Disability Discrimination Claims Are On The Rise: Some Steps Employers Can Take To Help Reduce Potential Exposure

The Los Angeles Daily Journal, a leading legal newspaper, reports that claims of alleged disability discrimination and claims for alleged failure to reasonably accommodate persons with disabilities and/or medical conditions are being filed in record numbers as the job market in California continues to falter. The Daily Journal reports that "[t]he prolonged recession and high unemployment prompted terminated workers to go after their former employers in higher numbers, because they have a harder time finding new jobs after getting fired or laid off."  

Such cases can be time consuming and expensive to defend. There are, however, steps employers can take to reduce the chances of becoming a target and to reduce the expense associated with defending against such a case should the employer be targeted:

1.  Have in place sound policies for complying with applicable federal and state laws. Employers are generally required to reasonably accommodate workers with disabilities or medical conditions when it is reasonably possible to do so.

2.  Apply policies consistently. Inconsistent application of policies, and, especially inconsistent discipline of employees can create a situation where a disgruntled current or former employee is able to allege he or she was discriminated against on account of a disability or on account of a medical condition.  

3.  Document contemporaneously performance deficiencies and any steps the employer takes to improve the employee's performance. Good documentation or the lack of it can sometimes make or break the defense of a case.

4.  Make adverse employment decisions carefully. When deciding whether to discipline an employee who has a disability or a medical condition, an employer should carefully consider whether the proposed discipline would take place near in time to, among other things, an employee reporting a he or she has a disability or a medical condition, near in time to an employee taking a protected leave related to a disability or a medical condition, or near in time to an employee experiencing an episode associated with his or her disability or medical condition. When an adverse employment action takes place close in time to such events, a judge or a jury might view that as evidence of a discriminatory motive on the part of the employer.

5.  Consider providing the employee a detailed, written explanation of the reasons for any adverse employment decision, particularly if the adverse employment decision is a termination. Attorneys interviewing a terminated employee as a prospective client will usually ask the employee to show the attorney any letters or other documents the employee received from his or her employer regarding the termination. A detailed, accurate written explanation of the reason(s) for the termination decision might cause such an attorney to conclude that a lawsuit against the employer would not succeed and prevent a lawsuit!

6.  In some circumstances, it might be prudent to consider offering the employee a severance payment in exchange for a release of liability and covenant not to sue.  

7.  If the employer has an employment practices liability insurance policy, the employer should consider providing notice to the insurer as soon as the employer is aware that a current or a former employee might or will assert such a claim. Failing to provide timely and proper notice of claims can jeopardize insurance coverage altogether.

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