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You're listening to the Disability Law Lowdown, show number 41, with your host, Jacquie Brennan.

Jacquie Brennan: Hi, this is Jacquie Brennan. Today's podcast is going to focus on EEOC disability employment discrimination charge data research that was performed by the Employment and Disability Institute at Cornell University. And, I want to first provide a little background on filing a charge with the EEOC or with your state agency. Anyone who believes his or her employment rights have been violated may file a charge of discrimination with the EEOC and in addition to that, an individual, organization or agency may also file a charge on behalf of another person in order to protect that person's identity.

So when filing a charge with the EEOC, the first thing you do is fill out an intake questionnaire. And that can either be sent in by mail or in person at the nearest EEOC office to wherever you are. And you can find a list of those offices on the website at eeoc.gov or you can usually find those in your phone phone, especially if you can get to the government pages.

So, whenever you file this charge, you provide a lot of information: your name and address and phone number and of course, a short description of the alleged violation. And that would be the event that caused you to believe your rights were violated. And then the date of the violation would also on that.

There are time limits for making these charges and those are by statutes. You have 180 days to file a charge with the EEOC from the date of the alleged violation. Now, this 180 days is extended to 300 days if the charge is also covered by a state or local anti-discrimination law. So these time limits apply to all claims for employment discrimination except under the Equal Pay Act and that's because under that Act, you don't have to first file a charge with the EEOC before going to court. But with other employment discrimination claims, you must file a charge with either the EEOC or the state's Human Rights agency in order to protect your rights under that law. And you have to do that before you can just go to court.

So the state and local anti-discrimination laws also have agencies that are responsible for enforcing those laws. So they're similar to the EEOC except instead of enforcing the federal employment discrimination laws, they enforce the state and local laws. And the EEOC refers to these agencies as "fair employment practices agencies", FEPAs. And through the use of work sharing agreements, the EEOC and FEPAs avoid duplication of effort, while at the same time, ensuring that a charging party's rights are protected under both federal and state law.

So if you first file a charge with a state agency, and it's also covered by federal law, then the state agency does what they call "dual filing", and file the charge with the EEOC in order to protect those federal rights. And the charge is usually retained, though, by the state agency to handle it. And if it's first filed with the EEOC but is still covered by a state or local law, the EEOC does that dual filing to charge with the state or local FEPA, but ordinarily then the EEOC will retain the charge for handling.

And then, once the charge is filed, there is a sort of processing procedure that the EEOC will go through. It will be assigned for investigation if the initial facts appear to support a violation of the law. If the evidence is less strong, it may be assigned for follow-up investigation to determine whether it's likely whether a violation occurred.

The EEOC can seek to settle a charge at any stage of the investigation if the charging party and employer express an interest in doing so. And they do settle or resolve most of the discrimination charges that are valid charges, they resolve at a lower level than going to court. We'll talk in a minute about how they resolve those.

But, in investigating a charge, the EEOC makes written requests for information, they may interview people, they might review documents, they may even visit the facility where the alleged discrimination occurred. And when it's complete, the EEOC will discuss the evidence with the charging party or with the employer, as appropriate. And sometimes the charge is selected for the EEOC's mediation program, which is an alternative to a lengthy investigation and litigation. Participation in that program is confidential, voluntary and must be consented to by both sides. And if it's unsuccessful, then charges return for investigation.

A charge may be dismissed at any point, too, if in the agency's best judgement, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed if an initial in-depth interview does not produce any evidence to support the claim. And once it's dismissed, a notice is given which gives the charging party 90 days in which to file a law suit on his or her own behalf. This is commonly known as the "right to sue" letter.

If evidence shows that discrimination has occurred, the employer and the charging party will get a letter that explains this finding. And then the EEOC will attempt conciliation with the employer to develop a way to remedy the discrimination. If it's successfully conciliated or if it had been earlier mediated or settled, then neither the EEOC or the charging party can go to court, unless the settlement agreement or mediation or conciliation agreement isn't honored.

If the EEOC is unable to successfully conciliate the case, then it will decide whether to bring suit in federal court. If it decides not to sue, it will issue a notice that closes the case and gives the charging party 90 days in which to file a lawsuit.

So that gives you a little background on filing a charge and what initially happens when you do that.

Cornell is going to present some of the data from the research that compares the outcomes between if the charge is followed up by the EEOC or if it is followed up by the FEPA. So let me ask a few questions about this to get us started. First, could you provide a little background on your study?

Sarah von Schrader: Hi, my name is Sarah von Schrader and I am a Research associate in the Employment and Disability Institute at Cornell University in Ithaca, NY.

I am pleased to present some information about our research project related to employer practices for people with disabilities.

The research is part of a larger study entitled “Using the U.S. Equal Employment Opportunity Commission (EEOC) Employment Discrimination Charge Data for Research and Dissemination Purposes”. It was funded by the U.S. Department of Education National Institute on Disability and Rehabilitation Research. This is a three-year field-initiated research project, directed by Susanne M. Bruyère at Cornell University.

The statistics reported in this podcast are derived from data files that we obtained under agreement from the EEOC. The findings and their interpretation do not necessarily represent the policy of the Department of Education or the EEOC, and you should not assume endorsement by the Federal Government. Summaries of data are based on our aggregations and do not represent the EEOC's official aggregation of the data.

We are looking at the outcomes of charges of disability employment discrimination filed under the ADA during the five years from 2003 to 2007. We are using data from the EEOC's Integrated Mission System (IMS). Since 1991, the EEOC has collected data on charges filed in both EEOC and FEPA offices. Our analyses include approximately 138,000 charges filed from 2003-2007. Previous research has identified differences in outcomes depending on whether a charge was investigated by the EEOC or a FEPA office, however most of that research is over a decade old. We are interested in finding out whether those differences remain.

Jacquie: Approximately what percentage of ADA charges are investigated by a FEPA as compared to an EEOC?

Sarah: From 2003 to 2007, about 40% of ADA charges were filed with a FEPA office. But, there is a lot of variability state to state. States range from close to 0% filed with the FEPA office to almost 100%. In extreme cases it is likely due to the lack of a FEPA or EEOC office in that particular state. For example, Arkansas and Mississippi do not have FEPA offices. Some less populated western states share an EEOC office, so there may be a pretty large distance to the closest EEOC office, while they will have a FEPA office in their state.

Jacquie: In your analyses you are looking at outcomes of ADA charges, or what outcomes are you focusing on?

Sarah: We are interested in two primary outcomes. Number one is the likelihood of a beneficial outcome for the charging party, and number two is among those charges that do result in a beneficial outcomes, what's the likelihood of a monetary benefit.

For that first option, we should be clear about what constitutes a beneficial outcome. A beneficial outcome brings direct benefits to the charging party at closure. There are three outcomes that that fit into this category, withdrawals with benefits, settlements, and successful conciliations. "Withdrawals with benefits" are typically an informal agreement reached between the charging party and the employer prior to the EEOC or FEPA investigation. A "settlement" is a formal written agreement that resolves a charge before the EEOC or FEPA determines whether there is merit to the claim. And finally, a "conciliation" is a formal written agreement between the charging party and employer after reasonable cause has been determined by the EEOC or FEPA. Non-beneficial closures include unsuccessful conciliations, no cause determination and administrative closures.

Now, our second outcome, we're looking at among those charges where the charging party receives a beneficial outcome, we are looking at the likelihood that the charging party received a monetary benefit. A monetary benefit includes both actual benefits such as compensatory damages, punitive damages, and attorney’s fees as well as projected benefits such as those that would be provided by an employer through a reinstatement, hiring or promotion.

Jacquie: What percent of charges result in a benefit for the charging party?

Sarah: Approximately 20% of ADA charges result in a beneficial outcome for the charging party.

Jacquie: How does this compare to other anti-discrimination such as ADEA, the Age Discrimination Employment Act, or Title VII?

Sarah: While 20% sounds like a low rate of beneficial outcome, it is actually slightly higher that the rate of beneficial outcome for charges filed under the ADEA or Title VII. Those rates are a percentage point or two lower.

Jacquie: Has the likelihood of a beneficial outcome changed over the years?

Sarah: Yes, the rate of beneficial outcome seems to have increased somewhat over the years. The 20% benefit rate for ADA Charge that we found from 2003-2007 is greater than 16% benefit rate for charges filed prior to March 1998 reported in research by Kathryn Moss and colleagues. You can read more about this research in the 1999 special issue of Behavioral Sciences and the Law.

Jacquie: Does the percentage of charges with a beneficial outcome differ depending on whether the EEOC investigated the case or the state agency investigated it?

Sarah: Not really, the difference we found was small. We found that about 19% of EEOC charges result in a beneficial outcome, while 22% of FEPA charges do. As I said this difference is small, and we found when we adjusted for characteristics of the charge there was no significant difference between charges investigated by the EEOC and FEPAs on this outcome.

This is a change from results found in earlier years, again, comparing to the study sited before by Moss and others. In their research they noted a pretty large difference between the EEOC and FEPAs on this outcome for ADA charges filed prior tp 1998. They found that about 12% of EEOC charges resulted in Benefits while 23% of FEPA charges did. So that's quite a bit larger than what we found.

Jacquie: What percentage of charges with beneficial outcomes for the charging party result in a monetary award for the charging party?

Sarah: About 75% of charges with a beneficial outcome result in monetary benefits. Here is where we do see differences between the EEOC and FEPAs. While 82% of EEOC charges with beneficial outcomes result in monetary benefits, only 64% of FEPA charges do. This difference does not seem to go away when adjusting for characteristic of the charge using a regression analysis. The dollar amount is also greater for charges that receive monetary benefits through the EEOC.

I would like to thank the sponsors for the opportunity to present our research to this audience. I would also like to acknowledge my co-collaborators on this project, Mellissa Bjelland and Susanne Bruyere, at Cornell University. If any listener would like further information on this project please visit EDI’s website at www.edi.cornell.edu.

Thank you very much!

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.