Defining disabilities Featured

9:50am EDT July 22, 2002

The recent U.S. Supreme Court decision limiting employee claims of discrimination under the Americans with Disabilities Act was a relief to many business owners who feared the prospect of attorneys lined up at every courthouse in America, employee discrimination lawsuits in hand.

The court’s late June ruling put to rest three lawsuits filed by people who claimed they were wrongly fired for afflictions that should be protected by the ADA. The decisions came in cases involving twin sisters who were disqualified as pilots for United Air Lines because of their nearsightedness, a mechanic whose blood pressure exceeded federal safety limits and a truck driver who is nearly blind in one eye.

In a narrow interpretation of the federal law, the court ruled the ADA does not protect people with “correctable” health conditions, and applies only to those with conditions that constitute an impairment of a “major life activity.” The catch is employers are saddled with making that decision on a case-by-case basis.

Thomas H. Barnard, chair of the Employment and Labor Law Group at Ulmer & Berne and chair of the Ohio State Bar Association’s Labor and Employment Law Section, says the issue is even more complex. Diabetics or people with poor vision may be considered “disabled” even in their corrected state. Since the ADA applies to all companies with more than 15 employees, determining whether a person is protected under the law is a decision many business owners will eventually have to make.

“Once you get into the area, there are many potential situations where you can stub your toe,” says Barnard. “The problem with the whole statute that makes it confusing is the individual approach.”

However, he says there are basic rules a business owner can follow to greatly reduce the chances of making a mistake.

Have an expert on board

The first and most confusing issue is whether an employee falls under the U.S. Supreme Court’s definition of who is granted protection under the ADA. The best way to make this determination is to invest in educating a member of your staff about the law, if you don’t already have an employee who can serve as your company’s expert on the matter.

“Usually you have somebody in HR or personnel who has that (ADA) knowledge,” says Barnard. “Even if you don’t have a human resources department, you need to have someone on staff who is knowledgeable.”

If a company does not have anyone on staff who can fill that role, Barnard says seeking out an attorney or other ADA expert to periodically consult on potential disability issues is a lot cheaper than trying to defend your company against a discrimination lawsuit.

Negotiate special accommodations

If you have an employee who falls under ADA protection, determine what accommodations you are responsible for making so that person can perform the job. Barnard says a good way to handle this is to invite the employee in and work together to find the best option. He says it is often best just to ask the employee what he or she needs.

“Your job as employer is to ask them how can they perform the job,” says Barnard.

The business owner is granted some protection under the ADA. He or she is not required to make any accommodation that would in any way prove an “undue hardship” or hurt the company.

Sometimes, accommodations will work for one type of employee, but not for another. If an employee has to leave an hour early every day for special medical treatment, sometimes that request simply can’t be granted.

“If you’ve got 15 people on a specialized line, there may be no way you can let one of them off early, because that person has a specialty job,” says Barnard. “However, if the person is a secretary, you may have to do that.”

Make an honest effort

The strongest weapon against disability discrimination lawsuits is to make an honest and concerted effort to meet the needs of any employee with a disability. Barnard says attorneys will be reluctant to take a case in which an employee wants to sue a company if he or she sees the business owner has taken steps to try to accommodate the employee.

But if a business owner turns a blind eye to the situation, he or she automatically becomes a prime lawsuit candidate.

“If the company has truly made an effort, lawyers are going to shy away from taking the case, because it’s too hard to prove,” says Barnard. “But if you have done nothing, flags and bells go off. Now you’ve got a problem. Plaintiff lawyers see it as a slam dunk.”

How to reach: Thomas H. Barnard, Ulmer &Berne, (216) 621-8400

Jim Vickers (jvickers@sbnnet.com) is an associate editor with SBN.