Hunting ADA Violations

Heightened scrutiny by the EEOC and DOL fuels litigation and shows a need for greater employer awareness.
By: | August 31, 2016 • 6 min read

Litigation brought by the Equal Employment Opportunity Commission in connection with violations of the Americans with Disabilities Act has risen since 2014, and outcomes show that juries usually sympathize with the worker.


Rulings favorable to the employee in these cases jumped from 4,981 in 2014 to 6,069 in 2015.

Since 2011, the EEOC filed more than 200 lawsuits involving claims of disability discrimination, through which it has recovered approximately $52 million, according to statistics compiled by the commission.

The primary driver of this activity, said Terri Rhodes, executive director of the Disability Management Employer Coalition, is increased strategic enforcement of the ADA by the Department of Labor and the EEOC.

“They have intensified an initiative to do more employer site visits, so litigation can come out of that,” she said.

Regulators aren’t just focusing on high-risk industries either. EEOC stats show that every sector is vulnerable to this sort of lawsuit, from manufacturing and construction to retail and hospitality.

Justin Eller, principal, Miles & Stockbridge PC

Justin Eller, principal, Miles & Stockbridge PC

“There’s also increased public awareness around disability discrimination, which lends itself to more lawsuits,” Rhodes said.

“The rise in claims is also due in part to the amendments to the ADA which went into effect in 2009,” said Justin Eller, a principal in the labor, employment, benefits and immigration practice group at Miles & Stockbridge PC.

“It broadened the definition of disability, thus making it easier to make a claim because more people are covered.”

The increased frequency of claims could also be the result of more people staying in the workforce longer. With older workers, there is an increased likelihood of medical conditions that necessitate disability leave or accommodations, Eller said.

Employer Vulnerabilities

Whatever the impetus for a discrimination claim, companies often find themselves susceptible to a lawsuit for one of two reasons: not engaging in the interactive process, or not applying processes consistently across workers’ compensation and disability management programs.

Employers’ shortcomings in these two areas may be so slight that they don’t realize they’ve fallen afoul of the ADA until a claim is filed.

For example, if an employer waits for an employee to come forward with a request for an accommodation, the EEOC may deem that as a failure on the part of the employer because it is incumbent upon the employer to reach out proactively when it recognizes a potential need for an accommodation.

“Once you’re on notice that an employee may need an accommodation, there’s an affirmative duty to start the process,” Eller said.

Even if an initial request for accommodation presents an undue hardship on the employer, there remains an obligation to continue the discussion to find a reasonable compromise.

“You can’t just deny it and move on,” he said.


Lack of consistent processes also creates vulnerable targets for injured employees who feel they were not treated fairly.

If, for example, a light duty position is offered to a worker injured on the job as part of a transitional program, a similar option must also be offered to employees with a non-occupational injury.

“Workers’ comp folk tend to forget that there are employment practices around engaging in the interactive process, as far as initiating that and making sure reasonable accommodations are made when possible,” Rhodes said.

“They also should be connecting with their HR counterparts to make sure treatment of workers’ comp claimants does not differ from treatment of those with non-occupational illness or injury.”

The DOL and EEOC don’t recognize organizational silos between workers’ comp and HR functions when it comes to disability management.

During on-site visits, the EEOC looks to see how leave policies are communicated to employees, checking for consistency in the timing and language of communication.

If workers’ comp, HR, and risk management aren’t on the same page, it raises a red flag. Discrepancies among policies mean there is a higher likelihood of noncompliant treatment of an injured or disabled employee.

Damage Done

Fines levied for ADA violations are “significant,” Rhodes said, “usually commensurate with the size of the company.”

If an allegation of discrimination turns into a lawsuit, employers could be looking at a price tag of “several hundred thousand dollars,” Eller said.

“[The amendments to the ADA] broadened the definition of disability, thus making it easier to make a claim because more people are covered.” — Justin Eller, principal, labor, employment, benefits and immigration practice group, Miles & Stockbridge PC

“It’s not cheap to take a case to trial. Depending on the nature and scope of the allegation, number of witnesses and other factors, there can be a very significant cost involved,” he said.

“There are hidden costs as well. From a time standpoint, litigation takes up an inordinate amount of time for the individuals involved.”

Reputation typically takes a hit, too. Some employers who believe they are in the right opt to take a case to trial in order to defend their name, but drawing attention to the allegations against them may undermine those efforts in the long run.

Staying Ahead of the Risk

Complying with the ADA can be challenging given its intersection with other employee laws such as the Family and Medical Leave Act, Genetic Information Nondiscrimination Act and state workers’ compensation statutes — especially since those regulations are always evolving.

“Staying up-to-date and modifying practices is an ongoing process that requires a lot of resources and attention, which is especially difficult for small companies,” Eller said, “but there are certainly steps everyone can take to protect their organization.”

Those steps include implementing a written policy regarding accommodation of disabilities and communicating it to all employees.

All supervisors should also be trained to identify issues and notify decision-makers in HR so that the interactive process can be kicked off proactively.

“I would make sure that when we had a situation, whether it’s a workers’ comp claim or disability, that we were all talking about what the process looks like and who needs to be engaged,” Rhodes said.


For smaller companies that lack a legal or risk management department, health insurance providers or disability carriers should be able to field questions about regulatory changes and what an employer should do to stay compliant.

Of course, sometimes an employer truly cannot meet an employee’s demands, despite its best efforts. In this case, documentation of the whole conversation from start to finish serves as the employer’s best defense should the employee file a discrimination claim.

“Document your process along the way and make sure you do that for every person,” Rhodes said.

“Not every situation is the same, but your process should be the same in every case.

“It’s not difficult to comply when you understand what actions need to be taken; the problem is that employers are caught off-guard, and it’s hard to recover once you’ve been spotlighted,” Rhodes said. &

Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Management

The Profession

Janet Sheiner, VP of risk management and real estate at AMN Healthcare Services Inc., sees innovation as an answer to fast-evolving and emerging risks.
By: | March 5, 2018 • 4 min read

R&I: What was your first job?

As a kid, bagging groceries. My first job out of school, part-time temp secretary.

R&I: How did you come to work in risk management?

Risk management picks you; you don’t necessarily pick it. I came into it from a regulatory compliance angle. There’s a natural evolution because a lot of your compliance activities also have the effect of managing your risk.

R&I: What is the risk management community doing right?


There’s much benefit to grounding strategic planning in an ERM framework. That’s a great innovation in the industry, to have more emphasis on ERM. I also think that risk management thought leaders are casting themselves more as enablers of business, not deterrents, a move in the right direction.

R&I: What could the risk management community be doing a better job of?

Justified or not, risk management functions are often viewed as the “Department of No.” We’ve worked hard to cultivate a reputation as the “Department of Maybe,” so partners across the organization see us as business enablers. That reputation has meant entertaining some pretty crazy ideas, but our willingness to try and find a way to “yes” tempered with good risk management has made all the difference.

Janet Sheiner, VP, Risk Management & Real Estate, AMN Healthcare Services Inc.

R&I: What was the best location and year for the RIMS conference and why?

San Diego, of course!  America’s Finest City has the infrastructure, Convention Center, hotels, airport and public transportation — plus you can’t beat our great weather! The restaurant scene is great, not to mention those beautiful coastal views.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

The emergence of risk management as a distinct profession, with four-year degree programs and specific academic curriculum. Now I have people on my team who say their goal is to be a risk manager. I said before that risk management picks you, but we’re getting to a point where people pick it.

R&I: What emerging commercial risk most concerns you?


The commercial insurance market’s ability to innovate to meet customer demand. Businesses need to innovate to stay relevant, and the commercial market needs to innovate with us.  Carriers have to be willing to take on more risk and potentially take a loss to meet the unique and evolving risks companies are facing.

R&I: Of which insurance carrier do you have the highest opinion?

Beazley. They have been an outstanding partner to AMN. They are responsive, flexible and reasonable.  They have evolved with us. They have an appreciation for risk management practices we’ve organically woven into our business, and by extension, this makes them more comfortable with taking on new risks with us.

R&I: Are you optimistic or pessimistic about the U.S. health care industry and why?

I am very optimistic about the health care industry. We have an aging population with burgeoning health care needs, coupled with a decreasing supply of health care providers — that means we have to get smarter about how we manage health care. There’s a lot of opportunity for thought leaders to fill that gap.

R&I: Who is your mentor and why?

Professionally, AMN Healthcare General Counsel, Denise Jackson, has enabled me to do the best work I’ve ever done, and better than I thought I could do.  Personally, my husband Andrew, a second-grade teacher, who has a way of putting things into a human perspective.

R&I: What have you accomplished that you are proudest of?

In my early 20s, I set a goal for the “corner office.” I achieved that when I became vice president.  I received a ‘Values in Practice’ award for trust at AMN. The nomination came from team members I work with every day, and I was incredibly humbled and honored.

R&I: What is your favorite book or movie?

The noir genre, so anything by Raymond Chandler in books. For movies,  “Double Indemnity,” the 1944 Billy Wilder classic, with insurance at the heart of it!

R&I: What is your favorite drink?


Clean water. Check out Water.org for how to help people enjoy clean, safe water.

R&I: What’s the best restaurant at which you’ve eaten?

Liqun Roast Duck Restaurant in Beijing.

R&I: What is the most unusual/interesting place you have ever visited?

China. See favorite restaurant above. This restaurant had been open for 100 years in that location. It didn’t exactly have an “A” rating, and it was probably not a place most risk managers would go to.

R&I: What is the riskiest activity you ever engaged in?

Eating that duck at Liqun!

R&I: If the world has a modern hero, who is it and why?

Dr. Seuss who, in response to a 1954 report in Life magazine, worked to reduce illiteracy among school children by making children’s books more interesting. His work continues to educate and entertain children worldwide.

R&I: What do your friends and family think you do?

They’re not really sure!

Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]