By Tamar Asedo Sherman
Despite the prohibition of discrimination against qualified people with disabilities in job application procedures, hiring, fi ring, advancement, compensation, and job training under ADA’s Title I, many of us have experienced subtle or overt discrimination. If you have been subject to discrimination in employment because of your disability (or for any other reason), here is what you can do about it.
File a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or a state or local anti-discrimination agency, generally known as a Fair Employment Practices Agency, or FEPA. You have up to 300 days from the violation, but if you wait, you will lose your anger/indignation. Call 800-669-4000 or go to www.eeoc.gov and follow the links.
EEO counseling is required before you can file a formal complaint of discrimination. You must cooperate in good faith with the EEO counseling process to preserve your rights to access the formal EEO complaint process. During this period, which usually takes from 30 to 90 days, attempts are made to resolve disputes informally.
You might consider an alternative type of dispute resolution procedure known as mediation, which can be substituted for counseling or follow counseling. The goal of mediation is to achieve resolution without lengthy investigations or a lawsuit. Under the EEOC’s mediation program, you and the employer are invited to meet together with a third party, the mediator, to discuss your problems and develop your own solutions. Participation is strictly voluntary on both sides.
Mediation provides a safe environment in which parties can air their differences and reach a mutually agreeable resolution. Mediators are NOT judges. Their role is to facilitate communication between the parties so they can resolve their own conflicts, not to decide how the conflict should be resolved.
Since the process was initiated in 1999, EEOC has resolved more than 35,000 charges of discrimination through mediation. In Fiscal Year 2004 alone, (the most recent year for which statistics are available) EEOC resolved a record 8,086 complaints through mediation, resulting in $112 million in monetary benefits in addition to non-monetary benefits, such as changes in employer policies and reasonable accommodations for employees.
If mediation does not resolve the charge, you still can file a formal complaint, as follows. First you must document the details of the violation. Be sure to include your name, address, and telephone number and the name, address, and telephone number of the employer, employment agency, or union that is alleged to have discriminated, and the number of employees or union members. Then you must provide a short description of what happened. Be sure to include:
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• the date(s) when it occurred
• if and when you disclosed your disability
• relevant details of your disability
• if and when you asked for an accommodation
• your qualifications to do the job (especially the results of job performance reviews)
• what happened, what you did about it
• the names, addresses, and telephone numbers of witnesses who can support your claim.
Make copies of any documents supporting your case. It may take a while to get a response, but if you don’t hear anything from the EEOC or your local office after 6 or 8 weeks, you can contact them to check the status of your charge.
First, the EEOC notifies the employer that a charge has been fi led against him/her. It could take anywhere from about 6 months to 2 years to investigate and resolve your case. There are a number of ways a charge may be handled
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• If the initial facts appear to support a violation of law, a charge may be assigned for priority investigation. When the evidence is less strong, the charge may be assigned for follow-up investigation to determine whether it is likely that a violation has occurred.
• EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred.
• A charge may be dismissed at any point if, in the agency’s best judgment, further investigation will not establish a violation of the law. You will then have 90 days in which to file a lawsuit.
If the evidence establishes that discrimination has occurred, EEOC will then attempt to develop a remedy for the violation with the employer. If EEOC is unable to successfully conciliate the case, it will decide whether to bring suit in federal court. You can bring suit on your own behalf.
Tamar Asedo Sherman works as an employment specialist at UCP-Suffolk in Hauppauge, NY. She can be reached at action@unitedspinal.org.
