two years or -- for this, that would not be something that he would be entitled to. As a reasonable accommodation limitation regarding this; right?
>> MICHAEL PETERSON: I'm saying that -- yeah, what I'm saying is I don't really see that -- his level of -- the level of limitation or the -- the level of limitation on the bodily function is substantial enough to warrant that.
>> JOHN WODATCH: Thank you.
>> SAMUEL BAGENSTOS: I'll ask you a question about your constitutional analysis of damages and the regarded as position.
>> MICHAEL PETERSON: Just fledgling right now.
>> SAMUEL BAGENSTOS: Okay. Yeah. You know, before I took this job I was professor of Constitutional law, so it's an interesting question.
I guess -- I mean, the second part of what you said, I take it as right that the standard for punitive damages under the statute is willful or reckless disregard of federal rights. And so I guess my question is why is that a problem, then?
I mean, if you have to prove willful and reckless disregard of federal rights, and it may be difficult to prove that, then the plaintiffs won't get punitive damages. Under the statute and the regs as they're already written.
>> MICHAEL PETERSON: Yes. Well, it's as written. And I can't -- I'm not professing to be a former professor of Constitutional law; but I do understand that there's simple issues of fairness that often come up in Constitutional law. And particularly in certain areas of punitive damages.
And one of them is that, for example, punitive damages can't be out of proportion or disproportionate to the compensatory damages under the 14th Amendment.
Also, there's other issues that arise under the excessive penalties clause, or whatever it's called.
But I think we have here a situation where a person -- an employer, and generally it's going to be an employer's supervisor, is going to take an action, they have no knowledge that it constitutes unlawful activity. They just simply don't know about it. And then they're going to be -- then they're potentially going to be held -- you know, and it's going to come up. And they're –
>> SAMUEL BAGENSTOS: I guess that's my question. My question is doesn't the standard already in the law, the Kolstad case, deal with this? If they have no knowledge, if they have no reason to know, it's not a knowing or reckless disregard of federal rights, then it wouldn't be proper under the statute to award punitive damages against them.
>> MICHAEL PETERSON: Well, does Kolstad also require them to engage in -- you know, to show training and all these other things that occurred and various issues along those lines?
>> SAMUEL BAGENSTOS: I guess –
>> MICHAEL PETERSON: It's been a long time since I read Kolstad.
>> SAMUEL BAGENSTOS: My question is, you know, it seems like a lot of these are concerned with particular cases that might or might not come up. Particular awards of punitive damages that might or might not be made.
And the question is, in the abstract, certainly there can be cases where the employer discriminates on the basis of a symptom and knows what it's about. You know, as you said, that's a subset of what's in here. And might well be willful reckless with respect to federal rights, in which case, I take it, you think that would be okay, it would be constitutional to award punitive damages against that employer.
>> MICHAEL PETERSON: If the employer knew?
>> SAMUEL BAGENSTOS: Yeah.
>> MICHAEL PETERSON: Statute says –
>> SAMUEL BAGENSTOS: So the concerns -- we don't have to go on longer -- the concern seems to me that there might be a case where the employer didn't know and which the jury would award punitive damages in a way contrary to the statutory test; which doesn't -- I guess it seems that's what appeals are for. That's what judges are for, to decide cases, you know, according to the law.
>> MICHAEL PETERSON: And my point is why not get it right the first time?
Why not get the statute -- or why not get the regulation right?
You know, if there is a potential Constitutional challenge. If it is unfair -- which I assert that it is; because you're punishing someone for something that they had no knowledge of.
>> SAMUEL BAGENSTOS: It's sort of an interpretive question. I don't think the reg is saying that.
>> MICHAEL PETERSON: I think it needs to get it right.
>> SAMUEL BAGENSTOS: I see the reg as saying punitive damages can’t be awarded in the absence of knowledge or recklessness.
>> MICHAEL PETERSON: It says that they violate the statute even without knowledge of that -- of the -- of the impairment.
>> SAMUEL BAGENSTOS: Right.
>> MICHAEL PETERSON: So I think there's serious fairness concerns there. And Constitutional concerns. And you know, that is what appeals are for; but we've had enough litigation on this point; wouldn't you agree?
Think you would all agree on this.
That it's been appealed to the top and come back down. And we may as well get it right the first time.
So that's -- I'm just pointing these points out. Because they will be made during appeals. And you know, why not just recognize them at the beginning and focus on things that are based on the statute and will really help employees and employers out.
>> CHRISTINE GRIFFIN: Anyone else?
Thank you very much. Thanks a lot. Thanks for taking the time.
>> MICHAEL PETERSON: Should I leave, or should I examine my colleague?
>> SCOTT MORRIS: Thank you. My name is Scott Morris, and I'm Assistant General Counsel at Northwestern Mutual Life Insurance Company, a large life insurance company just up the road in Milwaukee, Wisconsin. I'm in-house counsel, principally responsible for legal matters involving the company's employment and labor matters. So I help out a lot on discrimination issues, including the Disability Act.
I appreciate the opportunity to give our comments. My comments will be more from the perspective not just an employer, but corporate counsel, and how we view some of the things that a corporate counsel might do in response to some of the changes -- we're not so sure really are as productive as maybe they could be. Again, from a perspective of a corporate counsel.
As an employer, we understand the changes that were necessary as part of the ADA Amendments Act; and we worked with the employer groups on those Amendments. We understand that the law really did need to change, and we're really supportive of those changes.
I think the issues with the regulations that we have really are at matters of clarity and where we think that things have changed. Obviously any time you have change, you have less clarity than we had before. And we think that that would likely lead to an increased litigation and some difficulties for companies as, obviously, complexity, it adds cost, it adds difficulties in the current employment -- or employment and jobs market, and the economic conditions, obviously, changes that would increase our compliance costs, or something that companies are always interested in as corporate counsel, we're always mindful of that.
As Mike talked about, we are concerned about the change in the substantial limits and the manner, duration issue. I guess our view is that the prior authorities provided a pretty good framework for analyzing substantial limits; and we're not -- we just weren't really convinced that there was a need to make that change. Again, we had some case law that's pretty fair to both sides. Again, provides some structure and some clarity for us to act within the bounds of the law.
So you know, these have been applied by the courts, and historically employers are pretty comfortable with them, and I think have -- obviously with exceptions, but I think generally applied them in a fair manner.
So as we would move away from that kind of well-established and well-understood structure, certainly -- certainly from corporate counsel would expect to see increased challenges from employees and increased litigation. And our view is that's really not good for anybody, to -- just to create a new test when we think the old test worked pretty well.
We also, just again, as corporate counsel, I think creating that uncertainty leads to some -- we view as potentially unintended consequences. Like I say, for example, say a close call comes in and I'm called in to advise my HR clients. And I'm going to try to do everything we can to avoid creating dispute. So it's a close call.
Well, I'm going to say, well, let's move ahead. We skip right over kind of the coverage issue, we skip right into the reasonable accommodation aspect of it because that's what we would always do. Do the best we can to find something that makes sure the person can continue to work and be successful in their position.
The problem is what we have seen is that most of the accommodation requests that we have received have been for scheduling issues: Flexible time, different work hours, those kind of issues. And unfortunately from an employer's perspective, we don't have an unlimited capacity to accommodate those kind of schedule changes.
Sure, we can help out with some of the physical -- you know, we can change as many desks as we need to change; but the scheduling things, we really have some capacity issues.
So as corporate counsel, I'm going to take a conservative approach, we're going to skip over that, and we're going to start filling up, I think, a lot of these schedule accommodations with these close so-calls.
Then, you know, again, worst case would come, I've used up all my flexible time or all my flexible schedule options, and someone with a -- you hate to kind of rank them, I hate to get into that -- but someone with a real need, we may not be able to accommodate that. We will certainly try, but we -- but the clarity of the regulations or the change in the uncertainty gives me that kind of difficulty in -- in those close calls. We're going to lump them into that accommodation.
With the clarity we have, it gives me a little better opportunity to give my clients advice so we can better identify which ones need accommodations; and then I think overall it would provide us a better opportunity to provide more accommodations where they're truly needed. And that's really our goal.
We also have some concerns about the list. While not a per se list, we understand, conservative corporate counsel will probably end up interpreting it pretty much as that. If someone's on the list, I'm going to have a real hard time advising the clients to really reach beyond that. Because again, we're going to -- we're really not so interested in whether someone is disabled; we frequently skip right ahead to that reasonable accommodation step.
So, having the list there, I think without having to have the limitations attached to it, will again put us right into that filling out those potential issues, where someone not on the list, with substantial limitations, will -- will not fare as well, I think, under the way a company will apply those things. And I'm not sure that's consistent with where we all want to be with regard -- with regards to that.
Finally, the new cause of action under the "regarded as" part creates concerns for us. You spent a lot of time; and we would certainly echo that the fairness aspect of potential damages for not even knowing whether someone's disabled certainly troubled -- certainly troubles corporate counsel.
I think the other part that I guess I'd like to raise is a little bit different part of that. We think there's real concerns with the -- using the symptoms and the medical and not really disability itself raises concerns I think for employee privacy.
Corporate counsel, I'm going to have -- again, as Mike said, someone comes in with a symptom that, engaged in some sort of misconduct at work, sleeping, whatever it would be, and it may or may not be part of a disability. We won't know. But with this provision, as corporate counsel, sure as heck going to ask. And we're going to have to kind of poke behind the symptoms before I'm going to be able to feel comfortable that my employer clients are taking the right steps.
Now, clearly the employee has not taken the opportunity to share with us their condition, or we would have already known about it. So I think we will, practically speaking, before we can take -- before we'll feel comfortable taking certain actions which our business requires,
I think we will have to kind of poke behind the symptoms or the medications that the employee might be taking. And I think we do end up with a little bit of a tension between the employee's privacy rights and what corporate counsel is going to do in order to protect its corporate client. So we just wanted to raise that as a concern that we had.
And that's really it. I just appreciate the opportunity to kind of give a different perspective of how corporate -- corporate counsel, we act kind of funny sometimes. We're not consultants, we're not litigators. We really work behind the scenes to avoid the litigation. So we do some things that may not be intended or may not occur in litigation, but I think they do have practical impacts for both companies and employees.
>> CHRISTINE GRIFFIN: Thank you. Thanks for coming from Milwaukee to talk to us.
>> SAMUEL BAGENSTOS: I find this really interesting. It's very helpful to kind of unpack what goes on in the employers who will be regulated by this.
I want to fill this in a little bit.
When you talk about your process for scheduling accommodation, scheduling-type accommodation, you say there's a limited quantity of scheduling accommodations; right?
>> SCOTT MORRIS: Yes.
>> SAMUEL BAGENSTOS: As somebody who supervises 200-plus people, I totally get that.
But -- so I wonder a couple of things about that. I mean, first, have you seen in the past prior to the ADA Amendments Act sort of an oversupply of requests or over-demand for these kinds of scheduling accommodations; or is the concern what's really going to happen in the future?
>> SCOTT MORRIS: I think we certainly have seen an increased amount of those requests. I think employees in general are asking for those kind of flexible schedules, independent of any kind of medical condition.
So -- but I think practically speaking, I'll tell you, we have seen over the last several years, maybe longer than that, the flexible schedule has been a very common request for mental, nervous, stress-related- type disorders. I would say, yeah, we've seen a lot more of those recently. And so, yeah, I would say we have seen an increased number of those cases.
>> SAMUEL BAGENSTOS: And so prior to the ADA Amendments Act, what was your process for dealing with those requests?
How did you prioritize?
You talked about the need to prioritize; which again, I totally get.
But how do you do that?
>> SCOTT MORRIS: To be honest with you, it's probably not that much different. Because of the law change, I think we have increased our capacity to be able to make those kind of changes, because we -- it's obviously the right thing to do.
But I think the -- the legal changes certainly have -- people know about them, they realize that -- I think people are a little more -- aggressive is the wrong word, but understanding of that employers certainly do have a right -- have an obligation to enter into that dialogue. I think they assert those rights, as they should.
>> SAMUEL BAGENSTOS: So prior to the new statute, the answer is basically you had a dialogue with many people, and then you decided to kind of allocate the scarce resource of flexible schedules; you decided based on -- I mean, what else you said, based on the people who you thought were within the shooting range of winning a case against you if you got to litigation, or what?
>> SCOTT MORRIS: I think that's probably fair. I think as you -- you do have to make those assessments, when you want to make a schedule change or an accommodation, and when you have to.
And I think as we do slide the line, I think we do slide the -- when I'll recommend we really need to make this change, even though we might not want to. I think as you move that line, you create a little more ambiguity. I think you will increase the number of cases that we'll have to deal with.
>> SAMUEL BAGENSTOS: Okay. And so then the other question I had was just about the "regarded as" provision about the -- so you say what the response would be would be to ask the employee why are you sleeping.
I guess sort of putting myself in the mode of an employer who is subject to the Rehab Act now, what I -- I would have a different reaction. It seems to me that asking can only get you in trouble.
But if you apply a uniform rule that nobody sleeps on the job, then, you know, even if you fire somebody for sleeping because of narcolepsy or something else, then you -- that they can't possibly prevail in a case against you.
So my guess would be, what I would do, is not asking anybody why they're sleeping on the job, just say, no sleeping on the job.
>> SCOTT MORRIS: Let's move -- sleeping out -- maybe take someone who behaves maybe aggressively in the workplace; who might not immediately be terminated, but might be on some sort of ladder of discipline.
And yeah, I would really want to know a little bit more depending on how far along that ladder of discipline I'm going to -- to feel comfortable advising my clients to take him -- that they can move without knowing a little bit more.
And I think that's -- I think that's problematic.
>> SAMUEL BAGENSTOS: That may be a bad sort of employer fairness. But just being good to your employees.
It seems to me from a liability perspective, if they have the opportunity to tell you I want an accommodation and don't tell you, and you treat them the same as anyone who didn't tell you they have a disability, you're still fine; right?
>> SCOTT MORRIS: In theory, yeah. However, again, not knowing from a corporate-counsel perspective on how do I give advice to my client, you're right, sometimes not knowing is the best place to be. But not knowing is also an uncomfortable place to be from a company counsel.
>> SAMUEL BAGENSTOS: Uncomfortable for all of us. Thanks very much.
>> SCOTT MORRIS: Thanks.
>> CHRISTINE GRIFFIN: Thank you. Thanks. Thanks, Mike. I think the next person is Matthew Cohen.
>> MATTHEW COHEN: Good afternoon. My name is Matthew Cohen, and I am here in an individual capacity, although I'm involved in a number of organizations, which I'll identify; but I'm speaking as an individual, not in capacity as a representative of one of those organizations.
First and foremost, I'm an attorney in the Chicago area with a law firm of Monahan & Cohen; and I work exclusively in the area of representation of children and families, adults with disabilities, relation to special education, the ADA, and a wide variety of other disability laws; so I have a lot of professional experience with these issues.
Secondly, I'm a past president of an organization you're probably aware of called CHAD, which is Children and Adults with Attention Deficit Hyperactivity Disorder -- long-standing member of that organization; and also one of the founding board members of a group that I think has been involved in some discussions with the Commission called COPA, the Council of Parent-Attorney Advocates, which represents people who are involved in special education and disability issues; a member of a variety of public policy committees of some of the national disability rights organizations; and the chair of the Illinois Attorney General's Committee on Special Education.
Got a variety of other things I could talk about, but most importantly of all, I'm the parent of a 22-year-old with ADHD, severe learning disabilities, cerebral palsy, epilepsy, generalized anxiety disorder, Asperger's syndrome. And as he's grown, the list of labels seems to get longer and longer; which is instructive, among other things, certainly when I look at the issue of the bifurcation of consistently recognized disabilities from those that are not. And much of my comments today are going to be focused on that concern.
It's also noteworthy that I have a father who's now 84 years old who is diagnosed with attention deficit hyperactivity disorder at age 78, and at age 53 I was diagnosed at ADHD at roughly age 46. So I'm speaking in a professional capacity from a variety of different ways, but also from a very personal level.
And having worked with many disability groups over the years, both as an attorney, as an advocate, one of the things that I have had as an ongoing concern is the propensity both within the disability community and among the regulators and among those who are resisting protections for people with disabilities to get into the role of which disability is worse?
This disability is more severe, this disability is more easily recognized, this disability always has an impact, this disability has a minor impact.
And I find myself in an unusual position when I find common cause with the business community, but I believe Mr. Peterson from the Human Resources Policy Association, to my mind, in his testimony highlighted exactly the concern that I have with respect to what is literally a two-tier and I think functionally a three-tier system for evaluating the circumstances whether a particular condition is regarded as a disability or not.
What he said very clearly to you is, regardless of the number of different ways that you have disclaimers built in, and regardless of the different ways that you may contain through example some conditions that are functional regarded to this disability based on diagnosis, and others that are evaluated on a case-by-case basis, that in the real world employers, institutions are going to use your distinctions categorically in the way that they regard those disabilities.
And in my experience, the real world doesn't work that way. In my experience disability groups are categories that we would all agree are severe disabilities, each have a wide range of severity of manifestation for the particular individual. And there can be a person with what's regarded as a commonly accepted severe disability who's highly functional, and there can be a person who has what would be regarded commonly as a mild disability who, by virtue of the way it affects them personally, or the way they're treated by other people, is profoundly affected by that disability.
And so I think that the effort to in effect streamline the process by virtue of the grouping that you've engaged in, while I can understand it from a variety of standpoints, ultimately to me it is highly problematic; and in my view, even within a particular disability category, even in the categories that you regard as easily demonstrated or clearly documented as disabilities -- and your list includes autism, epilepsy, major depression, etcetera -- there are high degrees of variability in terms of the severity of those symptoms, high degrees of their manifestation.
My son, who is 22, was diagnosed with cerebral palsy a year ago. And he was diagnosed with that based on just a different doctor looking at all of the data in a different way. His symptoms were the same. His difficulties were the same throughout his lifetime. But based on now having cerebral palsy -- and by the way, a seizure two years ago for the first time, having no indication of epilepsy prior to that -- suddenly he would move from the second category of disabilities to the first category of disabilities, when in reality the first diagnosis, CP, is really just a different doctor's way of looking at existing data, and the second disability, epilepsy, which is real nonetheless, didn't manifest itself until he was 20 and he's only had one seizure.
So the sense that there are different categories of severity that manifest themselves in different ways in our ability to both assess and diagnose them and their impact seems to me to be incorrect. And at the same time, disabilities that may seem to be more individually driven in terms of evaluation or impact oftentimes may by anecdote or public perception seem to be more mild, but are for the particular individual, and indeed -- I wouldn't say for the particular individual, I would say for most individuals -- can be profoundly disabling.
And I'm struck by, as I look at the first category of disabilities, looking at autism, the substantial limitations impacting communication, interacting with others, learning; cerebral palsy, impacting walking, performing manual tasks, speaking; epilepsy, affecting functions of the brain, seizures, seeing, hearing, speaking, walking, thinking, major depression, et cetera, affecting life activities such as the brain, functions of the brain, thinking, triggering, interacting with others, sleeping or caring for oneself -- these are things that learning disabilities typically manifest -- attention deficit, hyperactivity disorder -- typically manifest -- a Tourette's syndrome would manifest. There are a long list of disabilities that would show these characteristics and symptoms.
Which may be easily diagnosed. They may be subjectively diagnosed. They may have varying degrees of impact on the individual. But I think that the effect of having this -- what I would really regard as a three-tier system is in fact actually creating a discriminatory process of your own.
The reality is -- and I say this by way of experience in dealing with when the special education disability categories were being put into effect, traumatic brain injury and autism were added to the categories of disability under IDEA -- there is enormous variability in the impact of each of those disabilities. Before they were recognized, many schools didn't deal with them or dealt with them based on the wrong labels or based on inadequate or inaccurate diagnostic procedures. They're not generally recognized; but now we have the problem of people who grouping individuals together based on the label, not based on the presentation.
In 1999 the federal regulations for the first time recognized ADHD under the other health-impaired category. In 2006 Tourette's syndrome was for the first time recognized under the other health-impaired category.
But the differentiation in being in the regs, versus being in the statute, has since 1975, for those disabilities that were not recognized as formally in the statute, led to second-class status. They led the schools not to take those disabilities seriously. They've led those schools not to develop the technologies, the evaluation procedures, the protections for those disabilities.
And for those disabilities not yet recognized -- there are a number -- your proposed regulations can -- very clear and repeated disclaimers that these lists are intended to be nonexclusive lists. But the reality is that if you're not on the list, people don't regard the disability in the same way.
And ADHD, which was not on the list until the 1999 regs, even now continues to be a disability that many in the educational community question whether it's a serious disability or real disability, a protected disability, and whether or not it really has the force and effect of law when it's added in the way that it was added, because it clearly wasn't in the Congressional language itself.
So I'm very, very concerned that the structure that you've set up is going to have the effect of creating certain categories of disability that are in effect virtually automatically recognized, others where at best the burden is heavily on the individual to demonstrate the presence and effect of the disability, and others where the absence from being on the list will effectively cause people to view the disability as not protected.
The second way that that plays out is in relation to the examples.
And you've got examples that I think have some utility. Those examples could well be mimicked with a number of the disabilities where you haven't listed the disability. And I would submit -- and I've got some suggestions that I want to offer at the end -- but I would submit that even if you maintain the two-slash- three-tier structure in terms of the disabilities, I think that LD ought to be in the first tier. It's a chronic and ongoing organic condition. ADHD is an organic condition which is variable in its presentation but ought to be listed.
And whatever group of disabilities in the neurobiological category or other categories that you choose to expand or change to the list, the examples ought to be more expansive than they are. The examples are also a way for you to show that the fact that the particular disability is not contained in the list does not mean that it isn't regarded for analytical purposes as a disability that could be subject to the interpretation or the application of those criteria.
So that I think a message has to be given that goes beyond a simple disclaimer, that makes it clear that these lists are not indeed exclusive lists.
In addition to that -- and I'm speaking more extemporaneously than from my remarks -- which you can take note of as you have the chance -- but it seems to me that there are within the existing categories that you've recognized high degrees of variability in each of those categories that make to meet the logic of why a particular disability was recognized, in either category one or category two, ambiguous at best and hard to make, in my mind, a consistent rationale for why one would be in the consistently recognized, the other in the case-by-case, and a third not recognized at all.
Another concern that I have is with respect to the issue of mitigating measures. And particularly around the issue of neurobiological disorders, it seems to me that there is a need both to clarify the learned behavioral interventions language -- it's striking to me that while medication is obviously a huge focus of both reactions from court in terms of mitigating measures and discussion in the regs, there is a long list of mitigating measures for people with neurobiological disorders that aren't referenced; and the most significant of all is mental health treatment.
There's no reference to the use of counseling, psychotherapy, behavior modification. And the way that behavior intervention that's internalized is described, I think most people aren't even going to have a clue of what that means. Let alone that that's seen as a mitigating measure that may be either internalized or provided externally as an accommodation.
So I think that the area of mitigating measures needs to be significantly clarified. And in my mind, as the general overall suggestions, in terms of the review of these regulations, I personally believe that the three-tier approach is problematic to begin with. If there's going to be a three-tier or two-tier approach, I would urge that a number of the largest and significant conditions, LD be moved up, ADHD be included, and there be a much broader range of conditions included in the examples.
I've spoken to the issue of mitigating measures. And then, finally, there was discussion from the prior speakers about the idea of condition, manner and duration. I think that in regard to many of these conditions, condition, manner and duration is also useful to the individual in making a case-by-case argument as to why they qualify and under what circumstances they need accommodations.
So I would urge that the language in condition, manner and duration be included rather than excluded.
Thank you very much.
>> CHRISTINE GRIFFIN: Thank you.
All right. Thank you. Rene.
How are you?
>> RENE DAVID LUNA: Fine. How are you?
Welcome to Access Living.
>> CHRISTINE GRIFFIN: Thank you. Thanks for hosting us.
>> RENE DAVID LUNA: My name is Rene David Luna; the community economic development team leader. I have been here for more than 20 years. And I do remember the days of when we were organizing to get the Americans with Disabilities Act passed and the -- I really want to congratulate you for the hard work. This is not an easy task to put together the regulations.
Proposed rules are very strong; and we believe they help provide some clarity to issues that have come up over the last almost 20 years through the courts.
A lot of what was proposed is common sense. And I think that we need to look at in the workplace.
We obviously have seen changes in the workplace take place. And people are getting older, people -- more people with disabilities are working. More people with disabilities are acquiring different types, as Matt -- Mr. Cohen, pointed out, different forms of disability.
And then others are becoming disabled on the job.
Part of my job here is to help people with disabilities get jobs. And we've organized a couple of groups. We have an empowerment group, a job club that tries to help people so they can develop their skills.
Another thing is that we've organized to form more collective action around the need for jobs.
And we also understand, though, that the employers have some reservations. And we in Chicago see many employers who still don't fully understand the ADA. And this is concerning.
I think we want to put this within that context.
The rules are going to be significantly changed. I think education and outreach is going to be vital, whatever form they take.
I think Matt raises some concerns -- I know that when we were first advocating for the ADA back in late 1980s, we had some concern about listing different types of disabilities. You can never provide an exhaustive list. It's just impossible.
I remember there's probably somewhere like a thousand disability types.
At the same time, I don't know what the alternative is with regard to some of the disabilities that are mentioned. The courts sometimes have not ruled and sometimes employers have not understood that a condition like epilepsy or autism, something like that, that those types of disabilities do cause problems for people with disabilities in the employment arena.
And so we need to help employers understand that.
And we know that there's these individual cases -- and we want to keep to that regard; looking at the individual case and determining there's substantial limitations, there's major life activities. What is part of that analysis?
That is very important.
But for some people we can't make it so individualized that people who we thought previously would be included, that they're now left out. I think Congress had the intent of trying to level the playing field. And -- both originally and with the Amendments. And we think the regs do that.
We're going to submit more detailed written comments. But for now I think the whole effort of trying to get the employers, people with disabilities, and other -- attorneys, for example -- aware of the changes, it's going to be very important.
So we applaud you for the effort, and we want to thank you for coming to Chicago.
>> CHRISTINE GRIFFIN: Thank you. Thanks for hosting us. Any questions from anyone?
Thank you. We look forward to receiving the written comments.
>> RENE DAVID LUNA: Thank you.
>> CHRISTINE GRIFFIN: Dr. Jerome –
>> JEROME HOLZBAUER: Holzbauer.
>> CHRISTINE GRIFFIN: Thank you.
>> JEROME HOLZBAUER: Okay. Good afternoon.
>> CHRISTINE GRIFFIN: Good afternoon.
>> JEROME HOLZBAUER: My name -- well -- is Dr. Jerome Holzbauer; I have a disability of cerebral palsy.
I'm here -- I'm also a rehabilitation researcher. Although I'm not representing, I'm on the Board of Directors of Disability Rights Wisconsin, which is the mandated advocacy protection agency for the state of Wisconsin. And I'm currently working at Marquette University in Milwaukee, Wisconsin. And I live in Milwaukee, also.
My issue today is disability harassment, unequal treatment under the law.
Harassment of individuals with disabilities is often not considered a type of actionable discrimination in schools and the workplace.
Miss -- I did a lot of editing to kind of cut it down. So I'm just letting you know so if you get confused if you try to follow along.
>> CHRISTINE GRIFFIN: No, no, no. That's fine.
>> JEROME HOLZBAUER: These individuals are typically not given the same legal protections and official enforcements of their civil rights as are others who experience sexual harassment, racial harassment, or religious harassment.
Too many people tend to look at "those people" with disabilities not as second-class citizen, but third or fourth-class citizens. Harassment by others then is tolerated and/or ignored.
The psychosocial impact of disability harassment on the recipient is the same as for other recipients of harassment. They do feel and internalize these humiliating experiences.
1 in 5 people are likely to have a disability sometime in their lives -- life. And yet, the category of disability is less on every protected class list that I've ever seen. I don't know. But -- almost as if it's an afterthought.
Many in private businesses don't even list disability as a protected class.
They say, well, it's assumed to be there. Okay?
My research has shown that disability harassment is prevalent in schools and the workplace. One study revealed an extremely high degree of observed harassment by teachers in special education.
Across a sample of 90 Special Ed teachers, 97 percent reported observing school-related disability harassment of their students. With 56 percent reporting many observations of such conduct.
In another study of 52 individuals who were eligible for Vocational Rehabilitation services, I found that the experience of harassment for adult workers with disabilities is also wide spread. 69 percent of the participants reported one or more specific experiences of disability harassment.
My current research portrays a vivid face to disability harassment, as do federal court cases of children in special education in which federal court judges continue to resist viewing ongoing, blatant, and horrific cases of disability harassment by school educators as a civil rights issue.
It is imperative that a greater awareness of disability harassment by you within the EEOC and the Department of Justice will lead your colleagues or co-workers to provide vulnerable targets of harassment with the same level of validation, prevention, and intervention which has taken place for other legally protected classes.
People with disabilities deserve no less.
Thank you for your -- permitting me to address this important issue. As I let you know, references are available on the back sheet of –
>> CHRISTINE GRIFFIN: Thank you very much.
>> JEROME HOLZBAUER: -- my statement.
>> CHRISTINE GRIFFIN: Thanks for actually talking about this. Because it is a huge issue. And may -- it is covered by the law, and we certainly have had cases at EEOC where people have been harassed in the workplace, and we've gone forward and actually had some good results.
And this is probably the chicken and egg thing, but I think -- I guess a lot of people don't know about their rights specifically as a person with a disability. And I guess you're asking us to make them more aware of that.
>> JEROME HOLZBAUER: Well, absolutely. I -- I agree that there's a lot of undereducation going on about this topic.
>> CHRISTINE GRIFFIN: Right. Right.
>> JEROME HOLZBAUER: But the reality, it's out there, big time.
>> CHRISTINE GRIFFIN: No, I know.
>> JEROME HOLZBAUER: In the workplace and in schools.
>> CHRISTINE GRIFFIN: As you note in your remarks, we don't cover education at the EEOC, although Justice will to some degree, and certainly the Department of Education.
>> JEROME HOLZBAUER: Right.
>> CHRISTINE GRIFFIN: So -- and it doesn't stop there. So a person with a disability is harassed in school, and they're basically kind of told to suck it up. When they get to the workplace, there's still, you know -- they're still sucking it up and not knowing that they have the right to complain about it.
>> JEROME HOLZBAUER: Absolutely. Because that's -- people in school, they're -- why even bother -- that's another reason why a lot of students with disabilities quit in 9th grade, 10th grade, never complete high school; they figure, why in the hell do I want to go to school and be picked on, ridiculed, mocked by my fellow students all day long?
And my current research, one third of all harassment came from school staff in the school.
It just isn't peer-to-peer harassment going on. And all the way from teaching assistants all the way up to school principals are doing the harassment.
Including Special Ed teachers, regular teacher, school counselors. The whole gamut.
>> CHRISTINE GRIFFIN: Yeah.
Do you have a question? No?
Yeah. All right.
Well, thank you very much for coming and talking to us about this. And it's certainly something that we can, you know, maybe do -- think about how to do a better job of informing people about their rights.
>> JEROME HOLZBAUER: But I would also urge you to enforce the rights when they appear.
>> CHRISTINE GRIFFIN: Oh, no -- and actually, that's what I was trying to tell you. When it does come to our attention, we don't -- I don't want you to think that we don't consider harassment in the workplace based on disability as something different than harassment on -- on -- it's getting it to our attention is, I think, more of the issue. And that goes towards the education and outreach.
>> JEROME HOLZBAUER: Okay.
>> CHRISTINE GRIFFIN: Thank you. Thank you very much. Dennis?
>> DENNIS O’CONNOR: Yes. Is this on?
>> CHRISTINE GRIFFIN: Yes, it is.
>> DENNIS O’CONNOR: You can hear me okay?
Thank you for having me here today.
I'd like to start by saying that I live in Washington, D.C. I had to work very, very hard to find where public comments were being accepted. A colleague of mine found out about the comments in California. I eventually went to the law library of Congress and found out that I had missed the comment period in Philadelphia by one day due to my jury duty. And that's what brought me here today.
I have been involved in the disability civil rights movement for my entire adult life. I had to work exceptionally hard to find where public comments were being accepted. And frankly, I worry whose voices are not being heard with regard to public comments.
I want to speak to you today about hope and about despair. In 1990 I was a sophomore in high school. The discrimination I faced throughout my life is not unique. It is a story that could be told by countless others. But it is a story I have lived nonetheless.
In 1990, when the ADA was passed, I felt validated by my government. I felt like I really mattered. I felt that I had hope. I felt euphoric.
The Civil Rights Acts that were passed in 1964, 1965, and 1968 had given protections to women, to people of all races; and people of all ethnic groups; and to people of all religions. Years later, in law school, I would come to learn of the Age Discrimination in Employment Act, and in college I would learn of Section 504 of the Rehabilitation Act of 1973 and of the Architectural Barriers Act.
But in 1990, I was just a sophomore in high school who felt that he mattered to his government for the very first time. The validation and the hope was so overwhelmingly powerful.
Then came the case law. Supreme Court decision after Supreme Court decision that gutted the Americans with Disabilities Act. The circuit court decisions. Appellate court decisions. Case after case after case that stole my hope and that of tens of thousands like me.
We all know the case law. The decision that two sisters who wore glasses did not have a disability under the ADA because while they were wearing their glasses, they had 20/20 vision. The decision that a delivery driver with hypertension did not have a disability under the ADA because when he took his medication, he did not have high blood pressure.
The Kimmel decision that led to Garrett. This is the case law I first learned of while working at the Disability Rights Council in Greater Washington as 1L. The decision that breast cancer was not a disability under the ADA. But, more devastatingly, that the states were immune from cases brought under the ADA, under the 11th Amendment.
The loss of hope.
When Lane was decided, I was a legal intern in the office of Senator Tom Harkin. I got up at 4:00 a.m. to get a spot in the gallery.
I knew that I was witnessing the death knell of the ADA. I knew as I watched oral argument that it was over. And I went home to grieve.
I was astonished that we won Lane. But it was noteworthy how narrowly Justice O'Connell tailored her decision.
And now I'm here to beg you to restore hope.
When I was an undergrad at UConn, I went from the undergrad dorms to the grad dorms, and the grad dorms were neither ADA or 504-compliant. When I raised the issue, by my last semester they completed construction. But as a result of my raising the issue, they performed construction constantly for three whole semesters. So rather than a studious environment, I experienced constant noise.
When I entered law school, I went to one of only five historically black colleges and universities law schools in the country. And I attended a law school that claimed to have the author of the ADA on staff. In law school I experienced the worst discrimination I have ever experienced in my life, based on my disability.
I was locked out of my law school's law library on a regular basis. I was never provided an evacuation plan for what to do in case of an emergency. I had to be carried up steps in my graduation ceremony by fellow graduates, and they found career fairs inaccessible. Eventually I wrote to the U.S. Department of Justice and the D.C. office of Human Rights; and I'm currently in litigation against my law school. As a result of this litigation, I have never been able to take the bar exam since graduating in 2006.
In 2007 I began working on site at the U.S. Securities and Exchange Commission as a paralegal. I was not hired as an actual federal employee. I was hired as a subcontractor. I work for Randstad Work Solutions, they work for CACI International. They work for the SEC.
A background check had to be performed by the FBI before I could work at my current job. When I was sent to be fingerprinted, I was first told that CACI's fingerprinting facilities were not wheelchair accessible, a clear violation of both the ADA and 504. I was then sent to a boutique law firm to be fingerprinted. When I arrived, I was asked if I could stand.
I had been treated exceptionally poorly by both Randstad and CACI; but this has more to do with how poorly contractors are treated by the federal government than it has to do with my disability.
My story is not unique. It could be told by countless others. But I'm here today to beg you, I am here...to beg you to restore hope.
In 1990 no one could have foreseen the way the regulations would have been watered down over the years. No one could have foreseen how little by little the Supreme Court would whittle away the ADA. No one could have foreseen the case law as it exists today.
No one could have foreseen that over the last 20 years our hopes and dreams would be devastated by the Supreme Court. And now we have a chance to make things right. And I'm here today to beg you to do so.
We have got to make sure these regulations are strong enough and tight enough so that no matter who sits on the Supreme Court, the appellate court, the circuit courts, no matter who sits the White House, no matter who sits in Congress and the Senate, these regulations will stand up over the next 20 years.
We may not get this chance again for 20 or 30 years. We may never get this chance again. And I am here today to beg you to stand in the way. Only you can do it.
Only you can protect the rights of people with disabilities. And I'm here today to ask you to set up strong enough regulations that the civil rights of people with disabilities will be protected.
As long as statistics have been kept, since the 1960s, the employment rate of people with disabilities ages 18 to 59, who want to work, who are working, has never gotten above 32 percent. The EEOC has a goal of having 2 percent of the federal workforce be people with disabilities by the end of 2010. But there's absolutely no consequence if federal agencies do not make this goal.
People with disabilities live in poverty and face discrimination throughout this country. And people like myself who work for the federal government but who literally work for federal contractors are not included in these statistics.
It is so important to me that these regulations be strong and tight that I took three days off of work and my girlfriend and I drove for 14 hours yesterday to speak to you today.
Please make these regulations strong. I beg you.
Thank you for your time.
>> CHRISTINE GRIFFIN: Dennis, thank you.
>> CHRISTINE GRIFFIN: Let me ask the first question.
One of the first things you said was you had difficulty figuring out how to -- how to give input on these regulations.
Tell me a little bit about that. Because I -- if that's the case, I would hope that we can correct it.
I think -- did you look on our Web site?
>> DENNIS O’CONNOR: Please. I am really upset, because I looked really hard. And like I said, I've got a bachelor's, I've got a master's, I've got a J.D. and I had colleagues at the SEC, I had people in the disability community, and we are like, where do you make these comments?
And I barely found out about California in time, but there's no way --
>> CHRISTINE GRIFFIN: Yeah, but these aren't the only ways you can submit comments.
>> DENNIS O’CONNOR: Yes, you can submit them in writing. I did look on the Web site.
Honestly, the only way I found them is I literally went to the law library of Congress. And I went to the law library, and I'm like look --
>> CHRISTINE GRIFFIN: Did you look on our Web site, EEOC.com?
>> DENNIS O’CONNOR: I tried. I really did. I tried. And I'm not saying they're not there, but they're hard to find.
>> CHRISTINE GRIFFIN: If they're difficult to find –
>> DENNIS O’CONNOR: And honestly, I raised this issue with the disability community at the SEC. And I said, we need people to go, we need people to comment, people that I know.
And people are like, how come they're not accepting any comments in D.C.?
Because we all know -- let's call a spade a spade -- there are different pockets of the country where there are large disability communities because things are more accessible, so there's a larger community, blah-blah-blah.
There is a huge disability community in the DC area. I know we want to get outside the beltway. And I know and understand that.
But I know a number of people who were like, I would love to give comments, but I can't -- I can't go around the country.
>> CHRISTINE GRIFFIN: But they can. Actually -- anybody can give us any type of written comments.
>> DENNIS O’CONNOR: Absolutely.
>> CHRISTINE GRIFFIN: And if someone wanted to dictate them to us or anything like that, you know, we're open to anything. That's possible. And you're right, there was an attempt to get outside the beltway. Which everyone tends to do everything in D.C., and you know –
>> DENNIS O’CONNOR: For a historic 550,000 people who live in D.C., and part of the community, yeah, absolutely.
But it was hard to find. And I had smart, bright people, and we were all looking. And I'm like, you know -- and then when we did find them, it's like, well, let's go. I can't take the time off.
I'm eating this time off. You know.
>> CHRISTINE GRIFFIN: Well, thank you. Thank you for doing that, and thank you for going to the nth degree.
And as soon as this is over I'm going to look on our Web site and see if, you know, if I have difficulty finding it. All right?
And you will submit them in writing as well, is that –
>> DENNIS O’CONNNOR: Sure.
>> CHRISTINE GRIFFIN: All right. Now that you've seen the regs -- I know you're imploring us to make them strong and tight. But –
>> DENNIS O’CONNOR: Yeah.
>> CHRISTINE GRIFFIN: -- what did you think of them?
>> DENNIS O’CONNOR: I like them. I mean, I like what I see. The thing is, I liked what I saw in 1990. I mean –
>> CHRISTINE GRIFFIN: I know.
>> DENNIS O’CONNOR: Not to make my comments over and over, but everybody was like, oh, my God, we finally got this through. We knew that '85, '86, '88, '89. Bam, we got it through. Wow.
And nobody foresaw the case law. And we're like, oh, my God.
So I'm terrified that whatever we set up now, 20 years from now is going to be as watered down as the ADA is now. So that's like why for me it's got to be locked firm. They've got to be so strong. Because we don't know if we'll have a sympathetic court. We don't know if we'll have a sympathetic Executive.
I like what I see; but I never would have foreseen the case laws that has come into existence today. But I like –
>> CHRISTINE GRIFFIN: Thank you. Anyone else, questions? Thank you. Thank you very much. Thank you for making the drive.
>> PHIL GATTONE: My name is Phil Gattone, I'm President and CEO of the Epilepsy Foundation Greater Chicago. And I just wanted to thank you for taking the time to hear us. Very much appreciated. And for also developing the proposed regulations that so closely follow the intent of Congress in passing the ADA Amendments Act.
The protections offered to people with disabilities are crucial protections for people with epilepsy. For more than 3 million Americans living with epilepsy, sustained employment is their American dream.
For me, you know, maybe owning a home. For you it may be another thing. But for people with epilepsy it's really seizure freedom and sustained employment.
And freedom from the dependence on anybody or anything. It creates a sense of participation in the process. Of the American culture that means freedom is to choose a future.
Correcting problems in the past, the Epilepsy Foundation, and especially people with epilepsy, benefit from a greatly simplified and just law regarding definition in who has a disability.
All seizures and epilepsy do substantially limit a major bodily function, that is neurological function. And we feel that should be clearly spelled out in the regulations. While there are multiple seizure types and seizure syndromes, it is important to note, regardless of seizure type, all epilepsy affects neurological function.
A streamlined process is necessary to assure protections. People should only have to provide one document stating their condition; and after that, they're covered under the provisions of the ADA Amendments Act. In addition, eliminating unnecessary and redundant analysis, degree of disability, helps both the process and the individual.
As to employment rights and protections, no one should ever need to show what is in the employer's mind; rather they should be able to bring claims based on employer's actions as well. For example, if they're adversely treated, that is, not hired after the employer learns they have a condition like epilepsy, they should be able to readily make a claim that they have been regarded as having a disability.
I have an example of what is possible when employers understand disabilities in the law and want to do the right thing. My son Phil graduated from high school. He had epilepsy since he's been 4. And graduated from college with a degree in computer engineering.
He had two brain surgeries. Multiple medications. And he's now working for a defense contractor in Maryland. And had a seizure in his interview. And then has had subsequent several partial seizures since gaining employment.
So there are some examples of people wanting to do the right thing and wanting to understand disabilities and help.
Sadly, you know, there are some would say, oh, I have about 800 other applicants, and I could choose from who don't have epilepsy. And there's that discrimination that comes into play.
So we so appreciate this -- these regulations and the Amendments Act. It's just amazing to us.
On behalf of the Epilepsy Foundation and the more than 3 million Americans living with epilepsy, I want to commend the U.S. Equal Employment Opportunity Commission for developing the proposed regulations; and thank you for the opportunity to put forward these recommendations.
If the Epilepsy Foundation can serve you as a resource at any time in the future, it would be our honor. We're committed to leading the fight for seizure freedom and helping people with epilepsy achieve their dreams of employment.
From our leader and board chair Joyce Bender to the thousands of volunteers and staff across the country providing supportive care in our communities, thank you for your time and your work. It's appreciated.
>> CHRISTINE GRIFFIN: Thank you, Phil.
And that's a great story. We usually hear the horror story, something happens in an interview and that's it, they don't get the job, but they can't really prove that was it. And the fact that a seizure in the interview and you get the job anyway, that's –
>> PHIL GATTONE: That's Northrop Grumman. I'll put a plug in because actually they got it right.
>> CHRISTINE GRIFFIN: That's great. Thank you. Peter.
>> PETER BERG: Good afternoon. Good afternoon, John.
Good to see you.
I am Peter Berg; I'm with the Great Lakes ADA Center, which is part of the national network of ADA centers, also known as Disability Business Technical Assistance Centers funded by the U.S. Department of the Education.
Sitting here this afternoon has been very educational. A wide range of speakers, and even two individuals from Wisconsin. Which is nice. People in Chicago actually like people from Wisconsin as long as they're not wearing green and gold or have cheese on their head.
>> PETER BERG: So we do appreciate that.
I think one of the -- the themes that I have noticed here this afternoon is an expressed need for education on these regulations once they -- once they become final.
There are millions of individuals as of January 1st who now have protections under the ADA as a result of the Amendments Act who had been excluded prior because of Supreme Court decisions and then the narrow interpretations of lower courts.
There is a need for education for employers and businesses, and for employers to be talking with their supervisors, their managers, their frontline staff, to make sure that they're clear when, you know, an employee makes -- expresses, you know, any type of difficulty in performing their job and respond appropriately and engage in the interactive process.
And just based on the comments that I've heard this afternoon, I think there's, you know, lots of education needed around the area or the fact that just because we now have, you know, millions more individuals who have protections under the ADA, doesn't mean that all of those individuals qualify or require reasonable accommodations to perform their job. Nor does it mean that the employers are going to be obligated to provide reasonable accommodations to all of these employees who have newly found protections as of -- as of January 1st this year.
So I think it's important that both the EEOC and DOJ lead the effort in getting training out there and getting information, producing technical assistance documents. For instance, the new EEOC poster that individuals can order on the EEOC Web site, which contains updated information about the Amendments Act, the Lilly Ledbetter Act, as well as Genetic Information Nondiscrimination Act.
Those are significant -- it's a significant resource and something that, you know, employers should be putting up in their workplace and employee work areas. You know, just as a start to begin to educate their -- their employees regarding their rights under federal laws that prohibit discrimination.
And it's my understanding that the EEOC is not just sitting by, waiting for public comments to come, and that they're aggressively updating their technical assistance materials and their guidance documents.
And I think it's important that, you know, the day that the EEOC publishes as final rule these regulations under the Amendments Act, that those materials are available for circulation, not only electrically on the EEOC Web site, but also, you know, print materials that can be disseminated widely through the DBTAC’s, through Centers For Independent Living, through business organizations, to get the information out about the final regulations under the ADA.
And also important, I know that the Department of Justice and John is in a little bit of a different bag in terms of, you know, waiting till the EEOC is finally done with its work on the Amendments Act and taking up its own rulemaking process, and also in the process of finalizing revisions to Title II and Title III of the ADA; again, imperative that technical assistance materials be disseminated.
And you know, the DBTAC’s have had a long relationship with Department of Justice and also the EEOC and Chairman Leonard at the EEOC.
So you know, I imagine that going forward, that that relationship will continue and will be able to help educate the business community, the employers, about their obligations under the law as well as educate the disability community about their rights.
So thank you very much for joining us here in Chicago. As far as November 7th, it wasn't too cold out there today, too gray, or too windy, and it's not raining. So all in all, it's a pretty nice day here in Chicago.
Thank you all for taking the time to visit us today.
>> CHRISTINE GRIFFIN: Thank you. Thank you. We're happy to be here in Chicago.
Any questions of Peter?
Thank you, Peter.
That's it on my list.
Is there anybody else who is dying to come up here and tell us something?
I figured I'd expand the standard, seeing as we were here.
And as far as I know, there's nobody else –
>> RITA COFFEY: That's correct.
>> CHRISTINE GRIFFIN: All right. Well, I guess we can call this a day.
Again, thank you to everybody. Thanks to the people that came and just listened.
And thanks to Access Living. Thank you especially to our Chicago district office. Jack, thank you.
>> JACK ROWE: Thank you for coming.
>> CHRISTINE GRIFFIN: Thank you. This was great. Thank you.
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