everything you always wanted to know about ada feha litigation l.
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Everything You Always Wanted to Know About ADA/FEHA Litigation*. *…but were afraid to ask… Steve Morris Office of the County Counsel. Steve Morris. An ADA Primer.

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everything you always wanted to know about ada feha litigation

Everything You Always Wanted to Know About ADA/FEHA Litigation*

*…but were afraid to ask…

Steve Morris

Office of the County Counsel

slide4
Under the Americans with Disabilities Act (“ADA”) and California’s, Fair Employment and Housing Act (“FEHA”), employers must engage in a promptinteractiveprocess to explore reasonable accommodation of a knowndisability.
slide6
Failure to show prompt interactive process is the most common violation, and is easily ascertainable by investigating enforcement agencies (EEOC for ADA; DFEH for FEHA).
slide7
Disability may be known through an employee request, inquiry, or otherwise available information.
slide8
Interactive process must be a continuing process. Employer must continue to consider requests or information submitted by employee.
slide9
Employer must consider all information provided but does not have to offer the exact accommodation requested so long as some reasonable accommodation is offered.
slide10
Return of industrially injured employee with permanentworkrestrictions is tantamount to a request for reasonable accommodation and musttrigger a promptinteractiveprocess unless the work restrictions can be immediately accommodated.
slide11
If an employee can no longer perform the essential functions of his/her former position, departments have an obligation in the interactive process to consider transferring an employee to an alternative assignment or vacant position.
  • See: Civil Service Rule 9.08.
slide12
A disabled employee who can no longer perform his or her old job may be returned to work in a temporary assignment while the interactive process is proceeding.
5 questions
5 Questions
  • Can the County win a jury trial?
  • Why are there so many ADA lawsuits?
  • Why is ADA litigation so expensive?
  • What’s new in ADA litigation?
  • How can you manage County workforce?
slide15
Jurors tend to be employees, not employers
  • Popular culture
  • Negative images
  • Employment law is complex
  • Things juries hate
slide17
County is a big target with deep pockets
  • Huge growth in ADA/FEHA cases: the word is out!
  • Lawsuits for Retaliation
  • Fact intensive cases go to Jury
  • Attorney’s Fees
slide19
ADA/FEHA cases are fact intensive
  • Employment history
  • Cases are document driven
  • Law is evolving
  • Attorney’s Fees
slide21
E-discovery
  • The Perils of E-mail
slide23
Document the Interactive Process
  • Keep Them on the Job
  • Tell a Story
  • Be Prompt
  • Be Nice
  • Be Consistent
  • Look for Early Resolution