On March 27, 2010, Chai Feldman was given a recess appointment to the post of Commissioner of the EEOC, and was sworn in on April 7, 2010. As an openly gay woman, much has been written about what Commissioner Feldman’s appointment will mean for lesbian, gay, bisexual and transgender rights. However, often lost in the analysis is what Commissioner Feldman’s appointment means to employers in light of her documented advocacy for protecting the rights of disabled employees.

As the former Legislative Counsel to the AIDS Project of the American Civil Liberties Union, Commissioner Feldman is credited with having played an integral role in the drafting of the Americans with Disabilities Act of 1990 and then as an advocate for the passage of the ADA Amendments Act of 2008 (ADAA).

1. Tougher Enforcement of the ADA and ADAA

Make no mistake, Commissioner Feldman strongly believes in the ADA, the ADAA and what these laws mean to covered employees who wish to remain in the workforce. Expect the EEOC to start pushing employers to be more flexible and imaginative with respect to available means to accommodate an employee, think technology and think as broad as the New York City Human Rights law or New York State Human Rights law. That leads me to number 2.

2. Workplace Flexibility Will Be Emphasized by the EEOC

Most recently Commissioner Feldman served as the Co-Director of Workplace Flexibility 2010, where she worked to advance flexible workplaces and hours for employees. The EEOC is likely going to aggressively explore the boundaries of adjustments in employees’ schedules, and alternate work cites i.e. telecommuting, as possible "accommodations" for an employee’s disability.

3. Be Careful of What You Say in that Position Statement

Keeping the prior two points in mind, simply stating in that position statement, written one day before its due to the EEOC that the requested accommodation will cause an undue hardship to the business may come back to bite you.

4. Use the Interactive Process to Probe the Alleged Disability

All said, ensure that you are engaging in a very interactive process with the disabled employee. Ask probing questions to determine the extent of their alleged disability and their limitations with respect to the job. Then, THINK long and hard about what can be done to accommodate that employee. If all else fails, think what would Commissioner Feldman believe is reasonable.

However, as always, contact an employment attorney to discuss these issues before giving a written or off the cuff response to an accommodation request that may cause the EEOC to issue an unfavorable ruling against your company.

On that note, ladies and gentlemen, I am officially a blogger.