ADA Ruling Leaves Exposure Open

While the U.S. Supreme Court's latest disability ruling might have made life a little easier for risk managers looking to avoid employment practices suits–as well as for those who insure them–employers still risk being taken to court if they interpret the decision too broadly or cavalierly.

The court wisely ruled that the Americans With Disabilities Act should not keep an employer from denying a particular job to a disabled worker if the firm feels that the position could put that employee's health in unacceptable danger. That should let employers off the hook if their decision is based on clear and convincing evidence.

However, when Congress passed the ADA, the court noted, they were targeting abuses by employers who act on invalid stereotypes of what disabled people can and cannot do. Thus, a disabled person still cannot be rejected out of hand for a job that has some natural element of risk, unless the employer can prove that the particular job would put that particular applicant more at risk than the average person–and that the risk is unacceptably high.

Thus, risk managers and their insurers must still take care to educate their line managers about the difference between the situations, to make sure that perfectly capable employees are not unfairly or unreasonably rejected for a job because of a disability that does not in fact put them in any particular danger.

The court clarified the rules somewhat, but still left the trial bar plenty of room for further litigation.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, June 24, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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