Avoiding reverse disability discrimination claims

Q As part of my company's diversity efforts, I would like to reach out to some disability advocate groups to try to fill a few vacant positions. I'm afraid that by doing so, I may be opening up the company to reverse discrimination claims under the Americans with Disabilities Act (ADA). Are my fears justified?

A First off, I applaud your company's diversity efforts, particularly with respect to the disabled — a group that sometimes is forgotten when it comes to outreach efforts. As for your fears, they are justified only to the extent that there is little (or nothing) you can do to stop a rejected nondisabled applicant from filing a failure-to-hire claim based on perceived reverse disability discrimination. Unfortunately, as many companies see from time to time, some disgruntled applicants and employees will sue for almost anything — even if the claims have no legal basis.

The good news is that from a purely legal standpoint, a nondisabled individual doesn't have a claim under the ADA premised on the belief that an employer gave a disabled applicant or employee preferential treatment over a nondisabled applicant or employee (even if it's true). So if a disgruntled applicant or employee who isn't disabled sues for reverse disability discrimination, you should have a strong defense under the ADA.

Unlike the ADA, the Florida Civil Rights Act (FLCRA) doesn't expressly protect against reverse disability discrimination claims. The FLCRA generally is interpreted in a manner consistent with the ADA, however, so there may be a good argument that reverse disability discrimination claims aren't recognized under the state law, either.

Note that the ADA is unlike Title VII of the Civil Rights Act of 1964 when it comes to reverse discrimination claims. Title VII protects men and women and people of all races, colors, religions, and national origins. So under Title VII, for example, a man can make a claim of reverse discrimination premised on the belief that his employer treated a woman better than it treated him with respect to the terms or conditions of employment.

The Age Discrimination in Employment Act (ADEA) is more in line with the ADA in that applicants and employees under the age of 40 can't make reverse age discrimination claims premised on the belief that an employer gave preferential treatment to somebody older than 40. But the FLCRA protects everybody, of any age, against age discrimination. So reverse age discrimination claims arguably may be brought under the FLCRA.

If you have a question or issue that you would like Andy to address, e-mail arodman@stearnsweaver.com. Your identity will not be disclosed in any responses. This column is not intended to provide legal advice. Answers to personnel-related inquiries are highly fact-dependent and often vary state by state, so you should consult with employment law counsel before making personnel decisions. Read More...