That's the word in a recent legal brief in the County Information Bulletin published by the Allison, Bass and Associates law firm in Austin.

"To avoid punitive damages, counties should use a good faith effort to implement their anti-discrimination policies," the Bulletin article stated. "If the county can prove that it worked to implement its anti-discrimination policies in good faith, it may be able to avoid punitive damages despite some wrong decisions made by its supervisors."

Attorney Bob Bass explained in an interview that in the past, when lower level managers were involved in misconduct that denied an employee his right to be free of various kinds of discrimination, an employer's liability was limited by the defense that upper level management was ignorant of the supervisor's activities. If an employee failed to file a grievance that came to management's attention, the employer was not at fault, for legal purposes.

"Counties have avoided a lot of liability because the employee never lodged a complaint or an incident was never communicated to superiors," Bass said. "But now, the defense that you weren't aware of it is pretty much out the window."

Similar opinions in cases involving ADA and racial discrimination cases we're based on precedent on the heels of a 1998 sexual harassment case against the City of Boca Raton, Florida, in which the U.S. Supreme Court held that the employer could raise an affirmative defense to avoid strict liability only if it could prove two elements:

• that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
• the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

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(An analysis of the Boca Raton case was publish in the County Information Bulletin in October 1998.)

"For hostile environment cases, the rules have changed," Bass said.

"Written policies alone do not suffice," the recent Bulletin article said. "Proactive training and education about diversity and disabilities should be practiced by all counties."

While many counties have ADA policies in their personnel handbooks, more is required now.

"Counties need to distribute copies of their anti-discrimination policies to all employees on their start date and keep records of having done so," the article said. "But, in order to ensure full protection from potential punitive damage claims, counties should not only make sure the policies are there, but they should make sure that they are implemented. Real good faith requires the employers to implement the policy on an ongoing basis."

Also addressed in the article were court rulings that establish a legal mandate for employers to engage in an "interactive process" with employees who believe they have been denied a reasonable accommodation under ADA. In essence, the communications effort is necessary because "employers will not always understand what the disabled employee is capable of and the employee will not always underunderstand what accommodations are reasonably available," one opinion asserted. The article suggested that counties should document the interactive communications about ADA accommodations.

The article made several suggestions on how counties can implement good faith policies that will help avoid discrimination liability:

• Circulate County ADA Policy. Be sure all employees have received the County ADA Policy and are aware of it. This is especially necessary for supervisors who have been employed more than eight years (the ADA law took effect in 1992). They didn't see the policy when they started and they may not know enough about it.
• Update the policy as a matter of course. The policy must be continually refreshed to ensure that it complies with the changes in the law and is working in the most effective manner to suit the county's needs. Conduct an annual review of ADA and other anti-discrimination policies.
• Document the ADA interactive process. Have managers document their good faith efforts to enter into and participate in the interactive process once a request for an accommodation has been made.
• Conduct meaningful training sessions. Employees must receive real training to ensure that they understand and are given incentive to comply with county anti-discrimination policies. Supervisory and non-supervisory personnel alike should be educated. The more educated the workforce, the more insulated the employer.
• Then conduct more training sessions. Employers should not have just one training session. There is always turnover, so an employer has to make sure that all new employees are trained and understand how the policy works. Counties can also continuously reinforce the messages through county newsletters, e-mails, formal and informal meetings and refresher courses.
• Institute effective grievance mechanisms. Counties should adopt strong compliance procedures, with prompt investigations that offer effective remedies. In order for ADA policies to have teeth, they must address and correct discriminatory conduct head on.