Make no mistake, access to justice for disabled individuals who are suffering discrimination at their places of employment is fraught with difficulties. To add to the difficulties, there are a limited number of attorneys who represent individuals in discrimination claims nationwide, so finding counsel in an aggrieved person’s venue can be challenging. The difficulty of these claims is generally the barrier to growth in terms of the number of attorneys who practice in this area of law. To pursue these cases, both the attorney and the client must understand the length of time required to assert any claim as well as the hurdles to justice. This article is meant to be a primer to understanding the necessary steps in advocating for disabled persons asserting employment discrimination claims. As a personal aside, I have found work in this area of the law to be quite satisfying, despite the hurdles.
The Americans with Disabilities Act
Representing a disabled client in workplace discrimination claims is multifaceted, involving an analysis of both federal and state claims. Choice of venue is an important part of this practice area. Federal law has protected persons with disabilities from workplace discrimination since the enactment of the Americans with Disabilities Act (ADA), which created a private right of action for persons with disabilities who suffer workplace discrimination based on their disability.
The ADA was adopted in 1990 and amended in 2008. Most states have enacted similar legislation protecting the rights of disabled persons in the workplace. As an important practice note, some states’ disability protections are broader than those in the ADA, so in undertaking a disability claim, the practitioner must consider not only the ADA but also the applicable state human rights laws, if any.
The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.
While the definition is broad, there are specific exceptions, for example, short-term medical conditions such as pregnancy, but short-term conditions can involve complicating conditions that may be covered by the ADA. What is considered a disability is the subject of substantial litigation and is a bit more complicated than the definition suggests.
Hurdle 1: Informing the Employer, Requesting Accommodation, and Demonstrating Capability
A key component to whether a person is afforded protection under the ADA is that the disabled employee must advise the employer of the person’s disability and make a request for reasonable accommodation from the employer. The disabled employee must be capable of performing the essential functions of the job, with or without accommodation, to assert a claim for disability discrimination. Many disability claims arise after a request for accommodation has been made, and the employer either refuses to accommodate or has afforded support and accommodation and thereafter withdraws the accommodation.
This is included as Hurdle 1 because if disabled persons have not informed their employer of their disability, have not made a request for reasonable accommodation, or cannot perform the essential functions of the job, a claim under the ADA cannot be perfected. So, the analysis is threefold, and all elements are essential to an ADA disability claim. If, for instance, an employee never informed the employer of a disability, the employer owes no duty to the employee. If the employee puts the employer on notice of a disability but makes no request for accommodation, or the requested accommodation is considered too costly or would require the creation of a new position, the employer likely has no duty to create an entirely new job for the disabled individual. And finally, if the employee cannot perform the essential functions of the job, with or without accommodation, the ADA affords no protection. This process is fact intensive and many times involves minor adjustments to accommodate an employee. This is supposed to be an informal and collaborative process. But it can become complicated, and “one size does not fit all.”
Hurdle 2: Filing a Discrimination Claim
In the event that something goes amiss in the accommodation process or an accommodation is withdrawn, the disabled client can pursue an ADA-related claim by filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and the companion state agency. In order to proceed to court, discrimination claims, including disability claims, must begin with the filing of a charge of discrimination in the EEOC and/or the companion state agency. There are dual filing provisions in many jurisdictions, meaning that a filing in the applicable state agency will result in the filing of the charge in the EEOC as well. There are imposed deadlines upon litigants related to when a charge of discrimination must be filed. Under federal law, a charge of discrimination must be filed within 300 days of the last act of discrimination. This means the disabled client is required to assert a complaint of disability discrimination less than one year after the discriminatory actions occurred. In my state (Missouri), a charge must be filed within 180 days of the last discriminatory act. Determining when the last discriminatory act occurred can prove challenging. If the person was terminated and endured discrimination up to and including termination, the last act should be construed as the date of termination—so the day count starts from that date.
As a practice note, these deadlines are very short and effectively act as a bar to some claims. Even if the disabled person complained of discrimination to the employer but failed to file a charge of discrimination with the applicable state agency and/or EEOC within the applicable charge deadline, the potential claim would be barred and considered untimely. When you compare these filing deadlines with typical statute of limitations deadlines, they are very short indeed.
Hurdle 3: Obtaining the Right to Sue
The litigant must obtain a right to sue from the applicable state agency in order to pursue a claim in the state court system. The same is true with regard to the EEOC; the litigant must request and obtain a right-to-sue letter in order to have standing to pursue a federal claim. The requirement to exhaust administrative remedies is jurisdictional and must be pled in either a state or federal complaint.
The agency stage of the litigation can be time-consuming and may involve the investigation of the claim by the state and/or federal agency. There is the opportunity for the parties to submit their respective positions. There is no requirement, however, that the parties exchange discovery or exchange their respective positions. There is the opportunity, if both parties are interested, for early resolution of the dispute by mediation. There are certain limitations in pursuing early resolution, including the lack of an exchange of discovery and the positions of the parties. (In contrast, in every lawsuit filed in circuit or district court, there is a complaint and then an answer, so the respective parties know one another’s positions early in the litigation.)
As a practice note, some cases settle before proceeding to court. My experience is that the matters that settle at the administrative level are cases in which the employer has the ability to evaluate the case without engaging in discovery and is motivated to resolve the case for some reason or another (which is not always known to me).
Hurdle 4: Filing Suit
If the case has not been settled at the administrative agency level and the litigant has requested and obtained a right-to-sue letter, then the litigant may proceed to court. There are strict deadlines that operate as a statute of limitations once the notice of right to sue is issued by the agencies. The litigant has 90 days from the issuance of the right to sue to file the lawsuit in federal court. The same deadlines apply in state court in many instances. This is a state-specific deadline and should be considered by the practitioner. The point is that the lawsuit that your client could not file until all “administrative remedies are exhausted” now has a very short deadline to file. Again, this acts as a bar to litigants seeking their day in court.
Hurdle 5: Selecting the Venue
The decision whether to file a disability claim in state or federal court hinges on a comparison of the federal and state venue in question, the remedies available under the applicable state law in comparison with the ADA, and most significantly, the friendliness of the local and federal court to discrimination claims in general. Many times, the preferred venue is state court based on an analysis of prior discrimination claims in the particular county circuit court in comparison with the applicable federal district court. Further, there are statutory caps on emotional harm and punitive damages in place for federal discrimination claims, but these caps may not be in place in your particular state. As a practical matter, a forum-specific analysis related to selection of the forum must be considered for every case. And generally, the rule of thumb regarding preference for state court in my jurisdiction may not be the rule of thumb for other state jurisdictions. This necessary information can be gleaned by comparing jury verdicts in your applicable county circuit court with those of your applicable federal district court. Factors to consider include the burden of proof, limitations on damages, evidentiary rules, and the general disposition of the bench in question.
Hurdle 6: Litigating
There is no question that this is the highest hurdle to clear. Getting to court can be arduous, but once in court, this stage is the most challenging. In my experience, discrimination claims are hotly contested, and disability claims are no different. Employers are reticent to admit liability, and they assert legal challenges in the initial pleadings stage, throughout discovery, and at trial. Many times, employers express frustration, asserting that the employer went well beyond any obligation owed the disabled litigant or, conversely, that the disabled employee simply could not perform the essential functions of the job. These are common themes in disability discrimination cases.
The best analogy I can provide is that disability discrimination litigation (in either state or federal court) has the same scope as a general commercial claim. Each case, however, is fact specific and fact intensive. The scope of discovery can be very invasive on a personal level for the disabled litigant. Most discovery disputes center on what is a reasonable scope for discovery. It should be noted that, in most cases, in addition to lost wages, benefits, and opportunities, emotional harm damages make up a large portion of the claims. In addition, under most state human rights laws and the ADA, a prevailing plaintiff is also entitled to recover attorney fees incurred to pursue the claim.
There are a number of issues particular to disability discrimination claims. One significant issue is the confusion judges and employers have with Social Security Disability and ADA reasonable accommodation requirements. Many disabled employees qualify for Social Security Disability based on their disability. A good example from my state was a Missouri State Supreme Court judge who was blind. He qualified for Social Security Disability benefits based on his known disability. He chose, however, to be employed as a judge. Because he was able to perform the essential functions of his job, with reasonable accommodation, he was protected under the ADA and Missouri law. Employers frequently assert because a disabled employee qualifies for Social Security Disability (or other disability benefits), the employee cannot perform the essential functions of the job. The two standards are distinct, and quite simply, the ADA was designed to keep disabled Americans working and protect them from discrimination. Many employers confuse these two standards and assert the disabled plaintiff cannot qualify for disability benefits in accordance with the Social Security Administration and continue or return to work. Employers use this as a defense of sorts to affording disabled persons reasonable accommodation. Often, in the case where the plaintiff was pushed out of his or her job, the plaintiff qualified for and is receiving disability-related benefits because the employer terminated the disabled plaintiff. This issue is frequently raised in court as well.
Disabled plaintiffs must be ready for a long process, beginning with the employer and ending in the court system. To sum it up, access to justice is multifaceted. As a practical matter, many claims resolve at the various stages, and the progression to each stage is, in my experience, also an opportunity for resolution.