Rules For Avoiding Litigationand Limiting Costs
- Always remember that the only real winners in an ADA case are the lawyers. Creative solutions are usually more economical than legal fees. Avoid litigation if at all possible.
- Know your jobs. If you don't know what the employers are doing you can't define the essential functions of the job.
- You may ask an applicant questions about the applicant's ability to perform a task related to the essential functions of the job but you may not ask general questions about the applicant's health or disability.
Examples: "Do you have any back problems?" VIOLATION
"Can you lift 50 lbs. from the ground to your chest on a frequent basis?" ACCEPTABLE if the lifting is an essential function of the job. If the job requires that the employer only lift 20 lbs. You have created an ADA claim.
- Always remember that "good faith" efforts to make "reasonable accommodations" makes employers immune from awards of punitive damages. It is the employers burden of proof to establish good faith efforts. Make sincere efforts to listen and be accommodating and document your efforts.
- Avoid preconceived ideas concerning disabilities. Remember that an one-armed pitcher threw a no-hitter and a famous painter painted with his left foot. An employer's mistaken perception can establish an ADA violation.
- Remember that it is the applicants burden to ask for an accommodation. If possible ask the applicant to make the accommodation request in writing.
- An employer is not required to promote an employee with disabilities; reassign the employee to an occupied position, or create a new position to accommodate an employee. If a suggested accommodation requires any of the above, document the staffing problem.
- A reasonable accommodation does include reassignment of a disabled employee to an available vacancy if the employee is qualified for the position so it is important to be familiar with company vacancies.
- Undue Hardship is a defense to a request for Reasonable Accommodation and the burden of Proving Undue Hardship is on the Employer. An employer should always solicit the employees ideas on reasonable accommodation before claiming hardship.
- When in doubt get a professional opinion. The money spent avoiding a violation is usually significantly less than the money spent defending a violation.