JAMS ADR Blog by Chris Poole
I have been wondering—as we are well into our second year of the pandemic—whether the relationships between employees with disabilities and their employers are changing in unanticipated ways. My curiosity leads to the following questions: Will our “collective trauma,” a phrase some psychologists use to describe our experiences dealing with COVID-19, engender not only feelings of personal vulnerability, but also greater sensitivity toward the challenges those with physical and/or mental disabilities have long faced? Or, on a less optimistic note, will the chronic stress of the pandemic leave us siloed, narcissistic and focused only on ourselves and perhaps our immediate loved ones?
The answer is complicated by the fact that the pandemic has not impacted everyone equally. While our collective experience has involved a mix of anxiety, boredom, loss and isolation, resilience is not a one-size-fits-all factor. Exposed to roughly equal shares of emotional, logistic and financial hardship, one person may cope relatively well, while another may not. Since the pandemic began, some individuals have contended with being overworked; others, with being unemployed. Some have suffered trauma, directly through the illness or loss of a loved one, or indirectly through their workplace exposure to medical crises. For those with physical and/or mental disabilities, the challenges are not uniform, and they often are greater than those impacting the non-disabled.
Employers have contended with their own set of stressors during the pandemic, including collapsed demand, market shutdowns, supply chain breakdowns, increased prices for raw materials and labor shortages. At the same time, employers must adjust to an array of new legislation, regulations and administrative guidance that often focus on the employment relationship and safety in the workplace. Addressing the needs and requests of disabled (and non-disabled) workers within a safe workplace, while the regulatory environment changes, is challenging for employers large and small.
As a mediator at JAMS, I have seen an increase in disability-related workplace disputes, and I am not alone. A recent article published by the Society for Human Resource Management, citing one of several law firms’ “litigation tracker” reports, notes a sharp increase in pandemic-related workplace litigation during the summer of 2021 and a significant number of claims based on remote work and leaves of absence. In my practice, the disputes vary greatly because claims made under the Americans with Disabilities Act (ADA) and analogous state laws are almost always rich in facts. Some involve termination or failure-to-rehire claims grounded in disability discrimination allegations. Others are premised on the failure to accommodate requests to extend remote-working arrangements after employers reopened their offices, and still others involve whistleblower claims related to workplace safety issues. Quite a few also involve allegations of other types of discrimination, often gender based.
The uptick in disability discrimination and failure-to-accommodate claims has not left me pessimistic, convinced that workplace relations are irreversibly fractured. Nor has it left me convinced that we are not, collectively, developing greater sensitivity toward the challenges faced by workers with physical and/or mental disabilities. Were these claims not making their way to mediation, to be resolved on mutually acceptable terms without years of litigation, pessimism might be warranted. To the contrary, the parties’ willingness to tackle and resolve these claims through mediation is a sign that employees and employers agree, consistent with the ADA, that it is more important than ever to address the needs of employees with disabilities. Given the new laws, regulations and guidance that have impacted the workplace, and the profound stressors on employees and employers, the increase in claims is unsurprising.
There are other reasons for optimism. The transition to virtual mediations during the pandemic has made it easier for many interested parties to participate in the process. For individuals with certain disabilities, particularly those impacting physical mobility, a virtual session makes it possible for them to attend while remaining in the comfort of their home. The ease with which a mediator can move from virtual room to room and orchestrate breakout meetings, coupled with not having to travel to the physical site of mediation, makes the alternative dispute resolution (ADR) process more accessible, particularly for certain disabled individuals. While an in-person mediation may be preferable and easier for persons with some types of disabilities, or because of the nature of certain claims, virtual mediations are now a proven means to increase inclusion.
The mediation of claims based on workplace disability laws, inclusive of the key parties to the disputes, engenders the opposite of a siloed, narcissistic response to the pandemic. Through ADR, all parties have an opportunity to advocate, to be heard and to listen. In this way, mediation enables the parties not only to resolve their disputes, but to do so with an enhanced appreciation of others’ perspectives.
 See https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-litigation-summer-2021.aspx.
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