Enforcing the ADA in the Workplace

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from the ATTAC/NAPAS 2002 Annual Report

The American with Disabilities Act, which was enacted in1990, prohibits discrimination against individuals with disabilities in the work place. Yet, more than 10 years after the enactment of the ADA, employers are still discriminating against persons with disabilities. To open the work place to individuals with disabilities, P&As have challenged many different types of disability-related employment discrimination:

Inaccessible Application Systems

The ADA prohibits employers from having job application procedures that discriminate against individuals with disabilities. The Arizona P&A filed discrimination charges against two major retailers which have inaccessible application systems. One retailer had application work stations could not be used by individuals who had visual or motor impairments. The other retailer had several hundred automated telephone systems that could not by used by applicants who were deaf or hard of hearing. The EEOC found that the retailer with the inaccessible work stations had violated the ADA and is currently investigating the other charge.

Illegal Pre-Hire Questions

The Maine P&A settled an "illegal pre-employment inquiry" case for a significant amount on behalf of an individual whom the employer regarded as mentally ill. The employer violated the ADA when she asked the applicant what his disabilities were after she learned that his college education was being funded by a veteran's rehabilitation program. The applicant described his physical disabilities and his veteran's disability rating. Not believing his answers, she decided that he must have a mental illness and refused to hire him in violation of the ADA.

Failure to Hire because of a Disability

In Arizona, Wal-Mart refused to hire two young men because they were deaf. The EEOC filed suit against Wal-Mart and the Arizona P&A intervened. The case settled and was approved by the judge, but Wal-Mart refused to comply with the settlement. The judge issued a contempt order and approved even stronger sanctions against Wal-Mart, including the payment of $427,000 to the P&A to monitor the settlement and provide statewide legal advocacy to people with disabilities. The judge also required Wal-Mart to hire at least five people who were deaf, conduct better training programs for managers on the ADA and produce and air a television commercial about the case.

Withdrawal of Job Offers after Disclosure of a Disability

Under the ADA, employers may ask disability-related questions examinations after making a job offer, but offers can be withdrawn only for reasons that are job-related and consistent with business necessity. The Illinois P&A sued a car dealership for withdrawing a job offer that had been given to a man with kidney disease. The dealership terminated him on his first day of work after he had disclosed his disease on an insurance application. The P&A was able to reach a satisfactory settlement with the dealership on behalf of the applicant.

Failure to provide reasonable accommodations

The ADA requires employers to provide reasonable accommodations to employees with disabilities. The examples below show how employees were able to perform their job duties once P&As helped them get reasonable accommodations:

• Along with others, the Montana, Virginia P&As got employers to provide qualified interpreter services to employees who were deaf or hard of hearing so that they would not miss important information shared in job meetings.
  
• The Maine P&A persuaded an employer to let an employee with bi-polar disorder bring a service animal to work to relieve his isolation. The Illinois P&A settled a case against the City of Chicago for $357,000 on behalf of a police officer who was denied a limited duty position as a reasonable accommodation and has filed two more suits to change the city's limited duty policy.

In an Arkansas case, an employee who was hearing impaired had problems not only with his employer, but also with the local EEOC office which refused to provide him with a qualified interpreter during an intake interview. The Arkansas P&A convinced the office to provide an interpreter by complaining to the Chair of the EEOC about the office's refusal to provide a reasonable accommodation.

Disparate treatment

 The ADA prohibits employers from treating employees with disabilities differently from non-disabled employees. The Nebraska P&A convinced a jury that an employer had violated the ADA when the employer required an employee with a learning disability (but no other employees) to pass a reading/ writing test as a condition of promotion. The case settled on appeal.

Disability-Based Harassment

P&As are part of a growing trend to challenge the failure of employers to eliminate harassment of employees with disabilities. Below are some examples:

• The American Samoa P&A successfully stopped students from harassing a school janitor with a developmental disability.
  
• the Alaska P&A settled a harassment charge brought on behalf of a grocery store clerk with epilepsy and developmental disabilities.
  
• The New Hampshire P&A and the EEOC settled a case against the Olive Garden restaurant chain, which agreed to pay $125,000 to a dishwasher with developmental disabilities who had been harassed by his supervisors and co-workers. The Olive Garden also agreed to provide nationwide training to its employees and staff to prevent future disability-related harassment and to ensure that employees with disabilities receive reasonable accommodations. The settlement will affect 60,000 employees in 478 restaurants.

Reassignment/Termination

The ADA prohibits employers from terminating or reassigning employees because they are disabled. P&As have successfully challenged disability-based job actions:

• the Nebraska P&A settled a case for $30,000 against a corporation who erroneously believed that its employee could not do his job because of a panic disorder.
  
• the Colorado P&A has filed charges of discrimination on behalf of employees who were transferred or terminated when they disclosed that they were HIV positive.

The P&As will continue challenging employment discrimination in 2002. NAPAS has initiated the following four employment campaigns to serve individuals with disabilities who face particular employment challenges: Segregated Employment Issues; Employment Issues concerning Persons with Traumatic Brain Injuries; Employment Issues concerning Persons Living with HIV/AIDS; andSchool-to-Work Transition Issues.