The Americans With Disabilities Act

Civil rights for you

Almost three decades after the passage of the Civil Rights Act of 1964, a federal law was passed giving people with disabilities the same rights as minorities and women. This law, the Americans with Disabilities Act (ADA) of 1990, gives people with disabilities the right to compete fairly for jobs. ADA also gives people with disabilities the right to shop where they please, stay in whatever hotel they choose, and patronize any establishment open to the public; the right to use public transportation; and many other rights. Because finding and keeping a job is the topic of this book, this section will focus on the employment provisions of the law (Title 1).

Before the ADA became law, it was legal for most employers to look a person with a disability in the eye and say, “You have dyslexia. I will not hire you.” Today, employers (with 15 or more employees) cannot do that.

The goal of the law is simple. It is to eliminate discrimination against people with disabilities. But figuring out what it all means is complicated. The interpretation of the law changes when cases are decided in court. New regulations come out, clarifying the intent of the law. That means that the law may have changed by the time you read this chapter. In addition, the law has many exceptions, and listing them all would be boring and confusing, as many of them probably do not apply to you. My goal as the author is therefore to explain the truth about the law as it applies to most readers of this book.

If you decide to use the Americans with Disabilities Act to obtain your rights, research the latest changes in the law using your public library and the organizations at the end of the chapter. Study the latest court cases. In addition, it may be helpful to consult an attorney.

Most likely, you will not be involved in a lawsuit or complaint. Learning about your rights, however, can give you confidence and bargaining power. That is the purpose of this chapter.

Who is covered?

In an adversarial situation, proving that you are covered by the Americans with Disabilities Act is the first, and sometimes hardest, step to obtaining your rights. Because of the widespread belief that learning disabilities, attention deficit disorder, and dyslexia are not severe, it is possible that an employer will try to claim that you do not have a disability. In addition, if you are able to mitigate the effects of your disability-such as by medication or even by accommodating yourself-you may not be covered. This section explains the standards that determine whether you are considered to have a disability under ADA.

You are covered by the ADA if:

You are discriminated against for a reason related to disability

Under this provision, you are protected from discrimination if:

• You are perceived as having a disability. Maybe your employer thinks you have a disability, but you don’t. Or, you have special education records that say you have a disability. But you don’t think your old diagnosis has any bearing on the jobs you are investigating. A prospective employer, however, just found out about that history and now says she won’t hire you. This is legally questionable under the ADA.

• You are related to, or associated with, a person who has a disability. Suppose someone won’t hire you because they think it’s too time-consuming for you to take care of your child with a disability. That is illegal under the law.

• You have a bona fide disability, as discussed immediately below.

Your learning disability, attention deficit disorder, dyslexia, or other condition substantially limits a major life activity

Let’s look at what this means. Major life activities include caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, thinking, concentrating, and interacting with other people.

Speaking, working, thinking, concentrating, and interacting with other people are the major life activities that are usually affected for people with learning disabilities, attention deficit disorder, and dyslexia.

In order to be considered “substantially limited” in working, you must be unable to perform many jobs, not just one position. So, if your disability affects your ability to drive, read, write, take phone messages, or work in an “open space environment” it will probably affect your ability to do more than one job. On the other hand, if your disability makes it impossible to use a software system that only your employer uses, it could be argued that you are only limited in doing that particular job.

Myths about The Americans with Disabilities Act

The Americans with Disabilities Act does not:

• Give you the right to a job because you have a disability. You must be qualified and compete. And you may be rejected from jobs just like anyone else.
• Give you extra points in getting a job. The ADA is not an affirmative action statute. That is, it is not intended to make up for past discrimination by requiring the employers hire a certain number of people with disabilities or giving them incentives to do so.
• Fund training, scholarships, or reasonable accommodations. The United States government receives funds to enforce the law and to provide information to organizations so they can comply. However, employers have to pay for accommodations themselves. If they cannot pay, then you become responsible.
• Allow any special privileges on the job. Although sometimes reasonable accommodation might look like special privileges to other people, you have the same responsibilities and challenges as your fellow employees.

The term “substantially limited” protects employers against people whose minor limitations could be misused as a disability. For example, if you take a long time to learn to spell complicated medical terms, that would not constitute a disability. Many people without dyslexia have that problem. Or, you would not be able to claim you had an auditory perceptual problem because you had trouble taking notes regarding unfamiliar technical information. To be protected under ADA, you also must be qualified for the job.

You are qualified for the job

The Americans with Disabilities Act only covers people who can do the job. So, a blind person who wanted to drive a bus would not be protected. The fact is that very few people apply for positions which their disabilities prevent them from doing. On the other hand, the law is balanced to assure that employers are not forced to hire people who are not qualified.

You must meet any job-related requirements. If you don’t have an M.D., you can’t become a doctor. If a job requires three years experience working in a stockroom, you must have three years experience working in a stockroom.

Even though attention deficit disorders, dyslexia, and learning disabilities give people tremendous difficulties in earning degrees, passing standardized tests, and gaining credentials, it is legal for the employer to demand them. The employer must, however, demand the same degrees, test scores, and credentials of every applicant. That is why education is so important and why using informal ways of looking for jobs is often a good move for people with learning disabilities. Unless we have a hand in determining the qualifications for the job, we often can be legally removed from consideration.

In ADA lingo, you are qualified if you are “able to perform the essential functions of the job with or without reasonable accommodation.”

You can do the essential functions of the job

“Essential functions” refers to those activities that are intrinsic to the job. What must a person do to perform the core responsibilities of a job? For example, landing and taking off a plane are essential functions of a pilot’s job.

Essential functions are determined individually for each job. For example, reading would be an essential function for an abstractor, where the job is to read and summarize articles. But it might not be an essential function for a retail clerk, even if that clerk must read instructions occasionally. Many employers have written job descriptions that state the essential functions.

Essential functions that sometimes are challenging for people with attention deficit disorder, dyslexia, and LD are:

• reading;
• writing;
• mathematical calculations;
• attending work regularly each day;
• coming in at a specific time;
• driving a vehicle;
• getting along with your boss, team leader, supervisor, or team.

The exact definition from the law reads: “The term ‘qualified individual with a disability’ means an individual with a disability, who, with or without reasonable accommodation, can perform the essential functions of the employment position…” (Title 1, Section 101, (8)).

So, you are still considered qualified if reasonable accommodation is required to meet these functions. As it applies to employers, making “reasonable accommodation” usually means removing obstacles from the job, the workplace, or the terms and condition of employment that would otherwise prevent an otherwise qualified person with a disability from doing the job. For example, computers and calculators are accommodations that can help many people who have learning disabilities or dyslexia with routine arithmetic and proofreading functions. And the use of flextime and flexplace can be accommodations for people who have trouble coming in at a specific time to a specific place. (They can also be options open to all employees.) See page 234 for more information on reasonable accommodations.

A fair competition for each job

The Americans with Disabilities Act sets the rules to create a level playing field for job applicants and employers. This section explains the most important of those rules.

Protections when you apply for the job

Employers may not discriminate by using a test or application process that is particularly challenging for people with disabilities. The exception is if they are testing your ability to do an “essential job function.” For example, the employer could include a speed-reading test if most of the time is spent reading quickly and you cannot perform the job unless you can quickly understand written materials.

Pre-employment examinations (tests given when you apply) must measure the skill that is being tested, not your disability. The test must evaluate your ability to do the tasks required by the job. It must “relate to business necessity.” So, a math test could be given to applicants for a stockroom job, if you would be measuring, counting, and calculating at work. For an editorial assistant position, a proofreading test would be acceptable. This test probably would not be legal for a position as a server in a restaurant.

The employer must provide reasonable accommodation in pre-employment examinations. So, if you have difficulty reading, the employer must allow you to be evaluated in another way, perhaps by having someone read it to you. People with ADD may ask to take tests in a private room. Extended time is another frequent accommodation. In fact, most of the classroom accommodations described in Chapter 4 can be considered for pre-employment tests. Employers may, however, ask for proof of your disability, before determining whether they should make the accommodation.

What happens if you start the test hoping that your learning disability will not affect your ability to complete it? Then you find out that it does? You should stop taking the test, talk to the proctor, and arrange to take the test with reasonable accommodation at a different time. Unfortunately, pre-employment testing has become a legal way of forcing disclosure of invisible disabilities.

Employers may test applicants for illegal drugs. Some legal drugs used for attention deficit disorder, such as Ritalin and Dexedrine can be picked up by drug tests, although it does not usually happen. Talk to your doctor. Consider disclosing that you have a prescription for these drugs prior to the drug test.

Protections during the interview

Employers may not ask whether you have a disability or ask questions about your disability during an interview, unless you bring it up yourself. Then they can ask follow-up questions.

But employers may ask if you can do the activities that the job requires. They can even require you to show how you would do it. Here are some questions that they can legally ask you:

• “We need people who are reliable. Is there any reason why you might unexpectedly be absent from work?”
• “This job is stressful for many people, and we need people who are good at handling it. You will work for three people. They will not always coordinate their work (though we try to get them to talk to each other). They may be quite intense about your meeting their personal deadlines. How will you handle this?”
• “There are constant interruptions in this job. Can you start a task, be interrupted, and then go back to the work?”
• “Here is an example of the type of document you will be responsible for reading and evaluating. You’ll be required to handle six of these a day. Does that sound reasonable? Have you done this type of intense reading in the past?”
• “Since we make phone calls for various corporations and the people we call ask questions, you will have to learn specific facts at the beginning of each week. Frankly, some of them are pretty dull! Then you’ll have to use them accurately to respond to our customers. Can you give me some examples of your good memory?”

Employers may give you a medical examination after they make a job offer, providing that all applicants for the job must take the examination. The employer can withdraw the offer if the examination shows that even if you are accommodated, you cannot do any one of the essential functions. For example, if the tests showed that you were too farsighted to use a tape measure and you wanted to work in a fabric shop where measuring and cutting fabric was an essential part of the job, the employer could withdraw the offer.

In addition, the employer does not have to hire you if you are a “direct threat” to yourself or others. They must prove this and cannot rely on speculation or prejudice. So, they cannot say, “You have ADD, and I hear that people with ADD are impulsive. We can’t have that on this job.” On the other hand, it would be helpful for you to be prepared with an explanation of how you handle pressure if you disclose your attention deficit disorder.

Protections after you are offered the job

After a job offer is made and before you begin work may be a good time to disclose your disability and start bargaining for reasonable accommodation. At this point, you may also be negotiating other aspects of the job, such as salary and hours. If the employer then withdraws the job offer, it gives a strong appearance of discrimination-particularly if you have a written job offer. You have not yet begun to work or shown whether you can do the job, with or without accommodation.

Still, employers can discriminate at this stage in ways that are hard to prove in court. Examples:

• Sudden budget cuts are claimed. The job is re-announced months later under another title.
• The employer suddenly offers an unreasonably low salary-and will not budge.
• The employer insists that the accommodation is an undue hardship.
• For some reason, the written job offer never arrives-the start date is mysteriously delayed and delayed.

Deciding what to do in these instances is complicated. On the one hand, if you think you can prove discrimination, it might be worthwhile to contact a lawyer. On the other hand, you may want to keep looking, on the grounds that you don’t want to work for a company where you would feel unwelcome. In addition, suing a company takes away time that could be spent finding work.

Protections on the Job

Once you are hired, employers may not discriminate against you on the job. They may not:

• Put all people with disabilities in the same job category.
• Discriminate against you if you are being considered for a promotion.
• Fire you because of your disability.
• Refuse to give you training if it is offered to people with similar jobs.

Reasonable accommodation

Employers must make reasonable accommodation to the “known” disability of the applicant or employee.

But, to be covered, you must make your disability known! You must tell them! Many people with learning disabilities, attention deficit disorder, and dyslexia find this difficult. Once the disability is disclosed, discrimination may begin. On the other hand, you can’t get accommodation if you don’t disclose. This dilemma has been discussed throughout the book and is debated even further in Chapter 14.

Once you disclose, your employer can request medical documentation and evaluate it to determine whether your request is appropriate. You and your health care provider must prove that you have a disability that substantially limits a major life activity. The employer can require medical documentation, and not accept a letter from a learning disability specialist. And you must also prove you need the requested accommodation to do the job.

The law mentions these possible accommodations:

• job restructuring-asking co-workers to do some non-essential job functions that are difficult for an employee with disabilities;
• part-time or modified work schedules;
• reassignment to a vacant position;
• equipment and devices that help overcome the disability;
• adjustment or modifications to examinations;
• adjustment or modification of training materials;
• adjustment or modification of policies;
• the provision of qualified readers or interpreters.

The next chapter gives examples of accommodations that are particularly helpful for people with learning disabilities, attention deficit disorder, and dyslexia.

What if you are not covered by ADA?

Your employer claims undue hardship

The employer does not have to make a reasonable accommodation if it will cause an “undue hardship.” This protects employers from having to make an accommodation that is extremely expensive, difficult to implement, or disruptive. Generally, this provision applies to small businesses. The law says that factors to be considered in determining “undue hardship” include how big the employer is and how much money they have available. Examples of accommodations that might be considered an undue hardship include:

• an employee asking for over an hour a day of time from the supervisor to structure her work;
• a secretary asking to be relieved of taking phone messages due to an auditory perceptual problem when she is the only secretary serving the division.

Accommodating yourself

If you offer to pay for an accommodation, your employer cannot say “no” unless it is disruptive. So, if you want to use colored overlays, a pencil to keep your place, or other eccentric-looking accommodations, you cannot be told that company policy does not allow these self-accommodations. Likewise, the employer cannot prevent you from installing your own spell check or grammar check software on your computer, as long as it doesn’t damage the computer network. But you might not be able to dictate your reports into a tape recorder instead of writing them if you cannot find a place to do it without disturbing your office mates.

The employer must prove that an accommodation would cause “undue hardship.” Nevertheless, it is helpful to research several accommodations so your employer has options. The Job Accommodation Network, a service of the President’s Committee on Employment of People with Disabilities, can tell you about various accommodations and describe various options. Their number is 800-526-7234.

Your employer is too small or you are an independent contractor

Unfortunately, not all jobs are covered by the Americans with Disabilities Act. You are not covered if your employer has fewer than fifteen employees. Nor are you covered if you are working as an independent contractor.

Fortunately, many small businesses gladly provide accommodations. Ask with a positive attitude using the techniques suggested on pages 252-256. Explain that accommodation would make you more productive-and able to do a better job as an employee.

In addition, consider paying for your own accommodation. You may also be able to trade jobs with co-workers or find ways around your disability. The major difference that you face is that you do not have a right to accommodation. Employers can legally fire you if they wish to discriminate against you for having a disability. In addition, disclosing your disability gives you no legal advantages.

Filing a complaint

Although the ADA gives you many important rights related to employment, discrimination is very difficult to prove. To date, over 9 out of 10 cases under the ADA have been won by employers.

If you do decide to file a complaint regarding employment, your first step is to contact the nearest field office of the Equal Employment Opportunity Commission (EEOC). Look in your phonebook under U.S. Government or call 800-669-4000. The agency may be able to resolve your dispute. If not, your next option is to bring a lawsuit against the employer and let a judge decide whether you have been discriminated against. If you win the lawsuit, the ADA requires that your attorney’s fees be reimbursed; if you lose, you will have to pay the costs yourself.

Although it is possible to win an ADA dispute, it is usually easier to avoid one. For most people with learning disabilities, attention deficit disorder, or dyslexia, the smoothest road to a job is to do your research, conduct excellent interviews, and find an employer who wants a worker with your personality and qualifications. And, if you have to sue to get the job, do you really want to work there?

Sources of information about the Americans with Disabilities Act

If you are thinking about filing a discrimination complaint under the ADA or would just like additional information about your rights, there are many sources of free information. Your public library is likely to have the latest information about the Americans with Disabilities Act. The government sent 95 ADA publications and a videotape about the ADA to 15,000 libraries across the country. Here are some other sources, which have been adapted from publications of the Disability Rights Section of the U.S. Department of Justice:

• U.S. Equal Employment Opportunity Commission 1801 L Street, NW Washington, DC 20007 800-669-4000 (to ask questions about employment or for help locating your local field office) 800-669-3362 (to order documents)

  The EEOC offers technical assistance on the ADA provisions applying to employment and also provides information on how to file ADA complaints.

• The Disability Rights Education and Defense Fund (DREDF) ADA Hotline 800- 466-4232. This hotline is funded by the Department of Justice to provide technical assistance on the Americans with Disabilities Act Call the hotline to ask questions or order publications about the ADA.
• President’s Committee on Employment of People with Disabilities 1331 F Street, NW Washington, DC 20004 - 202-376-6200 (employment questions)

  The President’s Committee answers employment questions and funds the Job Accommodation Network, below.

• Job Accommodation Network 800-526-7234

  The network has a database of thousands of accommodations. Telephone consultants can provide personalized advice on accommodating employees with disabilities.

• Center for Learning Disabilities and the Law P.O. Box 368 Cabin John, MD 20818 301-469-8308.

  The CLDL is a non-profit organization that provides some counseling, but cannot return all calls. They are the only national organization that specializes in Learning Disabilities and the Law.

Be patient when you call these organizations. Some of the 800 numbers receive so many calls that you may have to hold or wait to have your call returned. And be ready with specific questions to ask. Do not try to tell your entire story on the telephone. Thank everyone who does a good job helping you.

Conclusion

The Americans with Disabilities Act can protect you against job discrimination from all except the smallest employers. Knowing your rights should give you confidence as you search for a job. Once you are offered a job, knowing your rights should also help you negotiate the accommodations you need. The next chapter covers a variety of actual job accommodations that you can consider for your specific situation.