43
ADA helps disabled workers
YOUNGSTOWN
In the 25 years since it took effect, the employment portion of the Americans with Disabilities Act has promoted and facilitated the hiring of disabled people, local experts say.
Title I of the ADA, the section governing employment, took effect July 26, 1992. The ADA itself was signed into law July 26, 1990, by President George H. W. Bush.
The act is a civil-rights law that bars discrimination based on physical or mental disabilities and requires employers with 15 or more employees to provide reasonable accommodations to disabled workers.
Others parts of the ADA require accessibility of public entities, public transportation, public accommodations and commercial facilities to disabled people.
“I think it’s better than it was,” Michael McBride, the recently retired Youngstown Area Goodwill Industries executive director, about accommodation of disabled workers by private-sector employers under the ADA.
Goodwill offers vocational rehabilitation to disabled and homeless people and those with obstacles to employment.
“We’re seeing employers who are willing to sit down and talk to our employees – to talk to people that have been in our programs, and we’ve seen them get hired,” said McBride, who headed the local Goodwill for 35 years until his retirement this spring.
“Employers are looking for people who are dependable and who can do the job,” regardless of whether they have a disability, he added.
“I think the things that are most difficult are probably those hidden disabilities – the mental-health disabilities,” McBride said. “They’re just difficult to accommodate, and I think employers have a difficult time understanding that these people can still be productive employees.”
“I don’t think anybody could legitimately question whether Title I of the ADA has significantly improved the work life of disabled individuals,” said Ira Mirkin, a Youngstown lawyer.
Mirkin’s practice is devoted primarily to representing workers in employment disputes, and he also represents labor organizations.
“There’s an elevation in employers’ consciousness level of their duties with respect to their disabled employees. Undoubtedly, some feel a moral responsibility in that regard. They are concerned about the very high costs of litigating these matters,” he said.
ADA OPENS DOORS
Tim Jacob, a management-side employment lawyer in Youngstown, agreed with Mirkin that the ADA has succeeded in helping disabled workers.
“It’s opened quite a few doors to individuals who are disabled and applying for jobs and those who may become disabled while they’re on the job. It allows them to keep working for an employer with a modified job or an accommodation,” Jacob said.
About 20 percent of the calls he gets from his clients concern ADA-related questions, Jacob said. “I have an inquiry about the ADA probably every week, at least,” from a client, he added. “Most of the [ADA] cases that I have really involve requests for accommodations.”
“Employers are very astute now on what they can ask,” and what they are prohibited from asking in the hiring process, Jacob said. “That takes away a lot of claims.”
Jacob said he has handled “well over 100” formal complaints under the ADA’s Title I, most of them either dismissed or settled out of court.
Although employment conditions have improved for disabled workers, the law is still not well-settled concerning the meaning of the term “reasonable accommodation,” Mirkin said.
“The law is not settled because every case is different. Every employee’s needs are different, and every employer’s ability to accommodate those needs is different,” he said.
TYPES OF ACCOMMODATIONS
A common example of an accommodation would be to let a cashier sit on a stool if a medical condition prevents that employee from standing for hours at a time, Mirkin said.
In one recent case, Mirkin said he was able to get an employer to provide an air-conditioned working environment for an employee with extreme allergies.
Other accommodations can involve special equipment or adjustments in machinery, work assignments or schedules.
“I have seen shifts being changed for an individual because that person has, for instance, some kind of a sleep disorder and has a problem with changing shifts or can’t work a night shift,” Jacob said.
A worker has 300 days from the last alleged violation of the ADA to file a complaint with the U.S. Equal Employment Opportunity Commission, and must receive a right-to-sue letter from that commission before suing in state or federal court.
Most of the plaintiffs Mirkin has represented under the ADA’s Title I are job-holders trying to gain an accommodation or who are purportedly losing their jobs because of their disability or need for accommodation, not people alleging they were not hired because of a disability, Mirkin said.
OUT-OF-COURT SETTLEMENTS
The vast majority of the ADA employment cases Mirkin has handled were settled out of court, he said. “Frequently, we’re able to get an employer to provide an accommodation that the employee needs to maintain their employment,” he said.
A plaintiff who wins a lawsuit under the ADA can be awarded job reinstatement with back pay and a needed accommodation, compensation for any emotional trauma caused by the discrimination, attorney fees, and, sometimes, punitive damages, Mirkin said.
Excluded from ADA protection are current illegal drug use, kleptomania, pyromania – conditions associated with sex crimes – and workers who pose a direct threat of harm to their employer or co-workers.
Even though employment prospects for disabled people have improved under the ADA, disabled people “are the first to lose their jobs and the last to be hired,” McBride said.
“When the economy is good, employers will take people with disabilities and take people who have barriers to employment and try to work with them,” he added.
“When the economy is not so good, they’re going to take the people who are the best producers and the people who can work every single day,” he added.