Comparison of Employment Disability Discrimination Claims with other Statutes

Comparison of Employment Disability Discrimination Claims with Other Statutes Across U.S. Equal Opportunity Commission and Fair Employment Practice Agencies Nationally^{^[1]}

Susanne M. Bruyère^{^[2]}, Andrew J. Houtenville, S. Antonio Ruiz-Quintanilla

Employment and Disability Institute, Cornell University

Stewart J. Schwab^{^[3]}

Cornell University Law School

Rose Daly-Rooney
Arizona Attorney General's Office

Barry Taylor,

Equip for Equality, Chicago, IL

Charlotte Lanvers^{^[4]}

Cornell University Law School

June, 2007

This paper was originally prepared for the Conference on Empirical Analysis of Disability Discrimination, New York University Symposium, April 7, 2006.

ABSTRACT

Although 15 years have passed since the employment provisions of the Americans with Disabilities Act of 1990 (ADA) became effective, significant employment disparities for persons with disabilities persist. It is important to assess how employer policies and practices may contribute to this disparity. Analyses of employment-related discrimination claims and subsequent legal outcomes are an important source of information about where and how disability employment discrimination is perceived to be happening. Examining the disability employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) and Fair Employment Practice Agencies (FEPAs) within states can inform an understanding of where specific issues continue. This research uses the EEOC's Charge Data System (CDS) (later called the Integrated Mission System, IMS) to explore difference between the filing of discrimination claims at EEOC offices and state FEPA offices. To date, most analyses of these charges have occurred on the EEOC charge data only. Yet of the 328,001 disability employment discrimination charges filed across both agencies during 1993 – 2003, almost half (46 percent) of these charges have been filed in FEPA offices. Analyzing both sets of data provides a fuller picture of disability employment discrimination claims nationally and subsequently further informs our understanding of where problems may be occurring in the implementation of the ADA Title I provisions.

PART I: NEED FOR CONTINUED SCRUTINY OF EMPLOYMENT DISABILITY DISCRIMINATION

1.1 INTRODUCTION

"… henceforth people with disabilities must be accorded the same personal respect and the same social and economic opportunities as other people" (Dart, 1990).

The Americans with Disabilities Act of 1990 (ADA) is a landmark document and achievement, which marshaled in a new era for hundreds of thousands of Americans with disabilities. It affirms the intrinsic human rights of people with disabilities and calls for the removal of barriers to social and economic participation. It provides the foundation from which much of the disability agenda now stems. The ADA provided the means for ensuring equal opportunity for persons with disabilities in employment, promising resulting significant employment and economic benefits to individuals with disabilities as well as to the U.S. economy. With its help, much has been achieved, but there is still much work to do, especially in the area of employment outcomes for people with disabilities, which is the focus of this paper.

People with disabilities represent a significant portion of the working-age U.S. population -- 12.9 percent in 2005 (StatsRRTC, 2006). This is approximately one out of every eight working-age individuals. Yet these hoped-for gains facilitated by the ADA have yet to be fully realized. People with disabilities continue to be disproportionately disadvantaged in gaining equal access to employment and subsequent economic self-sufficiency. This inequity is seen in the continuing disparity in employment rates for people with disabilities, disparities in access to career advancement opportunities described by people with disabilities and employment service providers who assist them, continuing disability employment discrimination charges, and reports of persisting attitudinal issues within the work environment. For instance, the employment rate of working-age people with disabilities was 38.1 percent in 2005, compared to 78.3 percent for working-age people without disabilities -- an "employment gap" of 38.9 percentage points (StatsRRTC, 2006).

Further information about other efforts to document these inequities and discern their cause is provided in the literature review which follows. Wooten and James (2005) agree that more work is needed on the part of employers to learn how to comply with the ADA, and employers must stop “window dressing” and admit that barriers do exist. Schur, Kruse, and Blanck (2005) agree that more attention must be paid to the obstacles created by corporate culture for employees with disabilities. Bagenstos (2004) calls the ADA an “historic achievement,” that “has improved the lives of countless individuals who have disabilities,” (p. 3), but feels its “limitations have become increasingly apparent,” and contends this is because of the “inability of antidiscrimination laws to eliminate deep structural barriers to employment.” Employment exists in a greater context that includes access to personal care services, transportation, and health care, and he believes that antidiscrimination law must be paired with social welfare reform to be truly effective.

The inequities experienced by people with disabilities were the catalyst for the passage of the Americans with Disabilities Act of 1990 (ADA) and they continue to be of grave concern to disability advocates and public policy makers. It has been over 15 years since the passage of the ADA, and despite increased protections against workplace discrimination, the employment gap between people with and without disabilities remains and is growing (Burkhauser, Houtenville, & Rovba, 2007). Improved understanding of the ADA, accommodation, and trends in discriminatory practices is needed to proactively address continuing disparities.

1.2 PRIOR RELATED RESEARCH

A variety of methods have been employed in an attempt to better understand where and why employment-related disparities exist for people with disabilities. The approaches used have been studies examining employment trends using economic analysis, studies of workplace policies, practices, and accommodation approaches, studies examining attitudes toward people with disabilities, and analysis of employment discrimination claims, among others. We will focus on the research conducted on disability employment discrimination claims, but will also briefly acknowledge efforts made using other methods that confirm the need for continued scrutiny of employment disparities for people with disabilities and workplace policy and practice.

1.2(a) Studies Examining Employment Trends

There have been a variety of studies employing the tools of economic analysis which have attempted to determine the efficacy of the ADA in raising employment and income for individuals with disabilities. Many of these studies have approached the concern about employment disparities by using national secondary data sets to examine changes in employment trends since the passage of the ADA (Acemoglu & Angrist, 1998, 2001; DeLeire, 2000a, 2000b; Schwochau and Blanck, 2000; Bound & Waidman, 2000; Burkhauser, Houtenville & Wittenburg, 2001; Burkhauser, Daly, Houtenville & Nargis, 2001; Beegle & Stock, 2003; Goodman & Waidman, 2003; Burkhauser & Stapleton, 2003; Bagenstos, 2004; Jolls & Prescott, 2004; Hotchkiss, 2005; Houtenville & Burkhauser, 2005; and Lehman, 2006). These studies have been useful in contributing to an understanding of changes in employment trends since the ADA, although much debate in interpretation of findings continues, focusing on the definition of disability used in the major data sources and/or the confounding effect of changes in other policies, especially the Social Security programs.

1.2(b) Studies of Workplace Policy and Practices and Accommodation

While the debate over the rise or fall of the employment rate of people with disabilities is interesting, it does not provide information on specific ways to effect policies and practices nor the accommodation process within organizations. Over the years, surveys of employers and individuals with disabilities about the ADA have found that human resources managers are making changes in response to the ADA, but report uncertainties and difficulties in accommodating people with visual and hearing disabilities. Making organizational changes to accommodate employees with disabilities was reported to be easier than changing supervisor or coworker attitudes (Bruyère, 2000). Smaller companies are significantly less likely to have made accommodations than larger ones, and were less familiar with pre-employment interviewing and screening concerns than larger firms (Bruyère, Erickson, & VanLooy, 2006). Federal human resources managers and supervisors were more familiar with making most accommodations, but also reported that changing attitudes was the most difficult change they had to make in response to the ADA (Bruyère & Erickson, 2001; Bruyère, Erickson, & Horne, 2002). A recent Job Accommodation Network (JAN)/University of Iowa survey of recent JAN clients (Schartz, Hendricks & Blanck, 2006) found that most accommodations cost nothing to employers and benefited them by allowing them to retain, hire, or promote a valuable employee, and that accommodations allowed employees to be more productive for the company.

Using data from the Health and Retirement Survey (HRS) Burkhauser, Butler, and Weathers (1999) suggest that employer accommodations slow the pace at which worker’s apply for SSDI benefits. Zwerling et al. (2003), using a nationally representative sample of working Americans, found that only 12 percent reported receiving workplace accommodations, and that several specific impairments were less likely to be accommodated, including severe hearing problems, mental health, and alcohol abuse. Frank and Bellini (2005) used a qualitative data-gathering approach to identify continuing barriers to successful accommodation in the workplace.

1.2(c) Studies Examining Attitudes Toward People with Disabilities

Regarding attitudes toward people with disabilities, Hernandez, Keys, and Balcazar (2004), examined attitudes towards disability rights among private and public sector employers, and found that increased levels of knowledge about the ADA and exposure to unbiased information about it correlated with more positive attitudes towards disability rights. Gilbride et al. (2003) identified 13 characteristics of employers who are open to hiring and supporting people with disabilities, and grouped them around three major categories: work culture issues, job match, and employer experience and support. Schur, Kruse, and Blanck (2005) examined the role that corporate culture plays in the employment of people with disabilities, but found few studies that looked at supervisor and co-worker attitudes. Wooten and James (2005) explored the difficulties organizations encounter when trying to make culture changes, and found that resistance to learning new attitudes is a result of discriminatory organizational routines and deeply embedded defenses. Bruyère (2000) found in a survey of human resources professionals that that lack of requisite work experience, skills and training, supervisor lack of knowledge about accommodations, and supervisor or coworker attitudes were key barriers to employment and advancement for people with disabilities reported.

1.2(d) Studies Using EEOC Disability Employment Discrimination Charge Data

Analyses of employment-related discrimination claims and subsequent legal outcomes are another important source of information about where and how discrimination is occurring in employment settings, and the focus of this paper. McMahon, Shaw and Jaet (1995) analyzed EEOC charges filed in the first calendar year of the ADA. Overall, 84 percent of complaints involved currently employed individuals, with the remaining 13.6 percent related to job acquisition. The majority of the charges (70 percent) involved matters of job retention. Reasonable accommodation accounted for only about 19 percent of charges. Individuals with a physically distinguishing disability (disfigurement, missing limb, etc.) and those with visual or hearing impairments were more likely to be involved in hiring discrimination, harassment and promotion complaints, but least involved with discharge issues. Discharge issues were relatively homogeneous, with those with chemical dependency, cancer, learning, and mental disabilities showing up slightly more often in this category.

A study by Ullman, Johnson, Moss and Burris (2001) examined the effects of the EEOC’s three-tiered charge policy, implemented in June 1995, on claimants with psychiatric disabilities. Only charges whose evidence suggests a high probability that discrimination occurred are classified as “category A” and fully investigated. The investigators found that category A cases had the highest total benefits rate and also that psychiatric illnesses were significantly less likely to be classified in the upper two tiers than other disabilities. Two major concerns are noted, one was that the EEOC has never validated the accuracy with which its staff assigns priority to cases. The other concern related to the fact that the greater likelihood that psychiatric disabilities are frequently assigned the lowest priority, perhaps due to bias or lack of training on the part of the EEOC investigators.

McKenna (2005) found that EEOC charges by people with cancer were more likely than those from the general disability population studied to involve discharge, terms and conditions of employment, lay-offs, wages and demotion, and were more likely to be filed against smaller employers (15-100 workers) or those in the service industries. Claims filed by those with cancer were also more likely to be found to have merit more than those filed from the general disability population.

Recently, the National EEOC ADA Research Project (McMahon, Edwards, Rumrill, & Hursh, 2005) was established, to use the EEOC charge data to investigate discrimination against people with specific disabilities or in specific industries, as well as taking a more general look at the roots of and nature of discrimination (Armstrong, McMahon, West, & Lewis, 2005; Conyers, Boomer, & McMahon, 2005; West, McMahon, Monasterio, Belongia, & Kramer, 2005; Bowe, McMahon, Chang, & Louvi, 2005; McMahon, West, Mansouri, & Belongia, 2005; McMahon, West, Shaw, Waid-Ebbs, & Belongia, 2005; Chan, McMahon, Cheing, Rosenthal, & Bezyak, 2005). However, this research focuses on charges where merit was determined by the EEOC and not FEPAs, because initial analysis necessitated consistency in the investigation process (McMahon and Shaw, 2005). Research that includes analysis of both sets of claims follows.

1.2(e) Studies Using EEOC/FEPA Disability Employment Discrimination Charge Data

Disability discrimination claims can be filed either with the EEOC or a state Fair Employment Practice Agency (FEPA). Previous research has shown that outcomes in the discrimination charge process are highly related to the office in which the claim was filed and investigated. Moss, Ullman, Starrett, Burris, and Johnsen (1999) examined the outcomes of the 145,794 ADA employment related charges filed and closed by March 1998. They found that only 15.7 percent brought some sort of benefit to the charging parties and less than two percent resulted in new hires or reinstatements. The proportion of charges resulting in beneficial outcomes was also found to have decreased in recent years. A difference was found in outcomes, with charges closed by state FEPAs more likely to lead to some benefit (23.3 percent) than those closed by the Equal Employment Opportunity Commission (EEOC, 11.5 percent). However, in determinations resulting in monetary benefits, the EEOC-handled charges received a median benefit of $5,646, compared to $2,400 for FEPAs. Reasonable cause for discrimination findings is very infrequent, at 3.4 percent for EEOC and 1.3 percent of FEPA investigations. Percy (2000) performed a detailed analysis of ADA administrative remedies and legal disputes. He examined legal precedents and controversies emerging in ADA cases and summarized court findings for certain disability categories including HIV, learning disabilities, and “correctable” disabilities.

This prior research has shown substantial variation in outcomes across and within the EEOC and FEPAs. Moss and colleagues use CDS data to compare the beneficial outcomes of individuals who filed with FEPAs to those individuals filed with the EEOC, with a focus on persons with psychiatric disabilities (Moss, Ullman, Johnsen, Starrett, and Burris, 1999; Moss, Ullman, Starrett, Burris, and Johnsen, 1999). Generally they found that individuals who file charges with FEPAs are more likely to receive benefits when compared to those who filed with the EEOC offices. However, their results showed that the average dollar amount of the settlement was higher for EEOC cases when compared to FEPA cases. In addition, these analyses showed a great variation among EEOC offices and among different FEPA offices, in both the likelihood of receiving benefits from charges, as well as in the dollar amount received in settlements.

Moss, Burris, Ullman, Johnsen, and Swanson (2001) also looked at differences in outcomes depending on the investigating EEOC office. These authors suggest that many of the problems identified were related to the lack of resources required to sufficiently pursue ADA charge investigations, which they refer to as an EEOC “unfunded mandate.” Moss and Johnsen (1997) found that many charges were given extensive thoughtful investigations, but that there were numerous problems with the categorization process in general. The problems included understaffing, insufficient investigative time, and inadequate funds. Given that the categorization is mainly based on the initial interview, and that this categorization establishes subsequent investigation efforts, Moss concludes that “an articulate and convincing presentation, regardless of actual merit, is probably difficult or impossible for many claimants, particularly those with a cognitive or psychiatric disability.”

In a multivariate analysis of the CDS data, Moss et al. (2001) developed a theoretical framework to better understand ADA employment discrimination charges. The intent was to develop a model to explain the impact of the EEOC’s administrative process on outcomes such as overall benefit rates and dollar amount won. Among the factors found to have a significant impact on outcomes was the office where the charge was filed itself.

1.2(f) Studies Examining Legal and Judicial Outcomes

Results in the courts suggest that the law is being interpreted quite narrowly. Lee (2001) analyzed 267 ADA lawsuits decided by federal appellate courts through July 1998. Lee determined that the plaintiffs won in only four percent of the cases, with the vast majority (89 percent) resulting in a summary judgment for the employer. Moss, Ullman, Swanson, Ranney, and Burris (2005) examined the national prevalence of ADA employment discrimination lawsuits filed in federal courts from 1993 to 2001, as well at their outcomes. They conclude that published case decisions are misleading as to overall outcomes of ADA cases. Plaintiffs received beneficial outcomes in 62% of cases filed, primarily through settlement. Among cases decided by a judge or jury, defendants won 97%, while having an attorney doubled a plaintiff’s chance of benefiting.

Swanson, Burris, Moss, Ullman, & Ranney (2006) compared outcomes for people with psychiatric disabilities to people with non-psychiatric disabilities in the federal courts. They found that people with psychiatric disabilities fared significantly worse in ADA lawsuits, and were also significantly less satisfied with the overall process.

1.3 PRIOR RELATED LEGAL CASES

For the sake of completeness on this topic, a preliminary review of legal cases was conducted and produced a number of legal cases in state and federal courts, but no direct comparisons of EEOC and FEPA data to further inform this study. An example of what was available from this search were cases where plaintiffs objected to a court's use of the federal EEOC standard where their own state's standard provided a greater degree of protection.[5] Some further examples of where information on these cases might inform our understanding of findings is presented below, in the Results and Implications sections of this paper.

PART II: EEOC/FEPA DIFFERENCES

2.1 PURPOSE OF THIS ARTICLE

Taken together, the research of Moss and colleagues suggest that idiosyncratic differences between the EEOC and FEPAs in the way charges are processed affect the outcomes of a claim. However, this may be due to underlying differences in the composition of charges filed in EEOC and FEPA offices. In this paper, we use descriptive statistics to look at differences in the percentage of total charges filed at EEOC and FEPA offices over time, across states, and by issue and bases. We focus on differences between the ADA and other statutes to see whether similar EEOC/FEPA differences are seen in the other statutes. If type and nature of the claims are systematically different, than this could explain why outcomes differ between EEOC and FEPA offices.

2.2 THE EMPLOYMENT DISCRIMINATION CLAIMS PROCESS

Before discussing the data we use to investigate differences between EEOC and FEPA offices, it is important to understand the employment discrimination claims process. The EEOC was established as part of the Civil Rights Act of 1964, which outlawed discrimination on the basis of race, color, religion, gender, or national origin, and allowed individuals to bring civil suits only after filing a charge with the EEOC offices. With its headquarters in Washington, D.C., and through the operations of 15 district offices, 9 field offices, 15 area offices, and 14 local offices nationwide,[6] the EEOC coordinates all federal equal employment opportunity (EEO) regulations, practices, and policies. The Commission interprets employment discrimination laws, monitors and conducts hearings in the federal sector employment discrimination program, sponsors outreach and technical assistance programs, and provides funding and support to state Fair Employment Practices Agencies (FEPAs) charged with enforcing anti-discrimination laws at the state level.[7]

Any individual who believes that he or she has been discriminated against in employment may file an administrative charge with the EEOC. After investigating the charge, the EEOC determines if there is "reasonable cause" to believe that discrimination has occurred. After a reasonable cause determination, the EEOC attempts to conciliate the charge by reaching a voluntary resolution between the charging party and the respondent. If conciliation is not successful, the Commission may bring suit in federal court. As part of the administrative process, the EEOC will issue a Right-to-Sue-Notice to a charging party, allowing that individual to file a private action in court without the agency's involvement if the charge is dismissed or the EEOC does not file suit following a cause finding.[8] The EEOC also offers mediation as an alternative means of dispute resolution. Rather than initially going through the traditional charge investigation process, the parties may first elect to resolve the charge voluntarily with the help of a neutral mediator.

The EEOC and state-level FEPA agencies have work-sharing agreements, which designate each other as agents for the purpose of receiving and investigating charges.[9] Through the use of these contractual work-sharing agreements, the EEOC and the FEPAs automatically dual-file charges of discrimination under both federal and, where they exist, state laws. This arrangement avoids duplication of effort while ensuring that a charging party's rights are protected under all applicable laws enforced by the FEPA and the EEOC. When a charge is filed with either agency, it is dually filed with both agencies. The work-share agreement will control which agency handles the investigation.[10]

Any individual who believes his or her employment rights are violated may file a claim. Additionally, an individual, organization, or agency may file on behalf of another person to protect that person’s rights. Federal laws concerning employment discrimination are enforced by different Federal agencies.[11] The EEOC, however, is responsible for coordinating the Federal government’s employment nondiscrimination efforts.[12] The EEOC also conducts hearings upon request and accepts several types of appeals in discrimination claims brought by federal employees or applications.[13]

As is true for most laws enforced by the EEOC, the ADA requires filing of a charge with the EEOC before a case can be filed in court. Charges can be filed by mail, or in person at a local EEOC office, and must be filed within 180 days of the date of the violation. This 180-day filing deadline is extended to 300 days if the charge is also covered by a state anti-discrimination law. After the charge is filed, the employer is notified that a charge has been filed. The charge is then assigned for either Priority Investigation (if the initial facts appear to support the charge) or Follow-Up Investigation (to determine if it is likely a violation occurred). The EEOC can seek to settle the charge at any stage, and can make written requests for information, interviews, document review, or location visits. If both parties agree, mediation can be used as an alternative to a lengthy investigation.

If the EEOC decides that there is reasonable cause to believe that a violation occurred, conciliation is attempted. If the parties reach conciliation, it is memorialized into a written agreement which is enforceable in court. The EEOC, the charging party, and the employer are all parties to the agreement. If this is successful, neither party can file a lawsuit except to enforce the agreement. If conciliation is unsuccessful, the EEOC can bring a case to court on behalf of the government. In ADA cases, as well as selected other cases, the EEOC has authority to file suit only after obtaining from the Commissioners. Alternatively, the EEOC can choose not to file the case itself, and issue a “right to sue” letter, indicating the charging party has the right to file a lawsuit on his or her own behalf. If the EEOC dismisses the charge, the charging party has 90 days to file in court on their behalf.

If the EEOC does issue a reasonable cause finding in a charge filed against the government, a government agency, or a political subdivision, and no conciliation is reached, then the EEOC refers the matter to the U.S Attorney General in the Department of Justice (DOJ). The U.S. Attorney General decides whether to file suit on behalf of the government against a governmental agency or political subdivision (see 42 U.S.C. 20003-5(f)(1)). For example, if a charging party files an ADA charge against ABC School District, then only the Attorney General can file suit, not the EEOC; the EEOC would handle the investigation, however, including conciliation attempts. If those were unsuccessful, the matter would be referred to the Department of Justice, which has the discretion to file suit. If no suit is filed by the DOJ, the charging party will receive a right to sue letter from Justice. If the DOJ did file suit, the charging party would still have the right to intervene.

In a FEPA investigation, a charging party who is aggrieved by the FEPA's final action may request a substantial weight review by the EEOC within 15 days of the FEPA’s final decision. Substantial weight review is the review given to final actions of the FEPAs in order to accord substantial weight to such finding by the EEOC as required by 706 of Title VII of the Civil Rights Act of 1964. In other words, the EEOC will adopt the FEPA's final decision, return it to the FEPA for further investigation, or continue the investigation after the deferral period. With a reorganization of district office jurisdiction in 2005, it was proposed that the jurisdiction of some states be “split” between different EEOC district offices. However, both contract administration and the substantial weight review process is performed by one district office.[14]

2.3 EEOC and FEPA Offices

The location and frequency of EEOC offices (district, area or local) coincides with population density (most major urban centers are represented) and comprehensive geographical coverage. For example, the EEOC has offices in 22 of the 25 most populated U.S. cities.[15] The large cities without EEOC offices are Jacksonville, Florida; Austin, Texas; and Fort Worth, Texas (but there is an EEOC district office in nearby Dallas, Texa s).

The EEOC also has offices in the West, Midwest, South, and Northeast that provide comprehensive geographical coverage. The area where it lacks the most geographical comprehensiveness is in the Intermountain West/Outer Midwest, where the Denver District Office is the only office for the states of Colorado, Montana, Nebraska, North Dakota, South Dakota, and Wyoming. This may be because of lower population levels, low population density, or a variety of reasons related to the local economy and industry, or the EEOC’s failure to develop these offices. Effective in 2006, the EEOC will have a Las Vegas District Office, which may take some of the pressure off of the Denver District Office.

As for the location and frequency of Fair Employment Practice Act (FEPA) Offices in the fifty states, Alabama, Arkansas, and Mississippi have no state law protections against discrimination on the basis of disability; therefore residents in those states must file EEOC claims at EEOC offices only. Each of these states has an EEOC office: Alabama (Birmingham District Office); Arkansas (Little Rock Area Office); and Mississippi (Jackson Area Office). Because of the absence of independent state protection, residents in these states must file their ADA and ADEA claims within 180 days of the alleged incident of discrimination. This will be further detailed below.

Most states (27, to be exact), have a single FEPA office. Most of these offices are in major state cities, usually the state capitol. Where there is already an EEOC office in a state, the FEPA office is often in the same city. The FEPA office is in the same city as the EEOC office in: Colorado (Denver), Louisiana (New Orleans), Massachusetts (Boston), Michigan (Detroit), North Carolina (Raleigh), Oklahoma (Oklahoma City), and Tennessee (Nashville). The only state where the EEOC and FEPA office were not in the same city was South Carolina, with an EEOC local office in Greenville and a FEPA office in Columbia.

Seven states have two FEPA offices. Like many of the states with one FEPA office, many of the states with two FEPA offices had at least one FEPA office in a city where they already had an EEOC office. These states include Arizona (Phoenix), Georgia (Atlanta), Illinois (Chicago), Kansas (Kansas City), Minnesota (Minneapolis), and New York (New York).

States with three FEPA offices tend to be bigger (geographically) and in some cases they tend to be states with more than one major city with substantial distances between the major cities. At least one city in each state had a FEPA and EEOC office in the same city: Kentucky (Louisville Area Office), Nevada (Las Vegas District Office beginning in 2006), Pennsylvania (Philadelphia District Office; Pittsburgh Area Office); Washington (Seattle District Office); Wisconsin (Milwaukee District Office).

As with the states with three offices, states with four FEPA offices tended to have multiple major cities in different corners of the state. The fact that Texas has so few FEPA offices considering its vast size may be explained by the many EEOC offices it has: Houston District Office, Dallas District Office, San Antonio District Offices, and the El Paso Area Office. In addition to its four FEPA offices, Ohio has two EEOC offices -- the Cleveland District Office and the Cincinnati Area Office.

The following states represent the states with the highest number of FEPA offices. All of these states have at least one EEOC office within the state: Maryland (Baltimore District); Missouri (St. Louis District, Kansas City Area responds to charges in Kansas and Missouri); New Jersey (Newark Area); Indiana (Indianapolis District); California (San Francisco and Los Angeles District; San Diego Area; Oakland, San Jose, Fresno Local); and Florida (Miami District, Tampa Area).

States that stand out as having multiple FEPA offices relative to their sizes and populations are: California (10), Florida (11), Indiana (8), Kentucky (3), Maryland (5), Missouri (5), New Jersey (6), and Ohio (4). These are all states that also have EEOC offices. These states provide multiple FEPA offices in diverse locations, in addition to EEOC offices.

2.4. DATA SOURCE

To investigate differences between charges filed in EEOC offices and charges filed in FEPA offices, we utilize data from the EEOC's Charge Data System (CDS). Since 1991 the EEOC has collected integrated data on individual charges and allegations filed in both EEOC and FEPA offices into a national computerized and standardized data base—the CDS.[16] We use two data sets extracted from this system. One data set contains information for each charge filed, while the other data set contains information for each allegation. There is not a one-to-one match, given a charge may contain more than one allegation per charge. (This is similar to the way the Centers for Disease Control and Prevention (CDC) collects health data -- a person may have more than one health condition.) We merge these two data sets using a unique charge number that is contained in each data set. This merged data set contain information on the charging and charged parties, and case-related details, statutes cited, actions taken by the EEOC or FEPA office, remedies/benefits, as well as Standard Industry Code and ZIP codes, size of the firm, and other variables.

2.5 VARIABLES

For our analysis we compare Title VII of the Civil Rights Act, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act (ADEA) employment discrimination charges filed and resolved by the EEOC from the beginning of fiscal year 1993 to the end of fiscal year 2003. Variables used in our analysis include year of charge intake, type of intake office (EEOC or FEPA), state of charging party, statute(s) cited, issue(s) (e.g., discharge, terms and conditions of employment, harassment, sexual harassment, promotion, wages, discipline, and reasonable accommodation), and bases (type of disability). A single charge may cite more than one statute and/or issue.

2.6 SAMPLE RESTRICTIONS

We use charges filed under Title VII, ADA, and ADEA employment discrimination-related charges filed with the EEOC and FEPA from the beginning of fiscal year 1993 to the end of fiscal year 2003. We do not analyze the 780 charges that are filed solely under the Equal Pay Act (EPA) and the 1,454 charges that are filed solely under the Rehabilitation Act. Since the ADA was implemented in July 1992, we only have a portion of that fiscal year's information, and thus we do not include these data in our analysis.[17] Furthermore, we do not analyze charges with missing or erroneous data for the variables we analyze (statute, basis, issue, year, and office) or duplicate charges. The resulting data file includes 328,001 ADA charges, 311,943 ADEA charges, and 1,172,420 Title VII charges.

PART III: RESULTS

3.1 TIME TRENDS

Exhibit 1 provides a breakdown of ADA-related charges separated by whether they were filed in an EEOC office or a FEPA office. Of the 328,001 ADA-related charges over the period 1993-2003, 53.9 percent were filed in EEOC offices. Annually, this percentage ranged from a low of 49.4 percent in 2003 to a high of 58.7 percent in 1993. As shown in Exhibit 2, the trend in percentage of ADA-related charges filed in EEOC offices generally declined over the period 1993-2003.

Exhibit 3 provides the same breakdown for ADEA-related and Title VII related charges. Of the 311,943 ADEA-related charges filed over the period 1993-2003, 60.2 percent were filed in EEOC offices -- on an annual basis it ranged from a 56.1 percent in 1997 to a high of 64.2 percent in 2003. Of the 1,172,420 Title VII-related charges filed over the period 1993-2003, 55.2 percent were filed in EEOC offices -- on an annual basis it ranged from a 52.9 percent in 1993 to a high of 57.6 percent in 2000. As shown in Exhibit 4, the percentage of ADEA-related charges filed in EEOC offices decreased until 1997 and then increased each year after 1997. The percentage of Title VII-related charges filed in EOCC offices trended slightly upwards over the period.

3.2 CLAIMS ACROSS STATUTES AND STATES

As shown in Exhibit 5, the percentage of ADA-related charges filed in EEOC offices ranges considerably across the states, from a low of 3.7 percent in Maine and Nebraska to a high of 99.5 percent in Alabama. The five states with the highest percentage of EEOC ADA-related charges were Alabama, Louisiana, Mississippi, Arkansas, and North Carolina, while the five lowest states were Montana, Iowa, Maryland, Nebraska, and Maine. The percentages of ADEA- and Title VII-related charges filed in EEOC offices follow the same pattern -- the top and bottom five are the same with one exception. To summarize the patterns across states, all pair-wise comparisons were highly correlated -- a correlation coefficient of 0.98. This suggests that there is an underlying relationship between the filing of ADA-, ADEA-, and Title VII-related charges at particular offices. We strongly suspect that the location and number of offices may influence filings; not all states have EEOC offices and some have more than others.

3.3 CLAIMS ACROSS STATUTES BY ISSUE

As is shown in Exhibit 6, the percentage of ADA-related charges filed in EEOC offices ranges considerably by issue. Looking at only issues with more than 10,000 ADA-related charges, these range from a low of 39.9 percent for terms/conditions (of employment) to a high of 67.5 percent for reasonable accommodations and 64.0 percent for discipline. Similar patterns are seen in other statutes. The correlations among the statutes are 0.90 for ADA and ADEA, 0.93 for ADA and Title VII, and 0.85 for ADEA and Title VII. These correlations suggest that the underlying conditions that lead to differences between the FEPA and EEOC are likely to be the same across statutes. In other words, it is not just the ADA.

3.4 CLAIMS ACROSS STATUES BY BASES

Exhibit 7 provides the EEOC filing rate across statutes and specific bases (e.g. type of disability). Exhibit 7 differs from the other tables and figures provided in the paper in that it focuses on the years 1995-2003, because in the years 1992-1994, the categories used to code ADA bases underwent some revisions. The percentage of charges filed in EEOC offices ranges considerably across bases. The EEOC rate ranges from a low of 26.2 percent for missing digits/limbs to 74.8 percent for record of a disability, looking at ADA bases with 5,000 or more total charges in this period. Differences between protections afforded by federal law and state laws, as well as court interpretations of the ADA over time, may be influencing changes in charging parties’ choices of where to file their claims on a year-to-year basis.

3.5 HOLDING CONSTANT CROSS-STATE COMPOSITION

Returning to Exhibit 2, the decline in the percentage of ADA-related charges filed in EEOC offices (the EEOC rate) may be due to a shift in the U.S. population to states that have fewer or no EEOC offices. In other words, the composition of charges with regard to the states in which they were filed may have changed over time. To quantify the relative influence of compositional changes, we rely on a mean decomposition technique to divide the percentage point decline in the EEOC rate into two components: (1) the change attributable to the change in across-state composition and (2) the changes in state-specific EEOC rates. Basically, we are re-estimating the EEOC rates, holding the share of total charges constant over time.

Exhibit 8 contains the actual and adjusted EEOC rates for the three statutes, holding constant the state-specific shares of charges to 1995 EEOC rate levels. We are using 1995 for two reasons: (a) the EEOC rate is at its highest other than in 1993, the first full-year of ADA implementation, and (b) it appears that the ADA was still somewhat newly implemented in 1993, even though it had six months of implementation in 1992.

As is shown in Exhibit 8, the declining trend in the ADA-related EEOC rate was affected by holding state-composition constant. The ADA-related EEOC rate declined by 7.0 percentage points -- from 56.4 percent in 1995 to 49.4 percent in 2003. From our decomposition analysis, the change in state-specific EEOC rates contributed 5.8 percentage points to the 7.0 percentage point decline in the national EEOC rate between 1995 and 2003. The change in cross-state composition contributed only 1.2 percentage points. In other words, if the cross-state composition did not change, then the EEOC rate would have declined by 5.8 percentage points. So, shifts in the U.S. population did contribute some to the decline in the EEOC rate for ADA-related charges, but not as much as changes in state-specific ADA-related EEOC rates.

For ADEA-related charges, we examine the 4.1 percentage point rise in the EEOC rate from 60.1 percent in 1995 to 64.2 percent in 2003. From our analysis, the change in state-specific EEOC rates contributed 4.3 percentage points to the 4.1 percentage point rise in the national EEOC rate between 1995 and 2003. The change in cross-state composition contributed -0.2 percentage points. So, the changes in cross-state composition dampened the rise in the EEOC rate for ADEA-related charges.

For Title VII-related charges, we examine the 1.9 percentage point rise in the EEOC rate from 54.5 percent in 1995 to 56.4 percent in 2003. From our analysis, the change in state-specific EEOC rates contributed 1.3 percentage points to the 1.9 percentage point rise in the national EEOC rate between 1995 and 2003. The change in cross-state composition contributed 0.6 percentage points. So, the changes in cross-state composition increased the rise in the EEOC rate for Title VII-related charges.

PART IV: DISCUSSION

A significant part of our focus in this body of research is identifying meaningful information to inform the policies and practices of the EEOC, FEPA, employers, protection and advocacy organizations, and other disability advocacy organizations that provide information to people with disabilities.

Some of the specific implications of this information that warrant further discussion and possible additional investigation are the following: the significance of the number of claims filed across both agency systems; the possible meaning of the changes in trends in filings between agencies; comparison of trends in disability claims filed between organization systems and that of other statutes; comparison of the number of disability discrimination charges filed between systems in specific states; and differences in where charges are filed for specific types of issues, with an example given of the possible influence of Supreme Court decisions on filings.

4.1 NUMBER OF CLAIMS FILED ACROSS BOTH AGENCY SYSTEMS

One of the striking and significant findings of this research is the number of charges that are filed across the two systems collectively, and the fact that almost half of the claims are filed with FEPAs. This would suggest that for many studies examining discrimination issues in the workplace, both sets of data must be used. This is particularly true for select issue areas, where this study illustrates that claims filed in one system are significantly larger than those same types of claims filed by issue in another system. An example is in the area of hiring, where 90% of the disability discrimination claims are filed in EEOC offices.

4.2 CHANGES IN TRENDS IN FILINGS BY AGENCY

This research evidences a change in the number of disability employment discrimination charges filed between EEOC and FEPA offices over the ten years studied (1993-2003). On average there is a fairly even split across time in the filings between the two claims filing structures (54 percent EEOC) across the ten years. However, over time there is almost a ten percent spread in charges filed with the EEOC from a high of almost 59% in 1993, to a low of 49% in 2003. Further study is needed to determine what is influencing individual filing behavior and if these outcomes in filings differences between the two respective processes is advantaging or disadvantaging individuals in any significant way. Our mean decomposition analysis suggests that it is not the case that the U.S. population has shifted away from states that are predominantly represented by EEOC offices.

4.3 COMPARISON OF TRENDS IN DISABILITY CLAIMS FILED WITH THAT OF OTHER STATUTES

Without further inquiry, the ten percent spread in disability employment discrimination claims filed over time between agency structures might have suggested that this was unique to the ADA. These trends, however, appear not to be driven by the unique experience of the ADA or the experience of disability discrimination charging parties per se, as the percent change is similar across other statutes over time. It is not surprising that the variation in the percentage of charges filed in EEOC offices is similar across statutes, since there are states without EEOC offices and states where both FEPA offices and EEOC offices are present, but in different geographic locations. The location of where individuals may file a charge does not differ across statute. If the populations covered by each statute are not unequally distributed across these locations, then we would not expect state-to-state patterns to differ, unless individuals in states with both FEPA and EEOC offices are choosing to file in a certain office based on the perceptions of how their claim will be treated.

Taken together, the fact that the variation over time, across state and across issue in the percentage of charges filed at EEOC offices is similar across the ADA, ADEA, and Title VII suggest that the underlying conditions that lead to EEOC differences are likely to be the same across statutes. In other words, it is not just the ADA. Our findings suggest that these influencing factors may not only impact ADA charges. This is consistent with the conclusions that may be drawn from Moss and colleagues, that there must be other reasons that assist to explain why these trends are different. Further research is needed to compare outcomes across statutes. Possible alternative explanations that have been offered to date are staffing and resources constraints that are faced in the offices. In addition, it may well be proximity to charging parties, the availability of specific offices, and/or the known strengths of their respective staffs for dealing with specific kinds of charging parties’ issues that may drive claimant behavior.

4.4 COMPARISON OF NUMBER OF DISABILITY DISCRIMINATION CHARGES FILED BETWEEN SYSTEMS IN SPECIFIC STATES

There are very wide variations in filings across all statutes studied here between EEOC and FEPA offices across states. In some cases (Alabama and Louisiana), the preponderance of cases filed (99.5 percent) across all three statutes is with the EEOC. In others (Maine, Maryland, and Rhode Island), the preponderance of cases (94% on average), are filed with FEPAs. It is likely that these differences are due to the presence of related offices and organizational structures for each of the two filing entities in the respective states, as well as differences between the state laws and the ADA and the protections afforded individuals with disabilities in each.[18] In addition, when deciding a state discrimination claim, state courts look to federal decisions to guide their interpretation of similar provisions in state statutes when there are not state appellate decisions on that issue.[19]

4.5 DIFFERENCES IN ISSUES ACROSS STATUTES

From our analysis of issues there appear to be differences in the issues received by EEOC offices and those received by FEPA offices. Looking at only issues with more than 10,000 ADA-related charges, these range from a low of 39.9 percent for terms and conditions to a high of 56.4 percent for reasonable accommodations and 64.0 percent for discipline. Such differences may lead to differences seen in outcomes (likelihood of receiving right-to-sue permission and financial benefits).

4.6 INFLUENCE OF SUPREME COURT RULINGS

The fluctuations in the percentage of EEOC claims filed of the total across EEOC and FEPA offices may reflect differences between state and federal disability legislation and court rulings. For instance, in Sutton v. United Airlines, 527 U.S. 471 (1999), the U.S. Supreme Court ruled that factors that mitigate the disabling nature of an impairment may be considered when determining whether a person is covered under the ADA. One of the things that has been most challenging for ADA plaintiffs is the Supreme Court's interpretation in Sutton that when deciding whether a plaintiff has a "substantial limitation" in a major life activity, you have to take into account any mitigating measure they utilize, such as medication or an assistive device. Consequently, many people who use mitigating measures have been deemed not to have an ADA disability. Many state disability laws use the same "substantially limits" language as the ADA and thus, many states have a similar narrow interpretation of disability for people who use mitigating measures. However, for those state laws that do not have the "substantially limits" language in its definition of disability (such as Illinois, Iowa and Wisconsin[20]), the use of mitigating measures isn't relevant, and therefore, plaintiffs have a better chance of proving their cases.[21]

Therefore, after Sutton, we expect that people with disabilities that are addressed by mitigating measures would be more likely to pursue remedies under state laws than before Sutton, especially in states that have a more expansive definition of disability. Thus, after Sutton we expect that people with these disabilities who are located in states with a more expansive definition of disability would be more likely to file in FEPA Offices than before Sutton, when compared to people with disabilities not addressed by mitigating measures in states with a less-expansive definition of disability.[22] To investigate this issue, we compare the EEOC rate pre-Sutton (1995-1999) and post-Sutton (2000-2003) in three Midwest states with a more expansive definition of disability (IA, IL, WI) and four Midwest states with a less-expansive definition of disability (IN, MI, MN, OH) for select impacted (diabetes, epilepsy, hearing impairment, and mental disabilities) and non-impacted disabilities (all other disabilities) -- a total of eight combinations, two state types and four disability categories.

As is shown in Exhibit 9, the EEOC rate increased in all eight combinations, however it is the difference among the categories that matters. For diabetes, the percentage increase (i.e., the movement toward EEOC offices) was less in states with a more expansive definition of disability (3.7 percent) in comparison to states with a less-expansive definition of disability (5.0 percent). For epilepsy, the move toward EEOC office filings was less in states with a more expansive definition of disability (3.2 percent) in comparison to states with a less expansive definition of disability (10.0 percent). The opposite was true for hearing impairment, where the move toward filing in EEOC offices was greater in states with a more expansive definition of disability (5.0 percent) in comparison to state with a less expansive definition of disability (3.4 percent). For mental disability, the move toward filing in EEOC offices was less in states with a more expansive definition of disability (0.6 percent) in comparison to states with a less expansive definition of disability (4.7 percent). These results suggest that the Sutton decisions affected filing behavior and that it made state legislation more relevant for people in states with a more expansive definition of disability.

PART V: CONCLUSION

Examining the disability employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) and Fair Employment Practice Agencies (FEPAs) within states provides a fuller picture of disability employment discrimination claims nationally and subsequently further informs our understanding of where problems may be occurring in the implementation of the ADA Title I provisions. A significant part of our focus in this body of research is identifying meaningful information to inform the policies and practices of the EEOC, FEPA, employers, protection and advocacy organizations, and other disability advocacy organizations that provide information to people with disabilities.

This research evidences a change in the number of disability employment discrimination charges filed between EEOC and FEPA offices over the ten years studied (1993-2003), with charges increasing in FEPA agencies. The fact that the variation over time, across state and across issue in the percentage of charges filed at EEOC offices is similar across the ADA, ADEA, and Title VII suggest that the underlying conditions that lead to EEOC differences are likely to be the same across statutes and it’s not just specific to the ADA. However, from our analysis of issues there appear to be differences in the issues received by EEOC offices and those received by FEPA offices. In addition, preliminary analyses suggest that the fluctuations in the percentage of EEOC claims filed of the total across EEOC and FEPA offices may reflect differences between state and federal disability legislation and rulings which are influencing individual claimants’ choice in which jurisdiction to file their claim. Further investigation is needed to verify this finding, using other comparisons to examine the impact of legal and judicial decisions on trends in filings over time in respective jurisdictions.

REFERENCES

Acemoglu, D., & Angrist, J. (1998). Consequences of employment protection: the case of the Americans with Disabilities Act. National Bureau of Economics Working Paper #6670.

Acemoglu, D., & Angrist, J. (2001). Consequences of employment protection? The case of the Americans with Disabilities Act. Journal of Political Economy 109(5), 915-957.

Armstrong, A., McMahon, B., West, S., & Lewis, A. (2005). Workplace discrimination and cumulative trauma disorders: the national EEOC ADA Research Project. Work, 25, 49-56.

Bagenstos, S. (2004). Has the Americans with Disabilities Act reduced employment for people with disabilities? Berkeley Journal of Employment and Labor Law, 25, 527-563.

Beegle, K., & Stock, W.A. (2003). The labor market effects of disability discrimination laws. The Journal of Human Resources, 38(4), 806-859.

Bound, J., & Waidmann, T. (2000). Accounting for recent declines in employment rates among the working-aged disabled. Working paper 7975, National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w7975.

Bowe, F., McMahon, B., Chang, T., & Louvi, I. (2005). Workplace discrimination, deafness, and hearing impairment: the national EEOC ADA Research Project. Work, 25, 19-25.

Bruyère, S. (2000). Disability employment policies and practices in private and federal sector organizations. Ithaca NY: Cornell University, School of Industrial and Labor Relations Extension Division, Program on Employment and Disability.

Bruyère, S., & Erickson, W. (2001). E-Human resources: A review of the literature and implications for people with disabilities. Ithaca, NY: Cornell University, School of Industrial and Labor Relations Extension Division, Program on Employment and Disability.

Bruyère, S., Erickson, W., & Horne, R. (2002). Survey of the federal government on supervisor practices in employment of people with disabilities. Ithaca, NY: Cornell University, School of Industrial and Labor Relations Extension Division, Program on Employment and Disability.

Bruyère , S. Erickson, E., & VanLooy, S. (2006). The impact of business size on employer ADA response. Rehabilitation Counseling Bulletin 49(4), 194-206.

Burkhauser, R. V., Butler, J.S., & Weathers, R. (1999). How policy variables influence the timing of Social Security Disability Insurance applications. Ithaca, NY: Cornell University, Rehabilitation Research and Training Center for Economic Research on Employment Policy for Persons with Disabilities.

Burkhauser, R. V., Daly, M., Houtenville, A., & Nargis, N. (2001). Employment of working age people with disabilities in 1980’s and 1990s: what current data can and cannot tell us. Ithaca, NY: Cornell University, Rehabilitation Research and Training Center for Economic Research on Employment Policy for Persons with Disabilities.

Burkhauser, R. V., Houtenville, A., & Wittenburg, D. (2001). A user guide to current statistics on the employment of people with disabilities. Ithaca, NY: Cornell University/Urban Institute, Rehabilitation Research and Training Center for Economic Research on Employment Policy for People with Disabilities.

Burhauser, R.V., Houtenville, A.J., & Rovba, L. (2007). Accounting for the Declining Fortunes of Working-Age People with Disabilities [Chapter in this volume].

Burkhauser, R. V. & Stapleton, D. (2003). A review of the evidence and its implications for policy change. In D. Stapleton & R. V. Burkhauser (Eds.), The Decline in Employment of People with Disabilities: A Policy Puzzle (pp. 369-405). Kalamazoo, MI: W.E. Upjohn Institute for Employment Research

Chan, F., McMahon, B., Cheing, G., Rosenthal, D., & Bezyak, J. (2005). Drivers of workplace discrimination against people with disabilities: The utility of attribution theory. Work, 25, 77-88.

Conyers, L., Boomer, K., & McMahon, B. (2005). Workplace discrimination and HIV/AIDS: the national EEOC ADA Research Project. Work, 25, 37-48.

Dart, Justin. (1990). ADA: Landmark declaration of equality. Worklife: a Publication on Employment and People with Disabilities 3(3): 1.

DeLeire, T. (2000a). The wage and employment effects of the Americans with Disabilities Act. The Journal of Human Resources, 35(4) 693-715.

DeLeire, T. (2000b). The unintended consequences of the American with Disabilities Act. Regulation, 23(1) 21-24.

Frank, J.J., & Bellini, J., (2005). Barriers to the accommodation request process of the Americans with Disabilities Act. Journal of Rehabilitation, 71(2), 28-39.

Gilbride, D., Sensrud, R., Vandergoot, D., & Golden, K. (2003). Identification of the characteristics of work environments and employers open to hiring and accommodating people with disabilities. Rehabilitation Counseling Bulletin, 46(3), 130-137.

Goodman, N. & Waidman, T. (2003) SSDI and the employment rate of people with disabilities. In D. Stapleton & R. Burkhauser (Eds.), The Decline in Employment of People with Disabilities: A Policy Puzzle (pp. 339-405). Kalamazoo, MI: W.E. Upjohn Institute for Employment

Hernandez, B., Keys, C., & Balcazar, F. (2000). Employer attitudes toward workers with disabilities and their ADA employment rights: a literature review. Journal of Rehabilitation, 66(4) 4-16.

Hotchkiss, J. L. (2004). A closer look at the employment impact of the Americans with Disabilities Act. The Journal of Human Resources, 39(4), 887-911.

Houtenville, A. & Burkhauser, R. (2005) Did the Employment of People with Disabilities Decline in the 1990s, and was the ADA Responsible? A Replication and Robustness Check of Acemoglu and Angrist (2001), Ithaca, NY: Cornell University, Rehabilitation Research and Training Center for Employment Policy for Persons with Disabilities.

Jolls, C., & Prescott, J.J. (2004). Disaggregating employment protection: The case of disability discrimination. NBER Working paper No. 10740. Retrieved July 13, 2006, from: http://www.nber.org/papers/w10528

Lee, B. (2001). The implications of ADA litigation for employers: A review of federal appellate court decisions. Human Resource Management, 40(1), 35-50.

Lehman, I.S., (2006) Minimum wage rates and employment of individuals with disabilities. Journal of Rehabilitation, 72(2), 50-57.

McKenna, M. (2005). Discriminatory practices charged under EEOC: An empirical analysis of investigated complaints filed by those who have cancer. (Doctoral Dissertation, University of Maryland, 2005).

McMahon, B., Edwards, R., Rumrill, P., & Hursh, N. (2005). An overview of the national EEOC ADA research project. Work, 25, 1-7.

McMahon, B. & Shaw, L. (2005). Work Place Discrimination and Disability. Journal of Vocational Rehabilitation, 23, 137-143.

McMahon, B., Shaw, L., & Jaet, D. (1995). An Empirical Analysis: Employment And Disability from an ADA Litigation Perspective. 10 NARPPS J. 3.

McMahon, B., West, S., Mansouri, M., & Belongia, L. (2005). Workplace discrimination and diabetes: The EEOC Americans with Disabilities Act research project. Work, 25, 9-18.

McMahon, B., West, S., Shaw, L, Waid-Ebbs, K., & Belongia, L. (2005). Workplace discrimination and traumatic brain injury: the national EEOC ADA research project. Work, 25, 67-75.

Moss, K., Burris, S., Ullman, M., Johnsen, M. & Swanson, J. (2001). Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal Employment Opportunity Commission. Kansas Law Review, Inc., November, 2001.

Moss, K., Swanson, J., Ullman, M., & Burris, S. (2002). Mediation of Employment Discrimination Disputes Involving Persons With Psychiatric Disabilities. Psychiatric Services, 53(8), 988-994.

Moss, K., Ullman, M., Johnsen, M. C., Starrett, B. E., & Burris, S. (1999). Different Paths to Justice: The ADA, Employment, and Adminstrative Enforcement by the EEOC and FEPAs. Behavioral Sciences and the Law, 17, 29-46.

Moss, K., Ullman, M., Starrett, B. E., Burris, S., & Johnsen, M. C. (1999). Outcomes of Employment Discrimination Charges Filed Under the Americans With Disabilities Act. Psychiatric Services, 50(8), 1028-1035.

Moss, K., Ullman, M., Swanson, J., Ranney, L., & Burris, S. (2005). Prevalence and outcomes of ADA employment discrimination claims in the federal courts. Mental & Physical Disability Law Reporter, 29(3), 303-310.

Percy, S. L. (2000). Administrative remedies and legal disputes: evidence on key controversies underlying implementation of the Americans with Disabilities Act. Berkeley Journal of Employment & Labor Law, 21, 413-436.

Schartz, H., Hendricks, D., & Blanck, P. (2006). Workplace accommodations: Evidence based outcomes. Work, 27, 345-354.

Schwochau, S., & Blanck, P. (2000). The economics of the Americans with Disabilities Act, part III: does the ADA disable the disabled? Berkley Journal of Employment and Labor Law, 21(27), 271-313.

Schur, L., Kruse, D., & Blanck,P. (2005). Corporate culture and the employment of persons with disabilties. Behavioral Sciences and the Law, 23, 3-20.

StatsRRTC-Rehabilitation Research and Training Center on Disability Demographics and Statistics. (2006). 2005 Disability Status Reports. Ithaca, NY: Cornell University

Swanson, J., Burris, S., Moss, K., Ullman, M, & Ranney, L. (2006). Justice disparities: does the ADA enforcement system treat people with psychiatric disabilities fairly? University of Maryland Law Review 66 (1), 94-139.

Ullman, M. D., Johnsen, M. C., Moss, K., & Burris, S. (2001). The EEOC charge priority policy and claimants with psychiatric disabilities. Psychiatric Services, 52(5), 644-649.

U.S. Equal Employment Opportunity Commission [EEOC]. (2006). Fiscal Year 2006 E-Government Act Report. October 18, 2006. Washington DC: Author. Accessed on February 9, 2007 at www.eeoc.gov/abouteeoc/plan/irm/2006/egov_report.html

West, S.L., McMahon, B.T., Monasterio, E., Belongia, L., & Kramer, K. (2005). Workplace discrimination and missing limbs: The National EEOC ADA Research Project. WORK: Journal of Assessment, Prevention, and Rehabilitation, 25(1), 27-36.

Wooten, L. P., & James, E.H. (2005). Challenges of organizational learning: perpetuation of discrimination against employees with disabilities. Behavioral Sciences and the Law, 23(1), 123-141.

Zwerling, C., Whitten, P., Sprince, N., Davis, C., Wallace, R., Blanck, P., & Heeringa, S. (2003). Workplace accommodations for people with disabilities: National Health Interview Survey Disability Supplement, 1994-1995. Journal of Occupational and Environmental Medicine, 45(3), 517-525.

Exhibit 5. Average annual ADA-, ADEA- charges and Title VII-related charges filed in EEOC and FEPA offices, by office type and state, pooled over the period 1993-2003

Location	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	Percentage charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
United States	29,818	16,069	13,749	53.9	28,358	17,062	11,296	60.2	106,584	58,853	47,731	55.2
Alabama	446	444	2	99.5	512	509	3	99.4	2,902	2,887	15	99.5
Alaska	77	13	65	16.5	66	13	53	19.2	299	43	256	14.5
Arizona	690	568	122	82.3	666	572	94	85.9	2,260	1,830	430	81.0
Arkansas	336	333	4	98.9	258	255	3	98.7	1,245	1,234	11	99.1
California	2,745	1,300	1,444	47.4	2,554	1,474	1,080	57.7	8,886	3,756	5,130	42.3
Colorado	614	369	244	60.2	624	407	216	65.3	1,881	1,123	758	59.7
Connecticut	531	40	491	7.6	537	61	476	11.3	1,461	83	1,378	5.7
Delaware	106	28	78	26.1	69	26	44	37.2	389	91	298	23.4
District of Columbia	76	54	23	70.3	77	55	22	70.9	427	260	167	60.8
Florida	1,563	1,102	461	70.5	1,622	1,266	356	78.0	6,647	4,224	2,422	63.6
Georgia	781	695	87	88.9	830	752	79	90.5	4,391	3,989	402	90.8
Hawaii	114	51	63	45.0	91	43	48	47.1	421	171	250	40.7
Idaho	125	14	111	10.9	79	13	66	16.2	287	29	258	10.0
Illinois	1,761	999	762	56.7	1,762	1,002	760	56.9	6,210	3,466	2,743	55.8
Indiana	1,055	761	294	72.1	876	692	184	79.0	3,691	2,226	1,465	60.3
Iowa	635	37	599	5.8	354	28	326	7.9	1,088	49	1,039	4.5
Kansas	397	108	289	27.3	308	113	195	36.8	1,095	331	764	30.2
Kentucky	305	202	103	66.3	279	193	86	69.1	1,139	602	537	52.8
Louisiana	313	311	2	99.4	330	329	1	99.6	1,678	1,667	12	99.3
Maine	238	9	229	3.7	108	6	102	5.8	278	10	268	3.8
(Continued)

Exhibit 5. Continued

Location	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	Percentage charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
Maryland	913	51	862	5.6	927	73	854	7.9	2,222	99	2,123	4.5
Massachusetts	524	303	221	57.9	490	299	192	60.9	2,674	1,358	1,316	50.8
Michigan	880	504	375	57.3	624	371	253	59.4	3,248	1,376	1,872	42.4
Minnesota	644	415	229	64.4	440	301	139	68.5	1,290	648	642	50.3
Mississippi	220	218	2	99.1	211	209	2	99.3	1,421	1,412	9	99.4
Missouri	745	421	324	56.5	767	540	227	70.4	2,590	1,464	1,127	56.5
Montana	91	5	86	5.8	64	8	56	12.9	185	7	178	4.0
Nebraska	314	12	303	3.7	234	13	221	5.4	901	33	868	3.6
Nevada	205	43	162	20.9	342	49	293	14.4	1,042	118	924	11.4
New Hampshire	106	44	62	41.5	65	12	53	18.2	207	17	191	8.0
New Jersey	500	253	247	50.6	652	409	242	62.8	1,959	873	1,086	44.6
New Mexico	348	278	70	79.9	320	259	61	81.0	1,372	1,023	349	74.5
New York	1,496	643	853	43.0	1,463	785	678	53.6	5,333	2,085	3,249	39.1
North Carolina	624	587	37	94.0	654	614	40	93.9	2,671	2,466	205	92.3
North Dakota	33	20	12	62.4	24	16	8	67.9	65	44	21	67.7
Ohio	1,516	584	932	38.5	1,361	692	670	50.8	5,068	1,610	3,458	31.8
Oklahoma	364	304	61	83.4	357	300	58	83.9	1,320	1,032	288	78.2
Oregon	380	55	325	14.5	227	48	179	21.1	873	140	734	16.0
Pennsylvania	1,541	682	859	44.3	1,697	816	881	48.1	4,543	1,615	2,928	35.6
Rhode Island	96	6	90	6.3	79	7	71	9.5	215	10	205	4.9
(Continued)

Exhibit 5. Continued

Location	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	Percentage charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
South Carolina	395	148	246	37.6	400	157	243	39.2	1,567	519	1,047	33.2
South Dakota	44	15	29	35.0	30	15	15	50.2	105	31	73	30.0
Tennessee	593	504	89	85.0	568	466	102	82.0	2,600	2,129	472	81.9
Texas	1,953	1,514	439	77.5	2,276	1,774	501	78.0	9,555	7,391	2,165	77.3
Utah	241	17	224	7.1	207	39	167	19.1	569	40	529	7.1
Vermont	51	11	40	21.2	37	6	31	15.8	78	9	69	11.8
Virginia	472	402	70	85.3	468	388	80	82.9	2,018	1,617	401	80.1
Washington	558	249	308	44.7	456	274	182	60.1	1,540	781	759	50.7
West Virginia	140	52	87	37.5	162	53	109	32.8	344	87	257	25.3
Wisconsin	863	283	581	32.8	695	253	442	36.4	2,163	730	1,432	33.8
Wyoming	64	9	54	14.4	59	7	52	11.9	167	15	153	8.9
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC CDS files, 1993-2003.
¹ ADA-related charges include charges based on the ADA alone and in combination with other statutes. The number of charges reflects the number of individual charge filings.

Exhibit 6. ADA-, ADEA- charges and Title VII-related charges filed in EEOC and FEPA offices, by office type and issue, pooled over the period 1993-2003

Issue	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	% charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	% ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	% Title VII Charges with EEOC
Total	328,001	176,758	151,243	53.9	311,943	187,682	124,261	60.2	1,172,420	647,379	525,041	55.2
Apprenticeship	70	39	31	55.7	121	95	26	78.5	449	339	110	75.5
Assignment	5,795	3,901	1,894	67.3	5,763	4,329	1,434	75.1	24,887	18,292	6,595	73.5
Benefits	6,408	4,023	2,385	62.8	6,882	5,124	1,758	74.5	15,674	9,674	6,000	61.7
Breach	26	25	1	96.2	3	2	1	66.7	9	9	0	100.0
Cons Discharge	12,129	7,136	4,993	58.8	10,739	6,883	3,856	64.1	79,511	48,990	30,521	61.6
Demotion	9,218	5,252	3,966	57.0	13,806	8,612	5,194	62.4	41,792	25,450	16,342	60.9
Discharge	179,073	95,732	83,341	53.5	149,766	87,122	62,644	58.2	560,578	300,670	259,908	53.6
Discipline	15,452	9,894	5,558	64.0	13,770	9,735	4,035	70.7	85,296	58,154	27,142	68.2
Early Retirement	85	70	15	82.4	1,085	1,008	77	92.9	234	202	32	86.3
English Language	36	30	6	83.3	60	50	10	83.3	1,280	1,092	188	85.3
Exclusion	627	268	359	42.7	693	352	341	50.8	2,991	1,521	1,470	50.9
Filing EEO Form	201	171	30	85.1	210	200	10	95.2	1,351	1,196	155	88.5
Harassment	37,494	22,645	14,849	60.4	32,241	20,764	11,477	64.4	211,444	125,959	85,485	59.6
Hiring	28,075	15,425	12,650	54.9	42,489	26,589	15,900	62.6	69,483	39,360	30,123	56.6
Inquiry	2,078	1,874	204	90.2	344	309	35	89.8	1,048	947	101	90.4
Insurance	2,974	2,180	794	73.3	1,369	1,048	321	76.6	2,299	1,453	846	63.2
Intimidation	6,992	3,491	3,501	49.9	6,137	3,379	2,758	55.1	41,532	22,288	19,244	53.7
Job Classification	946	499	447	52.7	1,212	707	505	58.3	4,876	2,994	1,882	61.4
Layoff	11,242	6,956	4,286	61.9	22,996	16,515	6,481	71.8	33,523	22,069	11,454	65.8
Maternity	687	242	445	35.2	54	27	27	50.0	12,620	5,341	7,279	42.3
(Continued)

Exhibit 6.Continued

Issue	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	Percentage charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
Notice	78	64	14	82.1	87	61	26	70.1	560	447	113	79.8
Other	18,044	6,373	11,671	35.3	12,375	5,678	6,697	45.9	55,965	23,449	32,516	41.9
Other Language	44	37	7	84.1	114	99	15	86.8	917	790	127	86.2
Paternity	24	5	19	20.8	29	10	19	34.5	221	100	121	45.2
Promotion	11,457	6,738	4,719	58.8	25,810	16,232	9,578	62.9	113,122	73,770	39,352	65.2
Qualification	779	270	509	34.7	1,110	451	659	40.6	3,592	1,324	2,268	36.9
Reasonable Accom.	79,986	53,960	26,026	67.5	8,946	6,079	2,867	68.0	22,276	14,400	7,876	64.6
Recall	2,967	1,673	1,294	56.4	2,973	1,867	1,106	62.8	5,031	2,905	2,126	57.7
Recordkeeping	651	590	61	90.6	243	214	29	88.1	777	669	108	86.1
Referral	595	350	245	58.8	480	321	159	66.9	2,022	1,304	718	64.5
Reference	936	726	210	77.6	545	422	123	77.4	3,378	2,457	921	72.7
Reinstatement	7,833	4,786	3,047	61.1	1,942	1,260	682	64.9	6,064	3,168	2,896	52.2
Retirement	678	569	109	83.9	4,688	3,994	694	85.2	1,236	1,038	198	84.0
Retirement Involuntary	5,367	813	4,554	15.1	8,122	2,871	5,251	35.3	9,064	784	8,280	8.6
Segregate Facilities	500	48	452	9.6	260	24	236	9.2	1,600	589	1,011	36.8
Segregated Locals	18	9	9	50.0	18	11	7	61.1	143	75	68	52.4
Seniority	607	373	234	61.4	4,134	3,539	595	85.6	2,890	1,930	960	66.8
Severance Pay	197	155	42	78.7	635	518	117	81.6	959	767	192	80.0
Sexual Harassment	5,436	3,102	2,334	57.1	4,473	2,696	1,777	60.3	162,598	95,568	67,030	58.8
Suspension	7,580	4,073	3,507	53.7	5,500	3,079	2,421	56.0	40,132	22,704	17,428	56.6
(Continued)

Exhibit 6. Continued

Issue	Total ADA-related charges	ADA Related charges with EEOC	ADA-related charges with FEPA	Percentage charges with EEOC	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
Tenure	228	115	113	50.4	397	240	157	60.5	1,417	859	558	60.6
Terms/Conditions	62,056	24,764	37,292	39.9	55,832	28,694	27,138	51.4	287,506	144,190	143,316	50.2
Testing	446	290	156	65.0	472	383	89	81.1	2,627	2,142	485	81.5
Training	2,476	1,413	1,063	57.1	3,757	2,369	1,388	63.1	16,975	11,080	5,895	65.3
Union Representation	1,794	1,218	576	67.9	1,540	983	557	63.8	5,984	3,900	2,084	65.2
Wages	10,166	6,150	4,016	60.5	16,875	11,062	5,813	65.6	89,862	59,897	29,965	66.7
Waivers	152	146	6	96.1	662	621	41	93.8	407	372	35	91.4
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC CDS files, 1993-2003.
¹ ADA-related charges include charges based on the ADA alone and in combination with other statutes. The number of charges reflects the number of individual charge filings.

Exhibit 7. Continued

Statute and Issue	Total Number of Charges	Number of EEOC charges	Number of FEPA charges	EEOC Rate	Rank
ADA - Record of Disability	8,362	6,252	2,110	74.8	2
ADA - Regarded as Disabled	27,279	18,575	8,704	68.1	5
ADA - Relationship/Association	2,501	1,733	768	69.3	4
ADA - Schizophrenia	1,014	659	355	65.0	11
ADA - Speech Impairment	1,817	817	1,000	45.0	40
ADA - Structural Back Impairment	36,342	19,163	17,179	52.7	35
ADA - Tuberculosis	129	80	49	62.0	16
ADA - Vision Impairment	6,343	3,663	2,680	57.7	26
ADA - Other Disability	73,741	31,818	41,923	43.1	42
ADA - Other	16,729	5,069	11,660	30.3	45
ADEA	246,848	146,289	100,559	59.3	--
Title VI - Religion - 7th Day	37	17	20	45.9	--
Title VI - Religion - Catholic	1,353	839	514	62.0	--
Title VI - Religion - Jewish	4,749	2,648	2,101	55.8	--
Title VI - Religion - Muslim	5,074	3,134	1,940	61.8	--
Title VI - Religion - Protestant	2,749	1,647	1,102	59.9	--
Title VI - Religion - Sikhs	45	37	8	82.2	--
Title VI - Religion - Other	1,353	839	514	62.0	--
Title VI - Sex - Female	311,391	170,469	140,922	54.7	--
Title VI - Sex - Male	72,797	38,186	34,611	52.5	--
Title VI - Sex - Pregnancy	32,163	18,424	13,739	57.3	--
Title VI - National Origin - Arab	1,833	1,285	548	70.1	--
Title VI - National Origin - Hispanic	45,471	24,426	21,045	53.7	--
Title VI - National Origin - Mexican	16,543	8,580	7,963	51.9	--
Title VI - National Origin - Other	56,146	30,320	25,826	54.0	--
Title VI - Color	20,445	9,846	10,599	48.2	--
Title VI - Race - Asian, Pacific	10,977	6,045	4,932	55.1	--
Title VI - Race - Black	369,268	220,009	149,259	59.6	--
Title VI - Race - Amer. Ind., AK Nat.	5,087	2,631	2,456	51.7	--
Title VI - Race - White	39,242	23,051	16,191	58.7	--
Title VI - Race - Other	20,132	7,195	12,937	35.7	--
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2003.
¹ ADA-related charges include charges based on the ADA alone and in combination with other statutes. The number of charges reflects the number of individual charge filings.

Exhibit 8. Actual and Adjusted EEOC Rates, annually, 1993-2003¹

Year	AD-Related-Actual	ADA-Related - Adjusted	ADEA-Related- Actual	ADEA-Related- Adjusted	Title VII-Related-Actual	Title VII-Related-Adjusted
1993	58.7	58.7	61.3	61.3	52.9	52.9
1994	56.1	55.9	61.3	61.0	54.3	54.0
1995	56.4	56.4	60.1	60.0	54.5	54.0
1996	54.4	55.1	58.1	58.5	53.4	53.2
1997	53.5	54.8	56.1	58.1	53.7	53.2
1998	54.4	55.4	57.0	58.7	55.1	54.5
1999	54.1	55.3	57.6	59.4	56.5	55.7
2000	53.2	54.6	60.5	62.2	57.6	56.5
2001	52.4	53.0	61.6	62.6	56.9	55.1
2002	50.4	52.3	62.6	62.0	56.3	55.2
2003	49.4	51.7	64.2	64.8	56.4	55.4
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2003.
¹ Adjustments hold the composition (proportion) across states at 1993 levels.

Exhibit 9. Percentage Change in the EEOC Rate from Pre-Sutton (1995-1999) and Post-Sutton (2000-2003) in Midwest States with a More Expansive Definition of Disability (IA, IL, WI)^a and Midwest States with a Less Expansive Definition of Disability (Indiana, Michigan, Minnesota, Ohio) for Selected Impacted^b (Diabetes, Epilepsy, Hearing Impairment, and Mental Disabilities^c) and Non-Impacted Disabilities (All Other Disabilities).

Disability	State Type	EEOC Rate: 1995-1999	EEOC Rate: 2000-2003	Pct. Change
Diabetes	States w/ more expansive definition of disability	65.8	76.2	3.7
	States w/ less expansive definition of disability	39.0	47.6	5.0
Epilepsy	States w/ more expansive definition of disability	66.0	74.9	3.2
	States w/ less expansive definition of disability	37.1	55.7	10.0
Hearing Impairment	States w/ more expansive definition of disability	65.4	79.8	5.0
	States w/ less expansive definition of disability	43.5	49.8	3.4
Mental Disabilities^b	States w/ more expansive definition of disability	70.9	72.6	0.6
	States w/ less expansive definition of disability	46.3	55.9	4.7
Non-Impacted Dis.	States w/ more expansive definition of disability	52.2	57.4	2.4
	States w/ less expansive definition of disability	39.9	43.1	1.9
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1995-2003. Notes: ^aThese states were initially identified as states with more a expansive definition of disability in a review of the disability nondiscrimination legislation in seven Mid-western states (Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, and Wisconsin) identified by Barry Taylor, Legal Advocacy Director of Equip for Equality, Chicago, IL, as part of a presentation he gave at a meeting of the Great Lakes Disability and Business Technical Assistance Center. A similar review was conducted in 2007 by Charlotte Lanvers, Cornell University Law School student. b When we refer to being impacted by mitigating measures, we mean that the person’s disability is mitigated to the extent that they do not have a substantial limitation in at least one major life activity. Many people’s disabilities are positively impacted by mitigating measures, but not sufficiently to eliminate a substantial limitation. ^cAs mental disabilities we include the EEOC categories of depression, manic depression, schizophrenia, post traumatic stress disorder, other psychiatric disorders, and other anxiety disorders.

[1]The research described in this paper is part of a larger study entitled Using the U.S. Equal Employment Opportunity Commission (EEOC) Employment Discrimination Charge Data System for Research and Dissemination Purposes funded by the U.S. Department of Education National Institute on Disability and Rehabilitation Research to Cornell University for a three-year Field-Initiated Research Project (Grant No. H133G040265). The statistics reported in these materials are derived from data files obtained under agreement from the U.S. Equal Employment Opportunity Commission. The findings and their interpretation do not necessarily represent the policy of the Department of Education or the U.S. Equal Employment Opportunity Commission, and you should not assume endorsement by the Federal Government (Edgar, 75.620 (b)). Summaries of data are based on our aggregations and do not represent the EEOC's official aggregation of the data.

[2] In March 2003, Susanne Bruyère obtained an Intergovernmental Personnel Act (IPA) position at the EEOC, which afforded her access to the EEOC’s computerized data system which includes detailed information on every charge the EEOC receives, as well as those which are dual filed with FEPAs. Further information about this IPA and the resulting research should be directed to Susanne Bruyère at Cornell University, e-mail smb23@cornell.edu.

[3] Senior authorship for this paper is equally shared by the Cornell University authors of this paper.

[4] The authors would like to acknowledge the contributions in the preparation and preliminary review of this manuscript by the following individuals: Ronald Edwards, Christopher Kuczynski, and Peggy Mastroianni, U.S. EEOC; David Keer, U.S. Department of Education, National Institute on Disability and Rehabilitation Research; Sara VanLooy, Administrative Assistant in the Employment and Disability Institute; Peter Thomas and Piper Nieters, Powers Pyles Sutter and Verville; and Berta Echeveste, Cherrie Martin, Mary Jo O’Neill, and Charles Rahill, Phoenix District EEOC Office.

[5] See, for example, Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409 (9th Cir. 1988) (rejecting plaintiff’s argument that Oregon’s Fair Employment Practices Act has a less restrictive burden of proof for plaintiffs than does the federal Equal Pay Act and Title VII).

[6] Information downloaded from USEEOC website April 21, 2007 from http://www.eeoc.gov/offices.html.

[7] The U.S. EEOC provides extensive guidance on interpretation and implementation of the ADA on its website at http://www.eeoc.gov/policy/index.html.

[8] When the EEOC files suit against the employer on behalf of the government, the charging party has a right to intervene into the lawsuit (see 42 U.S.C. 200305(f)(1).

[9] For further information about EEOC-FEPA work share agreements, see http://www.eeoc.gov/charge/overview_charge_filing.html.

[10] Several courts have addressed disputes regarding dual filing. See, for example Nichols v. Muskingum College, 318 F.3d 674 (6^th Cir. 2003). There, the plaintiff filed a charge with the state agency 295 days after being terminated, but following state law (which has a 6-month deadline for filing state charges) the intake clerk only checked federal-law discrimination claims and not state-law discrimination claims. Under federal title VII law, plaintiffs have 180 days to file claims with the EEOC but 300 days if they file with the state human rights agency. The district court dismissed the plaintiff’s title VII claim for failure to timely file a charge. On appeal, the 6^th Circuit noted that the work-share agreement instructs intake personnel to encourage employees to file both federal and state claims, and held that since the plaintiff had filed a complaint with her state FEPA agency within 300 days, she was not time-barred. The fact that the clerk only submitted federal claims, suggesting a 180-day deadline, should not be held against the plaintiff and therefore did not bar her title VII claim.

[11]See Executive Order 12067 at http://www.eeoc.gov/abouteeoc/35th/thelaw/eo-12067.html.

[12] See EEOC Coordination of Federal Government Equal Opportunity in the Workplace available at the EEOC website at http://www.eeoc.gov/abouteeoc/coordination/index/html.

[13] Aggrieved persons who believe they have been discriminated against must contact an agency EEOC counselor prior to filing a formal complaint. Only if the complaint has been dismissed or if the there is a request for a hearing, does the complaint get referred to the EEOC for handling (see Federal Complaint Processing available at the EEOC website at http://www.eeoc.gov/federal/fedprocess.html).

[14] Further information can be found at the EEOC website at http://www.eeoc.gov/abouteeoc/meetings/7-8-05/inzeo.html.

[15] See “Largest U.S. Cities,” as of July 1, 2004 available at http://www.infoplease.com/ipa/A0763098.html.

[16] Since 2004 data collection in EEOC offices was shifted to a web-based Integrated Mission System (IMS) data system for receiving, processing, and managing charges of employment discrimination. In 2006, FEPA offices began to be brought into this new system. As of end of fiscal year 2006, 96 FEPA offices used the IMS system (EEOC, 2006).

[17] The EEOC fiscal year is from October 1^st to September 30^th.

[18] States may have statutes which provide greater protections to people with disabilities than the ADA. In those cases where the courts and FEPAs are analyzing a state claim, they would have to look to state law in this process, to ascertain where greater protections might be available

[19]. See, for example, Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, (9th Cir. 1988). In rejecting plaintiff’s claim that the Oregon fair-employment statute had a different proof scheme that the federal title VII statute, the 9^th Circuit (a federal court) observed that the Oregon courts had regularly relied on federal cases interpreting title VII in interpreting the Oregon statute.

[20] These states were initially identified as states with more a expansive definition of disability in a review of the disability nondiscrimination legislation in seven Mid-western states (Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, and Wisconsin) identified by Barry Taylor, Legal Advocacy Director of Equip for Equality, Chicago, as part of a presentation he gave at a meeting of the Great Lakes Disability and Business Technical Assistance Center. A similar review was conducted in 2007 by Charlotte Lanvers, Cornell University Law School student.

[21] Further information about the disability nondiscrimination laws in each of these states can be found at 775 ILCS 5/2-102 and the Illinois definition of "handicap" 775 ILCS 5/1-103; Iowa’s law citation is I.C.A. 216.1 and Iowa’s definition of “disability” I.C.A. 216.2; Wisconsin’s law citation at W.S.A. 111.34 and Wisconsin’s Definition of Disability W.S.A. 111.32.

[22] When we refer to being impacted by mitigating measures, we mean that the person’s disability is mitigated to the extent that they do not have a substantial limitation in at least one major life activity. Many people’s disabilities are positively impacted by mitigating measures, but not sufficiently to eliminate a substantial limitation. Still others may find their disability positively impacted by the mitigating measures, but the mitigating measure produces a substantial limitation in a major life activity.

Year	Total # ADEA Charges	EEOC ADEA Charges	FEPA ADEA Charges	Percentage ADEA Charges with EEOC	Total # Title VII Charges	EEOC Title VII Charges	FEPA Title VII Charges	Percentage Title VII Charges with EEOC
	311,943	187,682	124,261	60.2	1,172,420	647,379	525,041	55.2
1993	31,096	19,066	12,030	61.3	110,018	58,172	51,846	52.9
1994	30,937	18,973	11,964	61.3	111,944	60,825	51,119	54.3
1995	28,247	16,965	11,282	60.1	110,548	60,211	50,337	54.5
1996	26,740	15,545	11,195	58.1	103,032	55,050	47,982	53.4
1997	28,173	15,799	12,374	56.1	109,686	58,850	50,836	53.7
1998	26,468	15,092	11,376	57.0	105,693	58,249	47,444	55.1
1999	24,706	14,242	10,464	57.6	102,595	57,976	44,619	56.5
2000	26,486	16,017	10,469	60.5	103,059	59,379	43,680	57.6
2001	28,154	17,344	10,810	61.6	104,516	59,490	45,026	56.9
2002	31,547	19,763	11,784	62.6	108,181	60,951	47,230	56.3
2003	29,389	18,876	10,513	64.2	103,148	58,226	44,922	56.4
Source: Calculations by Cornell University, Employment and Disability Institute, using the EEOC CDS files, 1993-2003.
¹ ADEA-related charges include charges based on the ADEA alone and in combination with other statutes, likewise for Title VII-related charges. The number of charges reflects the number of individual charge filings.

Statute and Basis	Total Number of Charges	Number of EEOC charges	Number of FEPA charges	EEOC Rate	Rank
ADA - Alcoholism	3,985	2,203	1,782	55.3	32
ADA - Allergies	1,901	916	985	48.2	39
ADA - Alzheimer	1,353	839	514	62.0	17
ADA - Asthma	4,776	2,633	2,143	55.1	33
ADA - Autism	123	55	68	44.7	41
ADA - Blood-Other	3,247	1,680	1,567	51.7	36
ADA - Brain/Head Injury (Traumatic)	1,715	968	747	56.4	27
ADA - Cancer	1,353	839	514	62.0	17
ADA - Cerebral Palsy	1,180	729	451	61.8	20
ADA - Chemical Sensitivity	939	625	314	66.6	8
ADA - Cumulative Trauma Disorder	3,050	1,570	1,480	51.5	37
ADA - Cystic Fibrosis	72	49	23	68.1	6
ADA - Depression	18,264	11,660	6,604	63.8	13
ADA - Diabetes	10,380	6,140	4,240	59.2	23
ADA - Disfigurement	666	388	278	58.3	25
ADA - Drug Addiction	1,952	1,086	866	55.6	30
ADA - Dwarfism	98	61	37	62.2	15
ADA - Epilepsy	4,559	2,766	1,793	60.7	22
ADA - Gastrointestinal	2,652	1,299	1,353	49.0	38
ADA - Hearing Impairment	8,408	4,440	3,968	52.8	34
ADA - Heart/Cardiovascular	10,087	5,632	4,455	55.8	28
ADA - HIV	3,961	2,420	1,541	61.1	21
ADA - Kidney Impairment	1,660	1,095	565	66.0	10
ADA - Learning Disability	4,352	2,422	1,930	55.7	29
ADA - Manic Depression	4,770	3,084	1,686	64.7	12
ADA - Mental Retardation	1,930	594	1,336	30.8	44
ADA - Missing Digits/Limbs	5,404	1,414	3,990	26.2	46
ADA - Multiple Sclerosis	3,161	2,116	1,045	66.9	7
ADA - Nonparalytic Orthopedic Impair.	24,152	14,928	9,224	61.8	19
ADA - Other Anxiety Disorder	7,337	4,645	2,692	63.3	14
ADA - Other Neurological	7,434	4,346	3,088	58.5	24
ADA - Other Psychiatric Disorders	10,562	4,197	6,365	39.7	43
ADA - Other Pulmo/Respiratory	2,330	1,649	681	70.8	3
ADA - Paralysis	1,601	1,062	539	66.3	9
ADA - Post Traumatic Stress Disorder	31	24	7	77.4	1
(Continued)