Articles and Research

Burn Survivors and the Americans with Disabilities Act
BY Eunice Trevor, J.D. Daniel Bencivenga, J.D.
From The Phoenix Society Newsletter Winter Edition 2000, Issue 4

For burn survivors, disability discrimination sometimes subtle, sometimes blatant is a fact of life in today's employment landscape. In 1990, Congress enacted the Americans with Disabilities Act (ADA) to short-circuit disability discrimination in the workplace. Though the strength of the ADA has been diminished by subsequent court decisions, this federal law still provides burn survivors with a powerful tool to prevent job discrimination based on disability. For those who fit within its protected categories, the ADA forbids disability-based discrimination either in the hiring process or in the terms and conditions of existing employment. The Act further requires employers to make reasonable accommodations that will permit disabled employees to continue to work.

The biggest hurdle for burn survivors seeking to rely on the protection of the ADA is to fit within the statute's increasingly narrow definition of disability. Many of the lawsuits that are brought under the Act and there are a lot of them focus on just what it means to be disabled. By its terms, the ADA prohibits employment discrimination based on both actual disability and perceived disability. During the past ten years, court interpretations of the statute have restricted the definition of actual disability to include only the most severe and lasting injuries and illnesses.

A burn injury, though limiting, may not rise to the level of impairment that courts have determined to be disabling under the ADA. As a result, burn survivors should be aware of the Act's parallel protection for "perceived" disability. When Congress enacted the ADA ten years ago, it used burn injury as an example of the kind of injury that often prompts an inaccurate perception of disability in employers. For burn survivors who suffer the stares and marginalization of co?workers and employers, this comes as little surprise. Fortunately, Congress had the foresight to realize that perception often equals reality in the workplace. For burn survivors, it is helpful to be aware of the distinction between these two concepts.

Under the ADA, an "actual" disability is defined to include "a physical or mental impairment that substantially limits one or more of the major life activities." Though a burn injury almost always will qualify as a "physical impairment," it will not always "substantially limit a major life activity" The ADA defines "major life activities" to include "those that the average person in the general population can perform with little or no difficulty such as caring for oneself, performing manual tasks, walking, seeing, hearing and working." To be disabled in the major life activity of "working," an employee must be unable to perform in a broad range and class of jobs, not just the job he or she performed before the injury. For an injury to be "substantially limiting" under the ADA, it must be both lasting and severe.

Under the "perception" track of the ADA, an employee need not prove that he or she has a substantially limiting impairment. Instead, the employee must show that the employer regarded the employee as having such an impairment and that it engaged in discrimination based on its perception of disability.

For those who are disabled within the meaning of the ADA either actually disabled or perceived to be disabled the Act forbids an employer from taking any adverse job action based on disability. An adverse action includes not only termination, but demotion, pay cuts, unwanted transfers, failures to hire or any other action that adversely impacts an employee's ability to work.

In the hiring process, the ADA forbids an employer at the pre-offer stage, from asking applicants about the history of their injuries either on employment applications, in the interview process, or on any pre-offer tests. After a conditional job offer but before placement, the ADA does allow an employer to inquire into a medical condition to determine whether the applicant is medically "qualified" for a given job.

Both for new hires and for existing employees, the ADA requires that disabled employees be "otherwise qualified" to perform in their jobs before they can invoke the protection of the Act. A "qualified" person is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

If, for example, a burn survivor had a pre-injury job as a warehouse laborer that required intense physical exertion, it is possible that the physical limitations imposed by the injury would prevent that person from resuming the job without some form of accommodation by the employer.

With respect to accommodation, the ADA gives the employer substantial leeway to determine what functions are essential to a job and how the employee might be accommodated to perform the job. The ADA requires only that an employer make "reasonable accommodations." These can include restructuring the job to part time work, modifying work schedules, reassigning the employee to a vacant position, or providing some variety of mechanical assistance that will permit the employee to do the job. An employer can refuse to accommodate the worker if the change would be unduly burdensome or costly, or if it would pose a danger to other employees.

It is important to note that an employer is not required to create a new job or a light duty job in order to accommodate a disabled employee. If there is no existing, vacant job in a given work setting that a disabled employee can perform both in light of medical restrictions and skill level the employer can refuse to accommodate the employee. In a unionized work setting, the ADA does not trump the collective bargaining agreement and a disabled employee cannot bump an employee with greater seniority as a means of accommodation. The employee can, however, pump an employee of lesser seniority in a job for which he or she is qualified both physically and by skill level. In both union and non?union settings, the employer is not required to maintain levels of pay in transferring a disabled employee from one position to another.

An employer also can refuse to make accommodations based upon the type of job that a burn survivor held before his or her accident provided there is a legitimate business reason to do so. If, for example, a burn survivor had a preinjury job as an airline stewardess, a highly visible position requiring significant public interaction, an employer can argue that a cosmetically disfiguring injury prevents the burn survivor from continuing in that job. The same argument would fall away, though, if the burn survivor were a pilot or an airplane mechanic, jobs in which public presentation are not important.

Similarly, if a burn survivor is simply physically unable to perform in his or her pre-injury job, the employer is not required to make an accommodation. For example, if a burn survivor held a pre-injury job as an outdoor construction worker and his burn injury required that he work in a temperature controlled environment, the employer would not be required to accommodate him in that job. If, however, there was an opening as a data input clerk in the employer's office, and the employee had the computer skills to perform in that job, a transfer could be considered a reasonable accommodation.

The centerpiece of this analysis is reasonableness. Is it reasonable for the employer to make the switch? If an accommodation is extremely costly or difficult, it will not be reasonable. For example, if a burn survivor held a preinjury job as a nurse and her injury prevented her from doing many of the heavy tasks associated with that job, such as lifting patients or moving equipment, an employer would not be required to accommodate her by hiring another employee to accompany her and do these tasks for her. Also entering into this reasonableness equation is the likely duration of accommodation and the financial condition and size of employer. Obviously, an accommodation that might be reasonable for IBM might be extremely burdensome for a mom and pop grocery store.

The ADA envisions that the employer and the employee will work together to determine how or if the employee can be accommodated. Disabled employees should take an active role in defining potential accommodations. Physicians, therapists, vocational specialists, and disability organizations can be helpful in providing suggestions for possible accommodations.

If the accommodation process breaks down and the employee is compelled to bring a discrimination lawsuit against the employer, it is helpful to have a documented record of accommodation requests and suggestions that have been vetoed by the employer.

Unless disability discrimination is immediate and irrevocable such as termination or demotion a disabled employee should engage in a give-and-take with an employer to arrive at an accommodation suitable to both. If an employer is dead-set on ousting a disabled employee, however, a lawsuit may be the only way to enforce the requirements of the ADA.

Because the ADA is one of the most confusing and complex of the federal anti-discrimination statutes, it is helpful to involve a lawyer in the early stages of a potential discrimination claim. The National Employment Lawyers Association (NELA) is a great source for discrimination specialists. This is a non?profit organization of 2,700 lawyers nationwide who specialize in discrimination law. NELA will provide a state listing of its employment lawyers on written request to the National Employment Lawyers Association, 600 Harrison Street, Suite 535, San Francisco, CA 94107. The Association's website, www.nela.org is a good source of general information regarding discrimination claims.

Before an employee can go to court to enforce the statute, he or she must first file a discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). Importantly, this claim must be filed within 300 days of the act of discrimination (i.e. termination, demotion) in order to preserve the right to bring a lawsuit. If a claim is not filed with the EEOC within this timeframe, the disabled employee will not be able to sue under the Act.

In addition to the ADA, virtually every state in the country has a law that prohibits disability discrimination. Usually the state discrimination statutes parallel the ADA with one important exception. Often, states shorten the filing period for discrimination claims to 180 days from the date of discrimination. It is good practice to file both with the EEOC and with the state discrimination agencies within the 180 day time frame, thus preserving both the right to a state lawsuit and to a federal lawsuit. Though it is not necessary to consult with an attorney to file claims with the EEOC or the state agencies, it is helpful to have an attorney review these claims. Both the EEOC and the state agencies have intake personnel to help claimants with the filing process when an attorney is not available. The most important thing to remember about the filing procedures is that the statutory filing periods are non?negotiable.

Certainly; the ADA is not a cure-all for disability discrimination. But, for burn survivors who have been victimized by employment discrimination, the ADA and the state antidiscrimination laws are the only game in town. By learning how these laws work and being proactive in pursuing their rights, disabled employees often can resolve discrimination issues before they reach the courtroom.

If you, a family member, or someone you know have sustained a serious injury and you want to determine whether you have a claim for Worker's Compensation benefits and/or a Personal Injury claim for compensation, please contact us.