Americans with Disabilities Act (ADA)

AMERICANS WITH DISABILITIES ACT (ADA)

The Americans with Disabilities Act is commonly known as the ADA.  Enacted by Congress in 1990, the ADA is meant to protect disabled individuals from discrimination in the workplace, public places and at businesses while simultaneously promoting equal-opportunity participation in the American workforce.  In addition to the ADA, which protects disabled employees on the national level, many states have adopted similar laws. The Fair Employment and Housing Act, or FEHA, grants additional legal protections to persons employed or seeking employment in the state of California. The Missouri Human Rights Act also protects individuals in much the same way.

Man walking his disability Dog

While the ADA has afforded countless Americans invaluable employment opportunities by challenging negative stereotypes, noncompliance with the Act can spell financial doom for employers of all natures, structures, and sizes.  If an employee or job applicant alleges disability-based discrimination and files a claim against your company, you could be facing considerable civil penalties in addition to the ongoing disruption to overall productivity wrought by litigation.

At Bellatrix PC, our knowledgeable employment law lawyers have years of experience defending businesses against discrimination lawsuits.  We will guide you through each and every stage of the legal process while vigorously protecting your legal and financial interests.  Don’t allow a minor problem today to become a major problem tomorrow: for a private consultation, call the business defense attorneys of Bellatrix PC at (800) 449-8992.

Is My Business Subject to the ADA?

With a few exceptions, the ADA prohibits workplace disability discrimination by the following types of entities:

  • Corporations
  • Employment Agencies
  • Federal Agencies
  • Private Employers
  • State Agencies
  • Unions

Generally speaking, the ADA applies to employers who have 15 or more employees.  The ADA prohibits employment discrimination against all “qualified individuals with disabilities,” meaning job applicants are also potentially covered in addition to existing employees.

An individual has a disability under the ADA definition if he or she:

  • Has a physical or mental impairment that substantially limits one or more major life activities.
  • Has a record of such impairment.
  • Is regarded as having such an impairment.

For the purposes of the ADA, a person is considered to be a “qualified individual with a disability” if they meet the actual, performance-based qualifications for a job and can perform a job’s essential functions with or without a “reasonable accommodation.”  We will discuss the concept of reasonable accommodations in greater detail in the next section.

Employer Compliance: Requirements of the Americans with Disabilities Act

The Americans with Disabilities Act requires that the applicant must be able to perform the essential functions of the job with or without “reasonable accommodations.”  The employer is duty-bound to attempt to provide reasonable accommodations to a “qualified individual with a disability,” as long as these accommodations do not impose an undue burden on the employer.  Unfortunately for employers, the standard for an undue burden can be difficult to meet and is determined on a case-by-case basis.

Generally speaking, employers should seek to provide reasonable accommodations (1) when faced with disabled employees, and (2) wherever feasible.  Attempting to determine whether an individual is a “qualified individual with a disability” and whether an accommodation is truly “reasonable” can be a challenging task, but the attorneys at Bellatrix PC can help you analyze and find workable solutions to these types of situations as they arise.  Another important part of this process is documenting your efforts to accommodate, and/or discussing accommodations with any of your disabled employees.  The evidence contained within your written records can have a tremendous impact on the outcome of a legal claim.

“Reasonable accommodations” for disabled workers is a broad term which can include a wide array of options, as such accommodations depend on the nature of the employee’s disability.  Some examples may include:

  • Modifying work schedules.
  • Acquiring adaptive equipment or modifying work equipment, including equipment renting and leasing.
  • Appropriately modifying examinations, training, or other programs.
  • Reassigning the employee to a vacant position for which he or she is qualified.

Finally, it is important to note that the ADA is not the only anti-discrimination law with which California employers must comply.  The California Fair Employment and Housing Act, or FEHA, also prohibits discrimination against individuals with disabilities.

In fact, the FEHA has a broader definition of disability than the ADA, covers more conditions than the ADA, and is applicable to a greater number of employers by virtue of the lower employee threshold.  More specifically, the FEHA generally applies to employers with five or more employees, subject to certain exceptions.

Under the FEHA, employees can potentially sue their employers specifically for failing to provide a reasonable accommodation or failing to engage in a timely, good faith interactive process to attempt to find a reasonable accommodation for a disabled employee.

Contact Our Employment Law Attorneys

Disability discrimination is a complex area of law, and related claims require persistence and knowledge. If you have a disabled employee who notifies you of a need for accommodations, you must act promptly to comply with the disability discrimination laws and find workable solutions for your business.  Our business defense lawyers will work closely with you to identify and evaluate your potential courses of action.

If you have been sued by an employee for alleged discriminatory practices, including wrongful termination and employer retaliation, our experienced attorneys can help.  Whether it is most appropriate to settle your case prior to suit, bring your case through through arbitration or mediation, or challenge the claim in court, Bellatrix PC is prepared to assist.  In addition to handling disability-based discrimination claims, we also handle claims arising from:

To schedule a confidential consultation and learn more about how our legal team can serve your business, call Bellatrix PC right away at (800) 449-8992.  The sooner we can initiate a review of your employment policies, the greater peace of mind you will feel knowing your company is protected.  Ask about our business risk review package.

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Alicia Dearn

Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.


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Much Ado About Nothing: Non-Compete Agreements in Employee Contracts

confidential filesAs a business and employment lawyer, I see more unnecessary gnashing of teeth over one issue than any other. Employers really worry that their employees are going to steal their business, take their hard-developed systems or customer relationships to their competitors, or leave as soon as they are trained up to provide value to the rival company down the road.

As a small business owner, myself, I can understand this concern. I do not want to teach my associate lawyers all the tricks of my trade or let them manage clients, only to run off to another firm. But honestly, I do not worry about it that much. Why? Because, first, you cannot control everything, so there is not much point losing sleep over the uncontrollable. And, second, I have many safeguards that I put in place to prevent too much power vested in one employee. No employee is irreplaceable, but I treat the good ones well to keep them around as long as possible. That is no special legal secret; it’s just sound business management.

I do use legal and technological safeguards to protect my business.  But what safeguard do I not bother with? Covenants not to compete! Foremost, in California, covenants not to compete are not enforceable in employment contracts.  That bears repeating: you cannot prevent your employee from competing by contract after they leave your employ. Calling it a non-solicitation agreement does not make it any more enforceable, by the way. California covenants not to compete are enforceable as against your business partners and people from whom you buy a business, but not employees.

In Missouri, non-compete contracts are enforceable. That is indeed the case in most states. But they are strictly limited. They must be narrowly tailored (i.e. conservatively drafted) so as to only prevent realistic harm to the employer and not to restrain trade or the employee’s right to future work. There are no hard and fast rules on how to draft an enforceable covenant, but the general rules are that they must not be too broad in prohibited conduct, included industries, geographical location or too long in time.

But I still do not use them.  Why? Because they are not that strong of a deterrent in my experience, except in the limited cases of high-level executives (like CEOs). And employers are actually protected in several ways from truly bad behavior by employees.  The law provides for protection in these ways:

  • Trade Secrets: Trade Secrets and intellectual property are protected without the need for contracts. Trade Secrets can include product plans and formulations, marketing plans, manufacturing processes, client/customer lists, business practices, and upcoming products. Serious theft by employees carries heavy damages and penalties.
  • Fiduciary Duties: As a general matter, employees are not allowed to compete with their employers while in their employ, and owe their employers duties of loyalty and good faith. The work product created by employees during their employ belongs to the employer and the employee cannot take it, including art work, copywriting, and customer lists.
  • Non-Disclosure Agreements: Employers can require employees to sign confidentiality agreements during their employ to make clear what information cannot be disseminated outside of the company. Then, if the employee takes it, that is theft.  There are basic elements that all NDAs should include: a cogent definition of confidential information; a protocol for handling and sharing confidential information; the length of time that the information remains confidential; contractual penalties for breach. Then you must adhere to the protocols!

Ultimately, it is better to avoid problems than to sue former employees — an expensive, and often ineffective, strategy.  My number one recommendation is to control your data and make sure that no employee can copy and steal it. The main way I control data is by maintaining information on cloud servers with encryption and restricting download or access from unauthorized computers. I will draft agreements when necessary, but life is too short to be embroiled in lawsuits with former employees.

Be Wary of Discriminating Against Pregnant Women

fertility statueIt can be the elephant in the room for employers: women in their child-bearing years have a high probability of becoming pregnant at some point and needing accommodations and leave. But woe becomes the employer who avoids hiring or promoting women who are at risk of baby-making.

Federal law, for starters, prohibits discrimination against pregnant women. The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. The Act states that it is unlawful sex discrimination under Title VII to discriminate based on pregnancy, childbirth, or related medical conditions. Female employees affected by pregnancy, or pregnancy-related conditions, must be treated in the same manner as other applicants or employees with similar abilities or limitations.

The Pregnancy Discrimination Act applies to employers with fifteen or more employees, including state and local governments. But many states apply that to employers with few employees: California prohibits pregnancy discrimination for employers with more than five employees and Missouri prohibits discrimination for employers with more than six employees.

A few examples of pregnancy discrimination in employment include:

  • Refusing to hire or terminating a female employee because she is pregnant, or is considering becoming pregnant.
  • Terminating a female employee because she has taken pregnancy leave.
  • Denying a qualified female employee a promotion, or demoting her, because she is pregnant, or is considering becoming pregnant.
  • Treating pregnancy in a manner differently, including rights and benefits, than any other temporary illnesses or medical conditions.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII or their state law counterparts.

Female employees are also protected against pregnancy discrimination in the work place by the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). These laws apply to employers with at least 50 employees within a 75-mile radius of the worksite. The employee must have worked for that employer for at least twelve months (not necessarily consecutive) and must have worked for at least 1,250 hours in the previous twelve months.

Under the family leave laws, female and male employees are allowed to take up to twelve weeks of unpaid leave from employment in order to care for a newborn baby, adopt a child, or foster a child. When the female employee returns to work, she has the right to the same or an equivalent level job, with similar pay, benefits, and terms and conditions of employment.

In addition to Civil Rights Acts, Human Rights Acts and Leave Laws, the Americans With Disabilities Act (ADA) comes into play as well. Women disabled by pregnancy, childbirth or related medical conditions are eligible to receive accommodations from their employer. If you are faced with an employee who needs accommodations for a pregnancy-related disability, you must engage in the interactive process with that employee and make your best efforts to work with them and their health care provider to find a reasonable accommodation for their situation. You should properly document this process as you go.

Many states also require employers to accommodate nursing needs after the mother returns to work. For example, in California, lactation rooms are mandatory for all employers. Lactation rooms do not have to be uniquely designated, but they cannot just be the toilet stall and they need to provide for both the dignity and privacy of the mother. Failure to provide lactation accommodations carries penalties, rights to sue, and even state fines.

Despite all of these laws, discrimination of pregnant women (both real and imaged) remains a big problem. In recent years, the number of pregnancy discrimination cases have increased. Women are having children later in their careers, meaning that they are often well-established in the workplace when the charges of discrimination begin. Employers must be vigilant in the way in which they deal with their female employees in order to avoid or minimize the likelihood of becoming embroiled in a pregnancy discrimination claim. Here are some tips:

  • Document all personnel actions in writing.
  • Know the law and train your supervisors and HR personnel on how to properly apply them.
  • Develop and implement gender-neutral personnel policies.
  • Confirm that comprehensive benefits packages provide coverage for pregnancy-related issues.
  • Consider acquiring Employment Practices Liability Insurance (although this can be cost prohibitive for small employers).
  • Consult employment counsel whenever situations arise to avoid them becoming lawsuits.

The best policy is to treat women of child-bearing years as valuable employees, to understand that they may have medical challenges that must be accommodated, and to craft positions and an employment environment that is mother-friendly. This will save your business money in the long run. Good counsel can help your business law make decisions that are economical and compliant for risk mitigation.

 

When to Use Severance Agreements When Terminating Employees

employee agreementIn the United States, in all states except Montana, employment is generally presumed to be at-will. When employment is at-will, employers are not required to give severance to employees whom they terminate. This is the rule; but of course there are exceptions. For example, if the employee has a contract (typical with high level executives) or is part of a union, then a severance package might be previously agreed upon and mandatory.

Severance agreements are also commonly referred to as “golden parachutes” or “waiver and separation agreements,” since the employee is given a certain amount of unearned money, usually in return for signing a release agreement. That release can sometimes be worth the price, even when severance is not mandatory. Consider:

  1. Will A Severance Agreement Avoid Disruptions Caused by the Departing Employee? Presenting potentially disruptive employees with a severance package upon termination will likely make him or her more amicable during the termination process, reducing stress and potential problems for employer.
  2. Does the Employee Have a Good Claim Against the Employer for Violations of Employment or Wage Laws? If so, it may be best to settle this at the outset, rather than risk litigation.
  3. Are You Worried About a Negative Impact on the Business’s Goodwill?– An employer may offer an employee a severance agreement so they, or other remaining employees, have a positive association with the business. This will reduce the “bad feelings (and disparagement) within the terminated employees and those who are left behind.
  4. Was the Employee a Long Term and Loyal Employee? Sometimes a severance is just the right thing to do for a long term, loyal employee who is simply no longer needed at the business. It is somewhat common to soften the blow to terminated employees who have worked for an employer for a number of years with a severance agreement. This arrangement will help provide financial support until the employee finds a new job. A broad rule of thumb is to provide one week’s severance pay for every year the employee worked with the company.

•After deciding whether you wish to provide severance to an employee, you should contact an attorney to discuss the mandatory provisions.  Employee release agreements are frequently struck down as unenforceable by courts when they are not well-drafted by an employment law specialist.  Things like non-compete provisions, non-disparagement provisions, or failure to provide mandatory revocation and cooling-off periods, for example, can result in a useless release — or worse, liability for violating certain Labor Laws in your agreements. Further, wages that are admittedly owed cannot be released.  Employers should use counsel. It is not a good idea to just grab a sample off the internet.

Accommodating Employees under the ADA

Service DogThis is Fitzroy, doing service dog duty at an airport. Disability accommodations required of employers, not the least of which is allowing for service animals, are increasing as the number of documented Americans dealing with disabilities is at a historic high. Injured veterans, aging employees and customers, the chronically ill and the suddenly ill or injured all require due consideration by businesses. This area of law is frequently misunderstood and is a trap for the unwary.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against an individual based on a disability. This affects businesses with respect to customers and employees. Employers need to make their facilities accessible and provide accommodations to any disabled employee (even if they become disabled during the course of employment) to allow the employee to do their job.

Disability Laws, Including the ADA, Apply to Most Employers

Under the Federal law, any employers with fifteen or more employees must accommodate “qualified employees with disabilities.” This includes applicants and current employees.

California’s statutory answer to the ADA is the California Fair Employment and Housing Act (“FEHA”), which, among other things, also requires accommodation of employees with disabilities. FEHA applies to employers with five or more employees.

Missouri’s Human Rights Act (HRA) also requires accommodation of employees with disabilities. HRA applies to employers with six or more employees.

The Definition of a Disabled Individual is Broad

Many employers mistakenly only consider an employee disabled if they are sight or hearing impaired, or in a wheelchair. The reality is that the legal definition of someone who qualifies as disabled is much broader, and may include someone a casual observer would not consider disabled (such as a person with a common chronic illness, like Type II diabetes).

An individual has a disability under the ADA if she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.  A major life activity includes working. So, in essence, an employee who has any impairment that interferes with their employment without an accommodation is considered protected. Even an employee who is suffering from alcohol abuse can be a protected disabled individual under this definition.

Employers Must Make Good Faith Attempts to Reasonably Accommodate

If the employee can do the job with a reasonable accommodation, the employer needs to provide it. To encourage compliance with this, it is mandatory for an employer to explore accommodations using an interactive process, even if the ultimate determination is that the employer is neither required nor able to accommodate the disabled employee.

The question an employer must ask first is: What are the essential job functions for this employee’s position?  The Americans with Disabilities Act requires that the employee be able to perform the essential functions of the job with or without reasonable accommodations before making the employer provide them. The employer is duty bound to attempt to provide reasonable accommodations to a “qualified individual with a disability,” as long as these accommodations do not impose an undue burden on the employer. The effort gone through by the employer must be documented, and show a good faith attempt to help the employee succeed before accommodations are rejected or the employee dismissed. The employer should work with the employee’s doctor or other occupational professionals whenever that option presents itself.

The standard for an undue burden in an accommodation can be difficult to meet and is determined on a case-by-case basis. Generally, employers should seek to provide reasonable accommodations when faced with disabled employees and wherever feasible. “Reasonable accommodations” for disabled workers can include an array of options, as they depend on the employee’s disability. Some examples include:

  • Modifying work schedules
  • Acquiring adaptive equipment or modifying work equipment
  • Modifying examinations, training, or other programs
  • Reassigning employee to a vacant position for which he/she is qualified
  • Allowing telecommuting
  • Allowing for limited leaves of absence
  • Allowing for time off for health care, appointments or recovery from episodes of illness

The Liability For Disability Discrimination Outweighs the Cost of Interactive Process and Accommodation

This area of law is by far the most frequent area for employer errors seen by Bellatrix PC’s employment attorneys. All too often, an employer is short-sighted in the expense of accommodating an employee, or feels threatens by such requests and seeks to terminate an employee after just going through the most minimal of efforts. This is a mistake. The cost of failing to go through the interactive process will easily be in the six figures just to defend a lawsuit. The damages can be years’ worth of salary, attorneys’ fees and, in some cases, punitive and exemplary damages. It is wise to learn best practices for dealing with employee illnesses, injuries and disabilities early, and to apply them rigorously.

 

Anti-Discrimination Laws that Apply to Employers

legal-definition-on-computer-monitorBoth federal and state laws prohibit discrimination in the workplace based on an individual’s race, color, religion, sex, disability, and national origin. For employers in California and Missouri, the federal Title VII, ADA and ADEA, California’s Fair Employment and Housing Act (FEHA) and Missouri’s Human Rights Act (HRA) protect employees based on race, gender, religion, national origin, disability, age and sexual orientation.

Discrimination can be categorized into two different groups – “disparate treatment” and “disparate impact” discrimination. “Disparate treatment” discrimination occurs when an employer discriminates against a single protected class or protected individual. This can occur in the form of discrimination against one single employee or manifest in discrimination against a group of employees. For example, if an employer laid off all employees over the age of 40, or only promoted male employees, these instances would be categorized as disparate treatment discrimination.

“Disparate impact” discrimination occurs when an employer’s policies, as a matter of statistics, have a greater impact on one protected group than on another. An example of this form of discrimination would be if an employer required that all newly hired laborers have a high school diploma from a high school located in the United States. Such a policy might prevent people from certain national origins (such as immigrants) from obtaining employment, creating an unintentional, but still unlawful, discrimination.

Discrimination can come in many shapes and is not always overt. For example, an employer may be accused of gender discrimination if the employer asks a woman about her desire to have children, even if the comment seems innocent. It is often perceived by employees that women are passed over for jobs because they represent a risk of paid time off for pregnancy or may leave more frequently to attend to childcare needs. Asking about children in a job interview, for example, is a quick way for an employer to get sued. Employers should be aware that wrongful termination and discrimination lawsuits occur often, still, and that they do not just involve blatant racism as their core allegations.

California employers should not be surprised that California’’s Fair Employment and Housing Act is more favorable to employees than the federal discrimination laws, including the Age Discrimination in Employment Act, Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act. The FEHA has more favorable damage provisions and one-way attorney fee provisions (meaning that prevailing employees get attorneys’ fees, but often prevailing employers do not). The FEHA also gives an employee a greater period of time to file their lawsuit than Federal laws, after they receive their Right-to-Sue Letter from the California Department of Fair Employment & Housing, than the time given by the Equal Employment Opportunity Commission (“EEOC”) after they issue a Right-to-Sue Letter for federal court.

Finally, depending on the law, employers with as few as five employees, are responsible for anti-discrimination law compliance. And the number of laws that apply increase as the employer reaches employee thresholds of 15, 35 and 50 employees. Human Rights lawsuits are not just for big businesses.

Employers should consider Bellatrix PC’s Employer Protection Package to ensure compliance, avoid risky practices and defend against liabilities before they become serious problems. Contact us today to apply.