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Filing a Complaint with the Federal Government

The ADA's enforcement procedures are tied to those procedures found in the Civil Rights Act of 1964, revised in 1991. Employers and labor unions must prominently post notices advising employees about the relevant portions of the ADA. In general, the federal government encourages complainants to resolve differences through grievance procedures and other alternative dispute mechanisms; however, if these do not work, the appropriate federal agency will either issue a "right to sue" letter or will file suit.

An analysis of 261 Americans with Disabilities Act decisions by the editors of the National Disability Law Reporter and Disability Compliance Bulletin shows that most federal appeals court decisions favor ADA defendants. These decisions are worrisome for ADA plaintiffs because judicial precedent becomes firmly entrenched at the federal appellate level. Plaintiffs had just a one-in-five chance of succeeding in an ADA claim. The analysis included both employment and non-employment claims. In employment-related cases, because it is very difficult to establish that an employee is a person with a substantially limiting disability, employers have been very successful in raising the "no disability" defense. Because many variables determine the ultimate outcome of any particular case, it is difficult to draw definitive, far-reaching conclusions from this compilation of cases. Furthermore, these decisions do not take into account cases that reached resolution through a negotiated settlement, precluding a need to progress to the appellate level. The decisions also raise the importance of the collective bargaining process in securing equitable treatment for our members with disabilities at the workplace.

Also, in 1999, the Supreme Court decided the Alden vs. Maine case. This case addressed the question of whether a state court must hear a case brought by state employees against the state for the government's failure to adhere to federal labor law. The Supreme Court determined that since the states are sovereign, they are immune from lawsuits. Therefore, state employees cannot sue their state employers for violations of the Fair Labor Standards Act. The decision raises serious questions about the ability of state employees to pursue justice under the ADA and other federal law.

Employment complaints for state and local governement employees

Who can file a complaint

An individual who believes that he or she is a victim of discrimination prohibited by the ADA may file a complaint. An applicant for a position can also file. In addition, an organization, such as AFSCME, can file on behalf of an individual.

Where to file a complaint

Complaints can be sent to the U.S. Equal Employment Opportunity Commission. The address is:


1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4900 (voice)
(202) 663-4494 (TDD)
1-800-669-6820

When to file a complaint

An individual with a disability who feels discriminated against must file a complaint within 180 days of the alleged discriminatory act.

How to file a complaint

Complaints should be in writing and signed by the complainant or an authorized representative. The complaint should include the following:

  1. complainant's name, address, and telephone number;

  2. the public employer's name, address, telephone number and number of employees;

  3. a description of the alleged discriminatory action, including when it happened and what issue it involved (i.e., hiring, firing, conditions of employment);

  4. an explanation of the complainant's disability and how it limits a major life activity, if it is not apparent; and

  5. a list of any witnesses to the alleged discriminatory behavior.

An individual with a disability can file the complaint in person, by mail or even in a telephone conversation. In this last case, the individual's grievance will have to be followed up in writing. Appendix E is a sample form that can be used to file a complaint. Under the Civil Rights Act and the ADA, employers who are charged with discrimination are prohibited from retaliating against the person filing the complaint.

The Equal Employment Opportunity Commission (EEOC) will notify the complainant and the employer about the charge within 10 days. The agency will then review and investigate the charges. After the individual with a disability files a complaint with the EEOC, the agency has 180 days to resolve the issue through alternative dispute resolution. If this does not work, the agency will refer the case to the Department of Justice (DOJ) which will either file suit or issue a "right to sue" letter. The complainant then has another 90 days to file suit. A "right to sue" letter can be issued even if the EEOC does not believe discrimination occurred.

What are the possible remedies?

Possible remedies include employment, reinstatement, promotion, back pay, restored benefits, reasonable accommodation, attorneys' fees, expert witnesses' fees, and court costs. In the case of intentional discrimination, compensatory damages are also available. Damages can be paid for actual or future monetary losses, for inconvenience, or for mental anguish. The total amount of compensatory damages paid to an employee is capped as follows:

 

 Number of Employees  Maximum Amount of Damages
 15-100  $50,000 
 101-200  $100,000 
 201-500  $200,000
 500 or more  $300,000

 

Employment complaints

For private-sector employees

The procedures to file a complaint against a private employer are the same as above except that the EEOC will either file suit or issue a "right to sue" letter (rather than the DOJ). In addition, punitive damages are available if the EEOC determines that the employer acted with "malice and reckless abandon." The limits for monetary damages are the same as for public employees.

For federal government employees

Disability discrimination complaints are filed with the agency where the employee works in the federal government.

Public accommodations

Individuals with disabilities, or their representatives, may bring lawsuits to obtain court orders to stop discrimination. No monetary damages will be available in such suits. Remedies may include a temporary or permanent injunction or restraining order. Attorney's fees (including expert witness fees, travel expenses and costs) may be awarded to the complainant. Compensatory or punitive damages are not permitted. If a public accommodation failed to remove a barrier and removal is deemed to be readily achievable, remedies may include an order to alter the facility. A public entity may also be ordered to provide a reasonable accommodation or change a policy.

Individuals may also file complaints with the Civil Rights Division of the Department of Justice. DOJ will investigate complaints and conduct compliance reviews, and is authorized to bring lawsuits in cases that are considered of general public importance or where a complainant alleges that a "pattern or practice" of discrimination exists. In addition to the aforementioned remedies, monetary damages (not including punitive damages) and civil penalties may be awarded. Civil penalties may equal up to $50,000 for a first violation and $100,000 for any subsequent violation.

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