If you spend much time dealing with employment issues, it is likely that disability rights disputes will absorb more of your time now than in the past. For example, the EEOC reported a 17.6% increase in discrimination charges filed under the Americans with Disabilities Act (ADAAA) between 2009 and 2010.1 Suits brought under the ADA now comprise the highest percentage of claims filed by former employees. There are three reasons for this trend.

The first reason is economic.
The recent poor economy means that more people are being laid off. It is human nature to think that we are above average. Social psychologists call this the “illusory superiority effect.”2 If we are better than others, the choice to lay us off and leave others employed is irrational. An “irrational” layoff is often attributed to some impermissible factor like discrimination. So more layoffs mean there are more people who believe they have a discrimination claim.

A second reason for the increase in disability discrimination claims is legislative changes.
Congress recently amended the ADA to expressly state that the definition of “disability’ should be broadly construed (see 42 USC §12102 (a) (4) (A)). Congress also added to the list of conditions that are considered disabling (see 29 CFR 1630.1 et seq.). In addition, it modified other federal laws like theRehabilitation Act to incorporate these changes (see ADAAA, §7). The legislative changes have two effects. They increase the number of people covered by disability laws. Additionally, the broad construction rule encourages plaintiffs’ lawyers by making it easier to prove disability – an element of such claims.

The third factor driving up disability rights claims is demographics.
As a group, Americans are living longer. Older people have more disabilities, and essentially “age into” this protected status. One in five Americans has some disability. Of those Americans with disabilities, over one third are over the age of 65.3 And as the population ages, this fraction will grow. So disability rights are and will be a growing part of the law.

The role of mediation.
Both the EEOC and the Department of Justice enforce the rights of the disabled in employment discrimination cases, and both agencies provide and encourage voluntary mediation.4 Similarly, the Fair Employment and Housing Commission recently established a separate Mediation Division. And of course, both state and federal courts require the use of alternative dispute resolution.

Taken together, these facts mean that mediating failure-to-accommodate claims will be a part of daily practice for most employment professionals. The unique characteristics of such mediations merit special consideration.

Both the EEOC and California’s Department of Fair Employment and Housing envision the request for an accommodation as an “interactive” process, not one wherein the solution is imposed.5 It is an ongoing dialogue between an employer and an employee with a disability to determine what reasonable accommodations would enable the individual to perform the essential functions of the job without an undue burden on the employer. Where communication between the parties is insufficient, a mediation may be the best means of continuing that dialogue.

A. Addressing Process Accommodation issues:
By definition, a disability rights claim involves at least one person who is asserting some physical or mental limitation. That person is expecting a user-friendly mediation process. Regardless of legalities, establishing the credibility, rapport, and mutual respect essential to the mediation process requires that such limitations be accommodated.

Practically, this means that a discussion about necessary accommodations must take place before the session. The EEOC recommends raising the issue during the intake process.6 If the accommodation addresses only access to the mediation site, only the mediator and the disabled party need to be involved. If, however, process changes impact others’ rights, it may be necessary to open the discussion to all parties. For example, those with short-term memory deficits often record conversations to remind them of events. Parties might object to this type of device because of the threat to mediation confidentiality, and insist on a different accommodation, for example.

B. Developing Alternatives
A disability rights claim may include a conversation or negotiation over what is an appropriate accommodation. As the EEOC points out, disabilities are not fungible. Though you and I may suffer from the same medical condition, our abilities, limitations, and needs could be vastly different. Accommodations that work for some may not work for others. For example, let’s suppose your grandmother and I both experience the same mobility impairment. That she uses a walker does not mean I can use one. I may have poorer coordination, worse balance, and less strength. I may fall more often – which makes a walker a bad choice for me. The point is that the accommodation process is individualized rather than generalized. To effectively accommodate someone’s disabilitiesyou must understand specifically what they are, through prior discussion, discovery, a pre-mediation issues conference, or mediation briefing. Undoubtedly, every disability rights claimant will have a preferred method of accommodation. But the law does not require using claimant’s method. It requires only an “effective” method. Choosing such a method requires some knowledge of the disability, some familiarity with available accommodations, and a dash of common sense.

Don’t be afraid to choose a low-tech, economical solution over a high-tech, expensive one as long as the relevant needs are met. I was part of a committee chosen to retrofit a hundred-year old courthouse to comply with the Americans with Disabilities Act. One issue was the witness boxes, which were too high to be accessible. The favored high-tech solution was a permanent electronic lift, at a cost of about $30,000. The author’s common-sense low-tech solution was a metal ramp into the witness box, which could be folded and put away when not in use. The cost to the taxpayers? About $100.

If you aren’t aware of what the alternatives are, you can get help from the U.S. Department of Labor’s Job Accommodation Network (JAN), which provides information about disabilities, their likely limitations, and suggested accommodations. One can develop alternatives by meeting with an experienced and creative mediator or visiting the ten regional Disability Business Technical Assistance Centers across the country that are run by the U.S. Department of Education, your state’s Department of Rehabilitation, or your medical or rehabilitation provider.

As the requirement for an interactive process indicates, the best sources for suitable accommodation ideas come from those who deal with the disability and its limitations in the proper context – the parties themselves. Any accommodation agreement should be both realistic and flexible, and should take into account not only the claimant’s baseline condition, but the known potential for intermittent flare-ups or progressive deterioration.

Any accommodation agreement should be firmly based on the particular limitations and abilities of the disability rights claimant. The agreement must be made thoughtfully, with a thorough knowledge of the available options. In drafting the agreement carefully, the parties both comply with the law and maximize the probability that they will maintain a productive and mutually satisfying relationship into the future.

by Scott Van Soye
1 See Americans with Disabilities Act of 1990 (ADA) Charges, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
2 See Mark D. Alicke and OlesyaGovorun, The Better-Than-Average Effect IN THE SELF IN SOCIAL JUDGMENT (2005, eds. Mark D. Alicke et al.).
3 See What Independent Living Means, CENTER FOR INDEPENDENT LIVING.
5 See 29 C.F.R. § 1630.2(o)(3); Cal. Gov’t Code §12940n(n)).
7 For more information visit http://askjan.org/.

Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721. www.scottvansoye.agencydr.com