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This blog is Part II and a continuation of our new series in which we provide you, as the employer, with a checklist of issues that you or your defense counsel may consider when defending against a disability discrimination claim brought forth under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). In Part I, we covered “Application of the ADA,” as the first item on the checklist, and elements of consideration under it, including covered employers, covered employees, who a qualified person is, and what the meaning of essential functions of an employee’s job are.

In order to move forward this discussion, we shall now hammer on the checklist of issues to consider when it comes to the “Statute of Limitations for ADA Claims” and “How to Defend against Disparate Treatment Claims under the ADA” in Part II of the series.

ADA Claims’ Statute of Limitations

When looking into this area, you or your defense counsel may consider evaluating compliance with ADA Claim’s statute of limitations when defending against a disability discrimination claim. The checklist of issues you may assess include, but no limited to the following:

Confirm whether the employee has filed a timely charge with the EOCC (Equal Employment Opportunity Commission) – here, it would be critical to evaluate whether the employee has, by filing a charge, exhausted the required administrative remedies:

  • Within 180 calendar days since the day of occurrence of the discrimination incident -or-
  • Within 300 calendar days since the day of occurrence of the discrimination incident, provided that an analogous law to the ADA has been enforced by a local or state agency, as provided under 42 U.S.C § 2000e-5(e)(1).

Ascertaining that the employee filed a timely lawsuit – as provided for under 42 U.S.C § 2000e-5(f)(1), you may want to evaluate whether the lawsuit was filed within 90 days of receipt of letter from the EOCC giving the right to sue, which is sent after investigations have been conducted and concluded by the EOCC.

How to Defend against Disparate Treatment Claims under the ADA

Further, you may want to consider a number of issues when defending against a “Disparate Treatment” claim brought under the ADA. Because this law prohibits an employer from treating an applicant or employee differently or discriminatorily based on their disability, it is crucial to assess how the employee who brought the claim has been treated concerning their disability. In that regard, the checklist of issues you may need to consider include, but not limited to:

Evaluate whether the employee has shown a prima facie case of disparate treatment – in this case, you could evaluate whether an employee has met all the requisites of a prima facie discrimination case. An employee must satisfy the following elements to state a prima facie case:

  • The person has a disability in line with the ADA’s definition.
  • The employer is covered by the ADA.
  • The person could perform the essential functions of the employer’s job, with or without reasonable accommodation.
  • The person suffered an adverse employment action that materially affects the conditions and terms of their employment. Examples of adverse actions may include denials of benefits, denials of promotions, denials of contracts, denials of job offers, and terminations among other things.

Devise a permissible, non-discriminatory reason as to why the employee suffered the adverse action – assuming that the employee has met all the requisites of a prima facie discrimination case, then you should come up with a permissible, non-discriminatory reason as to why the employee suffered the adverse action. Although you do not need to prove it, you must, as the employer, produce a legit, but non-discriminative, reason why the employee suffered the adverse action.

Defend against the assertion of the employee that the employers legitimate reason why the former suffered the adverse action is a pretext for discrimination – on their part, the employee will try to establish that the permissible, non-discriminatory reason that you produced as the employer is a pretext for discrimination. In order to support this claim, the employee may attempt to assert that:

  • Similarly situated employees received different treatment.
  • A policy was inconsistently enforced by the employer.
  • The reasons given by the employer for the adverse action is inconsistent.

To contest these claims, you, as the employer, you will need to gather evidence in support of your position that the reason why the employee suffered the adverse action was nondiscriminatory and legitimate. Such evidence may include, but not limited to disciplinary records, performance reviews, and related documents.

Evaluate potential disparate treatment defenses – finally, you many need to evaluate the applicability of the following defenses to the employee’s disparate treatment claims:

  • Permitted employment practices – as provided for under 42 U.S.C. § 2000e-2(h), if the employer’s terms & conditions of employment or compensation are in pursuant to a bona fide of (1) productivity system, (2) merit system, and (3) seniority system, then the employer has a defense to a discrimination claim brought under the ADA.
  • Transitory and minor impairment (under the “regarded as” prong) – as provided for under 29 C.F.R. § 1630.15(f), the employer should be able to show, objectively, that the impairment is both minor and objectively to have a defense to a discrimination claim brought under the ADA.
  • Failure to show but for causation – it is unclear whether it must be established by the employee, but for the employee’s disability, the adverse action against the employee would not have been taken by the employer.

In Part III of this series, we shall hammer on checklist 4, “Defending against Disparate Impact Claims under the ADA.” As usual, stay tuned for more guidance and counsel and always be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.