Six things about the ADA that even an employer can love
July 31, 2015
Dear Americans with Disabilities Act,
When President George H.W. Bush signed you into law in 1990, I had been practicing employment law for less than two years, so I feel like you and I grew up together.
I remember when those of us on the employers’ side were in a panic about whether you were going to ruin the workplace by requiring this thing called “reasonable accommodation.” Then, when the courts started taking a hard line on whether various medical conditions were “disabilities,” I thought you might be dead, or at least sick. But you came roaring back with that ADA Amendments Act in 2009!
I don’t always agree with Congress, but I want you to know that I think you’re a good law. Even “as amended,” and even though I still represent employers. Here are six things that I appreciate about you:
1. As others have pointed out far more eloquently than I can, you gave individuals with medical conditions a chance to get into the workplace or stay in the workplace, and to succeed and thrive.
2. With your “individualized analysis” and “reasonable accommodation” requirements (which I admit sometimes drive me crazy), you encouraged employers to treat employees as individuals. Before you came along, employers felt that they had to treat everyone exactly the same because otherwise they’d be accused of discrimination. You gave employers “permission” to take differences into account. I am sure that the result has been a more humane workplace.
3. Your “interactive process” requirement is great because it encourages employers to have a genuine dialogue with employees who have disabilities. (See “more humane workplace,” above.)
4. You are a trailblazer. Because of you, many states were inspired to enact pregnancy accommodation statutes, and the Supreme Court just recently found that employers must consider making accommodations for pregnancy and related conditions. (Yeah, I know I had a few issues with that SCOTUS decision, but I’m generally in favor of the concept of pregnancy accommodation.) I also give you credit for state and federal “lactation accommodation” laws. Even though you don’t protect pregnant women and new mothers yourself, your influence has made workplaces more hospitable to women of childbearing age and has promoted work-life balance.
5. You are reasonable. Unlike the Family and Medical Leave Act and other laws with highly technical requirements that trip up even well-meaning employers, your attitude is more like, “Hey, whatever works!” If an accommodation allows the employee to perform the essential functions of the job, then it’s cool. You don’t try to shoehorn employers and employees into some rigid, bureaucratic “solution” that doesn’t work. You seem to be more interested in creating opportunities for employees with disabilities than in playing “gotcha!” with employers.
6. You have a heart, but you can still be tough when you need to be. You recognize that the work has to get done. You don’t interfere with employers’ needs for a workplace free of illegal drugs. If someone can’t do the job, or can’t do it safely, then you recognize an employer’s right to look at other options, such as reassignment to a different job or a medical leave of absence, or even – as a last resort – termination. This is much appreciated.
So, happy 25th anniversary, ADA. And many happy returns.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.