Americans with Disabilities Act lawsuits launched by workers shot up in the waning months of 2020, a trend many experts say is just the beginning of an anticipated uptick in pandemic-driven disability bias litigation.
A snapshot of federal dockets reveals that suits alleging workplace-related violations of the ADA jumped just before the year ended, with more than 680 filed in the final two months of 2020, representing a sharp pivot from the drooping trend of case filings from earlier months.
Nearly 350 ADA employment lawsuits were filed in federal courts in November, followed by 335 in December after the filings had hovered between 115 and 200 each month since early 2020. The cases filed at the end of last year also outpaced what hit federal dockets in November and December 2019, with the year-end 2020 filings up nearly 30% from the same time frame the previous year, amounting to about 150 more complaints.
While the figure sank back down last month — around 200 ADA employment cases were filed in federal courts in January — employment attorneys from both the worker and management sides told Law360 that they believe the COVID-19 pandemic played a role in the year-end rise in filings, and that this swell of cases is a harbinger of things to come.
"There will be more COVID-related ADA employment cases," said disability law expert Jonathan Mook of
DiMuroGinsberg PC. "You don't need a crystal ball to predict that."
Littler Mendelson PC shareholder Robert Millman agreed there's more in the pipeline. "You have this whole new wave of disability cases that have been filed and will continue to be filed based upon the pandemic," he said.
While it's difficult to determine how many of the ADA employment suits are directly tied to COVID-19 layoffs or other virus-related workplace decisions, a Law360 search shows that 127 of the federal cases filed between March and December referenced the virus, and more than a third of these disputes — 47 complaints — landed in November and December.
Plus, more than two dozen ADA employment cases referencing COVID-19 have already been filed in 2021.
Part of the reason for the upswing could be that workers who are disabled — which federal regulators define as someone who has a physical or mental condition that substantially limits a major life activity, like walking, talking, seeing, hearing or learning — have had a tougher time keeping their jobs during the health crisis.
The
Bureau of Labor Statistics reported in January that the unemployment rate for people with disabilities is 12%, which is up from 7.8% in January 2020 and nearly double the rate for people without these impairments.
Jason Schwartz, co-head of
Gibson Dunn & Crutcher LLP's labor and employment practice, also attributed the increase in cases to the heightened risk disabled workers can face from the virus based on their potential medical conditions, which gives rise to more requests for special arrangements or time off that employers may deny.
"I think the pandemic has put added pressure on people with underlying medical conditions and, as a result, issues about reasonable accommodations and leaves of absence are becoming increasingly prominent," he said.
Of the virus-related cases filed, many disabled workers have claimed they were targeted for a pandemic-related layoff because of their impairment. Other employees have gone to court alleging they had health conditions that made COVID-19 exposure extremely risky for them, but their employers terminated them for seeking special arrangements.
Experts also said that the lull in grievances filed in the spring and summer likely stems from a number of factors, including the obstacles the pandemic raised in preparing and filing a case, plus the administrative steps required before a workplace discrimination case lands in court.
To bring these kinds of suits, workers have to first take their grievance to the
U.S. Equal Employment Opportunity Commission or their local equivalent, which will take some time to review the allegations and consider whether to get involved.
These factors install a natural lag between when an employee says they were mistreated at work and when their accusations land in the court system, though DiMuroGinsberg's Mook said that as more of these grievances move past the regulatory stage, lawsuits may stack up.
"The fact that there may have been a dip in ADA employment cases filed during the late spring and into the summer months doesn't necessarily mean that administrative charges haven't been filed during that period of time," Mook said. "And these may very well lead to ADA lawsuits."
Schwartz also predicted an uptick based on employers' efforts to encourage their employees to get vaccinated.
As more companies offer perks to motivate workers to get vaccinated, experts have warned that these kinds of programs can draw discrimination claims from disabled and religious workers who won't get the shot.
"I have definitely seen an uptick in disability-related cases, many related to COVID-19," Schwartz said. "And I think we'll see more as employer vaccination programs become more prevalent."
But not all experts agree that a surge of COVID-19 employment litigation
is on the horizon.
"There have been these fears voiced by employers since April that there would be a wave of litigation, but all of the evidence shows that there has only been a trickle," according to Hugh Baran, a
National Employment Law Project staff attorney.
While November and December saw a spike in cases, the number of those filings fell back down in January, plus Law360 data shows that as a whole, fewer employment-related disability bias cases came in last year than in 2019. In all of 2020, businesses faced about 6% fewer federal disability cases than they did the year before, a difference of about 150 complaints.
"Some data suggests that overall employment cases and filings are quite down, in part because of the broader difficulties in bringing cases, with court closings and whatnot," Baran said.
Regardless, many employment lawyers say company leaders need to be ready. For businesses making layoffs or other consequential workplace decisions, Mook warned that they need to document the decision-making process and make sure their rationale is solid, otherwise they could be in trouble if a termination or another workplace penalty appears tied to someone's disability.
"Think it through and get your facts in order, because any decisions employers make that might have disability-related implications are very likely to be challenged," Mook said.
--Additional reporting by Braden Campbell. Editing by Haylee Pearl.
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