Here’s reassuring news: Most lawsuits under the ADA are won by employers

But charges still can be costly — don’t relax policies

Employers win almost all lawsuits involving the Americans with Disabilities Act (ADA), according to a recent analysis. The study suggests that the ADA is not nearly the problem that employers and occupational health providers thought it would be, and some observers suggest that it also means employers and providers are adhering to the law so well that only weak cases are taken to trial.

The numbers are remarkably lopsided. Employers prevailed in 92% of all court decisions in ADA cases filed since the first in 1992, according to an analysis conducted by the American Bar Association in Washington, DC. That figure applies to cases that have gone through the appeals process and not been overturned as of March 31, 1998. The result is consistent with another analysis by the federal Equal Employment Opportunity Commission (EEOC), which showed that employers prevailed in 86% of the administrative complaints resolved by the EEOC. The EEOC oversees the ADA.

Of 1,200 ADA case decisions on file with the American Bar Association (ABA), one party prevailed in 760 (63.3%). In 440 cases (36%), no final decision had been made at the time of the analysis. The discrimination issue was decided on the merits in only 528 (44%) of the 1,200 cases. Of the 760 cases with one party prevailing over the other, employers prevailed in 92.11%, leaving employees to prevail only 7.89% of the time.

Those numbers involve only the cases actually taken to litigation. The EEOC statistics show that there have been 83,158 complaints resolved from 1992 to 1997, and 86.4% were resolved in the employer’s favor. Only 13.6% were resolved in the employee’s favor.

Numbers show there’s little to worry about

The American Bar Association analysis shows that all the hand wringing and whining by employers about the ADA in the past years were unjustified, says John Parry, JD, director of the ABA’s Commission on Mental and Physical Disability Law and the main analyst. The ABA had been saying for years that it appeared employees were at a distinct disadvantage when pursuing ADA lawsuits, but doubts from outsiders resulted in the group conducting the formal analysis. The results were not unexpected, but Parry says he did not realize the analysis would show employers winning a whopping 92% of the cases.

"This runs against what most people were thinking," he tells Occupational Health Management. "Attorneys for employers have been making arguments that the ADA is extremely burdensome to their clients, but I just don’t think you can make that argument anymore. These numbers show that just isn’t true."

Parry says the difference between the 92% of cases won judicially by employers and the 86% won administratively is minor, and the employee is very unlikely to win either way. He says the results indicate that the ADA is written, or interpreted by the EEOC and the courts, in a way that makes it almost impossible for a disabled person to prove his or her case.

The biggest hurdle for a claimant is the definition of disability, Parry says. While the seemingly broad definition is intended to cover almost anyone who might suffer job discrimination as the result of a disability, he says the definition is full of Catch-22s that often result in automatic dismissals before the cases can be heard on the merits. Employees usually lose their cases because of these six facets of the ADA:

• substantial limitation;

• otherwise qualified;

• collateral estoppel;

• the definition of "employer"

• the burden of proof;

• undue burden.

The fundamental Catch-22 of the ADA is that it requires the claimant to prove that the disability is substantially limiting, yet it also requires the claimant to prove that he or she is able to carry out the essential job functions. While that may not be such a major hurdle in the workplace, it becomes a huge obstacle when trying to prove a claim administratively or in court. Parry also says the doctrine of collateral estoppel is a major problem because several courts have denied claims of disabled employees because they applied for federal or state disability benefits. The application requires the person to declare that he or she is unable to work, and so the courts sometimes conclude on that basis that the person is not otherwise qualified to carry out the essential job functions.

"The result is that people sometimes have to decide whether to file a discrimination suit, which can take a long time to resolve and they won’t have any income in the meantime, or file for disability income and risk losing their discrimination claims," Parry says.

Mitsubishi settles $3 million lawsuit

Even though the numbers are overwhelmingly in favor of employers when it comes to ADA complaints, that does not mean employers and occupational health providers should let their guard down. Quite to the contrary, some observers suggest that the employers prevail so often because they are taking the necessary steps to comply with the ADA, leaving only baseless claims to be argued in court. Relaxing your standards would only increase the chances that legitimate ADA claims would be filed.

And even though the study results suggest that employers are likely to win an ADA case, a single case can hit an employer very hard. That was the lesson learned by Mitsubishi Motor Manufacturing of America, which recently settled a lawsuit for $3 million. The settlement was the largest of its kind since the ADA was introduced in 1992, according to information supplied by the EEOC.

The lawsuit was filed by 87 job applicants who thought the company’s Normal, IL, plant violated the ADA by screening out some applicants with disabilities such as diabetes and asthma. Mitsubishi spokeswoman Gael O’Brien tells OHM, "We believed we were in compliance with the ADA. Where we were not, we have agreed with the EEOC to ensure that we fully comply."

In addition to the $3 million payment to the workers, Mitsubishi agreed to revise its policies and procedures for hiring. O’Brien declined to provide more information on what changes would be made.

Sears uses hotline for ADA complaints

On the other side of the issue, Sears is being lauded for its efforts to improve ADA compliance. The giant retailer, based in Chicago, has what the ABA calls a progressive, proactive program for reporting possible ADA violations through a hotline that employees can use. Called the "Ethics Assist Line," the hotline is promoted to all Sears employees as a way to report, and seek help with, possible violations of the ADA and other regulatory or ethical matters. Even companies that do business with Sears can use the hotline to report possible violations, says Paula Davis, a spokeswoman for Sears. The line has been in operation since 1994 and receives up to 18,000 calls a year from Sears’ 300,000 employees, plus vendors.

"When they call the line, advisors will take the information and recommend next steps or ways to further research a concern," Davis says. "They can report the information anonymously if they wish, but we try to put them in touch with local management or with someone at the corporate office."

Sources

For more information on the Americans with Disabilities Act, contact:

John Parry, American Bar Association, 740 15th St. NW, Washington, DC 20005-1022. Telephone: (202) 662-1570. E-mail: Jparry@ staff.abanet.org.

Paula Davis, Sears. Telephone: (847) 286-2500. World Wide Web: http:\\www.sears.com.

Gael O’Brien, Mitsubishi Motor Manufacturing of America. Telephone: (309) 888-8201. World Wide Web: http:\\www.mitsubishi.com.