TRANSCRIPT

US Equal Employment Opportunity Commission and Department of
Justice Civil Rights Division Town Hall Listening Session on the ADAAA Proposed Regulations
Oakland, CA
10/26/09

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.

LINDA LI: Hello. I am doing a microphone check and allowing Christine to see if she can hear me. Christine, are you there?

CHRISTINE GRIFFIN: (on the phone) I am here.

LINDA LI: You won't be able to hear anyone unless they are speaking into the microphone, so let's get started.

CHRISTINE GRIFFIN: (on the phone) That is fine, all right. Thank you.

STUART ISHIMARU: Welcome.

I am Stuart Ishimaru. I am the Acting Chair of the EEOC. I want to welcome you to our first Town Hall on the ADA Amendments. We are doing this in conjunction with the Department of Justice and are looking forward to hearing from people during the course of the day.

Let me do that, let me introduce my colleagues up here.

First -- My colleague from the EEOC, Constance Barker, a colleague of mine, a valued member of the Commission, and she is joining us here today.

My colleagues from the Department of Justice, Sam Bagenstos , who is Deputy Assistant Attorney General in the Civil Rights Division.

Mazen Basrawri, who is Counsel to the Assistant Attorney General for Civil Rights -- a job I used to have at one point in my life. And John Wodatch, the Chief of the Disability Rights Section of the Civil Rights Division, who is a long- time civil rights lawyer. I remember working with him on the first ADA back in 1989.

It is lovely to have them here.

Given our time constraints, we were going to time people strictly. But given the number of people here, I think we will be more fluid. We want to hear from people and get their thoughts about the regulations that are posted for comment.

I will note for the record that both Commissioner Barker and I are constrained by the Sunshine Act of the government, where things need to be done in the sunshine, which we were doing, and both Commissioner Barker and I are unable to deliberate in public without proper notice. We are in "Listening Mode", so we will ask clarifying questions during the course of the presentations, but we are delighted that we are here.

So I will yield to my colleagues going down the line for any opening statements? We are all delighted to be here, we think this is a very important Act and regulations, which are needed to implement the intent of Congress, and we look forward to comments.

I will pass the microphone down.

SAMUEL BAGENSTOS: So we have been urged, told that we should feel free to grab the mike so callers can hear us, so I will lean in to the microphone and say I am happy to be here and excited to hear what people have to say, people's comments on the proposed regulations.

We are in listening mode as well, as we are all ears.

CONSTANCE BARKER: Constance Barker, with the EEOC, and I want to express my appreciation for taking time to get here this morning and share your thoughts with us. This is a really important responsibility for the EEOC Commissioners, to draft regulations that comport with Congress's intent.

And we think Congress made it clear that the courts have not gotten it right, through the years in some areas of the ADA, so we want very much to make sure that we do what Congress intends by the Amendments Act in the regulations and do exactly what it is they want us to do with the ADA. We appreciate your input and time to be here. Thank you.

JOHN WODATCH: Good morning from the Department of Justice. I would like to welcome you and let you know we are here to listen to your views, on the regulations that have been put forth by the EEOC. We have a double interest from the Department of Justice. We are in the process also of working on regulations that will implement the Americans with Disabilities Act Amendment Act. EEOC is out in front of us on this, as it should be since a large reason for the Act was to deal with employment litigation. We are anxious to hear comments.

I would also like to congratulate the EEOC for taking the lead in setting up this meeting and thank the San Francisco regional office and all the people here who worked on the many logistics to get this meeting together.

MAZEN BASRAWI: Good morning, I am also delighted to be here, to echo comments of my colleagues and I look forward to hearing what you have to say about this very important regulation implementing the ADA Amendment Act .

STUART ISHIMARU: And let me yield to my colleague Christine Griffin, the Acting Vice Chair of the EEOC. She was going to join us, was looking, forward to joining us here but has a touch of flu and instead of flying across country and spending the night in a hotel and then hopping back on the plane, she wisely decided to stay home, which is good, but Chris is on the line and we would yield to her any open statements she might have .

CHRISTINE GRIFFIN: (On the phone) Can you hear me? Great.

I just want to begin the sentiments of everyone that has already spoken. Sorry I can't be there, but I am happy that we have the opportunity to have these meetings across the country, and we are looking forward to hearing people's views on the regulations now that they have had a chance to see them, and we want to reflect, as Stuart said, Congressional intent in changing the ADA to get back to the place I think Congress originally thought we would be and hopefully the courts will be able to comply with that.

We look forward to your input, and I will be here listening from afar.

STUART ISHIMARU: Thanks Chris, let me note we have a captioner here and people who have other technologies if people need them, please let the folks at the front desk know because they will be able to help you. But also a fair warning to people making presentations that you need to speak in to the microphone so everyone can hear and technology can be utilized.

Let me call on Noah Lebowitz who is from the Multiple Sclerosis Society to make the first presentation. Is he here?

You are welcome to use any microphone or podium.

NOAH LEBOWITZ: Thank you. Good morning. Thank you very much. It is a fabulous opportunity and great idea for all of us to be able to have our voices heard in this process and we want to express our gratitude for that, right off the bat.

I am Noah Lebowitz. I represent employees in all sorts of workplace matters, primarily in disability discrimination and family medical leave.

I am here today as a member of the Governmental Relations Committee of the Northern California Chapter of the National Multiple Sclerosis Society and am speaking on behalf of all the California Chapters of that Society.

We want to initially express overall support for the tone, structure, and scope of these proposed regulations.

We have been looking at them and examining them for a couple weeks and are very pleased in general with how they have come out. We believe they definitely come within the scope and order from -- and authority granted the Commission from -- Congress, and we are pleased with the overall scope.

And particularly, we want to express how important it is that the Agency decided to include non-exclusive lists. We know this was a major debate going on in the initial regulation process and initial process of the ADA, and the position to now include these specific but illustrative [examples].

And we can speak from our own experience here in California, where since 2000 we included similar lists in our Fair Employment and Housing Act, to be included as our definition of disability. For purposes of disability anti-discrimination law, it has been successful and not limiting. It has met the goal of [being] construed properly, not limited the scope of the judicial review to the lists and not at all been interpreted in the… that would be the fear, that it would be limiting and exclusive.

We are also pleased on the part of the Multiple Sclerosis Society, that MS has been listed, of course, a number of times.

And following, of course, Congress's Amendments under the categories of episodic conditions, we are pleased to see that --that specificity and clarity by the regulations both to -- both sides of the bar and stakeholders.

Employees would now be able to understand who is covered and who is most likely to be covered. Employers don't have to worry so much and can move on to the real questions and making sure they are not making adverse employment conditions and providing the appropriate accommodations when necessary.

We are also -- to speak about beyond the narrow scope of what we -- in fact our constituents, the scrapping of the major life activity analysis under 'major life activity: working' is beneficial, the class of jobs and broad range of jobs into what is now termed "type of work." We like this framework and think it is more helpful to corporate and practitioners in understanding this major life activity and how to analyze it.

So, we want to express our support for that.

The one point where we ask for additional clarity -- and we will submit written comments to be more specific, but just to raise an issue… and it is perhaps -- most properly put in the Appendix along the lines of clarifying exactly how the "episodic" and "in remission" elements will play out.

And to make sure that again these things are not interpreted too strictly and according to Congressional mandate, that individuals who may be either in remission or have episodic conditions, where they are not currently having or experiencing significant impairment, are always entitled to the interactive process and potential accommodations, even when their conditions are not active.

For instance, the ability, flexibility to go to medical appointments, other prophylactic measures, that is, accommodations that may serve to keep the condition at bay, so to speak.

And also, other situations where the impact of medication and other mitigating measures may impact individuals, even when they are not "active" as far as what their condition is impairing them in the workplace.

We will submit more detailed written comments to provide input. But otherwise, thank you for this opportunity and for the regulations as they are now.

STUART ISHIMARU: Thank you. Any questions from anyone the panel? If not, we thank you very much for your contribution. Very, very helpful.

Let me note that all the comments made today will go into our record for the regulation. We also welcome written comment as well, and the comment period is open until the 20th of November. [correct date is until Nov. 23]

So people have time to submit written comments, as laid out in the Federal Register. We look forward to the presentations during the course of day.

Next, Susan Molloy, who will call in--

SUSAN MOLLOY: (on the phone) I have called in.

STUART ISHIMARU: Welcome, we look forward to your presentation. Thank you for joining us.

SUSAN MOLLOY: (on the phone) Thank you and thank you to all of you who have made the effort to come and listen to us, this is exciting.

I am very impressed with the work that you have been doing, this is… the Amendments are great.

Several comments that I have.

Oh, I live in Arizona in a community of people with chemical and electrical sensitivity, and the people with whom I work are typically people with those disabilities doing what rehab is possible and providing resources and so forth.

First thing I want to mention, that you say that the cost to the Commission for increased workload are estimated at being approximately the same per staff as what you are allocated now, based on the EEOC staffing levels necessary to handle the Agency's current caseload.

That looks to me like it is not getting us very far ahead, I think, you may have kept that estimate low in order to make a point, that there will [not] be extravagant spending.

But if you do have more applicants and the EEOC staff and ratio remains the same, I don't think we will get very far ahead. This is… your current finances are sorely inadequate for what we will be asking you to do. I hope that can be adjusted, but I understand if it is not adjusted for purposes of this paper.

Now when we -- with forgiveness, I had hoped that… I won't be giving you all the section numbers but I will strive to do my comments in sequence. I know sometimes the numbers change --

Another point I would like to make is that the proposed rule doesn't include reporting requirements, imposing no new record-keeping requirements.

It is possible that many of us would do better if there were record- keeping done, I would like to know for grant writing purposes and also [real] purposes, how do we know whether or not people with chemical and electrical sensitivity are being accommodated? Are these accommodations being accomplished unless there is record-keeping ?

Further, when the planned preparation of a small business handbook and revision of ADA publications, revision is under way, I suggest that we use -- include examples that are pertinent to chemically and electrically sensitive workers.

Have you considered integrating the discussion of us with other people? We seem to be difficult to explain, our accommodations have been difficult to explain to employers and potential employers. We can use back ups on that.

The more examples, the better.

A number of places in the document the expression is used or to paraphrase, that "substantially limits" include this and that -- and that the document -- that the Amendment shall be construed in the favor of broad coverage of individual to the maximum extent permitted, by the terms of the ADA and should not require extensive analysis.

I think that is a good inclination, I am not sure what it is going to mean to people with chemical or electrical sensitivity.

It is likely that we will have to demonstrate somehow that we have this kind -- this sort of accommodation need for chemical-free or -- to free ourselves of electrical exposure in workplaces.

And that expression comes up repeatedly in several places, I would like to have some assurance that it "should not demand extensive analysis" -- won't mean for us that we continue to have to undergo medical testing in order to get a diagnosis or assistance in any way.

Currently we have to undergo very expensive, traumatic, extremely dangerous, double-blind testing by doctors or clinics that are not covered by any medical benefits.

So to get a diagnosis of chemical or electrical sensitivity, which I guess we need to request appropriate accommodations, means that we would be in severe jeopardy.

Most of us who have chemical and electrical sensitivity…decades, and many who have had that illness for a long time, have also have been labeled with a psychiatric diagnosis. That label lends a stigma to what we claim we need, or do need for accommodations.

It is also -- it is cruel to people who have both a psychiatric or behavioral diagnosis and chemical and electrical sensitivity, for example, me. It blends all the accommodations we ask for into one very inaccurate set of requirements.

So, at any rate, we don't want to lend more credibility to incorrect snap judgment or general consensus for criteria for letting us in to the workplace or accommodating us.

The concept "should not demand extensive analysis" is not completely clear, I need that clarified some.

In the section about what kinds of job-related requirements, characteristic of types of work, include but not limited to -- one spot, we could include examples for chemical and electrical sensitivity. Ex: working under certain conditions such as high temperatures, high stress, working rotating shifts... I would appreciate it if you can include in that language chemical fumes, pesticides, cleaning solvents, or other insight to triggers, or causes of respiratory emergency and neurological emergencies that chemically- and electrically-sensitive people face, that would be a good place to tuck that in.

Also please bear in mind that a number of us have incorrectly been given psychiatric diagnosis for decades, and we need assistance to sort that out as a class, because a psychiatric diagnosis requires different accommodations than the sort we need.

Some of these points I will give you in written form.

I will give in written form.

I would like to see included in the list of triggers for asthma or neurological problems, pesticides and herbicides, those are important. And I think that we would get farther with figuring out accommodations like using integrated pest management in the workplace or landscaping around workplaces, if we begin to teach people that they can be a barrier.

Also we have a situation here in 1630.5 where we say, "Covered entities are prohibited from segregating qualified employees into separate work areas or lines of advancement on the basis of their disability."

I would like to point out an exception: If a person with chemical or electrical sensitivity is in a workplace, by definition we would probably have to consider some degree of segregation from other employees, who need to use practices or products that would make us sick and unable to work.

Or we might need to be in an older office building or older part of the workplace where we can be segregated from remodels or retrofits or cosmetic renovations of any kind.

So, let's look at the concept of segregation.

Also… how much time is left, I don't wanted to go over?

STUART ISHIMARU: Not an issue, we -- we have more flexibility on the time today than we had originally thought, so continue, and go through your list

SUSAN MOLLOY: Thank you very much.

In the sections that could protect people with chemical and electrical sensitivities in the workplace or during the application process, I think there is a lot of room to beef up the language in the explanation section or the regulations themselves.

As it stands, I think we are losing a lot to -- leaving a lot to the discretion of employers that is not warranted.

Possibly we are letting common misconceptions, it is possible that we are letting the employer's prejudice, without meaning to, influence what constitutes an accessible workplace.

And that is the part where I might have to object -- that disabilities don't have to be determined on accommodations, don't have to be made on very simple criteria.

I don't see who -- how they will protect us from snap judgments or wrong interpretations of what we live with.

And with that, I will stop for now, and if there are questions, I would be happy to answer them now or later.

STUART ISHIMARU: Ms. Molloy, thank you very much, let me yield to anyone on the panel for questions.

CONSTANCE BARKER: No, I don't have any questions.

STUART ISHIMARU: No questions from Commissioner Barker, anyone else?

JOHN WODATCH: This is not a question. Susan, I hope you plan to supplement your comments with written comments.

I think that would be helpful, to us, I know at Justice we don't get many comments on the issues of chemical and electrical sensitivity and I think all the information that you can provide us would be helpful

SUSAN MOLLOY: Thank you, sir. I will be glad to do that.

STUART ISHIMARU: I found helpful hearing specific examples of how we can be more helpful and how specificity helps various communities. That is helpful to us in laying out a more useful piece of regulatory information.

SUSAN MOLLOY: I'm glad that helped.

Some --just to provoke more thought-- some of the kinds of exposure that would be barrier to us in the workplace would include simple things -- like, turning off the fluorescent light and letting us use daylight in the workplace or possibly an incandescent light bulb – this can make a huge difference for us.

Also strobe lights: the times I have faced that is when we have a surprise emergency drill, and that causes extreme duress for me and quite a number of people with epilepsy or Tourette's or a number of different diagnoses. The strobing is dangerous and we should get a head's up in advance of that exposure.

And I would like to suggest that for pest control in the workplace, that we switch to integrated pest management with an emphasis on no chemical products. That will protect many people with immune and neurological problems, besides those of us that it is the source of our disability.

There are a number of other requests that thousands of us would make, including 'please don't put new carpet into a workplace, if it is not absolutely necessary.' In other words, don't remodel just for cosmetic reasons.

Include, cleaning products need to be chosen carefully and I appreciate that you put that in the paragraph about an individual with asthma --substantially limited -- and you listed cleaning products and cigarette smoke as triggers.

I found that helpful and could be expanded.

STUART ISHIMARU: Great, Ms. Molloy, thank you very much we look forward to receiving further written material from you but we appreciate you coming and helping us today.

SUSAN MOLLOY: Thank you, may I stay on the line and listen?

STUART ISHIMARU: Absolutely.

And right now, that is all I have scheduled, are there other people that wish to make presentation? We would be delighted to hear from you.

STUART ISHIMARU: If you can identify yourself for the record, that would be very helpful.

JOSEPH PARTANSKY: I am Joseph Partansky--I live in the Bay Area and have been in Washington to try to find out what was happening with the Department of Justice, to enforce and/or clarify the need for ADA coordinators, and I brought this up with a member of panel here.

As you may not be aware, Title I seems to be -- focusing -- Title I seems to be --Title I, Title II, Title III and from the standpoint of advocacy and in service training and development of sensitivity to issues that persons with disabilities might have, if there are no ADA coordinators or lead people in the public and private sectors, both at state and operational levels -- end up having a situation with that -- attempt at modification of the ADA, it is less apt to be implemented or efficient or noticed. As you may be aware, having something in the law is not necessarily having it implemented or substantiated or modifying and growing as this process goes on.

Of course we are appreciative that these Amendments are -- and regulations are considered more timely than the 504 regulation that has had a delayed impact as well as limitation.

But from the stand point of this particular panel, if you can see some way, shape, or form of either -- considering what up to this time has ADA coordinators do exist in private sector, how have they been helpful and how might they be more helpful.

Unfortunately, the requirement for ADA coordinators is such that here in the state of California, there is no state ADA coordinator.

Department of Rehab unit says we are responsible for state programs, not implementation of ADA.

In the stand point of federal agency, I had a conversation from the Department of Justice and his assistant several time and they said -- there is no practical, historical, or plan or no review of ADA requirement under Title II, let alone from the standpoint of Title I or Title III.

As a consequence we have a situation whereby we lack both the disabled and advocates of disabled and management to have a higher appreciation of issues that cross over.

For example, if you are involved with a building situation where you have a parking lot for retail establishments, you are involved with Title II, from the standpoint of city, county review of the parking lot.

But from the standpoint of Title III, and accessibility, you may have a disconnect, many times you do.

For example in California, the requirement that there be a parking lot sign regarding the parking situation, and that it be totally localized, so that for example if there is a place that provides tickets to enforce the parking situation, you have the phone number there.

If the car is towed, there is a phone number there. If you don't have that under California law, you can not give a ticket.

From the standpoint of someone violating the parking situation.

In the people in Title II government don't review that the sign is not penalized, no commercial signs that you see out there, you don't have the appropriate localization it can not be done.

I have a favorite restaurant in Concord, I went there yesterday, brand new signage from the standpoint -- and parking lot but, my God, I put the Department of Justice flyer, it is doesn't meet the standard for the van or signage. And yet it is a beautiful big nice place. Without the ability to have access on both sides of the parking situation.

So here's a violation that is done by the contractor, and by the person who hired them and by the city of Concord, from the standpoint of limitation. There are cross overs, and I think the ADA coordinator is an example of how without that, Title I programs, or from the standpoint of state of California, and federal government, making any good faith effort to review the status of ADA coordinator, from stand point of state contact, not only agency but the state and county.

I have been trying for 5 years to use my little influence to get the state of California's annual directory of local government to include requests: do you have an ADA coordinator? And who that person is?

They give you the 3 or 4 top executives but they will not or have not provided an ADA coordinator.

As a consequence, that is duplicated in that area from the standpoint of the law as well as implementation and standpoint of making further progress on an operational level, rather than --without going beyond that, I have a situation regarding -- I found something unusual here.

In the handout you all have gotten, there is a -- couple of situations whereby the whole area of the reasonable accommodation is not available to someone only covered under the "regarding as" definition of disability.

That is the very last page on the handout.

I find that a little vague, misunderstandable, as well to the extent that you are an advocate for someone who is a disabilities person under Title II anyway, if you are discriminated against because you wanted to assist someone else, there is no mention of that in any of the application.

So to the extent that you leave that out, advocates who are associated with the disabled end up being discriminated and punished along with the disabled person, that smells or feels or -- I would think would appreciate other than having more details, or illustrations of this, particularly from the standpoint if it has to do with your not mentioning that advocates of disabled can be as discriminated against as disabled, this has something to with that, that is not clear.

And then there was another phrase here -- that was -- I'm reading from the -- from the summary of key provisions of the Amendments -- I have put together for a hand out for California, that we have an SB 1608 and as you probably know, the UN Commission of Persons with Disability became implemented in 2008 as well as of this year, recently the United States has signed onto the signatore but not approved by Congress to the UN Convention of Persons with Disabilities.

When it came to this particular Amendment, there are some other points here that -- well I will submit that, -- I can't find it in writing.

I think from the standpoint that we do need to have an advocate for the person with disabilities, not only by the disabled community or their friend but implementation of ADA coordinators as much as possible, encourage a voluntary sector, it is in Title I encourage some way, shape, or form, there might be a mention in the description or guidelines that may be developed that had one way of being assured that these are implemented, is to have informal, formal ADA coordinators in business sector as well as government sectors.

The government sector in the Department of Justice needs to review the lack of "Enforcement" from the standpoint of my discussions with the office, they have tried at one time but didn't have a director of ADA coordinators, it was premature, unless you have a structure for identifying the process of people, start making the master list and they get lost in the numbers rather than the policy and implementation, that needs to be done, as a whole, it would be helpful to have the ADA coordinators talk to each other.

Here in California we have a National Association of ADA Coordinators that tends to be private folks.

We are starting one for the public sector, and we have over 400 cities, 4000 special districts, 1000 educational district and 58 counties.

Some of them are way behind the ball. We are aware that we need ADA coordinators, thank you very much for your time.

Any questions?

STUART ISHIMARU: Thank you, any questions from the panel?

I have one. I want to be clear, are you suggesting that we require or encourage -- what should be the level of specificity here as we think about what to do as regulatory matter?

JOSEPH PARTANSKY: Since Congress has not given you mandate to "require" but guidelines and good process and common sense would probably be something that could be used as an expansive broadly interpreted, I would think that in some way, shape, or form, to the extent that you have best practices, that maybe -- besides illustration of category, if you have best practices in the guidelines, I would hope you would decide there are possible ADA coordinators and what role they play in the setting that you deal with.

So that besides -- whatever my intent of this, Congress is one thing, but from the standpoint of your discretion and best practices, I would think that some way, shape or form that, for example -- you have technical assistance centers, we have one here in the city, that could be -- more extensive they are utilized. If they have had a list of ADA coordinators, but they don't, there is no requirement that they be identified.

When I tried to have a hearing -- we had a case in California that was just heard at superior court level, the case of -- the cities -- 14 cities, I am blocking on it -- we had a consent decree that was denied by the judge, because the group, the people claiming to be representing the disabled community made no attempt to outreach to the blind disabled or hearing impaired or other major categories.

But the consent decree would have been 30 years of denying any injunctive relief in 14 out of 18 cities in this county

The judge said, hey, you are, your notice for that consent decree is an amount of money that would minimally have to be allocated to accommodate disabled -- she didn't say it was a joke. It was 5 percent of gas taxes, from the city -- against -- California -- which might be eliminated by the Governor, but in any case, that is much less than the city of Concord spends, which I have been advocating for 15 years.

The cities wanted to agree with the 30 years, and minimum 5% gas tax to be spent on accommodations.

As a consequence the judge said, hey, there was no attempt to identify with the base level for expenditures, if you don't do that, how do you end up justifying 5%?

And unfortunately, or fortunately, there was no discussion of the damages asked by the plaintiffs who happened to be -- one of them we had 600 cases in California. And even he said, he didn't agree to the 5 percent or 30 years, but he was forced to sign because he was going through hospitalization.

Bottom line, the judge said, Hey, if the class action for disabled is represented and getting less than they got before, what is the benefit of case?

He said, I deny the consent. Start over folks.

And from the standpoint of the blind, for example, the only notice they had was the legal notices, who normally reads legal notices and from the standpoint of blind can make a point of having those particular ones available in the phone in situations, news papers don't do that.

As a consequence the notice to the blind which is the legal group California counsel for the blind had their attorney Mr. -- Patrick -- I am forgetting his name, but he represented the blind as a group called California disability rights, said the same thing.

Notice was not there.

Websites are not adequate.

This was buried in some of the words -- and some of them are in 14 cities.

So the judge said, I am not going to approve that.

And, if that is the case, somewhere along the way, by not giving direct notice to the blind or direct notice to the ADA coordinators, you end up with a situation that the notice was very inadequate.

So, that is a case here in California, that was reviewed last month.

So the judge said, November 23 there will be a hearing. (By the way it is November 23, not the 20th for the comments. It is in the chart here.)

So from the standpoint of ADA coordinators, it may seem superficial, but from the standpoint of advocacy for disabled, unless there is some funding at least the advocate has expectations of having training or appreciation.

I attended the national association of access professionals that is -- freedom of information Act, professional group, Bureau of Indian Affairs to the CIA director, someone went if you don't have a destination or training and outside training for ADA coordinators you won't get the maximum bang for your buck and companies won't get appreciation.

It may not be possible to mandate that, but somewhere along the way, best practices and guidelines would be fair.

And Department of Justice has work to do in this area

STUART ISHIMARU: Should we suggest that employers consider -- employers consider publicly posting that the coordinator is …

STUART ISHIMARU: Title II, forgive me is the government title?

JOHN WODATCH: State and local government agencies

JOSEPH PARTANSKY: Title I -- I think it is -- absent in this particular area, but best practices make sense to me.

And it will make sense to the disabled community, to those people that are given other duties as assigned, if someone recognized that they had two hats, maybe they will get priority for appreciation and they can say, you would like to have training, and they would have better credibility to implement this law.

STUART ISHIMARU: Would it be important to have this available publicly to employees in an internal situation as well as for external posting so members of the public or applicants for employment could see that as well?

JOSEPH PARTANSKY: You better believe it.

Somewhere along the way, it is disabled members that may work for General Motors or the State of California or a private company, to the extent that we abuse or misuse privacy issue from the standpoint of self designated or willing to recognize or come out of closet. Somewhere along, if there were enhancement of ability for those employees who are disabled to network among themselves, identify themselves, rather than being told in effect, this is a personnel matter.

And unfortunately personnel matters are sometimes a ruse or misused as well as a client -- client/lawyer privileges. I have discovered here in California this one case that I talked about regarding the settlement where the consent decree was denied.

Up to that time, city councils had been using the lawyer/client privilege to not make my mention in any publication except the website as to what they are doing, what the position was, why they are there.

Somewhere along the way the vast majority of people that are affected by the budget and people asking for damages, it denied due process for disabled, denied public discussion of the situation, and so that somewhere along the way, best practices would be maximum internal and external opportunity.

One comment regarding -- I was in charge of an alternative school when I -- in New York City and we are in a building, warehouse, that had been used for a perfume factory and other things, and our staff started to get sick.

Well, if you want to investigate a sick building syndrome, there is a joint EPA and another federal agency, that they wrote a book, I added 25 pages to that, you don't have to have a designated policy regarding perfume and chemicals necessarily, but that is helpful.

But sometimes individuals who may be sensitive are just the tip of the iceberg, they are the -- they may be picking up things that the rest of people need to know and when my staff started getting headaches and some of the students started going through seizures, we kept on trying to find out what was happening here.

And in New York City, they have these huge 15 foot heaters, that it turns out that someone had changed the flue so the temperature on the flue backfired and all the exhaust came back in to the building.

Somewhere along the way, sick building syndrome and realizing that disabled and the more sensitive might benefit with the rest of employees by having their concerns taken care of and maybe the sick building may not be that sick, but sick enough that -- if I were a good administrator and facility manager that person speaking about the -- not only for the disabled, but potentially for every employee that works on the job site, thank you.

STUART ISHIMARU: Thank you very much.

Is there anyone else here in, interested in making a presentation at this time? If not, let's stand in recess until there is someone that wants to make a presentation and we will listen to them at that time.

We will stand in recess until that time. Thank you.

Recess -- 10:06.

(BREAK)

Resume 10:10

STUART ISHIMARU: We are going to restart because we have another comment from someone who needs to get back to her school, which we totally understand. Can you identify yourself?

HELENE MAXWELL: Helene Maxwell, Coordinator for the Programs and Services for Students with Disabilities at the College of Alameda

CHRISTINE GRIFFIN: Hello?-- (on the phone)

STUART ISHIMARU: Ms. Maxwell will give a presentation.

HELENE MAXWELL: This is going to be really brief, I just found out about this meeting a couple days ago, and I assumed there would be a long line of speakers. I was going to submit something in writing but as long as I have a minute, I will take the time.

I recently came from a conference for people like me who coordinate programs at post-secondary, primarily community colleges in California.

And I have to tell you, over many years of hearing updates from OCR and tracking Supreme Court decisions about who was considered a person with a disability, we came away from there scratching our heads, and saying this didn't make any sense.

If a person has a disability and takes medication or using a prosthetic device or wears glasses, that doesn't mean with these mitigating measures that they don't still have significant functional limitations.

And so, at the community college, this doesn't affect us directly, in that we serve students with all kinds of disability, whether or not they are on medication, because we look at functional limitations.

But certainly we have a program, WorkAbility, a program through the Department of Rehab's contract, and we work with students and clients in job placement. So definitely the issues of employment come up.

As I listened to these proposed changes, and as I read them, I just thought finally, finally there is common sense in this process.

And so, all I want to say, again I didn't come prepared for a long statement, but I want to say, thank you for returning some degree of sanity to the process. Ensuring that people with disabilities have some equal shot at employment.

We still know that unemployment is extremely high for people with disabilities, and, as I said this is such a -- a dose of common sense that it is encouraging.

Thank you.

STUART ISHIMARU: Any questions for Ms. Maxwell?

CONSTANCE BARKER: I have one comment.

I want to thank you and just tell you I appreciate your expression of appreciation to us, but honestly, I think the appreciation should go to Congress, because all we are doing is responding to what Congress did, and Congress took the initiative to come up with Amendments of the ADA that would clarify the Act.

So, I think -- the credit goes to Congress and the committee that they nominated who very carefully weighed all the issues and came up with a negotiated product that they presented to Congress.

But thank you for your thoughts, I think we are all glad that clarifications have been made.

STUART ISHIMARU: Ms. Maxwell, thank you for very much.

HELENE MAXWELL: Thank you for your courtesy in allowing me to jump in.

STUART ISHIMARU: We will stand in recess, say for 15 minutes.

Recess -- 10:20

(BREAK)

Resume 10:47

STUART ISHIMARU: All right. Is this on?

In the interest of trying to move this along and understanding when people might come, we are going to be in recess until let's say 11:50. And because we have people scheduled who have signed up to speak starting at noon during the lunch hour and it's my guess, we will get walk in people as well.

Instead of having folks just sit here and wait to see who we might get, let's recess until 11:50 and be back and ready for noon, and accommodate both the scheduled people and walk-ins from that time.

We appreciate your indulgence as we learn how these sessions might go. See you at 11:50.

Recess -- 10:50.

(BREAK)

Resume 12:00

STUART ISHIMARU: Welcome back, we are next going to hear from Mr. William Stack, the Associate Director of the Epilepsy Foundation of Northern California.

We didn't know how many people we would get and wanted people to stay within a 5 minute time limit but we have flexibility -- so we welcome you and look forward to your statement

WILLIAM STACK: Thank you. I am Bill Stack, Associate Director of the Epilepsy Foundation of Northern California. We want to thank EEOC for developing the proposed regulation that follows the intent of the law passed by Congress.

The protections of people with disabilities are crucial protections, especially for people with epilepsy.

Correcting the problems of the past, the Epilepsy Foundation and people with epilepsy benefit from a simplified and just law -- all seizures limit major bodily and neurological function, and we feel that should be clearly spelled out in the regulations.

While there are multiple [types of ] seizures, [?], it is important to note that regardless of which type they are – a stream-lined process is necessary to assure protections. People should only have to provide one document stating their condition and after that be covered under the ADA Amendment's protection.

In addition, eliminating redundant analysis helps the process and the individual.

We feel the regulations need to define and differentiate "temporary" and "minor". For example there is no such thing as a small seizure. When someone has a broken femur, a large bone in the leg, the regulations need to make it clear that a broken bone may be temporary, but it is not minor.

And there should be a list of all temporary and minor impairments.

The true test is getting people on the job and staying on the job: Can the person do the job with the accommodation? Is it an undue hardship? If not, and they can do the job, people can be and should be hired.

As to employment rights and protections, no one should need to show what is in the employer's mind but …if they are adversely treated, not hired after they learn I have a condition, they should be able to make a claim that they have been regarded as having a disability.

On behalf of the Epilepsy Foundation, I wanted to commend the EEOC for developing the proposed regulations and thank you for the opportunity to make our comments.

STUART ISHIMARU: Mr. Stack, thank you. Any questions from members of panel?

STUART ISHIMARU: Excellent, we thank you very much for coming.

WILLIAM STACK: Thank you very much.

STUART ISHIMARU: Next from Jamie Dakis from Wisconsin. I don't know if she is on the phone, she will be calling in a few minutes.

We will wait for Jamie to come on the phone and hear from her then.

Anyone else in the room that would like to make a presentation, who has not been scheduled? If not, we will wait for Ms. Dakis to phone in at 12:15.

Mr. Chairman, I gave one of these to each of you and I was told by a staff that she planned to attend or not necessarily testify later on today.

(on the phone) Hello.

STUART ISHIMARU: Hello.

(On the phone:) I am calling about the interview, the conference call.

STUART ISHIMARU: Is this Jamie? No?

Someone just came on about a conference call?

LINDA LI: Jamie, are you on the phone? Oh, shoot, did we have the microphones on? Jamie, are you there? Well, I guess we should -- go to the next presenter?

STUART ISHIMARU: Is Susan Pender here?

LINDA LI: She was scheduled for 12:30.

STUART ISHIMARU: Shall we send Jamie an email?

Marilyn, do you want to go now?

MARILYN GOLDEN: I can go anytime.

JAMIE DAKIS: (on the phone) This is Jamie Dakis, I had pushed "mute".

(Laughter).

JAMIE DAKIS: (on the phone) I'm sorry, I am sitting there listening to you talking to me, should you send me an email, no, I am right here, and I have one minute left, too late! (laughs)

STUART ISHIMARU: No, Jamie, we have more flexibility in our time than we thought, so we welcome your presentation.

I would ask, other people who have called if they could put their phones on mute because we had indications of barking dogs and other background noise interfering.

JAMIE DAKIS: The only noise you will hear is my laughter.

STUART ISHIMARU: Welcome. The floor is yours.

JAMIE DAKIS: Thank you, I am calling because I am a 50-year-old American with a disability and I am happy to see that after some years of living with the disabilities, and the lack of regulations that make it clear, more clear that people with major depression and mental health illnesses that are in recovery and/or rehab programs, can be equal to, say, someone who is in a wheelchair or things like that.

I am calling to show you my gratitude from the bottom of my heart.

I have read a lot of the changes such as the definitions of disability, and the implementation of these, being on a broader basis, have made it very positive for people in the future and at present who are trying to get services to help them become less homeless, less helpless and hopeless, I hope -- I am grateful for that as well.

And I do like all of the verbiage changes.

However there is one thing that I would like to make perfectly clear, to quote a past President of ours, that sometimes verbiage changes do help as far as the definition and regulations of determining the eligibility of United States citizens that have a disability.

And I am grateful for that and you have done a great job, however, in the future, there are people that will apply and/or become eligible and there are no regulations that I can see in any kind of verbiage that help an individual, an American with a disability who can prove, for instance, I will use myself as an example, throughout many, many years, the instant that people find out I am on disability in a workplace applying for a job, I get instantly told "No."

Regardless of my credential or abilities or answers.

And I would like to see some verbiage in the regulation, that is, help people who are in a position that they can not do anything about the way the verbiage --regulations don't cover that kind of thing in a workplace, Number 1.

Number 2, once you do get into a workplace or are attempting to get housing or credit or anything, there is always a way around the regulations, and the verbiage around any of that, with the existing credit status decision-makers, that affect Americans with disabilities.

And I have seen that sometimes, year after year, where people that are disabled become homeless and or cannot get a part for their car fixed and/or cannot get a job to get the finances necessary for them to get back on their feet.

So we have an increase of Americans with disabilities between the age of 28 and 52 if you look at the surveys, male Caucasians, Americans with disabilities are 80% higher than any other displaced workforce, at present in the United States. I am basing this on my own personal survey done here in Jackson Hole, Wyoming.

I would appreciate it, if besides making Amendments, although I am extremely grateful, please look at that aspect of the American populace that is Americans with disabilities that are getting lost, no work, no home, and no verbiage to represent them.

Thank you.

STUART ISHIMARU: Great, thank you. Any questions from members of panel?

JAMIE DAKIS: No questions?

STUART ISHIMARU: What part of Wyoming are you from, near the Tetons?

JAMIE DAKIS: Yes in, I'm in Jackson Hole, Wyoming, where ex-Vice President Dick Cheney lives.

(Laughter).

STUART ISHIMARU: We thank you for your contribution. It has been very helpful, and we appreciate you spending the time.

JAMIE DAKIS: You may want to look at the housing survey that another American with disability and myself both did and if you would like that I will send it to you so you see what I am talking about. It is similar throughout the entire country.

I see that it is now 1:20, I will dismiss myself and say thank you for this great opportunity.

STUART ISHIMARU: Thank you. As we told people earlier, we certainly welcome written material from people who want to comment on our regulations. We welcome that.

JAMIE DAKIS: The Wyoming Department of Health has… I have given them your present needs and she - Janet Jares of Wyoming Department of Health -- has sent that out and I will be having a board meeting on Thursday and let the board know and let more people, Americans with disabilities, be able to contact you before your meetings are over and also provide written comments by November 23rd. Have a great day!

STUART ISHIMARU: Thanks very much.

Marilyn Golden, we have someone coming at 12:30 and 12:40.

MARILYN GOLDEN: I will be done by then, easily.

STUART ISHIMARU: We welcome you now. Marilyn Golden is with the Disability Rights Education and Defense Fund, a policy analyst and long-time leader in the area, who I knew during the first time we did the ADA in 1990.

So welcome to you.

MARILYN GOLDEN: Where do you want me?

STUART ISHIMARU: Wherever is comfortable.

MARILYN GOLDEN: Great to see old and new friends.

As Stuart said, I am Marilyn Golden, a policy analyst with Disability Rights Education, DREDF. Thank you for the chance to provide input on the rule.

We view the NPRM as, generally speaking, a very effective implementation of the Congressional mandate to restore a broad definition of "disability."

We will submit additional written comments. For now, we commend the Commission and want to address a few other points.

We laud many features of the proposed rule, including:

• Adding major life activities, particularly interacting with others, which some disabilities limit without limiting the person's job ability.
• Adding major bodily functions
• Defining "substantially limit" in a common-sense way, not requiring extensive analysis.
• Stating that actions based on impairment includes actions based on symptoms of the impairment. There have been adverse court decisions saying that discriminatory action was not based on the disability such as mental illness but behavior resulting from the disability. These are improper, because these behaviors are part of the disability.

We laud the Commission opening the door to impairments that may last less than 6 months that may sometimes be disabilities.

We particularly laud adding a list of impairments that will consistently meet the definition of disability. This is not the per se list that Congress abandoned. The EEOC properly sees there is still analysis being done here, even if it is a quick one.

We particularly laud how under "regarded as" coverage the [?] inclusion of adverse action based on use of mitigating matters, such as taking Dilantin, or a symptom, such as a facial tick.

And we laud that uncorrected vision standards can be challenged by anyone.

We further laud the provisions related to the major life activity of working.

While written comments will address that further, I want to say in general that we feel the proposed rule stops the current, [?] burdensome test for that aspect of the law and makes it easier for everyone to understand, by defining the type of work at issue, as the job held or sought and similar jobs. The proposed rule would release the employer and individual of the obligation for very extensive research and analysis and returns the major life activity of working to something that approximates the new law's approach to other major life activities.

And it clarifies that the fact that an individual has obtained employment elsewhere is not dispositive of whether they are substantially limited in working. This is absolutely necessary to bring the rule into accord with the intent of the Act. Evidence that an individual is able to obtain other work could be dispositive only if substantial limitation in the major life activity of working meant "prevented from working," which was rejected by Congress.

While I am on "major life activity," we hope the final rule will dispel myths of a [?] characteristics uniting all the major life activities.

There was a recent case saying, driving is not a major life activity because it is voluntary. Well, so are some of the others.

But for a Court to say that Congressional intent was that all major life activities have that, or any other unstated characteristic in common, as a way to reject a new one is not, in our view, consistent with true Congressional intent, and perhaps your excellent wordsmiths will find a way to make that clear -- to get around the wily behavior of our Courts to create this secret code that Congress clearly must have intended to disallow major life activity.

Lastly, for now, we recommend that the Commission add to the discussion of mitigating measures an example to demonstrate learned behavior or adaptative neurological modifications. As you well know, there is a strong tendency to mistakenly equate that kind of mitigating measure with recovery from a disability or lessening of the significance of a disability.

The example should illustrate how fragile these adaptations can be, in the presence of stress or fatigue, or other unusual circumstances, just as an adaptative device can fail under unusual stresses or other circumstances.

In closing, we will submit written comments that will add more specifics about the proposed rule in detail.

Thank you for being here, so close to home.

STUART ISHIMARU: Thank you very much. Any questions from the panel?

CONSTANCE BARKER: No.

SAMUEL BAGENSTOS: One aspect of the rule is under "regarded as" – [?], I wonder if you can say a little bit more on that? You gave the highlights, but I wonder if you can say a little bit more?

MARILYN GOLDEN: My notes don't say more, but I am going to find them anyway.

Oh, yeah, -- well, this is what… this is kind of thing that "regarded as" was always intended to mean.

The issues I gave, having to do with epilepsy and Dilantin in a drug test, or a facial tic from maybe Tourette's Syndrome that no one knows that the person has.

And that facial tic may not really be a disability. But when an action is taken on the basis of that, that is what "regarded as" is really supposed to mean.

Before the proposed rule and before the ADA Amendments Act, after all the adverse court decisions and other gymnastics performed by the court and by others who shall remain nameless, we found that we had to intuit what was happening in an employer's mind to know what was "regarded as".

It is always really -- I mean -- I don't know how wise it is to get personal, but it has always astonished me that it could even pass the laugh test.

That this could possibly be what Congress meant by that standard. They meant things like these examples.

Or like the tried and true examples, that is, we always meant: Someone has a facial disfigurement because of a bad burn and they are not hired. Because people are afraid of things that are not even disabilities but may look like them.

Or because you have a very modest level of high blood pressure, but you are viewed as having a significantly high blood pressure. All these things are what the Act was always intended to mean and has been distorted not to mean.

And we need to restore "regarded as" as the third prong of the definition to cover really all the… You know, I think before the ADA Amendment Act, all the prongs were eroded. But the "regarded as" prong has been wiped out of doing any good for anyone.

I think the wording today really comes close to restoring its function, and I think we will have more to say about that in written comment.

And I can, because of your question, Sam, work with everyone else at DREDF to work on "regarded as".

SAMUEL BAGENSTOS: Thanks

STUART ISHIMARU: Anyone else, questions for Ms. Golden?

CONSTANCE BARKER: Thank you very much.

STUART ISHIMARU: We certainly a appreciate your contribution. As always, it is nice to see you again.

MARILYN GOLDEN: Good to see you.

STUART ISHIMARU: Next, to Susan Pender. Is she here? No. We will wait for Susan Pender.

LAURA DAWSON: (On the phone) May I ask a brief question?

STUART ISHIMARU: Go ahead.

LAURA DAWSON: (On the phone) I am scheduled at 3:40 to speak, but since you are talking about the topic that I had intended to ask information about, I thought that I would intercede with my question.

That as I understand it, this new regulation will say that – state that reasonable accommodations will not be available to individuals who are only regarded as "individual with disabilities," is that implemented in the Act? Or removed from the Act? How do I understand that?

MARILYN GOLDEN: Am I on?

This may be more capably answered by the people here from the EEOC, but this is -- this is a step that the disability community would prefer not to have seen, but it is in the statute, it is in the regulation.

I don't think EEOC is expanding it in the regulation. I think they have to put it there.

Maybe they could be daring and take it out.

(Laughter).

JOHN WODATCH: This is John Wodatch. I should point out first that because of Sunshine Laws, the Commissioners can not answer questions of that nature.

But I can state what is in the statute and that language in the EEOC regulations comes directly from the statute.

When Congress was considering the ADA Amendments Act, they included the provision that there will be… reasonable accommodation is not required when you are dealing with a person with a disability who is a person with a disability under the third prong, and that language in the EEOC regulation has to follow the statute in that regard.

MARILYN GOLDEN: When they are only " regarded as."

STUART ISHIMARU: I want to be clear. From DREDF's position, that should not be the case? Or is that coming further in written comments as you more fully develop them? I don't want to force you into a position!

(Laughter)

MARILYN GOLDEN: Well, we didn't propose that, I mean -- we certainly didn't propose that.

But, I think that it is important that -- that some of the parts of the new statute and regulations really bring back the broad Congressional intent of ADA that it will go a distance toward avoiding the harm in the reasonable accommodation, too. I don't have a lot more to say, I can talk to the people at DREDF about addressing that further. It is clear in the statute and regulation, and there may be a way to nuance it that we can talk about.

CHRISTINE GRIFFIN: (On the phone) Can you hear me?

I will echo that, it is in the statute, but legislative history says that -- Congress I think intended that if by fixing the other parts, that is what Marilyn was trying to say, by fixing mitigating measures that extended coverage back to the people in the way they intended, that people, if the "regarded as" was used appropriately, won't need… they are not the folks looking for accommodations. They are folks being discriminated based on, for the most part, things that may or may not even be disabilities.

STUART ISHIMARU: Okay, Ms. Golden, we thank you for coming and appreciate your contribution to our proceedings here.

If Susan Pender is not here yet – Ms. Dawson, can we go to you?

LAURA DAWSON: (On the phone) Thank you, and thank you Ms. Golden. I am a disabled individual and I have been receiving the Ticket to Work benefit as such since approximately 2001 or 2002. That is one of the earlier years that the Tickets were issued, I have been on the front of the change.

And it has been challenging and beneficial both, so I am really applauding the program. And continue to support it and attempt by my comment to make it a better program for those that use it.

So I am basically going to say that the clause that is being proposed to change the status from mental retardation to intellectual disability, that is a wonderful adaption and accommodation, verbal accommodation for those that face those types of disability.

And also on the "regarded as" after each person gave their input, that clarifies it more for me.

I will give you an example of how I came across something that I was concerned about that may be influenced by that phrase. I was applying for a position for the Veteran Affairs, and as I completed the application for the first time, I saw a clause, a new clause that said "individual can perform with or without reasonable accommodations".

And so that concerned me. That might give them latitude that may make it impossible for me to achieve employment.

And thus far I have not been able to assign my ticket to any employment network. I have attempted, on multiple occasions to do that.

Is there something that we can look for that will assure us that -- the reasonable accommodations will not be lost on that particular "regarded as" terminology?

CHRISTINE GRIFFIN: (On the phone) Can I jump in here? Susan, I want to tell you that terminology was "with or without accommodations" coming from the ADA to begin with, and it didn't have anything to do with what these regulations are about.

And so, the terminology that the VA is using in their job advertisement is just alert you that they will accommodate a person with a disability, and they are saying they are looking for someone that can do the essential function of the job with or without reasonable accommodations. That is all it is, the language maybe used -- it is supposed to signal to you that they are open to employing people with disabilities. Whatever they are doing in the regulations it will not change that.

LAURA DAWSON: (On the phone) I am encouraged by that. That is my only question or comment. I applaud the fact that you are opening these meetings and providing information prior to the meeting so we can be prepared to make statements and input. I am very grateful for that opportunity.

STUART ISHIMARU: For the record, you are based where?

LAURA DAWSON: (On the phone) I am currently… I have moved from California through the process in Nevada, and I am now in North Carolina. I am a self-employed small business owner and health care provider.

STUART ISHIMARU: Thank you for your contribution.

LAURA DAWSON: My pleasure, thank you all, have a good day.

STUART ISHIMARU: Okay, so we are waiting for Susan Pender to join us. So, let's wait for 5 minutes to see if she comes and if not, try to figure out where to go with our proceedings this afternoon. We have a person scheduled to join us at 3 o'clock, Claudia Center. And that is the only other one who is scheduled to testify.

And again we welcome other people if they want to make a presentation, absent that we will wait to see if Ms. Pender joins us.

STUART ISHIMARU: Why don't -- why don't we do this: Go into recess, Claudia Center will come at 2. If Susan Pender comes between then, we will accommodate her when she gets here, but let's stand in recess until -- Gary Karp would like to make a comment.

We welcome Mr. Karp.

GARY KARP: I will grab the off-the-cuff opportunity. Hello, Chris, hope you are feeling better? Is she still there?

CHRISTINE GRIFFIN: Thank you, Gary.

GARY KARP: Gary Karp, and I speak and write and do trainings about disability awareness.

As a person with a disability -- a spinal cord injury since 1973-- I am very encouraged by what has happened, in a number of ways. To correct some of the blatant and clear wrongs that were happening in the courts' decisions. We are seeing an extremely wonderful thing, the spirit of ADA is truly restored, this is certainly significant progress in that direction.

I was especially encouraged to watch the process because it of course began as rather adversarial, especially with the business community, and all of a sudden there was participation, and collaboration, and agreement being reached with business interests.

I think that is indicating a couple of really important things.

One: Sophistication of the disability advocacy community itself. We are not having to occupy offices as much any more. Now we are able to sit at the table and effectively work through issues and reach true collaboration, that is very significant. Cultural as well as policy advances.

And I hope that it also means that the business community as a whole, is maturing around that issue and recognizing disability for the topic it now is, which it has never before been in history. Namely, a degree of real capability, and therefore a real resource for business. That they now are, I hope, starting to see they are missing out on.

And I am saying that so tentatively, because we all know that employment statistics have not really improved since the implementation of ADA.

And I know anecdotally from my travel and many people I meet and speak with about that, that in the past employers had the spirit of, 'Sure, you are a qualified, good person, and we see you can do what you can do, so we will figure out what it takes to do the job.' But now there is an axe over their head, of compliance and law, and my sense is that business in general reacted defensively. That has impeded our ability to help them understand the objective story: These people are capable, and reasonable accommodation doesn't have to cost a lot of money, and so on and so forth

My concern in my work is getting the culture straight: the entire surrounding culture of our society and culture of the workplace, and trying to help them relax and not look so much to compliance, but first to look to just the story of disability and what it is, and how the increasing and greatly increased health mobility, access to technology, level of education, commitment to participation and individual potential has simply grown, and therefore represents a true resource in the workplace.

So my concern with regulation and compliance is about the way it is delivered.

It is about the way business and society perceives this, still thinking it is about "hire the handicapped": we are supposed to make a sacrifice and accept lesser performance, or something is imposed on you by way of threat, that there will be a complaint and occupy more resources. Rather than "Let's understand what this population is."

That is what underlies these regulations, to target the reality of what people's potential really is, and that they truly can contribute to the goals of organization at every level of our society: corporate, government, volunteer or nonprofit and everything else that you can name.

And that really is our goal here. I hope that in any continuing refinement of this work, that that spirit underlies all of it. And that any communication or interaction that you have with potentially many employers, that ---you certainly know this but I am here to give you a little more juice --- to make a priority of that, keeping that in mind, and remembering their resistances.

The Department of Labor came out with a document that identified that they don't feel they can discipline people with disabilities.

These things are out there that I think unnaturally cause a response to the regulation and reinforce and explain why since the ADA the numbers have not improved.

Our hope with this, and the things that I plead you to bring to the conversations, is that numbers will start to change.

And I think that also speaks to the "regarded as" issue that Marilyn spoke to, because it is really about what is the person's potential.

And if they are discriminated against, that means they are denied their authentic potential and not seen for what their actual potential is.

Therefore not only have they been unfairly discriminated against, but our society has lost their contributions.

Those are my thoughts and appreciation for what you are doing and my hope for how much farther we will move and my belief that the momentum is real and unstoppable and we are part of an amazing transition in human history and modeling something for the rest of world, when people will be seen truly for who they are and able to make their full contributions under our society.

STUART ISHIMARU: Questions for Mr. Karp?

CONSTANCE BARKER: A comment.

Hi Gary -- I want to thank you for your comment. I agree and love the way you put it. Very well put.

And, it is something for us to keep in mind that you know -- there are some highly qualified people, who have so much to offer.

And we just need to do whatever we can to get them in to places of opportunity.

It is not that anyone is doing them a favor.

It is that they are… we are being denied. We, being society, are denied their talents. Very well put, thank you.

GARY KARP: Thank you.

STUART ISHIMARU: Mr. Karp, we thank you for your contribution.

If Susan Pender is not here, we will recess until 2 o'clock and hear from Claudia then and give anyone else the opportunity --

LINDA LI: I think Claudia is at 3

STUART ISHIMARU: We just called her and now she is at 2.

We will stand in recess until 2 o'clock. Thank you very much.

Recess -- 12:54.

(BREAK)

Resume 2:15

Linda Li: For anyone who is listening as a call in speaker, we are going to resume the program now. Claudia Center is approaching the microphone.

STUART ISHIMARU: Christine, Claudia is here, we are about to get started.

Claudia Center, we welcome you, and please proceed.

CLAUDIA CENTER: Thank you. Thank you for holding this Town Hall session. I am here on behalf of the American Diabetes Association, National Employment Lawyers Association and the Legal Aid Society-Employment Law Center. I believe all these organizations will be submitting written comments, individually or in coalition with other disability rights group and certainly today's comments are preliminary.

In general, we are extremely excited, and supportive of these regulations. They are very strong, thoughtful, detailed and consistent with the ADA Amendments Act and spirit of the original ADA and extremely helpful to those who work on behalf the persons with disabilities.

There are quite… there is a lot in these regulations and all of us are still digesting them and we… others have or will be identifying a few areas where we think additional clarifications may be helpful.

At this point, there is a statement from the American Diabetes Association that I would like to read:

We strongly support the listing of impairments -- listing of examples of impairments that will meet the definition of disability at section 1630.2(j)(5).

The regulation states, the ADAAA requires that the definition of disability be interpreted broadly and without extensive analysis. It is only reasonable for the EEOC to have identified conditions that will be found after an individual assessment to substantially limit a major life activity. There are some conditions, simply because of the nature of the condition or symptoms, that will meet the definition, especially under the new category of substantially limited major bodily functions. [?] Clearly diabetes is such a condition that should be included in the listing of examples. The condition substantially limits functioning [and] to ignore that reality and ask for an individual inquiry will deem different results – that is neither the spirit for ADA nor clarity for employers or employees.

I have a few general comments that I am giving today only on behalf of the Legal Aid Society.

One area which I am still trying to figure out whether or not clarification in the regulations would be helpful is the elimination of condition manner or duration. This is the language that is listed in the prior regulations that in some cases was helpful for us to articulate why a person is substantially limited in major life activity.

So, one of the areas in which our office will comment on is if that should be reincorporated in the regulations, or in guidance, or somehow included, for those circumstances.

I don't think it is required, but it is something helpful.

In terms of the second area, 1630.2(j)(5), there may be additional conditions that we argue should be on--in that section of conditions that meet the definition.

And we wonder if more guidance might be needed about the consequences of being on the list, because there is a little bit of language in there that might suggest that the court still goes through individual analysis that still might require some sort of medical evidence that might ultimately go down a path that might not be what (j)(5) is designed to do.

Third area: "comparison to most people in the general population". I certainly think that is a way a person might show a disability under the definition, but it is problematic in some cases. And our office is thinking whether or not that should be required in all cases. That could create problems particularly in the area of learning disabilities or persons who are "high achieving" or don't meet the stereotypes of disability.

The third prong "regarded as" area: we are thinking that we want more clarity on the transitory and minor exception. Specifically, perhaps an example of a person who is mistakenly viewed as a having a transitory or minor --but has actually a non-transitory or non-minor impairment and experiences adverse action on that basis.

The next area that I wanted to flag or mention is the "type of job" concept. I think that is an improvement certainly. We are still trying to digest and struggle with how it will work in the real world, wondering if it could be simplified. But certainly the direction of the "type of job" concept is welcome, certainly, very welcome.

We will look at some of the "major life activities" that have been added to the list. And when I say that, I mean old school "major life activities" like walking, hearing, sitting -- these major life activities. And we will look at it. So if we think additional ones should be included such as writing, typing, keyboarding, traveling, driving and additional major life activities that are part and parcel of modern world.

In terms of the entire regulatory draft and particular for the "major bodily function" concept, we are still struggling with whether plaintiffs will still need to submit medical or scientific or expert testimony and try to -- to try to make that burden as reasonable as possible, and to not require unnecessary scientific or expert testimony.

It should not be required for many conditions, and we are a little concerned that bodily function concept might call for -- or lead some court to require extensive expert testimony, and more guidance in that area would be helpful.

Finally I would like to see examples, particularly in the "record of" prong of persons with drug and alcohol addiction, I think that would be helpful for articulating why a person with a record of disability may need reasonable accommodations.

I think that it would be good to include those disability groups and also helpful.

These are all of my comments from my own organization, Legal Aid Society-Employment Law Center and the American Diabetes Society and the National Employment Lawyers Association.

Thank you.

STUART ISHIMARU: Ms. Center, thank you. Questions from anyone sitting at the table? Nope? We thank you for your contribution, very helpful and appreciate your flexibility in joining us on the early side. Much appreciated.

I believe our final speaker is Fred Nisen, and we welcome and are delighted to have your statement.

FRED NISEN: Thank you.

My name is Fred Nisen, I am an attorney with Disability Rights of California.

We are California's protection and advocacy system for people with disabilities.

I would just like to say that we are pleased that the proposed regulations reflect the purpose of the ADA Amendments, which we feel will help further the rights of people with disabilities.

We will be submitting details and written comments, but I just wanted to acknowledge that we appreciate the work that the Commission is doing.

Thank you.

STUART ISHIMARU: Mr. Nisen, thank you, questions from the panel? Mr. Nisen thank you for your presentation, very appreciative, having you join us today.

FRED NISEN: Thank you.

STUART ISHIMARU: And if there is no further request to provide testimony, I think we will adjourn the session, the record for the regulations will stay open until the twenty third of November. We plan to do other Town Halls in Philadelphia on Friday, Chicago and New Orleans in the month of November.

So we are looking forward to hearing further public comment.

I want to thank my colleagues from the San Francisco office for all their help in putting this together on very short notice, and thank them for their, as usual, excellent work. If anyone else has any other comments?

If not, we stand adjourned until we meet again.

JOSEPH PARTANSKY: Is the transcript that you have today, will that be made public?

STUART ISHIMARU: It is my understanding that the transcripts are going to be made part of public comment file, that will be for the regulatory process. The question came up earlier, will this made readily available to the public?

We will look into that, it is a question, if you make this public, do you make all the comments public?

Given the ease of technology now, where you can put things in PDF form, that might be something that we can do fairly easily. We will check on that and I think the best thing is keep checking our website to see what happens.

JOHN WODATCH: Regulations.gov, that is where that would end up.

STUART ISHIMARU: Mr. Wodatch tells me that Regulations.gov -- it will likely be on Regulations.gov, some thing I don't know how to use.

(Laughter)

Again my thanks to our friends in San Francisco and Oakland for their help, and with that this meeting will stand…

LINDA LI: I 'd like to add that anyone that signed in and gave me their email, once I get final word on where everything is going, I will email you.

STUART ISHIMARU: Might we be able to provide that directly to people?

LINDA LI: Sure, if they send me the transcript.

STUART ISHIMARU: Again my thanks to the friends in California and with that we stand adjourned.

CHRISTINE GRIFFIN: Thank you.