ADA Observes 25 Years, Employers Face Increased Litigation
Business Law: Marking a Milestone
By OLGA M. SERAFIMOVA, Esq.
July 26 marked the 25th anniversary of the passage of the Americans with Disabilities Act (ADA) — landmark legislation that created rights for individuals with physical and mental disabilities in employment, government facilities and services, places of public accommodations, telecommunications, and transportation.
In recent years, employers have seen a significant increase in discrimination litigation under the ADA and its state law counterpart, M.G.L. c. 151B. According to the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for the enforcement of the ADA’s employment provisions, over the past 10 years there has been a fast and steady increase in the number of charges filed with the EEOC premised on disability discrimination, from about 19% of all charges in 2004 to almost 29% by 2014. This increase is particularly noticeable since the 2008 amendments to the ADA went into effect, which significantly expanded the medical conditions that qualify as disability for purposes of the act.
The same bears true with regard to complaints filed before the Mass. Commission Against Discrimination (MCAD), the agency that enforces c. 151B. Specifically, since at least 2008, disability discrimination claims have been present in approximately one third of all complaints filed with the MCAD, resulting in more than 1,000 disability complaints each year. For example, last year, of the 3,127 complaints filed with the MCAD statewide, 1,187 contained at least one count of disability discrimination.
Given these statistics, it is absolutely crucial for businesses to be familiar with the responsibilities imposed upon them by the state and federal disability anti-discrimination statutes.
In the employment context, there are four types of possible disability discrimination claims: (1) disparate treatment; (2) failure to accommodate; (3) hostile work environment; and (4) retaliation.
A disparate-treatment claim alleges that a disabled person is treated differently (less favorably) than non-disabled co-workers solely because of the person’s disability. The difference in treatment does not have to come from a malicious place to be unlawful and may constitute a less-obvious omission, such as the failure to consider someone for a promotion or to offer training necessary for advancement.
Disparate treatment claims are most often brought by employees who are currently suffering from a serious physical or mental impairment. In addition to apparent disabilities, such as an inability to see, hear, speak, or walk, employees with latent physical afflictions, such as diabetes, disc herniation, cancer, and HIV/AIDS, may also be covered. Employees diagnosed with a wide spectrum of mental disabilities may also be protected, including, for instance, major depression, ADHD, and bipolar disorder.
Many employers are unaware of the fact that disability-discrimination claims may also be brought by employees who are not currently disabled. Specifically, a disparate-treatment claim may be brought by an employee with a past history of a serious medical impairment, as well as by a healthy employee who, for one reason or another, may be perceived by his or her employer as disabled.
Also, under what is known as “associational discrimination,” an employee who is closely associated with a disabled individual, such as a spouse or a child, is likewise protected from discrimination.
The second type of disability discrimination — failure to accommodate — is perhaps the most complicated area of the law. Employers must provide reasonable accommodations to employees who are actually disabled. The most important thing for employers to know is that, once a request for an accommodation is made or the need for one becomes apparent, an employer must engage with the employee in what is called the “interactive process.”
This process can be as simple as a conversation aimed at finding out what accommodation is necessary and sufficient to permit the employee to perform the essential functions of his or her job. Employers should also keep in mind that taking too long to engage in this process or to grant a request for a reasonable accommodation can likewise lead to litigation and result in liability. Lastly, while there is an exception for requests that would put an undue financial burden on the employer, this standard is very hard to meet, and so the exception should rarely be relied upon.
As suggested by its name, a hostile-work-environment claim alleges that an employee who is disabled is subjected to an abusive work environment by others in the workplace. The law prohibits speech or conduct that is severe or pervasive and not merely unpleasant or uncivil. Nevertheless, employers are well advised to take all complaints of harassment seriously in order to reduce the risk of litigation.
Lastly, in retaliation claims, employees most often allege that they were fired in retaliation for either requesting a reasonable accommodation or speaking up about what they believe to be discrimination. Employers should know that conduct short of a termination, such as a reduction in hours or a change in shifts, may also result in litigation if perceived by the employee as retaliatory.
One way employers can reduce their risk of litigation is to have a well-trained management team. Supervisors need to know how to recognize requests for accommodations and how to handle complaints of harassment. Good documentation is also crucial. Oftentimes, employers find themselves defending against a disparate treatment or retaliation claim after taking well-deserved disciplinary action towards an employee. In these situations, a written record of poor performance, attendance, or other employment issues and a documented consistency in application of policies will make all the difference.
Olga M. Serafimova, Esq. is an attorney at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Mass. Supplier Diversity Office, the National Association of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]