US Equal Employment Opportunity Commission and Department of Justice Civil Rights Division
Town Hall Listening Session on the ADAAA Proposed Regulations
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.
MR. ISHIMARU: Good morning. We're about to get started. My name is Stuart Ishimaru. I'm the Acting Chairman of the Equal Employment Opportunity Commission. And we are delighted to be here with our colleagues from the Department of Justice to have the second of four town hall listening sessions on the Americans with Disabilities Amendments .. or Americans with Disabilities Amendments Act of 2008. We have posted a Notice of Proposed Rulemaking that has been published in the Federal Register that is out now for public comment and the comment period closes on the 23rd of November. What we decided to do, though, was to do a series of town hall meetings around the country so we could hear directly from people who would add to the public comment. All of the comments made during the course of these meetings will be made a part of the regulatory record. We will consider them as we do the written comments, as well.
We welcome written comments through the process, as well.
What I'd like to note at the beginning, because of the Sunshine Act, we are in listening mode. And we are prohibited from deliberating on these issues. But we are delighted to be here to listen. We will ask clarifying questions as appropriate, but we're really here to hear from you. And so I don't hog anymore time, I'm going to yield to my colleagues and have them introduce themselves and then we'll get started with the people who have come to actually tell us things.
Why don't I yield first to our Acting Vice Chair, Christine Griffin.
MS. GRIFFIN: Hi, everyone. I just want to say welcome and thanks to Liberty Resources for hosting this event. I really believe that these listening sessions are very important. It is important for us to hear from the public in a variety of ways. We usually .. regulations mostly get drafted and put up for public comment and people write in comments.
But I think we really do need to offer a variety of ways and, sometimes, face to face is a little more compelling when you go back and you're reviewing remarks than they are if you just read something off of a piece of paper. So I think it's really important to do this. This was something that the Administration really wanted to do. The President talked about transparency and regulations, and this goes towards that effort, and we're really happy to be here.
MS. BARKER: Hi, I'm Connie Barker. And I'm the third Commissioner here today, and I join my colleagues in expressing my appreciation for taking the time to share your thoughts with us.
I do regret that we're not going to be able to answer questions or respond. We have a very strict memo from our Office of Legal Counsel warning us that we're not even allowed to indicate that we are in agreement with your comments or, you know, anything.
So, our apologies in advance for that. But that doesn't mean that we aren't listening. So thank you very much.
MR. WODATCH: Good morning. My name is John Wodatch, I'm from the Civil Rights Division at the Department of Justice. We, at Justice, are very pleased to join with the EEOC to listen to the comments that you have about the ADA Amendments Act. We .. just so you know, we, at the Department of Justice, also have the responsibility to issue regulations as they apply to other parts of the ADA, the state and local governments that are covered by Title II of the ADA and places of public accommodation that are covered by Title III of the ADA. So we will be issuing regulations in the near future on these same issues. But, today, we're here to listen and understand the comments that you have. I'm very appreciative that there's such a great turn out.
I'd also like to thank the EEOC for taking the efforts for putting this on and the regional office here in Philadelphia has done great, great work. And there are very short time frames to put this together. We're very appreciative of that.
MR. BASRAWI: Good morning, everyone. My name is Mazen Basrawi. I'm also with the Department of Justice. I just want to echo John's comments in thanking the EEOC for putting this together.
We do think what you have to say is very important, which is why we're here. And we look forward to listening to you. Thank you very much.
MR. ISHIMARU: So, without further adieu, we'll hear from our first witness this morning, Steven Glassman. We're delighted to have you. Welcome. We are going to use timer lights to give people guidance. We have more people than we had in Oakland the other day, so we won't be totally strict, but it will give you a guide as to how you your time is going.
So, Mr. Glassman, we welcome you and please proceed.
STEVEN GLASSMAN: Thank you for the opportunity to appear before you today at today's town hall's listening session regarding interpretive guidance for the ADA Amendments Act of 2008.
The Pennsylvania Human Relations Commission enforces the Pennsylvania Human Relations Act and the Pennsylvania Fair Educational Opportunities Act.
These laws prohibit both governmental and private discrimination in the areas of employment, housing and commercial property, education and public accommodations. The public accommodations provision includes services provided by the Commonwealth and its political subdivisions as well as the private sector.
The Pennsylvania Fair Educational Opportunities Act prohibits education in postsecondary education.
The classes protected in our state's antidiscrimination laws, in addition to protecting individuals against discrimination on a disability and use of a guide or support animal include race, color, religion, creed, ancestry, age, 40 and above not covered in public accommodations, sex, national origin, general education development test employment as compared to a high school diploma in employment only and familial status in housing authority.
One of the critical areas is the ongoing work of our disability stakeholders task force. This task force convened by the PHRC for the last several years includes a diverse group of individuals, advocacy groups, public and private, governmental and nongovernmental all with a common agenda to explore, highlight, educate and advocate for strong enforcement of antidiscrimination laws that impact on the lives and well being of people with disabilities.
As many of you know, the Pennsylvania General Assembly amended the PHRA to include the prohibition of discrimination because of handicap or disabilities on December 19th, 1974. That act was consciously modeled on sections 503 and 504 of the federal Rehabilitation Act of 1973.
The PHRC made the interrelationship between the Rehabilitation Act and the PHRA absolutely clear in its comments to the regulations that it promulgated in 1978, discriminated on the basis of handicap or disability.
I've attached a time line, which I'll give to you after this testimony, involving the Commission and the PHRA and this will attach to the written copy of my testimony.
With this background in place, let me emphasize that the PHRC is on record as having strongly supported the 2008 Amendments to the Americans with Disabilities Act.
Critical to that support is the PHRC's endorsement of the Congressional findings expressed in the Amendments, including the congressional finding that what Congress expected that the definition of disability under a ADA would be interpreted consistently with how courts applied the definition of handicapped under the Rehabilitation Act, that expectation has not been fulfilled. And the Congressional finding that in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice or the failure to remove societal and institutional barriers.
Perhaps most importantly, the Congressional finding that to carry out the ADA's objectives of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.
For the PHRC, it is our strong support for the congressional principles outlined above that informs our review of the proposed regulations and interpretative guidance.
This includes a recognition that the ADA would be interpreted in a manner consistent with federal courts in the term disability found in the Rehabilitation Act of 1973.
I note in this regard that the PHRC and the people of Pennsylvania are fortunate that the Pennsylvania courts did not engage in the more restrictive interpretation of that definition that federal courts did when subsequently interpreting the ADA definition of this term.
We urge the EEOC to listen carefully to the comments and suggestions that are going to be offered by the members of various disability communities during the course of these proceedings. In our experience, it is those most directly impacted who frequently have the most immediate and effective recommendations to make.
The PHRC urges the EEOC to take all steps necessary to educate its staff and the public in order to ensure effective, efficient enforcement of the Amendments in a manner fully consistent with the expressed Congressional intent.
The PHRC itself will continue to partner with the EEOC to fulfill our legislative mandates. Most immediately, we expect to closely follow these continuing proceedings, including reviewing the other comments and consulting with our disability stakeholders and taskforce members.
We must emphasize that even with the correct legal standard for ADA back in place, disability discrimination cases are very fact.specific under both federal and state law. No party can nor should be guaranteed a result, but all parties have a right to a fair standard consistently applied.
Much of the success regarding implementation of these proposed regulations and interpretive guidance will depend on the matter in which the judicial branch of government interprets this.
The intent of Congress and the Pennsylvania General Assembly in passing anti-employment discrimination legislation to include people with disabilities, whether current, past or only in an employer's imagination was to remove artificial barriers which are physical and attitudinal to the full participation of people with disabilities in the workforce on an equal basis with all other participants. No more, but absolutely no less.
Prior interpretations restricted that intent as it applied to ADA to the point that those interpretations in effect added barriers rather than removing them as Congress had intended. Thank you very much for your consideration.
MR. ISHIMARU: Mr. Glassman, thank you very much.
Any questions from anyone on the panel? Good.
Mr. Glassman, we appreciate your contribution. If you wish to submit further written statements, you should follow the .. we will take them. We will take them.
MR. ISHIMARU: Excellent. Thank you so much.
We'll next hear from Mark Dichter with the law firm of Morgan Lewis.
Mark is an old friend of the Commission and it's great to see you in this beautiful city and we're delighted to have you. So, please, proceed.
MARK DICHTER: Well, thank you, Chair Ishimaru. We really do appreciate this effort and want to welcome you to the home of the next World Series champions.
MS.GRIFFIN: Oh, we hope so because we hate the Yankees.
MARK DICHTER: Don't type that.
MS.GRIFFIN: You can put that in there.
MARK DICHTER: I'm Chair of Morgan Lewis Labor and Employment practice group and former Chair of the ABA Labor and Employment Section and, also, former Chair of its EEO Committee. But I'm not speaking here on behalf of the ABA or Morgan Lewis or our clients. I'm speaking as a representative of responsible employers who are committed to and wholeheartedly endorse the objectives of the ADA.
And we .. our clients and we appreciate the efforts of commission to clarify the ADA. I think the Commission did a wonderful job with the original statute, spent a lot of time in very detailed regulations. And I think that's been generally helpful to both the business community and individuals with disabilities.
I think it's important, however, to recognize a difference between the ADA and Title VII on one hand and ADA on the other hand.
ADA by statute and by its nature requires an individualized assessment with respect to disability. As the proceeding speaker PHRC Chair Glassman said, it's very fact.specific.
And, therefore, I think with that in mind, one needs to take into account .. take that into account in looking at the regulations.
The .. there are certain individuals who are clearly not intended to be covered who, unfortunately, take advantage of the law where there is an adverse employment action.
I remember very vividly, and some others in the room may also, 1991 when Evan Kemp was Chair of the Commission. And this was between the passage of the law and before it became effective.
And he came to an ADA liaison meeting in Annapolis, Maryland. Evan came, from those of you who did not know him, had a wheelchair. First we had to have a ramp for him to get into the building. And then he could not get into the lunchroom and then we had lunch in the hallway and then couldn't use any of the bathrooms.
What an incredibly vivid example to all of us attending that meeting of what the ADA was all about.
But one of the other things that Chair Kemp reminded us at the time that the statute was really designed to protect individuals like him. He didn't want to see it trivialized by every individual using the ADA as an excuse to justify what happens in their employment setting.
Unfortunately, many times in good faith individuals will point to things as an excuse or as a justification for what happened to them as an adverse action. I think your proposed regulations largely do reflect what's in the Amendments.
Working as a major life activity, since the Rehab Act, the concept has always been impedes performance of a class of jobs or broad range of jobs. The new regulations go beyond that, talking about the qualifications for a type of work condition. There's no indication that Congress intended to disregard what has been the standard in that regard for working as a major life activity.
Similarly, substantially eliminating .. limiting, while I think, again, I applaud the Commission's effort to try and eliminate unnecessary litigation and certainly, I don't think anyone disagrees with the concepts of condition like blindness, deafness or use of a wheelchair are, per se, disabilities.
Other potential disabilities such as diabetes, depression, obsessive.compulsive disorder, post.traumatic syndrome or HIV aren't necessarily in the same category and I think do require a more individualized and functional analysis to determine whether the individual has a disability.
Similarly, with respect to regarded as disabled, the new regulations incorporate the concept of a symptom of a condition and such as someone's use of medication are mitigating even where the employer is unaware of the reason the employee is taking the medication.
Again, I think that opens the ADA up for potential abuse.
So those are the few areas where I'll present more detailed comments that I wanted to bring to your attention today. Thank you for this opportunity, and, again, thank you for coming to Philadelphia.
MR. ISHIMARU: Any questions from the panel? We thank you, Mr. Dichter. We look forward to seeing your written comments, as well.
Next, Sarah Bouchard also with Morgan Lewis.
SARAH BOUCHARD: Thank you very much and thank you for allowing me to speak today. I, too, like Mark, applaud the amendments to the Act but seek some needed clarification on the proposed regulations.
My questions and comments today will focus on the mitigating measures as part of the accommodation process.
Congress and EEOC's regulations made clear that employers cannot take into account mitigating measures for determining whether a person has a disability.
The EEOC suggested that employers take [??]. Here are where our questions lie.
Employers are seeking much more guidance in this regard.
Take for example an individual with bipolar disorder who doesn't require accommodation while on an appropriately prescribed medication.
Under previous ADA, the employer would have concluded that this person was not disabled.
Under the new law, the person is disabled and the employer will need to engage the individual with respect to an accommodation.
Is it, for example, ever reasonable for the employer to deny an accommodation or determine that the employee is no longer a qualified individual under the Act if the employee refuses to use appropriately prescribed medication?
What, for example, if the employee claims that the person can simply not afford the medication or cannot afford a medication that is the most effective in ameliorating the symptoms of the disability. Is the employee no longer a qualified individual? Does the employer need to engage in a more burdensome accommodation request? Normally, an employer does not have to bear the financial obligation of paying for certain devices that help to assist an individual in major life activities. These may include wheelchairs, hearing aids and prosthetic limbs.
Will a similar logic apply for medications? With rising healthcare costs and the broad coverage now under the Amendments, this is a real concern for employers. The employers that I have spoken to believe that the regulations should make clear that such mitigating measures, such as medication, should be the employees' rather than the employer' financial burden except for the normal healthcare cost.
Furthermore, if the employee refuses a reasonable accommodation in terms of a mitigating medication measure, we believe that the regulation should make clear that the individual is no longer qualified for that position if they refuse to take a reasonable accommodation in that regard.
And I thank you for your time.
MR. ISHIMARU: Thank you very much.
MS. GRIFFIN: Yes, I have a question. I'm just curious, what in these new regs makes you think this has been changed?
SARAH BOUCHARD: I think the concern is with the almost .. the depression, the bipolar, some of the issues with, for example, ADHD. There could be medications that appropriately would ameliorate the issue and some of these were not even considered disabilities.
Because of the change, and let me clarify because I don't think I was clear.
Pre-amendment, a lot of these things wouldn't have become disabilities. So you wouldn't be engaging in the accommodation request. Now, there are some considered per se disabilities. Some, given the broad coverage under the act will be considered disabilities. So now, the appropriate focus is on the accommodation process. I think this will be a conversation that comes into play now where it didn't in the past.
MR. ISHIMARU: Could you just help me out by providing an example of something that wouldn't have been considered a disability before the Amendments were passed but now might be or would be?
SARAH BOUCHARD: Sure, I think bipolar disorder may not have been considered a disability. I think there's case law to suggest that.
MR. ISHIMARU: I see.
You're talking about when a mitigating measure is used or medication is used.
SARAH BOUCHARD: Right. And now the mitigating measures are considered in the accommodation process.
MR. ISHIMARU: Other questions? If not, we thank you. If you're providing written comments, we would welcome those, as well.
Next we'll hear from Donald Ellison. We welcome you and proceed once you get settled.
DONALD ELLISON: Good morning. Thank you for allowing me the time to speak to you this morning. My name is Donald Ellison. And I am disabled.
I have cerebral palsy and type I diabetes as well as complications of diabetes of glaucoma and neuropathy.
However, I did work successfully for many years at Chrysler Corporation.
Today, I work for the disabled helping them to break down barriers to employment.
Today, I'd like to address the issue of mitigating measures, specifically use of special transportation as a mitigating measure. In talking with other disabled workers and at the roundtables that I have participated in, I have found that there are certain things that are so enmeshed with the topic of employment, that it seems one cannot talk about employment without talking about the issue of transportation.
For those of us with impairments that consistently meet the definition of a disability, most of the time we must rely on public transportation or some other mode of transportation to get to work.
Unfortunately we cannot just get in a car and go.
I am here today to ask that there be some clear guidance on the topic of whether or not accommodating the disabled workers' special transportation needs meets the definition of a mitigating measure.
From personal experience as well as from talking with other disabled workers, I know that oftentimes this means to the employer that they have to extend a flexible work schedule to allow the transportation and sometimes allowing the transport vehicle on the premises of the work site.
If accommodating a disabled worker in these ways would not pose an undue burden or harm to the employer, then I think you would agree that they should be recognized as a mitigating measure and therefore granted as an accommodation.
In some areas of the country, public transportation is all there is.
I attended a disability workshop in Marquette, Michigan. They have what I was told was a pretty good bus system. I spoke with the disabled workers who were there at the roundtable, and they said that the only way that they can successfully work is if the employer allowed a flexible start.
So I guess I'm here to ask you, is it reasonable that a special transportation needs be accommodated and recognized as a mitigating measure. I can assure you that transportation is one of the biggest barriers to employment.
I finally ask you that this issue be taken for all consideration.
MR. ISHIMARU: Mr. Ellison, thank you.
MS. BARKER: Just to be clear, are you asking will the employer .. I know you're asking if it could be a mitigating issue. But are you asking to provide transportation as a reasonable accommodation?
DONALD ELLISON: No, not at all. Just the flexible start time to allow the transportation.
MS. BARKER: Right, I just wanted to make that clear. Thanks.
MR. ISHIMARU: Mr. Ellison, thank you very much for coming. We appreciate your contribution.
Next we'll hear from Daryl. We welcome you and appreciate you coming today.
DARRYL G. MCCALLUM: Thank you very much.
First of all, let me say I do appreciate the opportunity to come and speak at this town hall meeting. I think it's a very good idea. And I wanted to say a little bit about myself. I'm with the firm of Shawe Rosenthal in Baltimore, Maryland.
I'd like to say we appreciate the EEOC's effort in providing guidance as to the implementation of the ADA. We know a lot of hard work has gone into this over the past several months. And we do appreciate it.
And as we represent employers, there are some areas as we have looked at the proposed regulations that we think could use some clarification. I'm just going to touch on a few of those today in my testimony.
The first is the definition of substantially limits. We note that legislative history suggests that in determining whether a person is disabled, is that it should not be an extensive analysis and we recognize that.
We note, also, that the legislative history, as is said in the regulations here, state that substantially limits relates to the manner or duration under which they can be performed in comparison to most people.
And the EEOC has in forming the new regulations, has chosen to not use the words "condition, manner or duration" and the explanation, of course, being that they didn't want to have substantially limits suggest the level of limitation.
Omitting the words condition, manner or duration may be really give [??] guidance to employers in determining whether a person is disabled or not. There may be certain conditions that may .. that previous time to the Amendments may not have qualified as disabilities which may not be long in duration, that may ultimately people may argue become disabilities now.
A back injury that results in a lifting limitation for a limited length of time, a broken leg, a broken arm, that may, again, result in certain restrictions that may not last very long. There will at least be an argument now that those conditions which previously would not have qualified as disabilities may now qualify as disabilities.
So we would hope to have a little bit more guidance there as to whether or not some conditions, such as that, would now be considered disabilities.
The second area I'd like to point out is that in the area of major life activities, in the regulations there have been certain additions that were made to the list of major life activities, knowing that the list given in the statute was not exhaustive.
But there's one, in particular, that I wanted to point out. And that is the major life activity of interacting with others.
It may now be the case that that particular area is somewhat problematic in that employers who have routinely disciplined employees for things such as insubordination or those types of things may now find themselves on the wrong end of the disability claim by employers and may claim that they're disruptive or insubordinate behavior may be due to some sort of disability or claim that by acting on their disruptive or insubordinate attitudes or behavior that we regarded them as being disabled.
So they may .. so employers may now think twice as they attempt to discipline .. manage employees who may be engaging there disruptive or insubordinate behavior.
In short, we think that the .. our hope is that the regulations will give a clear interpretive guidance to employers who make the everyday decisions regarding their work force. And, as they attempt to make sure the disabled employees are reasonably accommodated.
And we're confident that with certain clarifications, that the regulations will also do that.
MR. ISHIMARU: Thank you. Any questions? No? Thank you very much for your contribution. If you're submitting a written statement at a later point, we would welcome that.
So thank you very much.
Next we’ll hear from Mr. Mike Jones. Mr. Jones, we welcome you. Please proceed. You're based in Pittsburgh, no?
MIKE JONES: Yes, although we like to claim we're a little broader than that now.
MIKE JONES: I'd like to thank the panel for hearing from us. I would like to echo the comments that I believe this is a valuable process and to hear from stakeholders to give input, I would .. with respect to the Department of Labor's revisions, the Family Medical Leave Act regulations, I believe that process worked very well. And we saw significant changes from the proposed regs to the final regs and, importantly, discussion reflecting the consideration of the concerns that have been raised. I believe that's a very valuable part of this process.
Intending to submit written comments, I would like to focus in on a couple brief points and some have been touched on already by folks that, in particular, represent employers. And the fact that you're probably going to hear the same issues come up over and over again, I think, reflects the significant concerns a lot of employers do have. With regard to the major life activity, that is a major concern for employers. And the proposed regulations raise substantial concern certain here.
The shift from viewing impairment compared to the general population as opposed to individuals in a narrow category of jobs really seems to be a shift away from the fundamental definition of who is subject to protection by the Act.
And, frankly, from an employer perspective, you know, almost makes the definition circular.
By definition, someone that cannot perform a lifting requirement to be a CNA [Certified Nursing Assistant], now is disabled.
Even though compared to the general population, the lifting restriction may not impair any normal activity of daily living.
Instead of focusing on activities of daily living, we specifically focus now upon a class .. a very narrow category of jobs to define disability.
And I would submit that that goes far beyond what Congress intended to bring within the scope of the protection of the ADA.
Another concern in the proposed regulations has to do with actions taken by an employer based upon symptoms of impairment.
Again, I'm not the first to raise this issue this early in the morning, and I suspect you'll hear it raised again.
The things that I would like to point out to the panel members are that this shift in the regulations seems to be an abandonment of the interactive process because now what we have is an employer takes an adverse employment action based only on a symptom with no improper intent. The regulation says that the employer could be held liable and the employee engaged in no interactive process to request an accommodation of the symptom of the underlying disability.
And I would submit that that has improperly and unfairly shifted strict liability to an employer. And one of the hallmarks of the Act and the EEOC's enforcement of the Act has been requiring a mutual process on behalf the employee and the employer to resolve issues.
The last point I would like to make is in regard to the transitory and minor exception.
In an attempt to I believe to try to write the regulations broadly enough, it seems that the transitory and minor exception may have gone too far.
The fact that it is transitory and minor creates the problem. Under st .. at least the way I've read these proposed regs, and I understand you cannot comment upon them, even a transitory condition, if it is not a minor impairment could warrant the Act.
So a transitory and major impairment -- an impairment which is short term but never the less a significant impairment, specifically that employee's ability to do the job.
If that is the case, I would submit that that is a broadening beyond the statutory regulatory power of the Commission.
That's all I have. Thank you very much.
MR. ISHIMARU: Mr. Jones, thank you. Any questions from the panel?
MS. GRIFFIN: No, but thank you.
MR. ISHIMARU: Thank you very much.
MS. GRIFFIN: Everyone should know that I'm from Boston and that's why the Yankees comment. But I'm assuming you're all with me on this.
MR. ISHIMARU: Next, we'll hear from ..
MS. BARKER: Neutral, neutral.
MS. GRIFFIN: Is there a rule we're not supposed to talk about baseball?
MR. ISHIMARU: Next we'll hear from Phylis Feiner Johnson. We welcome you and appreciate you for joining us today.
PHYLIS FEINER JOHNSON: And I thank you from the bottom of my heart for the invitation.
First and foremost, we want to thank you the EEOC for developing the proposed regulations that so closely followed the intent of Congress in passing the ADA.
The protection offered to people with disabilities are crucial protections for people with epilepsy. Correcting problems of the past, the Epilepsy Foundation and, especially people with epilepsy, benefit from a greatly simplified and just law regarding definition of who has a disability.
All seizures in epilepsy do substantially limit a bodily function. That is neurological function. And we feel that it should be clearly spelled out in regulations. While there are multiple seizure types and seizure syndromes, it is important to note regardless of all seizure types all epilepsy affects neurological function.
A streamlined process is necessary to ensure protections.
People should only have to present one document stating their condition. And, after that, are covered under the provisions of the ADAA. In addition, eliminating unnecessary and redundant analysis of degree of disability helps both the process and the individual.
We feel that the regulations need to be more clearly defined and differentiate temporary and minor.
For example, there's no such thing as a small seizure. What happens to people who have a broken femur, a major and large bone and leg, the regulations need to make it clear that a broken bone may, indeed, be temporary. But it is not minor and should not be on the list of temporary and minor impairments.
The true test is getting people on the job and staying on the job. Can a person do the job with an accommodation? It is that accommodation .. is that accommodation an undue hardship? If not, and if they can do the job, people can be hired.
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 upon employers' actions.
For example, if they are adversely treated, that is not hired after the employer learns they have a condition like epilepsy or cancer, they should be able to readily make a claim that they have been regarded as having a disability.
Again, on behalf of the Epilepsy Foundation and more than 3 million Americans living with epilepsy, I want to commend the U.S Equal Employment Opportunity Commission for developing the proposed regulations. I really thank you for this opportunity.
MR. ISHIMARU: Great. Thank you very much.
We thank you very much for your valuable contribution.
PHYLIS FEINER JOHNSON: I have to tell you, I was one of those people in employment and it's really, really ugly.
MR. ISHIMARU: Next we’ll hear from Wanda Flowers, who is the chief employment counsel with Sunoco.
WANDA FLOWERS: Good morning. I guess I have a unique perspective having worked for the EEOC for 17 years before going to Sunoco. Ended my career with the government as Regional Attorney in the Philadelphia district office.
MR. ISHIMARU: When was that?
PUBLIC: 1983 to 2000.
MR. ISHIMARU: Okay. Excellent.
WANDA FLOWERS: I'm happy to have this opportunity to talk to you this morning and give you the perspective of in.house counsel. You hear often from outside counsel and several attorneys from firms this morning and talk about the issues that confront employers. And I just feel that I want you to hear what we encounter in.house so that when the regulations are finally done, you would think about all that we have to go through and deal with and keep that in mind.
At the EEOC, when someone comes in and says I have an ADA issue and they'd also talk about FMLA, I would think that's not my issue. I'm concerned about ADA. When I went in-house and had to encounter FMLA, ADA, collective bargaining, the policies of the company, I truly understood how overwhelmed HR personnel are. They are not lawyers. It's very, very challenging for them.
So I was thinking, you know, I really would like for people at the Commission to know what really does go on in.house and, in my group, I have attorneys who do for me all of the EEO investigations.
We are very conscientious and work very hard to make sure that the workplace is free of discrimination.
Sunoco has an incentive because those are our employees.
Most employers do this to make sure that they are treated fairly.
So what I try to do is work cooperatively with the EEOC.
I have invited Mary Tiernan in the Philadelphia District Office to join me on panels and to speak to employee groups.
What I would like to have you think about is ways that we could work that way so that we could assure that there's no discrimination as opposed to sometimes when I hear from employer groups, when I'm talking, they always want to hear my perspective, they feel sometimes like you think, and I know I did when I was at the agency, sometimes feel that employers are hiding information from me, they're just evil people. I really did feel that way.
But I know that they are really, really good people who work for employers and trying to do their best.
And if the regulations can be clearer and concise, it would help them to be able to perform their jobs in a much better way and they would have a greater appreciation for the efforts of agencies like the EEOC.
I explained to employers all of the time that these have now come into existence because employers were always doing what they were supposed to do, but because there were issues that people were confronting issues like the previous speaker in the workplace and we have to keep that in mind, as well.
So I just want there to be some balance, that you consider the issues and the challenges that face in.house counseling, HR people at the workplace because most of the legal issues, the issues in the regulations have been addressed by my colleagues from the firms. Thank you very much for this opportunity.
MR. ISHIMARU: I have a question. Not a question, but a statement.
It would be very helpful, I think, you talked about providing specific examples. It would be helpful to us to get something in writing from you that would point out things that need more clarification -- things that might be ambiguous to employers. If you could come up with a list like that, I think that would be very helpful to us in thinking about how do we make this work?
WANDA FLOWERS: Okay, thank you, I will.
MR. ISHIMARU: Thanks, very much.
Next we’ll hear from Sheila Weiner.
Ms. Weiner is with the National Kidney Foundation.
SHEILA WEINER: Good morning. On behalf of the National Kidney Foundation, I would like to thank you for the opportunity to speak at today's town hall meeting and to comment on the EEOC's proposed regulations.
My name is Sheila and I'm the Patient Services Director with the National Kidney Foundation in New York at our headquarters office.
The National Kidney Foundation represents more than 27 million Americans of all ages, ethnicities and socioeconomic groups affected by chronic kidney diseases. We support and advocate for the needs of individuals affected by chronic kidney disease throughout all five of the stages of the disease, including those who have received transplants.
Mental health issues and in particular depression is a big concern for our constituency, as the literature shows, that the prevalence of depression among people on dialysis is far greater than is found in the general population.
Also, mental health is directly connected to overall health outcomes for people on dialysis.
Consequently, quality of life issues, including employment are paramount.
First I'd like to talk briefly about those people with chronic kidney disease stages three and four. These are the stages of kidney disease when many individuals experience increased symptoms and severity of symptoms and problems associated with co-morbidity, such as diabetes, anemia and high blood pressure.
The data has shown that for those individuals, even before they reach stage five and kidney failure, when dialysis treatment or transplant is needed, as they approach failure, circumstances may occur in which employment issues become a concern.
For example, some of these individuals would be able to keep their jobs or find new jobs if they had workplace accommodations such as additional breaks, the ability to sit occasionally or work sitting instead of standing all day, use of labor assistive devices to reduce the physical demands of some jobs, flex time to accommodate times of day when symptoms are worse.
We are suggesting that all individuals with chronic kidney disease would benefit from protection under this Act.
Here are so much of the reasons why those kidney patients are [??] qualified for protection.
A typical dialysis patient needs to receive four.five hours of treatment hooked up to a dialysis machine in a dialysis center setting every other day. This could be up to three days a week a person would need to be out of the office for 4.6 hours, taking into account travel time, pharmacy, and other doctors' visits.
Sometimes dialysis can be arranged on a Saturday or in the evening, but not always. Employers need to be willing and prepared to make accommodations for work to be done out of the office and during non-typical work hours: people can work on laptops and use cell phones and other electronic devices while receiving dialysis.
A person receiving dialysis treatment who needs to travel for his job will need to arrange for a dialysis center or supplies or accommodations if he will miss regularly scheduled dialysis.
If given advance notice by the employer, the need for these individuals to receive dialysis while traveling should not interfere with travel.
Dialysis patients are also susceptible to secondary illnesses such as diabetes and hypertension that may call for additional treatment and medical attention.
Diabetes and wound healing can lead to amputations.
People with kidney disease will need protections particularly if they also have diabetes and amputations.
Transplant patients of all organs and people waiting for a transplant have very specific treatments they must adhere to, as well.
They need to take multiple medications at certain times of the day with certain drinks or food or risk losing the transplanted organ.
They need to keep biopsy and doctor appointments and sometimes make special trips to the pharmacy. These actions are life saving and need to be granted protection under the ADAA.
Large and small employers need to be prepared to make these accommodations.
While it is true that many people with kidney failure may not be able to work due to significant impairments, others experience impairment that does not prohibit them from working.
And the National Kidney Foundation appreciates the opportunity to advocate for those individuals so they are given opportunities to make important contributions to their well being and to society through employment.
Thank you very much.
MR. ISHIMARU: Any questions? If not, we thank you very much for your contribution. Very, very helpful.
MR. ISHIMARU: We'll next hear from Marian Vessels.
You're based in what city?
MARIAN VESSELS: In Rockville, Maryland.
MS. BARKER: But there's one in each part of the country? Is there one central headquarters?
MS. GRIFFIN: No, each one is their own entity. They were created under the ADA. I think Justice generally interacts.
MR. WODATCH: The Justice Department works with them on a regular basis. They're repositories of a lot of that provide technical assistance, information to covered entities, people with disabilities in the general public.
I should probably let Marian speak, but they have representatives in every state.
MS. GRIFFIN: They're a tremendous resource.
MR. ISHIMARU: They're a private resource federally funded. Very good.
We welcome you. Delighted to have you here. We hope we didn't step on your statement.
MS. GRIFFIN: We've used your 15 minutes.
MARIAN VESSELS: Well, thank you so much. We've done your presentation.
MARIAN VESSELS: I am the Director of the mid Atlantic DBTAC.
We've been around since the inception of the ADA. We are in our 14th .. 19th year of funding. And we provide technical assistance, as John indicated, to all covered entities. Large and small employers, even employers who are not covered by the ADA, but by virtue of state law and by virtue of public expectation, choose to comply with the ADA regulations.
There are ten of us. And we do cover the whole country. We are located in the U.S. Department of Education's ten regional centers.
The regional center that I cover is Pennsylvania, Maryland, Virginia, West Virginia, Delaware, the District of Columbia.
We are very interested in being able to support the EEOC and the Department of Justice as you roll out the ADA Amendments Act and as you enforce the regulations as they become available.
We have been going around the country providing presentations currently on the proposed amendments and the NPRM.
We have a lot of concerns we get from employers about making sure that the regulations are easy to understand.
The national network will be providing written testimony on the concerns we have as providers of technical assistance.
I don't have it for you today, because, as ten of us very independent as Christine said, it takes a while for us to come to consensus.
And October is an incredibly busy month for us as we wrap up the last day of October as Disability Employment Awareness Month. It is a time for us to get out and speak to lots of our covered constituencies. Tremendous amount of interest.
We, in the mid Atlantic, have been doing a lot of training. We just recently had Chris Kuczynski come and do a workshop as well as a plenary session for us. Lots of interest.
We encourage the Commission to look to ensure that the regulations are easy for employers to understand.
Right now, we're still finding that employers are very confused about time frames such as six months or regarded .. yeah, regarded as opposed to record of as opposed to, you know, the first prong.
We encourage you to look at ways to make it easier for employers to understand all forms of the Amendment.
We are the go to place for many employers, for training and technical assistance. We get calls from thousands and thousands of employees and employers on a daily basis asking us about how to enforce the ADA. How to use it in their daily lives.
We talk about the ways that not only the regulations come into effect with them, but how resources such as independent .. independent living centers such as at Liberty Resources can assist both employers in finding good, capable employees, assisting as in other speakers talking about getting transportation that is accessible and usable for folks to be able to get to work.
We work with Fortune 500 companies who have in.house counsels such as you heard with Sunoco who also have concerns about how the ADA plays out as well as small companies that do not have HR. And those are the ones that desperately need really good, usable English regulations and enforcement guidances. The more user friendly they can be, the easier it is for us.
We give your guidance as well as the Department of Justice as well as the Job Accommodation Network and other guidances such as those developed by the DBTAC network and HR tips and other entities. We have information on the back table next to the water if people want to get ahold of us.
We work very closely with both EEOC and the Department of Justice and get briefings all of the time about regulations. We work very closely with Sharon Rennert and she provides us guidance.
We really appreciate the opportunity to work with EEOC and the Department of Justice as we all look forward to ensuring comment and we look forward to the roll out of the regulations.
Thank you very much.
MR. ISHIMARU: Ms. Vessels, thank you very much.
Any question from the panel?
MS. BARKER: I have a question. I was not familiar with your organization. And I'm really interested in it. Can you tell me, Ms. Vessels, do you know where the office is in the Southeast?
MARIAN VESSELS: Atlanta, Georgia.
MR. ISHIMARU: That would come with Alabama?
MS. BARKER: Those of us in California don't necessarily know.
MR. ISHIMARU: I know where Alabama is.
MR. ISHIMARU: But the Atlanta office would cover most of the South.
MARIAN VESSELS: I can make sure that I give you the contact information for Shelly, who is the Director there.
MS. BARKER: Shelly Kaplan?
MARIAN VESSELS: Um.hmm. Thank you.
MR. ISHIMARU: Thank you very much.
MR. ISHIMARU: Next we'll hear from Jamie Ray-Leonetti. We welcome you. Thank you for coming today.
Jamie Ray-Leonetti: Good morning and thank you for having me to address the panel.
My name is Jamie Ray Leonetti. The Client Assistance Program is administered by the Center for Disability Law and Policy.
I am also speaking to you today as a person with a disability.
The Client Assistance Program is the statewide advocate for persons with disabilities who need to receive services from the state Office of Vocational Rehabilitation which you may know as OVR. Or Centers for Independent Living, such as Liberty Resources or other programs that get funding under Title I of the Rehab Act.
In making my comments today, these comments had been reviewed and are also supported by some of our friends.
These organizations are the AIDS Law Project, the Friends of Farm Workers, the Pennsylvania Disability Rights Network.
We have some recommendations that we would like to share with the Commission.
Number one. Congress, in passing the Americans with Disabilities Act Amendments Act recognized that, of course, the purposes of these Amendments is to reinstate a broad scope of protection by expanding the definition of disability.
Consistent with this broad premise, we recommend that the proposed regulations include an introductory statement which recognizes that the Americans with Disabilities Act Amendment Act is intended to afford protection not only to those individuals who face discrimination based upon a real or perceived functional limitation, but also to those individuals who face discrimination on the basis of myth, fear and stereotypes.
Also consistent with the broad scope of protection, recognized by the law, we encourage the EEOC to add language to what is now the proposed regulation at 29CFR1630.2 number five.
And just for reference, this is on page 48441 of your current, proposed regulations.
This section deals with those impairments that the EEOC recognizes will "consistently meet the definition of disability."
In order to make clear the very low threshold that is necessary to establish that these impairments are disabilities, we recommend an additional sentence here stating an individualized assessment of the listed impairments is only necessary where a request for reasonable accommodation is made and the interactive process is triggered.
This assessment is not part of the threshold determination of whether an individual with these listed impairments meets the definition of disability.
Now, the reason for that is because if these impairments are going to consistently meet the definition, it's our position that that analysis has really already been taken care of by the law and the regulations.
Our third recommendation also deals with the same area of the regulations.
We recommend the following language change in what is now proposed at 29CFR1630.2, again, number five.
In parts A through H, which is the listing of impairments, we recommend the substitution of the phrase, Because it substantially limits.
So we're recommending the substitution of because for which. For example, part A would now read autism, because it substantially limits major life activities such as communicating, interacting with others or learning.
Again, our reason for that recommendation is we think that the "which" substantially limits language, is really calling for an analysis that is unnecessary because if you look at autism as the example, that particular disability will always substantially limit these areas in one way or another.
If I could take another example that's also in that section, cerebral palsy, which impairs the brain, I can tell you from personal experience that's kind of stating the same thing twice, because I would challenge you to find anybody with cerebral palsy who does not have a brain impairment of some sort.
By definition, your brain is impaired if you have CP.
So those three items are our specific recommendations to the Commission.
And, again, we appreciate the opportunity to speak with you today.
MR. ISHIMARU: Great, thank you very much.
MS. GRIFFIN: As the CAP program, are you within the Protection and Advocacy agency?
Jamie Ray-Leonetti: The Client Assistance Program is housed within the Protection and Advocacy program.
In Pennsylvania, it is not like that. But, of course, we're very good friends with the folks at Pennsylvania Disability Rights. [??], it is different in different places.
MR. ISHIMARU: So to be clear, your organization is a state organization or private organization?
Jamie Ray-Leonetti: We’re not a state organization. We are a private entity which receives funding to administer the Client Assistance Program from the federal government, specifically the Department of Education.
MR. ISHIMARU: Very good. Great.
Thank you for your contribution.
Very, very helpful.
Is Mr. Deratzian here? Next, we have the law firm.
MR. ISHIMARU: We welcome you, my apologies to your firm and your partner's firm for butchering the name.
DAVID L. DERATZIAN: You certainly wouldn't have been the first. We pride ourselves on not easy names.
MS. GRIFFIN: Hahalis and Kounoupis.
MR. ISHIMARU: Welcome.
PUBLIC: Thank you.
I'm David and I'm from a law firm in Bethlehem, Pennsylvania. I was the chairperson of disability rights commission from 2001.2008 and in that capacity and other capacities, I served on the task forces that was involved in the many iterations that ultimately became the ADA Amendments Act of 2008.
I'm currently on the task force that is preparing comments which we intend to submit in written form.
Overall, we feel that the draft regulation is really quite good and remarkably consistent at the spirit of what we understand and having a development process, what I understand to be the Congressional intent of the Amendments Act.
They very closely track the statutory language and guidance particularly with the examples that have been given.
There are a few areas that we will be commenting on in great detail, but there are two or three that I'd like to highlight this morning.
My immediate predecessor stole a little of my thunder, which is always good. I agree with Jamie a hundred percent.
One of the biggest problems in employees requesting accommodation has historically been the difficulty in substantiating whether there's an actual impairment or whether there's a disability requiring accommodation.
Part of the problem that we've seen, and it was equally true with the Family Medical Leave Act.
And the attorneys that represent them also, in particularly, what I've seen in the .. some of the major law firms who represent clients, written comments and what they publish are very supportive.
One of the biggest problems that we've seen, and again, equally consistent with the Family Medical Leave Act, was the relatively .. the relative lack of understanding in the medical profession of what the differences in the standards are.
Now, the Family Medical Leave regulations and the new amendments to the Act are with us.
But one of the things that the Department of Labor did in preparation was a survey of concerns. And one of the biggest concerns was the burden on both the physicians and the patients to get the physicians to comply with what was required under the Family Medical Leave Act. And, in particular, with the Americans with Disabilities Act, historically, the biggest problem has been that doctors are used to defining disability as they understand it under state workers' comp laws, state disability laws, disability insurance policies and that sort of thing.
And, also, under FMLA. as opposed to the ADA. The historical result has been that doctors either over disable the person or under-disable the person.
In other words, they make them so disabled that they can't perform any work because they're thinking with the mind set of disability insurance or they under-qualify them and they're no longer in need of an accommodation.
Section 1630.2. I'm going to shorten that, refer to the J5 disabilities and the J6 disabilities.
Basically, provides that certain impai rments will consistently .. of course, I would prefer the word always. But I've been down that road before.
So I understand the word consistently. And, as Jamie said before me, that the individual assessment, which is still with us, obviously, on the regulations and the statute be conducted quickly and easily.
The difficulty that we see and the comment that we received from NELA membership and the task force was that the employers still have the opportunity to request further and further documentation from the doctors. And we would recommend that the regulations specifically say that the only documentation required for a J5 disability is a substantiation of the existence of a medical condition.
Until you get to the issue of accommodation, that that govern and to close any loophole for what's referred to as "independent medical exams" which would allow the employer to make further inquiry.
Under the existing laws and the case law, particularly, the Sullivan case, the employer can go very, very far into the issue of both disability and impairment.
I'm sorry, disability and accommodation and request that the doctors provide more and more and more documentation, which seems to never result in the employee receiving the necessary accommodation.
So as to the J5 disabilities, we suggest that there be no inquiry on the issue of impairment beyond the diagnosis.
The rest of it, and yet, this is consistent with some of the other regulations and guidances that have been proposed. The rest of it can be dealt with and, in one section, the regulations state that person's own accounting, I believe the word is "may be" sufficient.
On that I can't give you chapter and verse. But there's a place where, in the guidance, it says under 1630J. I think it's on 448 of the Federal Register.
But I could be mistaken about that.
MS. GRIFFIN: We don't know it either. I mean, we can't cite it.
DAVID L. DERATZIAN: There's a distinction as to whether the person's own accounting may be so sufficient and a further statement that the expert testimony is generally not required.
We would suggest that, number one, that guidance section be incorporated into the regulations to drive home to the Courts that extensive doctors’ documentation and vocational information, which I'll touch on in a second, is not required anymore.
MS. GRIFFIN: Just to clarify, because this is employment. Is this the section you're referring to on the persons own accounting? My recollection is it's under the major life activity of working?
DAVID L. DERATZIAN: It is. And I was jumping over. I'm sorry. That was an example. That was an example of an opportunity to bring that, number one, into the regulation and, number two, to clarify what has to happen when.
I .. we generally believe that the Commission was correct in eliminating the requirements under cases such as Duncan out of, I believe, the D.C. District of Columbia Circuit which I was tangentially involved in the appeal on.
I believe some of the things that were said this morning, the Commission is correct in eliminating those excessively technical and very confusing impediments to the major life activity of work.
And... um... and, also, again, it in that section and the activity of work, it would be helpful if the language was consistent and that will with changed to will generally be sufficient.
One thing that I become aware of in the comments on the regulations that have been going around is that whereas the law firms that represent the employers have been very supportive and generally neutral on the implementation of these regulations, at least with what they've written.
Some of the advocacy organizations on the other side of the table, the National Employment Law Institute and the HR Policy Institute have taken the position that the amendments do not completely overrule Toyota and Sutton and that there's still opportunities to bring in number one, a way to work around what the .. what I believe the statute specifically says.
And what the regulations also support. And the idea being that under Toyota, of course, you can get into refute the idea of impairment, you can get into what the employee can do.
If they can brush their teeth, they can't be possibly impaired in manual tasks, which, I can't tell you how many clients I've had that have no manual tasks but can you brush a teeth is always a question. I think we are done with that now.
But the suggestion is that although you can't use .. Sutton is gone and you can no longer use accommodating measures, you can bring it in under a quasi-analysis that, although, the person, for example, a person who's hearing impaired who has a cochlear implant, which is something that the regulations specifically talk about as a mitigating measure. But now the person, because they've got a cochlear implant, is now an avid concert-goer.
Well, you can be the use the cochlear .. what is being suggested by these employer's organizations is that you can say, well, they can go to concerts now: so they don't really need an accommodation anymore. And I think that's directly contrary to the intent of the statute and directly contrary to what I think the Commission intended this to be.
I have one other very brief comment.
And that is something that came up before you this morning, which is accommodating a medical condition who's transitory but not minor.
I think that an employer accommodating a condition that is transitory but not minor should be analyzed under the undue burden analysis.
We already know that you give consideration to a condition when it's active.
So, for example, let's take the femur break, which, in a relatively healthy person is going to heal. But it’s going to be a lengthy healing process.
I suggest to you that person, while that is going on, is disabled and is entitled to a reasonable accommodation of that disability.
That person may simply become undisabled at some point.
But that's a tangential, I think, issue that can be .. that if we focus on too much is going to take us away from what's important, which is people who have the long term, the long term disabilities that can be .. that are being .. that undue burdens are being placed in their path.
And, again, on behalf of myself and NELA, we thank you and the Department of Justice and Equal Employment Opportunity Commission as well as Liberty Resources for hosting this meeting.
MR. ISHIMARU: Thank you.
MR. ISHIMARU: Okay. Roger Margulies is scheduled for eleven. I don't know if Mr. Margolis is here yet. If he's not here, I would offer the opportunity for any unscheduled speakers to come forward if they wanted to speak.
We would welcome your participation if you have a comment for us. If not, we will wait for Mr. Margulies at eleven.
Mr. Madden was scheduled to speak, but I understand that he ..
TURNER D. MADDEN: That's okay. I'll go ahead and speak.
MR. ISHIMARU: He's with the law firm of Madden & Patton. Mr. Wodatch has informed me that you go way back.
So we welcome you and, please, proceed.
TURNER D. MADDEN: Well, my only concern is that I would hate to see these regulations bleed over into Titles II and III. That's a major concern for me and my clients. And I would rather not go through who my clients are. I represent employers. Rather some large corporations.
But that's one of my concerns in listening to some of the previous speakers, concerning the language "because" for example. The list of impairments, the cause language would actually make it mandatory for the EEOC or for the employer to award a .. or to give an accommodation based on the because language.
I think you need the flexibility in there. Which or [??]. Language like that allows some flexibility.
And I think .. one of the best things about the language right now is that you can talk to the employee and it's up to the employee to request the accommodation and to tell the employer what they need. And that's the key.
And I .. I'm actually .. I read the proposed regulations, I think they look great.
I had no objection to them, but except for the fact that they bleed over into Titles .. they set a precedent for Titles II and III.
And that's basically all I have.
MR. ISHIMARU: Just from my recollection, Titles II and III cover?
MR. WODATCH: Public entities and public accommodations.
And I'm also making clear that the Department of Justice will be developing regulations implementing the ADA Amendments Act and issuing them for public comment in the future.
TURNER D. MADDEN: And do we have a date for the other regulations?
MR. WODATCH: I believe the last time I heard an answer to that was as soon as humanly possible.
MR. WODATCH: The Department has ADA regulations that are under consideration.
We are awaiting our political leadership. The Civil Rights nominee was recently confirmed by the Senate, Tom Perez. He's taken command at the Civil Rights Division and is working on the regulations right now.
MR. ISHIMARU: Well, as always, if you need us, we offer our assistance.
MR. BASRAWI: I just wonder if you could say a few words as to what your concerns are should the same regulations be with Titles II and III?
TURNER D. MADDEN: Well, actually, one example .. one example might be Segways.
If you take public assembly facilities and if everyone's allowed to just claim that they can't walk long distances, I mean, you can't ask for proof of a disability.
So that would just open the flood gates for thousands of attendees to use a Segways in a stadium.
MR. ISHIMARU: You're talking about the device. Not a segue from one way ..
TURNER D. MADDEN: Yes, the device. And that's just one example.
And if you look at the language in your proposed regulations, that kind of allows, I mean, if you look at those and not look at the Titles II and III, you know, you say, well, wait a minute. That's kind of opening the door here a little bit.
I mean that's just one consideration, but that's an example that would have a major impact on what we call .. what Homeland Security calls commercial sector.
MR. BASRAWI: Okay, thank you.
MR. ISHIMARU: Thank you very much, Mr. Madden. Very helpful.
MR. ISHIMARU: So we will wait for Mr. Margulies.
If there's anyone else, we would welcome you.
If not, why don't we take a break until eleven o'clock.
And we will proceed then with Mr. Margulies
MR. ISHIMARU: If we can get restarted and reconvene.
Let me go over the schedule with everyone so they know where we're going with all of this.
Mr. Margulies is here. We welcome him. Look forward to his testimony.
And our next person after Mr. Margulies is at 12:05.
So what I think we'll do ..
MS. GRIFFIN: No, there's an addition. Ms. Henry will be right behind him, which is excellent.
MR. ISHIMARU: Why don't we do that and then we'll figure out where to go after that.
Roger Margulies is with the Mayor's Commission here in Philadelphia. We welcome you, Mr. Margulies. Delighted to have you.
ROGER MARGULIES: Thank you very much. Good morning. It's a pleasure to be here. My name is Roger Margulies. Assistant Deputy Mayor.
Many people with disabilities seek employment but are not hired due to prejudice and false assumptions. That is why there is a staggering unemployment rate in the disability community. Helping employers realize that people with disabilities can perform their jobs well if only they are given that initial opportunity, that's vital.
Frequently, people with disabilities become the most dependable and valued employees because they truly want to work, earn a living and pay taxes.
The Mayor's Commission on People with Disabilities has been working hard in this area for many years and utilizes the many vocational resources available that provide training and job coaching.
In fact, the Mayor's Commission on People with Disabilities has helped to increase the number of city employees with disabilities through the Departmental Aid Training Program.
This program allows for an extended probationary period and job coaching.
It gives people with disabilities an opportunity to obtain permanent career status without having to take a civil service exam and rank among the top three candidates to obtain employment.
The city of Philadelphia is an equal opportunity employer and has employees with disabilities in a wide spectrum of positions at all levels of government.
The city employs many individuals with disabilities who have entered city government in the traditional manner by taking the civil service exam and scoring among the top three candidates.
Accommodations are available in the civil service exam upon request.
The city of Philadelphia believes in providing employment to the best and brightest individuals with or without disabilities.
MR. ISHIMARU: Thank you very much. Any questions for Mr. Margulies.
So this is similar to schedule A in the federal government, no?
ROGER MARGULIES: It is similar to that, yes. Yes.
And the Departmental Aid Training Program specifically focuses primarily on, like, entry level jobs giving people their first chance.
MR. ISHIMARU: Um.hmm.
MS. BARKER: I had one question. I got confused because I thought what you were saying was that the program allowed people with disabilities to bypass the civil service exam. But then you said something about make sure that accommodations were provided in taking the exam. Were they different?
ROGER MARGULIES: Yeah, okay. The Departmental Aid Training Program primarily focuses on helping people who are entering city employment at entry level jobs. Professional people in other positions, where people happen to have disabilities, they take the civil service exam like everybody else.
MS. GRIFFIN: And they'll be accommodated.
MR. ISHIMARU: Do they have to? Or could the same authority for entry level jobs be used for other jobs?
ROGER MARGULIES: At this time, the Departmental Aid Training Program focuses primarily on entry level jobs.
MS. GRIFFIN: Is it for the professional folks? Is there any other .. I know they'll take the civil service exam and that they'll be accommodated in the exam if they need to be. But is there any other mechanism for them to get into employment? No?
ROGER MARGULIES: We're people with disabilities. We want to be treated like anybody else.
MS. GRIFFIN: Yeah, I know, but one of the things we look at in the federal government is how do we increase the employment opportunities for people with disabilities. And we have different hiring waivers, not that we're using them all that effectively, but, you know, how do we use them. And I know New York City has something similar.
ROGER MARGULIES: Right now, this Departmental Aid Training Program focuses on entry level jobs and people who apply for these jobs must be associated with some kind of vocational training program either through the state or through the city.
MS. GRIFFIN: That's how they get referred into that program, right?
ROGER MARGULIES: Right.
MS. GRIFFIN: Thank you.
MS. BARKER: Thank you.
MR. ISHIMARU: Thank you very much for your presentation. Very helpful and we appreciate you coming to join us.
Next we'll hear from Jennifer Henry. We welcome you.
JENNIFER HENRY: Thank you.
Thank you very much. I hope I don't scare the socks off of you, but I felt it was important for me to be here because of my particular situation. I came under ADA in a court case several years ago. And I was terminated from my job because I was .. well, for incompetency.
So I felt it was very important to be here. I feel that I am a beacon for the situation at hand. For the services and the agencies that are supposed to help people with disabilities. After filing several EEO complaints that fell through, the floodgates of harassment opened on my job. I was subject to disparate treatment for a number of years, from 1999 to the present. I was subject to prejudices and segregation by upper management. I was isolated, systematically ostracized. And what did do? I did nothing. I came to work for the federal government. I came with paid skills. Skills, typing skills, valuable skills in specializing in customer service.
I'm a human being. I'm a human being with a heart, with a mind to think. And, yet, I was treated as though I was insignificant. None of my experience and professionalism that I came there with mattered at all.
I am shunned by employees because of the feelings of upper management. And I have to appreciate the situation since it has gone on for so long that I feel that it resonates even outside my agency, like the office of personnel. My name must be there.
I have a mind, and I can think. And one of my specialties in customer service I've learned extensively is problem solving. The symptoms of injustices are neglect. I raised the issue of taking a training course with EEO called No Fear Act.
Now, you know, many of you have been in agencies like this, such as yourselves, you know people talk. Yes, there are people who know about my situation and knew about my situation for quite some time.
And sometimes new employees hear about it.
I've even had supervisors come up with other employees and point to me in the corner because they would put me in different corners and sometimes cover me up so no one would see me and point to me and say, look, you don't want to be that way. I mean, the audacity. But I said nothing. I just sat there because I knew it was happening. I knew what was happening.
I'm ridiculed by other employees who feel that they want to get close to management since they know, you know, what you see is how you react to people.
And I've been getting that for a long time.
So I raised this issue in a situation of the training we have of No Fear.
Now, if everyone knew about my situation, obviously there is fear. But I want to tell you now, I don't have any fear. I never did.
I just lost a career, that's all. But I don't. That's why I'm here.
Let me ask you this question. What are the chances, in my situation, people knowing about my situation, what are the chances if an employee or a new employee felt that he was being discriminated against because of his disability, what is the chance that is you think they would apply or file an EEO case? Better yet, what are the chances do you feel, do you believe that the discrimination be still going on in a situation like this in an environment like this.
Well, the chances are for the former, slim to none. And for the latter, perhaps 99% point nine, you know.
So I really appreciate you're listening to me. I felt I needed to tell you that. I think the documents in the fliers that come out and are pinned on the wall are EEO policies of no discrimination. They string them up on the wall like it was poetry.
It doesn't mean anything. They'll sign it. It doesn't mean anything.
It doesn't mean anything because the law is not enforced. But how could you enforce the law if no one will apply or file if they feel that they're discriminated in an environment such as mine? That's the question. Right there. And I really feel that I'm here because of that.
This is sort of me going to Washington. But if I can get this message out, I certainly will.
Once again, I have no fear. There's no reason for me to fear. That's why I'm here. Thank you.
MR. ISHIMARU: Ms. Henry, thank you very much.
Any questions for Ms. Henry?
MR. ISHIMARU: Next we have Ari Ne’eman. We look forward to your statement and welcome.
ARI NE’EMAN: Thank you very much and thank you for the chance.
I represent the autistic self advocacy network for autistic people speaking for ourselves.
For too long, prior to the passage of the ADA Amendments Act, the approach of addressing discrimination and of viewing the difficulties that those on the autism spectrum face through the context of discrimination rather than merely through the context of impairment or charity was one that was all too often not taken in the autism world.
With the passage of the ADA Amendments Act, and the promulgation of regulations implemented we feel a unique view to build a culture of civil rights that coincides with the growing rights on the autism spectrum, those who desire to speak for themselves and take an active role in how we are viewed in society and to try to address the ways in which the society still poses obstacles.
We're very pleased by the regulations proposed in order to implement the ADA Amendments Act. And we have three broad suggestions in terms of how to improve them for adults and youth on the autism spectrum seeking to find and maintain and avoid discrimination in the context of employment.
First, we note that autism was included amongst the list of examples of impairments that will consistently meet the definition of disabilities.
We would like to suggest that this be somewhat clarified to broaden the term to autism spectrum disability, rather than just simply autism, seeing as the term autism is commonly understood to refer to five diagnoses in the DSM-IV.
Autistic disorder, Asperger syndrome [and others on autism spectrum]. Now, these different diagnoses have somewhat different characteristics, but they all substantially limit communicating, interacting with others and learning.
As a matter of fact, in the DSM.IV, the next consideration, it has been proposed that these diagnoses be combined into a single autism spectrum disorder or autism spectrum disability diagnosis reflecting the fact that for more individuals, the particular autism spectrum and disability diagnosis they receive is largely dependent upon what position they visited or what region of the country they should happen to live in.
We believe that clarifying the language to reflect autism spectrum disability will ensure that all autism diagnoses are covered.
Second, we also believe that in respect to the regarded as from the symptoms of impairment leading to adverse actions by employers is brought up. That some consideration for the need of people with individual disabilities must be addressed in respect to the fact for people with invisible disabilities.
One of the greatest difficulties is that our symptoms of impairment are extent to a lesser in the general population.
We propose that a phrase be added in the section under actions taken based on symptoms of an impairment or based on use of mitigating measures, clarifying that an action taken on the basis of behavioral symptoms also present in the general population also constitutes an action covered under the regarded as prong.
For example, an individual who is dismissed from a data entry job because he or she does not make eye contact with their supervisor, even if the employer is unaware of the autism spectrum disorder or disability, should still be covered under the regarded as prong of this definition.
Third, we also encourage that in respect to section 1630.10, discussing qualification testing and qualification tests, that particular focus be given in the example of a specific example of the ways in which personality tests are administered by many employers. As a matter of fact, the 2003 survey found that 30% of American companies use personality tests often act to serve as an obstacle to the full access and the equal consideration in employment and hiring decisions for people with social communication and disabilities.
As such, we propose the inclusion of an example, to make this section more actionable for those of us with invisible disabilities and for those of us with communication disabilities and focusing whether or not employees are asked questions as a condition of hiring or relating to social relationships or anxiety in social or other contexts.
We feel that this will have an effect [??] of employment discrimination in hiring and promotion for people with invisible disabilities.
Overall, we were extremely pleased by the quality of these regulations. And our community is looking forward to working with the equal employment opportunity commission and working with the broader civil rights community to help build a culture of civil rights and a culture of ADA enforcement in the autism spectrum disability community and beyond.
Thank you very much for your time and I would be glad to answer any questions.
MR. ISHIMARU: Thank you very much. Very, very helpful. Are there any questions? No? I think you were pretty clear.
MR. ISHIMARU: I actually have one. On the personality tests, do you have a feel of how often they're used and for people with autism spectrum disability issues, are they .. will they always root out people who have the disability or does it happen more often than not?
ARI NE’EMAN: Well, this is something that's a growing concern in the human resources context. And one of the issues is that the use of personality testing is growing significantly.
There's a tremendous amount of diversity in terms of what personality tests are being utilized, the level of science that might back them and there's actually been in the disability context and we know in the context of social communications, disables, in large part, because of the very issues that led to the passage of the ADA. Very little consideration as to the extent to which these personality tests are focusing on job.related tasks that would be covered by a matter of business necessity. We believe the anecdotal experience of many of our members and those of us on the autism spectrum show that these tests do tend to screen out adults on the autism spectrum.
Particularly, because they're being applied in contexts that do not necessarily have those particular skill sets within the essential functions of that job.
It's one thing if these tests are being applied and in the context of sales force determination.
It's another thing to be applied in an engineering context or in a data entry job or in another type of job.
So we know that these are relatively widespread and we do know that they tend to, because they are generally focused on the nature of the employee's social interaction, the nature of the employee's private life, the nature of the prospective employee or to screen out many individuals on the autism spectrum and with other social communication disabilities or with other invisible disabilities.
MR. ISHIMARU: Very good. Thank you very much. Very helpful.
MS. BARKER: Thank you, sir.
MR. ISHIMARU: Our next scheduled speaker is at 12:05. And I would ask if anyone else, at this time, would like to make a presentation? If not, we will recess until our next speaker gets here.
Oh, please? I think somebody is here. Okay. We would welcome the speaker to come forward, please. MR. ISHIMARU: Next we'll hear from William Chrisner, 3d, the Executive Director of Disabled in Action.
Sir, we welcome you. Please, proceed.
WILLIAM CHRISNER 3d: Thank you very much. I apologize for not having any prepared testimony. I came to listen but I feel compelled to say a few words.
WILLIAM CHRISNER 3d: And I really appreciate this opportunity.
As a person with a disability, I would like to say that in follow up with things that were said earlier by Roger Margulies and Jennifer Henry, prejudice and discrimination is alive and well and does happen often for people with disabilities.
Disabled in Action in Pennsylvania is a membership organization of and for people with disabilities in the equal rights and equal opportunities allow people with disabilities.
MR. ISHIMARU: Is it part of a larger, national organization?
WILLIAM CHRISNER 3d: There are other chapters of Disabled in Action around the country, although they're not connected.
So there isn't, like, a Disabled in Action in New York.
But I think it was a much bigger organization than it is today.
And I've been with the organization since January of this year.
I was formally the Executive Director of the Macintosh Center in Orange County, California and the sister organization of Liberty Resources.
As I said, prejudice and discrimination is alive and well.
Disability is an equal opportunity minority experience, meaning that anybody can acquire a disability at any time.
One of the things that I have come to be aware of is what I call reverse prognosis.
Reverse prognosis is that could happen to me. The presence of people with disabilities for someone who doesn't have a disability, whether they recognize it or not, and most of the time they don't, is a fear of being in that situation.
The more similar the demographics of the two people are, the more the fear becomes conscious to the non-disabled person.
In other words, an example I can give you is my ex.wife was a neuro-oncology nurse, which means she works on the unit at the hospital with people who have malignant brain tumors.
She could work pretty comfortably with most of her patients. But when .. because she didn't feel the reverse prognosis even though it was there, she didn't feel it. She didn't .. it didn't come into her consciousness.
But as the demographics of the patient matched her own, she could become an emotional basket case.
In other words, if the patient she was working with was an older gentleman, different race, it didn't seem to bother her.
But if the patient was a woman, Catholic, professional woman in her late 30s with kids in school, she would come home that night and be an emotional basket case because she was putting herself .. she could see herself in that position. And it was very distressing.
So what I'm saying is that employers are human beings, as well. And when they are considering hiring people, I believe that even though they may think they're being fair, and, um, not discriminating, underneath, maybe not even consciously, they don't want to be associated, they don't want to be in the presence of somebody with a disability because of the impact that's having on them emotionally, their perceived impact it will have on their other employees and the perceived impact that would result with customers.
So prejudice is alive and well, and aggressive, timely enforcement of the ADA and the ADA Amendments Act is imperative.
The other thing that I wanted to bring up was we all know that the unemployment rate among people with disabilities is significantly higher than it is with their non-disabled peers.
In addition, I believe that a lot of people with a disability, as you heard from Jennifer with the atmosphere in an organization where it's a hostile work environment and employees see one person being treated differently. They're stuck. They don't want to come forward because they don't want to be treated that way. They don't want to risk losing their job.
I'm concerned about when people with disabilities do in fact get a job, that they get pigeon-holed in that position and that they have very little opportunity for advancement.
And I will give you a personal situation. I have a master's degree in rehabilitation counseling. And I got a job as a rehabilitation counselor, which, at the time, my employer was very comfortable with that.
As I grew in that position and as I developed in my career, I wanted to move more into a management position, or into a supervisory position.
Most individuals, most non-disabled individuals who have training in a particular .. like physical therapy or occupational therapy, something like that, they get a master's degree and get training and particular position, will very often, over time, become .. get promoted to supervisor or management level because they've been around. They have experience.
In my case, as I grew and developed and I experienced becoming a supervisor or a manager, I ran into things like well, you don't have any management training. And I believed the employer felt comfortable having me in something .. in a new .. I was qualified to do.
But didn't think I could do the other thing because I hadn't gotten the credentials.
So I did. I went and got another master's degree in Public Administration. And I did end up getting promoted. But I had to go through the extra effort and extra credentialing that probably a non-disabled peer would not have had to do.
So I .. I'm very concerned about the ability for people with disabilities to advance once they are, in fact, in a position.
And I think I've said enough.
And I apologize, again, for not having this all in advance and I really appreciate the opportunity to present that to you. I do want to encourage the EEOC not to weaken any provisions or any of the proposed regs.
If anything, they need to be strengthened, which was mentioned by Jamie.Ray and others.
The more specific we can do this, the better we can be able to bring about swift enforcement of the Acts.
Oh, I have one other quick comment.
When the ADA was first promulgated and went into effect, I know there were a lot of employer trainings where attorneys would come in and talk to employers and human resource people about how to get around the Act, how to use the loopholes and things so that they didn't have to really comply with the nondiscrimination provisions.
And, as we passed legislation like this, civil rights legislation like this, and employers do have those fears of people with disabilities. And what they do to make people psychologically uncomfortable. They get very sophisticated about finding ways around things.
One of the things that I encountered, and this goes with the personality test that was mentioned previously. I applied for a job with a nationally known charitable organization. When they got my resume, I immediately got a call to, you know, let me know that I was in the running and they had what they called a management.style test they wanted today administer.
And I made a reasonable accommodation request. I needed to take it orally. And I can't prove this, but, you know, I took the test, they gave me the accommodation. And maybe my answers weren't in considered with what they were looking for.
But I truly believe that when I made that reasonable accommodation request, I was eliminated from consideration.
So, anyway, I don't know how we bring complaints for things we can't prove. But those are the kinds of very sophisticated ways employers have of screening out people with disabilities, and looking pretty clean in the process.
So, as I said, prejudice and discrimination is alive and well and does exist and we know that because, you know, the rate of unemployment compared to the non-disability fears.
I wish you all the best and all the luck in getting these regulations in place and getting them in force.
As I said before, timely and effective enforcement will go a long way to help employers know that discrimination cannot continue. As someone said, and I think it was Martin Luther King said justice denied is justice delayed.
MR. ISHIMARU: Thank you very much. Any questions? If not, thank you very much. Very, very helpful.
MS. GRIFFIN: The only thing, actually, Disabled in Action, will they be submitting written comments on the regs? Is that something you plan to do?
PUBLIC: As I said, I hadn't planned to talk or make comments. But I will try to get something in.
MS. GRIFFIN: Okay. Great, thank you.
WILLIAM CHRISNER 3d: Go Steelers.
MR. ISHIMARU: Is Natalie Knochenhauer here? Not yet. She's scheduled to come in at 12:05. Is there's anyone who wants to speak? If not, we'll stand in recess until Natalie gets here to present her presentation.
MR. ISHIMARU: Why don't we reconvene?
Natalie Knochenhauer is here from the ADHD group. We welcome you.
NATALIE KNOCHENHAUER: Thank you. Thank you so much.
Good morning. Well, actually, I should say good afternoon. Thank you for the opportunity to speak at the public meeting seeking reaction to the EEOC's proposed regulations under the ADA Amendments Act of 2008. I appreciate the opportunity to provide comments on these important regulatory changes. My name is Natalie. I am an attorney and the founder and executive director of ADHD Aware. We are a 501C3 nonprofit that provides advocacy support and direct services to children, adults and families affected by ADHD.
In addition to offering social cause for children with ADHD and retreats and workshops for families raising these children, we provide them with strategies and coping skills.
I understand, therefore, the challenges for working adults with ADHD and because I am an employer, the unique skill sets these individuals bring with them.
Finally, I'm also most importantly an adult with ADHD and the mother of four children with ADHD.
So in addition to my professional knowledge, I bring a wealth of personal experiences to the table.
NATALIE KNOCHENHAUER: Wherever I'm asked to provide advice on behalf of individuals with ADHD.
ADHD refers to a chronic neurobiological disorder characterized by symptoms of hyperactivity and inattention.
While ADHD had been traditionally thought of as a childhood disorder, we now know that 60% carry on into adulthood.
Difficulties with time management, disorganization, physical restlessness and inefficient memory. A recent national survey estimated that 4.4% of adults in the United States between the ages of 18 and 44 years old fulfill the diagnostic criteria representing about 8 million American adults.
With special thanks to Dr. Russell Ramsey, one of the best institutions in the country and we're very lucky to have them here in Philadelphia, I'd like to share with you a bit of what the research tells us about the effects of ADHD on the adult workers.
We know that adults demonstrate poor follow-through on tasks and expectations associated with their jobs.
For example, in projects, punctuality and time management. We know that workers with ADHD currently earn lower salaries, have greater conflicts with supervisors, are less punctual, produce lower quality work and are more likely to be disciplined by superiors than both clinical and community samples.
Adults with ADHD report greater rates of underemployment and being in the position of currently seeking work, lower rates of full time employment. I think that's the important thing to think about in all of these statistics, that we're talking about employees across the board, regardless of whether it's a high school graduate or someone who has a JD or a Ph.D., they experience these lesser outcomes.
Clearly, adults with ADHD are often substantially impaired at work. Yet, historically, courts have not been sympathetic to ADHD claims. In fact, most, if not all cases, have been dismissed because the plaintiff was not able to show that he or she was substantially limited compared to others in the general population.
In order to restore the ADA to the broad and strong civil rights statute that the Congress originally intended it to be, the proposed changes should be adopted to be flexible enough to encompass a neurobiological disorder like ADHD, you will include people whose disorder is considered to be one of the more impairing psychiatric conditions in terms of its effects on all important life activities and reach the goal of protecting individuals in the workplace. By including major life activities, these proposed regulations will provide opportunities for individuals to better demonstrate that they are impaired under the statute.
For while it is self-evident that they pertain to concentrating and learning, some court's narrow construction of the ADA has resulted in claims by individuals with ADHD simply being dismissed.
Now, I did not come before you today to provide an excuse. I came, instead, to offer an explanation of the disability and to support the proposed regulations that may allow individuals with ADHD access to the reasonable accommodation process.
Fortunately, ADHD can be effectively accommodated. A worker with ADHD might be given a quieter area or an area with fewer distractions.
Because some adults have a hard time synthesizing and organizing information, accommodations could easily be provided with instructions both orally and written, providing assistive technology to aid in organization, breaking larger projects into smaller tasks, chunking, providing a tape recorder, providing visual aids or cue cards for activities or even providing a contact-person with whom the individual could conference periodically as a large project unfolds.
All of these could be done without extra expense to the employer and would ensure the success of persons in the workplace.
In conclusion, despite the significant challenges adults with ADHD often confront, they just as often bring with them to the workplace an ability to think outside the box, borne out of a lifetime of learning to adapt to their own disability.
And disability is highly valued in today's competitive marketplace. For many individuals with ADHD, the curse can be paired with a unique ability to hyper-focus. And when these symptoms align with our work product, we bring a rare gift to any employer.
In short, the proposed regulations offer the hope that individuals with ADHD may find a greater success enriching us all with their courage and competence.
I thank you for the opportunity to testify today and would be happy to answer any question that you might have.
MS. BARKER: Hi, thank you so much for coming forward.
You focus on adults with ADHD.
NATALIE KNOCHENHAUER: Correct.
MS. BARKER: Purely medical question, do .. does this .. does it ever occur that adults as ..
NATALIE KNOCHENHAUER: We identified it first in children. And, as it happened, children would come into the doctor's offices and parents would say hmm, sounds like me when I was in school. So at this point, the majority of adults are diagnosed as adults.
What we know is they had ADHD and weren't diagnosed. I was not diagnosed. I went through law school .. it was only when I had my children and I was called upon to balance my career, my family, my husband and then my children. You know, that I noticed, you know, I seem not to be as efficient as I could be.
But it's actually most commonly diagnosed in children. And most adults actually don't know. So part of the reason that I wanted to come today and speak is still, you know, adults with children who are diagnosed don't know enough. Pediatricians don't have time to pursue a diagnosis. With effective accommodations and strategies, you know it's manageable.
But without it, as we're all called upon to balance more and more skills and tasks .. it's also frequently diagnosed in college students. The family structure and support that they have is not there anymore. Suddenly, you'll see very bright kids look like they're falling apart. What you find is they've been supported all along by their family.
They're in the house, the lights go off, everybody goes to sleep, you go to sleep. That structure was not knowingly supporting them.
MS. BARKER: Thank you.
MR. ISHIMARU: Thank you so much. Very helpful to us. And we appreciate your coming.
NATALIE KNOCHENHAUER: Thank you.
MR. ISHIMARU: Is there anyone else here who wishes to make a statement? If not, we will stand in recess until one o'clock when Cheryl Baits.Harris is our next speaker. So with that, we'll see you at one o'clock.
MR. ISHIMARU: All right. We will reconvene. We welcome Cheryl Bates.Harris with the National Disability Rights Network. We welcome your testimony and look forward to it.
CHERYL BATES-HARRIS: Thank you. I want to start off by sort of apologizing. I misread the original notice and assumed you were talking about the ADA regs in addition to Schedule A hiring authority because you had regs and hiring in the same sentence. And this just happens to be a little pet peeve of mine. So although I was willing to back out, I decided that I was going to come anyway because it's just a pet peeve of mine.
So I wanted to, first of all, thank you for this opportunity to be here, and I apologize if I am nervous. I speak in front of a lot of people, but they're not important people.
CHERYL BATES-HARRIS: So, anyway, we really do, as an organization at the National Disability Rights Network look forward to the new regulations and appreciate the new passage of the ADA because hopefully, it will restore the intent Congress intended which is nondiscrimination in employment. Employment is my forte. That's what I eat, sleep and breathe.
But in the context of schedule A hiring, I would encourage the EEOC or whoever has to .. is responsible for that, to take a look at your existing categories of targeted ..
MS. GRIFFIN: You don't like that antiquated language?
CHERYL BATES-HARRIS: I don't like that antiquated language at all.
In the research that I've done, it seems that a lot of that was developed around the 1973 Rehabilitation Act, which certainly changed the way we looked at people with disabilities and certainly kind of laid the foundation for nondiscrimination in federal employment. But I think since 1973, disabilities have changed a lot from types of disabilities that we have seen change a lot. And, frankly, I love the intent of the Schedule A hiring authority. I don't know that it's necessarily working for a number of reasons, which I probably won't go into here.
But if anybody wants to talk to me about it, I will. I'm very concerned about the fact that the targeted disabilities aren't consistent.
If we want to increase people with disabilities in the federal sector, then we can't just use the same range of out-dated descriptors. So I think it's really nice to get people in the door. Let me stop there for a minute.
Certainly, having the disability should get people in the door, provided that hiring managers know how to use it, know how to recruit, know how to do those things.
But I think the other part that concerns me is that once people get into the door in federal employment, I'm not sure that they're given the proper attention or support that they need to maintain that employment or advance in employment.
I had a meeting with some officials at the Office of Personnel Management; it's been about two years ago now. It took us almost a year to get the meeting with them.
When they finally sit down and agreed to talk with me, I was very concerned that there was no data and no evidence of why people with disabilities leave federal employment. There was no exit interview that was done, so we don't know if people left out of frustration because they couldn't do their jobs or couldn't get promoted or what the situation was.
So I think the ADA is great and wonderful and will eliminate the nondiscrimination in the private sector.
MR. ISHIMARU: Well, thank you very much. I am hopeful, too, that the EEOC will have a fruitful relationship with the Office of Personnel Management.
CHERYL BATES-HARRIS: Might have an impact.
MR. ISHIMARU: I know the new director is very talented person and I believe his Deputy is, as well.
MR. ISHIMARU: Or soon.to.be Deputy. For the record, Christine Griffin has been confirmed to be the Deputy Director. And we look forward to working with her when she goes over to OPM on these very issues. As you likely know, Vice Chair Griffin has been one of the leaders in trying to make Schedule A work in the federal government. We've taken that to heart at the EEOC as well.
Will the National Disability Rights Network be submitting written comments.
CHERYL BATES-HARRIS: Absolutely.
MS. GRIFFIN: Explain your role at the coalition.
MS. GRIFFIN: They will be submitting comments, as well?
MR. ISHIMARU: Both of the organizations are based in Washington?
CHERYL BATES-HARRIS: Yes.
MS. GRIFFIN: Well, Cheryl, let me assure you, it won't take you two years to get another meeting or a year to get another meeting. And that is definitely changing, the self-disclosure form is on the top of my to-do list when I get there.
And there are lots of people that agree that it needs to be changed.
So that's definitely going to happen. The language is very antiquated. My favorite, I was actually in Baltimore yesterday and we all agreed our favorite is the distorted limb and spine. That's actually a disability category on the targeted disabilities list. What does that mean? It meant something to somebody in the early 1970s. I don't know that many people are checking that box off, because what does it even mean? So, yeah, we'll definitely be changing that.
And I really look forward to working with CCD and other people around the whole Schedule A, enhancing that. There's a real commitment over at OPM from John Berry, the Director, to make this work.
We're looking forward to that.
Well, thank you.
CHERYL BATES-HARRIS: Appreciate your time.
MR. ISHIMARU: And with that, we will stand adjourned until two o'clock to hear from William Ewing who is scheduled to come at that time. So until two o'clock.
MR. ISHIMARU: Welcome back. We'll reconvene.
We are next scheduled to hear from William H. Ewing.
WILLIAM H. EWING: Thank you, Mr. Chairman, Commissioners and representatives of the Department of Justice. My name is William Ewing. I'm a practicing attorney, I'm mostly retired now, but I spent about 35 years practicing employment law on both sides, but primarily for plaintiffs who were victims of discrimination.
I approach this as a sort of .. from a practical point of view, you know, what is going to be .. how are we going to be able to deal with these regulations in court and, particularly, I tend to be concerned about whether a judge will find some hook in the regulations to take a case away from a jury because there's some ambiguity that a judge can say I can grab onto this and find as a matter of law that you haven't satisfied it.
All too many employment cases, if you've read the literature, all too many employment cases are decided by summary judgment, and more by appellate courts overruling verdicts. And whereas we tend to believe in the jury system.
These proposed regulations are just such a breath of fresh air in that context. They're a breath of fresh air brought about by the legislation and as well as the drafters of the regulations.
And legislation, the ADA Amendments Act of 2008 overruled three Supreme Court decisions and it was only the latest in the whole history of actions by Congress to overrule interpretations of the civil rights laws by the Supreme Court, going back to the civil rights attorney's fees act in about 1975 or '76.
A case that held that pregnancy discrimination wasn't sex discrimination. The case had held mandatory retirement age didn't violate the Age Discrimination in Employment Act and Congress has systematically come back and overruled those decisions.
And, therefore, I think it's important as, basically, you noted in the preamble to the regulations to recognize that the legislation is meant to be remedial and to be construed broadly to protect people in their civil rights.
And I would like to, you know, start off by endorsing the statement of the Center for Disability Law and Policy that you have heard this morning, including the proposal to include an introductory statement that recognizes that the ADA is intended to afford protections not only to individuals who face discrimination based on real or perceived functional limitation, but also individuals who face discrimination on the basis of stereotype.
In the definition of major life activity, to get into the heart of it, I was very much impressed by the improvement in that definition. And, particularly, inclusion of communicating, learning, and interacting with others.
I would suggest, as I think others may have, that other examples that might be added are driving and something like keyboarding.
Somebody suggested typing, but typing seems sort of out dated and watching people with their blackberries...
WILLIAM H. EWING: I think that the ability to record things with your fingers and communicate that way, although you have communicating and, hopefully, a court would interpret that to include communicating with your fingers as well as orally.
It might be useful to add that specifically.
I also like the fact that the proposed regulations note that most often will not be necessary to have scientific or medical evidence to prove that an impairment substantially limits a major life activity.
I think that's very important because a lot of these cases end up with expensive expert witnesses who really don't say anything more than our common sense tells us if people would just have some common sense.
The Center for Disability Law and Policy also noted that the .. the low .. it's important to make clear the low threshold the list of impairments that consistently meet the definition of disability to establish that they are, in fact, disabilities. And they proposed adding a sentence that an individualized assessment of those impairments is only necessary with those who request a reasonable accommodation be made.
And that seems to me, based on my practice, very desirable.
And similarly, I think that their proposal, the section 1630.2J5 had the phrase where it says, "Which substantially limits" substitute the phrase "because it substantially limits" or else we might find courts coming in and saying it doesn't in this case substantially limit. I think what was intended is that those kinds of disabilities, in fact, do substantially limit.
Autism, for instance, substantially limits major life activities. It shouldn't be necessary to prove that in the particular case it does. Unless, again, it's a question of accommodation.
Finally, I just wanted to say a little bit about the new term which comes into the definition of substantially limits working as a major life activity. The term type of work at issue. I think any time you get into a new term, it offers all sorts of issues. And I think that maybe where you define it, um, as the job at issue and jobs with similar qualifications or job.related requirements, it would be better to say jobs with similar essential functions. Because essential functions are something we already deal with under the ADA.
And if we said that as opposed to qualification to where the employers have a tendency to create qualifications that aren't really required, but are just a way of screening out people.
So I would propose that it might help in defining type of work at issue to talk of it in terms of essential functions rather than job qualifications or job.related requirements. Just because this new term is going to cause a lot of confusion to start off with.
That's about all I have to say at this point. I'd be happy to try to answer questions?
MR. ISHIMARU: Mr. Ewing, very helpful. Thank you very much.
Very helpful. Thank you very much.
Is Carol Pawlowski here? Thank you for coming. We welcome you and you may proceed.
CAROL PAWLOWSKI: Yes, my name is Carol Pawlowski. And I have a nonverbal learning disability. For those of you who are not familiar with nonverbal learning disability, it is on the autistic spectrum. It is set to be a formal diagnosis under DSM.V.
There is a forecast of explosion of adult autistic disorders since the screening is happening more often with children and now the children are growing up, they are transitioning from the education into the work force.
Also, adults are starting to recognize later on in life, either they’re looking at their children or through life experience, that they, too, suffer this spectrum disorder. What brings me here today is the topic of reasonable accommodations and how they impact what is known as the social learning disorders component. This is a very new part of the research and it is a part that distinctly bears on an autistic person's ability to hold a job because very often it is not so much the other disabilities, but how it impacts the social interactions in the workplace.
This is being studied at the University of Pennsylvania and also at Columbia Presbyterian Hospital.
You may be coupled with neurological problems that you're not able to accept input.
There is often hostility to a concept within the HR world of accommodating social .. well, actually, sociability.
I had talked to a large financial service HR manager.
Just in general about how you handle outliers. She used a lot of words to describe them.
And, basically, said, look, if you don't fit in, you know, that's grounds for dismissal.
I had also talked to a Dean of one of the major top ten medical schools. And she was saying that, you know, in the future of medicine, we're going to be training our medical staff to be working more in teams. And that the concept of team is very, very .. is the future in that that we’re all to start learning to work together.
So I asked her, again, what happens with people who just don't meld into the team properly? How are these situations handled? And, again, there's a lot of hostility to this concept. And this Dean, ironically, does have a Department in Psychiatry, which it does study autism.
And actually even does study the social learning disorder. So I thought hmm...
CAROL PAWLOWSKI: But that's kind of interesting.
Another problem is that it is known in the literature by one of the leading professors in the subject to have problems in terms of people asking for help or being exactly aware of their shortcomings.
So this brings us to, okay, you are to ask for a reasonable accommodation.
So how does that happen when a person doesn't know the extent? About they don't .. they don't even have, necessarily, the ability to ask for help and that there is a psychological condition which means you stick in the same rut over and over and over and over again and you don't bump yourself out of that rut.
So I think these problems hit directly with somebody with this type of disorder being able to get the reasonable accommodations because, usually, they're by themselves in the workplace. You know, vis-à-vis their peers and their managers.
There are also many good things with social networking. It is very good for the disabled to be able to mobilize themselves, but it is very bad for people who don't have social skills.
Remember, 70% of your communication is nonverbal. And it is necessary, you know, it's increasingly necessary for work.
So that's another problem in terms of how you start to accommodate yourself.
Another note, um, is, um, you look at things globally and you see that people are working longer and harder.
And in today's situation, you're also noticing that managers are starting to .. younger managers are starting to move up through the ranks, and the younger managers do not have the life experience of an older man who has a heart attack and cannot function completely.
And the system incentivizes people who move up in the workplace to ignore their own needs and to also ignore the needs of their family.
I can't say that going through occupational therapy, you know, for weeks on end, that I've ever seen a high.flying manager show up with their kid day after day after day after day. It just don't happen.
And these are the people that the disabled are asking for a combination. I don't know whether this legislation is going to .. has a component to change the culture or whether this needs to be addressed separately.
But we have a situation where people are ignoring their own humanity.
And you have people who need to ask for some humanity. And I can't see how that's going to happen.
Thank you very much.
MR. ISHIMARU: Good. Thank you very much. Very helpful.
Any questions from the panel?
MS. GRIFFIN: Yes, I actually have one.
Where could anyone find examples of good resources for accommodations for people? So if this whole team concept and not fitting in .. I know that, you know, there are lots of things that can be accommodated. And I'm assuming that you have organizations that you're with, are there any good examples of ways that employers can accommodate some of the impact that this disability has in the workplace?
CAROL PAWLOWSKI: I'm not aware, but the person that is the leading expert from the medical side is Professor Rourke. And he's in Connecticut. I want to say Yale, but maybe it's the University of Connecticut.
And on his web site, he has .. he really discussed a lot about this disability.
And if you talk to the Columbia Center for Autism, they're also aware of it.
MS. GRIFFIN: Okay.C
AROL PAWLOWSKI: In terms of trying to make accommodations, I don't know. I mean, I've just started myself to look into organizational dynamics and, you know, that sort of literature.
But this whole field is so new medically that the HR side, I don't believe has fully caught up to this that there are this type of disability.
MS. GRIFFIN: If someone's incapable because of their disability of asking for the accommodation, it makes it even more difficult.
Thank you very much.
Next we'll hear from Mr. Marvin Elias who's with the Chestnut Place Clubhouse. Mr. Elias, welcome.
MARVIN ELIAS: Thank you very much.
I only learned of this hearing today, so I'm a little less prepared than I would prefer.
MR. ISHIMARU: Let me note before you go on that we're here talking about regulations that are in a process where people can file written comments. And the deadline for those are November 23rd. So there's still time to write something, if you want to add to what you're presenting today.
MARVIN ELIAS: Thank you very much.
My concerns have to do with the enormous variability among people who have been diagnosed with serious mental illness. That there are so many different kinds of differences among people that sometimes these, in themselves, make it greatly complicated for people to return to work, for people to access various kinds of facilities within the community.
The place I work with is a psychiatric rehabilitation center. And it's on the Fountain House model from Fountain House in New York City.
We have such an enormous variety of and difference among people, that even if we took just a single .. one single variable, which people always talk about, either intelligence or education, we would have just enormous differences. We have one person who has a Ph.D. in science. We have several people who have developmental disabilities.
And, yet, they work and live .. they don’t live, but they work in the community together to run the clubhouse with relative ease.
Also among the people we're working with are number of people who have both mental illness and who are deaf.
And my concern has been that over the years, and the last 17 years, we've worked with people who have .. who are both deaf and have mental illness, that the Americans with Disabilities Act, which calls very clearly for people who are both hearing and deaf to be there in the same locale in the same situation working and being, basically, together.
This hasn't happened. This is something we put a tremendous amount of effort into and believe it can be done and ought to be done.
We have presently about ten deaf members. Our average daily attendance is up about 40, 45.
Over the years, our deaf members have been able to access virtually every benefit, every social event, every economic opportunity that our hearing members have. This has been thanks to the initiative of a number of people, including our present coordinator of deaf services, Ms. Pat Hiser. And the consequences are that we've been able to hire additional interpreters to work with deaf members.
But they were together with hearing members in the work units in which they work, that might include cooking the food, it might include writing grants, and there's one person who in particular prides herself in entering all the weekly data for attendance and that goes over and that's part of the official documents that we produce.
And almost every other imaginable kind of work we do in the clubhouse. Members and staff do it together, including grant writing. We wrote a grant not too long ago for deaf services. But a deaf member was also very much involved in our technology grant writing, which was also successful and gave us some of our most important work.
Now in looking at this, the reason that I think this is important to look at is because it is often seen as prohibitively expensive to do this. We are not a particularly well-funded program. I'm not bragging about this, I'm just stating the fact.
The way in which it was gone about was to find qualified interpreters who are regular staff, and to place them strategically. At one point in 2002, we have an old brownstone, three story building. And we had interpreters on each floor.
This was a real accomplishment. We felt at that point, we had total access.
But it wasn't just that. Virtually every deaf .. almost all of our deaf members have gone on what's called transitional employment placements. And in these placements, they work in a regular job in the community. It included Rite Aid drugstores, the offices at the Consortium Incorporated and several other places.
Interestingly, most of those people have been able to successfully complete nine months of work, which is transitional employment.
Some of the people have gone onto permanent employment, in which they are now engaged.
It's also important to recognize, now, that because of the developments in current mental health, there are so many proponents who believe in a certain type of employment. And the way they define employment is that a person in recovery goes into a place of business unrecognized as a consumer of mental health services to get a job. It would create stigma, it's felt, if we didn't do that.
However, if we looked at this much more broadly, whether I, not just in terms of our deaf members where it is entirely obvious that they could not do this by themselves, that there are quite a number of people with other conditions, with other levels of disability, but, also, people who are hesitant to start off work on their own who may not have worked in a number of years.
Who would be very unlikely to take that initiative on their own, no matter how much preparation is done to step out on their own, and to have that kind of transition.
Some of the proponents say no and, in fact, have even testified at times that they should take funding away from having a job coach or transitional employment.type placement in mental health.
I'm deeply concerned about this. I studied the variability among people with mental illness. And it was first looked at about 1983, and expanded somewhat. One of the .. aside from the things that we could attribute to people and we could measure about people, there's also the differing perceptions, meetings and values. Also, expectations among people who have severe mental illnesses. And this is so important that if you recognize along with other physical disabilities that may be also attendant to an individual person. That I think it's very essential that we recognize that we not, at the same time as we're trying to expand the opportunities for people who have severe mental illness to return to work, that we also don’t end up inhibiting their ability to return to work because we have narrowed the purview.
The reason that that's largely been represented because there's been evidence for the effect of supported employment. I am among the people who certainly supports that and says yes. With some people, it is a wonderful way of returning to work.I wouldn't doubt that for a second. And I wouldn't dispute it.
However, the population is far, far broader -- far, far too many variables to just use one full.time of approach.
So that's it. It's a particularly odd kind of concern, but it also has to do with the access. I'm advocating for total access for deaf people in recovery to mental health programs.
As we have tried to provide.
I'm also saying that there are, because of the numerous needs, different kinds of needs of other people, we'd be able to provide support when people go to employment and then we look at not just one type of employment, but a number of types be recognized.
MR. ISHIMARU: Any questions? Great. No questions. Thanks very much.
Is there anyone else who wishes to make a presentation? This has been a very fruitful day to hear from so many. If anyone else has a presentation, we'd be happy to hear it. If not, we will close the session and reconvene in Chicago on the 17th of November.
So if there are no other presentations, we will close down and thank our hosts in Philadelphia, fabulous work for bringing us here and appreciate the hospitality and to all of those who have attended, I hope you've found it as useful as we have. With that, we stand adjourned.
Testimony of the Pennsylvania Human
Relations Commission Concerning EEOC’s Proposed Regulations
to Implement the Equal Employment Provisions of the Americans with Disabilities Act
My name is Stephen A. Glassman. I am the Chairperson of the Pennsylvania Human Relations Commission. Thank you for the opportunity to appear before you at today’s Town Hall Listening Session regarding the proposed regulations and accompanying interpretive guidance to implement the equal employment provisions of the the ADA Amendments Act of 2008 (ADAAA).
The Pennsylvania Human Relations Commission enforces the Pennsylvania Human Relations Act and the Pennsylvania Fair Educational Opportunities Act. The Pennsylvania Human Relations Act prohibits both governmental and private discrimination in the areas of employment, housing and commercial property, education and public accommodations. The public accommodations provisions include services provided by the Commonwealth and its political subdivisions, as well as by the private sector. The Pennsylvania Fair Educational Opportunities Act prohibits discrimination in post-secondary education.
The protected classes contained in our state’s anti-discrimination laws, in addition to protecting individuals against discrimination based on a disability and discrimination based on a known relationship or association with a person with a disability, and use of a guide or support animal, include race, color, religious creed, ancestry, age (40 and above)(not covered in public accommodations), sex, national origin, having a general educational development test diploma as compared to a high school diploma (employment only) and familial status (housing only).
Apart from PHRC’s enforcement responsibilities, the PHRC continues to engage in a variety of outreach efforts intended to educate the public regarding the nature and scope of our jurisdiction and to work to reducing the need for future compulsory enforcement action through efforts intended to insure voluntary compliance with the law. These outreach efforts also include efforts by the PHRC also to educate itself regarding the various issues and matters of concern from a variety of community and advocacy groups.
One of the critical areas of engagement for the PHRC is the ongoing work of our Disabilities Stakeholders’ Taskforce. This Taskforce, convened by the PHRC, includes a diverse group of individuals, advocacy groups and other entities, public and private, governmental and non-governmental, all with a common agenda – to explore, highlight, educate and advocate for strong enforcement of anti-discrimination laws that impact on the lives and wellbeing of people with disabilities.
As many of you know, The Pennsylvania General Assembly amended the PHRA to include the prohibition of discrimination because of handicap or disability by Act of December 19, 1974, P.L. 966. That act was consciously modeled on Sections 503-504 of the then recently enacted federal Rehabilitation Act of 1973. The PHRC made the interrelationship between the Rehabilitation Act and the PHRA absolutely clear in its comments to the regulations that it promulgated in 1978 at 16 Pa. Code Title 44, “DISCRIMINATION ON THE BASIS OF HANDICAP OR DISABILITY.” The PHRC expressly modeled its regulations on the original Rehabilitation Act regulations.
I have attached a timeline on disability discrimination issues involving the Commission and/or the PHRA to the written copy of my testimony.
With this background in place, let me state, and emphasize, that the PHRC is on record as having strongly supported the 2008 amendments to the Americans with Disabilities Act. Critical to that support, is the PHRC’s endorsement of the Congressional findings expressed in the amendments, including the Congrssional finding that:
while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973, that expectation has not been fulfilled;
and the Congressional finding that:
in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;
and, perhaps most importantly, the Congressional finding that:
to carry out the ADA's objectives of providing `a clear and comprehensive national mandate for the elimination of discrimination' and `clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA.
For the PHRC, it is our strong support for the Congressional principles outlined above that informs our review of the proposed regulations and interpretive guidance.
Our review of the proposed EEOC regulations and interpretive guidance indicates to us that the proposed regulations, as they currently exist, carry out the intent of Congress both when it first passed ADA and when it passed the 2008 amendments. This includes recognition that the ADA would be interpreted in a manner consistent with how federal courts had interpreted the definition of the term “disability” found in the Rehabilitation Act of 1973.
I should note in this regard, that the PHRC and the people of Pennsylvania are fortunate that the Pennsylvania courts did not engage in the more restrictive interpretation of that definition that federal courts did when subsequently interpreting the ADA definition of the term.
As I have indicated, the PHRC’s review of the proposed regulations and interpretive guidance demonstrates that they track the legislative changes found in the 2008 amendments. Having said the above, the PHRC urges the EEOC to listen carefully to the comments and suggestions that are offered by the members of the various disability communities during the course of these proceedings. In our experience, it is those most immediately impacted who frequently have the most immediate and effective recommendations to make regarding implementation of positive change.
The PHRC urges the EEOC to take all steps necessary to educate its staff and the public in order to insure effective and efficient enforcement of the amendments in a manner fully consistent with the expressed Congressional intent.
The PHRC, for itself, will continue to partner with the EEOC to fullfil our legislative mandates. Most immediately, we expect to closely follow these continuing proceedings, including reviewing the other comments and consulting with our Disability Stakeholders Task Force, and will comment further if we decide that it is appropriate to do so.
We must emphasize that, even with the correct legal standard for ADA back in place, disability discrimination cases are very fact specific under both federal and state law. No party can or should be guaranteed a result but all parties have the right to a fair standard, consistently applied. Much of the success regarding implementation of these proposed regulations and interpretive guidance will depend on the manner in which the judical branch of government interprets the changes.
The PHRC firmly believes that the intent of both Congress and the Pennsylvania General Assembly in passing anti-employment discrimination legislation to include people with disabilities, whether current, past, or only in an employer’s imagination, was to remove artificial barriers both physical and in attitudes, to the full participation of people with disabilities in the workforce on an equal basis with all other participants - no more but absolutely no less. Prior interpretations by federal courts restricted that intent as it applied to ADA to the point that those interpretations, in effect, added barriers – rather than removing them as Congress had intended.
Thank you for your consideration.