Employment Law Update – Third Edition


We frequently defend claims under the Americans with Disabilities Act (“ADA”), which covers employers with 15 or more employees, where the claimants allege that: (1) they have a disability or are perceived to have a disability; (2) they are a qualified individual – that is, they are able to perform the essential functions of the employment position with reasonable accommodation; and (3) the defendant unlawfully discriminated against them because of their disability. These elements can be complicated for employers, claims handlers and attorneys to interpret because of the voluminous amount of case law discussing the elements of ADA claims, often on a case-by-case and fact specific basis. However, there are general principles that are helpful in evaluating these ADA claims, and hopefully expediting their resolution in a cost-effective manner.

Disability Under ADA

Disability is defined in the ADA as: (1) “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”; (2) “a record of such an impairment”; or (3) “being regarded as having such an impairment.” 42 U.S.C § 12102(1). Major life activities may be basic activities that most people in the general population can perform with little or no difficulty such as walking, breath­ing, seeing, hearing, speaking, learning, thinking, eating, working, etc. “Substantial limitation” occurs when the employee is “significantly restricted as to the condition, manner or duration under which they can perform a major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii). An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. 42 U.S.C § 12102(3)(A). However, there is an exception to this rule for perceived impairments that are transitory in nature, meaning the impairment has an actual or expected duration of 6 months or less. 42 U.S.C § 12102(3)(B).

Qualified Individual

The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The term “essential functions” means the fundamental job duties of the employment position, and consideration must be given to the employer’s judgment of what functions of a job are essential. Id. and 29 C.F.R. § 1630.2(n)(1).

Reasonable Accommodation

It is unlawful discrimination for an employer to fail to provide a reasonable accommodation for a qualified disabled individual. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations.” 42 U.S.C. § 12111(9)(B). However, employers are not required to reallocate essential functions of the disabled employee’s job to another employee in order for the disabled employee to continue working in that position. Essential functions of a job are those that an employee has to perform, with or without accommodation, in order to be considered qualified for the position. 29 C.F.R. Part 1630, Appendix at 344.

Undue Hardship

An employer is not required to make a reasonable accommodation for a qualified individual with a disability if doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as business size, financial resources and the nature and structure of its operation. Unlike the aforementioned elements of an ADA claim, the employer has the burden of proving undue hardship.

Practical Significance for EPL Claims Handling

Employers, claims handlers, and attorneys should be aware of the above issues, in addition to other potential issues, when evaluating ADA claims. Each issue should be analyzed at the outset of the case to develop the appropriate defense strategy and estimate the value of the claim. It is also important that the attorney assert affirmative defenses addressing each element of the ADA claim, and conduct discovery with an eye towards summary judgment as ADA claims are often filed in federal court where the chances of obtaining summary judgment are greater than in state court.

 The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.

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