by Tammy Binford

A new study from business and research organization The Conference Board says that more than 10 percent of the U.S. population currently has some form of disability. Other research from the U.S. Census Bureau shows that disproportionate numbers of people with disabilities are either unemployed or working in jobs that pay low wages.

Employment statistics for people with disabilities have the potential to grow even bleaker in the near future as employers cope with an aging population and an influx of veterans returning from Iraq and Afghanistan with service-related disabilities. It’s clear that employers need to be ready to not just accommodate workers with disabilities but also capitalize on the strengths those employees can bring to the workplace. read more…

by Brandon Gearhart

A recent decision from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Kentucky, Michigan, Ohio, and Tennessee employers) illustrates the importance of the interactive process when making employment decisions about a disabled worker. The court returned a previously dismissed Americans with Disabilities Act (ADA) claim to the lower court, in part because the employer made a decision regarding disability accommodations without consulting the disabled worker. 

Facts

Nicholas Keith was born deaf and is unable to speak. After receiving lifeguard certification from Oakland County, Michigan, he applied for a lifeguard position at the Oakland County wave pool in 2007. Katherine Stavale, Oakland County’s recreational specialist, offered Keith a lifeguard job conditioned on him passing a physical exam. Dr. Paul Work performed the exam. After looking at Keith’s medical records, Work stated, “He’s deaf; he can’t be a lifeguard.” He failed Keith because he didn’t believe he could function independently as a lifeguard. read more…

by Burton J. Fishman

Of the many contentious accommodation issues under the Americans with Disabilities Act (ADA), perhaps the most hotly debated is whether reassignment to a vacant position is a reasonable accommodation. Although the ADA lists “reassignment” as a possible accommodation and the Equal Employment Opportunity Commission (EEOC) supports that position, many courts have been reluctant to accept this part of an ambiguous statute at face value. The abiding issues are whether disability “trumped” all other work-related factors and whether the disabled had a superior place among protected groups.

Reassignment complications

It isn’t difficult to imagine the kinds of conflicts reassignment as an accommodation creates. What if:

• The disabled employee is minimally qualified with few hopes of improvement?
• There are better-qualified candidates who had bid for the open job?
• Among the better-qualified candidates are members of other statutorily protected groups (e.g., racial minorities, women, foreign- born workers, or individuals over 40)?
• Among the better-qualified protected employees there are other disabled employees who don’t need an accommodation to do the job? read more…

by J. David Kutch

A Palm Beach State College (PBSC) student received permission from the school to use a service dog trained to help her deal with the effects of her psychiatric disorders. However, she failed her classes and was escorted off the campus at times, apparently because two offices at the school had different positions on allowing the dog in class. Sick of the song and dance, the student ended up in court asking for permission to continue bringing her service dog to class. She won.

Although this case didn’t involve a dispute between an employer and employee, the court’s decision has some implications for your compliance with the Americans with Disabilities Act (ADA). It’s important to note that the accommodation would likely be the same in an employment case.

read more…

by Nancy Williams

Just as private-sector workers are required to file an administrative charge of discrimination before filing a lawsuit under Title VII of the Civil Rights Act of 1964, federal employees also have prefiling requirements. In a disability discrimination case against the Equal Employment Opportunity Commission (EEOC), the 9th Circuit recently decided that the employee had taken all necessary steps and could proceed with her claim.

Was filing of lawsuit fatally premature?

Mary Bullock was an administrative law judge (ALJ) for the EEOC from 1999 to 2007. She suffers from both multiple sclerosis and systemic lupus. In January 2003, she filed an informal disability discrimination complaint, and four months later, she filed a formal complaint. She claimed the EEOC had failed to accommodate her condition and thus had violated the federal Rehabilitation Act. The informal and formal complaint steps track the requirements of Title VII for federal employee claims. read more…

By Susan W. Kline

In addition to prohibiting discrimination against qualified employees and applicants with disabilities, the Americans with Disabilities Act (ADA) prohibits employment discrimination against someone, regardless of whether he has a disability, because of his known relationship or association with a disabled person. The disabled person with whom the employee or applicant is associated need not be a family member for the protection to apply. The focus is on whether the employer treated the applicant or employee worse than others based on his relationship or association with a disabled person. Several recent court decisions involving “association” claims under the ADA illustrate how these protections operate.

Three Types of Claims

The Seventh U.S. Circuit Court of Appeals, which has jurisdiction over Indiana, Illinois, and Wisconsin, has defined three distinct types of association discrimination claims under the ADA. read more…

Even though there’s no definitive rule on whether obesity is a disability under the amended, more employee-friendly Americans with Disabilities Act (ADA), you should be careful about how you treat overweight and obese employees. One in every three Americans age 20 and up was obese between 2007 and 2008, and about the same percentage was overweight, according to the Centers for Disease Control and Prevention. One state, Nevada, was considering legislation this year to outlaw discrimination based on physical characteristics, including weight, and survey research published in the journal Obesity and reported in the Orlando Sentinel indicated support for laws against discrimination based on weight.

The U.S. district court in New Orleans has been asked to rule on a recent lawsuit by the Equal Employment Opportunity Commission claiming a woman was illegally fired because of obesity in violation of the ADA. The employer has denied liability, and a trial is set for March 2012. The new ADA doesn’t explicitly say obesity is a disability, but it relaxes the definition for an impairment that substantially affects a major life activity, the cornerstone of ADA protection. That makes it easier for an employee to establish she is disabled and entitled to the Act’s protections ― a reasonable accommodation to perform the essential functions of the job and protection from adverse workplace decisions based on bias. read more…