RENEE KUHS
Compliance Attorney, HNI

Your chances of having an employment discrimination complaint filed against you are greater than ever.  Last year the EEOC received more employment discrimination complaints than in any other year in its 45-year history. The EEOC investigated approximately 100,000 complaints that generated $400 million in payments from employers. The Obama Administration has also provided additional funding to the EEOC to increase the number of investigators. 

In September 2008, the ADA Amendments Act (ADAAA) broadened the definition of disability — making it easier for more individuals to qualify for protection under the ADA.  The EEOC recently released regulations to reflect the changes made by the ADAAA.  These regulations go into effect on May 24, 2011. 

Under the ADAAA, a disability is broadly construed to mean a physical or mental impairment that substantially limits one or more major life activities, a record (past history) of such an impairment, or being regarded as having a disability.  The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.  Whether a limitation is substantial is determined without regard to any mitigating measures (except contacts and glasses). In short, the ability to qualify for protection under the ADAAA is much easier.

If an employee is considered disabled under the ADAAA, you must engage in an interactive process with the employee to determine if a reasonable accommodation will allow the employee to perform the essential assigned duties of his/her position.  However, you are not required to make an accommodation that you determine is an undue hardship on your organization.

Best practices for compliance with ADAAA requirements include:

• Document, document, document,
• Fully participate in the interactive process with the employee,
• Train your supervisors, and
• Review your policies and procedures to ensure compliance with the new ADAAA requirements.

Employers are facing heightened scrutiny of their employment practices.  Time invested in responding to a complaint and expenses for legal fees takes away from running your business.  Keeping up with new legislation is essential to preventing or mitigating such complaints.