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ADA Claims on Rise
 

By Allen Smith  6/26/2014

When the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was enacted, experts predicted that the number of ADA claims would dramatically rise. That prediction has proven true, partly because many impairments that before the ADAAA weren’t deemed covered, after it are.

“Gone are the days of employers routinely succeeding in having disability discrimination claims dismissed because an impairment is not a covered ADA ‘disability,’ ” remarked David Katz, an attorney with Mintz Levin in New York City, in an interview with SHRM Online.

Before the ADAAA, the percentage of Equal Employment Opportunity Commission (EEOC) charges that involved ADA claims hovered around 20 percent—roughly 15,000 annually. After the ADAAA, that percentage rose to 28 percent in 2013—about 26,000 claims—the highest ever, he noted.

That Was Then, This Is Now

Impairments that were ruled as not covered by the ADA prior to the ADAAA increasingly are being ruled to be covered, Katz observed. That includes episodic or in-remission impairments, such as hypertension, kidney stones and cancer.

Richard Cohen, an attorney with Fox Rothschild in New York City, agreed. “Before passage of the ADAAA, people with particular impairments such as limb amputation, multiple sclerosis, HIV/AIDS, diabetes, muscular dystrophy, intellectual disabilities, epilepsy and cancer were not necessarily or by definition covered by the law.”

Cohen told SHRM Online that Congress’s intent when passing the ADAAA “was to create a broader and more liberal standard as to the definition and nature of an impairment” covered by the law. “Congress explicitly intended that ‘the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.’”

“So just about any physical or mental disorder or condition may, in fact, be covered,” Cohen said. “Every day I see new cases filed and decided which hold that just about any impairment may be a covered disability.”

This includes severe obesity. Before the ADAAA, the EEOC had guidance stating that morbid obesity or severe obesity would be covered by the ADA. The U.S. District Court for the Eastern District of Missouri agreed in an April 24, 2014, decision (Whittaker v. America’s Car-Mart, No. 1:13CV108).

“The Whittaker decision is certainly not surprising in light of the ADAAA, several other federal court decisions preceding Whittaker and the EEOC’s stance on severe obesity,” Katz said. “What is more intriguing is whether courts will begin finding that ‘moderate’ obesity—which describes roughly one in every three Americans—without an underlying physiological condition is a ‘disability’ under the ADA. The fact that the American Medical Association, the nation’s largest association of physicians, for the first time last summer recognized obesity at any level as a disease will likely push the needle in that direction.”

Not every impairment though is a covered disability, even after the ADAAA, Katz noted. “Some transitory and minor impairments still likely fall outside the scope of an ADA ‘disability,’ such as colds, the flu, seasonal allergies, sprained joints, hangnails and stomach aches,” he said.

Action Items

With the rise in ADA claims comes a renewed need to provide training, Katz and Cohen agreed. “Managers should receive regular anti-discrimination and anti-harassment training as well as performance management training to ensure that their attitudes are aligned with the employer and that outdated stereotypes are not being advanced,” Katz noted. “Managers must understand the potential litigation costs, which could possibly be avoided by entertaining what may be a simple accommodation, such as a wider chair or a seat belt extender. These issues should be referred to HR professionals.”

There should be periodic training of the entire workforce, Cohen emphasized.

“One of the most important things is that, from the top down, an employer must communicate effectively that everyone will be treated fairly,” he remarked. “That is, that you are truly an equal opportunity employer.”

“Also, accommodation requests must be taken seriously and employers must engage employees in what is known as the ‘interactive process’ to find a workable solution,” Katz added. Job descriptions should be regularly updated to ensure that essential job functions are described there, “as this often becomes an issue in disability claims.”

Finally, Katz recommended that employers consider “having a centralized decision-making process—typically involving HR to some extent—to ensure consistent responses to accommodation requests, which may include leaves of absence.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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