Disability discrimination claims: A Q&A with Chris Williams
"Having a written policy in place that puts the company in compliance with the ADA and the FMLA, as well as any state law equivalents, is a critical step to help minimize potential liability," says Chris Williams.
Comparing 2022 to 2021, more employees alleged disability discrimination, including episodes related to mental health. Because of that, more employers had to deal with an issue that can be costly and bring negative publicity. What does this increase in disability discrimination charges and claims mean for businesses, and how does insurance get involved/? We asked Chris Williams, Employment Practices Liability Product Manager at Travelers.
Has the Employment Practices Liability industry seen a spike in disability discrimination claims?
There has been an increase in the number of disability discrimination charges filed with the Equal Employment Opportunity Commission, so that’s a strong indication that there has been a corresponding increase in similar claims filed with insurance carriers. There was a 9% jump in disability discrimination charges filed with the EEOC from 2021 to 2022, the most recent year statistics are available.
Why have we seen an increase in EEOC charges alleging discrimination on the basis of anxiety, depression and post-traumatic stress disorder?
There is more general awareness of mental health issues – both among society at large and in the workplace. Plus, there are many people who are suffering with mental health conditions. According to data from the National Alliance on Mental Illness, approximately 1 in 5 adults in the United States, or 57.8 million adults, experience an occurrence of mental illness each year.
According to the Occupational Safety and Health Administration, more than 80% of workers have reported experiencing workplace stress. While those stresses don’t always have a negative impact on mental health, they sometimes do. When people dealing with mental health issues such as anxiety or depression ask for a workplace accommodation that gets denied, some have alleged discrimination.
The number of charges filed with the EEOC alleging disability discrimination based on anxiety disorder, depression and post-traumatic stress disorder increased by 16% from 2021 to 2022.
What can employers do to mitigate their exposure to these types of claims?
It is vital that companies and leadership recognize the impact that stress can have on the workplace. Stress can lead to reduced productivity, increased absenteeism, higher employee turnover and even an increase in the potential for workplace incidents. There are smart steps companies can take and policies they can implement to address this issue.
Offering employees medical coverage that provides robust support for mental health concerns, as well as creating an Employee Assistance Program to provide assistance to employees with questions or issues related to mental health, is a best practice.
Having a written policy in place that puts the company in compliance with the Americans with Disabilities Act and the Family and Medical Leave Act, as well as any state law equivalents, is a critical step to help minimize potential liability. The policy can include educating employees on how to request a workplace accommodation, as well as training supervisors and managers on recognizing those requests.
If a company intends to take action (up to and including termination) against an employee, especially someone with a disability or someone who has requested a workplace accommodation, it should exercise caution. Prudent employers will consult with counsel before making any employment decisions related to personnel.
If an employer is sued for alleged disability discrimination, how would having an Employment Practices Liability policy benefit the company?
Policy terms, conditions and language can vary, but if an event triggers coverage, the insurance provider will help cover costs associated with dealing with and defending a claim. With the significant costs required to settle some Employment Practices Liability claims – or the amount that could be awarded if a lawsuit leads to a trial – having a policy in place could save a company millions of dollars. Protecting a company’s assets starts with securing an Employment Practices Liability policy. Even before a claim is filed, a policyholder can benefit from risk management services provided by the insurance carrier, including keeping the company updated on new regulatory and legal requirements.