By Rebecca R. Hastings, SPHR
The aging of the U.S. workforce is likely to cause more employers to run afoul of the requirements of the Americans with Disabilities Act (ADA). Employers who avoid making assumptions about employee abilities can minimize their risk, according to the EEOC.
We receive more ADA charges each year than charges alleging sexual harassment, and the number of charges alleging disability discrimination is roughly the same as the number of charges alleging age discrimination, said Chris Kuczynski of the EEOC's Office of Legal Counsel during a Sept. 6, 2007, SHRM web chat.
For example, back problems continue to top the list of conditions for which discrimination charges are filed, according to Kuczynski. This impairment represents nearly 13 percent of charges that we've received since we've been enforcing the ADA. But, in recent years, the percentage of charges has declined, he said, adding that depression is another frequently alleged basis of discrimination, at nearly 7 percent of all charges, as are diabetes and cancer.
Employers may underestimate their risk under the ADA in part because they underestimate the potential population of people with disabilities, a group that is projected to grow. As the workforce ages, it is reasonable to anticipate that more employees will need reasonable accommodations to do their jobs, Kuczynski said. I personally have seen some recent ADA litigation brought by the commission involving older charging parties in which both age and disability might have been the reason for the alleged discrimination.
Employers sometimes err by making incorrect assumptions about an applicant's or employee's physical or mental impairments, Kuczynski said. For example, an employer's mistaken impression about the nature and extent of an impairment, even when there is no impact on the individuals ability to work, can result in an ADA charge filed under the "regarded as" theory of disability, he explained. This means that the employer treated the person as having a disability.
Consequently, some employers may be afraid to encourage an employee who seems to be struggling physically or emotionally at work to seek help, fearing such an act could trigger protection under the ADA. Not so, according to Kuczynski: It is not a violation of the ADA, and an employer will not regard an employee as disabled, simply by referring the person to an employee assistance program, he said, adding, Employers may get into trouble if they assume that the person has a disability or if they make generalizations or assumptions about someone's impairment.
Employers sometimes make inappropriate requests for medical information about an applicant or employee, or fail to keep medical information that they lawfully acquire from an applicant or employee confidential as required by the ADA, he stated. An employer should avoid having an employee execute a general release that entitles the employer to have access to any medical information about an employee for any reason, he noted.
Kuczynski says employer assumptions might also arise from over-reliance on an incomplete medical assessment. In other instances, an employer may have the right medical information but may assume that a limitation is more significant than the doctor says it is.
The best way to avoid regarded as claims is to make an individualized assessment of each applicant's and employee's ability to do a job and to do it safely, rather than relying on myths, fears or stereotypes about an impairment, he added.
In addition, Kuczynski says, mistakes result from lack of communication between the employer and employee. An employer that receives a request for a reasonable accommodation is supposed to start an interactive process to determine whether an accommodation is appropriate, and if so, what type, he said. If an employer does not recognize that it has received a request , it may fail to engage in this process, resulting in a delay in providing an accommodation or a failure to provide the accommodation entirely.
Employers might be subject to retaliation claims in addition to claims of discrimination. Often, retaliation claims are easier to prove than the underlying discrimination, Kuczynski said. If we receive a charge concerning discrimination and then a subsequent charge concerning retaliation, we would process both charges, would investigate them and, where appropriate, make a determination of cause or no cause, he said. If we find cause, we will attempt to conciliate, that is, settle the charge, and if that fails, we may file suit.
We evaluate ADA retaliation claims in a way that is consistent with statutes such as Title VII of the Civil Rights Act, Kuczynski said, with one key difference: A person alleging retaliation does not have to show that he or she is a qualified individual with a disability. It is enough that the person was retaliated against for engaging in protected activity or for assisting someone else in doing so.
There is also a separate provision under the ADA that prohibits actions such as interference, intimidation, coercion,or threatening an individual because he/she has sought to enjoy rights under the ADA, he added. This provision may provide relief for some individuals who experience adverse actions that are not as serious as retaliation, but that nonetheless interfere with their employment rights.
Worth the Effort
Employers should remember that an individual is always free to file a charge and may do so even though the employer believes it has tried its best to comply with the law, according to Kuczynski. However, there are real benefits to making a good-faith effort to comply, he said. For example, if an employer made a good-faith attempt to find a reasonable accommodation for an employee with a disability, the employer would not be liable for compensatory or punitive damages if the EEOC later determined that there was an available accommodation.
Additionally, documenting steps that the employer has taken to comply with the law with respect to a particular employee may be very helpful during the investigation process, he added. The more an employer can do to demonstrate to us that it complied with the law, the more likely it is that the charge will result in a no-cause finding.
Kuczynski suggested employers tap into the EEOC website, the U.S. Business Leadership Network and the Job Accommodation Network for employer practices and guidance on reasonable accommodations.
Rebecca R. Hastings, SPHR, is online writer/editor for SHRM.