Managing Risk in ADA Title I
A friend and former colleague of mine who loved numbers was a keen observer of human behavior. He “came up” in the days of putting pencil to paper. I first met him in the year just after the Apple II was conceived. Visicalc may have resided in a future thinking nerd’s brain but it was not yet on the common man’s horizon.
My friend spent many years in what was then Saigon working with issues related to safeguarding and using vast amounts of personal data initially stored on index cards. When his presence was no longer viable he returned to the U.S. to continue the same type of work for a variety of government agencies. Eventually technology and his skills expanded to the point that he specialized in conceiving and coding tools to manipulate digital data. That’s where we met: he and I built software that helped thousands of qualified individuals return to work after an injury.
For a digital guy, Dean had many interesting views of the human condition. One thing Dean shared with me was the concept of predicting the outcome and severity of an interaction between two people or groups of people by comparing the degree to which a set of elements inherent in each person or group attracted or repulsed the corresponding element in the other person or group.
The idea is that, given the attributes or conditions of each party to a relationship, one would have enough information to make an educated estimate of likely result that a chosen event (like agreeing on a movie to watch or a restaurant in which to share a meal) come to be and the cost of that event. I apply this thinking to managing the likelihood of a negative outcome of a request for accommodation under Title I of the amended Americans with Disabilities Act. Going further, I apply Dean’s concept to managing the cost to an employer given that the event does occur.
If one had the time and interest to list the factors (elements) we know lead to actionable violations of Title I of the ADA, one would then be able to make informed decisions about the cost or savings associated with managing the factors. I believe, for example, that an entity that employs skilled reasonable accommodation program managers should have fewer cases involving plaintiff attorneys, replacing lost employees, or EEOC charges. Likewise, an entity that increases request response time by using a committee to make decisions about approving a request for accommodation should experience more dissatisfied employees and higher real costs.
A company that uses un-vetted medical examinations in conditional offer work ability tests will experience adverse claims related to those tests. An entity that relies on physicians untrained in Title I medical examinations will not benefit from the gifts of Title I as much as an entity that trains and talks with involved physicians.
I don’t have the analytical background that my friend Dean had. But I do believe the elements he would have considered in his equations are well known as Title I has a dense library of federal court and EEOC opinions and settlements. Dean would have nurtured the spirit of the ADA by clearly and simply listing the elements of the human relationships and systems that drive Title I successes or failures. You and I would, and should, use that knowledge to build efficient and effective Title I practices.
Epilogue – Dean died inside a predictable equation: he was exiting a traffic controlled parking lot of a large, recently opened, casino in a small car. The roadway he was crossing was pointed downhill and carried high speed traffic. I know that Dean had just given a good friend a tour of the new casino. I imagine, but don’t know, that they were probably talking about what they had seen. I know that the individual responsible for directing traffic at the parking lot exit lost control of two “elements”: Dean in a small car and a very large pickup truck crossing his path. The system the casino had in place to manage the risk of collision between critical elements inherent in each of two parties about to enter into a relationship failed.
When we build Title I systems we have to begin by recognizing that employers and employees may not have the same goal in mind when beginning a request for accommodation. And, although the employee has the responsibility to participate in the process with good faith, the employer’s representative must approach the relationship with a set of skills that allows for quick correction if the required interactive conversation fails. In virtually all cases, except for failure of the employee to participate, the burden of reaching a safe and effective solution to the request for accommodation is on the employer.
