When the idea of writing a piece on the ADA (Americans With Disabilities
Act) and ADR (Alternative Dispute Resolution) for advocates was first broached to
me, I must admit I had some trepidation. After all, while I know how I as a mediator
or arbitrator would view the actions, or is it antics, of counsel, this piece
demanded that I view ADR in the context of the Americans With Disabilities Act
from the advocates perspective. At first, I confess I was stuck. Fortunately, I was able
to draw on the counsel of two good friends of mine, who also happen to be nationally
and even internationally renown practitioners of ADR- Bill
Schroder of Schroder partners in Atlanta, GA and Jeffrey Krivis of First Mediation
Inc. in Encino, CA. Thus, this piece is the result of trying to address their concerns.
Finally, this article does assume that the reader has some familiarity with the
concepts underlying the ADA.
The Americans With Disabilities Act (ADA) and Alternative Dispute Resolution
are two concepts that mesh extremely well. Even the ADA itself, contains language in it encouraging dispute resolution. In fact, the EEOC is instituting ADR programs all over the country to clear it’s backlog of cases, including those pertaining to the ADA. What this article will cover is: what type of mediator do you want to have hear an ADA case, how do you evaluate the mediator and how might a mediator/arbitrator handle an ADA mediation/arbitration, how should you prepare for an ADA mediation or arbitration, and should your ADA case be mediated or arbitrated.
What type of mediator do you want to handle an ADA case, facilitative or
evaluative? Substantive expertise or not? With regards to facilitative or evaluative,
we first need to discuss what is meant by the two. On Counsel Connect, a
world-wide computer network for attorneys, there are several excellent forums
devoted to ADR, including the CA ADR forum moderated by Jeff Krivis and the GA
ADR forum moderated by Bill Schroder. In the GA ADR forum, Bill Schroder and
other distinguished ADR practitioners discussed the two types of mediators. A
facilitative mediator is a mediator that lets the two parties reach their own
conclusions through the mediation process. An evaluative mediator is a mediator
that makes it clear which way he or she believes the case is likely to go. That in turn,
helps the parties come to their own conclusions through the mediation process.
With respect to the ADA, it is my opinion that, in general, a facilitative mediator
with substantial substantive expertise in the ADA is the proper choice
for several reasons.
First, the ADA is an extraordinarily complex law that is
exceedingly broad in it’s scope. It covers just about any area of law you care to think
of.
Second, the ADA is full of gray areas and elastic principles. In fact, the value
of the ADA lies in it’s elasticity.
Third, court decisions are frequently inconsistent and sometimes it is hard to
divine their reasoning. Thus, any evaluation of an ADA matter by a mediator is not
likely to carry the same amount of weight as seen in more settled areas of the law.
For example, a person is diabetic and needs insulin shots. Does that person have a
disability? Well, one court has said no. Such a decision does not fit with the
EEOC guidelines nor is it, in my opinion, a correct decision, because such a decision
ignores how persons with disabilities compensate for their disability. Thus, if you are
a mediator and you are presented with a diabetic on medicine with one of the issues
being does he have a disability, an evaluative approach is meaningless: i.e. the best
you can say is that one court has held that no disability exists but that the court’s
conclusion has been called into question by commentators. There are many other
areas of the ADA where a similar scenario would ensue.
Fourth, disability discrimination involves real feelings on both the plaintiff and
on the defense side. The plaintiff is likely to be considerably upset that his rights
and feelings as a human being with a disability have been ignored or taken
advantage of. The defense is likely to be exasperated and confused, particularly
where they have tried many different accommodations and a lawsuit still resulted.
An evaluative
mediator in such a situation would only harden positions and miss the point entirely.
The ADA is about what it means to the individual with a disability to have a
disability and how that person needs to get to the same starting line as persons
without disabilities. On the defense side, the ADA is about accommodating the
employee while simultaneously not fundamentally altering the business
operations. All of these engender quite a bit of feelings when expressed and are hard
to “evaluate.”
This is not to say, that substantive knowledge is not important for a mediator
doing ADA work: It is absolutely critical. For example, I have seen many courts
overemphasize the issue of working as a disability even where the disability can be
described in terms of a major life activity other than working. A mediator not
familiar with the ADA could well accept a defendant’s notion of working being the
preeminent concern in assessing a disability. While such a belief would be based on
some court decisions, nevertheless that belief would be erroneous upon a plain
reading of the ADA’s implementing regulations. See, 29 CFR 1630.2(i). Also, a
command of the case law and the statutes and regulations involving the ADA are
likely to be of great help in the portion of the mediation where the paradigms of each
of the parties are tested.
In evaluating the mediator you certainly want to keep in mind the facilitative
versus evaluative distinction mentioned above. However, you also want to evaluate
the process itself. Did it get you to win-win? To see how the process of an ADA
mediation might work, let’s take the following hypothetical. A person suffers from
repetitive stress syndrome as the result of too much computer keyboard use. The
person is a manager of his department and shares clerical support with several others.
He must currently type all his memorandums. He mentions the problem to his boss
and the boss says the money isn’t there in his department: “suck it up”. He
cannot do so and is eventually let go for not being able to do the job. He has
brought suit after receiving his right to sue letter from the EEOC. The judge has sent
it to mediation. What arguments do you use if you are a plaintiff trying to put your
best case forward and resolve the matter to your client’s satisfaction. In this case, the
plaintiff is likely to argue: First, repetitive stress syndrome is a disability as defined
by the ADA. Second, typing memorandums is not an essential function of his job.
Third, even if typing memorandums is an essential function of his job, it can be done
with reasonable accommodations, ranging from a secretary to a Kurzwell
system. Fourth, the company, a multimillion dollar company, has the money to
accommodate him.
On the defense side, the mediator is likely to hear first that repetitive stress
syndrome is not a disability. Second, the disability, if it is indeed one, does not limit
his ability to work. Third, typing memorandums is an essential function of the job
and the money in the department isn’t there. Are any of these arguments likely to
succeed? What will be the solution to the problem? With respect to the arguments
succeeding, this particular scenario involves a mediation
and so success is a relative term. The arguments will be tested in the private caucus.
As for solutions, the mediator must use his talents via the mediation process to help
the parties reach a solution of their own making that they both win with.
The mediation process and the testing of the parties paradigms in this case leads
to the following questions in this case: How committed is the plaintiff to the
company? Perhaps, he really enjoyed working there and would like to do so in the
future. Just how clear did the plaintiff make it to his superiors that he could not
type? Did he actually tell them of his inability to type or did he just assume they
would know? This is where substantive knowledge of the ADA becomes critical
because the plaintiff has much a stronger case in the former instance than in the
latter.
How much time does he spend typing during the course of his job? How does the
plaintiff feel about having repetitive stress syndrome. How does it limit his life
activities? Are any of those activities major life activities? How is he coping? What
ideas does he have for ensuring that memos can be completed without aggravating
his disability? This is an extremely significant question because so often the person
with a disability has great ideas about what he needs to get the job done if only
someone would ask. Does the plaintiff understand that the ADA does not entitle the
plaintiff to whatever accommodation he desires but only whatever accommodation
gets him to the same starting line as the non-disabled worker through negotiation
with the employer? Finally, what is the substantial limitation on a major life activity
being complained of? If it’s working, the mediator is going to have to tell the
plaintiff that he faces an uphill fight in succeeding on his ADA claim.
On the defendant’s side, questions to consider are: What is the defendant’s
understanding of the ADA or lack thereof? How frustrated is he in dealing with the
ADA? What other dealings has he had with the ADA? How big is his company?
What is their understanding of what it means to reasonably accommodate someone?
Does the company have a disability discrimination policy? If so, was it carried out in
this case? How much of the plaintiff’s job was devoted to typing? What is their
understanding of when the ADA permits financial costs to be a defense to a
reasonable accommodation request? What is their understanding of how the ADA
mandates they should handle a reasonable accommodation request? Do they realize
that reasonable accommodation for a particular plaintiff is a matter of getting to the
same starting line as the non-disabled employee and is a product of negotiation?
How did the plaintiff make clear that he couldn’t type his memos? How flexible is
the company in discussing reasonable accommodation ideas? Is the company against
bringing this employee back? After all this, the paradigms of both parties has to be
tested. Assuming this is not a situation where the applicable court unduly
emphasizes working as the disability or the plaintiff’s attorney has not made the
mistake of alleging working as the disability, the defendant would have to be told
that they may seriously want to reconsider their options. Assuming a disability can
be found, they are going to be hard pressed to argue that an undue hardship will
occur by accommodating the plaintiff. The mediator will have to explain just what is
undue hardship and how it very much differs from “inconvenience.” Further, undue
hardship is a matter of looking to the entire resources of the company and not just
the department. 29 CFR 1630.2(p)(iii). Finally, it may be possible that the
disability discrimination policy is problematic as well. After all this, it should become
pretty clear to the defense that settling this particular case would be in their best
interests.
In short, successful mediation in the ADA depends on the plaintiff side being
able to project the meaning of what it means to having a disability and the
dedication to succeed so long as he or she can be put on the same starting line as
everyone else.
On the defense side, flexibility is critical. The ADA is very elastic and having a hard
position is not likely to be productive. Critical to the success of an ADA mediation,
is a mediator with substantive knowledge of the law otherwise poor results will ensue
or people will adjust their thinking based on false legal premises: thereby making
everybody unhappy in the long term. The mediator must also be one that is capable
of empathizing with both the plaintiff and the defendant while not taking sides, and
one that is capable of educating both sides as to what the ADA is and
is not.
How do you prepare for an ADA mediation? I suggest several steps. First,
know the applicable law. Second, recognize that the ADA is very elastic and
so be flexible in your thinking. Third, know your mediator. Is the mediator one
with “knock down” knowledge in the ADA or are you going to have to educate the
mediator? If the former, be prepared to find out the unexpected about the ADA and
if the latter be prepared for things to get confusing. Fourth, know the facts of the
case well as the ADA is fact intensive. Fifth, prepare the client that mediation is
non-binding but he may find his concerns very well addressed by the end of the
process. Know the client’s goals. Be prepared to allow
the client to go one on one with the mediator outside of your presence? The most
critical piece for preparing for an ADA mediation is for you and your client to keep
an open mind about what the ADA may or may not require and to be flexible about
how the situation can be resolved. This is true for any mediation but it is
particularly critical for the ADA, which is inherently elastic and individually based.
What about preparing for an ADA arbitration? In many ways, the steps are
similar. First, know your facts inside and out, including any expert opinions.
Second, know the law. Third, know your arbitrator. For example, can you get away
with trying a novel or suspect approach to the issue or will the arbitrator let you have
it “between the eyes”, if such an approach is tried. For example, I wouldn’t be very
receptive to an argument that disabilities under the ADA must always be evaluated in
terms of working. While there are some courts that have said as much, that is, in my
opinion, a misreading of the law. On the other hand, if an interpretation of the ADA
is a reasonable one, I would consider it even if it is a novel approach. Fourth, make
sure that your case is argued appropriately. That is, depending on the side you are
on, certain arguments are almost certain losers. For example, working as a disability
rarely works for a plaintiff and in any event should not be necessary because the
plaintiff’s attorney should be able to find some other impairment that substantially
limits a major life activity. Fifth, is your case at a posture where arbitration is going
to be worthwhile? If there are relevant facts to be discovered, arbitration is not a
good option as the ADA is so fact specific.
While both mediation and arbitration are categories
of alternative dispute resolution, they are in truth very different from each other.
Mediation is someone leading a process so that parties can reach creative win win
solutions. Whose right and whose wrong is not really the issue: the focus is on
reaching an understanding agreed to by the parties based on shared interests.
Whereas, in arbitration an adversarial process is involved and one side really does
win. The arbitrator is much like a judge in deciding the matter before him or her.
As mentioned above, the ADA is an extraordinarily broad and oftentimes
complex law to deal with. The ADA reaches across all practice areas of the law from
employment to real estate to insurance to governmental accessibility questions and
more. Thus, of the many ADA cases that an advocate could have, the question is
how does she decide which ADR method is the best for her client.
Certainly, one factor in deciding to mediate or arbitrate is strength of the case,
but even strength of the case in the ADA arena can be deceptive as it is entirely
possible that further analysis of an ADA case may reveal that the case is not as strong
as either party believes it to be. Also, since ADA jurisprudence is so fluid, what is a
strong case one day may be a weak case the next. Thus, in my opinion, the most
important factor for choosing mediation or arbitration is what issue of the ADA is at
stake. While the ADA is very fact specific, some ADA issues are better off mediated
than arbitrated and vice versa.
Understanding this conclusion necessitates exploring the ADA in a bit more
detail, though a complete exploration of the ADA is saved for another time in
another setting.
Determining whether a person has a disability that is protected under the
ADA is an issue better left for mediation and not arbitration because of the very
nature of the definition. The ADA defines a disability as: 1) a person who has a
physical or mental impairment that substantially limits one or more of life’s major
activity; 2) has a record of such an impairment; or 3) is perceived as having such an
impairment. 42 U.S.C. 12102(2). The definition of disability is full of elastic
concepts (such as what is a physical or mental impairment?; what does it mean to
substantially limit a major life’s activity?; what is a major life activity? what does it
mean to perceive a person as having a disability?), that mediation, where all ideas
and facts can be freely explored and discussed, is the better option.
While the definition of disability is elastic, it’s elasticity pales in comparison to
the concept of what it means to be otherwise qualified. In order for a person to be
protected under the ADA, he must have a disability but he also must be otherwise
qualified. That is, in the employment context for example, the person must meet the
eligibility requirements of the job and must be capable of performing the essential
functions of the job with or without reasonable accommodations. See, 42 U.S.C.
12111(8); 29 CFR 1630.2(m). Perfect discussions for the mediation process include:
What are the job’s eligibility requirements, i.e. do they make sense?; What are the
essential functions of the job and do they accurately portray the persons job?; How
did the employer determine the essential functions of the particular job?; What
reasonable accommodations are available and what have been tried to date? All of
these questions are more easily discussed in the context of a mediation than in an
arbitration.
Another issue that should be mediated and not arbitrated is the one of reasonable
accommodation. That is, was the person with a disability reasonably accommodated
by the employer. It is difficult for to imagine how this issue would be adequately
resolved in an arbitration for several reasons. First, the reasonable accommodations
that are possible is only limited by the parties imagination. Second, no two person
deal with their disability in the same way, and the way they deal with their disability,
both physically and emotionally, reflects the reasonable accommodation that works
the best for them. Third, reasonable accommodation is a process of negotiation
between the employer and the employee. Fourth, finding an “undue hardship”, a term
of art that allows a business to not have to make a reasonable accommodation, is
extraordinarily difficult. Finally, a much better defense than undue hardship is the
question of whether there is a fundamental alteration to the business’s operations, an
issue that is also ideal to explore and have the parties dialogue about in a mediation.
The last issue that we will discuss as being ideal for mediation occurs in the
governmental accessibility context. Title II of the ADA applies to governmental
entities regardless of size. See, 28 CFR 35.104. Under title II of the ADA, each
facility, providing the facility is not built after the advent of the ADA, of the
governmental entity does not have to be accessible, rather only the program has to be
accessible. 28 CFR 35.150(a), (a)(1). Unfortunately, a program can have so many
different meanings and thus, exploring those possibilities in a mediation environment
makes the most sense.
Not every ADA issue that arises is one you would rather mediate. There are
certain issues are better off arbitrated. Let’s explore some of those. Previously, we
mentioned that in order to be protected under the ADA, a person must have a
disability and be otherwise qualified. However, a person can be otherwise qualified
and still not be protected by the ADA where the person is a direct threat to himself
or to others. 29 CFR 1630.15(2). Since, “direct threat”, must be measured against
objective and scientific evidence about a person’s condition, this issue has no place in
mediation and belongs in arbitration. Any mediation is likely to get too personal and
not come up with relevant information. A person either is or is not a direct threat
based on the scientific evidence of the person’s medical condition (i.e. disability), the
person’s particular job and, in certain cases, the case law. Thus, an objective decision
is warranted and an arbitrator is an ideal one for that.
The issue of preemployment medical inquiries and exams is also an issue ideal for
arbitration. The ADA prohibits preeemployment medical inquiries and medical
exams prior to a conditional job offer being made. 42 U.S.C. 12112(d)(2)(A); 29
CFR 1630.13. A preemployment medical inquiry or exam either occurs or does not
occur (though, that is not to say the arbitrator’s decision will be so simple: It can be a
complex task to determine whether a preemployment medical inquiry or exam has
occurred, particularly where an essential function of the job is involved (See, 42
U.S.C. 12112(d)(2)(B)), and is an objective decision that can be made by an
arbitrator. Even though this is an objective decision that can be made by an
arbitrator, the plaintiff must do some education of the arbitrator here. The fact is
with preemployment medical inquiries, that so much of deciding whether such an
inquiry is involved is going to depend on whether a person with a disability would
have reasonably perceived a question was asked that was likely to elicit disability
related information. Thus, the plaintiff is going to want to talk about how his client
reacted upon hearing or seeing that question and whether such a reaction was a
reasonable one.
Yet another issue perfect for arbitration is the issue of the ADA and health
insurance. The ADA prohibits discrimination against persons with disabilities in the
benefits and privileges of employment. 42 U.S.C. 12112(a). One of the benefits of
employment is insurance. If an employer has disability based distinctions in their
insurance coverage, they will be hard pressed to prove that the distinctions are
not a subterfuge for disability discrimination. See generally, EEOC Guidance on the
ADA and Health Insurance. It is hard to see how this issue belongs in mediation at
all as the decision in such a case turns on objective facts, analysis of appropriate
regulations and applicable case law.
One area of the ADA that it is simply very difficult to determine whether you are
better off mediation or arbitrating is in the area of places of public accommodations
(Title III of the ADA). The ADA prohibits discrimination in places of public
accommodations. 42 U.S.C. 12182(a). An existing place of public accommodation
built after the advent of the ADA must make whatever structural modifications it can
that are readily achievable. 42 U.S.C. 12182(b)(2)(A)(iv). However, where
an auxiliary service is involved, the public accommodation must make whatever
modifications necessary short of an undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).
Thus, there are several issues that commonly arise under this title. First, what is a
place of public accommodation? A place of public accommodation is anyone of
twelve different categories. 42 U.S.C. 12181(7). Whether a place of business falls
into one of those categories is an issue that can either be mediated or arbitrated. The
second issue is the issue of readily achievable? This is an issue that may be better off
being mediated as an awful lot of educating by the mediator about what “readily
achievable” is, is likely to be necessary. The final issue is the one pertaining to the
standard of undue burden for providing auxiliary services. I can see this issue
arbitrated or mediated. If a place of business just refused to accommodate a person
with a disability with an auxiliary aid, the attorney may want to go for the slam dunk
against a defendant through an arbitration. On the other hand, this is an issue where
both sides could stand to learn a great deal about where the other party is coming
from and what the ADA actually does require and thus, mediation would preferred.
It is my hope that this article has served the dual purpose of explaining how
the advocate may want to deal with the ADA in an ADR setting and how the
mediator/arbitrator may attack the ADA in the ADR context. I expect to see an
much greater use of ADR in the ADA because the ADA is such an ideal fit with ADR.
See, Goren, William D., An Ideal Fit: ADA and Preventive Law, Preventive Law
Reporter, Winter 1995, pp.19-20,31
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