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Labor lawyers: Changes to Americans with Disabilities Act may lead to more workplace discrimination suits

Employers should expect to see more workplace lawsuits under the newly amended American with Disabilities Act, according to labor lawyers who advise restaurant operators.

Unhappy with strict interpretations the U.S. Supreme Court has made since the ADA statute was passed in 1990, Congress acted to expand the law and make it easier for individuals with mental or physical impairments to file discrimination lawsuits.

The bill, signed by President Bush last month, takes effect Jan.1.

The law applies to workplaces with 15 or more employees for at least 20 weeks during a year, including part-time and temporary employees.

“The bottom line is that when it comes to ADA litigation, restaurants should now have the same expectation for ADA claims as they do for other discrimination claims, such as gender, race, religion, age and etc.,” said Michael Mitchell, a partner in the New Orleans office of Fisher & Phillips and executive editor of the Hospitality Workforce Trends newsletter.

The amended law redefines and expands the definition of a disabled person as someone who is unable to perform a major life activity or is significantly restricted in the duration of a major activity.

Included in the list of major activities are such tasks as walking, standing, lifting, eating and sleeping, and mental tasks such as communicating, reading and thinking. Any major body functions, such as cell growth, digestive and reproductive functions, are also considered major life activities.

“It will no longer be difficult to prove that you have a right to bring such a claim,” Mitchell said. “Although employers still have the same ability to argue to a jury that they had a legitimate and non-discriminatory reason to justify an employment action, they can no longer count on being able to defeat such a claim before it gets to that point.”

Employers currently are able to avoid litigation by asserting that some employees do not qualify for protection under the law, given the strict interpretations the courts were making, explained attorney David Jordan of the Fulbright & Jaworski employment law firm in Houston.

“But Congress said [the courts] have gone too far,” he said. “There were too many people being locked out of protection of the ADA. They wanted more people protected.”

After a series of pro-employer decisions by the Supreme Court in 1999, lower courts began applying a “demanding standard” when determining whether a plaintiff was considered sufficiently disabled to advance an ADA lawsuit, Mitchell said.

“Disability advocates reacted angrily to what they considered be an undermining of the act’s original intent,” he added.

To further broaden the definition of a disability, “mitigating measures” can no longer be considered in determining whether a person is disabled enough for ADA protection, the lawyers said. A mitigation measure, for example, might be a prosthetic leg or hearing aids or medications. Corrective eye glasses or contact lenses were excluded.

“If you have a prosthetic device that enables you to walk just fine, then an employer could argue you were not disabled under the [ADA] act,” Jordan said. “The courts said you had to take into account that with such a mitigating measure, you no longer fall under the protection of the ADA. The new legislation removed that.”

Mitchell warned that operators, owners and human resources executives will need to update their policies and offer wider accommodations to their workforce. He and Jordan both are encouraging employers to err on the side of caution in considering employee requests for accommodations.

However, “the most prudent and cautious employers are probably already doing enough to protect themselves under the changes of the ADA,” Jordan said. His firm is advising clients to be “thorough and seek counsel for close calls. Those who are always making close calls in favor of the employees should be fine.”

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