The Top 5 Ways Hotels Get Served with a Disability Discrimination Lawsuit
By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | September 30, 2018
Co-authored by Lauren Stockunas, Attorney, Fisher & Phillips LLP
To establish a claim of disability discrimination, an employee must prove that he/she is disabled, was performing his/her job competently, suffered an adverse employment action (i.e. termination, demotion, failure to hire, transfer, discipline) and the termination, for example, occurred under circumstances suggesting a discriminatory motive.
If the employee is successful in asserting these elements, then the hotel must rebut the employee's claims with legitimate, non-discriminatory reasons for the challenged employment actions. Therefore, the key to defending a disability discrimination claim is proving that the hotel terminated the employee for a legitimate, non-discriminatory reason. This means that the hotel needs to ensure that it understands its obligations under the various leave laws and train managers to enable them to effectively communicate with employees and gather needed documentation.
Maintaining written policies, memorializing any verbal communications with employees, documenting analyses of possible accommodations, and recording any accommodations or leaves of absences ultimately provided are essential steps for avoiding costly litigation. Below is an analysis of the top five ways hotels get served with disability discrimination lawsuits when they fail to be both proactive and reactive in openly communicating with employees and creating a paper trail.
1. Not Having Appropriate Employment Policies Addressing Leaves of Absences, Including FMLA, ADA, and/or Sick Leave Where Applicable
The first step is to have clear documented policies addressing leaves of absences, including the Family and Medical Leave Act ("FMLA"), Americans with Disabilities Act ("ADA"), medical leave of absences generally, and/or paid sick leave when applicable. Drafting comprehensive policies has two primary benefits: (1) they serve as a reference for both supervisors and employees; and (2) they serve as essential documentary evidence to defend against employee claims and/or litigation.