New Law Could Spark Abuses

Did you have more than 15 employees for more than 20 weeks in the past year? If you answered “yes” then congratulations! You have won the grand prize from the folks that brought you the Crash of 2008!

With the ADA Restoration Act (ADARA, S. 1881, H.R. 3195) now any one of your employees can “configure” a disability nearly at will! You must be thrilled.

A newsletter sent by law firm Fisher & Phillips says:

“In perhaps the most sweeping change to the face of employment law in over 10 years, the recent passage of the ADA Amendments Act will mean a massive change for most of the country's employers.

“These changes, which go into effect on January 1, will not only have a tremendous impact on the defense of employment litigation claims, they will require almost all human resource professionals, managers, and business owners to adopt new policies and procedures in dealing with accommodation requests.”

Back Story

After the employment provisions of the Americans with Disabilities Act (ADA) went into effect in 1992, federal courts began to reject the majority of ADA claims brought before them.

Court rejections of ADA related litigation climaxed in a trilogy of decisions in 1999 (Sutton/Murphy/Kirkingburg) and a follow-up decision in 2002 (remember Toyota v. Williams?), the U.S. Supreme Court narrowed the playing field for disability bias plaintiffs.

A “demanding standard” was now required of the lower courts when determining whether a plaintiff was considered disabled enough to move an ADA lawsuit forward. The high courts had also overturned an EEOC regulation that had instructed employers to determine whether an employee was disabled without considering mitigating measures (this is critical as you will see in the new legislation). In short, the business interests pushing for such decisions after the passage of the ADA won the day, but with grave consequences projected into the present day as we will see…

Unintended Consequences

The original 1992 ADA tried to address real issues with access, accommodation and discrimination across nearly every institution in the United States. Its sweeping provisions and requirements forced nearly every business and organization to rethink their design and construction efforts to meet the stringent requirements of this costly but economically (perhaps even morally) viable approach to include a significant portion of our population.

It also had positive unintended consequences (when was the last time we saw that coming from our legislators?). The act's provisions to create greater physical access to those with disabilities also began to benefit the emerging baby boomer's need for easier ways to do nearly everything.

Boomers were/are getting older and in need of access to everything just as the disabled. That includes curb ramps on streets and to buildings, accessible interiors and ergonomics-movement and product design.

All of these things we take for granted now and notice when they are not available had their genesis in this legislation.

It was the “right” thing to do and benefitted huge portions of our population and added percentage points to our gross domestic product…in short it was ultimately a win, win, win for nearly everyone except slum lords.

When Otters Attack!

Fast forward to today. The new legislation is, from the looks of it, bad for dealerships. It will entice those employees not culturally connected to the dealership (read as nearly every good salesperson and service tech) to game the system.

The new legislation is meant to legally mandate accommodation to the truly disabled yet productive of our society. However many legal experts see this legislation as full of contradictions, where, based on just about any existing disorder or impairment any employee can force their employer to support this “configured” disability.

As the original ADA intended, accommodations were mandated ONLY for those disorders and impairments that are truly disabling, especially if other people — taxpayers, and independent business owners are going to foot the bill for those accommodations.

In short, this new legislation will turn back many of the cultural advances (e.g. disabled does not mean unproductive) made by those individuals with real disabilities.

Who will take their needs seriously when they're lumped in with so many others claiming disability status for conditions that are mildly problematic if not completely constructed?

At a recent conference, someone shared a story of an animal husbandry professional who was working with some otters (who, it seems, are really NOT cuddly).

One of the otters bit him a few times leaving him with a few punctures in his legs and hand.

He didn't lose a finger or a limb, but now the aquarium has a Worker's Compensation issue and will have a permanent accommodation issue when he returns to work.

If the aquarium decides not to accommodate the “configured” disability (i.e. can't clean or smell otter dung) it will have to re-task that person for the balance of his employment lifetime. If they don't, they can expect litigation.

The Point

Ask yourself how many of your service techs have bloodied knuckles, or have strained their wrists, knees and backs working hard to get revenue in the door?

When does this turn into a disability? With this legislation, these are the questions that will arise.

Half the population has been diagnosed with something — astigmatism, mild arthritis, insomnia, a sprained wrist, hypoglycemia, a touch of gout, etc. — the powers that be seem eager to have them all labeled as “disabled.”

First, most of them are not disabled; this represents a normal spectrum of human conditions.

To mandate accommodation, the recipients should be located outside the normal spectrum; such an approach could kill the economy's efficiencies by processing and accommodating disabilities because of costs and administration time.

Don't get me wrong, it is a good thing to make more opportunities available to those who have the relevant capabilities, even as they live with other challenging limitations.

But calling someone who is nearsighted “disabled” is a misguided if not a cynical attempt to promote the interests of trial attorneys.

When Dealers Become Disabled

In short, it is now easy to “configure” a disability. Dealers should now have the same expectation for ADA litigation and claims as they do for other discrimination claims (gender, race, religion, age, etc.); they should prevent it and prepare for it.

Attorney firms specializing in dealership legal issues say dealers should err on the side of caution when determining whether to engage in the interactive process associated with requests for accommodation.

Dealers can still defend a discrimination claim by showing a legitimate and non-discriminatory justification for termination. But dealers are now hobbled and can no longer count on being able to defeat such a claim before getting to that point.

“Hobbling” is an ancient form of control. The definition has a few meanings:

Dealers are getting hobbled by new rules and regulations across nearly every spectrum of their business. From the new Red Flags Rules to Adverse Action notifications on the F&I side to the soon to be mandated accommodations to meet the requirements of the ADA Restoration Act.

Like wheelchairs, hearing aids, etc, dealers need tools that address these emerging issues that help alleviate the challenges these regulations create for their operations.

There are compliance management systems with the content and automation technology to turn these hobbling legislative efforts into outsized gains in efficiency as well as providing the “good faith” legal protections needed to protect a dealer's checkbook from baseless claims, fines and litigation from the newly “configured” disabled.