#Disability #Discrimination Charges and Awards Are On the Rise
As expected, the passage of the #ADA Amendments Act of 2008 (#ADAAA) made it easier for people with #disabilities to make their case about employment discrimination and as a result, employers are experiencing fewer dismissals and higher settlements pertaining to disability discrimination in the workplace. It’s become harder for employers and the courts to argue that employees do not have disabilities and therefore, not protected.
When the ADAAA became law in January, 2009, Congress sent a clear message to employers that they should shift their focus on whether or not the employer has made a reasonable accommodation for the employee’s disability rather than determining whether or not someone has a disability.
In fiscal year 2012, 26.5 percent of #EEOC charges had a disability component.
Despite an overall drop in EEOC charges filed last year, the number filed under the ADA went up by more than 600. Disability discrimination charges have consistently increased since the ADA was amended. In 2008, there were 19,453 disability charges filed. Last year, employees brought 26,379 charges under the law.
The EEOC is also recovering more money from employers for ADA charges. For example, in 2007, before the ADAAA, EEOC collected $1.6 million in settlements related to discrimination claims based on anxiety disorders. Last year, that figure jumped to $6.4 million. The EEOC collected $3.8 million in settlements related to back impairments in 2007. Last year, settlements related to discrimination claims based on back impairments were approximately $10 million.
Remember: The ADA is not simply a matter of counting up the days, but rather treating each employee individually.
If you have a no-fault or fixed leave policy, include language in that policy that states the employees may be eligible for additional leave as a reasonable accommodation if appropriate. Policies that treat all employees the same (i.e., fixed-leave policies), although easy to administer, is a red flag. Granting additional time off beyond what employees with disabilities are entitled to under the Family Medical Leave Act may be necessary as a reasonable accommodation under the ADA. The employer has to engage in an individualized assessment to determine whether or not the employee can be reasonably accommodated and that obligation is there even if the employee has exhausted his or her FMLA leave and even if that employee has exhausted the no-fault, fixed leave.
Remove language in policies that unequivocally say that employees must be able to return to full duty at the end of leave. Creating light duty positions as a reasonable accommodation is not required under the ADA, but since it’s not required that the employee return to full duty AND the employer has light duty positions available, consider them as a possible reasonable accommodation.
Train supervisors to notify human resources of all leave or time off requests so that HR can make sure an individualized analysis is completed.
In the end, an employer may not be able to provide an accommodation that is “reasonable”, but in order to prove “undue hardship” (meaning a significant difficulty, expense or disruptive to the workplace), HR must go through an individualized analysis in order to justify such a decision.