Outten & Golden: Empowering Employees in the Workplace

THE ADA AT 25: A CELEBRATION

August 12th, 2015 | Gary Phelan

Gary-PhelanTwenty-six years ago, Joseph Garrison, the senior partner at the law firm  where I worked in New Haven, CT, asked me to speak to a potential client  who claimed he was being discriminated against in his job because of his  multiple sclerosis.  As a new associate and a relatively recent law school  graduate, I had not yet handled any clients on my own.  However, Joe  enthusiastically supported my idea of carving out a niche in the area of  disability discrimination in the workplace, and this potential client provided the first opportunity for my first solo flight.

After hearing more details about how the potential client’s thriving career with this employer had stalled after his MS diagnosis, I suggested that we meet for a consultation.  “Are you accessible?” he asked.  “Absolutely,” I confidently replied, since our law office in New Haven was less than one block off the exit from the I-91 Highway and we had plenty of parking behind our office.

As I eagerly awaited the arrival of my first ADA client, the office manager stormed into my office and said, “Your new client is outside in the parking lot and he is very upset.”  When I went outside, I saw that he had arrived in a large van with a lift and used a wheelchair.  “I thought you said you were accessible,” he angrily asked.  As I looked at the steep staircase to the three-story brownstone building where our offices were located, I realized that perhaps there was more that I needed to learn about disabilities besides case law and legislative history.

Over the past 25 years, I have represented over 750 individuals with disabilities in litigation and negotiations.  I co-authored an ADA treatise, wrote too many supplements to the treatise, and read hundreds of ADA cases.  I taught disability law for six years as an adjunct law school professor.  I spoke about the ADA at over 100 conferences.

Therefore, when asked to say something to employment law practitioners about the ADA’s 25th Anniversary, I decided that the best contribution I could make – besides letting everyone know what accessibility means – would be to share what I have learned that you will not read in a case or in a treatise.

25 LESSONS LEARNED ABOUT THE ADA

  1. ADA cases require more interaction with other laws than any other law governing the workplace. ADA cases may involve issues under the Family and Medical Leave Act (“FMLA”), Social Security Disability Insurance law (“SSDI”), state workers compensation laws, the Genetic Information Non-Discriminate Act (“GINA”), the Employee Retirement Income Security Act (“ERISA”), the Pregnancy Discrimination Act (“PDA”) and the Affordable Care Act (“ACA”).  To handle ADA claims effectively, you need to become familiar with these other laws.
  2. The Job Accommodation Network continues to be the best source of information about workplace accommodations. It’s a free service of the U.S. Department of Labor’s Office of Disability Employment Policy.  This story illustrates its value.  A client of mine recently went into a meeting with her two supervisors and two HR representatives to discuss her request for an accommodation for an impairment that is relatively difficult to accommodate.  I provided her with a copy of JAN’s Fact Sheet which described both the impairment and the possible ways to accommodate it in the workplace.  I advised her to bring four copies of the three-page factsheet to the meeting.  She only had to distribute two copies – two attendees brought their own copy of the same fact sheet.  All five of them proceeded to brainstorm about what accommodations would most likely be effective – with the JAN fact sheet providing the road map.
  3. Employers that make some attempt to accommodate an employee with a disability are much more likely to prevail at summary judgment motion in a failure to accommodate case. For example, in Noll v. IBM, (2d Cir. May 21, 2015), a software engineer who was deaf used several accommodations provided by IBM, including on-site and remote ASL interpreter, communication access real-time translation (“CART”), internet-based real-time transcription and video relay series.  The Court upheld the dismissal of his claim that IBM failed to accommodate him because they refused to provide that all internal videos be captioned and all audio files have transcripts at the same time the videos were posted.  The Court reasoned that when the “employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.’”
  4. Joe Garrison used to say that “a good job is better than a good lawsuit.” The adage applies to the ADA more than any other employment law statute.  A plaintiff’s lawyer should do everything he or she can to keep the person employed – if necessary, with a reasonable accommodation.  The job market for persons with disabilities is dismal.
  5. The ADA Amendments Act of 2008 expanded the scope of the definition of disability. However, the employee still must demonstrate that they meet the definition of disability.  I have heard some practitioners say that now almost every impairment is covered under the ADA.  They are mistaken.  For example, in Neely v. PSEG Texas, Ltd., 735 F. 3d 242 (5th 2013), the Court observed that the ADAAA “in no way eliminated the term “disability” from the ADA or the need to prove a disability or a claim of disability.  Although “the ADAAA makes it easier to prove a disability, it does not absolve the party from proving one.”  Also, in Felkins v. City of Lakewood, 2014 U.S. App. LEXIS (10th Cir. 2014), the court held that although the standard for proving that one has a “disability” is lower than it used to be, an individual must still show that one has an impairment that substantially limits a major life activity.  The plaintiff did not present adequate evidence that her avascular necrosis substantially limited any of her articulated major life activities (walking, standing, lifting, normal cell growth or circulatory functions).
  6. The reasonable accommodation requirement is not a “sliding scale” that varies based on the employee’s performance or personality. Employers continue to be both more flexible and reasonable in cases of “stellar” employees while often making little effort to accommodate an average or poor performing employee.  As a result, many ADA cases that have to be litigated will involve employees whose performance ratings are average.
  7. The ADAAA changed the law to say that when determining whether or not a person has a “disability” you look at them without the use of a mitigating measure. Due to medical and technological advances, there will continue to be mitigating measures that are developed and, for those that currently exist, improved.  Therefore, mitigating measures will become a bigger issues in ADA matters in the future.
  8. Retirement is gradually becoming a thing of the past. As employees live longer they are working longer – by choice or necessity.  The older someone gets, the more likely they will develop medical issues or impairments.  As a result, there will be an increase in the number of ADA matters due to our aging workforce.
  9. Employees are now likely to be more open about their hidden impairments – even when not seeking an accommodation. That could make those employers more vulnerable to termination.  However, employers are starting to realize that the positive effects of an impairment may provide the individual with an advantage in a specialized positon or field.  For example, 35% of entrepreneurs in America have dyslexia.  Individuals on the Autism spectrum often excel in technical fields.  Rather than discriminating against them, some progressive employers are recruiting them and adapting their work environments to help them thrive.
  10. While the ADAAA has expanded the scope of who may be covered under the ADA, it has also led to an expansion of the length of job descriptions. I am increasingly seeing very long job descriptions which include tasks which are rarely, if ever, performed.  The purpose of a job description is not to improve the employer’s odds of winning a summary judgment motion.  It also can be very transparent and can backfire.
  11. Unlike other discrimination cases, ADA cases provide the plaintiff’s lawyer with an opportunity to persuade the employer. Employers rarely acknowledge that they discriminated against an employee because of their race or gender or that an employee was sexually harassed.  However, the same employer may be willing to acknowledge that they acted out of fearing or lack of knowledge about the medical condition or that the condition can be accommodated.
  12. Despite the ADAAA, many judges still rely on pre-ADAAA case law and conclude that a person did not meet the definition of a “disability.” Never assume that either the court or defense counsel is familiar with the ADAAA’s changes.
  13. Attorneys should focus less on the name of the employee’s disability and more on how it effects the employee on a day-to-day basis.
  14. The reasonable accommodation process is a two-way street. Employees must be willing to disclose their disability.  Although the employee does not need to provide their entire medical file, they need to be willing to provide enough information to demonstrate that she has a disability and/or is able to perform the essential functions of the job, with or without an accommodation.  If she does not provide enough information, she risks having a court say that her failure to provide enough information obstructed the ADA’s interactive process.
  15. When an employee requests an accommodation for a disability, the Third Circuit’s decision in Taylor v. Phoenixville School District, 184 F. 3d 296 (3d Cir. 1999) provides the best guidance on how an employer should respond to the request. According to Taylor, an employer can show that it exercised good faith in the interactive process in a variety of ways, such as (1) meeting with the employee seeking an accommodation, (2) requesting information about the employee’s condition or limitations, (3) specifically asking the employee what he or she wants, (4) sharing some indication that the employee’s request was considered, and (5) offering and discussing alternative accommodations when the one requested was too burdensome.
  16. As medical insurance costs continue to escalate, employees whose medical conditions require substantial costs will be more vulnerable. I have found that towards the end of the year when employees find out how much their health insurance rates will increase, the number of calls I get from potential ADA clients rises.  Also, there will be an increase in the number of ADA charges by employees who have an association or relationship with someone – such as a spouse or child with substantial medical expenses that are covered under the employer’s health insurance plan.
  17. Due to the expansion of the definition of the ADA, employees who fall outside the scope of the traditional definition of disability may be covered. For example, women with pregnancy-related medical conditions will be covered in some circumstances.  Accommodations and flexibility tend to make everyone’s lives better.  For example, when a building owner installs a ramp due to the requirements of the ADA’s Title III Public Accommodation section, parents using strollers and older individuals with limited mobility also benefit.
  18. Employees seeking accommodations should avoid getting in “email wars” with the employer. Appeals to guilt or threats of lawsuits are not effective.  Telling the employer what the employer “must” provide usually fails.  Suggest accommodations but acknowledge that the employer has the final say as to what, if any, accommodation will be provided.  Offer to meet with the employer.  Provide the doctor’s contact information and invite the employer to speak to him or her.  Try to persuade the employer that the accommodation will “pay for itself.”
  19. Plaintiffs’ lawyers must familiarize themselves with the impairment. That does not just mean googling medical conditions about which they have never heard.  Start with websites like WebMD.  Don’t assume, for example, that you know about multiple sclerosis because a friend has it.  What is the diagnosis?  What are the symptoms?  Is it chronic?  Does the condition tend to deteriorate over time?  How can it be accommodated?
  20. Accommodation requests that involve technological advances and/or progressive workplace changes will continue to be a challenge for plaintiffs when litigated in court. Don’t assume that our judiciary is up to date on the cutting-edge trends in the modern workplace.
  21. Employees seeking accommodations are not required to use the “magic words” of reasonable accommodations when seeking an accommodation. They are only required to request some kind of change in their work environment due to their impairment.  Saying “I can’t do this anymore” or “I need help” might be enough.
  22. Employees are not required to disclose medical records or any other information to show that they are entitled to an accommodation unless and until the employer asks them to do so. Defense counsel continue to often claim that the employee was not covered by the ADA because they never provided any documentation of the condition – even though the employer never asked them to do so.
  23. GINA will start to play a much more important role as the cost of genetic testing decreases and health care costs continue to escalate. Also, due to the prevalence of social media, employers have access to much more information about employees’ personal lives as well as medical conditions which the employee’s parents or family members may have.  I tell my clients to assume that their employers are familiar with whatever they have posted on social media.  For example, if they post a photo from a 5K race to raise funds for breast cancer research and post a photo saying they ran in the race to honor their mom, a breast cancer survivor, assume their employer might be concerned that they are likely to develop breast cancer.
  24. The medical profession continues to be a major problem when navigating the ADA. Attorneys should consider options like drafting a list of practical questions or scheduling an appointment with the doctor and paying them for their time.  Attorneys need to realize that physicians are very busy, do not like “paperwork” and are in the midst of a transformation of their industry.  The problems I have encountered with doctors include letters that are (1) illegible, (2) only says if the employee can or cannot work, (3) tells the employer what they have to do for the employee, (4) have no clue about the patient’s job duties and/or (5) vacillates to avoid taking any definite position.  The problems with letters from employees’ doctors I have encountered include (1) illegible, (2) do not take into account the employee’s job description, (3) assume that any risk is a “direct threat” and/or (4) make stereotypical judgments.
  25. The ADA will continue to be the most creative and exciting area of employment law. The law continues to evolve.  Problem solving skills are paramount.  Medical and technological advances continue to alter the terrain.  As a result of the passage of the ADAAA, the focus on the law is back to where it was intended – on whether the individual with a disability can do the job with or without an accommodation.  Be willing to take risks and make new law.

Gary Phelan is a shareholder at Mitchell & Sheahan, P.C. He represents employees and employers in a wide range of matters, including disability discrimination. He is the co-author of Disability Discrimination in the Workplace (West Group). Gary was selected by peer review in Best Lawyers in America (1995-2014). He has written and lectured on a wide range of employment-related topics. Gary taught disability law, employment discrimination law and alternative dispute resolution as an adjunct professor for six years at the Quinnipiac University School of Law.

He often serves as a commentator on employment law topics and has appeared on ABC’s Good Morning America, CNN, NBC Nightly News, CBS This Morning, CBS Evening News, Fox Business News, Court TV and MSNBC.  He previously served on the Executive Board of the National Employment Lawyers Association (“NELA”), was president of the Connecticut Employment Lawyers Association and was the co-chair of NELA’s Disability Rights Committee.  He is the Chair of the Connecticut Bar Association’s Labor and Employment Section.

Gary is on the Board of Directors of A Better Balance and Smart Kids with Learning Disabilities. He is also on the Board of Advisors for the New York office of Disability Rights Advocates.

Gary graduated from Siena College and Albany Law School.

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