EEOC Overview and the Americans with Disabilities Act - PowerPoint Presentation

Slide1

EEOC Overview and the Americans with Disabilities Act

Marcel D. BaldwinOutreach & Training ManagerSlide2

The

COMMISSION

CHAIR

Jenny Yang

Commissioner Commissioner Commissioner Commissioner

Charlotte Burrows Constance Barker Victoria Lipnic Chai Feldblum

General Counsel

P. David LopezSlide3

Our Vision-

Justice and Equality in the Workplace

Our Mission-

Stop and Remedy Unlawful

Employment Discrimination Slide4

EEOC Overview

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's

Race

Color

Religion

Sex (including pregnancy, gender identity, sexual harassment)

National origin

Age (40 or older)

Disability

Genetic informationIt is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit (Retaliation).Slide5

Illegal to fire, demote, harass, or otherwise “retaliate” because an employee/applicant filed a charge, complained to their employer about discrimination, or participated in an employment discrimination proceeding (such as an investigation or lawsuit).

Retaliation Prohibited By All StatutesSlide6

Interference with ADA Rights

ADA prohibits not only retaliation but also “interference” with statutory rightsInterference

is broader than

retaliation.

It is unlawful

to coerce, intimidate, threaten, or otherwise interfere with an individual's exercise of ADA rights, or with an individual

assisting another to exercise ADA rights. Some

employer acts may be both retaliation and interference, or may overlap with unlawful denial of accommodation or other ADA claims. Slide7

Examples of Interference

coercing individual to relinquish or forgo accommodation to which he is

otherwise

entitled

intimidating

applicant from requesting accommodation for application process by indicating

such a request will result in not being hiredthreatening employee

with termination or other adverse treatment if he does not “voluntarily” submit to a medical

exam or inquiry that is otherwise not allowed under ADA

subjecting employee to adverse treatment because he assisted a coworker in requesting reasonable accommodation.Slide8

NATIONAL P

RIORITIESEliminating barriers in recruitment & hiring

Protecting immigrant, migrant, & vulnerable workers

Addressing emerging & developing employment discrimination issues

Enforcing equal pay laws

Preserving access to the legal system

Preventing harassment through systemic enforcement & targeted outreachSlide9

Key EEOC Statutes

Equal Pay Act (EPA) of 1963, as amended;

Difference in pay based on gender

Title VII of the Civil Rights Act

(TVII) of 1964,as amended;

Race, color, religion, sex (gender) – sexual harassment , and

national origin

Age Discrimination in Employment Act

(ADEA) of 1967, as

amended;

Applicants and employees 40 years of age or older

Americans with Disabilities Act (ADA) of 1990, as amended;

Persons with disabilities, record of a disability, regarded as having

a disability

Genetic Information Nondiscrimination Act of 2008;Use of family genetic information unlawful in employment decisionsSlide10

Hire/Fire

WagesPromotion/DemotionHarassment

Different Terms and Conditions: i.e. Job Assignments, Benefits, Leave, Training

Failure to Accommodate for Disability and Religion

Discrimination Can Occur in the Following Scenarios:Slide11

Individuals are treated differently because of

their membership in a protected class: Less qualified non-disabled candidate selected over highly qualified disabled candidate

Female requests training and is denied, male requests training and training request is granted

Disabled employee terminated for sleeping on the job, non-disabled employee counseled for sleeping on the job

Disparate TreatmentSlide12

Facially neutral policy/practice

disproportionately impacts members of protected group: Minimum height/weight requirements

“No beards” policy

Background checks – e.g., conviction records, credit checks

Maximum leave policies

Adverse ImpactSlide13

Title I of the

Americans with Disabilities Act (ADA)Slide14

Covers employers with 15 or more employees. Prohibits employment discrimination against individuals with disabilities. 

Requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship").Slide15

An individual with a disability is a person who:

Has a physical or mental impairment that substantially limits one or more major life activities;Has a record of such an impairment; orIs regarded as having such an impairment.Slide16

seeing, hearing

breathingeating, sleeping, caring for yourself

walking, standing, sitting, reaching, lifting, bending

performing manual tasks

learning, reading, concentrating, thinking

speaking, communicating,

interacting with others, and working

Examples of Major Life ActivitiesSlide17

prohibits disability discrimination

limits medical examination and inquiries

requires reasonable accommodations for people with disabilities.

How does the ADA apply to employment?Slide18

The ADA

prohibits discrimination in ALL aspects of employment – for example, hiring, pay, performance reviews, promotions

The ADA

prohibits retaliation

against an employee for exercising rights under the ADA

The ADA prohibits discrimination based on

“association”

with someone with a disability – like a spouse

Discrimination ProhibitedSlide19

The ADA also

limits the medical information

an employer can

obtain from applicants and

employees

Limits on Medical Exams

and QuestionsSlide20

Pre-Offer: No questions or exams allowed

Post Offer (Conditional Offer, Pending a Medical Exam): exams and inquiries allowed if required of all applicants for that kind of job

During Employment:

No questions or exams allowed EXCEPT when job-related and consistent with business necessity

Limits on Medical Exams and QuestionsSlide21

The law requires that employers keep all medical records and information confidential and in separate medical files

.

Confidentiality of Medical InformationSlide22

ADA Definition of “Disability”

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a

disability

as defined by the law.Slide23

What does “qualified” mean?

An individual must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses

An individual must be able to perform the

essential functions

of the job with or without reasonable accommodation.Slide24

Essential Functions

Essential functions are the fundamental job duties that an individual must be able to perform on their own or with the help of a reasonable accommodation.An employer cannot refuse to hire an applicant because their disability prevents them from performing duties that are not essential to the job.Slide25

Essential Functions

A job function may be considered essential for any of several reasons, including:the position exists to perform that function;

limited number of employees available; and/or

the function may be highly specialized and the individual is/was hired for his/her expertise.

29 C.F.R. § 1630.2(n);

EEOC Enforcement Guidance on

Reasonable Accommodation and Undue Hardship.Slide26

The ADA requires employers to make

adjustments, or reasonable

accommodations

, to allow persons with

disabilities to perform a job, unless

doing so would cause the employer

significant difficulty or expense.

Reasonable Accommodation Slide27

A reasonable accommodation is any

change in the work environment (or in the way things are usually done) that helps a person with a disability apply

for a job, perform the duties of a job,

or enjoy the benefits of employment.

Reasonable AccommodationSlide28

modified keyboard for people with hand injuries or amputations

extra time to complete a test if you have difficulty concentrating or have a learning disability or traumatic brain injury (TBI)

modified

or part-time work schedule

service animals

re-arrangement of office space

What kinds of accommodations can help me do my job?Slide29

You just have to say that you need an

adjustment or change in the application process or at work for a reason related to a medical condition. You do not have to mention the ADA or use the term “reasonable accommodation.” “No magic words.”

You can ask in writing or in person.

The request can be made by a family member, rehab counselor, health professional, or other person assisting you.

How do I ask for a reasonable accommodation?Slide30

30

Reasonable Accommodation:What Is It NOT?

Eliminating essential functions of the job

Lowering productions standards

Providing personal items (items that an employee uses on and/or

off

the job)

Indefinite leaveAllowing direct threatUndue hardshipSlide31

No.

The ADA does not require preference in hiring, but:

Some employers voluntarily preference veterans with disabilities.

Veterans preference laws require preference for veterans with and without disabilities seeking employment with the federal government.

Federal contractors may also be subject to affirmative action requirements for veterans with disabilities.

Does the ADA require employers to give me preference in hiring?Slide32

Testing Our KnowledgeSlide33

33

The chance of having a disability for those who reach the age of 65:12%

23%

36%

82%Slide34

34

AnswerC. 36%

Kraus,

Lewis

(2015

), 2015

Disability Statistics Annual Report (http://www.disabilitycompendium.org/docs/default-source/2015-compendium/annualreport_2015_final.pdf

) Durham, NH: University of New Hampshire.Slide35

When can an employer require a medical exam or medical information?Slide36

After a conditional offer of employment

When employee requests a reasonable accommodation

When the employer reasonably believes the employee might not be able to safely perform the job for medical reasons.

AnswerSlide37

Can an employer withdraw an employment offer based on the results of my post-offer medical exam?Slide38

Yes, but only if:

You cannot do the essential functions of the job with or without reasonable accommodation, or

You would pose a

direct threat

-- or substantial risk of harm -- in the workplace even with a reasonable accommodation.

AnswerSlide39

I was hurt on the job. Can my employer make me take a medical exam?Slide40

It depends.

The employer can ask you to havea fitness for duty exam to ensure your injurydoesn’t prevent you from doing your job

safely.

But

the employer may not ask questions

unrelated to the injury. For example, the

fitness for duty exam should not include questions about mental health or prior

illnesses.

AnswerSlide41

During a job interview, may an employer ask questions about my injury?

Slide42

No

. It is illegal for an employer to ask anything about whether you may have a disability, or if your disability is visible, any details about it, other than to ask whether you might need a reasonable accommodation if the disability is obvious.

AnswerSlide43

Should I mention my disability during

the job application process?Slide44

Whether and when to disclose

information about a disability is a personal decision. But remember that you have no obligation to

disclose a disability unless and

until you need a reasonable

accommodation at work, and doing

so could put you at risk

for discrimination.

AnswerSlide45

If I don’t tell my employer about my disability during the application process, can I still ask for a reasonable accommodation after I am hired?Slide46

Yes.

You do not waive your right to request a reasonable accommodation by not disclosing your disability up front. At any time during the

application process or during employment, you

can ask for a reasonable accommodation if

needed.

AnswerSlide47

5%

17%20%

40%

Roughly the same percentage as non-disabled individuals

The proportion of the population of people with disabilities

who are employed

is estimated to be:Slide48

17%

ANSWER:

. . .

as compared to 63% for people without disabilities.

Source:

Sharon Lewis, Commissioner of the Administration on Developmental Disabilities, U.S. Department of Health And Human Services, at EEOC hearing held March 15, 2011Slide49

Mental & Physical Disabilities

TrueFalse

The unemployment rate between people with psychiatric and physical disabilities tends to be the same.Slide50

False

ANSWER:

“The unemployment rate for individuals with psychiatric disabilities is not only low compared to the general population, it is also half the employment rate for people with other sorts of disabilities.”

Source:

Psychologist Dr. Gary R. Bond of the Dartmouth Psychiatric Research Center of Dartmouth Medical School at EEOC hearing held March 15, 2011Slide51

Getting the Foot in the Door

2x as many interviewsAbout the same number of interviews

5x as many interviews

Fewer interviews

10x as many interviews

For a person with a disability to get a job offer, they typically have needed:

. . . as an equally qualified applicant who does not have a disabilitySlide52

Getting the Foot in the Door

10 times as many interviews

While it is impossible to identify all the reasons why so many more interviews appear to be necessary, we do know the number of interviews per job offer goes down when the interviewer has gone through attitudinal training.

ANSWER:

Source:

Windmills Diversity Training/Copyright 2006 by the Friends of Californians with DisabilitiesSlide53

You have the right not to face employment discrimination because of your disability.

You have the right to a reasonable accommodation to help you apply for or do a job.

You have the right not to be asked medical questions or be subjected to medical exams, except in limited circumstances.

Know your rights, and be your own best advocate!

SummarySlide54

TIME LIMITS!300 days from the date of harm in most

cases –Some cases only 180 days (300 days in Ohio & Pennsylvania)Slide55

R/A Resources

EEOC’s Reasonable Accommodation & Undue Hardship Under the ADA http://www.eeoc.gov/policy/docs/accommodation.htmlJAN’s Employers’ Practical Guide to RA http://askjan.org/Erguide/

JAN’s Sample RA Form for Employers

http://askjan.org/media/raemployersform.htm

55Slide56

Toll Free: 1-800-669-4000 Tel.

1-800-669-6820 TTY

At any time, obtain answers to frequently asked questions using our automated phone system

Live customer service representatives Monday – Friday, 8:00 a.m. – 9:00 p.m., Eastern Time

Free and Confidential Services

Assistance in 151 languages

E-mail: info@eeoc.gov

Web: www.eeoc.govEEOC Contact InformationSlide57

EEOC Seminar Cleveland, OH

WHAT: EEOC Technical Assistance Program Seminar for Employers

WHEN

:

Tuesday, November 15,

2016

WHERE: Holiday Inn-Cleveland South, Independence, Ohio 44131

REGISTER online & obtain more info at:

Full Agenda with Brochure and Registration Form can be viewed at:

http://www.eeotraining.eeoc.gov/view.aspx?I=923302

http://eeotraining.eeoc.gov/images/content/2016ClevelandTAPS.pdf