ODDC- Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilitie Act

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TITLE: Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act http://www.eeoc.gov/facts/intellectual_disabilities.htm

Author: The U.S. Equal Employment Opportunity Act (Katherine Cargill-Willis 12/10/04 )

People with intellectual disabilities (ID) and the ADA: An estimated 2.5 million people in the U.S. have an intellectual disability and only 31% of those with intellectual disabilities are employed, although many more want to work. A person is considered to have an intellectual disability when:

The person's intellectual functioning level (IQ) is below 70-75;
The person has significant limitations in conceptual, social, and practical adaptive skills; and
The disability originated before the age of 18.

Title I of the ADA prohibits discrimination against a qualified applicant or employee because of a disability in any aspect of employment. The ADA covers private employers with 15 or more employees, state and local governments. However the ADA does not cover everyone with an intellectual impairment and the ADA's definition of “disability” must be met in any one of three ways:

An individual's impairment must substantially limit one or more major life activities;
A person has two impairments that taken together substantially limit one or more major life activities;
A person has a past record or history of a substantially limiting intellectual disability;
A person does not have a substantially limiting intellectual disability, but are treated as if they do.

The ADA can also protect people who are not disabled but are discriminated against based on their association or relationship with someone with a disablitiy, for example, a parent of a child with a disability. A person with this kind of relationship is protected under the ADA, but is not entitled to reasonable accommodations.

Obtaining and Using Medical Information: The ADA limits an employer's right to ask questions related to disability and to conduct medical examinations at all stages, including: pre-offer, post offer and during employment.

Job Applicants: An employer may not require a medical examination from an applicant or ask disability-related questions before making a job offer. The employer can ask an applicant questions about his or her ability to perform job-related functions. If an applicant voluntarily tells an employer that he or she has an intellectual disability or if the disability is otherwise obvious, an employer may only ask questions regarding reasonable accommodations. At the pre-offer stage, an employer can not ask a third party any of these questions.

After an Offer of Employment is Made: Once the offer is made, the employer may ask questions about the applicant's health (including questions about their disability) and may require a medical examination, if a medical exam is required of all employees. Once the information is received, an employer may ask specific individuals for more medical information if it is related to the previously obtained medical information.

Employees: An employer can only seek medical information if there is objective evidence a medical condition may be the cause of the employee's performance problems.

Keeping Medical Information Confidential: An employer cannot disclose an employee’s disablitity to co-workers to explain “special treatment.” An employer may disclose that someone has an intellectual disability:

To supervisors and managers who need to provide a reasonable accommodation or meet work restrictions;
To first aid/safety personnel concerning emergency treatment needs or assistance in case of an emergency;
To individuals investigating compliance with the ADA and similar state and local laws; and
Where required for workers' compensation or insurance purposes, for example, to process a claim.
Employers may avoid many questions by giving all employees training on the ADA and other EEOC laws,

Accommodating Persons with Intellectual Disabilities: Once an employer determines an employee requires an accomodation, he or she must make a reasonable effort to determine the appropriate accommodation. A third party may request an accommodation on the employee’s behalf and the employer must respond as if it came from the employee. If the appropriate accomodation is not obvious, the employer should discuss options with the person and/or his representative to determine a suitable accommodation. Some people will need reasonable accommodations to apply and/or interview for a job, such as a reader for application materials; demonstrating job requirements; modifying tests, training materials, and/or policy manuals; and replacing a written test with an “expanded”interview allowing applicants to demonstrate their skills instead of describing them.
Specific reasonable accomodations: A person with ID/DD may need the following accommodations:
- Job restructuring: Exchanging non-essential functions between employees.
- Training for the job: Giving instructions at a slower pace; giving additional time to finish the training; breaking job tasks into sequential steps; and provide additional training if there are any on-the-job changes.
- Job Coach: Assisting the employee when he begins a job and reducing the time spent with job coach when the employee learns the job;
- Modifying work schedules;
- Help with job evaluations or disciplinary proceedings: A third party may come to an evaluation or disciplinary meeting to help the employee ask questions, explain evaluation results or the meeting’s purpose;
- Acquistion or modification of equipment or devices;
- Work station placement.
Requesting a Reasonable Accommodation: Although a request for a reasonable accommodation must be communicated to the employer, the words “reasonable accomodation” or “ADA” do not have to be used. The request may be made verbally or in writing by the person with a disability or a representative for the person. This request can be made during the application process, when the need develops during employment; or when new tasks make accommodations necessary. An employer has a legal obligation to initiate a discussion about the need for a reasonable accommodation and to provide an accommodation if one is available if the employer:
- Knows that the employee has a disability;
- Knows, or should know, that the employee is having workplace problems because of the disability; and
- Knows, or should know, that the disability prevents the employee from requesting an accommodation.
In some cases, an employer can choose the kind of accommendation that is provided and whether the request may cause “undue hardship.” Studies show that most workers with intellectual disabilities require no special accommodations and that the cost of accommodations is minimal If an employer believes that a particular accommodation would result in undue hardship, it must consider an alternative accommodation. An employer does not have to remove an essential job function, lower production standards, or excuse violations of conduct rules that are job-related and consistent with business necessity. As part of the interactive process, the employer may offer more than one suggestion for a reasonable accommodation. Where two possible reasonable accommodations exist, the employer may choose the less expensive or less burdensome as long as it is effective.

When a person's disability is not obvious, the employer is entitled to know that the person has a covered disability and needs a reasonable accommodation, but the employer may not request documentation unrelated to the disability at issue, or the accommodation requested. The employer may request that information or documentation of a person's impairment be provided by a physician or an appropriate professional. Information about a person's functional limitations can also be obtained from non-professionals, such as the applicant, family, and friends. If the job changes, the employer may have to provide a different accommodation.

Supervision: The type and amount of supervision required for employees with intellectual disabilities will vary greatly. A person with an intellectual disability may take longer to master the tasks associated with a job. However, studies have established that when workers with intellectual disabilities are properly trained, they can perform as effectively as other workers. Modifying supervisory methods may be a reasonable accommodation.
Safety Concerns: Several surveys indicate that employees with intellectual disabilities do not create an increased safety risk and that their safety records are the same as other workers. An employer may refuse to hire a person because of their disability only if he or she in fact poses a “direct threat” to his or her own health or safety, or to the health and safety of others in the workplace. “Direct threat” means “significant risk to the health or safety of the individual with a disability or others that cannot be eliminated by reasonable accommodation.” Employers must consider the duration of the risk, severity of the potential harm; and the possibility of the potential harm.

Conduct: An employer does not have to excuse violations of an uniformly applied conduct rule and may discipline an employee with a disability, as long as the employer imposes the same discipline on everyone.

Harassment: Approximately 20% of the employment discrimination claims brought by persons with intellectual disabilities under the ADA allege harassment based on disability. The EEOC has litigated several of these cases.The ADA prohibits conduct that is sufficiently severe or pervasive to create a hostile or abusive work environment. Acts of harassment may include verbal abuse, graphic and written statements, or conduct that is physically threatening, harmful, or humiliating. The law does not protect any worker from rude or uncivil conduct, and it must be considered hostile and abusive to the person and to a reasonable person. An employer could be held liable if a harassment free workplace is not maintained or if harassment comes from non-employees (from customers). Generally, an employer will be liable for unlawful harassment by a supervisor unless it can show the following:

The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
The employee failed to take advantage of any preventive or corrective actions provided by the employer.

To prevent or correct disability-based harrassment an employer may take the following steps:

Disseminate and clearly explain policy statements prohibiting disability-based discrimination;
Provide training for management and employees;
Establish grievance procedures to address disability harassment;
Respond immediately to disability harassment by investigating incidents thoroughly and promptly,
End the harrassment promptly, prevent recurrance, and remedy the effects on the harassed employee.

An employee feeling they have been harassed based on an intellectual disability should take the following steps:

Keep a journal with detailed information on cases of harassment, including times, places and witnesses;
Get support and guidance from a family member, friend, job coach, or social worker;
Tell the person who engaged in harassment that his or her actions are not welcome;
Notify supervisors, management officials, or the person handling harrassment complaints of the harassment; If the employee’s direct supervisor is the alleged harasser, notify the next higher official.

Legal Enforcement: Any person who believes his or hers employment rights have been violated and wants to make a claim against an employer must file a charge of discrimination with the EEOC. A third party may also file a charge for a person that has been harassed The charge must be filed by mail or in person with the local EEOC office within 180 days from the alleged violation. The 180-day filing deadline is extended to 300 days if the charge is also covered by a state or local anti-discrimination law.

The EEOC will send the parties a copy of the charge and may ask for responses and supporting information.
Before formal investigation, the EEOC may select the charge for EEOC's mediation program. Both parties have to agree to mediation, which may prevent a time consuming investigation of the charge. Participation in mediation is free, voluntary and confidential.
If mediation is unsuccessful, the EEOC investigates to determine if there is "reasonable cause" to believe discrimination has occurred.
If reasonable cause is found, the EEOC will then try to resolve the charge with the employer.
When the charge cannot be resolved, the EEOC will file a court action.
If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a “right to sue,” giving the charging party 90 days to file a court action.

Retaliation: The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, testifies or participates in an investigation, proceeding or litigation.

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