Colker's research shows that, in the eight years since the ADA's employment provisions went into effect, employer-defendants prevailed in more than 93 percent of cases decided at the trial court level. Of the cases that are appealed, employers prevailed 84 percent of the time. Another 14 percent involved the employers' failure to provide reasonable accommodations. When these concerns depend on court decisions, the resolution rarely favors disabled employees. In an increasingly conservative, hostile judiciary, disabled workers' requests for reasonable accommodations are being met with stiff opposition and involuntary dismissals.
Some experts cite confusion over how to interpret the law.
Burgdorff says judges tend to view ADA plaintiffs as seeking special benefits and treatment, instead of equal rights. Judges may not accept a civil rights model for disabled workers, as they have for other minorities. But the facts strongly suggest the opposite. Rather, most cases involve workers with significant restrictions, who have been terminated because of their physical or mental conditions, or have been denied reasonable accommodations. Yet many cases never get to the stage of determining whether the employee's rights have been violated, or whether a remedy is in order.