The Americans with
Disabilities Act was designed to help ensure that all people, regardless of their
disability, can have an opportunity to access goods, services and
employment. The law is designed to
accomplish this in several ways, but perhaps the most fundamental way is
through good communication.
In the language of
the ADA, this communication is referred to as the interactive process. The
ADA is premised on the idea that proper communication between people with
disabilities and their employers or other service providers can happen in a
back and forth discussion about what the individual needs and what the employer
or service provider can provide them. In an ideal world, the interactive process
looks like a productive back-and-forth discussion that results in what the law
calls a “reasonable accommodation.” In
other words, effective communication about a need leads to creative problem
solving, and the result is that the individual with the disability gets a
reasonable accommodation in order to perform a job for the employer or engage a
service provider. Everybody wins.
Of course, we do not live in an ideal world, and the interactive process routinely falls
apart due to ineffective communication.
When there is a communication breakdown between parties around what a
reasonable accommodation would look like, the ADA simply cannot function. This
leads to dissatisfaction, and eventual lawsuits.
Mediation can provide
another bite at the interactive process apple by facilitating an effective
interactive process. The purpose of the
ADA can be fulfilled, an appropriate compromise can be reached, and a lawsuit
avoided just by bringing the parties together with a trained workplace
mediator.
I was reminded of
this just recently, when I was brought in to mediate a claim brought with a
government agency under the ADA. In
this situation, an individual with a disability and his employer had not been
able to engage in an interactive process to figure out what the employee needed
and what the employer could offer. As a
result, the employee had filed a charge of discrimination and was threatening a
splashy disability lawsuit.
At the start of the mediation, it was clear that hard feelings
abounded. The employer was floored at
being accused of discriminating against disabled employees and terrified of the
negative publicity and cost this lawsuit would bring. The employee was deeply disappointed and
frustrated, and felt disrespected on behalf of the larger disability
community. Disaster appeared to be
looming.
But thankfully these
parties came to the mediation table instead of just forging ahead through litigation. By using the mediation process, we soon
discovered that the parties had never properly engaged in an interactive
process in the first place. The parties
had never had a direct discussion of what the employee’s needs were. Through mediation, I was able to help the
employee clearly articulated the accommodation he required to do his job. Once the employer understood what was being
asked, they were readily able to provide the accommodation. The employee was able to give his best
efforts to the company, and the employer got a loyal employee and a better
understanding of how to communicate with employees with disabilities in the
future. It was a true win-win. Through
the process of mediation, within a few hours, the lawsuit was dropped, good
feelings restored and the promise of the ADA was fulfilled.
Effective communication and engaging in the interactive
process is the crux of the ADA. Taking a
mediation-based approach to the Americans with Disabilities Act helps to ensure
that all parties involved clearly understand what is requested, what is
possible and what is at stake. If you find yourself facing a dispute under
the ADA, litigation is not an inevitability.
Consider working with a mediator to help you properly engage in the
interactive process and work towards a win-win resolution.
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