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Abstract
[Gary Phelan] and Janet Bond Arterton, who works with Phelan at Garrison and Arterton, have written a book on the law that is geared toward disability-rights advocates, lawyers and employers. Among contributors from across the country are lawyers from two other Connecticut law firms and a rehabilitation consultant at Aetna Life & Casualty Co.
When he looked at a breakdown of the nearly 1,500 initial complaints, Phelan said he found it interesting that there was a high number associated with people who had mental illnesses. The most common impairments in the initial complaints were back problems and mental retardation, with mental illness following right behind.
People with disabilities, their advocates, employers and lawyers will be keeping a close watch on how these initial complaints are resolved. Their outcomes will help clarify the law, what changes it will bring to the American workplace, and what opportunities it will open up for people with all sorts of disabilities.
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People with disabilities don't seem to be rushing to file discrimination complaints against employers or potential employers under the new Americans with Disabilities Act.
The federal Equal Employment Opportunity Commission had estimated that between 12,000 and 15,000 complaints would be filed nationwide in the year after July 26, the date that the employment section of the law took effect.
But commission statistics show that just 1,477 complaints were filed with state or federal discrimination agencies between July 26 and Oct. 30. If that rate holds, about 6,000 complaints would be filed in the first year.
Gary Phelan, a New Haven lawyer who frequently represents people with disabilities, said he was a little surprised by the number, although he thinks the pace of complaints could pick up during the year.
More people are becoming aware of the law, but at the same time more employers are gaining an awareness of what is required of them and how they should deal with employees -- or potential employees -- who have disabilities.
Phelan said that awareness, plus the possibility of hefty penalties, should help resolve problems before formal complaints are filed.
"I have settled some ADA cases fairly quickly, because there is an incentive to talk settlements seriously earlier rather than later," he said.
The law says that employers with 25 or more workers cannot consider a person's disability when making hiring and promotion decisions unless that disability affects the person's ability to handle the basic elements of the job.
And employers must make "reasonable accommodations" if those people can do what the law calls "the essential functions" of the job, and if those accommodations are not prohibitively expensive.
Phelan and Janet Bond Arterton, who works with Phelan at Garrison and Arterton, have written a book on the law that is geared toward disability-rights advocates, lawyers and employers. Among contributors from across the country are lawyers from two other Connecticut law firms and a rehabilitation consultant at Aetna Life & Casualty Co.
The introduction to the book was written by Gov. Lowell P. Weicker Jr., a sponsor of the original ADA legislation when he was a U.S. senator.
One of the contributors to the book is Peter Lefeber, a lawyer with New Haven-based Wiggin & Dana who helps employers navigate state and federal employment laws.
"It is really kind of an audit for ADA compliance," Lefeber said of the chapter he wrote with John Zandy, also a lawyer at Wiggin & Dana. Companies need to know what is allowed and what is not when it comes to pre-employment practices such as physical examinations, interview questions and even application forms.
Lefeber said he has been busy answering questions and providing information to employers.
"We are finding a consistent flow of ADA issues that arise," he said. His clients -- mainly larger companies -- are generally aware of the act's requirements and have been able to resolve sticky questions before complaints have been filed -- so far.
Lefeber said he thinks the law has helped make employers more sensitive to the issues surrounding the employment of people with disabilities.
When he looked at a breakdown of the nearly 1,500 initial complaints, Phelan said he found it interesting that there was a high number associated with people who had mental illnesses. The most common impairments in the initial complaints were back problems and mental retardation, with mental illness following right behind.
That didn't surprise Lefeber, who said those cases will be among the most difficult to resolve.
Judging the abilities of a person with a physical impairment is relatively easy. A blind person might need only a special type of computer to handle the basic elements of a job. A person who uses a wheelchair might need only a higher desk that can accommodate the chair.
But the needs of a person with a mental illness are much less clear.
That makes determining whether that person can handle the essential elements of a job, and what accommodations might be needed, much more difficult, Lefeber said.
Sometimes, he said, the employer might be better off not being aware of the mental illness. That way, the company could not be held liable for its actions, he said.
People with disabilities, their advocates, employers and lawyers will be keeping a close watch on how these initial complaints are resolved. Their outcomes will help clarify the law, what changes it will bring to the American workplace, and what opportunities it will open up for people with all sorts of disabilities.
Michael Remez is a Courant business writer
(Copyright @ The Hartford Courant 1992)