How Employees Without Disabilities Are Suing Employers For Disability Discrimination
The Equal Employment Opportunity Commission's (EEOC) report on charge statistics for 2012 is now available on its website. The total charges received (99,412) reveal only a modest drop from 2011 figures.
Although the statistics show retaliation, race, and sexual discrimination as the top three most commonly filed claims, disability follows as a close fourth.
The number of charges filed each year under the ADA has been rising since 2006 and continued to rise in the past year to 26,379. This represents 6.5 percent of the total number of charges filed in 2012.
Other highlights from the report are a 10 percent reduction in charge inventory for the second straight year, and a record amount of monetary benefits collected—$365.4 million—through the EEOC's administrative process.
In total, the EEOC successfully obtained both monetary and non-monetary benefits for over 23,446 people through its administrative actions, including mediation, settlements, conciliations, and withdrawals with benefits. "EEOC Reports Nearly 100,000 Job Bias Charges in Fiscal Year 2012," www.eeoc.gov (Jan. 28, 2013).
Commentary and Checklist
We continue our analysis of the EEOC's 2012 charge receipt data with a look at charges filed under the ADA statute. The figures above represent a rising trend in total receipts since 2009, with monetary benefits collected totaling $103.4 million.
Along with total charge receipt figures, the EEOC also provides data on ADA charges by impairment. No particular impairment has seen a significant change this year. Orthopedic and psychological conditions, as well as the "regarded as disabled" claim (11.8 percent) continue to be some of the most frequently cited reasons for a discrimination charge.
In 2012, the EEOC received 4,664 charges of discrimination based on non-paralytic orthopedic impairments, half of which specifically involved back impairments.
Psychological conditions resulted in a total of 5,310 charges, which includes anxiety disorder (6.1 percent of total ADA receipts), depression (6.7 percent), manic depressive disorder (3.2 percent), post traumatic stress disorder (2.6 percent), and "other" psychological disorders (1.6 percent).
Further, the EEOC received 3,109 charges in which the discrimination claim was based on the employee being "regarded as disabled" by the employer. The ADA protects individuals who are regarded and treated as though they have a substantially limiting disability, even though they may not have such an impairment. This could refer, for example, to an employer's refusal to hire an applicant with a scarred face from being burned for fear of what customers might think.
The "regarded as disabled" discrimination claim can be problematic for employers, but there are ways in which risk can be reduced.
Any medical records collected by an employer should be kept and reviewed by human resource personnel. Supervisors who are unaware of medical conditions will be less likely to make inaccurate judgments of the employee's capabilities. Managers and supervisors must avoid making decisions about whether an employee has an impairment.
The following guidelines can help employers avoid the "regarded as disabled" discrimination claim:
- Train managers and supervisors on all ADA regulations.
- Make sure management understands the employer's anti-discrimination policy.
- Avoid making assumptions about an applicant's or employee's physical or mental impairments or whether he or she has any impairments. Disability issues are best managed on a case-by-case basis.
- Remember, it is illegal to require an applicant to take a medical examination before making a job offer.
- Unless you can show job-related requirements necessary to the business to support such questions, current employees should not be required to answer questions about a disability.
- Allow for independent evaluation on whether an applicant/employee with a disability can perform the job with or without reasonable accommodation.
- Managers and supervisors should consult with the human resources department on any employee disability issue.
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