ADA sure to make waves in area of employment law

Keywords neglect

This article, by Chris Banguis, was originally published in the Indiana Lawyer, Aug. 1-14, 1990.

Last week’s signing of the Americans with Disabilities Act (ADA) is expected to dramatically change the face of employment
law in the coming years, according to members of the legal profession.

The ADA, signed into law last Thursday by President George Bush, gives the federal government power to enforce anti-discrimination
laws in private employment.

Observers have speculated that the act will have the same sweeping effects as the 1964 Civil Rights Act.

Jeffrey Mallamad, of the Indianapolis law firm Bingham, Summers, Welsh & Spilman, is one who believes the ADA will have
a huge impact on employment law.

Mallamad points out that as much as 20 years of litigation has been predicted as a result of “vague language”
regarding the definition of “reasonable accommodation” by employers of the handicapped.

Since the ADA affects businesses with 15 or more employees, the measure has been strongly opposed by the nation’s small
businesses. Mallamad says he has received a number of calls from dozens of clients concerned about how the legislation, which
will be fully implemented in two years, will affect their business.

The Bingham, Summers attorney had been preparing information for clients long before the ADA was signed last week, he said.

He drew on the Indiana Civil Rights Act, which already prohibits discrimination in the private sector, and the Federal Rehabilitation
Act of 1973, which prohibits discrimination against handicapped employees by employers receiving federal funds, and followed
the ADA bill closely as it made its way through Congress.

Mallamad said the costs to private businesses will be high, both in providing accommodations for employees and in possible
litigation expenses.

EEOC to Enforce Legislation

The federal agency in charge of enforcing the ADA is the United States Equal Employment Opportunity Commission (EEOC). EEOC
Regional Attorney Laurie Young said last week there is no way to predict how much legal activity will result from the ADA,
but the EEOC has been preparing for its passage for some time.

In the coming year, the EEOC will issue regulations and develop materials and technical assistance for businesses.

Young added that she expects EEOC offices in Indianapolis and Louisville – 60 employees including 10 attorneys –
will have resources enhanced as a result of the ADA’s passage.

Like Mallamad, Young points out that the definition of reasonable accommodation by employers will be among the major sources
of controversy and subsequent filing of complaints with the EEOC office.

It will be a case-by-case determination of what “undue hardship” and “reasonabl accommodation” is,
Young said. “There’ll definitely be a period of defining parameters.”

“The law is clearly a milestone, opening up rights for a new class of people,” Young added.

ADA doesn’t have to be expensive

Another view is offered by Indianapolis attorney Greg Fehribach.

Fehribach, a handicapped person, concedes that the new legislation will have a big impact on employment law, but he said
last week he is hopeful that much of the expense to employers and the potential litigation can be avoided.

“The last thing we want to do is put this thing in court,” Fehribach said. “(Attorneys) need to tell employer
clients that it’s not as expensive as they’ve been led to believe.”

Fehribach points out that it will, in fact, be two years before the ADA is fully in effect.

“Just as we have a 60-day cool-off period in a divorce, we should use this two years as a cool-off period,” Fehribach

Fehribach said the new act shouldn’t be viewed as “something to get around.”

Fehribach said the key to avoiding unnecessary litigation will be to “strip away the disability” and see if an
employee is qualified to do the job.

Fehribach added that there is a need to be meticulous in finding out what the employers’ fears are and help the employers
prepare for handicapped job candidates.

Also, Fehribach said that many accommodations for the handicapped can be made simply with “two-by-fours and hardwood.
That will cost far less than actually litigating.”

Fehribach conceded that often employment discrimination problems will not be solved that easily.

“There will be blatant discrimination,” he said. “And those cases will get the big press.”

And he pointed out there will be cases where handicapped people harboring bitterness for their disability will think that
they are “owed a job because of 20 or 30 years of discrimination” and subsequently make bogus claims in an effort
to secure a job.

“It’s not meant to be an even-up call,” said Fehribach, using basketball parlance. “Just because
we made a bad call on one end, doesn’t mean you have to make a bad call on the other.”

“It will be 20 years of litigation if we lawyers let it be 20 years of litigation,” Fehribach added.

In regard to ADA disputes that do make it to court, Fehribach believes that there will be no summary judgments, noting that
ADA cases are “purely fact-sensitive.”

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