Jottings By An Employer's Lawyer

Wednesday, August 11, 2010

Cautionary Comments as the ADA Nears Adulthood

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. 

So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).

Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.

Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.

To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences. 

The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.

Think about the law works.

The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability).  To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.

But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.

In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately

With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.

But are they disabled? As defined under the ADA, not nearly as easy.

And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.

And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.

There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles --  that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.

I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.


For what it is worth, I'm a in-house L&E attorney and I disagree with the focus of posting. Since the passage of the ADAA, I believe the majority of american workers would fit within the definition of "disabled" under the ADA. Therefore, HR professionals waste time and effort in attempting to determine whether the label "disability" applies to a situation, but are better served focusing on whether there is a "reasonable" solution that would enable an employee to perform their job effectively. To cry that it is too hard to determine if the ADA applies because of the court decisions on Disability is a red herring. Howeve,I agree the ADAA did more harm than good for the truly disabled community. I think the broad definition's labeling everyone disabled will actually limit the ability of the traditionally disabled to get employment simply because the law does not provide a hierchy of who gets accomodation (adjusted schedules, job assignment, etc.).
Actually the comment is worth a lot and a helpful reality check with the every day world of having to apply the law to real life situations. When writing the post, I did
have a nagging sense that I might be talking too much past tense, hence the call out about the the ADAA, but thanks for making a very practical point on going forward.

Michael Fox
Another in house L&E attorney here. ADA-AA stands for Assume Disability, Always Attempt Accommodation. It's a horrible law and nearly impossible to comply with, but we certainly don't waste any time trying to figure out if someone is a qualified individual with a disability any more.
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