Everything You Always Wanted to Know About ADA ... - LAC Jobs 10/Week 1/HOA_507… · Everything...
Transcript of Everything You Always Wanted to Know About ADA ... - LAC Jobs 10/Week 1/HOA_507… · Everything...
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Everything You Always Wanted to Know About ADA/FEHA Litigation*
*…but were afraid to ask…
Steve Morris Office of the County Counsel
(213) 974-1957
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Steve Morris
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An ADA Primer
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Under the Americans with Disabilities Act (“ADA”) and California’s, Fair Employment and Housing Act (“FEHA”), employers must engage in a prompt interactive process to explore reasonable accommodation of a known disability.
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This is an express requirement under
FEHA.
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Failure to show prompt interactive process is the most common violation, and is easily ascertainable by investigating enforcement agencies (EEOC for ADA; DFEH for FEHA).
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Disability may be known through an employee request, inquiry, or otherwise available information.
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Interactive process must be a continuing process. Employer must continue to consider requests or information submitted by employee.
Interactive Process is a Conversation between Employer and Employee: it must be flexible, timely, and in good faith.
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Employer must consider all information provided but does not have to offer the exact accommodation requested so long as some reasonable accommodation is offered.
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Return of industrially injured employee with permanent work restrictions is tantamount to a request for reasonable accommodation and must trigger a prompt interactive process unless the work restrictions can be immediately accommodated.
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If an employee can no longer perform the essential functions of his/her former position, departments have an obligation in the interactive process to consider transferring an employee to an alternative assignment or vacant position.
See: Civil Service Rule 9.08. For transfer, employee must meet minimum
qualifications for new position; need not be the “most qualified.”
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A disabled employee who can no longer perform his or her old job may be returned to work in a temporary assignment while the interactive process is proceeding.
Assignment should clearly be designated as temporary.
Temporary assignment avoids hardship to employee and allows time for orderly interactive process.
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5 Questions
1. Can the County win a jury trial? 2. Why are there so many ADA lawsuits? 3. Why is ADA litigation so expensive? 4. What’s new in ADA litigation? 5. How can you manage County workforce?
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#1 Can the County win a jury trial?
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Jurors tend to be employees, not employers
Popular culture Negative images Employment law is complex Things juries hate
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#2 Why are there so many ADA
lawsuits?
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County is a big target with deep pockets Huge growth in ADA/FEHA cases: the
word is out! Lawsuits for Harassment Fact intensive cases go to Jury Attorney’s Fees
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#3 Why is ADA/FEHA litigation so
expensive?
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ADA/FEHA cases are fact intensive Employment history Cases are document driven Law is evolving (Retaliation . . . ) Attorney’s Fees
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#4 What’s New in ADA Litigation?
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E-discovery The Perils of E-mail
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#5 How can you manage County
workforce?
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Document the Interactive Process Keep Them on the Job Tell a Story Be Prompt Be Nice Be Consistent Look for Early Resolution