Title I Technical Assistance Manual

10.3 Questions and Answers on the ADA Enforcement Process

When do the ADA's employment enforcement provisions become effective?

Charges of discrimination can be filed against employers with 25 or more employees and other covered entities beginning July 26, 1992. The alleged discriminatory act(s) must have occurred on or after July 26, 1992.

Charges can be filed against employers with 15 or more employees beginning July 26, 1994. The alleged discriminatory act(s) must have occurred on or after July 26, 1994, if the charge is against an employer with 15 to 24 employees.

Who can file charges of discrimination?

An applicant or employee who feels that s/he has been discriminated against in employment on the basis of disability can file a charge with EEOC. An individual, group or organization also can file a charge on behalf of another person. An individual, group or organization that files a charge is called the "charging party."

How are charges of discrimination filed?

A person who feels s/he has been discriminated against, or other potential "charging party" should contact the nearest EEOC office. (See Resource Directory listing.) If there is no EEOC office nearby, call, toll free 1-800-669-4000 (voice) or 1-800-800-3302 (TDD).

What are the time limits for filing charges of discrimination?

A charge of discrimination on the basis of disability must be filed with EEOC within 180 days of the alleged discriminatory act.

If there is a state or local fair employment practices agency that enforces a law prohibiting the same alleged discriminatory practice, it is possible that charges may be filed with EEOC up to 300 days after the alleged discriminatory act. However, to protect legal rights, it is recommended that EEOC be contacted promptly when discrimination is believed to have occurred.

How is a charge of discrimination filed?

A charge can be filed in person, by telephone, or by mail. If an individual does not live near an EEOC office, the charge can be filed by telephone and verified by mail. The type of information that will be requested from a charging party may include:

• the charging party's name, address, and telephone number (if a charge is filed on behalf of another individual, his/her identity may be kept confidential, unless required for a court action);

• the employer's name, address, telephone number, and number of employees;

• the basis or bases of the discrimination claimed by the individual (e.g., disability, race, color, religion, sex, national origin, age, retaliation);

• the issue or issues involved in the alleged discriminatory act(s) (e.g., hiring, promotion, wages, terms and conditions of employment, discharge);

• identification of the charging party's alleged disability (e.g., the physical or mental impairment and how it affects major life activities, the record of disability the employer relied upon, or how the employer regarded the individual as disabled);

• the date of the alleged discriminatory act(s);

• details of what allegedly happened; and

• identity of witnesses who have knowledge of the alleged discriminatory act(s).

Charging parties also may submit additional oral or written evidence on their behalf.

EEOC has work-sharing agreements with many state and local fair employment agencies. Depending on the agreement, some charges may be sent to a state or local agency for investigation; others may be investigated directly by EEOC. (See also Coordination Procedures to Avoid Duplicate Complaint Processing under the ADA and the Rehabilitation Act, below.)

Can a charging party file a charge on more than one basis?

EEOC also enforces other laws that bar employment discrimination based on race, color, religion, sex, national origin, and age (persons 40 years of age and older). An individual with a disability can file a charge of discrimination on more than one basis.

For example: A cashier who is a paraplegic may claim that she was discriminated against by an employer based on both her sex and her disability. She can file a single charge claiming both disability and sex discrimination.

Can an individual file a lawsuit against an employer?

An individual can file a lawsuit against an employer, but s/he must first file the charge with EEOC. The charging party can request a "right to sue" letter from the EEOC 180 days after the charge was first filed with the Commission. A charging party will then have 90 days to file suit after receiving the notice of right to sue. If the charging party files suit, EEOC will ordinarily dismiss the original charges filed with the Commission. "Right to sue" letters also are issued when EEOC does not believe discrimination occurred or when conciliation attempts fail and EEOC decides not to sue on the charging party's behalf (see below).

Are charging parties protected from retaliation?

It is unlawful for an employer or other covered entity to retaliate against someone who files a charge of discrimination, participates in an investigation, or opposes discriminatory practices. Individuals who believe that they have been retaliated against should contact EEOC immediately. Even if an individual has already filed a charge of discrimination, s/he can file a new charge based on retaliation.

How does EEOC process charges of discrimination?

• A charge of employment discrimination may be filed with EEOC against a private employer, state or local government, employment agency, labor union or joint labor management committee. When a charge has been filed, EEOC calls these covered entities "respondents."

• Within 10 days after receipt of a charge, EEOC sends written notification of receipt to the respondent and the charging party.

• EEOC begins its investigation by reviewing information received from the charging party and requesting information from the respondent. Information requested from the respondent initially, and in the course of the investigation, may include: specific information on the issues raised in the charge;

• the identity of witnesses who can provide evidence about issues in the charge;

• information about the business operation, employment process, and workplace; and

• personnel and payroll records.

(Note: All or part of the data-gathering portion of an investigation may be conducted on-site, depending on the circumstances.)

• A respondent also may submit additional oral or written evidence on its own behalf.

• EEOC also will interview witnesses who have knowledge of the alleged discriminatory act(s).

• EEOC may dismiss a charge during the course of the investigation for various reasons. For example, it may find that the respondent is not covered by the ADA, or that the charge is not timely filed.

• EEOC may request additional information from the respondent and the charging party. They may be asked to participate in a fact-finding conference to review the allegations, obtain additional evidence, and, if appropriate, seek to resolve the charge through a negotiated settlement.

• The charging party and respondent will be informed of the preliminary findings of the investigation -- that is, whether there is cause to believe that discrimination has occurred and the type of relief that may be necessary. Both parties will be provided opportunity to submit further information.

• After reviewing all information, the Commission sends an official "Letter of Determination" to the charging party and the respondent, stating whether it has or has not found "reasonable cause" to believe that discrimination occurred.

What if the EEOC concludes that no discrimination occurred?

If the investigation finds no cause to believe discrimination occurred, EEOC will take no further action. EEOC will issue a "right to sue" letter to the charging party, who may initiate a private suit.

What if the EEOC concludes that discrimination occurred?

If the investigation shows that there is reasonable cause to believe that discrimination occurred, EEOC will attempt to resolve the issue through conciliation and to obtain full relief consistent with EEOC's standards for remedies for the charging party. (See Relief Available to Charging Party, below.) EEOC also can request an employer to post a notice in the workplace stating that the discrimination has been corrected and that it has stopped the discriminatory practice.

What happens if conciliation fails?

At all stages of the enforcement process, EEOC will try to resolve a charge without a costly lawsuit.

If EEOC has found cause to believe that discrimination occurred, but cannot resolve the issue through conciliation, the case will be considered for litigation. If EEOC decides to litigate, a lawsuit will be filed in federal district court. If the Commission decides not to litigate, it will send the charging party a "right-to-sue" letter. The charging party may then initiate a private civil suit within 90 days, if desired. If conciliation fails on a charge against a state or local government, EEOC will refer the case to the Department of Justice for consideration of litigation or issuance of a "right to sue" letter.