David Keesling: Tulsa’s Employment and Labor Law Attorney
Tulsa is considered a prime location in which to do business, due to its affordable housing and energy costs and low taxes. As a long-time employment attorney, David Keesling has enjoyed helping many businesses thrive and added a significant contribution to our city.
We understand, however, that keeping your business in compliance with the law can be hard, especially when it involves labor disputes, such as discrimination claims from employees with disabilities. These types of disagreements not only involve questions about local and state regulations but also about key federal laws – most notably the Americans with Disabilities Act. Experienced and proven legal counsel in these situations is key.
David Keesling, an experienced employment and labor law attorney has decades of experience dealing with the nuances of the Americans with Disabilities Act (ADA). We can provide in-house counsel on policies, help you draft business documents, or provide you with staunch representation in a legal dispute.
The Heart of the Americans with Disabilities Act
Throughout our years of experience working with local businesses, we’ve found that confusion over what the ADA actually requires is common. Understanding the intent of the law can go a long way toward preventing workplace conflicts and HR stress and keep you out of legal trouble.
The purpose of the ADA is to provide equal opportunity for qualified applicants who are good at their jobs, but need a little extra help due to a disability. It is not, as it is sometimes feared to be, an affirmative action law that requires businesses to choose a disabled applicant over a non-disabled applicant if he or she does not meet the qualifications. It is a law that attempts to ensure the talented individuals are not passed over because of a disability.
If, for example, a disabled and a non-disabled applicant both excel at their jobs and a qualify for a promotion, an employer may not pass over the disabled applicant because he is in a wheelchair and would require a special desk and a ramp into his new office. Although these special needs may require some small changes to the room or the purchase of some additional furniture, these are considered “reasonable accommodations” and cannot factor into an employers decision regarding which employee to promote.
If, however, the disabled employee does not have the same skill set as the non-disabled employee or did not perform quite as well over the course of the last year, the ADA does not require the business to offer him the job. Such a decision in this case, would be made based purely on performance reviews and qualification, making the playing field level among all employees.
What Is “Discrimination?”
Disability discrimination, for the purposes of the ADA, include allowing a person’s disability or association with a disability to negatively factor into any employment practice, including the job advertising, recruitment, application or interview processes; hiring, firing and promotion decisions; and wage, benefits, tenure, and other forms of compensation or job perks.
For example, refusing to interview a deaf candidate, where such an individual could perform his or her job tasks with an assisted listening system, or passing over a candidate with Multiple Sclerosis for a promotion because you assume he may need more days off than a healthy candidate, are forms of discrimination.
Additionally, employers may not ask about past or current health conditions on an application or in an interview or require a medical examination prior to making a job offer. A business may ask about an individual’s abilities to perform certain key functions or tasks essential to the job, but must bear in mind that the applicant must be able to do tasks with reasonable accommodations, if necessary.
Because discrimination extends even to a business’ pre-hiring processes and documents, such as job advertising strategies and application forms, discrimination can often occur unintentionally. Even in the absence of true discrimination, charges may be brought by employees or candidates who were disappointed in the outcome of an employment decision if precautions are not taken to mitigate such concerns. An employment and labor law attorney such as David Keesling can provide expert help at this stage, helping you draft documents and formulate strategies that reduce your chances of accidental discrimination or perceived discrimination.
Who Is Considered Disabled?
A “disability,” according to the ADA National Network is any physical or mental state that “substantially limits a major life activity.” Examples of physical disabilities include:
- Mobility impairments
- Missing limbs
- Multiple sclerosis
- Muscular dystrophy
While physical impairments may be the most commonly acknowledged disabilities, mental disabilities are also covered by the ADA, including:
- Bipolar disorder
- Intellectual disabilities
Additionally, individuals cannot be discriminated against because of their association with one of these disabilities. For example, if a person has a family history of schizophrenia, but has no current diagnosis, or if he has had cancer or a major depressive disorder in the past, but is currently healthy, an employer or potential employer may not discriminate against him in regard to any employment practice.
If you are unsure whether a business decision you have made could be construed as discrimination or if you have received unfair allegations of discrimination based on a business decision that did not fall in a disabled person’s favor, don’t try to overlook the situation. David Keesling provides staunch representation for businesses in and out of the courtroom and is ready to help. The earlier you seek counsel, the brighter your outcome can be.
How Can Businesses Comply?
Complying with the ADA can be a complex process and involves careful document drafting, policy making, and provision of “reasonable accommodations” to individuals with special needs. Such accommodations may include making your building or parts of your building wheelchair accessible, modifying an employee’s work schedule, redistributing nonessential job duties, or providing modifying equipment, such as text-to-speech software for the blind or a TTY system for the deaf.
However, the definition of “reasonable” is sometimes open for debate. For example, is it reasonable for a small business with 20 employees to provide the same kind of accommodating technology as a multimillion-dollar corporation? Is a specific request for accommodation essential or merely helpful? Does it put an undue burden on the company? These are all legal questions that David Keesling will have an answer to on a regular basis and can help you answer before you make a decision that could have serious legal ramifications down the road.
David Keesling: Employment and Labor Law Attorney – Helping You Comply with the ADA
Even the most conscientious business with a sincere desire to provide a fair and equitable workplace can stumble upon disability discrimination issues. Whether you’re drafting employment documents, developing policies for personnel, or have received surprising allegations of discrimination in your workplace, our employment attorneys are here to help. We provide wise, experienced counsel outside the courtroom, and determined, relentless representation in it.
So if you have questions about compliance with the Americans with Disabilities Act, call us today at (918) 924-5101.