04/25/97 FIVE DISABILITY DISCRIMINATION LESSONS

FIVE DISABILITY DISCRIMINATION LESSONS

April 25, 1997

Grace Hazeldine weighed 150 pounds when she was hired by Beverage Media, a small, family-owned magazine publisher. She weighed between 295 and 310 pounds when she was discharged 12 years later. If her weight played any role in her termination, did it violate the landmark 1990 Americans with Disabilities Act (ADA)? This is the kind of issue increasingly being thrown at small employers. And, as the companies are finding out, such issues are not easily resolved.
The Hazeldine case, for example, is more complicated than it seems. Certain conditions, including obesity, can qualify a person as "disabled," a designation that grants special legal protections. The judge ruled that because Hazeldine could still work, her obesity was not a disability under federal law. He then found, however, that under broader state rules, "morbid obesity" was itself a disability. So the case will now go to trial, where a jury will determine what role the alleged discrimination played in her termination. The jury will also decide whether the company's president and owner was personally liable for any violations that may have occurred.
Of course, since the jury has yet to hear the case, nothing has been proven. But the impact of such a case on a small business can be economically and emotionally destructive, even if the company ultimately wins. To avoid being sued for disability discrimination -- and to create a healthy work environment -- small companies should keep in mind the following lessons:
Lesson 1: You're not as small as you think you are. Though some laws do exempt the smallest companies from discrimination suits, the rules on who can be sued are still very broad. The federal ADA applies to companies with 15 or more employees, with an employee defined as a person who is on the payroll each day in a given week, regardless of whether he or she is physically present at the work site or office.
Beverage Media was found to face trial not under the ADA, but under New York state law, which says a company needs just four employees to qualify for discrimination suits. Almost all states have similar statutes. In the District of Columbia, for example, the law applies to employers with just one or more worker. The standard is six employees in Indiana. Clearly, a startup company with growth plans should expect to quickly meet these employee minimums.
Lesson 2: Look in the mirror. Under recent interpretations of the federal rules, supervisors and managers cannot be individually sued for violating the ADA. That's not the case in many states, where individuals can be held liable. Small-business owners should be aware, then, of the extent of their personal responsibility. Some cases can even survive past a company's bankruptcy.
Lesson 3: Learn the definition of disability. As Beverage Media found out, obesity can be classified as a disability. Indeed, small businesses need to know just how legal disabilities are practically defined. Generally, the ADA applies when a person has either a physical or mental impairment that substantially limits one or more major life activities such as hearing, walking, seeing, or learning; a record of such an impairment; or is regarded as having such an impairment. Indeed, a manager has violated the ADA if she wrongly perceives that an employee is suffering from an illness (AIDS, for example) and discriminates because of it.
A growing percentage of discrimination charges are now based on mental illness, which in many cases, qualifies as a disability under the ADA. With one in three adults estimated to have had a mental disorder in the past year, employers should be particularly aware of their impact. A clinical diagnosis of depression, for instance, will very likely qualify as a disability.
Lesson 4: Know about "reasonable accommodation" and "undue hardship." What do those terms mean, exactly? Can, for example, an employee with back trouble be "reasonably accommodated" with a new chair or back support? A court would probably say yes. But should a company have to move to a new building to meet the needs of one person? It's not as likely. That would be one example of "undue hardship" placed on a company that courts use to decide if the companies receive a hardship exemption. But there are several other criteria -- such as a company's ability to restructure a job or offer part-time work. The government funds the Job Accommodation Network (1 800-526-7234) to help businesses provide low-cost accommodations for disabled employees. JAN estimates that half of all accommodations cost less than $200.
Lesson 5: Do the right thing. The fifth lesson is by far the most important. It deals with the power of using 44 million disabled American workers -- all of whom are an important part of building a productive work force. Opening the workplace to them is required by law, and it's good business. But most important: It's the right thing to do.
Mathiason is a senior shareholder in Littler, Mendelson, Fastiff, Tichy & Mathiason, the largest firm in the U.S. limiting its practice to employment/labor law. He has edited and authored 16 books and more than 50 articles in these areas. Much of his practice focuses on disability discrimination issues. He is a graduate of Stanford Law School and Northwestern University.
Susan A. P. Woodhouse is an associate with Littler, Mendelson, Fastiff, Tichy & Mathiason in San Francisco. She is a 1996 graduate of Santa Clara University School of Law where she was Technical Editor of the Santa Clara Law Review. She received her Bachelor of Arts Degree with honors from the University of California at Santa Barbara.
By Garry Mathiason and Susan A.P. Woodhouse in San Francisco
Edited by Dennis Berman