FAQs

Re: ADA Law 

Q: In an ADA case, is it necessary to prove actual intent to discriminate, and if so wouldn’t this be a subjective matter difficult to prove? 

A: It’s not necessary to prove intent.  The ADA provides an alternative method of proving disability discrimination, namely refusal to make a reasonable accommodation for a known physical or mental limitation of an otherwise qualified individual with a disability, unless the accommodation would cause undue hardship or a fundamental change in operations. 

Q: What is an “otherwise qualified” individual in an ADA case? 

A: The ADA requirements of being an otherwise qualified individual with a disability means that with a reasonable accommodation the person otherwise meets the essential eligibility requirements for participation in the program or for receipt of services. 

Re: Special Ed IDEA Law 

Q: Do we have to exhaust IDEA administrative remedies prior to filing an ADA or Section 504 case in court? 

A: Generally the answer is “yes” because the matter is usually “educational in nature”, where the harm is correctable by an IDEA hearing officer through adjustments to the FAPE or services provided.  However, there are exceptions when an attempt to exhaust remedies is futile.  One such exception may be when monetary damages are sought for harm resulting from failure to provide a FAPE or due to an incorrect or inappropriate FAPE.  Monetary damage (eg. for emotional distress and harm or other injury) is not a remedy that an IDEA hearing officer can award. 

Re: Employment Contract Law 

Q: Isn’t Colorado an “at-will” employment state where employers can terminate an employee at any time for any reason or for no reason at all? 
A: Colorado is an “at-will” employment state, however there are significant exceptions to the doctrine, such as wrongful discharge based upon violation of an implied contract, promissory estoppel, and only termination “for cause” following internal progressive disciplinary procedures.  Other protections are breach of public policy (e.g. retaliation for exercising a statutory right), and “whistle blower” claims.