New Curves Add to the Already Expansive ADA
The EEOC is putting some heavy burdens on you.
What do the EEOC guidelines address concerning the ADA?
They concern the reasonable-accommodation and undue-hardship provisions of the ADA. Under the ADA, employers have statutory obligations to provide reasonable accommodations to employees with disabilities that will enable them to perform the essential functions of their jobs. And the determination of what is or isn’t a reasonable accommodation is one of the most difficult things an employer can try to do under the ADA.
It’s somewhat of a vague standard. Under the ADA, you have to look at each person’s situation individually and look at what things might be effective to enable that person to perform his or her job. So, literally, almost every time a person asks for an accommodation, it’s like you’re starting over fresh. The EEOC provided this guidance to try to make this issue a lot easier a lot sooner for employers.
What do the guidelines say?
The first issue addressed in the guidance that I found somewhat surprising is just how little an employee has to do to be deemed to have requested a reasonable accommodation. For example, employees don’t have to mention the ADA or use the phrase reasonable accommodation; they just have to make what the EEOC calls a "plain-English request."
One example the guidance offers is an employee telling his supervisor he needs six weeks off to get treatment for a back problem. According to the guidance, that’s a request for reasonable accommodation. Of course, the employee hasn’t said what the back problem is or what treatment he needs to get. So even a fairly vague statement can constitute a request for reasonable accommodation. Also, the request for accommodation doesn’t even have to be made by the employee. The guidance says that a family member, friend, health professional or other representative can request the accommodation for the employee.
What if a manager doesn’t realize that an employee’s comment triggers a request for reasonable accommodation?
If the manager doesn’t recognize the request, and the employee doesn’t receive the reasonable accommodation, the employee can sue the employer for violation of the ADA and have available the full range of damages: compensatory and punitive damages, back pay. A manager not recognizing a request for reasonable accommodation is just the same as if the employer itself did it.
What other changes have been made?
Another fairly controversial point in the guidance is that the EEOC says the employer has to at least consider allowing an employee with a disability to work at home if this would be a reasonable accommodation, and would not be an undue hardship. The employer doesn’t necessarily have to set up the office—however, if it wouldn’t impose an undue hardship on the employer then a reasonable accommodation might include providing a computer and equipment.
Another area that expands reasonable-accommodation obligations is the guidance that says if you’re a national employer or an employer that has locations in more than one city, and an employee who’s disabled needs to transfer to another job, the employer has to consider job openings at all its facilities, unless it creates an undue hardship. So you might have an employee who works in Tampa and can’t perform the job he or she has been performing because of a disability. But you have a job in Los Angeles the employee could perform. The employer may have an obligation to transfer the employee to its Los Angeles office. The employer doesn’t have to pay the moving expenses, but it would have to offer the employee the job. For national companies with numerous offices, that’s obviously a tremendous burden on employers to try to figure out the openings it has in all the different offices—but that’s the employer’s duty.
What are the EEOC’s legal powers here?
The EEOC’s guidance is certainly not binding on the courts, so the courts are completely free to follow it or disregard it. However, given the EEOC is the administrative body charged with the enforcement of the ADA, courts tend to pay fairly great deference to what it has to say about the statutes it enforces. So even though courts aren’t obligated to follow guidance, most courts are going to follow it in most regards.
What power does the EEOC have over employers?
It can do two things to an employer who doesn’t follow the guidance. First, if an employee files a charge of discrimination against the employer under the ADA, and the employer hasn’t followed the guidance, then the EEOC is obviously going to issue a cause finding, meaning the EEOC has investigated the charge and believes the employer has acted discriminatorily. That finding isn’t necessarily binding in court, but employers usually realize they’re going to have a tough battle and start to think about settling the charges. Also, the EEOC has the power to file a lawsuit itself against the employer, saying the employer is discriminating against the employee because it’s not following the guidance the EEOC has set down.
What effect will these guidelines have overall?
They help clear up some areas under the ADA. So it’s good in that it gives employers a more comprehensive idea of what their obligations are. The bad part is the EEOC has placed some fairly heavy burdens on employers as to what they have to do.
Workforce, August 1999, Vol. 78, No. 2, pp. 104-105.