Written Testimony of Brian East, Consortium of Citizens with Disabilities

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Thank you to the Chair, Commissioners, and staff for the opportunity to comment on the EEOC's Strategic Enforcement Plan for Fiscal Years 2012–2016. I am speaking on behalf of the Consortium of Citizens with Disabilities and its Rights Task Force. The Consortium of Citizens with Disabilities (CCD) is a coalition of national disability-related organizations advocating for full equality, self-determination, independence, empowerment, integration, and inclusion of individuals with disabilities in all aspects of society.

We applaud Chair Berrien and the Commission for developing an updated Strategic Enforcement Plan, which we agree is a very important step.

I want to highlight a few points from our written comments:

Systemic Enforcement

• The Plan states that the Commission places a high priority on systemic enforcement activities, and we agree. To us, that means more class or pattern-and-practice cases. But it also means that those individual cases that the Commission pursues are selected because they help develop the law in areas identified as substantive priorities for enforcement.
• The Commission has increased its systemic enforcement efforts in recent years, but we believe it must focus a lot more on this systemic work if it is to help achieve a large-scale and visible impact.
• In our view the reason to take individual cases is not because there are not enough private lawyers available. Although it is true that there is a need for lawyers willing to take these cases, we believe that the Commission's resources are too limited to make meaningful progress unless a large majority of individual cases are selected because of the issues they present or the impact they may have.
• With regard to the lack of available private attorneys, the Commission should reach out to organizations that may be able to help charging parties find representation, such as the National Employment Lawyers Association or its state and local affiliates, the National Disability Rights Network or the individual P&As, the American Diabetes Association, the Epilepsy Foundation, the American Cancer Society, the Bazelon Center for Mental Health Law, etc.
• We commend the Commission's excellent amicus program, and hope it continues.
• We hope that the Commission will reach out to the Justice Department to urge them to have more amicus involvement in ADA employment discrimination matters involving public employers.

Remedies—We strongly support the Commission's performance measures for obtaining targeted equitable relief in addition to damage awards, and we encourage the Commission to seek creative remedies that go beyond the typical remedies of damages and training. Some examples from recent cases are exemplary. But we note that some of the Plan's examples of acceptable remedies do not appear specific enough.

Substantive Priorities—The Commission indicated its intent to have substantive enforcement priorities, and CCD suggests the following priority areas:

• Coverage under the ADA Amendments Act—This is critical because of the newness of this law, regulations and guidance, and because of the way disability was misinterpreted by courts for the last two decades. The Commission should look for charges that provide useful vehicles to ensure its proper interpretation.
• Reasonable accommodation and individualized assessments—As a result of the ADAAA, courts are reaching the merits of ADA cases, and we urge you to include as enforcement priorities: (a) blanket employer policies that fail to allow for reasonable accommodations (e.g., inflexible leave policies); and (b) exclusionary criteria or employer actions that fail to allow for an individualized assessments of abilities (e.g., policies barring individuals who use insulin from certain jobs, or practices that deny certain jobs to people based on a psychiatric diagnosis).
• ADA safety defenses—There is some confusion in the case law about when and how to use the ADA safety defenses of "direct threat" and "business necessity." Bringing cases focused on these issues, and publishing further written guidance (particularly on business necessity) would help.
• Segregated employment settings—The Commission's enforcement action against Henry's Turkey Service is extraordinarily important, and the Commission plays an important role in drawing attention to the harms that may be done to individuals with disabilities who work in these settings. We urge the Commission to explore remedies that would, among other things, assist individuals in such cases to competitive employment, with supports if necessary.

Investigations

• From the perspective of many of us who represent individuals in employment-discrimination cases against non-federal employers, the Commission's area of weakest performance has been, and continues to be, its charge processing and investigation.
• The types of problems are too numerous to mention here, but they include widely inconsistent policies and outcomes between offices; the fact that witness statements, interviews, or requests for specific documents from employers, appear to be relatively rare (even in cases selected for "full" investigation); misunderstanding by investigative staff of the law and Commission policies; etc.
• It appears that this system needs more meaningful training and supervision, more appropriate output measures, clear policies, etc. The Commission should likewise hold FEP agencies to such higher standards
• .
• We are also concerned that the Plan's blanket position against monitoring the percentage of "cause findings" may not be fully supported by available tools for statistical analysis, and may also lead the Commission away from other meaningful performance measures related to outcomes.

Thank you again for the opportunity to comment on the Strategic Enforcement Plan. We would be happy to assist the Commission in any way we can with the implementation of this Plan.