|
|
When and How to File a Job Discrimination ADA ComplaintBy: Nan Hawthorne
Summary:
Do you believe an employer has discriminated against you and violated the Title I provisions of the Americans with Disabilities Act (ADA)? Here is what you need to do to fight for your rights. 
Knowing Whether You Have Been Discriminated Against
What You Need in Hand to File a Complaint Where to Turn and What to Do Related Links Related Content Knowing Whether You Have Been Discriminated Against Most people have an intuitive sense of fair play. They know when they have not been treated fairly. Even a baby notices when another baby is getting more than she is. When you take this intuition to a higher level, you get the concept of equal civil rights. As representative democracies have developed and an increasingly number of groups have been included in "universal suffrage" (voting rights), the belief in the moral value of fair play and equal protection under the law has become part of the legal, legislative, political and social scene in many cases. However, a guarantee of rights is only as real as its enforcement, and enforcement is only possible when those denied their rights speak up and take action. The ADA is one of those pieces of legislation that require complaints to drive its enforcement. It requires civil, not criminal, enforcement. No police officer will ever show up to arrest a non-compliant employer. Violators have to be sued by citizens -- the theory being that fear of litigation will inspire compliance. "The ADA is not an end in itself," John Woodward MSW writes in his essay, "How to File an ADA Complaint -- and When," in the Western New York Disabilities Forum. "It is a tool -- a set of rights and procedures for enforcing those rights. Unless citizens with disabilities take up the struggle to enforce those rights, we will continue to be excluded from our communities. In practical terms, this means we must be willing to confront illegal barriers and practices wherever we find them, even if we have to file complaints and take violators to court." Woodward goes on to lament, "Enforcement has always been the weak link in the civil rights movement for people with disabilities. ....We have had too many good laws signed which then lost their effectiveness because citizens with disabilities were reluctant to demand their rights and file complaints when those rights were violated. The responsibility for seeing to it that the ADA improves your life rests with you." There are two catches. One is that sensing a lack of fair play does not mean it has occurred. Just as a baby senses unfair treatment, she also may respond purely selfishly when no unfairness took place. As adults, we may blame others for what is our own fault or no one's fault. That is, you may feel discriminated against when you really have not been. For example, the young woman I quoted in Bad Attitudes, Bad Impact: An Editorial was convinced that she was forced into applying only for entry-level positions "because I am blind and female." The truth more likely is that most people start out in those positions. That is, as my husband often observes, why they are called "entry-level." Woodward points out the second catch: "It is not enough to perceive a barrier or feel that you have been discriminated against. Some barriers and discrimination, unfortunately, are not violations." That is, just because an employer doesn't treat you fairly does not necessarily mean he has violated the ADA. Your first step in deciding when to file a complaint of employment discrimination under the ADA is to get to know very well the ADA requirements -- in particular Title I, which covers employment. Woodward recommends obtaining copies of all five regulation books, which may be obtained in alternate formats from the Office of Equal Employment Opportunity by calling (202) 663-4398 or (202) 663-4395 (voice) or (202) 663-4399 (TDD). The alternate formats available are: large print, braille, electronic file on computer disk, and audio-tape. There are a number of web sites with copies of the actual language of the ADA and many others with "plain language" versions of it. Many of these sites have FAQs and other tools for understanding the ADA as well. An excellent place to start is the Equal Employment Opportunities Commission (EEOC) because it is the enforcement agency for ADA employment requirements. Be sure you also look into how court rulings in ADA cases have impacted how the ADA is interpreted and applied. The understanding of what the ADA means will continue to evolve and challenge everyone for decades. eSight Careers Network has two articles, written for employers, about this subject. They summarize both lower court and Supreme court decisions. See Related Content for links to these articles. The ADA will continue to be interpreted on a situation-by-situation basis, so, if you have questions about your situation. you will want to contact your city, county or state human rights commission and/or the EEOC for the most authoritative and current information. Also remember that there is more to determining whether the ADA has been violated than whether an act of discrimination has occurred -- such as refusal to allow you to apply for a position, refusing to provide testing materials in an accessible form, and so forth. The ADA only requires, for instance, that an employer provide print materials in an alternate format accessible to you -- not to provide it in a format of your choice. Further, you need to determine if the employer is covered by the ADA and whether the accommodation you seek is readily achievable and not an undue hardship. As Woodward explains, "You have to make sure that the facility with the barrier is a 'covered entity' subject to the ADA regulations. Many religious organizations, for example, are not covered entities. You also have to determine whether removal of the barrier is 'readily achievable' without an 'undue hardship.' The ADA does not require covered entities to remove barriers, if the removal is not readily achievable or if the cost of removal would be an undue hardship. There are no set rules to determine if removing a given barrier is readily achievable." Hiring decisions are among the most difficult situations in which to prove lack of compliance. Most employers not covered by quota, union or other similar limitations are free to hire whomever they deem to be the best candidate for the job. The only thing they cannot do in regards to the ADA is refuse to consider you equally. That is, you may not be denied any tool (interview, testing etc.) provided to non-disabled candidates. The employer may not turn you down purely because you are disabled, unless he has solid grounds for deciding your disability would disqualify you. You really do not want me, for example, driving your kids' school bus -- I promise you! Reina Jackson, ADA coordinator for the City of Seattle, points out that the best way to determine if your employer is in compliance with provisions of the ADA is to call your local enforcement agency. You can also call the U.S. Department of Labor Office of Disability Employment Policy's Job Accommodations Network (JAN) for answers to questions you might have. Its telephone number is 1-800-526-7234 (V/TTY). Jackson also reminds us that state and local laws may provide broader protections than the ADA, such as the case in Washington. So whether or not you intend to file a complaint under the ADA, contact your civil or human rights commissions to find out where the situation may stand on a local or state level. The services are free, Jackson points out, and you might find it prudent to co-file your case with two or more authorities. Once you have determined that the employer is, in fact, in violation of ADA's Title I requirements (or the local or state regulations concerning disability rights), it is up to you to proceed with a complaint. You can receive help from Independent Living programs or other public entities, but ultimately this is your fight. No one will fight it for you. It is worth persevering if only to educate the community about the rights of qualified disabled people to equal access to gainful, rewarding careers in competitive jobs. Heed John Woodward's words: "Unless citizens with disabilities take up the struggle to enforce those rights, we will continue to be excluded from our communities." What would filing a complaint accomplish? Depending on your specific circumstances, a successful complaint might result in one or more of the following resolutions:
What You Need in Hand to File a Complaint Armed with significant knowledge of the ADA and a sound conclusion that an employer is failing to comply, you may proceed with a complaint. Start with the employer. Make sure you can articulate what he has done or not done that has put him in noncompliance of the ADA. Assume nothing about the employer's understanding or even awareness of the law in this regard. Don't hesitate to tell him that there even is such a law and that he is required to comply with it. Take a "win-win" approach. Instead of flying at him, enlist the employer's cooperation in resolving the problem. Tell him exactly what he can do to rectify the situation, and that does not mean "Hire me." Give him clear, practical advice about how he can make the application process or any other aspect of the job accessible. Offer to help. If he says his company has a grievance protocol, cooperate with it. And give him a reasonable amount of time to put into effect the necessary changes. Former head of the Equal Employment Opportunity Commission (EEOC), Paul Steven Miller, speaking at a Washington State Business Leaders breakfast in Seattle in 2001, stressed the need to not let the matter stand there. "Education is not enough," he told me during a conversation. "Time after time, it has been made clear that enforcement is absolutely required to bring about equal rights." If you fail in your attempts to resolve the situation collaboratively, you will need to decide whether to file a formal complaint. To take that action, you must be prepared to make your case in such a way that the authorities have the tools to pursue the complaint. Seattle's Jackson stressed the time limits that exist in various jurisdictions for filing a complaint -- limits that can be from four to six months. "You should pretty much get started as soon as the discrimination happens," she suggests. You can assist the authority with assessing and pursuing your complaint by having the following documentation in hand before you call:
With these tools in hand, contact any or all of the agencies with enforcement authority and state that you wish to file a disability employment discrimination complaint. Go to Top of Page Where to Turn and What to Do You have several options for where to turn for help in filing a complaint against an employer. If you are already employed and are citing discrimination on the job -- in promotions, in benefits, for failure to provide accommodations, and so forth -- your company may have an enforcement department of its own. Consult your employee handbooks and contact your human resources department to find out to whom you should speak. Be sure to consult any employment contract or collective bargaining agreement under which you may be covered to see if you have agreed to a particular procedure. You may, for instance, be required to exhaust your company's or union's grievance procedure before going outside to file a discrimination suit. However, the Supreme Court has ruled that you cannot be asked or forced to agree not to file such a complaint once you have completed that grievance process. You cannot sign away your legal rights. You, of course, have the option of consulting an attorney. If you choose this route, you can contact your local American Bar Association, which will refer you to an attorney with a specialty in employment and/or disabilities discrimination law. Many attorneys will provide you with a free initial consultation. You may also be able to consult a non-profit organization, such as your state's protection and advocacy organization for people with disabilities; ask the attorney referral service about this. The U.S. Department of Justice (DOJ) recommends seeking mediation before taking formal steps to file a complaint (see Related Links.) "Mediation is a process that brings parties together to resolve their differences through discussion and problem-solving," says the DOJ. "The goal is to achieve 'win-win' solutions. It is not a compromise. The mediator is a 'neutral' party who helps facilitate the dialogue, but is not the final decision-maker, arbitrator, or judge." Trying mediation may let you develop your own solutions, may be faster than filing a complaint in resolving your dispute, and may be less expensive than going to court. It can also mend your relationship with the other parties. But it still allows you to go to court, if you cannot reach a mutually acceptable solution. Most communities have a dispute resolution organization. Or you can contact the American Bar Association for a referral. You should know, however, that, while probably cheaper than going to court, seeking mediation is not free. You may be able to file your disabilities employment discrimination complaint with your city, county, state and federal equal or human rights commissions. As Seattle's Jackson notes, you will want to do a little research to find out which local and state laws cover employment discrimination issues and, in particular, those which are related to disabilities. "If the discrimination occurred anywhere in Washington state," Jackson explains, "you can contact the Washington State Human Rights Commission or the local jurisdiction in which the discrimination occurred (for example, the Seattle city limits would be the Seattle Office for Civil Rights; unincorporated King County would be King County Office for Civil Rights; and the Tacoma city limits would be the Tacoma Human Rights and Human Services Department). You have the EEOC office as well. And not everyone knows that filing with all of these commissions is free. There is no charge." To find out what commissions you may contact, call your local library, your city mayor's office, the American Bar Association, or the office of any one of your elected officials. You can also search the Web. To contact the EEOC, call 1-800-669-3362 (voice) or 1-800-669-3302 (TDD). The EEOC can also answer your questions about local and state regulations. Complaints to the EEOC must be filed within 180 days of the incident of discrimination. What happens next? "The EEOC will investigate the charge to determine whether there is probable cause to believe discrimination has occurred, and, if there is, to conciliate the dispute," states JAN (see Related Links). If the dispute is not resolved by the EEOC, it will issue a "Right to Sue" letter to the person filing the charge of discrimination -- at which time you may pursue the case in the courts. The EEOC could also decide to file its own lawsuit. After you have sought a solution by the EEOC, you may file your own lawsuit against the employer but only after the EEOC has issued a "Right to Sue" letter. What if you lose? Most agencies, such as the EEOC and equal rights commissions and the courts, have processes built in for appealing a decision. Talk to whomever is assisting you with your case about appeals procedures. Remember that your case could also be appealed by the employer, if you win. Either way, the commissions or courts will decide whether or not there are grounds for appeal -- that is, if the decision made was improperly arrived at or there was some irregularity. Be sure to check Related Content to learn more about how court rulings are made. Go to Top of Page Bookmark this article to: 
|
|
