My Florida Business Has Received A Letter (Or Is Being Sued) For Violation Of The Americans With Disabilities Act (ADA), Do I Need A Lawyer To Defend Against This Lawsuit?

Posted on Jul 30, 2018 by Trembly Law

In This Article:

  • What is the ADA and Who Does It Apply To
  • ADA Law Titles (aka Provisions)
  • ADA Myths and Facts
  • Employees’ Guide to Reasonable Accommodations in Compliance with the Americans with Disabilities Act (ADA)
  • Employee’s Rights as an Individual With a Disability
  • Employers’ Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA)
  • Employers’ Responsibilities
  • Hiring People with Disabilities
  • What You Should do if Your Florida Business is Dealing With an ADA Issue or Complaint

I. What is the ADA and Who Does It Apply To

The Americans with Disabilities Act (ADA) is a civil rights law which prohibits discrimination against people with disabilities. ADA eliminates the barriers to the participation of people with disabilities in several areas of living and working in America including employment, public accommodations, transportation, and access to national and local government programs and services.

America’s promise of equal access to opportunity for every citizen was the foundation of ADA. This federal law is also beneficial for businesses because being inclusive of people with disabilities gives them a competitive edge.

ADA’s description of disabilities includes several mental and physical medical conditions. A condition does not have to be severe or permanent to be considered a disability. Conditions concluded as disabilities are as follows:

  • deafness
  • blindness
  • partially or completely missing limbs or mobility impairment
  • intellectual incapacity
  • autism
  • cerebral palsy
  • cancer
  • diabetes
  • Human Immunodeficiency Virus (HIV) infection
  • epilepsy
  • muscular dystrophy
  • multiple sclerosis
  • major depressive disorder
  • obsessive-compulsive disorder
  • bipolar disorder
  • post-traumatic stress disorder (PTSD)
  • schizophrenia

Titles of the Americans with Disabilities Act (ADA)

Title I: Employment

Title I provides equal employment opportunity for individuals with disabilities. This title requires employers to provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation can be any modifications or adjustments that enable an applicant to participate in the application process. In a similar manner, a role or workplace environment should enable an employee with a disability to perform essential job functions that meet the normal performance requirements.

Title II: State and Local Entities

Title II prohibits disability discrimination in all programs, activities, and services of state and local entities. These public entities must comply with Title II regulations which cover access to all programs and services they offer. These accesses include physical access as stated under the ADA Standards for Accessible Design and programmatic access restricted by discriminatory procedures or policies.

This title also applies to public transportations including commuter and intercity rail. It also covers local and public housing, housing assistance, and referrals. Title II demands the provision of paratransit services by public entities providing fixed route services. It sets the minimum requirements for space layout in order to accommodate wheelchair securement on public transport. Moreover, it answers to the need for effective communication with individuals suffering from hearing, visual and speech impairment.

Title III: Public Accommodations

Title III prohibits discrimination on the basis of disability in regards to the equal and full enjoyment of any private places of public accommodation. These public accommodations may include hotels and inns, movie theaters, sports stadiums, golf courses, private schools and day care centers, restaurants, retail merchants, care providers and places of public displays.

Title III sets the minimum standards for accessibility for any construction, modification or alterations of facilities. It directs businesses to make reasonable modifications on how they usually do things when serving people with disabilities. Title III also requires effective communication with customers who are hearing, speech and vision impaired.

Title IV: Telecommunications

Regulated and enforced by the Federal Communication Commission, Title IV of the ADA requires telecommunications companies to provide a nationwide system ensuring functionally equivalent services for individuals with hearing and speech disabilities. It also requires closed captioning of federally funded public service announcements and notices.

Title V: Miscellaneous Provisions

Aside from providing a list of conditions that are not considered as disabilities, this final title contains several technical provisions. Such provisions include its relationship to other laws and state immunity as well as its impact on insurance providers and benefits. It also includes a prohibition against retaliation and coercion. This prohibition applies to any individual or entity who wishes to prevent an individual from exercising their rights or retaliating against them for having exercised their rights. Any form of retaliation such as threats, intimidation, or interference is prohibited if the intent is to interfere.

II. The History of the Americans with Disabilities Act (ADA)

The ADA did not begin at the signing ceremony on July 26, 1990, nor at its first introduction in Congress in 1988. The story of ADA began a long time ago in cities and towns across the United States when people with disabilities began denouncing societal barriers that isolated them from their communities, and when parents of children with disabilities began condemning their children’s exclusion and segregation.

Historically, society has frequently misunderstood, overreacted to, or overlooked differences in individual mental and physical abilities. In fact, it is not uncommon to find recorded instances of ridicule, imprisonment, torture, and even execution of people with disabilities.

In colonial times, caring for individuals born with disabilities or those who were disabled later through illness, accident, injury, or other causes was the family’s responsibility. However, because of fear, shame, and lack of understanding, families hid or disowned disabled family members or, worse, allowed them to die. Those whose families were unable or unwilling to support them eventually ended up in care facilities. Some of these care providers were later found to be locking up individuals with disabilities in attics to starve or freeze to death after collecting fees. Public concern over such practices eventually led to a change.

The Formation Of The ADA

The first form of ADA began with the establishment of local groups advocating for the rights of individuals with disabilities. It began with the creation of an independent living movement which challenged people’s belief regarding the need for people with disabilities to be institutionalized. This movement fought for and provided services for individuals with disabilities to live comfortably in the community, coexisting with people without disabilities.

Thousands of people who made up the disability rights movement are responsible for the formation of the ADA. These individuals tirelessly licked envelopes, sent out alerts, organized and attended protests, drafted legislation, testified, negotiated, filed lawsuits, and even got arrested. They experienced all these for a cause they believed in. So, it is just right to conclude that without the works of so many, there would be no ADA today.

Over the last couple of decades, the disability rights movement has made the injustices faced by people with disabilities known and visible to the American public and to politicians. Just like the African-Americans who sat in at segregated lunch counters and refused to move to the back of the bus, people with disabilities sat in federal buildings, obstructed the movement of inaccessible buses, and marched through the streets to protest injustice. Influenced by the goals, rhetoric, and tactics of the civil rights movement, the disability rights movement also sought justice in the courts and in the halls of Congress.

A profound and historic shift in disability public policy occurred in 1973 with the passage of Section 504 of the 1973 Rehabilitation Act. Section 504 was modeled after previous laws which banned race, ethnic origin, and sex-based discrimination by federal fund recipients. Section 504 bans discrimination on the basis of disability.

Before, the problems faced by people with disabilities, like unemployment and lack of education, were thought to be inevitable consequences of the physical or mental limitations imposed by their disability. But for the first time, the exclusion and segregation of people with disabilities was viewed as discrimination and people with disabilities were viewed as a minority group. Congress recognized that the inferior social and economic status of people with disabilities was not a consequence of the disability itself, but instead was a result of societal barriers and prejudices.

If the ADA means anything, it is that individuals with disabilities will no longer be out of sight or out of mind. The ADA is based on a basic presumption that people with disabilities want to work and are capable of working, want to be members of their communities and are capable of being members of their communities, and that exclusion and segregation cannot be tolerated. Accommodating a person with a disability is no longer a matter of charity but instead a basic issue of civil rights.

III. Americans with Disabilities Act (ADA) Myths and Facts

Since being inclusive of people with disabilities gives businesses a competitive edge, there are some common myths associated with how the ADA affects employers. We’ve listed some of these common myths and researched facts to debunk them.

Myth 1: Employers are forced to hire under-qualified individuals with disabilities.

Fact: Applicants with disabilities who are under-qualified are not entitled to claim ADA-covered discrimination. According to the ADA, an individual with disabilities must be qualified to be protected from discrimination during the hiring process. Being qualified means the applicant must meet all requirements for the job and can perform essential functions with or without reasonable accommodations.

Myth 2: With the ADA, job applicants with disabilities have an advantage over other applicants.

Fact: The ADA does not, in any way, give hiring preferences to persons with disabilities.

Myth 3: If an individual with a disability is among the qualified applicants for a job, the ADA requires the employer to hire the person with a disability.

Fact: An employer can choose to hire the most qualified applicant as long as the decision is not based on disability. For example, if two candidates are competing for the same position and one of them has a disability, the employer may hire the most suitable candidate regardless of their disability.

Myth 4: The ADA requires employers to give people with disabilities special privileges which are known as accommodations.

Fact: Reasonable accommodations ensure that qualified individuals with disabilities have rights to equal employment (Title I). A reasonable accommodation is a modification in a system to accommodate a system suited for individuals with a disability. These modifications vary and can be employment-related which allow an individual with a disability to apply for a job, perform a particular job’s essential function, and enjoy equal employment opportunities and benefits available to other individuals.

Myth 5: It can be costly to grant accommodations for individuals with disabilities.

Fact: While there are workers with disabilities who need accommodations, the majority of them do not require such to perform their jobs. For those few who do, the usual cost is minimal. A study conducted by the Job Accommodation Network (JAN) shows that the benefits employers receive by providing workplace accommodations far outweigh the costs. In fact, a high percentage (59%) of accommodations cost little to none, while the rest typically cost around $500. On top of this, employers are given tax incentives to cover the costs of required accommodations and modifications to make their businesses accessible to people with disabilities.

Myth 6: Small businesses are forced to shoulder financial burdens to make accommodations for individuals with disabilities.

Fact: Businesses with no more than 15 employees are not covered by ADA’s employment provisions. That is why, small businesses do not have to provide a reasonable accommodation if it causes an “undue hardship,” which means the accommodation requires significant difficulty or expense.

Myth 7: ADA lawsuits keep flooding the courts.

Fact: Since the Equal Employment Opportunity Commission (EEOC) meticulously investigates each case and offers several alternatives to litigation as a way to resolve a potential problem, the number of ADA employment-related disputes are only a tiny percentage of the millions of employers all over the U.S.

Myth 8: The ADA protects troublemakers or employees with difficult or rude personalities.

Fact: An improper behavior does not constitute a disability in any way and having a disability is in no way an excuse for not performing job assignments and adhering to appropriate conduct required of all employees.

Myth 9: People with vague complaints and diagnoses misused the ADA provisions.

Fact: A complaint is dismissed if an individual does not have a condition that conforms to the definition of a disability as stated under the ADA. While such cases filed by people with false or minor conditions may get considerable public attention, in reality, these complaints are usually dismissed.

Myth 10: According to the ADA provisions, an employer cannot fire an employee with a disability.

Fact: Employers have the prerogative to fire workers with disabilities under the following conditions:

  • The termination is in no way related to the employee’s disability.
  • The employee does not have the requirements for the job which may include performance or production standards, regardless of the presence of a reasonable accommodation.
  • An employee poses a direct threat to the health of other employees or safety in the workplace because of their disability.

IV. Employees’ Guide to Reasonable Accommodations in Compliance with the Americans with Disabilities Act (ADA)

Under the Americans with Disabilities Act (ADA), employees can request and negotiate reasonable accommodations at any time during the application process or during employment. Employees are entitled to request an accommodation despite not asking for one during their job application or after getting hired. Employees should request an accommodation if there are obstructions in the workplace that restrain them from performing their tasks, competing for a job, or utilizing employment benefits.

An employee must meet these conditions to be entitled to an accommodation:

  • They must work for an employer with 15 employees or more.
  • Must be a person with a disability as defined under the ADA.
  • Must need the accommodation because of their disability.

In addition, the employer should be aware of the employee’s disability for them to provide the necessary accommodations.

What accommodations can an employee request?

An accommodation is any adjustment or modification in the workplace or on how things are usually done. Such accommodations ensure equal employment opportunities for all employees regardless if they have a disability. Some accommodations that are deemed “reasonable” are as follows:

  • Job restructuring
  • Making existing facilities accessible
  • Offering part-time or modified work schedules, and work-from-home options
  • Acquiring or modifying equipment
  • Changing tests, training materials, or policies
  • Providing qualified readers or interpreters
  • Reassignment to a vacant position
  • Granting medical leave

However, employees should keep in mind that the accommodation they want to request should not cause any “undue hardship” to their employer. Undue hardship not only refers to financial difficulties but also to those reasonable accommodations that may alter the business’ nature or operations.

How long does it take for an employer to respond to an accommodation request?

While there is no specific amount of time for employers to respond to an accommodation request, they must respond as quickly as possible. Unnecessary delays in responding and enforcing an accommodation will result in a violation of the ADA.

What if an employer denies an accommodation request?

If an employer denies the accommodation request, an employee may try to find out why it has been denied to be able to know the best course of action. For example, if the employer denied the request due to lack of supporting medical information that the employee has a disability, then the employee can provide additional information to support the claim. If the employee does not think that the reason for denial is valid or if the employer does not want to tell the reason why the request was denied, then the employee can make an appeal by filing a grievance in their union or by filing a complaint with the EEOC or state enforcing agency.

Can an employee request another accommodation in the future?

Providing reasonable accommodations is an ongoing duty so an employee can ask for more than one accommodation when necessary. However, an employer has the right to consider every request on a case-by-case basis.

What can an employee do if an employer retaliates against them for requesting an accommodation?

Individuals who deny unlawful employment discrimination, those who participate in employment discrimination proceedings, and those who assert their rights under the laws are protected against retaliation. Therefore, if their employer retaliates, an employee should report to someone in a higher position within the company or contact the EEOC immediately.

Read here for more examples of how disability discrimination can manifest in the workplace.

V. Employee’s Rights as an Individual With a Disability

Title I of the ADA and the Rehabilitation Act of 1973 protect individuals with disabilities from employment discrimination. ADA coverage depends on a business’ size. Employers with 15 or more employees are covered. This cover applies not only to employment agencies and labor organizations but also to state and local governments. Similarly, the Rehabilitation Act applies to federal employees. It prohibits discrimination on the basis of disability in federal jobs, programs run by federal agencies, programs that receive federal financial assistance, and also in the employment practices of federal contractors.

Additionally, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) enforces Section 503 of the Rehabilitation Act which applies to federal contractors. Section 503 prohibits employment discrimination based on disability and also requires affirmative action in the hiring, placement, and advancement of people with disabilities by federal contractors and subcontractors. This nondiscrimination and affirmative action requirements apply to all government contractors with contracts or subcontracts in excess of $10,000 for the purchase, sale, or use of personal property or non-personal services.

OFCCP also enforces the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). It prohibits employment discrimination against certain categories of veterans by federal contractors. This law covers some veterans with disabilities. If a covered disabled veteran believes they have been discriminated against by a federal contractor or subcontractor, they may file a complaint with OFCCP.

Furthermore, the DOL’s Civil Rights Center (CRC) enforces the employment-related provisions of Section 504 of the Rehabilitation Act. This law prohibits recipients of federal financial assistance from discriminating against qualified individuals with disabilities in employment and in their programs and activities. CRC also enforces Title II of the ADA as it applies to the workforce and labor-related practices of state and local governments and other public entities. Additionally, CRC enforces the Workforce Innovation and Opportunity Act (WIOA) Section 188 Nondiscrimination and Equal Opportunity Regulations, which prohibit disability-based discrimination by programs and activities that are offered as part of the public workforce development service delivery system.

VI. Employers’ Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA)

One of the requirements of Title I is the employer’s obligation to provide reasonable accommodation for employees with disabilities. This section provides information on what policies and procedures to use, how to recognize and handle accommodation requests, how to determine effective accommodations, and what types of accommodations are considered reasonable.

A. Policies and Procedures

While employers don’t have specific policies and procedures to follow to accommodate employees with disabilities, they may want to draft formal policies and procedures for a number of reasons:

  1. If employee-handling personnel including supervisors, managers, and HR staff have formal policies and procedures as their guide, handling accommodation requests can be done properly and consistently.
  2. A formal policy shared with employees helps them manage their expectations if they request an accommodation.
  3. Formal procedures assist employers in documenting their efforts to comply with the ADA.

B. Accommodation Requests

The guidelines for requesting accommodation are quite vague. According to the EEOC, individuals with a disability can request an accommodation using plain English and don’t have to mention ADA or use the phrase “reasonable accommodation.” Therefore, employers should carefully consider whether a request is under the ADA.

Additionally, employers may want to assign someone to handle and process accommodation requests and train all positions that involve supervision to consult a designated person when they receive an accommodation request. This person is responsible for responding to the receipt of an accommodation request even if the response is a simple explanation of the company’s accommodation process and referring the employee to the appropriate person to handle the request.

In the event of an accommodation request, involved parties should engage in an informal process to clarify what is needed and identify the appropriate reasonable accommodation. The employer may question the involved individual with relevant questions that will help them make an informed decision regarding the request.

The ADA limits how much an employer can inquire in response to an accommodation request. If a disability or the need for accommodation is not obvious, employers can ask for medical documentation to prove the ADA disability claim, to show that there is a need for the requested accommodation, and to work out the best possible accommodation options. While the ADA limits the scope of medical requests, specific forms for requesting medical information are not included.

C. Determining Effective Accommodations

In order to determine effective accommodations, employers should consult with the involved employee to clarify their needs and identify the most convenient reasonable accommodation. Most of the time, the employee who requested the accommodation is the best resource for information. However, there are times when the employee does not have all the necessary information, or the employer wants to explore other options. In this case, the employer can request medical information from the employee’s health care provider.

Identifying the root problem is the first step to determine the most effective accommodation solution to enforce. The employer needs to pinpoint the specific symptoms and limitations which prevent the employee from performing job tasks, accessing the workplace, or securing equal employment opportunities.

Reasonable accommodation does not include removal of essential job functions, new job creation, and provision of personal needs items. While such accommodations are not required, employers have the alternative to provide them without being penalized. However, this initiative should be done in a non-discriminatory manner.

D. Accommodation Issues

  1. Work-Site Accessibility

    Under Title I, there is no need to modify existing facilities if a business does not have an employee with a particular disability in need of an accommodation. However, private employers occupying commercial facilities or operating in places of public accommodation must conform to accessibility requirements as stated under Title III and Title II when modifying existing facilities or undertaking new construction.

    Employers must provide an emergency evacuation plan for all employees, including employees with disabilities. In the absence of such a plan, the employer has to consider accommodations on a case-by-case basis to accommodate an employee with a disability for emergency evacuation. Similarly, an employer is required to provide parking as an accommodation unless doing so poses an undue hardship to the employer. However, providing transportation as an accommodation is not a requirement unless an employer’s work schedule policy creates a barrier for an employee whose disability interferes with their ability to commute to work.

  2. Job Restructuring

    An employer does not have to restructure essential job functions as a reasonable accommodation unless they wish to do so. According to the EEOC, job restructuring means:

    • Restructuring a position by redistributing marginal tasks that an individual has difficulty performing because of a disability
    • Providing modified work schedules including part-time work
    • Reassigning a non-occupationally injured employee with a disability to an equivalent existing vacancy for which they are qualified

  3. Modified Work Schedules and Leave

    A modified schedule may involve the following:

    • Adjustment on arrival or departure times
    • Inclusion of periodic breaks
    • Change when certain functions are performed
    • Possibility of using accrued paid leave
    • Additional unpaid leave arrangements

    Even if an employer does not provide modified or part-time schedules for other employees, they must provide such schedules for people with disabilities as reasonable accommodations. However, it’s unnecessary to change existing full-time jobs to part-time jobs as a means of accommodation.

  4. Modified Workplace Policies

    Modifying workplace policies is also a reasonable accommodation when it is needed to cater to an individual’s disability-related limitations. However, such modifications are only required for an employee with a disability so the employer may continue to apply their original policy to other employees. Modifying workplace policies include changes in attendance policy, conduct rules, dress codes or hygiene requirements, and work-at-home options.

  5. Equipment and Services

    Employers are not required to provide personal-use items such as hearing aids, eyeglasses, and medication. However, if the item is a work necessity and is considered an accommodation, then the employer would have to shoulder the cost unless doing so would mean an undue hardship. Although employers are not required to provide personal need items, they should allow these items in the workplace as a form of reasonable accommodation.

    Additionally, reasonable accommodation may include personal assistance services in the form of work-related assistance such as readers, interpreters, page turners, travel attendants, and help with lifting or reaching. Since reasonable accommodation does not require employers to provide personal need items or services, it does not provide personal attendant care.

VII. Employers’ Responsibilities

There are several laws that employers need to comply with surrounding individuals with disabilities within the workplace. One of these laws is Title I of the ADA. This provision prohibits employers from discriminating against individuals with disabilities. Title I protects individuals with disabilities in several areas including job application procedures, hiring, termination, advancement, compensation, and job training. Additionally, it denounces the unlawful act of retaliating against someone for opposing discriminating employment practices or for filing an ADA discrimination charge.

Moreover, Title I contains non-discrimination features including the condition to provide reasonable accommodations for both applicants and employees with disabilities. Such accommodations include readers or sign language interpreters as well as written materials in accessible formats such as Braille or audiotapes. Though the U.S. Department of Labor does not enforce the ADA, it still provides valuable information and resources employers can use to identify their responsibilities, particularly in providing accommodations.

Another law that protects the employment rights of individuals with disabilities is Section 503 of the Rehabilitation Act of 1973. Apart from prohibiting employment discrimination based on disability, Section 503 also requires affirmative action by federal contractors or subcontractors in the hiring, placement, and advancement of people with disabilities.

Employers should also be aware of the Department of Labor’s Civil Rights Center (CRC) which enforces employment-related provisions under Section 504 of the Rehabilitation Act. Section 504 prohibits the exclusion of qualified individuals with disabilities from participating in any federal programs and activities. In addition, CRC enforces a provision which prohibits disability-based discrimination by programs and activities included in the public workforce development service delivery system.

VIII. Hiring People with Disabilities

The Office of Disability Employment Policy (ODEP) of the United States Department of Labor supports a number of initiatives that aim to help employers who are thinking of hiring individuals with disabilities. These initiatives include:

  • Employer Assistance and Resource Network on Disability Inclusion (EARN)

    This is a free, nationwide service with the purpose of educating employers about effective strategies in several areas including recruiting, hiring, retaining, and advancing individuals with disabilities. In addition, EARN maintains a list of job posting websites specifically geared toward job seekers with disabilities as well as a collection of success stories about employers who have made a commitment to disability inclusion.

  • Workforce Recruitment Program for College Students with Disabilities (WRP)

    This free resource connects federal agencies and private businesses with qualified job candidates for temporary or permanent positions in several industries. Applicants who use this free resource are highly motivated postsecondary students and recent graduates with disabilities who are eager to prove their abilities in the workforce.

  • Job Accommodation Network (JAN)

    Provides free, expert advice on workplace accommodations that may be necessary to assist qualified individuals with disabilities apply for a job and maximize their productivity once onboard.

  • Campaign for Disability Employment

    Offers a variety of media assets, including video public service announcements, all designed to encourage employers and others to recognize the value and talent people with disabilities add to America’s workplaces and economy.

Additionally, ODEP offers several fact sheets and other resources to educate employers about effective recruitment and hiring strategies, as well as laws such as Title I of the ADA, which protects the employment rights of people with disabilities.

IX. Small Business and Self-Employment for Persons with Disabilities

Small business ownership or self-employment opens a door for people with disabilities by helping them realize their full potential while becoming financially independent. Some of the notable benefits of self-employment include a flexible work schedule and the satisfaction that comes from creating and implementing your own business plan.

Starting a home-based business is one popular approach to self-employment. This provides a great opportunity for individuals with disabilities to increase their income while avoiding transportation barriers or a lengthy commute to and from work.

The ODEP offers many resources on self-employment for interested parties to find out what is right for them and their situations. Among these resources is the Job Accommodation Network (JAN). JAN provides information on a case-by-case basis about self-employment and small business development including, but not limited to, marketing research, guidance on business planning, home-based business options, disability-specific programs, and small business initiatives for disabled veterans.

IX. What You Should Do if Your Florida Business is Dealing With an ADA Issue

In our business law firm, we see many ADA situations that are unfounded. South Florida businesses are being threatened, sued, and even extorted for fake or exaggerated violations of the Americans With Disabilities Act. However, there are real violations that happen, often unknowingly by the business. In any of these cases, we can help you determine:

  • Is there really a valid claim of violation?
  • How to respond to a letter or action
  • How to correct the situation if it is an actual violation
  • What’s involved in defending your company against a threatened or pending ADA lawsuit and resolving the matter

ADA attacks on businesses have gotten so bad that the Florida legislature passed House Bill 727 in an attempt to protect business owners from frivolous ADA lawsuits.

The Trembly Law Firm helps businesses throughout Florida with ADA cases. Call us at (305) 985-4581 and tell us what happened and your situation. It’s best to not wait in this type of matter, so call now or fill out the form on this page to learn your options.

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