“[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination[.]” 42 U.S.C. § 12101(a)(1). Accordingly, Congress passed, and subsequently amended, the Americans with Disabilities Act (“ADA”) to prevent discrimination based on an individual having a disability, a record of a disability, or being perceived as having a disability. These protections include, but are not limited to, protection from discrimination in employment.
Unfortunately, despite the fact that laws such as the ADA are in place to protect individuals with disabilities from discrimination, discrimination nonetheless occurs. Just because laws are in place to prevent discrimination, discrimination is not automatically eliminated. Laws are often violated. This is why it is important not only for these laws to be in place, but also for these laws to have robust enforcement mechanisms for those who have been discriminated against to seek justice when the laws are violated.
The ADA allows for individuals who have been discriminated against based on a disability in an employment context to file a lawsuit in court after they have gone to the appropriate government agency to exhaust their administrative remedies. However, sometimes employees who have been subjected to illegal discrimination and/or retaliation in the workplace based on a disability pass away before they get the opportunity to pursue any claims. Such a situation presents unique challenges to an employee’s estate.
Can the estate pursue a claim under the ADA on the deceased employee’s behalf?
Two things are clear. One, if a non-federal-sector employee files a charge of discrimination with the EEOC or a federal-sector employee files an EEO complaint, their claims are likely preserved upon death. See Guenther v. Griffin Constr. Co., 846 F.3d 979 (8th Cir. 2017). Two, if a federal-sector employee did not file an EEO complaint, that worker’s claims are likely not preserved upon death. See Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012) (“However, the court has found no case recognizing the authority of a deceased employee’s representative to initiate an administrative complaint on behalf of the deceased employee.”).
What is not clear is whether the claims of a non-federal-sector employee who has not filed a charge of discrimination with the EEOC are preserved. Relying on Wright, one might attempt to argue that the estate of a non-federal-sector employee does not have standing to purse a claim under the ADA on behalf of the deceased employee. However, there is better guidance from a state law case out of Florida.
Under Florida state law, a deceased employee’s estate may still purse discrimination and/or retaliation claims even if the employee had not filed a charge of discrimination prior to death. See Cimino v. Am. Airlines, Inc., 183 So. 3d 1242, 1243 (Fla. Dist. Ct. App. 2016) (“As noted in Wright, Title VII provides the exclusive remedy for federal employee discrimination claims. Part of the rationale for dismissing the federal equal employment opportunity (“EEO”) complaint of the widower in Wright was the inability of the decedent to first exhaust administrative remedies with the EEO division of her agency. There is no such requirement for non-federal employees under either Title VII or the FCRA.”) (internal citation omitted).
As Congress intended the ADA provide broad protections for those who are discriminated against on the basis of a disability, logically an individual’s estate should have standing to pursue any claims after death regardless of whether the employee had initiated the process to exhaust any administrative remedies. Denying the estate’s ability to do so would go against public policy. Accordingly, when faced with such a situation, the courts should decide an estate has standing to pursue any claims regardless of when in the process an aggrieved employee’s death occurs. A failure to do so would run contrary to Congress’s intent to provide expansive protections and result in a failure of the system.
If you have been discriminated against because of a disability, you should consult with an employment lawyer right away to start the process to make sure any claims you may have are protected. However, if you have a loved one who was discriminated against and passed away before he or she could pursue their claims, you may still have the ability to do so on their behalf.