Will This Comment Be Enough to Save the OFCCP Affirmative Action Regulations for People with Disabilities

Before turning to this week’s blog entry, which I will keep very short (after all, it is Thanksgiving week and who wants to read a typical blog entry this week), a couple of housekeeping matters. First, happy Thanksgiving to everyone! Second, I received notice yesterday that this blog has made the ABA top 100 legal blawgs for a second year in a row!!! I want to thank all the readers of the blog, those who nominated me (whether you let me know that or not), and those who just read the blog, for your support. Thank you!!!!!!!!!!!!!!!!!!!!!!!!!!!!!. It is an honor to be selected for the second year in a row. The blog 100 has lots of great blogs, including some that are in my blog roll. You can check out the blog 100 here.

Turning to the blog entry for the week, I am on a listserv run by the ABA Commission on Disability Rights and the below was recently posted to that listserv:

There are several tasks a federal contractor must complete to stay in line with Section 503 of the Rehabilitation Act, and while the U.S. Department of Labor considered 2015 a transition period for companies to get up to speed, Patricia Shiu, Director of the Office of Federal Contract Compliance Programs, said last month that “the waiting period is over.” During the Corporate Forum in Washington, D.C., Shiu said it is unlikely federal contractors will be sanctioned for not meeting the 7 percent mark because that goal is aspirational. “This is a process and not a switch,” Shiu said when she delivered her remarks. “Failure to achieve the 7 percent [goal] is not a violation but the failure to try probably is.”

So, the question is, is this comment enough to save the regulations? By way of background, previously, I talked about the OFCCP regulations and whether the Department of Labor’s Office of Federal Contracting Compliance Programs shot itself in the foot with respect to the likelihood of this OFCCP regulation being upheld if there were to be a constitutional challenge. In another blog entry, I discussed a municipality using the defense that title II regulations violated the equal protection laws, which can be found here.

So, will this comment be enough to save the regulation . On the one hand, she does say that the 7% goal is aspirational. That would seem to suggest that a company would not have to do much. She also says that it would be unlikely for OFCCP to go after a federal contractor for not meeting the goal. On the other hand, she does say that failure to try is probably something subject to being enforced as a violation. That doesn’t answer the question though. That is, what does failure to try mean? The regulations are quite specific and rather extensive. How close does a corporation need to come to the regulations in order to be deemed as trying? If the answer is very close, then my opinion, previously expressed in the above blog entries, that the regulations will not stand up to a constitutional challenge stands (i.e the regulations are out of proportion to the harm being meant to be redressed since persons with disabilities are in the rational basis class for purposes of employment per this case). If on the other hand, de minimis compliance is the only thing required, then there is a greater likelihood, though I am not sure how much greater (the Supreme Court has not been favorable to affirmative-action as of late), that a constitutional challenge to the affirmative-action regulation for persons with disabilities will be fought off.

Have a great Thanksgiving!!!!!! Also, thanks again for giving me the honor and privilege of being selected for the ABA 100 2015 Legal Blawg, and congratulations to all the other great blogs selected as well. I will be back with a more typical blog entry next week; I have several ideas in mind.

Just When Does the Statute of Limitations Begin to Run in an ADA Employment Claim?

This is actually my second shot at a blog entry for this week. I actually spent a little bit of time this morning writing up a blog on the proposed regulations implementing the nondiscrimination provision of the genetic information nondiscrimination act. However, as I was going through a draft for such a blog entry, I realized that it just wasn’t working for me. Also, I have the high bar that my fellow bloggers-Jonathan Hyman, Robin Shea, and Eric Meyer- had all blogged on the issue (each of those blogs can be found in my blog roll), and they had done it very well. So, that left me with having to pursue something else.

Today’s blog entry explores the question of just when does the statute of limitations begin to run in an ADA employment claim. Today’s case is EEOC v. Orion Energy Systems, 2015 U.S. Dist. LEXIS 153216 (E.D. Wisc. November 12, 2015). As is usual, my blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories. Since this blog entry is so short, I imagine the reader will want to read all of it, but nevertheless, the categories are there for your use.


The facts are pretty straightforward. Orion Energy terminated Wendy Schobert’s employment on May 18, 2009. She claimed that the true reason she was fired was because she refused to participate in a wellness program administered by Orion. She filed an administrative complaint with the EEOC on March 10, 2010, which was 296 days (if an equivalent state agency is present, a person has 300 days to file a claim with the appropriate administrative agency), after she was terminated. The EEOC then commenced an action on behalf of her alleging that Orion administered involuntary medical examinations and disability related inquiries as part of the wellness program in violation of the ADA. The EEOC further alleged that Orion retaliated against Ms. Schobert by firing her for objecting to the program and intimidated her for exercising her right not to participate in the program in violation of the ADA. On September 4 of 2015, Orion filed a motion to amend its answer and affirmative defenses so that it could add a statute of limitations defense. In particular, Ms. Schobert admitted in a deposition that she knew she was going to be fired one week before the May 18, 2009, meeting. That week difference would be the difference between the claim falling within the statute of limitations and the claim falling outside of the statute of limitations. More particularly, in a deposition she admitted that she had overheard a conversation between the manager and the director of human resources where she was able to determine that she was going to be terminated due to the context of that conversation.

Court’s Reasoning

In denying the defense motion to add the statute of limitations claim, the court reasoned as follows:

1. When it comes to the statute of limitations question, it is the date of the discriminatory act that is controlling and not necessarily the date of termination. Oftentimes, it doesn’t matter, but in some contexts it does. For example, the court mentioned tenure decisions where the act complained of is the denial of tenure and the actual effective termination date is actually quite a bit into the future.

2. In the Seventh Circuit, the test used is the unequivocal notice of termination test. That particular test has two prongs: 1) there must be a final, ultimate, not tentative decision to terminate the employee; and 2) the employer must give the employee unequivocal notice of its final termination decision. With respect to prong 2 of the test, the court explained that the unequivocal element of the test is based on the notion that the mere threat to take some job action against an employee is not sufficient to trigger the statute of limitations because to hold otherwise, would force plaintiff’s into the situation where they have to file a charge at every hint of termination in order to preserve their claims. That, in turn, would make the life of the EEOC impossible. The unequivocal test also requires that the employer actually give notice to the employee.

3. While the facts are such that it was clear that the decision to be terminated was final by the time she overheard the conversation, she was not given unequivocal notice of the termination at the time she heard the conversation. In fact, by definition, she could not have been as she had heard the conversation surreptitiously.

4. Orion knew of the basis for the statute of limitations defense way before the deposition occurred since the VP who did the firing was told by Ms. Schobert that she had overheard the conversation prior to when she was actually terminated. Therefore, Orion was not diligent by waiting until after the deposition to assert the defense. Further, since the unequivocal notice test wasn’t met, it would be futile to allow the motion to amend because the affirmative defense would be rejected in any event.


1. In most situations, adverse action and the termination are going to wind up being the same when it is a job loss that is being contested. However, as this case illustrates, that isn’t always the case. In the Seventh Circuit at least, the question comes down to whether the employee had unequivocal notice of their termination. It is at that point in time, that the statute of limitations will begin to run. Keep in mind, That the various Circuits are free to go their own way unless United States Supreme Court says otherwise. Therefore, if you are not in the Seventh Circuit, you will want to do some research to see if your jurisdiction uses the unequivocal notice test discussed in this blog entry.

2. For the statute to begin to run, unequivocal notice carries with it an assumption that the employer is intentionally providing notice of the termination.

3. I suppose the defense attorneys are fortunate with the court finding that the statute of limitations defense even if diligent would have been rejected due to the lack of unequivocal notice. Otherwise, the defense firm could be facing an even bigger problem. If this shows anything, it shows the importance of full communications between the company and the litigating attorneys and the need for thorough investigation (which may or may not have been done), with respect to all the facts. Not sure I understand why it was only much later that the litigating attorneys seem to be aware of the fact that Ms. Schobert had heard of the termination a week prior to actually being terminated when the person doing the firing was told as much at the time of firing. In any event, it is just a theoretical issue, since the court said the facts of this case were such that the unequivocal termination test could simply not be met.

A shot across the bow to judges and court systems

I know as a blogger, readers come to expect a regular post every week and on a certain day. In my case, everyone knows that I put up a blog on Mondays, sometime Tuesdays, as is the case today. Rarely, it is later in the week. Obviously, I missed last week. I hadn’t intended it that way. However, my Internet connection crashed and that took time to fix, and then I spent considerable time upgrading my computer software, which also took a lot longer than I thought. Then of, course, there were clients and a presentation to attend to. Next week I will be making a presentation through Avant Resources on hot issues and the ADA. In particular, I will be focusing on accommodating pregnancy restrictions, the rules for when you want to be thinking about reassigning a person with a disability to another job, and various legal issues that come up when buying inaccessible technology. When I get the information, I will post the information on that as a comment to this blog entry.

Previously, I have blogged about the defenses that will come up if you sue the courts for disability discrimination. I have also blogged about that while it can be done, suing a court system for disability discrimination is complicated (a blog entry that is consistently one of the top ten visited every month). Today’s case should be read as a shot across the bow to judges and court systems with respect to whether they should be accommodating persons with disabilities and how much resistance they should be putting up to persons with disabilities as they go through that process. You would be absolutely amazed how often I receive phone calls from people talking about how the court system is not accommodating their disability their seeming lack of interest in doing so.

Today’s case is Reed v. State of Illinois, a decision written by Judge Posner with Judge Williams in agreement and Judge Sykes dissenting from the Seventh Circuit on October 30 of 2015. As is my usual method of operation, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.


The plaintiff has tardive dyskinesia. That condition is a disturbing potential side effect of antipsychotic medications. It is a movement disorder occurring over months, years, and even decades. It is primarily characterized by random movements of different muscles within the body and can occur in the tongue, lips or jaw, or consist of purposeless movements of arms, legs, fingers, and toes. It can be quite embarrassing and disabling as well. In this particular case, the plaintiff’s involuntary movements include tongue thrusting, pursing of the lips, choking, and side to side chewing of the jaw. She also becomes mute, screams or makes nonverbal sounds, especially under stress. Oftentimes, she cannot use a telephone without assistive technology. In addition to this condition, she also has posttraumatic stress disorder and bipolar disorder, both of which can cause or severe anxiety.

Shortly after she was diagnosed with tardive dyskinesia, a personal injury suit she filed in the Circuit Court of Cook County Illinois went to trial. She did not have a lawyer. Before the trial began, she asked the court’s disability coordinator for accommodations of her medical problems, and in response to her request, she was allowed to have a friend and family member take notes for her, was given a podium to stand at, and was allowed to take occasional recesses. However, she was denied other help she had requested. In particular: a microphone to project her voice so that it would be audible even when her ability to vocalize was impaired by her condition; an interpreter so that she could articulate her thoughts when she could not express them clearly herself; and a jury instruction explaining her disorder so that the jurors did not think she was just acting up. Since she was not granted those accommodations, during the course of the trial, she had to resort to hand signals, grunts, and other nonverbal attempts at communication that were difficult to understand. As if that wasn’t bad enough, during the course of the trial, she was hectored by the judge, who probably did not understand the gravity of her disorder. The judge told the jury that the plaintiff had a speech impediment but that made it sound as if she stammers or has a lisp and therefore, understated the gravity of her disability. The judge also knew or should’ve known that it was her condition rather than willful defiance of courtroom proprieties, that was responsible for the long, involuntary pauses and or statements. Even so, he kept telling her to hurry up and move onto the next question and to wrap up her examination of witnesses. He permitted her only 10 minutes to examine a particular witness. At one point, during the plaintiff’s cross-examination by the defendant’s lawyer the judge said, “I have been waiting 10 seconds for you to answer and am moving onto the next thing.” The judge also at times and in front of the jury yelled at her, glared at her, smacked his bench, leaned forward, and otherwise expressed annoyance with her. When a piece of gum that she was chewing to control her involuntary movements fell out of her mouth, an accident for which the judge scolded her, she then went into a convulsion.

When the jury returned a verdict for the defendant, the plaintiff filed a post-trial motion, asking for a new trial on the grounds that she was disabled within the meaning of the ADA but yet had been denied reasonable accommodations for her disability. The judge denied the motion in a way suggestive of the failure to understand the plaintiff’s problem in communicating. While he did say he was denying oral argument on a post-trial motion because the plaintiff had developed a speech impediment preventing her from communicating in any vocal fashion, he had also said in reference to the trial held a few months earlier that the plaintiff’s readily observable speech impediment concern was accommodated in that she was given a full and fair and adequate opportunity to present her case. Judge Posner said this made no sense because if she was incapable of communicating in any vocal fashion with regards to her post-trial motion, that would mean she must have needed a microphone and an interpreter at the trial to help her overcome her obvious observable speech impediment. In denying the post-trial motion, the trial judge also said that there were occasions when her pauses were so lengthy that he concluded she was being indecisive rather than laboring under the impediment and was asked to move on as would any other individual. However, to the Seventh Circuit, that made no sense because there is no contradiction between being indecisive and suffering from tardive dyskinesia. Furthermore, she was not just like any other individual since the plaintiff could not be expected to be consistently responsive to a command to move on because her pauses as a result of her condition were involuntary. Instead, the judge should have invited a medical expert or at least the court’s disability coordinator to advise him on the effects of the plaintiff’s condition on her ability to litigate her case.

The plaintiff appealed the judge’s decision to the appellate court, which affirmed the jury’s verdict in a nonprecedential order. Shortly before the appellate court handed down its decision, the plaintiff filed a suit against the Cook County Circuit Court alleging that they violated title II of the ADA and § 504 of the Rehabilitation Act by failing to accommodate her tardive dyskinesia. She also cited the effective communication regulations as well.

Court’s Reasoning

The defense argued both in the lower court and in the Seventh Circuit that the plaintiff was barred from bringing the ADA claims on the grounds of collateral estoppel, otherwise known as issue preclusion. However, the court was having none of it because even where all the elements of collateral estoppel are satisfied, under Illinois law, it does not apply unless it is clear that no unfairness result to the party being estopped. In particular found unfairness all over the place to wit:

1. A desire not to deprive a litigant of an adequate day in court is a proper consideration in deciding whether to invoke collateral estoppel.

2. A reason a litigant may not have had an adequate day in court is that he or she was laboring under a mental or physical disability that impeded effective litigation.

3. In her personal injury suit, she was in no position, being pro se and with a serious disability, to establish the applicability to her case of the federal laws against disability discrimination.

4. She knew she needed help to litigate her personal injury suit, especially having no lawyer. Even so, many of her requests were ignored or denied by the judge, who was frequently impatient with her and even rude to her. Further, his conclusion that her disability had been adequately accommodated was untenable.

5. There was nothing fair in being given inadequate accommodations or in his ruling that the accommodation provided for her at trial had been adequate.

6. She was denied a full and impartial opportunity to litigate the accommodations issue when the judge refused to grant her oral argument, on account of her disability, and she had no lawyer to argue in her place.

7. Quoting to Tennessee v. Lane the court said, “The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination.”

8. The trial judge never considered whether the plaintiff had been discriminated against, rather he only considered the adequacy of the accommodations made for her disability at the state court trial. That proceeding limited the plaintiff to a truncated version of her disability claim. That is, a version that ignored her right of an opportunity equal to that of a person without a disability to litigate her claim. On the other hand, unlike the personal injury suit, the federal litigation contains the full range of issues concerning the scope an application of disability nondiscrimination laws to her situation.

9. There was no transcript of the state-court trial because there was neither a court reporter nor recording device in the courtroom. That means a complete absence of the ability to verify the state judge’s assertions that the limited accommodation he gave the plaintiff were adequate to enable her to litigate effectively. In particular, there was no way to confirm that she was always allowed wide latitude in the presentation of her case and that he had overruled many procedural objections by the defense in order to accommodate her disability.

10. For a court to deny accommodations without which a disabled plaintiff has no chance of prevailing in her trial, and then for another court (the federal District Court), on the basis of that rejection, to refuse to provide a remedy for the discrimination she experienced in the first trial, is to deny a plaintiff full and fair opportunity to vindicate her claims.

Finally, the Seventh Circuit remanded the issue of whether the state appellate court and at Chief Judge were the only proper defendants since there was no opportunity to consider that argument.


1. As I mentioned before, I receive calls all the time from people telling me of discrimination they face in the court system. It seems to be a particular problem in family law courts, but it isn’t exclusive to those kinds of courts as this case makes clear.

2. Literally speaking, this case is not a disability discrimination case at all, but rather a collateral estoppel case. However, the reasoning of this case is such, that it should give much ammunition to plaintiffs denied reasonable accommodation by court systems. It also opens up court systems to allegations of constitutional violations (equal protection and due process), as well, especially with its reference to the full and adequate opportunity to litigate when compared to those without disabilities and its reference to the long history of discrimination faced by persons with disabilities in the court system.

3. This case also suggest a couple of other ways to deal with discrimination in the courts. First, if after going through the disability coordinator and the judge, the accommodations are not forthcoming and a trial has to be done without accommodations or inadequate accommodations, requesting a new trial would be a good approach. The other idea is that if after going through the disability coordinator and the judge, the accommodations are not forthcoming, consider filing a motion for declaratory relief asking the court to declare what must be done to comply with the ADA. The advantage of the declaratory relief motion, is that it gives the judge a last opportunity to fix the problem before trial occurs and it also gets you around judicial immunity should you then file a § 1983 claim.