Everything You Always Everything You Always Wanted to Know About Wanted to Know About ADA/FEHA Litigation*ADA/FEHA Litigation*

*…but were afraid to ask…*…but were afraid to ask…

Steve MorrisSteve MorrisOffice of the County CounselOffice of the County Counsel

Steve MorrisSteve Morris

An ADA PrimerAn ADA Primer

Under the Americans with Disabilities Under the Americans with Disabilities Act (“ADA”) and California’s, Fair Act (“ADA”) and California’s, Fair Employment and Housing Act Employment and Housing Act (“FEHA”), employers (“FEHA”), employers mustmust engage in engage in a a promptprompt interactiveinteractive processprocess to to explore reasonable accommodation explore reasonable accommodation of a of a knownknown disabilitydisability..

This is an This is an expressexpress requirement under requirement under FEHA.FEHA.

Failure to show prompt interactive Failure to show prompt interactive process is the most common process is the most common violation, and is easily ascertainable violation, and is easily ascertainable by investigating enforcement by investigating enforcement agencies (EEOC for ADA; DFEH for agencies (EEOC for ADA; DFEH for FEHA).FEHA).

Disability may be Disability may be knownknown through an through an employee request, inquiry, or employee request, inquiry, or otherwise available information.otherwise available information.

Interactive process must be a Interactive process must be a continuing process. Employer must continuing process. Employer must continue to consider requests or continue to consider requests or information submitted by employee.information submitted by employee.

Employer must consider all Employer must consider all information provided but does not information provided but does not have to offer the exact have to offer the exact accommodation requested so long as accommodation requested so long as somesome reasonable accommodation is reasonable accommodation is offered.offered.

Return of industrially injured Return of industrially injured employee with employee with permanentpermanent workwork restrictionsrestrictions is tantamount to a is tantamount to a request for reasonable request for reasonable accommodation and accommodation and mustmust triggertrigger a a promptprompt interactiveinteractive processprocess unless unless the work restrictions can be the work restrictions can be immediately accommodated.immediately accommodated.

If an employee can no longer If an employee can no longer perform the essential functions of perform the essential functions of his/her former position, departments his/her former position, departments have an obligation in the interactive have an obligation in the interactive process to consider transferring an process to consider transferring an employee to an alternative employee to an alternative assignment or vacant position.assignment or vacant position.

See: Civil Service Rule 9.08.See: Civil Service Rule 9.08.

A disabled employee who can no A disabled employee who can no longer perform his or her old job may longer perform his or her old job may be returned to work in a temporary be returned to work in a temporary assignment while the interactive assignment while the interactive process is proceeding.process is proceeding.

5 Questions5 Questions

1.1. Can the County win a jury trial?Can the County win a jury trial?

2.2. Why are there so many ADA Why are there so many ADA lawsuits?lawsuits?

3.3. Why is ADA litigation so expensive?Why is ADA litigation so expensive?

4.4. What’s new in ADA litigation?What’s new in ADA litigation?

5.5. How can you manage County How can you manage County workforce?workforce?

#1#1Can the County win a jury trial?Can the County win a jury trial?

Jurors tend to be employees, not Jurors tend to be employees, not employersemployers

Popular culturePopular culture Negative imagesNegative images Employment law is complexEmployment law is complex Things juries hateThings juries hate

#2#2Why are there so many ADA Why are there so many ADA

lawsuits?lawsuits?

County is a big target with deep County is a big target with deep pocketspockets

Huge growth in ADA/FEHA cases: the Huge growth in ADA/FEHA cases: the word is out!word is out!

Lawsuits for RetaliationLawsuits for Retaliation Fact intensive cases go to JuryFact intensive cases go to Jury Attorney’s FeesAttorney’s Fees

#3#3Why is ADA/FEHA litigation so Why is ADA/FEHA litigation so

expensive?expensive?

ADA/FEHA cases are fact intensiveADA/FEHA cases are fact intensive Employment historyEmployment history Cases are document drivenCases are document driven Law is evolvingLaw is evolving Attorney’s FeesAttorney’s Fees

#4#4What’s New in ADA Litigation?What’s New in ADA Litigation?

E-discoveryE-discovery The Perils of E-mailThe Perils of E-mail

#5#5How can you manage County How can you manage County

workforce?workforce?

Document the Interactive ProcessDocument the Interactive Process Keep Them on the JobKeep Them on the Job Tell a StoryTell a Story Be PromptBe Prompt Be NiceBe Nice Be ConsistentBe Consistent Look for Early ResolutionLook for Early Resolution