Issue of the Month

July 2003, Wisconsin Employers Are Successfully Meeting the Challenge of Complying with the Americans with Disabilities Act (ADA)

A recent American Bar Association (ABA) survey found that since 1998 employers in Wisconsin, Illinois and Indiana have prevailed in 98.3% of ADA cases. An interesting trend noted in the survey is the increase in the number of cases involving substance abuse and mental illness. There are a growing number of cases based on depression, schizophrenia, anxiety, stress, bipolar disorder, personality disorder, post-traumatic stress disorder, and obsessive compulsive disorder. Compliance with the law is one of the main reasons employers are winning their cases at this high rate.

The five primary factors outlined in the Survey explaining why employers have been able to successfully challenge claims under the ADA are:

1. The plaintiff did not meet the ADA's definition of disability - the employer was able to show that the individual did not have a physical or mental impairment that substantially limited a major life activity, a record of such an impairment, or being regarded as having such an impairment.
   
2. The employer proved that the individual had applied for or received other disability benefits, such as worker's compensation or short-term or long-term disability benefits, making the employee ineligible under the ADA.
   
3. The employer was able to demonstrate that the individual posed a "direct threat" to the health and safety of others.
   
4. The employer was able to confirm that the individual did not follow proper channels to report that he/she had a disability or did not request an accommodation.
   
5. The employer was able to establish that the request for an accommodation posed an "undue hardship" on the business.
   

The good news is that employers who invest time and resources to understand the ADA, who train supervisors and management on what the law requires and who engage in an "interactive" process with applicants and employees regarding accommodation are rewarded with favorable results when claims are filed. Successful employers should evaluate their wins for purposes of seeking sanctions, including all attorney's fees and costs, against a frivolous plaintiff and his/her counsel.

For more information regarding Krukowski & Costello's training programs and publications, please call (414) 423-1330 or e-mail Krukowski & Costello's educational services department.