Your office and the ADA.

Congress has transformed workplace rights by enacting the Americans with Disabilities Act of 1990 (ADA).(1) Many attorneys in law firms are uncertain about how to comply with the law. They do not know how to respond to employees' requests for the "reasonable accommodation" it requires, nor how to anticipate their clients' accessibility, needs.

Law firms generally react, not act, which makes them prime targets for litigation. In Cain v. Hyatt, a lawyer who was fired after he was diagnosed with AIDS won substantial damages from his employer, Hyatt Legal Services.(2) Hyatt paid dearly for its refusal to make accommodations for the lawyer's disability. This article explains what firms can do to avoid that that result by, complying with the ADA requirements.(3)

The act consists of five titles and prohibits discrimination against people with disabilities in employment, transportation, public accommodations, and telecommunications. Law firms are specifically, included in Title III's definition of "public accommodation" and are required to be accessible, for example, to people in wheelchairs.(4) As employers and providers of public accommodations, law firms have a double duty to employees and clients.

Firms should conduct a review of the workplace to ensure that current employees and clients with disabilities have access to work areas and nonwork areas used for firm-related activities. These include conference rooms, break rooms, and restrooms. These facilities must be readily accessible to employees and clients with disabilities.(5)

In existing facilities, barriers must be removed only if doing so is "readily achievable," defined as "easily accomplishable ... without much difficulty or expense."(6) The tax code provides substantial advantages to removing architectural barriers to comply with the ADA.(7) All new construction must comply with the ADA Accessibility Guidelines to the "maximum extent feasible."(8)

Firms should draft plans with timelines and goals and allocate resources to accomplish those goals. Although it may not be feasible to comply with every provision of the ADA on the date it goes into effect,(9) this plan and budget are evidence of the firm's good-faith efforts.(10) Conversely, a firm that cannot show the steps taken to comply may be a sitting duck for litigation.

For example, my firm relocated from a comfortable but inaccessible secondstory Victorian office to a building whose landlord was willing to take responsibility for ADA compliance. Before moving, I arranged meetings with disabled clients and colleagues at more accessible locations. A caring attitude and an interim plan, together with a long-range solution, are better than a long list of excuses for noncompliance.

Employees with Disabilities

The ADA's nondiscrimination-inemployment provisions are not new. For years most law firms have been required to provide reasonable accommodation to employees because they were covered by state law provisions.

The ADA broadly, defines a person with a disability, as one who (a) has a physical or mental impairment that substantially, limits one or more major life activities; (b) has a record of such impairment or (c) is regarded as having such an impairment.(11) This definition identical to the definition of "handicapped person" in the Rehabilitation Act of 1973.(12) Unlike the Rehabilitation Act, the ADA also covers people who have a relationship with a disabled person.(13)

To be covered by the ADA, a person must be in at least one of these categories, based on one or more physical and/or mental conditions or their combined effects. Employers should respond to requests for accommodation by identifying the nature of the accommodation, its cost, and its likely effect on the person's ability to perform the job.

Generally, employers should not challenge whether a disability falls within the definition unless it is clearly excluded under the ADA and no other combined conditions are likely to surface. (Even temporary impairments like a broken ankle, which arc not covered, can result in a permanent impairment, which is covered.) The delay in accommodating the employee win only increase liability, and the resulting pain and suffering are compensable.(14)

An employee must also be "qualified" to be covered by the act. A person with disability is considered qualified if the person satisfies the job requirements and can perform essential functions with or without reasonable accommodation.(15) The burden is on the employer to show that an asserted essential qualification is truly essential.(16)

Employers are not required to develop or maintain job descriptions.(17) But firms that do not currently use job descriptions should consider creating them, provided they are regularly reviewed for accuracy and completeness. Effective written job descriptions will enable an employer to establish defensible criteria for job selection and placement and to define effective performance standards.(18) If, however, inaccurate physical requirements are inserted into existing job descriptions, potential liability may be increased. Moreover, a job description is only one factor to consider in determining a position's essential function.

An employer may not recast the essential functions of a position for current disabled employees to make it impossible for them to perform their jobs satisfactorily. After-the-fact changes in the essential functions may be evidence of a discriminatory motive.

One example is American Federation of Government Employees, Local 51 v. Baker, in which I represented five disabled plaintiffs.(19) The district court issued a preliminary injunction that prohibited their employer, the U.S. Mint, from firing them for poor performance. My clients showed that but for changes in the performance criteria they would have continued to perform their jobs at a "satisfactory" rating. The limit had conducted a study showing that "normal" people could perform the jobs much faster than the plaintiffs, who had held the positions for between 12 and 20 years.

After the trial, the court ordered the mint to study what accommodations were reasonable. A rehabilitation specialist found many effective accommodations, including job restructuring, retraining, and reassignment. The plaintiffs are still at work, while the mint is on its fourth trip to the Ninth Circuit Court of Appeals.

The ADA also defines when it is improper to discharge employees with disabilities. Poor performance may well be a legitimate business justification for a discharge and a bona fide defense to all ADA claim, but firms must exercise caution. Employers are liable for failure to accommodate qualified people with disabilities (as opposed to other protected groups) unless the accommodation would cause an undue hardship.

Employees with disabilities who are fired for performance-based reasons may have valid ADA claims if they were not provided with a reasonable accommodation that would have enabled them to perform satisfactorily or if the need to accommodate their disabilities was a factor in the firing decision.

Attorneys who must evaluate a job to see if the firm can provide reasonable accommodation should contact experts for help. The Job Accommodation Network and other advocacy organizations provide services to people with disabilities and offer information about accommodations.(20) Free advice on how to comply with the ADA is also available from the U.S. Equal Employment Opportunity Commission (EEOC).(21)

The cost of providing reasonable accommodation for employees is usually minimal. A 1982 study found that 51 percent of accommodations cost nothing, 30 percent cost between $1 and $500, and only 8 percent cost more than $2,000.(22) It Clearly Makes more sense for law firms to allocate the money for reasonable accommodation rather than for litigation aimed at avoiding ADA compliance.

Lawyers should keep in mind an unexpected benefit of compliance: The ADA?s process for finding job accommodations for people with disabilities can also be used to expand the productivity of other employees. This complex, interactive process is discussed in detail in the EEOC Technical Assistance Manual.(23)

Briefly, the process involves defining the requirements of the position, finding effective accommodations, consulting with the person with the disability, and considering that person's preferences. These tools can be used as a model for improving effective dealings with other employees, clients, and colleagues not covered by the ADA.

Clients with Disabilities

Many attorneys who do not undertake ADA litigation per se do represent people with disabilities. The client's disabilities may be the basis of a personal injury claim or may have no relationship to the case.

I have detected a negative attitude in some attorneys about representing people with disabilities, particularly those with mental conditions. Lawyers must learn to overcome the myths, fears, and stereotypes about people with disabilities. More important, the plaintiffs' bar needs effective strategies for overcoming the practical difficulties of representing them.

In Local 51, for example, I had to make accommodations for my clients, who have various disabilities, including mental and learning problems. Early in the litigation, I discovered that some of them might have difficulty testifying on the stand. Rather than drop the case because some of the plaintiffs might be ineffective witnesses, I developed a discovery and trial strategy that enabled my clients to prevail without testifying.

The mint received permission to run extensive medical, psychological, and vocational tests on my clients. In their trial testimony, the government's experts conceded the major issues in the case: that the plaintiffs were disabled and that the mint did not provide reasonable accommodation.

The highlight of the trial was a tour of the mint's facilities, where the judge observed the plaintiffs performing their jobs as coin checkers. The judge remarked that coin checker was not only the lowest paid position in the mint but also involved the most strenuous work. He said my clients could potentially be accommodated by reassignment to 15 different positions.

Because of the difficulty of communicating with some people with disabilities, it may take additional time and energy to keep clients abreast of case developments, especially in lengthy, complex litigation. It may be wise for lawyers to enlist some help in this area. It is difficult enough for me, as a sole practitioner, to find time to prepare for trial, much less to respond to every question or phone call from clients. In Local 51, since the union represented the plaintiffs, the president of the local efficiently handled many of their questions and personal problems. This freed me up to do the legal work.

When representing clients with mental disabilities, lawyers must clearly indicate to clients what they can expect from the attorney and what is expected from them. Conditions like post-traumatic stress disorder may cause clients to block the memory of events that caused the trauma or to become easily sidetracked. Attorneys should find out from their clients the best way to accommodate them, based on the clients' experience of dealing with the problems they face.

The support staff in most law firms can be trained to anticipate and attend to the special needs of disabled clients. Moreover, law firms are particularly well suited to demonstrate effective ADA compliance because they routinely employ experts. Attorneys can hire experts specifically to address ADA issues in the firm. For example, engineers can modify equipment or develop assistive devices like telephone amplifiers or software to enlarge text on computer screens; signlanguage interpreters can provide translations for hearing-impaired clients or jurors.

Certain technologies and services can also be helpful. For example, relay services for the hearing impaired are available through phone companies and state agencies. These services act as intermediaries between hearing-impaired people using TDD technology and others who do not have the device. These services can provide a conduit between a hearing-impaired client and the attorney.24 As the technology and methods of accommodation become more widely available and better understood, the task of working effectively with disabled clients will become less daunting.

Human Cost

The tragic human cost of discrimination against workers with disabilities is illustrated by statistics cited in the ADA's legislative history:

* Many people with disabilities had no choice but to apply for government benefits when they would have preferred to work. Between 1981 and 1988, the percentage of men with disabilities who had full-time jobs fell from 20 percent to 13 percent.

* In 1980, the income of men with disabilities was 23 percent less than that of men with no disabilities. By 1988, they earned 36 percent less than their counterparts.

* In 1980, women with disabilities earned 30 percent less than women with no disabilities. By 1988, they earned 38 percent less.(25)

This situation was clearly growing worse. Maintenance of the status quo was unacceptable in light of the projected shortage of skilled labor.(26)

As attorneys, we can offer new opportunities to people with disabilities by voluntarily complying with the ADA and by increasing sensitivity to and awareness of the needs of the disabled. Our clients will be better represented when we accommodate them. Our public image will also be enhanced (and our pocketbooks protected) when we take the initiative to comply with the act rather than wait for litigation. Removing attitudinal, communications, and architectural barriers for our disabled clients, colleagues, and employees has become essential for doing business.

Notes

(1) Pub. L. No. 101-336, 104 Stat. 328 (1990) (codified at 42 U.S.C. [sections]12101-12213 (Supp. III 1991) and scattered sections of 29 U.S.C. and 47 U.S.C.). (2) 734 F. Supp. 671 (E.D. Pa. 1990). (3) See generally, GARY PHELAN & JANET B. ARTERTON, DISABILITY DISCRIMINATION IN THE WORKPLACE (1992). See also EQUAL EMPLOYMENT OPPORTUNITY COMM'N, PUB. NO. EEOC-M-1A. A TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT (1992) [hereafter EOC MANUAL]. This manual is the primary source for the agency's analysis of the ADA. (4) 42 U.S.C. [sections] 12181(7)(F) (5) 42 U.S.C. [sections] 12112, 12182. (6) 42 U.S.C. [sections] 12181(9), 12182(b) (2) (A) (iv). (7) I.R.C. [sections] 44 (1993) provides a tax credit; I.R.C. [sections] 190 (1993) provides a deduction. A business may not take both the credit and the deduction for the same expense. See EEOC MANUAL, supra note 3, at III-35. (8) 42 U.S.C. [sections] 12183(a)(2). See also U.S. DEP'T OF JUSTICE & EQUAL EMPLOYMENT OPPORTUNITY COMM'N, AMERICANS WITH DISABILITIES ACT HANDBOOK III-142 (1991) [hereafter ADA HANDBOOK]. (9) Businesses with 15 or more employees will come under ADA coverage on July, 26, 1994. 42 U.S.C. [sections] 2111(5)(A). In spite of the current requirement that businesses with 25 or more employees comply, many have failed to take effective steps. (10) Neither compensatory, nor punitive damages may, be awarded if the employer call demonstrate that it made "good-faith efforts" to identify barriers to people with disabilities and make reasonable accommodation. See PHELAN & ARTERTON, supra note 3, at [sections]2:03, 8:22, citing Civil Rights Act of 1991, 42 U.S.C. [sections] 1981a (Supp. III 1991). (11) 42 U.S.C. [sections] 12102(2). For detailed discussion, of what these terms mean, see 29 C.F.R. [sections] 1630.2 (1993); PHELAN & ARTERTON, supra note 3, at [subsection]4:02-4:10; MARK DANIELS, EMPLOYMENT LAW GUIDE TO THE AMERICANS CANS WITH DISABILITIES ACT 3-25 to 3-28 (1992). (12) Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29 U.S.C. [sections] 706(7)(B) (1988 and Supp. III 1991)). (13) 42 U.S.C. [sections] 12112(b)(4); 29 C.F.R. [sections] 1630.8 (1993). (14) Civil Rights Act of 1991, 42 U.S.C. [sections] 1981a. (15) 42 U.S.C. [sections] 12111(8); 29, C.F.R. [sections] 1630.2(m) (1993). "Essential functions" of the position are determined on a case-by-case basis. See 29 C.F.R. [sections] 1630.2(n) (1993); EEOC MANUAL, supra note 3, at II-13/to II-21. See also Treadwell v. Alexander, 707 F.2d 473, 477 (11th Cir. 1983); Guinn v. Bolger, 598 E Supp. 196, 200 (D.D.C. 1984). (16) Bentivegna v. Department of Labor, 694 F.2d 619, 621-23 (9th Cir. 1982); Simon v. St. Louis County, 656 F.2d 316, 321 (8th Cir. 1981), cert. denied, 455 U.S. 976 (1982); Nisperos v. Buck, 720 F. Supp. 1424, 1426 (N.D. Cal. 1989). (17) EEOC MANUAL, supra note 3, at 11-15 to 11-16 (18) PHELAN & ARTERTON, supra note 3, at [sections] 5:13. (19) 677 F. Supp. 636 (N. D. Cal. 1987). This case was brought under the Rehabilitation Act, which covered federal agencies and contractors, recipients of federal grants, and participants in federal programs. This act and the ADA are now read together, so appellate decisions in Local 51 will set legal precedent under the ADA. (20) Job Accommodation Network, 918 Chestnut Ridge Rd., Ste. 1, P.O. Box 6080, Morgantown, WV 26506-6080, tel. (800) ADA-WORK, computer bulletin board (800) DIAL-JAN. The network provides information about job accommodations and the employability of people with functional limitations to anyone, free of charge. (21) Equal Employment Opportunity, Commission, 1801 L St., N.W,, Washington, DC 20507, tel. (800) 669-EEOC. For a list of government agencies providing ADA information, see the resource list in the ADA HANDBOOK, supra note 8. (22) DANIELS, supra note 11, at xiii. See also H.R. REP. NO. 485 101st Cong., 2d Sess., pt. 2, at 33 (1990); S. REP. NO. 116, 101st Cong., 2d Sess. 10 (1989). (23) See generally EEOC MANUAL, supra note 3. (24) See PHELAN & ARTERTON, supra note 3, at [sections] 20:19 for a discussion of ways attorneys can optimize communications with people with hearing impairments. (25) H.R. REP. NO. 485, 101st Cong., 2d Sess., pt. 2, at 32 (1990), citing BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, SERIES P-23, NO. 160, LABOR FORCE STATUS AND OTHER CHARACTERISTICS OF PERSONS WITH WORK DISABILITIES: 1981-1988 (1989). (26) See DANIELS, supra note 11, at xiii-xvi. See also Samuel Estreicher, Laws Promoting Worker Training, Productivity and Quality, LAB. LAW., Winter 1993, at 19.