A Time to Be Proactive

Take Steps to Reduce Risk of Disability-discrimination Claims

The Massachusetts Commission Against Discrimination (MCAD) and its federal counterpart, the Equal Employment Opportunity Commission (EEOC), have identified disability discrimination as one of their top priorities.  Consequently, employers would be wise to take preventive steps to reduce their risk of liability, such as implementing anti-discrimination and anti-harassment policies and training their employees about such policies.
In a nutshell, under state and federal law, it is unlawful to discriminate on the basis of disability in employment decisions such as hiring, promotion, compensation, discipline, discharge, and other terms and conditions of employment. Employers have an obligation to engage in the interactive process and provide reasonable accommodations to a qualified individual with a disability, unless such accommodation would cause an undue hardship to the employer.
Under the Americans with Disabilities Act Amendments Act’s significantly expanded definition of ‘disability,’ when faced with a request for an accommodation, the focus should not be about whether the employee is disabled.  Instead, the focus should be on engaging in the interactive process, which is triggered when an employee asks for an accommodation or when an employer recognizes the need for an accommodation.
A reasonable accommodation is a modification or change to the workplace that enables an individual with a disability to apply for a job, perform job duties, or enjoy the benefits and privileges of employment. This may include, for example, modifying work schedules, granting time off, making the workplace accessible by wheelchair, or providing an interpreter.
The interactive process is simply an informal, interactive dialogue between the employer and the employee. It is a conversation during which limitations are identified and reasonable accommodation options are discussed. There should be direct communication between the employer and the employee in which both parties explore possible accommodations. The employee may offer options for what he or she thinks would be the most effective and preferred accommodation, and the employer may offer alternative suggestions. The goal of the interactive process is for the employer and employee to work together to identify reasonable accommodations. Problematically, however, employers sometimes skip this very important conversation.
Many employers have anti-discrimination and anti-harassment policies, but do not go that extra step to train their workers. Employees with supervisory responsibilities in particular should be trained to identify disability discrimination issues. Supervisors, as the eyes and the ears of the company, play an important role in preventing disability discrimination and harassment. Also, because of the MCAD’s and EEOC’s focus on the interactive process, supervisors need to be able to recognize the variety of ways in which a request for accommodation may be articulated so they can identify when there is a need to engage in an interactive dialogue with the employee. Providing supervisors with adequate training is essential to ensure that they do not skip this conversation.
Further, when faced with an MCAD or EEOC claim, one way a company can demonstrate that it takes its anti-discrimination and anti-harassment policies seriously is to show that not only does the company have a policy, but it also took affirmative steps to implement its policy by training its employees and supervisors.  The MCAD clearly sees the value in training because the agency has increasingly been ordering that employers conduct training as part of settlement agreements or in addition to monetary damages.
The cost of defending against expensive litigation far exceeds the investment in providing preventive training. Effective anti-discrimination and anti-harassment training is strategically designed. For instance, interactive workshops keep employees engaged with real-life hypotheticals. Also, there are advantages to training rank-and-file employees separately from employees with supervisory responsibility. And the size of the group of individuals per training session and the length of time per session impact the experience.
Another important aspect of training is ensuring that supervisors understand that, when a request for an accommodation has been made, they need to be mindful of the potential risks that accompany employment decisions that are made related to that employee. Employment decisions such as giving a poor performance evaluation, changing job responsibilities or shift, transferring to a different department or location, or discharging an employee who has requested an accommodation can be perceived as discriminatory, harassing, and retaliatory.
This is also important when claims are filed by current employees, as they can be particularly difficult to navigate. However, when an employee puts his or her employer on notice that she or he is disabled and needs an accommodation, or files a claim of discrimination or harassment, it does not give that employee a free pass on otherwise bad behavior. Employers just want to make sure, if they are taking an adverse employment action, that there is documentation that supports that decision.
Finally, it is always a good idea to consult with employment counsel before disciplining or firing an employee who has requested an accommodation.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm;  (413) 586-2288; [email protected]