Experts offer tips on how to avoid disability in workplace complaints - Michigan Retailers Association

By SHANDRA MARTINEZ

Nearly 30 years after the passage of the Americans with Disabilities Act, an increasing number of employers are finding themselves on the wrong side of this federal law.

In the last 20 years, there has been a dramatic uptick in disability in the workplace claims nationwide filed with the Equal Employment Opportunity Commission, the federal agency charged with enforcing civil rights laws against workplace discrimination. In fiscal year 2018, there were 24,605 claims, reflecting a 38% hike. The size of the monetary benefits is growing as well. Last year, settlements from cases topped $136.5 million, a 156% jump since 1998.

In Michigan last year, there were 846 charges of disability discrimination in the workplace, up 29% from 2009.

Employers with 15 or more workers are required to provide reasonable accommodations to employees or job applicants with disabilities unless doing so would cause significant difficulty or expense for the employer.

“A reasonable accommodation is any change in the work environment or in the way things are usually done to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment,” says Joseph J. Olivares, an EEOC spokesman.

He added that reasonable accommodation might include making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.

Often scenarios that lead to EEOC complaints can be avoided by an employer’s willingness to engage, in good faith, in a dialog with the employee to explore accommodation options, says Carol A. Laughbaum, a Bloomfield Hills attorney who specializes in workplace discrimination cases.

Federal law requires employers to engage in “good faith” in an “interactive process” with the employee to try to come up with a suitable accommodation that addresses the employee’s disability and does not impose an undue hardship to the employer.

“So the key is the employer attempting to work with the employee and making the effort to accommodate him or her. The employer is not required to simply adopt the first suggestion for accommodation proposed by the employee, but rather to engage in a dialog to try to come up with a solution that works for both parties,” Laughbaum said. “It is not enough that an employer simply goes through the motions, the employer needs to show it is really making good faith efforts to accommodate the employee.”

Accommodations that result in a less distinguished title, lower pay, or fewer hours are more likely to raise red flags with the EEOC.

“It is also important that the employer document its interactive process, keeping a record of the efforts made to accommodate the employee,” she said. “Timeliness is also important. An employer’s undue delay in responding to an employee’s request for accommodation can itself be a failure to accommodate.”

Five case studies of recent ADA violations

• A long-time employee had psoriatic arthritis and worked as a cashier at self-scan checkout area. His supervisor reassigned him elsewhere, saying he wasn’t efficient. The employee provided a doctor’s note about his condition and physical limitations. In response, his employer offered him the option of a part-time position with a pay cut and no benefits or face termination. EEOC says the employer should have been willing to consider proposed accommodations such as using a stool in the checkout lane or a different position that didn’t require standing for long periods of time.

• A man with left-sided paralysis who wore a brace on his left arm applied for a position at a store. After being interviewed, he was offered the position but was told that he could not start work until a few weeks later. However, he was never placed on the schedule and never actually worked for the company, despite his efforts to pursue a start date. During this same time, the company continued to hire other non-disabled individuals to work as customer service representatives at the same store. Federal law says an employer can’t not hire someone because of their disability.

• A retailer allowed an employee who was hired as a stock person to work as a cashier as a reasonable accommodation for her back impairment. A few months later, after learning her restrictions were permanent, she was fired. Federal law says an employer can’t reverse a decision to provide reasonable accommodations.

• A retailer hired a hearing-impaired employee but didn’t allow her to receive orientation or start work for several months. The company claimed she could not complete its orientation process since its videos lacked closed captioning for the hearing-impaired. The EEOC says the employer should have considered other ways to accommodate the employee.

• An employee with generalized anxiety disorder, depression, and post-traumatic stress disorder asked to use her service dog at work. She was denied and then fired in retaliation for her accommodation request. EEOC says employers must provide reasonable accommodations to disabled employees otherwise qualified to perform the essential functions of their jobs.