The Americans With Disabilities Act: What Every Non-Profit Should Know
| Posted in Legal on Apr 24, 2011 by |
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Dating back to 1997, more charges of discrimination were filed against employers in 2010 than in any other year. Consistent with this trend, more disability claims were filed against employers in 2010 than in any other year noted on the EEOC’s website. Given that Congress recently amended the Americans with Disability Act to make it more “employee friendly,” one can only expect the increase in disability-related claims to continue on its current upward trajectory. For that reason, it is important for employers, including not-for-profit organizations, to be aware of the recent changes in the ADA and what management and supervisory staff must do to minimize potential liability.
Although the ADA applies to all employers with 15 or more employees, the Missouri Human Rights Act (which also prohibits discrimination on account of disability) covers employers with as few as 6 employees. For this reason alone, not-for-profit organizations both big and small must be cognizant of their obligations under the law.
The ADA prohibits employers from discriminating against disabled persons in the terms and conditions of their employment (i.e., hiring, firing, demotions, promotions, job assignments, etc.). Historically speaking, since its enactment in 1990, ADA claims were considered difficult ones for employees to prevail. With the recent amendments to the ADA and the recently issued regulations (which become law on May 24, 2011), that may change.
The term disabled has always been defined as a “physical or mental impairment that substantially limits one or more major life activities.” Using this definition, it was quite common for courts around the country to conclude that an employee with an impairment did not qualify as disabled under the Act. Thus, employers were not be liable when an employee claimed he was discriminated against or that he did not receive an accommodation required under the law.
Now, however, with the Americans with Disabilities Act Amendments Act, known as the ADAAA, Congress has specifically declared that the definition of “disability” should be construed “in favor of broad coverage of individuals.” As an example of this, the regulations provide that “major life activities” may include not only such things as hearing, seeing, and walking, but also reaching, lifting, and communicating with others. In addition, the new law extends coverage to persons with episodic impairments or conditions in remission if the impairment would substantially limit a major life activity in its active state. As applied to employers, these two coverage expanding provisions are significant since they mean that virtually any impairment, even one that is not presently impairing, which physically limits an employee from doing his/her job is likely to be considered a disability under the Act. In short, it is not uncommon to hear those familiar with the amendments and the regulations to say that “everything is a disability now.”
Under ADA, pre and post-amendments, the employer (upon request or upon learning that an accommodation is needed), has an obligation to reasonably accommodate a disabled employee. Because “everything is a disability now,” employers more than ever must be cognizant of the proper way to handle what is sure to be a commonplace situation—an employee’s request for an accommodation for a condition which might not seem like a disability in the traditional sense of the word. “Accommodations” can include, but are not limited to, redefining job responsibilities, temporary job reassignments, or allowing an employee to take a short leave of absence. To determine what accommodation is appropriate, the employer and the employee are permitted to engage in an “interactive process” whereby the employer can require a physician’s note, can speak with a physician (with the employee’s consent), and otherwise work with the employee to arrive at a reasonable accommodation. Of note, employees are not entitled to the accommodation of their choosing. Rather, an employer can provide an accommodation which is the least expensive or the easiest to implement so long as it is reasonable and serves its purpose (i.e., permits the employee to perform the essential functions of his/her job).
Because the notion of disability will be liberally construed by the courts, the best way for an employer to minimize its risk is to have appropriate policies and procedures in place to reasonably accommodate disabled employees. This means employers should update job descriptions making sure that they accurately depict the duties and responsibilities of the position. It also means that employers must ensure that the entire accommodation process is well-documented, including whether and when the employee requested the accommodation, whether the employee declined any particular accommodation, or whether the employee failed to meaningfully participate in the interactive process. Finally, it means that managers/supervisors must be trained to identify those situations when an accommodation is required since the failure to recognize an employee’s request for an accommodation could result in liability, even in the absence of intentional discrimination.
If you have any questions regarding this article, or any other employment law matter, please feel free to contact me at (314) 588-7000 or rkorn@foxgalvin.com.
Richard Korn is a partner at the law firm of Fox Galvin, LLC, a boutique litigation law firm located in downtown St. Louis. For more information on Richard’s practice, please feel free to visit Fox Galvin’s website at foxgalvin.com. Contact Richard at rkorn@foxgalvin.com or (314)588-7000.
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Employment Law Americans with Disability Act Discrimination Nonprofit Richard Korn
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