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disability discrimination

Workers claiming job discrimination based on disability, religion or national origin surged to new highs last year, with disability discrimination climbing for the sixth straight year. The increase has skyrocketed since the passage of the Americans with Disabilities Amendment Act in 2008 that made it easier for people with epilepsy, diabetes and other treatable conditions to claim they are disabled; in fact, since 2005, disability discrimination claims have almost doubled.

Lead Supervisors: First Responders to Disability Claims

While HR continues to bear the brunt of understanding and implementing the new changes and nuances, don’t underestimate the role front line supervisors have in communicating with disabled employees. The attitude and responsiveness of supervisors often determine, more than physical barriers, whether an employee with a disability feels that s/he is being treated fairly. In fact, the words of front line supervisors – both verbal and in careless e-mail – are the single biggest source of evidence that can turn a nuisance claim into a “bet the company” lawsuit.

Americans with Disabilities Act Amendments Act: What Supervisors Need to Know

As with all areas of employment law, you should reinforce to your supervisors that they consult with your HR department or legal counsel for additional information and specifics on company procedure. Here are some additional ADAAA points to consider:

* When it comes to disability requests, the revised ADA, i.e., the ADAAA, shifts the emphasis from investigating (why or how to accommodate) to what needs to be done.

* When talking to an employee with a disability, supervisors shouldn’t ask questions about the condition itself. Instead, they should focus on job-related questions about the effect of the condition on the employee’s ability to do the job.

* The ADAAA requires that accommodation be approached with an open mind (i.e., not begin by questioning the existence of the disability). As before, employers must honor the disabled employee’s medical confidentiality and may not explain to other employees why any resulting change is being made.

* The supervisor may not be in a position to determine the legitimacy of a request for accommodation without medical input. Thus, employers can require employees to provide documentation from an employee’s health care provider about the disability and the need for accommodation. Supervisors should turn to their human resource professionals as they engage in this process with the employee.

* Employees asking for an accommodation need not use any particular words and are encouraged to talk directly with their supervisor. Supervisors need to be able to recognize when an accommodation is being requested. Examples of accommodation requests can include references to doctor’s appointments, medical treatment, or specific problems (I’m having difficulty hearing other people on the phone).

For every minute spent preparing, an hour is earned. This is especially true for HR professionals, who not only bear the direct responsibility, but also ensure that those in the line of fire have the backup they need.

Once, again, we saw a dramatic increase in the number of workplace disability discrimination claims last year. According to the Equal Employment Opportunity Commission (EEOC), the agency received a record 100,000 complaints of disability discrimination in 2010, a 17% increase over the previous year. Employees with mental disabilities are especially vulnerable; according to the U.K. mental health charity Mind, one out of five employees who discloses a mental illness at work ends up without a job.

Employees with intellectual limitations fare no better. A particularly disturbing example is a recent lawsuit against Texas Company Hill Country Farms, who is accused of severely abusing 31 mentally challenged men who worked in their Iowa plant. Among the allegations; verbal abuse, including referring to employees as “dumb-ass, stupid and retarded,” physical abuse including hitting and kicking, and illegally low wages (as low as $65 dollars a month).

Lead Supervisors: First Responders to Disability Claims

While HR continues to bear the brunt of understanding and implementing the new changes and nuances, don’t underestimate the role front line supervisors have in communicating with disabled employees. The attitude and responsiveness of supervisors often determine, more than physical barriers, whether an employee with a disability feels that s/he is being treated fairly. In fact, the words of front line supervisors – both verbal and in careless e-mail — are the single biggest source of evidence that can turn a nuisance claim into a “bet the company” lawsuit.

Americans with Disabilities Act Amendments Act: What Supervisors Need to Know

As with all areas of employment law, you should reinforce to your supervisors that they consult with your HR department or legal counsel for additional information and specifics on company procedure. Here are some additional ADAAA points to consider:

  • When it comes to disability requests, the revised ADA, i.e., the ADAAA, shifts the emphasis from investigating (why or how to accommodate) to what needs to be done.
  • When talking to an employee with a disability, supervisors shouldn’t ask questions about the condition itself. Instead, they should focus on job-related questions about the effect of the condition on the employee’s ability to do the job.
  • The ADAAA requires that accommodation be approached with an open mind (i.e., not begin by questioning the existence of the disability). As before, employers must honor the disabled employee’s medical confidentiality and may not explain to other employees why any resulting change is being made.
  • The supervisor may not be in a position to determine the legitimacy of a request for accommodation without medical input. Thus, employers can require employees to provide documentation from an employee’s health care provider about the disability and the need for accommodation. Supervisors should turn to their human resource professionals as they engage in this process with the employee.
  • Employees asking for an accommodation need not use any particular words and are encouraged to talk directly with their supervisor. Supervisors need to be able to recognize when an accommodation is being requested. Examples of accommodation requests can include references to doctor’s appointments, medical treatment, or specific problems (I’m having difficulty hearing other people on the phone).

For every minute spent preparing, an hour is earned. This is especially true for HR professionals, who not only bear the direct responsibility, but also ensure that those in the line of fire have the backup they need.