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Filing an ADA Employment Discrimination Charge:
Making It Work for You
Using the ADA
What should you do if you feel you have been discriminated against in employment based on a present or past psychiatric disability?
You should talk with the employer and try to work things out. If you cannot, you may file an administrative charge of employment discrimination and, after receiving a right-to-sue letter, a lawsuit.
With whom are charges filed?
As noted earlier, the U.S. Equal Employment Opportunity Commission (EEOC) shares responsibility with state and local agencies for receiving and investigating employment discrimination charges. State and local antidiscrimination agencies that receive and investigate charges under the ADA are called Fair Employment Practice Agencies (FEPAs).
The EEOC has 50 field offices in 33 states and the District of Columbia. Individuals who believe they have been subject to employment discrimination based on a psychiatric or other type of disability may file a charge in any one of the EEOC field offices.
Most states and some localities have established FEPAs to investigate charges of employment discrimination. EEOC has contracted with many of these agencies (located in 47 states, the District of Columbia, Puerto Rico, and the Virgin Islands) to serve as additional programs to receive and investigate charges brought under the ADA.
In general, an individual may file a disability-based charge either with the EEOC or a FEPA. Usually, individuals who want to file a charge or inquire about filing a charge, do so with the nearest office. To obtain the addresses and telephone numbers of the EEOC offices and FEPAs, call SAMHSA's National Mental Health Information Center at 1-800-789-2647.
When should an individual file a charge?
There are strict time frames for filing ADA charges. In some geographic jurisdictions, individuals have 180 days from the alleged discriminatory action to file a charge with the EEOC. In others, they have 300 days. Each FEPA has its own allowable time frame for filing charges. The laws governing these time frames are complicated. Because of this, once you have decided to file an ADA charge, it is best to do so as soon as possible after discrimination is encountered! If charges are not filed within the allowable time frames, the right to file a lawsuit may be jeopardized. Also, it is easier to document the discrimination you believe has occurred soon after it occurs.
How are charges filed?
Charges can be filed in person or by telephone or mail. If you go to or call an office, an interview with an investigator is involved. The interview is referred to as a "charge receipt interview." During the charge receipt interview, the investigator will ask about: your name, address, and telephone number; the name, address, and telephone number of the employer in question; the type of business and approximate size of the employer in question; the basis or bases of the discrimination you believe you have experienced (for example, disability, race, color, sex, religion, age, national origin, retaliation for having filed a charge); the date of the discrimination; details about the discrimination; your disability (that is, your particular psychiatric impairment and how it affects major life activities, how the employer relied upon the record of your disability, or how the employer regarded you as disabled); and, if there were witnesses, the names, addresses, and telephone numbers of the witnesses. The investigator will then prepare a properly worded charge. You will be asked to sign it. Interviews can last from one to several hours.
If you file a charge by mail, you should provide the same information that is asked for in the charge receipt interview. After it has received your charge, the office where you sent it should notify you of how it is going to proceed. If you do not hear anything after approximately two weeks, follow up by telephone.
Is it better to file a charge by mail, by telephone, or in person?
No evidence exists that one method of filing is better than another. What is more important is that you make sure that the charge is well-documented! To the extent possible, provide documentation about your disability, when you disclosed your disability, the way in which it limits one or more major life activities, why you are qualified to do the job in question, the details of the discrimination you encountered, what you did about it, and the identity of witnesses with knowledge of the discrimination you encountered.
Why is a well-documented charge important?
Both EEOC offices and FEPAs have many new cases, a large backlog of older cases, and too few investigators and other resources. This may minimize the extent to which cases are investigated. Thus, the more meritorious a charge appears at the charge receipt interview, the better its chance of being investigated!
Can the EEOC or a FEPA refuse to accept a charge?
No. They may try to discourage new cases that appear undeserving of investigation. It is generally agreed, however, that they must accept all charges of employment discrimination. Thus, especially where you can prove your charge, do not let an investigator tell you that you cannot file a charge.
Is there anything else you should know about filing a charge?
- You may need to be persistent. As noted, most EEOC offices and FEPAs are understaffed, receive large numbers of new charges each year, and, therefore, have many unresolved charges awaiting or undergoing investigation. If an office is slow in returning your phone call or in answering your letter, keep trying. If the line is busy or no one answers, call again. For an in-person interview, find out if the office schedules interviews. If it does not, try to get to the office as early in the morning as possible. Be prepared to wait; be patient. Remember, there are strict deadlines for filing ADA charges!
- Try to provide documentation from a physician or other mental health professional about your specific psychiatric disability and the issues it may raise in the workplace. Remember, in order to be protected by the ADA, it is necessary to have a recognized disability. Thus, if your charge is related to a current psychiatric impairment, try to make sure that the documentation highlights the ways in which your impairment substantially limits one or more major life activities. This means describing its nature and severity, how long it has lasted and is expected to last, and its long-term or permanent impact or expected impact on your major life activities. Impairments that are temporary or do not last for a long time and that have little or no long-term impact are not usually considered disabilities under the ADA. If your charge is related to having a record of a psychiatric impairment, try to make sure that the documentation shows the way in which the employer discriminated against you based on your history of a psychiatric impairment. Your documentation does not need to show that you currently are substantially limited in a major life activity. It does need to explain, however, that you have a record of a psychiatric impairment that substantially limited one or more major life activities when you had the impairment. If your charge is related to being regarded as having a psychiatric impairment, try to make sure the documentation indicates whether and how the employer regarded you as having an impairment which substantially limits one or more major life activities.
- Remember that in order to be protected by the ADA's employment provisions, it is necessary to be qualified (see discussion on page 5). To determine whether a person is qualified, investigators must determine if the individual meets the necessary prerequisites for the job-education, work experience, training, skills, licenses, certificates, and other job-related requirements, such as good judgment or ability to work with other people. They also must determine if the individual can perform the essential functions of the job, with or without reasonable accommodations. To help, prepare a resume or other documentation highlighting your education, work experience, training, and skills. Also, try to obtain pertinent licenses, and letters of references pertaining to job-related requirements such as good judgment or ability to work with other people. In doing so, be aware that the language of the ADA and recent court decisions may have combined to narrow the path that can be taken by complainants with psychiatric disabilities. Complainants must establish both that they have an impairment that substantially limits a major life activity and that they are able to perform all essential job functions with or without reasonable accommodation. As interpreted by many courts, these two provisions may create a "Catch-22". Even if there is reasonable cause to believe that a complainant has experienced disability-based discrimination, if he/she has a very serious impairment which obstructs work performance, the charge very well may be dismissed. This is a particular problem for people with psychiatric disabilities. Without adequate documentation, however, your charge will also be dismissed. Therefore, try to provide documentation showing both that your impairment is serious and that you are capable of performing the essential functions of the job, with or without reasonable accommodations.
- Give all of the documentation to the investigator during the charge receipt interview. Remember to keep copies for your own records. If your charge receipt interview is by telephone, try to mail this documentation prior to the interview. If you file your charge by mail, make sure to include this documentation. This is especially important when filing a charge with the EEOC. The office will assign a priority classification to charges during or soon after the charge receipt interview. Thus, the more documentation and useful information you provide, the better your chances for being assigned a high priority.
- If you mail your charge, check to see that it was received and processed.
Example of a Well-Documented Charge
Brian Greenville* worked for three years as a machine operator in a construction company. For the first two-and-a-half years, Brian had established a positive performance pattern, receiving excellent performance evaluations. He then decided to disclose his psychiatric disability to his immediate supervisor. Aware of the risks of doing so, he documented when, to whom, and what he disclosed. Among other things, Brian disclosed that the medication he takes for depression makes him drowsy. Subsequently, his depression became worse, and he had to take an even stronger medication. The new medication made him so drowsy that he could not perform his required job duties. He requested an accommodation, asking the company to transfer him to a position for which he was qualified. Instead, the company discharged him. Again, Brian had documented when he made each request, to whom he made the request, and the nature of the request. After being discharged, Brian took the documentation about his disclosure and accommodation requests, together with his positive performance evaluations, to the nearest EEOC office to file an employment discrimination charge. The documentation allowed the charge receipt investigator to see that Brian indeed had disclosed his disability and had made accommodation requests that seemed to be reasonable. Therefore, the investigator recommended that a full investigation of Brian's charge be conducted. Based on the investigation, the EEOC eventually determined that there was reasonable cause to believe that discrimination occurred.
* The name and some of the details in the example has been changed.
Example of a Poorly Documented Charge
Tom Fischer* is a registered nurse. He has an anxiety disorder. Tom believed that his supervisor discriminated against him by failing to address ongoing condescension and negative attitudes by co-workers. Furthermore, he felt that the supervisor consistently and intentionally failed to assign him suitable tasks in an appropriate and timely manner. He decided to file an employment discrimination charge with the local FEPA. During the charge receipt interview, Tom was vague about whether and when he had disclosed his anxiety disorder to his supervisor. In addition, he had no documentation about disclosure. Tom's vagueness, together with his lack of documentation, was problematic: the ADA does not require employers to take action with respect to conditions of which they are unaware. Since the charge receipt investigator was not convinced that Tom had disclosed his disability, she decided that Tom's charge appeared weak. She told that to Tom. Because Tom still wished to file a charge, the investigator told Tom that it would be served on his employer but that it might be dismissed shortly after that time. Indeed, the charge was quickly dismissed.
* The name and some of the details in the example has been changed.
What is the EEOC's Priority Charge Handling Policy?
EEOC policy requires all cases to be ranked in priority for investigative attention during or shortly after the charge receipt interview. Charges are supposed to be placed into one of three categories:
- Category "A" is the highest priority category. Category "A" charges include:
- Charges that fall within the national or local enforcement plan-that is, plans identifying legal issues or discrimination practices that EEOC Headquarters and field offices regard as priority issues for enforcement.
- Charges that are likely to result in a cause finding-that is, a determination by the EEOC that there is strong evidence of illegal discrimination.
- Charges where severe harm may result unless processing is expedited-for example, a charge filed by a person with a terminal illness.
EEOC field offices are required to conduct appropriate investigations of "A" cases, as resources permit. Enforcement plan cases are to be treated as the highest priority.
- Category "B" includes charges that require additional evidence to determine whether they are likely to result in a cause finding. With "B" cases, additional investigation is to be conducted, as resources permit, to decide whether they should be placed into Category "A" and given priority status or placed into Category "C" and dismissed.
- Category "C" includes charges where additional investigation is not likely to result in a cause finding. Category C charges include:
- Charges for which the agency has no jurisdiction-for example, the employer has fewer than 15 employees; the charge has been filed beyond the allowable time frame for filing an ADA charge; or the complainant is not a qualified individual with a disability.
- Self-defeating charges-that is, charges in which the individual filing the charge reveals either directly or indirectly that it is unlikely that discrimination occurred.
- Allegations that are not credible, such as charges by individuals who have filed a large number of repetitive charges.
Category "C" charges are to be dismissed when the office has sufficient information from which to conclude that it is not likely that further investigation will result in a cause finding.
What is the EEOC's investigation policy?
EEOC policy states that charges are to be investigated based on the priority category to which they have been assigned. At the conclusion of the investigation, the EEOC is to issue a letter of determination of "reasonable cause" to believe that discrimination has occurred or "no reasonable cause". If EEOC has found reasonable cause, it will attempt conciliation (that is, informal persuasion aimed at facilitating settlements) and to obtain "relief" for the charging party. Relief may include hiring, reinstatement, promotion, reasonable accommodations, front pay, back pay, payment of attorneys' fees, and/or expert witness fees. Monetary compensation may also be awarded for actual or future monetary losses, or mental anguish. Monetary damages also may be awarded if an employer acted with "malice or reckless indifference". If the EEOC's attempts to conciliate fail, it must decide whether to file a lawsuit on behalf of the complainant. If it decides not to file a lawsuit, it will send the complainant a right-to-sue letter. After receiving the letter, the complainant may bring suit in Federal court. The EEOC also will send complainants a right-to-sue letter if it has found no reasonable cause. In addition, the EEOC will send the complainant a right-to-sue-letter if a complainant requests in writing a right-to-sue letter and the appropriate district office or field office director determines that the charge cannot be resolved within 180 days. In some places, complainants can get the letter soon after they request it. In other places, they cannot get it until the 180 days has passed. In just about all cases in which the EEOC issues a right-to-sue letter, the agency will take no further action with respect to the complainant.
Which charges actually are investigated?
Most enforcement plan "A" cases are investigated. Many non-enforcement plan "A" cases are investigated. Most "B" and "C" cases receive very limited investigations.
What are FEPA policies regarding charge investigations?
Since FEPAs are created by and responsible to states or localities, they have their own investigation policies. In general, their policies tend to be similar to those of the EEOC. One exception is that most FEPAs do not have formal policies about prioritizing charges. It seems probable, however, that the extent to which a charge is investigated is related to the FEPA investigator's initial impressions about the likelihood that discrimination occurred.
Can an EEOC office or FEPA transfer responsibility for investigating a charge from where it was filed to another office?
Yes. In the case of the EEOC, administrators sometimes transfer responsibility for an investigation. Such a transfer is usually from an office with an especially high backlog of charges to another office with less of a backlog. In the case of a FEPA, administrators sometimes transfer responsibility for an investigation to an EEOC office.
What actually happens during the charge investigation process?
The individual who investigates a charge frequently is a different person than the individual who conducted the original charge receipt interview. Because most EEOC and FEPA offices have very large caseloads and backlogs, charges sometimes wait for many months or, in some cases, up to a year before an investigator is assigned and an investigation begun. Once an investigation is begun, there is considerable variation in the range of efforts made. Most enforcement plan "A" cases and some other "A" cases involve extensive investigative activity.
Example of a Case Involving Extensive
Investigative Activity
Ryan Calloway* charged that he was terminated from his job as a computer salesman based on his anxiety disorder. The employer argued that Ryan was terminated due to a history of repeated misconduct at the workplace. Since the ADA does not require employers to accommodate misconduct, the employer argued that Ryan was not qualified to perform the essential functions of the job. Ryan had filed his charge with the EEOC. He had brought performance evaluations to the charge receipt interview indicating that he had been a highly valued employee. No mention had been made on the performance evaluations of any misconduct. To the contrary, Ryan had won two awards for his performance. Ryan's charge received an "A" categorization. The investigation included a comprehensive legal analysis to determine if the complainant was a qualified individual with a disability. In the analysis, it was determined that Ryan had a disability covered by the ADA: his anxiety disorder substantially limited him in one or more major life activities. The investigator interviewed two witnesses as part of an assessment of the credibility of the employer's evidence. It was determined that Ryan had rarely engaged in misconduct; that he had been a productive employee; that he was qualified to perform the essential functions of the job; and that there was reasonable cause to believe that discrimination occurred. The EEOC investigator then resolved the issue through conciliation (i.e., informal persuasion aimed at facilitating settlements). The employer reinstated Ryan to his former position. The employer also agreed to pay him wages lost during the one-year period when he was unemployed, to not retaliate against him for having filed the charge, and to eliminate from his employment records all documents and entries related to the filing of the charge and the related events that occurred subsequently.
* The name and some of the details in the example has been changed.
Unfortunately, on-site investigations and in-person interviews with witnesses are the exception rather than the rule because of inadequate investigative time and limited travel funds. As a result, investigations usually consist of written notification of the filing of a charge, a request for information to the employer, and examination of the information provided by the employer. Sometimes, investigations include a request for additional information from the employer and telephone conversations with complainants, employers, attorneys, and-on occasion-witnesses. The information provided by the employer may or may not, however, be verified.
Example of a Case Involving Little
Investigative Activity
In a charge filed with the EEOC, Susan Meyers* alleged that she was denied a reasonable accommodation for her disability: depression. She alleged that she was qualified to perform the essential functions of the job. She gave the investigator a letter from a psychiatrist, confirming the diagnosis of depression and observing that Susan's disability did not disqualify her from performing the essential functions of the job. Susan's charge was placed in a "B" priority category: the charge receipt investigator was not able to make a judgment about the merits of the charge at charge receipt. Ten days later, the employer named in the charge was sent notice that a charge had been filed against him and was asked to send the EEOC pertinent information. Six months later, the employer sent the information. It indicated that Susan had engaged in chronic absenteeism for several years before her formal leave of absence. Although the documentation was vague and imprecise, there was no assessment of the credibility of the employer's or Susan's information. No attempt had been made to identify and contact witnesses or in any other way to confirm the charge or the employer's defense. The charge resulted in a determination that there was no reasonable cause to believe that discrimination occurred. The case was closed one-and-a-half years after the charge was filed.
* The name and some of the details in the example has been changed.
Given the length of time it takes to investigate charges and the very large caseloads of the investigators, it is a good idea for individuals who file a charge to contact investigators periodically to check about their case. If you have filed a charge and have not heard from the office for roughly a two-month time period, it might be well to call the office where you filed.
Do people need an attorney to file a charge?
You do not need an attorney to file a charge. However, having an attorney may increase the likelihood of receiving a direct beneficial outcome from a charge. In addition, having an attorney may increase the size of monetary settlements. Also, if you decide to file a lawsuit after filing a charge, you are in a better position if you have hired a lawyer.
What is the EEOC's mediation program?
Mediation is an alternative dispute resolution procedure offered by the EEOC soon after receiving a charge of discrimination. The goal of mediation is to achieve resolution without a lengthy investigation or a lawsuit. Under the program, persons filing selected charges are removed from the regular pool of charges, and the parties are invited to meet together with an independent third party-the mediator-to discuss their problems and develop their own solutions. Participation is strictly voluntary on both sides. Unlike EEOC staff in the standard administrative investigation, the mediator has no authority to judge the merits of the case. Nor may the mediator impose a settlement. The mediator acts as a facilitator, rather than as an inquisitor or judge. If the mediation succeeds, the charge is formally closed. If it does not succeed, the charge is returned to the regular pool of charges.
To what extent has the EEOC's mediation program been successful to date?
The extent to which people bringing ADA charges have used mediation is not yet known. Furthermore, information about the extent to which people bringing ADA charges have benefited from mediation is not yet available. It appears, however, that mediation may be more effective in encouraging amicable settlements than regular EEOC investigations, especially for people who are still working for the employer named in the charge. It also appears that mediation resolutions are achieved in a much shorter time period than regular investigative resolutions. However, while mediation may offer a quicker resolution than a regular investigation, it may not be the best path for everyone who files an ADA charge. For example, in some cases, the appearance of cooperation in the mediation process may hide, but not eliminate, differences in power among the parties, allowing dominant or manipulative employers to exploit the process to their advantage.
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