- The Washington Times - Thursday, May 31, 2012

The number of employment discrimination lawsuits under the Americans with Disabilities Act (ADA) has nearly doubled in the past five years and seen a sharp increase in recent months, federal court records show, as the definition of “disability” has expanded and what many believe are baseless lawsuits are filed.

The increase follows changes to the law in 2008, when Congress said that courts had interpreted the definition of “disability” more narrowly than it desired.

In the last fiscal year, disability-related complaints lodged with the Equal Employment Opportunity Commission (EEOC) also rose to their highest level, at 26,000, and payouts to complainants through that process nearly doubled to $103 million compared with the figure from 2007. That does not include money paid out to those who took their complaints to court.

The flood includes more frivolous claims than ever: Despite the broadened law, the EEOC saw the highest percentage yet deemed “no reasonable cause” last year.

The rise also comes as federal agencies have added more stringent requirements for disability accommodation and offered expanded interpretations of what it means to be disabled.

In December, the EEOC drafted a letter warning that some employers could be violating the ADA by requiring a high school diploma, explaining that in some cases the requirement “‘screens out’ a person who is unable to graduate because of a learning disability.”

Earlier this year, the Justice Department ruled that all swimming pools open to the public had to have elevators, lifts or ramps to accommodate wheelchair users. With a March 15 deadline to comply, the Justice Department issued a 60-day stay for hundreds of thousands of public pools that had been required to install the ramps and lifts or face lawsuits, then retreated further, promising that it would be “flexible” in enforcing the rules, in most cases going after only new pools.

The ADA Amendments Act of 2008 undid a court precedent requiring judges to take into account “mitigating measures” that treat disabilities, effectively saying that hearing-impaired people are not disabled if they wear hearing aids that restore hearing. Attorneys for employees say those measures don’t entirely undo a person’s disability.

“Take an epileptic who can take a medication that prevents them from having seizures,” said Joseph V. Kaplan, a Washington-based employment discrimination lawyer who specializes in federal workers’ cases. “Let’s say because of the effects of the medication, it takes them longer to get ready than others, and because of that, they want their schedule adjusted.”

The act applies to businesses with 15 or more employees and requires them to make “reasonable accommodation” to disabled workers. At issue, then, is what is “reasonable” and what modifications would be too costly for employers.

“Employers are facing a barrage of frivolous cases, and each one costs $30-, $40-, $50,000,” said Mike Eastman, executive director of labor policy at the U.S. Chamber of Commerce.

In April, the latest month for which data were available, 183 cases alleging employment discrimination based on the ADA were filed in federal court, a 21 percent increase over a month prior and a 12 percent increase over April 2011, according to the Transactional Records Access Clearinghouse at Syracuse University. The number of lawsuits has risen steadily over the past five years, for a total rise of 90 percent.

In many of the lawsuits, employees or applicants who were fired or passed over for jobs say it was because of a disability, while employers point to unrelated factors making the plaintiff less qualified than other workers. In a recently filed case, for example, a security guard who was demoted after companywide layoffs, and who had received the poorest performance reviews among his peers, said the demotion was actually because he is blind in one eye. In other cases, employees are demanding modifications to their worksites or schedules that their employers have refused to make.

Among the EEOC complaints, the Obama administration has actively chased cases involving time off for disabled workers.

“In the last year or year and a half, we’ve seen EEOC be more aggressive on policies on leave,” Mr. Eastman said.

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