Title I Technical Assistance Manual

X. ENFORCEMENT PROVISIONS

10.1 Introduction

Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC) under the same procedures used to enforce Title VII of the Civil Rights Acts of 1964. The Commission receives and investigates charges of discrimination and seeks through conciliation to resolve any discrimination found and obtain full relief for the affected individual. If conciliation is not successful, the EEOC may file a suit or issue a "right to sue" letter to the person who filed the charge. Throughout the enforcement process, EEOC makes every effort to resolve issues through conciliation and to avoid litigation.

The Commission also recognizes that differences and disputes about the ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts to settle such differences through alternative dispute resolution, provided that such efforts do not deprive any individual of legal rights granted by the statute. (See "Alternative Dispute Resolution" in Resource Directory Index.)

10.2 Overview of Enforcement Provisions

• A job applicant or employee who believes s/he has been discriminated against on the basis of disability in employment by a private, state, or local government employer, labor union, employment agency, or joint labor management committee can file a charge with EEOC.

• An individual, whether disabled or not, also may file a charge if s/he believes that s/he has been discriminated against because of an association with a person with a known disability, or believes that s/he has suffered retaliation because of filing a charge or assisting in opposing a discriminatory practice. (See Retaliation below.) Another person or organization also may file a charge on behalf of such applicant or employee.

• The entity charged with violating the ADA should receive written notification of the charge within 10 days after it is filed.

• EEOC will investigate charges of discrimination. If EEOC believes that discrimination occurred, it will attempt to resolve the charge through conciliation and obtain full relief for the aggrieved individual consistent with EEOC's standards for remedies.

• If conciliation fails, EEOC will file suit or issue a "right to sue" letter to the person who filed the charge. (If the charge involves a state or local government agency, EEOC will refer the case to the Department of Justice for consideration of litigation or issuance of a "right to sue" letter.)

• Remedies for violations of Title I of the ADA include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.

• Employers may not retaliate against any applicant or employee who files a charge, participates in an EEOC investigation or opposes an unlawful employment practice.

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.

10.4 Coordination Procedures to Avoid Duplicative Complaint Processing Under the ADA and the Rehabilitation Act.

The ADA requires EEOC and the federal agencies responsible for Section 503 and Section 504 of the Rehabilitation Act of 1973 to establish coordination procedures to avoid duplication and to assure consistent standards in processing complaints that fall within the overlapping jurisdiction of both laws. EEOC and the Office of Federal Contract Compliance in the Department of Labor (OFCCP) have issued a joint regulation establishing such procedures for complaints against employers covered by the ADA who are also federal contractors or subcontractors. (Published in the Federal Register of January 24, 1992.) EEOC and the Department of Justice also will issue a joint regulation establishing procedures for complaints against employers covered by the ADA who are recipients of federal financial assistance.

The joint EEOC-OFCCP rule provides that a complaint of discrimination on the basis of disability filed with OFCCP under Section 503 will be considered a charge filed simultaneously under the ADA if the complaint falls within the ADA's jurisdiction. This will ensure that an individual's ADA rights are preserved. OFCCP will process such complaints/charges for EEOC, with certain exceptions specified in the regulation, where OFCCP will refer the charge to EEOC. OFCCP also will refer to EEOC for litigation review any complaint/charge where a violation has been found, conciliation fails, and OFCCP decides not to pursue administrative enforcement.

EEOC will refer to OFCCP ADA charges that fall under Section 503 jurisdiction when the Commission finds cause to believe that discrimination has occurred but decides not to litigate, for any administrative action that OFCCP finds appropriate. Where a charge involves both allegations of discrimination and violation of OFCCP's affirmative action requirements, EEOC generally will refer the charge to OFCCP for processing and resolution.

(Note: Procedures established in an EEOC-Department of Justice joint rule on processing complaints that are within ADA and Section 504 jurisdiction will be summarized in a future supplement to this Manual, when a final regulation has been issued.)

10.5 Remedies

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include hiring, reinstatement, promotion, back pay, front pay, reasonable accommodation, or other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination). Remedies also may include payment of attorneys' fees, expert witness fees and court costs.

Compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. The total amount of punitive damages and compensatory damages for future monetary loss and emotional injury for each individual is limited, based upon the size of the employer, using the following schedule:

Number of employees Damages will not exceed

• 15-100 $50,000

• 101-200 $100,000

• 201-500 $200,000

• 500 and more $300,000

Punitive damages are not available against state or local governments.

In cases concerning reasonable accommodation, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.

What are EEOC's obligations to make the charge process accessible to and usable by individuals with disabilities?

EEOC is required by Section 504 of the Rehabilitation Act of 1973, as amended, to make all of its programs and activities accessible to and usable by individuals with disabilities. EEOC has an obligation to provide services or devices necessary to enable an individual with a disability to participate in the charge filing process. For example, upon request, EEOC will provide an interpreter when necessary for a charging party who is hearing impaired. People with visual or manual disabilities can request on-site assistance in filling out a "charge of discrimination" form and affidavits. EEOC will provide access to the charge process as needed by each individual with a disability, on a case-by-case basis.