Disability Act Charges and Awards Skyrocket

In the early years of enforcing the Americans with Disabilities Act (ADA), it wasn’t uncommon for claims to be tossed out early on summary judgment motions. But when congressional amendments in 2008 made it easier for plaintiffs to make their case, employers predicted there would be fewer dismissals and higher settlement numbers. Patrick Hicks, a partner in the Las Vegas office of Littler Mendelson, says, “That’s exactly what we’re seeing in the trenches.”

For years after the ADA was originally passed in 1990, Hicks says employers most frequently and successfully argued that employees were not disabled. But the passage of the Americans with Disabilities Act Amendments Act (ADAAA) changed the focus of the statute.

The amendments made it easier for plaintiffs to establish that they have a disability under the ADA. “Congress said we should not be doing an exacting analysis of whether or not someone is disabled,” says Hicks. “The focus should instead be on whether or not the employer has made a reasonable accommodation for the employee’s disability.”

Individuals who file charges of discrimination with the U.S. Equal Employment Opportunity Commission often claim multiple types of discrimination. In fiscal year 2012, 26.5 percent of EEOC charges had a disability component.

Despite an overall drop in EEOC charges filed last year, the number filed under the ADA went up by more than 600. Disability discrimination charges have consistently increased since the ADA was amended. In 2008, there were 19,453 disability charges filed. Last year, employees brought 26,379 charges under the law.

The EEOC is also recovering more money from employers for ADA charges. Hicks explains, “If cases are less likely to be dismissed on summary judgment, settlement values go up.”

For example, in 2007, before the ADAAA, the agency collected $1.6 million in settlements related to discrimination claims based on anxiety disorders. Last year, that figure jumped to $6.4 million. The EEOC collected $3.8 million in settlements related to back impairments in 2007. Last year, settlements related to discrimination claims based on back impairments were approximately $10 million.

When it comes to making reasonable accommodations under the ADA, one area that can cause problems for employers is employee leave time. Hicks sees well-intended businesses get tripped up by fixed-leave policies that grant workers time off for disability beyond what they’re entitled to under the Family Medical Leave Act.

Policies that treat all employees the same are easy to administer, says Hicks, “and they sound like good policy.” But the ADA is one area of the human resources arena where the usually reliable mantra of consistency doesn’t apply.

“The employer has to engage in an individualized assessment to determine whether or not the employee can be reasonably accommodated,” says Hicks. “And that obligation is there even if the employee has exhausted his or her FMLA leave and even if that employee has exhausted the no-fault, fixed leave.”

Hicks says, “What we have found is employers who have these policies sometimes forget that with the ADA it’s not simply a matter of counting up the days, but rather they have to treat each employee individually.”

Hicks says employers should keep some tips in mind:

1. If you have a no-fault or fixed leave policy, include language in that policy that states the employees may be eligible for additional leave as a reasonable accommodation if appropriate. “Because you can well imagine, if you don’t have that kind of language, the policy itself becomes a piece of evidence in the case,” says Hicks.

2. Remove language in policies that unequivocally say that employees must be able to return to full duty at the end of leave. “Under the ADA, it’s not required that the employee return to full duty,” says Hicks. “It may be that light duty is a reasonable accommodation, for example.”

3. Train supervisors to notify human resources of all leave or time off requests. “Human resources will then in turn make sure an individualized analysis is done,” he says.

It may ultimately be the case that the employer cannot reasonably accommodate the individual without an undue hardship. “But you’ve got to go through that analysis and really come to that conclusion,” says Hicks.