TRANSCRIPT

U.S Equal Employment Opportunity Commission and
Department of Justice Civil Rights Division
Town Hall Listening Session on the ADAAA Proposed Regulations
New Orleans, Louisiana
11/20/09

 

 

* * *

CHRISTINE GRIFFIN, Acting Vice Chair, EEOC;
CONSTANCE BARKER, Commissioner, U.S. EEOC; and
JOHN WODATCH, Chief of the Disability Rights Section of the Civil
Rights Division, U.S. Department of Justice

CHRISTINE GRIFFIN: I guess we will begin. Good morning everyone.

PUBLIC AUDIENCE: Good morning.

CHRISTINE GRIFFIN: I feel like a teacher up here. All right, class. I want to welcome everyone. I am the Acting Vice Chair at the Commission. Before I ask the other folks to introduce themselves I want to thank Keith Hill for my arrival here in New Orleans and all the folks here, thanks to all of you for making this happen. Thank you. And I want to thank David from the Advocacy Center who turned us on to the TRAC Center. It's their relationship that is the reason we got to use this space. Thanks a lot. Thank you for the work you have done. When Naomi comes in, we will thank her for putting this together. Thanks to everyone.

CONSTANCE BARKER: I'm the Commissioner at the EEOC, and it's my pleasure to be with you today.

CHRISTINE GRIFFIN: This is the fourth of our four Town Hall meetings. They have all been very informative. It has allowed us to get a different type of input and additional input and input from additional views -- very informative and very helpful. We are looking forward to listening to all of what you have to say to us today. Thank you.

JOHN WODATCH: Good morning. I'm John Wodatch, from the Civil Rights Division at the Department of Justice. I welcome you all. I look forward to hearing the testimony. Just so you know, we will follow in the footsteps of EEOC and put out our own rule on the ADA Amendments Act, and so your testimony today has a double purpose. It's helping to inform EEOC of your views on their approach. I am looking forward to hearing your testimony.

CHRISTINE GRIFFIN: I think the first person is Mitchell, is Mitchell here? He's not here. So, we can move to the next person, Daniel. Well, you know what, if they come later, we can fit them in. Some people signed up, some people walked in, that's fine too. So, the next person is Carol Tucker.

PUBLIC AUDIENCE: I didn't want to go first.

PUBLIC AUDIENCE: Okay. I will go.

CHRISTINE GRIFFIN: Come on, Carol.

SPEAKER: Thank you for coming early.

CAROL TUCKER: All right. My name is Carol Tucker. I came here from Pensacola, Florida. I live there now. I decided to come here because I'm currently on Social Security disability as a direct result of the termination. I worked for the federal and state government and in 2002 after six and a half years of working for the University of Florida, a position that I had was eliminated and then I was in another position in another state. I had to move. It was supposed to be a comparable position; it was not. At the time I reported that to the EEOC, and nothing was done. I ended up having major surgery later that year and I miss my time and I was terminated for medical reasons. And then I went back to school. I was one semester away from getting my masters degree. I took out student loans, unemployment, food stamps. I paid for COBRA for 18 months. I got a master's degree, almost second master's degree. I wanted to be a college professor. I wasn't able to get a PhD. And I ended up, it was my intent to work to be a college teacher. Unbeknownst to me at the time I was never to be hired again. I was blocked. Every time I would approach a university or college about teaching I would meet the faculty, they would be very interested in me. Then the minute it would get to Human Resources, the door would slam in my face. The state of Florida and I began to suspect that something was going on, other than just maybe a former supervisor, you know, being nasty or whatever. But it was severe disability discrimination. I finally caught a college doing it, long story, but I ended up in 2002, I'm sorry 2006, I filed a discrimination complaint because I basically caught them red-handed. I was put on a schedule to teach for the college, then they found out that I used to work for a state agency, although it doesn't ask that question on the application. They called their attorneys, and their attorney told them not to hire me. I had done nothing wrong. Anyway, I have been representing myself for the last 3 years pro se. And as part of that, it's ruining my health. The stress of it, my immune system became totally compromised. I'm sick all of the time. Anyway, I ended up on total permanent disability. But here I am highly educated and all that is left for me to do is write a book and tell the world about it. That's not the way it should be played out. There's a lot of disability discrimination going on. It's going on largely because corporations and government agencies have risk managers. There are all kinds of general counsel, attorneys for the agencies or whatever. Often -- they are recommending a lot of databases out there that are not public knowledge that look at past insurance claims. If you ever file a lawsuit, you can find out anything that you want to find out about anybody. Now this is being used behind the scenes, discrimination -- not hiring people. There's always an excuse. I could use a wheelbarrow to haul all the applications that I have filed. I was not getting hired. It's also the fault of the health care crisis, now a lot of jobs are overseas. The insurance companies are pulling strings. Be that as it may, one of the problems is you need to know to stop this before it happens and not wait to see which discriminated citizens will stay the course and see a complaint through. Many people don't. And I'm trying to start an organization myself, and it's really difficult with my energy level not being what it used to be. We need legal reform. We need health care reform in this country. When it comes to civil matters and you can't afford an attorney, that's another set of problems. You have to do it yourself. Most people will not do that. So that's our basic constitutional right. You can't hire an attorney. Hey, this was supposed to be a free society. I can't live the American dream because I can't work. Okay. So, in Florida, I believe that I was properly advised of my rights. If you file a complaint before the Commission on Human Relations, you can't file a lawsuit in the federal court at the same time. In any case, an attorney told me that 99 percent of the cases filed in the Florida Commission, they are really not complaints. I found out that was true.

CONSTANCE BARKER: You said the Florida Commission?

CAROL TUCKER: After that, the Commission was completely done away with. 99 percent of the cases against plaintiffs, at the beginning they filed the complaint as a termination, so down the road, the Florida right to work state, you can get rid of anybody that is part-time for any reason. So, no, this is supposed to be a hire. I state my grounds, but all through every step of the way, it was a fight. I had a lot of my rights violated. It was the Division of Administration hearing. I started for the final hearing, it was a different judge. Nobody let me know in advance. The attorney for the college was extremely rude and nasty. It was a typical badgering attorney. The judge didn't say anything. That kind of thing went on all through the case. Now I have taken it as far as the U.S. Supreme Court. Anyway, they will not hear it, and now it's back to EEOC. So I have recently contacted the EEOC. I expect things to be done. One of the problems in higher education, and the Department of Justice and Department of Education, EEOC all need to work together with regard to opportunities for, you know, not just people that are blind or deaf, but a lot of that has to do with people that have illnesses, that's where the problems come in.

CHRISTINE GRIFFIN: Have you looked at the new regulations?

CAROL TUCKER: I have looked at them. The last position that I had, I wanted to work, and I was coming to work in the classroom, and I wanted to teach on-line. So the opportunities are not there in the colleges. I believe this is an initiative. I was told that the full-time faculty had first dibs on the on-line teaching. And one teacher, full-time teacher, got six courses in a summer term at about $1500 or so. Of course that's a nice chunk of change in the summer. In the meantime I was living in a motel trying to get body and soul together. I could not afford to live anywhere else. But at the time, in any case, it should not be that way. I believe that there should be some initiative where there should be more opportunities for teachers that can't work in the classroom. I could have taught on-line at home. And I don't see why there should be time limits for filing discrimination charges for a period of less than 10 or 20 years. I look at employment discrimination, and in a free state it ought to be considered a very important matter. If you can't work, you cannot pursue the American dream, okay. There needs to be an initiative where this is stopped before it's started. We know the management issue is going on, that it needs to be looked at. There needs to be accountability to what has already been done and stop it. It can't just be all about money.

CHRISTINE GRIFFIN: If you were to submit this case today, could we help you in any way?

CAROL TUCKER: It's hard to say. That's hard to say.

CHRISTINE GRIFFIN: What I would say is in major life activities -- in one of the things that was added by Congress -- it gets more focused on disease-related impairments.

CAROL TUCKER: One of the things that happened in 2006 for example, is not being stopped. This is still going on. EEOC has already paid for it in ruling against perceived disability. I applied at the university. I was given a questionnaire asking me every surgery that I ever had. I still have it.

CHRISTINE GRIFFIN: You should turn that into the EEOC office as well.

CAROL TUCKER: At the time, I was trying to apply for an adjunct position and an actual full-time position. They wanted me to do that. That's none of your business. I'm not going to fill that out and the door was slammed in my face, very nasty. I think that came down from the risk manager and the insurance company. We will not insure you again if the insurance company, we will not insure you, we are not going to hire people with certain risks. Well, you need to deal with that. That's illegal. That's why you need to go to the source of it when it results in this kind of abuse. Another one I had applied for was at Tallahassee. I applied for a position on-line with the university in Miami. I had a good rapport going on with the gentlemen. I had passed out flyers with my church. The pastor helped me to pass out flyers with the program. All of sudden I had no idea what had happened. The whole thing got stopped dead in its tracks. No valid reason, just a bunch of garbage. This happens over and over and over again. And this kind of thinking has to stop. People just can't work. It will just keep snowballing on until we do something about it.

CHRISTINE GRIFFIN: We are hoping that these new regulations will amend that on the coverage of people with disabilities, and the training and work that we do subsequent to what we do finalize will help educate people to all of that. But, I think what you encountered in discriminatory applications, our offices would want to know about that.

CAROL TUCKER: I had that experience in Tampa and nothing was done. There's a lot of corruption in higher ed. It's a political thing. But there needs to be, just like raising a child if you don't give them some sanctions, you know, if you need to prosecute them, they need to be prosecuted. You don't prosecute them, they just keep -- you know, if you don't prosecute them, who is going to prosecute them? Okay. Well, I just contacted EEOC again about this case. Actually the e-mails have been going around and around. I ended up e-mailing Washington and I gave Tampa and I think Miami…

CONSTANCE BARKER: You filed a charge?

CAROL TUCKER: I did. They don't do anything as long as, now 3 years later, it's going to back to EEOC, and if I understand the process correctly, which is very confusing, now EEOC can take it to federal court. But I have yet to hear back from anyone that is supposed to be finding any file. That's kind of where it's at now.

CONSTANCE BARKER: You need to work at where you filed originally. All of the things that you filed through the state of Florida, but if it's back ---

CAROL TUCKER: The e-mail was from someone, the Washington office was sending to a P.O. Box —

CONSTANCE BARKER: You can go back to the office.

CAROL TUCKER: I have done that, anyway –

CHRISTINE GRIFFIN: Thank you for coming from Pensacola.

CAROL TUCKER: Thank you.

CONSTANCE BARKER: Sorry you have had all of the confusion.

JOHN DUPLESSIS: This is John Duplessis.

CHRISTINE GRIFFIN: How are you?

JOHN DUPLESSIS: I want to first thank the EEOC for allowing me the opportunity to speak here at this time in regards to the proposal you are making in adopting the American Disabilities Act Amendment and so forth. But for me, as a person with a disability, I'm here because I, myself being a person with a disability, have experienced discrimination in the workplace and have experienced the prejudices and the bias in the workplace because of having a disability. I have been terminated from a job, not because I was not able or capable of performing the job and so forth, but I was terminated because of my disability. It was determined that I was not able to perform the job. With that Amendment that is adopted by the ADA, it will allow individuals or persons with disabilities to be able to keep your jobs and maintain your jobs. That's because you are qualified and they are capable and able to perform the job duties of their job, the description of their job. You know, like me, I'm an individual who has a hidden disability. There are millions of Americans that have hidden disabilities. People look at me and say you don't look disabled. You are able to perform certain tasks so they don't consider you disabled. What happens is it creates bias and prejudices when you are accommodated in the workplace and other prejudice towards you because they feel that you're capable of doing a lot of things, but not realizing that our disabilities that we have, many hidden disabilities, we are disabled and we have difficulties in the workplace. I'm legally blind, you look at me, wait a minute, you don't walk with a cane or you don't have an escort. How are you considered legally blind? I have 20/300 vision. I have no peripheral vision. I'm legally blind. I have difficulty reading. I need assistive technology. I need things to assist me on the job. But still, I am discriminated against in the workplace. But with the adoption of this rule-making it will allow people like me and others to be able to say hey, you know what, I'm no longer -- I now have a piece of tool now -- I have a tool in my hand that I can use that says hey, you know what, time out, this has to change. I appreciate the fact that you have already adopted this new rule is my understanding, is that correct?

CONSTANCE BARKER: No.

CHRISTINE GRIFFIN: It's not final. What you have read about it is how it's written today. These comments that we are getting from all over the country, written forms as well as the individuals that have spoken, will allow us to go back and make any changes that we think are necessary based on comments that people have made.

JOHN DUPLESSIS: I was assuming that it was adopted.

CHRISTINE GRIFFIN: The actual statue is passed, but it's our regulations that are explaining that law that I'm finalizing.

JOHN DUPLESSIS: It's very important that I came here. I won't be too long. But it's very important that persons with a disability, that we have some sort of tool, some sort of resource that will protect our jobs. Our jobs, we are not protected as many people believe we are. We are not protected. But with this adoption of the ADA Amendments Act, we will feel protected. Even those that have disabilities that are migrated or those disabilities that are in remission and come back, we feel protected now. Our disability, you know, we need to be seen as though, guess what, we should be treated fairly in the workplace. That's not the case in all occasions. We are discriminated against. We are discriminated against in political ways, sophisticated ways and many other ways in the workforce. This adoption of this rulemaking will allow us to have a tool to be able to support us and keep our employment.

CHRISTINE GRIFFIN: That's fine. Good words. The intent of this was to get more people with, you know, a variety of disabilities covered by the law that were unprotected.

JOHN DUPLESSIS: I appreciate this opportunity you have given me to come up here and speak. I'm honored and just have a pleasure in being here.

CHRISTINE GRIFFIN: Thank you. Thank you for coming. You want to leave your written statement with us so we could have it for the record?

JOHN DUPLESSIS: Yes, ma'am.

CHRISTINE GRIFFIN: We are running way ahead of time.

CHRISTINE GRIFFIN: All right.

MICHELLE HAYES: I'm from Harrah's. I'm very thankful to you that you all are taking our comments. I'm wearing the hat of the employers. We want to do the right thing by our employees. However we struggle with the regulations in needing guidance in some of the expanded definitions. I'm a little nervous.

CHRISTINE GRIFFIN: This is very informal.

MICHELLE HAYES: I will give you a good example. We have an employee that is severely asthmatic. However, our facility is very large and smoking is still allowed. So she has to be careful about choosing her routes where she comes in and out of the facility. But we can't be on guard 24/7. And she has reacted to cleaning chemicals so we have done our best to change the hours that we do cleaning, etc. It's just not realistic. Perfumes, any kind of cleaning chemicals, even construction at our facilities will set her off and pull her out on a stretcher. She wants to work. She does a great job when she is here. As an employer, we don't have the guidance on what is reasonable accommodation. The physicians are not -- it's not that they don't want to be cooperative, they just don't know how to be. What is reasonable accommodation, especially in this poor lady's case?

CHRISTINE GRIFFIN: In that particular situation, yes.

MICHELLE HAYES: But just on the employer's side. We struggle without having a lot of guidance. Until we get the physicians also understanding what it is that they can help employees with their employer to provide what is reasonable accommodation, they don't always understand our environment, our physical location. It does take a lot of time, the lady's coworkers feel penalized. If she will be at work or stay at work, if she has an episode, she will be out several weeks at a time. As an employer, how much do we need to give her because it's just, it's not reasonable for us to, she has a job, we need her to perform a function. I offer comments on the employer's side of case. We struggle because the guidance is very vague. With the new regulations, it expands to cover the majority of our employees at some point in their lives.

CHRISTINE GRIFFIN: There are some resources, some folks at the office here in New Orleans that would be helpful to help you figure this out. The Job Accommodation Network is a free service that you can call and really have someone who is an expert and brainstorm, if you will, really on how to accommodate employees with present situations. They have been around for years. How do you deal with someone that is allergic to all of these things at a casino?

JOHN WODATCH: I would also like to add that I don't think that you can expect doctors to be the people to help you in this situation. They don't understand your work environment. They might be able to understand her condition if they are her personal physician, but if they are not that, they don't understand that, the interactions between this individual and the working environment. There are many different forms of accommodations and you will have to find what works for her and you as an employer. Part of this might be an accommodation being able to work at home part of the time, if the nature of her job allows that to be done at home. Because what you are really talking about are problems in the environment some of which will not be, are not going to change. So, you're going to need the Job Accommodation Network, that 1-800 number –

CHRISTINE GRIFFIN: Over there on the table there's information.

JOHN WODATCH: The web site -- you can pull it up.

CHRISTINE GRIFFIN: Just put Job Accommodation Network; it will pop up. They will spend all the time you need. They will send you the material and help you figure it out.

CONSTANCE BARKER: I want to applaud you for being aware of your obligation under the law and trying to take the steps that you need to take to make this accommodation. And with that said, we also have to recognize that there are some situations when we can't accommodate people. You do have an unusual situation. There are not a lot of places left where, thank goodness, where smoking is still around. That's the origin of our problem. Hopefully you will have this valuable employee, and you will be able to work out something. I think the work at home is a good thing, if that works out.

MICHELLE HAYES: That's a great suggestion, but –

CHRISTINE GRIFFIN: All the money and everything –

MICHELLE HAYES: With the auditing, etc. We really want to do the right thing by the employees, but at same time we have employees that feel they are penalized because of how we approach this situation. I appreciate your time. I just wanted to go on record from the employer's side.

CONSTANCE BARKER: It's not the intent of the ADA to put extra burden on the employers. Hopefully, you know, accommodations will work for everybody.

CHRISTINE GRIFFIN: Thank you. Thank you for coming.

KATHERINE HOOVER: Hi.

CHRISTINE GRIFFIN: How are you?

KATHERINE HOOVER: I was just brought up. Katherine Hoover. I have a few things more about more comments on – I can't hear -- it seems it would be helpful to pay attention to our Department of Labor because we are seeing a lot of discriminatory practices going on within that system which is not covered by ADA and state. You know, I can speak of what is happening locally, but I suspect we are not unique and people with disabilities are being shuffled off and being referred to rehab services instead of employment services, and individuals with a disability -- not having the accommodations -- so, we're having discrimination -- I can't hear her -- so, I'm not sure how that can be addressed but that seems a big issue in thinking about people with a disability.

CHRISTINE GRIFFIN: Tell me what happens. Before they even apply for a job?

KATHERINE HOOVER: Yeah, you come into the Department of Labor offices and if you have physical disability, oh, let me refer you to LRS.

CONSTANCE BARKER: You come in and apply for a job?

KATHERINE HOOVER: This is with your state Department of Labor. That's it. They are not getting far enough.

CHRISTINE M. GRIFFIN: It's not the fact that you can work despite your disability, they try to send you off to somewhere else?

KATHERINE HOOVER: Does it happen with every single person? No, but many. I get calls, some of the ones that are in the place where I work.

CHRISTINE GRIFFIN: You said the One Stop Center. One Stop Centers are funded by a variety of sources mostly out of Department of Labor. They've become sort of -- what used to be the old unemployment office is now more services and systems coordinated to be a part of the system rather than just unemployment. So they are now called One Stop Centers. You can go there and look for job. They should have the resources there to provide you with mechanisms to find jobs. And I heard this before. You're right it's not unique. A person with disability shows up. We can't help you, but Voc-Rehab, they push you out.

KATHERINE HOOVER: In my role working in Jefferson Parish, I often refer people to the One Stop, don't just let them shuffle you off, tell them "I need a job." So that's the issue. I find often, medical questions I see are being asked when somebody requests the reasonable accommodation. You put out some real good guidance for Title II codes on that. You know, that was, this is not a recent thing. It was a while back. But in saying if it's evident, you don't get tons and tons of medical information. Employers seem to have problems with the limits of what's applicable. Individuals often feel that they have no rights. So I think, it's important to make sure that this is –

CHRISTINE GRIFFIN: More education and a need -- in this particular situation -- it's also, this law specifically said, you know, Congress said you shouldn't have to go through analysis and, it's an opportunity to raise that again.

KATHERINE HOOVER: When you mentioned job accommodation, I think recommending that because in some guidance over time, you may find that very helpful. But also it would be helpful to reference the state DBTAC. You know, it's crazy. It may be technology that somebody needs because they don't understand and there could be assistance in funding that equipment.

CHRISTINE GRIFFIN: The DBTAC. Each state has a DBTAC which is the technical assistance center. That also coordinates technical assistance issues for people with disabilities.

KATHERINE HOOVER: In Louisiana, ours is called LATAN. L AT A N. We have offices in Baton Rouge and Shreveport. Funds were cut years and years ago. So the state kind of picked up some of it. But we are like everybody else.

CHRISTINE GRIFFIN: The disability technical center.

KATHERINE HOOVER: Ours is in Houston. Then you mentioned in the record that the law-- now I refer people to EEOC and they do a good job. But if somebody is working and in a discriminatory situation, okay? They will lose that job more than likely before anything else happens. Or, the lack of knowledge of what they need to do and say and know prior to filing a complaint. People don't know. So they miss those little steps. So they have a complaint. That's real tight there. So over here, you don't know about it. So I don't know this, so, um, I will never be able to file a complaint.

CHRISTINE GRIFFIN: There is an education piece around this.

KATHERINE HOOVER: People knowing.

CHRISTINE GRIFFIN: How you advocate for yourself before you have to file.

KATHERINE HOOVER: I'm pleased with what our parish is doing. We need to be upgraded and one of the things that I need to do is to educate the department that I work for. So I know that people don't know. They are fearful of when it's open. They don't know how to address that. But basically that's it. I have much concern about starting with the Department of Labor, One Stop Centers. We are seeing so much discrimination there. They are linked very closely with employers. So they are diverted from those, I don't know how that can be addressed. But -- these regulations ---

CHRISTINE GRIFFIN: Does anyone report that to the Department of Labor?

KATHERINE HOOVER: I talked to our Board. I have written letters. I have contacted individuals. There are such small staffs. There's just one person around. There's equipment there, but most of people at the site don't know how to use it, if it's there.

CHRISTINE GRIFFIN: I don't know, you don't know who at the Department of Labor. I know that we -- - the Secretary is very interested in disability-related issues. We will get you this information.

KISHA THOMAS: I'm Kisha Thomas, Project Coordinator from the Louisiana Workforce Commission.

CHRISTINE GRIFFIN: How much territory do you cover?

KISHA THOMAS: The state. I used to, I worked in the region here in New Orleans in Jefferson Parish.

CHRISTINE GRIFFIN: This has been going on for years.

KISHA THOMAS: It has. We have heard the complaints in the past. Individual officials have been informed of those. Those mistakes that were taken, and in the future if you, just let me know. …[inaudible]

KATHERINE HOOVER: I will get your card. But they have not been able to work.

JOHN WODATCH: Thank you, Katherine. I just wanted to recognize Katherine who has worked with us in the Department of Justice from New Orleans. She has been incredibly helpful in making this area of people with disabilities be known. We thank you for the work you've done.

KATHERINE HOOVER: If I might just say -- several members of the City Council are here, and I would like to recognize them. They do a great, energetic job for us. We are really appreciative. We are thrilled to have you in New Orleans as well. We have also seen the Department of Justice as our shepherd. We see you as our back-up. We are grateful for you. We don't see you as the enemy.

JOHN WODATCH: We appreciate that.

KATHERINE HOOVER: With that we thank you for treating us so kindly. Thank you for coming. We appreciate and value you working with the advocates and so many others.

CONSTANCE BARKER: Who is here? Would you introduce them?

KATHERINE HOOVER: Jeffery is here. And David is here. David Gallegos is the Chair of the Mayor's Advisory Council and I am the ADA Administrator. So we're all here. We are thrilled that you are here.

CHRISTINE GRIFFIN: Thank you for all your work.

PUBLIC AUDIENCE: [inaudible]

CHRISTINE GRIFFIN: I like that. It's great.

WALLACE BONAPARTE: Can everybody hear me? Good morning. My name is Wallace Bonaparte. I am the Director of Equal Employment Opportunity and Affirmative Compliance at the Medical University of South Carolina.

CHRISTINE GRIFFIN: You came a long way. Where in South Carolina are you located?

WALLACE BONAPARTE: We are in Charleston. Any time I get an opportunity to speak to anyone on the Commission or anyone from the Department of Justice, I do it. But today I wanted to come in because we really had a couple of specific questions and concerns. We have been caught in the middle and it's cost us some money. Our biggest concern is the question of how are the Amendments going to really address pre-employment physicals. One of the things that a part of our policy says is that employees, at least the applicants must have a pre-employment physical. During that physical, we find that sometimes restrictions either on lifting or latex allergies, especially in hospital settings, are imposed on an applicant. That applicant goes to the department, goes to be interviewed. The department manager says I can't use you in this department. That applicant does not have the same rights an employee does. They can't do the same functions as them, they are not hired. That means they file a charge. Okay? What we have been faced with a couple of times in the last year, we have been accused of perceiving that this person was disabled. Therefore, having made that perception, we have discriminated against someone who is covered by the ADA. These cases that I'm thinking of were under the ADA prior to the Amendments. Now that we have the Amendments Act, it's a much broader definition of disability. Can you give me some idea how those activities that we engage in will be affected by the law?

CHRISTINE GRIFFIN: I have to tell you it's the analysis that you go through when you offer a position and they have taken the physical and you find out whatever you find out, the analysis for you, can they do the functions with or without an accommodation. If you do that and you have every reason to believe that they can't and there is no way you can accommodate them, you make that decision and you document that, nothing prevents that person from filing that charge. Um, and you represent what your position is. That's how it all plays out. I don't see that these, the Amendments Act or anything else will change any of that.

CONSTANCE BARKER: We are a little bit hampered in what we can do. We are here for a limited purpose of receiving public input and complaints concerning the regulations that we have drafted. Because this is not a formal meeting, we have been advised by our counsel that we can't answer questions on the regulations. We are strictly here for input. So, we can engage in a dialogue that does not involve, you know, increases knowledge to us about the regulations, but I think you know, probably the best thing we can do –

CHRISTINE GRIFFIN: Keith, can you assist him in putting him in touch with your office, that can give him some, you know, I know what you want is some down to earth, in my situation, what can I do? We are trying to comply with the law, but, we need to know what we are doing wrong. Keith is the Director of the New Orleans office. That is different from your office, but he has the expertise. You have come all of this way, we want to help you with what we can. Anyone else who is here? Well Keith, Jeanne, and she is from our Office of Legal Counsel. And Jeanne is an attorney. She can certainly help you walk through your initial analysis determining whether or not you have gone through the thought process before you say no to an applicant. I think that is where employers mess up is that they would like comply to the law, but don't understand the process they need to go through. They just make a decision, sometimes they make that decision thinking that they are protecting that applicant when they are not. So, I think Jeanne and Keith may be able to help you out on that.

CHRISTINE GRIFFIN: Any other concerns that you have?

WALLACE BONAPARTE: No. That was the one.

CHRISTINE GRIFFIN: Are those cases pending right now with us?

WALLACE BONAPARTE: No, we have settled them. Therefore it has cost us some money. Whereas, I don't think there was fault on our side. Particularly when these kinds of cases get to the Department, the supervisors are so protective of their own positions; they are looking for the best person. They are liable to say, hey, I don't want to talk to you.

CHRISTINE GRIFFIN: Yeah, they say something that's putting the University in a bad position.

WALLACE BONAPARTE: Yeah. So we have made some changes in our policies to make sure that HR is getting involved before anyone is terminated, not terminated but, their offer of employment is rescinded and things like that. But, it's really bothersome to have individuals come back, well, you didn't offer me another job at the University. You know, we don't think we have to do that if you are an applicant. You applied for a specific job. You don't meet the requirements for that so we are rescinding the offer. But the accusation is that you thought we were disabled.

CONSTANCE BARKER: Jeanne, would you spend some time with that?

CHRISTINE GRIFFIN: Thank you for coming all this way.

[Epilepsy Foundation speaker]: I'm Dorothy. I hope that this gentleman has a good time in New Orleans while he is here. His city of Charleston is lovely. Perhaps we can meet over there next time. I just have a few comments that I want to make in regards to EEOC's efforts. I want to thank the EEOC for the development of the regulations. I represent the Epilepsy Foundation. Protections offered to people with disabilities are crucial for our population, for the people with epilepsy. There have been a lot of problems with people in particular that you hear about. This effort is one that corrects problems of the past. In that light, the Epilepsy Foundation will benefit just by application of those. That's what we hope for. It's not just for our people but anybody with disabilities. One of the comments we want to get on the record, I'm sure you have heard this in other cities, is that epilepsy and seizures do substantially limit major bodily functions. Period. That's in the neurological area. We feel that should be clearly spelled out. There are multiple seizure syndromes. It's not important to know which type it is. All epilepsy affects neurological functions. Period. The process being streamlined is necessary to assure the protection of that individual. We are sensitive to that person. People should only have to provide documentation of a disability or condition to be covered under the provisions of this law. In addition, it eliminates unnecessary analysis to the degrees of disability, which is going to help our group of people, we hope all people with disabilities. That's something that people have had to deal with. We are glad to see some efforts in that direction to eliminate some of that. We feel that you could correct "temporary and minor." For example, there is no such thing as a small seizure; they just don't exist. What happens to people, for example, people with a broken leg, broken femur, it's temporary but not a small event. We'd like some consideration of that. The regulation needs to make it clear that a broken bone may be temporary, but it's not minor. That's how we feel about seizures. The true test of all of this is just getting the people on the jobs and getting them to stay on the job. So, for us, can the person do the job, and is that undue hardship. Can the people do the job? Then they should be hired. That should be happening. It's not always happening in our area. I'm sure you hear it all over the nation that it's not happening. No one should ever need to show what's in the employer's mind regarding the disability. They should be able to bring claims on the employer's actions. For example, if they are personally affected or treated, that is fired, after the employer learns that they have epilepsy or cancer. They have been regarded as having a disability in that process. And again, on behalf of the Epilepsy Foundation of Louisiana and Epilepsy of America, more than 3 million people with epilepsy throughout this country, we want to thank you all and express the efforts here that this will open the doors.

CHRISTINE GRIFFIN: Thank you. Phil, from Chicago, told us the story about his son with epilepsy who is an engineer. He had a seizure during his interview for the job. They hired him anyway. Wasn't that great? Usually you hear the other stories.

[Epilepsy Foundation speaker]: We have a lot of them. Fortunately my husband is a Human Resources Director. It's very interesting because he has a master's degree as a social worker, as I am. So we have been tuned in on both sides of this. But he's very, you know, in tune with the processes and being aware of how not to step into that arena and discriminate.

CONSTANCE BARKER: I applaud the work of the Foundation. I had a legal secretary for years who had epilepsy. You know, it was just something, this was in the early years of the ADA. And you know, we just, we learned how to work with her. She did have seizures at work. She was a fantastic secretary.

[Epilepsy Foundation speaker]: One of the struggles with epilepsy is it could be intermittent. The degree of medicine that you need to control the condition sometimes could be prohibiting with work productivity. There's this fine balance of having enough medicine to balance the disorder versus not having enough medicine or not being responsive to the meds which about 30 percent of the people are not. Not having seizures that are not managed. So those folks have a very challenging time not only getting employment, but a challenging time in life in general. They have challenging time in getting Social Security also. That's just been a common theme for our people.

CHRISTINE GRIFFIN: Thank you. Thank you for coming. We appreciate it.

PUBLIC AUDIENCE: We are waiting for a phone call. It should be coming in.

CHRISTINE GRIFFIN: Anyone cold in here? It's a little chilly. All of women are saying yes, it's freezing in here.

CHRISTINE GRIFFIN: We will get back together. There's a lot of networking going on here which is great. The next person on the agenda is Susan Meyers from the Advocacy Center.

SUSAN MEYERS: Thank you. My name is Susan Meyers. I'm an attorney with the Advocacy Center. It's an agency here in Louisiana. And I'm here today to offer some oral comments that were submitted and written comments. But I did want to come out and first of all thank you for putting on these town hall meetings which is a wonderful opportunity for people to come and offer comments and to give the Advocacy Center's strong support for the regulations, the regulatory changes, the ADA Amendments Act and the legislative history attached to that Act. We think they will go a long way toward fulfilling the aims of the ADA and the Amendments Act. We are particularly pleased with the sentiment expressed in the regulatory language, and the focus in an ADA and EEOC inquiry should be on whether or not discrimination occurred rather than whether or not the individual is a person with a disability, which we think will go a long way to help individuals with disabilities in the workplace. We also are supportive of the list of impairments that will meet disability. The only change that we might suggest or qualification to our support is that we think it might help to have some clarifications put into the regulations or into the interpretive guidance as to what the difference is between an impairment that will consistently meet disability as opposed to those in the second part of that regulation or section 6 of that regulation, those impairments that are disabling for some and not for others. Some additional guidance is needed on how those two categories should be treated by employers and how they should be interpreted, whether or not for example in impairments that will consistently meet disability there should be a legal presumption for the people who have impairments in that list. We think whatever you can say would assist employers in that process to establish coverage. And I will just wrap up by thanking the EEOC for the opportunity to come and to meet in person and in writing and for also the EEOC's hard work in these regulations and these town halls across the country. Thank you very much.

CHRISTINE GRIFFIN: Thank you, Susan. Is there anything else? We don't have anyone else that actually wants to testify.

ED HAROLD: I will come up and talk. My name is Ed Harold. I will talk a minute on behalf small businesses. I'm not representing any client. I'm working routinely under the American Disabilities Act. And I have only had a brief chance to peruse the regulations and they appear consistent with what the Act was. I will point out that most employers are dealing with these issues even though somebody was not covered under the Disabilities Act, but of course that was never considered in terms of you have given somebody an accommodation. Because if you did that step and you were wrong and were told that you were wrong later, you have no defense. Most employers do work with and try to look at people that might have some concern about how they could do their jobs. Is there something we can do for them? I don't think it gets to that level in 95 percent of the cases that they are delving down into the disability, what the medical information says about this person doing this job. That's not the analysis that I'm seeing. But I think the particular problem that we see in the new Act, where it's really going to create some pitfalls, is in the definition. And the reason for that is how we go about handling these issues, what are we doing with them on a day-to-day basis. We need to know that somebody is going to do a good job and do a good job safely. We need to know the medical information. There's nothing in the guidance that says when an employer goes out and gets current medical information about an employee's capacity.

Whether it's a limping limitation or a back injury or driving limitation with epilepsy, you're not regarding somebody that is disabled. I think that's missing. We have to use something to assess whether the person can or cannot do his or her job. I have other people at the work site and people on the road that are not safe on the road that are not safe to drive and could kill somebody. I'm in big trouble. I need to know they are not going to hurt somebody else and they will not hurt themselves. We have to make this determination. What I hear from some are common sense questions. Employers are asking for medical information. Why are they making these decisions? They have a lot of different considerations, not just the ADA to take into account. There are other times when we go about things, there are different ways to go about these things. We should not be looking for doctors necessarily, not looking for doctors to advise us necessarily on these things. It's true the employees' doctors don't know the workplace, but they should know the employee and what they can and cannot do. That's the information that we need. That is an incredibly important part of the process. While I love my doctors, they are not always the most helpful part of the process. I could give you a whole host of things they don't like about the paperwork. So we are going to those doctors to get the information about the employee. We need to know what they can do and cannot do. We need to see if they can work. They need a determination. Some companies have more physically demanding jobs and often do pre-employment physicals. They look for something. They have their own doctors to do it. What I'm hearing in the way that the regulation is written, but the absence of consideration for this, that these attempts by employers will regard them as disabled persons. What that gets down to is this theoretical. I get a note from the employee's doctor. He is perfectly fine. He is released to return to work. He has no limitations. My own doctor says he has plantar in the foot. You are putting him in the job that he stands on his feet 8 hours a day. If you do that, he will hurt himself worse. You do that, and he will fill out worker's comp. One doctor says he's fine. My doctor says we have disability insurance for the employees. You can rely on your doctor. Go back to the disability, but, other times, they don't have that. They have not taken it for whatever reason. You are faced with competing doctors. There is no provision in the ADA and no provisions in the regulation. Who wins? Which doctor is -- you get the third opinion. There is nothing in the ADA to address that. In advising my client, I'm sitting there, I'm going to tell them to go with their own doctor. Their doctor has worked with them. He understands how the job is done. The employers' doctor was not fully informed about that. I'm also going to tell them to call back the employee's doctor to explain the job to them. But at the end of the day it will come down to, do I listen to my doctor or the employee's doctor, listen to your own doctor. You're the one that is on the hook for the liability that the employee is hurting himself, breaks some bones, whatever happens. If he injuries himself further, you have worker's comp for consideration. That's a very difficult place we are going into right now. I think it will come up more and more. We are expanding the disabled, but I'm concerned greatly expanded disabled definition. It used to be you could make a mistake in your assessment of somebody's capacity. You make any mistake under those regulations about somebody's actual physical disabilities and you are regarding them as disabled. That's an increase in potential for liability. And I think that what the regulation is missing for what I think perhaps could be in there is more guidance on the use of medical information, on the gathering of medical information. I don't think you, as a Commission, say who wins and who loses. It's not the law, but certainly something can be said that when an employer relies on current medical information related to employers then they are not regarding that the employee is disabled. They are looking factually at his physical condition. I say, I don't think you can do this, that's regarding somebody as disabled. That's where the law is supposed to go – to prevent assumptions about people. Where it's facial -- there's the assumptions that are stamped out. But we have to make a decision for safety concerns to figure out how it is that I will get this person to do this job. I have to rely on medical evidence.

CONSTANCE BARKER: Let me suggest, first of all, as I think the flip side of this, even though the definition you know becomes the standard, the flip side is there is no reasonable accommodation with that. A lot of the cases that you are concerned about have dealt with liability because you have failed to accommodate somebody that you have regarded as disabled, and I think that is cleared up now. And second, if you rely on testimony for the medical and a regarded as claim what you do have, if you do rely on medical testimony, that's a defense in regard to this.

ED HAROLD: But you don't necessarily win. I understand what you're saying. I'm glad they cleared up the accommodation issue. I think it's a failure to hire issue. I'm not going to hire you because I believe these limitations prevent you from performing the job safely. His doctor says he does not have any limitations. So, you refuse, you have no basis to refuse to hire him. Yes, I do, I have a doctor over here. But at the end of the day, I am faced with -- there's always the potential that I can lose in court.

CHRISTINE GRIFFIN: There always was.

ED HAROLD: But the thing is in the past, it was much easier to defend a regarded as disabled claim. Well, all we thought about was X, was a very small thing, it was only in particular to this job. That's gone.

CONSTANCE BARKER: They didn't meet the definition.

ED HAROLD: What you felt about that person or incorrectly assumed about that person would not rise to the disability. In my perception –

CONSTANCE BARKER: You're talking about the statue. That's in the statue. The broadened definition for regarded as is in the statue.

ED HAROLD: What I'm saying is that with the regarded as disabled, there should be something for employers in the regulations, that it's okay to follow medical information.

CHRISTINE GRIFFIN: You don't only rely on medical information, you take that medical information, and you then say, can this be accommodated? Can we request this person do the job with or without an accommodation? You look at that analysis. You make a decision. You make the best decision you can. That has not changed.

CONSTANCE BARKER: I understand your frustration, but I think that Chris is right, regardless of the broadened definition that Congress gave us, the analysis has always been there.

CHRISTINE GRIFFIN: You do the best job you can documenting why you think this person cannot do this job if that's what your assessment is.

ED HAROLD: It's a tension between -- but there's a second thing, I understand –

CONSTANCE BARKER: There are tensions in the statute, but that's always –

ED HAROLD: The second thing I want to talk about and I don't see it in the regulations, but it comes up constantly. It will come up more now with the expansion of the definition of disability, that is the attendance question. Whether or not and to what extent attendance policies and leaves of absences are reasonable accommodations. I think we saw an example of it today with an earlier speaker. When somebody cannot come and do the job, they are not there on a regular basis. They have exhausted their leave, at what point can you say, we're sorry, we have work to get done, you're not capable of coming to work enough to do it. That's going to come up, because in some cases, that's where the disability is not necessarily related to the capacity to actually be able to perform the job when you're there. But it's the disability internal, the Crohn's disease, the one that is pretty much intestinal circumstances where people have to stay at home a lot that will crop up. I didn't see much in the revisions to regulations addressing attendance as a reasonable accommodation. The case law –

CHRISTINE GRIFFIN: Again, that has not changed either. Nothing about reasonable accommodations have changed. There never will be a bright line about the attendance and flexibilities. That's based on employers' capacity to actually deal with that. What is an undue burden. There's no way to actually, as an agency, say this is the bright line on that. There just isn't.

ED HAROLD: I understand that. I understand reasonable accommodations have not changed but what are we doing for the 63 million people when they passed the Act. 63 million people have –

CHRISTINE GRIFFIN: Whatever the number is, when you're expanding, that definition, what you're doing is you're again taking all of those other concepts that we have worked with for years. You will take these concepts and work with them in a lot more situations. Somebody breaks their leg for 10 months; now it's a disability even though it's completely healed 100 percent. That's a new thing to deal with. It used to be healed 100 percent, 4 months, 10 months, it was a temporary condition. That was pretty well settled. That's not settled now. I think there is room hereof to look at how this expanded definition may play on some other aspects of regulations that may be looked at in light of the greater scope of the ADA.

CONSTANCE BARKER: I appreciate your comments. I think this is a lot of what we're going to be facing with the ADA regulations. I think we will be needing to develop guidances for filling in between the cracks. I'm looking at Jeanne because she is the one that will be drafting. In real life situations we don't want to have an Act or regulations that the average small business person can't understand. And it's hard to write regulations that cover all of the legal bases that the average person can understand. Well, I think it's going to be real important with guidances to fill in and helping employers and employees to understand all of the little stuff that may not be covered.

CHRISTINE GRIFFIN: There is something for small businesses, is that right?

ED HAROLD: Yes.

CHRISTINE GRIFFIN: That's already on the screen and in the works.

JOHN WODATCH: And I say if you're going to provide written comments to the Department, what's very helpful to us is hearing examples from your experience without identifying the company, the employer or whatever, there are issues that should be addressed on the Crohn's disease issue, and intestinal disease as they affect not only attendance, but job restructuring and additional hours. The more we hear about individual circumstances, the more helpful it is.

CHRISTINE GRIFFIN: We have done a lot of disability guidance for that specific reason.

CONSTANCE BARKER: But you are absolutely right that most employers want to understand their basic obligations and with the Amendments Act they have to rethink and expand how they think about disability to be more open to other things that were not regularly identifiable as disabilities in the past. So that's going to present some new challenges.

ED HAROLD: All right. Thank you.

CHRISTINE GRIFFIN: Thank you.

CHRISTINE GRIFFIN: Is there anybody else?

MACK MARSH: I'm Mack Marsh. I'm the Director of Medicaid Infrastructure Grants. A lot of things that I hear about in my work are some of the same issues that I have heard here today. It all revolves around education, and letting them know what is available to them. Louisiana is developing technical centers throughout the state to offer not just training and information to people with disabilities but also to employers, to give employers an opportunity to ask their questions to hire people with a disability. I would encourage the EEOC to maybe aid Louisiana and other states in supporting these types of education centers so that employers are not afraid of the ADA. As a former employer for 13 years in a small business I was scared to death if somebody said ADA. So I hid it. And I think a lot of small businesses do that. They shrink back. They look at ways to hire people without advertising for people and that sort of thing. They have to take that fear out of them. The ADA is a regulatory law. It's an opportunity for us to get people to do things that they should be doing, but it also should be an opportunity to provide guidance to the people to give them information to make their businesses reflective of their communities. So I would encourage the EEOC to be involved with the other entities that are out there doing this type of educational outreach. I think it would help the businesses in the long run and the communities in the long run.

CHRISTINE GRIFFIN: Where are the grants in this funding?

MACK MARSH: We are almost done. We will be done 2011. But the things we are building are sustainable. That's what we are looking at. Our technical centers will be funding and –

CHRISTINE GRIFFIN: Medicaid and infrastructure grants are focused on a couple of things. In different states millions and millions and millions of dollars. Some focus on more community living which leads to other things that in the community –

MACK MARSH: They are developed as infra-structure for employment. They originally were built around to provide health care for disabilities and Medicaid buy-ins very early on. Since then, all of them have moved toward really employment-related infrastructure. There are 43 states that have these. All of them are in the final stages, but this is really a good time for the EEOC to look at some of those educational opportunities, some of the opportunities to let people know that here's where you can go for information. Almost all of the states have this assistance.

CONSTANCE BARKER: You bring up a very good point about, what I wish we had is—

MACK MARSH: Let me clarify it, it's not that they are afraid of hiring a person with a disability. I don't care. I just want to know if I'm getting the right person for the job. I hire people with disabilities. I was not afraid of hiring an individual with a disability. I was afraid of you guys. I was afraid of the ADA.

CONSTANCE BARKER: What I wish we had was sort of an Ombudsman, a concept where the employer could, a smaller employer could afford, can go there and say this is the situation that we have, just tell me if I need to accommodate this person or not. If the EEOC tells them how to, so they get help without having to go to the lawyer who may not know and give them bad advice.

CHRISTINE GRIFFIN: We can do that, and do it to some extent. Also the organization that we mentioned before JAN -- nobody is saying that violates the law or not. Somebody in JAN is brainstorming how to actually accommodate somebody. We will ask.

MACK MARSH: We will ask JAN to have a presence.

CHRISTINE GRIFFIN: They do -- for your attendance issue -- they do work with people on trying to figure those types of things out. They are more difficult than can you build a ramp or not. Is there a best practice or is anything going to come out from [inaudible]….

MACK MARSH: We have, there will be a second – DOJ is looking at this and we're doing some joint things together. We think there is second [inaudible]... A lot of it is waiting for next year's reauthorization. We don't think so, but we think there's a second –

CHRISTINE GRIFFIN: Thanks. Thanks a lot…. [inaudible] Would you state your name and who you represent?

VANESSA KINNEY: I'm representing everyone that matters to me and an organization located in Dallas, Texas. I'm on the phone speaking with …[inaudible]…. I look forward to working with you and I would like for you to know that as the President of America said, we need change. I understand the EEOC, the ADA and DOJ, and our policy and procedures. Some of them must be changed. In the words of our president Obama, all Americans, all people, need to obtain equal employment all over the world. I thank you for giving me this moment to speak and looking forward to meeting each one of you personally.

CHRISTINE GRIFFIN: Thank you. Anyone else that wants to talk about the - nope, all right. I guess we will take a little bit of a break. Wait around just a little bit and see if anyone else shows up. We will probably adjourn for the day. Then I want to thank everyone for coming and we have heard some very interesting things here. It will help us to write regulations. We look forward to dialoguing with you in the future about how we go forward. We are right at the beginning phase of writing the policy and going around with these regulations. And we look forward to working with you all in the future. Thank you.

PUBLIC AUDIENCE: Applause --