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Disability Discrimination Rises

Disability discrimination skyrocketed in 2010, according to the EEOC. Experts pin the blame on the broadening definition of "disabled" by the ADA Amendments Act, and -- on a smaller scale -- the loss of jobs in the economic downturn.

Thursday, February 24, 2011
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Disability discrimination claims hit 25,165 in fiscal year 2010, according to the U.S. Equal Employment Opportunity Commission. That's an increase of more than 17 percent from the previous year and the most since the EEOC began enforcing the Americans with Disabilities Act in 1992.

While the EEOC refuses to speculate on the reasons for the increase, experts say it's mainly due to the expanded definition of "disabled" under the Americans with Disabilities Act Amendments Act, which went into effect in January 2009.

Under that law, the definition of disability now includes a wider variety of medical conditions, even including diabetes, migraines and carpal-tunnel syndrome.

"We've seen a transformation from a disability-discrimination statute to a medical-condition statute ... ," says Frank Alvarez, a partner with Jackson Lewis in White Plains, N.Y. "Employers are just beginning to realize the increased legal risks they face due to the ADA Amendments Act.

"For a long time, employees couldn't get to first base in an ADA case," he says. "Now, they get an intentional walk."

Jane Lewis Volk, an attorney with Meyer, Unkovic and Scott in Pittsburgh, says that, under the old rules, a person would not be considered disabled if they could mitigate the condition with medication or prosthetics. Now, the consideration of whether a condition is considered a disability is based on the person's condition before they treat it, she says.

At this point, says Alvarez, any medical condition lasting a few months "has a reasonable chance of getting in front of a jury."

Two recent cases on the EEOC's website certainly show an expanded definition of disability:

* Hussey Cooper, a Leetsdale, Pa.-based copper-parts manufacturer, will pay $85,000 to settle a lawsuit with a worker who was allegedly not hired because he received methadone as part of a substance-abuse program.

* Chicago-based United Airlines agreed to pay $600,000 to settle a disability-discrimination lawsuit with a group of plaintiffs, whose complaints included carpal-tunnel syndrome and tendonitis.

The current definition of "disability" could become a little tighter, however, as these cases make their way through the legal process and courts begin setting legal precedents, says Alvarez.

But don't expect Congress to attempt to revert back to the old ADA regulations, even though the midterm elections ushered in sweeping changes, he adds.

To a lesser degree, the number of people losing their jobs due to the economic downturn helped fuel the uptick in disability discrimination claims, says Volk. More people getting laid off means more chances someone sues for discrimination.

"With so many people losing their jobs, [bringing forth legal action] is worth a shot," she says.

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To protect their companies from this upsurge in litigation, HR leaders should presume that someone with a significant medical condition is disabled, says Alvarez.

"Stop fighting the notion that people are not disabled," he says. "Employers who keep trying to fight the question of whether people are disabled are going to experience death by a thousand cuts."

Of course, employers need to make reasonable accommodations for employees and job applicants with disabilities or risk violating the law. Jeanne Goldberg, senior attorney adviser at the EEOC, says employers need to make sure front-line managers and supervisors know how to recognize a request for reasonable accommodation.

"There needs to be a clear company procedure for how to handle reasonable-accommodation requests and make it as easy as possible for managers and supervisors to quickly respond to reasonable accommodation requests and know what the law requires," says Goldberg.

"It's also critically important that any termination decisions, hiring decisions or other employment decisions that in any way are made with respect to an individual with a medical condition be made based on objective information about what the individual qualifications are and not based on any stereotypes."

Volk says that -- whether hiring, firing or promoting -- employers should make all employment decisions based on the needs of the job function.

"Are you going to be able to lift 10 pounds? Can you sit at a desk for eight hours?" says Volk. "Focus on those functions so you're making decisions on legitimate business reasons."

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