Training the Troops to Avoid ADA Liability

Try not to let the statistics lull you into a false sense of security. Yes, it's true that employers prevailed in 95.7% of the federal Americans with Disabilities Act (ADA) Title I court decisions in 1999. And yes, it's true that 55.8% of the ADA charges brought forth in 2000 were dismissed as having no reasonable cause. But ADA charges, valid or not, take a serious toll on employers in terms of the time and effort needed to respond to them. Valid charges exert an even more damaging toll – that of monetary benefits awarded to plaintiffs, amounting to $47.9 million in 2000.
What's more, the Equal Employment Opportunity Commission (EEOC) is actively seeking to expand its base of ADA case law in several important directions, including cases involving contingent work, worker infertility, shift work, work hours, harassment, major life activities, reassignment, and reasonable accommodation. So what can an employer do to lessen the likelihood of being the next landmark case for the EEOC's litigation strategy group?
Companies' best defense may be the training of those on the front lines. First-line managers are especially important, being the people most likely to commit common ADA-related errors. In many ADA situations, the manager's good-faith effort to resolve an issue through conscientious participation in the interactive process may be the firm's best bet for avoiding lawsuits. An employee who believes his or her employer is sincerely interested in resolving the issue, in listening to suggestions, and in seriously considering the accommodation request is far less likely to feel the need to visit a lawyer.
Even if they've already had some ADA-related training, line managers may need more education about how contingent workers are covered under the ADA. These days, staffing agencies do not assume all legal liability. The EEOC recently issued enforcement guidance to employers on applying the ADA to contingent workers placed by temporary agencies and other staffing firms. For instance, the guidance stipulates that an offer does not occur until a worker receives an assignment with a specific client. Although typically the staffing firm is responsible for providing a reasonable accommodation during the initial application process, both parties are responsible for accommodations on the job. In determining undue hardship for reasonable accommodations, the resources of both entities may come into play. If either party is aware that the other party is using discriminatory practices and then fails to take corrective action, it might also be held liable.
What companies do the best job of providing ADA training? The Able to Work Consortium, managed by the National Business & Disability Council, shares best practices among North American firms. Among the firms it says have noteworthy training efforts is AT&T. One of its programs focuses on the recruitment process, including interviewing etiquette, accommodations, managers' interview preparation, and team preparation. Another of its programs focuses on honing managers' skills in working with disabled employees, ensuring these workers have proper access to training and job growth. Both programs were rolled out in 2000.
Royal Bank Canada also has a number of good ADA-related programs, including a "Diversity in Action" training video containing six scenarios that depict the challenges involved in managing diversity. Insurance and services provider UnumProvident has developed an intranet training program geared toward providing managers with education on reasonable accommodations, return to work, performance issues and disability management. These are just a few examples of firms that are trying to avoid ADA problems through employee education efforts.
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For more best practice information, see http://www.abletowork.org/bestpractice.htm. This site also allows employers to post jobs for individuals with disabilities.
For guidance on how to apply the ADA to the contingent workforce, please see
http://www.eeoc.gov/docs/qanda-contingent.html.
For further information on the most recent ADA charge data, please see:
http://www.eeoc.gov/stats/ada-charges.html
http://www.eeoc.gov/stats/ada-receipts.html
http://www.eeoc.gov/stats/ada-resolutions.html