Employer-friendly ADA Featured

10:02am EDT July 22, 2002

Disability discrimination claims against employers have grown dramatically since the Americans with Disabilities Act went into effect six years ago. Over the last three years, more disability discrimination claims were filed with the Equal Employment Opportunity Commission than any other type of claim-amounting to just under one-quarter of all claims filed. So employers need to be better prepared than ever before to handle the intricacies of this law.

But the good news is that the courts haven't forgotten the employer's rights in discrimination matters.

Certainly, the ADA requires employers to reasonably accommodate a particular applicant's or employee's known disabilities to the specific duties of a particular job under certain circumstances, and to not inquire about unknown disabilities or use stereotypes regarding medical conditions. As such, though, employers understandably have been concerned that such a legal standard invites lawsuits against them.

After all, employers have long feared employment discrimination claims in other areas, such as age, sex, race, national origin and religious discrimination. Unclear and open-ended legal rules in these areas permit inconsistencies and inferences to be exploited against employers.

However, while numerous pitfalls exist which should be avoided in handling disabled-employee matters, the good news is that the courts have recognized and supported employer rights. Rulings against employers have generally been limited-much more so than in other areas of employment discrimination law. Managers who are thoughtful and take reasonable steps to investigate and handle employee disability cases face a low risk of liability.

Courts in many cases have dismissed claims by people whose physical or mental impairments are not substantial. If an individual is able to conduct most basic daily activities (eating, reading, talking, dressing, walking, working in various jobs) despite an impairment, then generally his condition is not considered serious enough to qualify for protection from disability discrimination (unless the impairment is degenerative and will likely produce serious consequences over time). This is an important check against employees misusing this law to get favoritism and an easier job as a result of a mild impairment. This law is reserved for people who truly suffer from serious physical and mental impairments.

Courts also have generally rejected claims from employees who did not request an accommodation and for whom the need for an accommodation was not obvious. In other words, courts have held that, generally, the employee is responsible for raising the issue of the need for an accommodation with his employer.

Keep in mind, the employer is not obligated to question whether, or suggest that, an employee needs an accommodation, unless it's obvious the employee's condition warrants accommodation to enable him to productively perform his job. This is helpful to protect employers from claims by individuals who did not divulge any disability or a need for accommodation until after a discharge or other negative job action.

Similarly, courts are not permitting employees to dictate what specific accommodation must be utilized when various alternatives are available. Employers are free to select any reasonable accommodation-not necessarily the accommodation preferred or considered most reasonable by the employee.

This is also a valuable tool for employers to avoid the situation in which an employee with a substantial impairment seeks to get out of an undesirable duty, not just because of the impairment, but because he doesn't like that activity or work location. The focus is, and has remained on, what accommodation will permit the core job duties to be properly performed, rather than completely removing managerial prerogatives.

Employers are not required to accept whatever an employee's doctor recommends. An employer, under reasonable circumstances in which doubt arises concerning a medical statement, is able to question an employee's doctor and get a second opinion from a physician of the employer's choice. It's not uncommon for employers to come across a few physicians who give a patient whatever work-restriction note he wants. The right of employers to seek further information is helpful in combating unjustified restrictions.

Moreover, employers are not required to remove essential job elements to accommodate a disabled individual. If the employer has engaged in a genuine effort to identify any reasonable accommodations that will enable an individual to competently perform a particular job and can't find such an accommodation, then the employer isn't required to eliminate the job function at issue unless it's a marginal and unimportant aspect of the job.

Finally, courts have rather uniformly respected the job rights and procedures applicable to other employees in the workforce. Court decisions repeatedly hold that disability accommodation obligations do not trump seniority and other procedures applicable to nondisabled employees. An employer, for instance, isn't required to move an employee off a job simply to create an opening for a disabled employee unable to do his own job with accommodation. However, a disabled employee unable to perform his regular job should be considered for vacancies for which candidates are being sought.

Disability discrimination law is complicated. But if employers obtain good counsel in handling disability issues when they arise, the risk of being on the losing end of a discrimination suit is low. Generally, the steps to be taken include doing an appropriate investigation, including getting information from physicians as well as the employee; avoiding stereotypes regarding medical conditions; focusing on the key needs of the job; keeping an open mind regarding accommodations; and reacting to further developments in the employee's condition. Employers who obtain good guidance can be successful in accommodating employees with legitimate needs without having to fear liability from standing up to those employees not so deserving.

Craig M. Brooks is a shareholder practicing employment law with Pittsburgh-based law firm Houston Harbaugh, PC. Questions about this and other employment-law issues can be directed to Houston Harbaugh at (412)281-5060.