Image by Gerd Altmann from Pixabay
Disabled persons have had both valid and invalid complaints about the workplace. Such complaints primarily concern your facilities and human resources program.
Unfortunately, published reports indicate businesspeople have had to contend with disingenuous claims by some lawyers with repeat clients.
Such lawyers are making a living for dubious reasons from Title III the Americans with Disabilities Act (Title III of the ADA).
It is complex legislation regarding public accommodations and commercial facilities. So it isn’t easy-to-understand.
Use any term you want to describe the insincere lawsuits – from “frivolous” to “drive-by.” They aren’t necessarily filed to help disabled people.
Many have conducted furtive incursions into businesses.
Just as many businesses have used mystery shoppers to ascertain the quality of their cust0mer-service employees, such attorneys have sent hired guns to inspect business locations looking for possible ADA violations and insignificant technical issues.
So it’s important for businesses to take precautions in their workplaces – both in their facilities and in their approach to human resources.
This article is designed to open your eyes to possible dangers. Admittedly, as a management consultant I’m not an attorney, therefore I suggest you seek appropriate legal counsel.
Meantime, I’d consider these Title III precautions:
1. Hire an architect who is an expert in Title III. Follow through on the architect’s recommendations.
2. If you lease office or commercial space, review your lease for possible liability. In the event your facilities are vulnerable to ADA claims, you have to make certain you’re not sued along with your landlord.
3. Assess your strategy if you feel you’ve been hit with a frivolous lawsuit. My philosophy is that principle matters. Perhaps you might not want to cave to disingenuous claims.
For dubious plaintiff complaints to succeed, their lawyers must prove a few things:
— There must be proof a violation exists.
— The disabled applicants have actually been in your workplace and that they intend to return to the site of the alleged ADA violation, or that they will most certainly encounter discrimination when they do.
4. Be careful to save money. For instance, deposing witnesses in the discovery process can result in expensive attorney fees from both sides.
You also risk having to pay opposing lawyer fees even if you lose on a merely minor point.
5. Research the opposing attorney. You might learn the attorney has a pattern of filing frivolous cases. Sometimes, they’re negligent in taking shortcuts. If so, consider ways to make it too expensive for the lawyer to continue the practice of victimizing you and other business owners.
Precautions in human resources:
- Review your job descriptions. Make certain they’re accurate. spell out essential functions, and are otherwise up-to-date and lawful.
- When recruiting, conduct interviews that focus on the candidates’ abilities to succeed in the essential job functions.
- Train your staff members – who are involved in the recruiting and hiring processes – regarding all ADA requirements.
- Provide continuous training on how to make medical inquiries.
- Train your employees on what to do – in your obligations as an employer – if an employee volunteers personal disability information.
- Create a paper trail – diligently document the reasons if you make an adverse employment decision regarding a disabled candidate.
- Take the high moral road, but if you can reasonably justify denying reasonable accommodation, carefully document the reasons.
From the Coach’s Corner, here are relevant tips:
Why Companies Fall into the Management Lawsuit Trap — Small and many big companies are ripe for EEOC complaints. The majority of lawsuits targeting management usually stem from a half dozen poor practices. You’ll get into trouble using these six bad practices.
10 Tips on Responding to EEOC Complaints — Despite all the court cases, warnings and complaints filed at the Equal Employment Opportunity Commission, a study shows big companies are guilty of favoritism in their promotion practices. It’s true that certain people are identified and groomed for promotion.
Diversity: Political Correctness or the Right Thing for Your Business? — Whenever you hire a new employee, you surely want a return on your investment of time, energy and money in your recruitment and hiring process. But in affirmative action plans you face obstacles — primarily, from your culture. Here’s what to do.
HR Tips to Avoid Legal Hassles with Immigration and Customs Enforcement — This includes strategies on how to respond to an ICE audit. Employers have been having problems with the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE). ICE served 3,004 notices of inspection (NOI) in fiscal 2012.
HR Tips — So Your Recruiting Enhances Diversity, Not Sexism — Can we agree that a diverse workplace leads to innovation, problem-solving and enhanced enterprise communication? And, as you know, inequality is unlawful. Why then are there so many companies that unknowingly, perhaps, promote sexism? That’s right. An academic study shows that many job postings are gender biased.
“It was ability that mattered, not disability, which is a word I’m not crazy about using.”
-Marlee Matlin
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