14
ADD and the Americans with Disabilities Act
In this Chapter
This chapter deals with your legal rights as an adult with ADD and addresses the often asked question “Should I disclose my ADD to my employer?’’
A law, pertinent to adults with ADD, is the Americans with Disabilities Act (ADA). This law requires that employers of more than 15 employees give employees whose disabilities are documented certain “reasonable accommodations” in order to allow them to perform their work. It also prohibits discrimination against persons on the basis of their disability. This chapter discusses the ADA, what your rights are, and when you should choose, as a last resort, to engage the services of an attorney if you feel that the law has not been adhered to.
Before any laws can be applied to you as an adult with ADD, you must first inform your employer that you have a disability called Attention Deficit Disorder. The decision to inform an employer is an important one, which we will discuss before going on to outline how the ADA protects adults with ADD in the workplace.
Disclosing Your Disability
In order to officially request accommodations at work on the basis of your disability you must disclose your disability, document your disability, and describe your needs for accommodation.
Some people feel they are being dishonest by not disclosing a disability during a job interview, but you are not required to do so. In fact, it is illegal for a prospective employer to ask about the presence of disability during a job interview. Furthermore, you have no way of knowing how a potential employer might react to such a disclosure. By disclosing, you will almost certainly take yourself out of the running for the job even if you, with reasonable accommodations, would be an excellent choice for it. The employer certainly does not feel obligated to inform you of all the reasons you might not want to accept the job. Neither are you obligated to inform prospective employers of all the reasons they might have for hesitating to hire you. In an interview, both the potential employer and employee are presenting their best selves.
Generally, disclosure is recommended only when other efforts have failed.1 Why? Because ADD is an invisible disability that is poorly understood and often interpreted negatively by employers. If you are having difficulty functioning on the job and then decide to disclose your ADD, you run the risk of being seen in an even more negative light. If you are functioning relatively well on the job but choose to disclose your disability, you may bring about subtle, or not so subtle, changes in the way your coworkers view you. This is not always the case. Some people with ADD who choose to disclose receive a helpful response. Thus, you must carefully examine the situation, weighing the pros and cons, before you decide whether or not to disclose.
Positive Disclosure Experiences
Margaret had difficulty with her immediate supervisor but had developed a warm rapport with her department chief. After repeated attempts to request minor and quite reasonable accommodations from her supervisor, Margaret decided to talk with the chief. She disclosed her ADD with some trepidation. As luck would have it, the chief responded very supportively, relating in confidence that he was a learning disabled adult himself. He then worked on Margaret’s behalf to influence her supervisor to provide the support she needed on the job.
Negative Disclosure Experiences
In a group discussion at a recent adult ADD gathering, Joe related his story almost tearfully, warning others to think twice about disclosing their ADD.
Joe was a high-ranking executive in a large national corporation when he, along with other managers, was invited to go on a weekend-long executive retreat. Led by a psychologist, group members were encouraged to take personal risks in self-disclosure as an exercise in team building. Joe, entering into the spirit of the occasion, disclosed that he had never been a good student and had only barely graduated from college years before. Working among men who had gone to top colleges, some of whom had gone on to earn graduate degrees in business and law, Joe had never before shared this information about his academic failures. He then went on to disclose that after his son was diagnosed with ADD, he realized that he had struggled with this disorder all his life. Finally, he disclosed that he was now receiving treatment for ADD.
Joe was treated and perceived differently almost immediately after the weekend experience. His boss requested an individual meeting to hear more about his ADD. From that time on, Joe felt that he was gradually shifted out of a position of responsibility. Later, when the company “downsized,” Joe was selected to be laid off. Although his suspicions were difficult to document, Joe felt strongly that his being laid off was a direct result of his disclosure during the retreat. Prior to disclosure, he had an excellent work record and had received a series of promotions; following his disclosure, his influence and authority were gradually reduced.
Studies are sorely needed on the outcome experienced by people who choose to disclose their ADD at work. At this point, given general public ignorance about ADD, especially in adults, it seems reasonable to take a cautious approach and to consider disclosure only when all other avenues have been explored and found lacking.
Alternatives to Disclosure
You don’t need to discuss your ADD in order to ask for reasonable accommodations. Rather than describing your disorder in terms of a disability that needs accommodations, you can just as easily characterize it as a problem that has possible solutions. In this way, you can present yourself in a positive light—as an employee who is trying to become more efficient at work and is seeking support in doing so.
Talk about problems and solutions rather than disability and accommodations.
It may be helpful to refer back to Chapter 3, which describes ways to take charge of ADD patterns at work; there you will find numerous “solutions” that may be useful to suggest to your supervisor.
In spite of negative experiences like those described earlier in this chapter, there are nevertheless circumstances under which disclosure is warranted.
Your Rights under the Law
The preceding section of this chapter has dealt with whether or not to inform your employer that you have a disability. This section explains briefly exactly how you are legally protected in the workplace as a person with a disability.
Legal Protection under the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) outlaws discrimination against people with disabilities, whether they are employed in the private or public sector (and even extends to people employed by Congress). There are other laws that also pertain to persons with disabilities but the ADA is by far the most important for workplace issues. More detailed information about the ADA and other laws can be found in Succeeding in the Workplace, edited by Peter and Patricia Latham (see reference section).
Qualifications for Protection under the ADA2
In order to be protected by the ADA in a job discrimination case, you must be able to demonstrate the following:
❶ | You have a disability. |
❷ | You are “otherwise qualified” to perform the job. |
❸ | You were denied a job or some benefit by reason of your disability. |
❹ | The employer is covered under the ADA. |
Let’s explore each of these points in detail.
What Qualifies as a Disability under the ADA?
A disability is a physical or mental impairment that substantially limits one or more of a person’s major life functions. Some disabilities, such as blindness and deafness, are self-evident. “Invisible” disabilities like ADD must normally be officially diagnosed by an expert in the field. The expert must provide written documentation of the disability and describe the impairment caused by it. Some employers require both a letter from a physician and a psychological testing report as documentation.
“Otherwise Qualified”
The phrase “otherwise qualified” is critical. You must prove that you are “otherwise qualified” to do the job. That is, you have all of the education, experience, know-how, and ability to do the job and would be entirely able to perform the functions involved if you were given certain specified accommodations. There have been cases in which an employer has claimed that the disability itself disqualifies the person to do the job, and this contention has held up in court.
In cases of physical disability, as compared to those involving attentional or learning problems, it is often easier to see how the disabled person can be accommodated in such a way that he or she can perform the job. Moreover, some cases of ADD affect a majority of areas of functioning, which makes it much more difficult to demonstrate that a person’s problems in performing the job would be eliminated if he or she were given certain accommodations.
Denial Strictly on the Basis of Disability
You must be able to demonstrate that your disability was the sole or primary reason you were not selected for the job. An employer is not required to hire you or to retain you because you have a disability! This is an important issue to understand. Some disabled adults, misunderstanding the ADA, believe that they can charge an employer with discrimination solely because they were laid off or were not hired in the first place. Your current or potential employer may have a perfectly legitimate reason to prefer someone else over you. Such a preference does not automatically constitute disability discrimination.
Employer must be Covered by the ADA
Employers with few employees are not covered by the ADA. This group was excluded because it was felt that the accommodations needed by a person with disabilities would be too costly for a small enterprise. Even in the case of larger enterprises, however, you cannot demand to be granted an unreasonable accommodation (see below).
What is a Reasonable Accommodation?
A reasonable accommodation is an alteration in the employer’s work or testing requirements that would enable an individual with a disability to meet the essential requirements of the job without imposing undue hardship on the employer. Which accommodations are deemed reasonable is generally decided on a case-by-case basis when antidiscrimination suits come to court. Over the course of many such cases, precedents will be established for employers to follow. An organization called Job Accommodations Network (JAN)3 records and categorizes workplace accommodations for all categories of disabilities. You can request from JAN a list of the types of accommodations that are generally considered reasonable for persons with learning disabilities (ADD is typically lumped together with learned disabilities by the JAN). However, there is no guarantee that you will be granted an accommodation just because it has been listed by JAN. (See Chapter 11 for a list of accommodations, which includes many recommended by JAN.)
Taking Legal Action
You need to think about retaining a lawyer when the following conditions exist:
Legal action should not be undertaken lightly. Even if you win your case, you should consider what it will be like working for someone whom you have sued. Is this a job you will want? Have you gone through a painful, expensive exercise to vindicate yourself? Is it worth it? Sometimes the answer is “yes.” Probably, more often, your money and energies are better spent elsewhere, seeking a different position.
Ron was employed by the federal government as a research scientist. Although a responsible and dedicated employee, Ron suffered, without benefit of diagnosis or treatment, from both ADD and a written language disability. Although Ron was able to do an excellent job as a researcher in the lab, his ADD symptoms and language disability led him to experience enormous difficulty in giving presentations and in writing articles for publication.
Ron was eventually diagnosed with ADD (the learning disability diagnosis came later). He disclosed his ADD diagnosis to his immediate supervisor, from whom he had received poor performance ratings. Moreover, Ron was in jeopardy of losing rank as a senior scientist. Unable to maintain a high output of published papers, required of a scientist of his rank, he was threatened with a demotion to support scientist. Ron, feeling that he had benefited tremendously from his diagnosis and treatment for ADD, requested an opportunity to prove his new capacities before being demoted. However, because of the chronic problems with his supervisor, Ron did not receive the accommodations he had requested for his ADD; furthermore, his supervisor gave him performance requirements that were far beyond the usual, in effect setting him up for failure.
Ron, facing demotion, hired an attorney. An Equal Employment Opportunity Commission (EEOC) hearing was scheduled. All of the events were outlined at the hearing, and the panel decided that Ron had not been given adequate accommodations for his ADD or for his newly diagnosed learning disability. Additionally, the panel found that the requirements placed on Ron to keep his job were unreasonable. Accommodations and a change in requirements were ordered, and Ron was assigned to a more supportive supervisor. In addition, Ron continued to receive counseling for his attentional and learning difficulties and sought the assistance of a tutor to improve his writing skills. His job was saved, and he was able, over the course of the next several months, to clearly meet the job requirements to retain his status as an independent research scientist.
While Ron’s story has a happy ending, it is important to emphasize that the process he went through to keep his job was a lengthy, emotionally exhausting one. Furthermore, he was left in the uncomfortable position of continuing to work in association with the man against whom he had defended himself in the EEOC hearings. Such proceedings should only be undertaken as a last resort and only if there seem to be no desirable work alternatives elsewhere.
Negotiating Instead
Instead of bringing a lawsuit against your employer, you might consider negotiating the terms of your departure. Lawsuits are painful and expensive for employers as well as employees. Usually both parties would much rather avoid such an action. If you have a documented disability, feel that you have not received reasonable accommodations made in good faith, and feel that your employer is placing pressure on you to resign, it may be best to talk directly to your supervisor; discuss your grievances, your rights, and your disability; and suggest that a settlement be negotiated prior to your voluntary departure to avoid the pain and expense of a lawsuit for all concerned. In exchange for dropping the lawsuit and leaving voluntarily, you might consider negotiating for the following:
Employment extended for a specific time period in which you actively seek another job
Severance pay
Written letter of recommendation
A satisfactory severance package was won by a man who was himself a lawyer. He had done very productive work for his organization over a number of years. When the administration changed, however, his ADD traits of poor organization and poor time management were much less tolerated by the new regime. This man suspected he had ADD and obtained a diagnosis. He chose to disclose it immediately because his job was already in jeopardy. When it became clear to both sides that they faced a nasty battle, the negotiated agreement was a relief to all. Unfortunately, most adults with ADD don’t have the leverage to negotiate such a departure.
Conclusion
To summarize, the ADA has given much-needed support in the workplace to persons with disabilities and is leading to improved awareness of and sensitivity to disabled persons at work. The law, as it is written, is broad and general. What accommodations are reasonable for a person with ADD to request of his or her employer has not yet been established.
If things have gone so wrong that you are strongly considering a lawsuit, you should even more strongly consider alternative employment! Bringing a lawsuit against an employer is lengthy and costly. There is no guarantee that you will win the suit, and if you do, there is little likelihood that keeping the job you have fought for will be good for you. There are certainly circumstances in which filing a suit is appropriate, but in the majority of cases the process will be painful and destructive and will take your attention away from making positive changes in your work life. Normally, it is much easier to find a better position than to force an unwilling employer to improve your current one. Don’t lose sight of your real objective: finding a workplace where you can grow and thrive.