The ADA: Fact and Fiction
What people know, or think they know, about the Americans with Disabilities Act (ADA) is frequently as much urban legend as fact. Employers often think it imposes more of a burden on them than it really does, and the disability community often believes it guarantees rights that it doesn’t.
Since this is not legal information you’re going to learn by watching “Judge Judy,” below is my attempt at ADA Facts for Dummies.
While the ADA prohibits discrimination in state and local government, public accommodation, commercial facilities, telecommunication, and transportation, the largest percentage of cases by far deal with alleged employment discrimination.
A few basic facts are in order:
* A business must have fifteen or more employees to be covered by the ADA. The “mom and pop” store on the corner is excluded.
* it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, etc.
* When interviewing job applicants, employers may not ask any questions regarding disability. Applicants are, however, not prohibited from raising the issue, if they wish.
* It requires that employers make “reasonable accommodation” to enable and otherwise qualified individual to perform the job. Frequently, a case comes down to what exactly is meant by “reasonable accommodation,” and the answer is not always clear-cut. This is where the lawyers make their money.
* An employer is excused from providing a “reasonable accommodation” if it would result in an “undue hardship” for the employer.
As you might imagine, most complaints that are filed revolve around whether a specific accommodation is “reasonable” or an “undue burden.” The Department of Justice provides a surprisingly large amount of guidance for both employers and prospective employees to help them answer this question.
The ADA, however, is far from a magic bullet protecting against discrimination. In fact, of all the civil rights statutes on the books, it provides the least protection for plaintiffs. It’s easier to win a case alleging racial, sexual, or age discrimination. The person alleging discrimination on the basis of disability only triumphs in 7% of court cases and 16% of appeals, and, of course, this is assuming he or she has the financial resources to litigate the case in the first place.
Your chances of winning a discrimination case vary significantly depending on who files it. Cases brought by private individuals are much harder to win than those brought by a government entity.
A quick review of cases in which discrimination was found to have occurred leave you with the impression that these were judicial no-brainers. Two examples will illustrate.
Case 1 A man who had worked for thirty-seven years in the oil industry was fired by an Alaskan oil company when it discovered he was blind in one eye. The company contended that the employee’s blindness made him an increased safety risk, although he had been blind in the one eye his entire working life and had never had an accident.
Case 2 A blind applicant for a customer service representative job was told it would not do him any good to put in an application because “the company was not set up to handle blind people.” After he filed his complaint, the company called the applicant for an interview, but gave him a braille test that had three times as many questions as the written test given to sighted applicants.
At trial, evidence was produced that the applicant had been trained to perform customer service jobs with the aid of screen-reading technology, which translates text into speech. The company, however, never attempted to install the technology and did not consider whether other accommodations could be made that would enable the applicant to do the job. The company also failed to contact the State Division of Vocational Rehabilitation, even though the company was aware that that agency often paid some or all of the costs of implementing adaptive technology. An expert also testified about the extent to which screen-reading technology had been used successfully in many business call centers.
The bottom line is that winning a case under the ADA is usually far more difficult than is commonly believed. It is time-consuming, frequently difficult to prove, and stressful. In the end, only slightly more than one case in a hundred that is filed and appealed results in a judgment for the plaintiff. Every attorney who specializes in disability cases with whom I’ve spoken concurs that it is far preferable for everyone if disputes are handled informally and resolved as amicably as possible. After all, not many people want to work for, or employ, someone they’ve had to sue.