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by Robin F. Bond, Esq.
Attention Deficit Hyperactivity Disorder (AD/HD or ADD) is a neurobiological disorder that affects at least five percent of the population, many of whom are actively employed in the workforce. The more positive traits an employee with AD/HD brings to his job include high energy level, creative thinking and problem solving skills, enthusiasm and the ability to hyper-focus on a task. On the downside, individuals afflicted with AD/HD tend to suffer from short attention spans, distractibility, impulsiveness, forgetfulness and hyperactivity or restlessness.1 Given these symptoms, it is no surprise that many people with AD/HD experience serious problems in the workplace, including disorganization, difficulty prioritizing goals and keeping appointments, and chronic lateness. As a result, many individuals with AD/HD have poor job histories, moving from job to job and being unable to realize their full potential. Employers can and often do have mechanisms in place that permit individuals with AD/HD to maximize their positive traits and minimize their more disruptive ones. In some situations, however, the afflicted individual may not be able to obtain accommodation and may be forced to seek recourse through legal channels. In those instances, the law may provide some relief.
THE AMERICANS WITH DISABILITIES ACT
Signed into law on July 26 1990, the Americans with Disabilities Act (ADA) is wide-ranging legislation intended to make society more accessible to people with disabilities. The language and content of the ADA comes mainly from another law, the Rehabilitation Act of 1973, which prohibits discrimination against individuals with disabilities in education, federal agencies and federal grant and contract recipients. Title I of the ADA, effective in 1992, prohibits private employers (with 15 or more employees), state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. The Act defines an individual with a disability as a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:
- Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
- Job restructuring, modifying work schedules, reassignment to a vacant position;
- Acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
The ADA requires an employer to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.
PROVING A CASE OF AD/HD DISCRIMINATION UNDER THE ADA
In order to enjoy protection under the ADA, an individual suffering from AD/HD must satisfy each prong of the Act's requirements. First, the individual must establish that his or her AD/HD is an "impairment that substantially limits one or more major life activities." "Impairment" is broadly defined in the supporting regulations as including "any mental or psychological disorder ...".2 (Unfortunately, AD/HD is not specifically identified in the regulations as an impairment. Nonetheless, the language of the Rehabilitation Act on which the ADA was based has been tested in court, and was found to cover AD/HD.3 As a result, most legal scholars conclude that the ADA would cover an individual with AD/HD, provided the other requirements of the Act were satisfied). Thus, an individual seeking protection under the Act should first have a diagnosis of AD/HD by a competent licensed professional.
Diagnosis, however, is only the first step. The individual with AD/HD must next establish that his or her condition substantially limits a major life activity, i.e. work. A substantial limitation in working has been interpreted as requiring a showing that the person is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. (In the only federal appellate decision to consider the issue, it was determined that the individual with AD/HD did not have a substantial limitation in working because his problems were "episodic" and only arose when he got a new manager whose style created a stressful environment, Wright v. CompUSA). In order to show a substantial limitation in the major life activity of working, the use of a vocational expert is strongly recommended, and such testimony must be more than a simple conclusion without other support. To meet the burden of proof, the testimony should describe the impact of the disability on the life activity of working, identify the class or broad range of jobs affected, and describe how they are affected.
Once an individual with AD/HD establishes that he has an impairment that substantially limits a major life activity, he must then prove that he is a "qualified individual who, with or without reasonable accommodation, can perform the essential elements of the job". A qualified individual is one who satisfies the employer's requirements for the job, such as education, employment experience, skills or licenses. Once qualified, the individual must then prove that he is able, with or without reasonable accommodation, to perform the essential functions of the job. This language is confusing, but it is the exact wording from the law. Generally, the phrase "with or without accommodation" has been interpreted to mean that an employer has to talk with an employee to see what help the employee needs. Not all disabilities require accommodations. However, if an employee has a disability that does require accommodation, then the employer must engage in an interactive dialogue with the employee to determine the feasibility of putting into place reasonable accommodations to enable the employee to perform the essential functions of the job. Essential functions are job tasks that are basic and required to do the job. Considerable deference is given to the employer in defining those essential functions. Section 101(8) of the ADA, specifically provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential. If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."
If the qualified individual is able to perform the essential functions of a job without reasonable accommodations, the inquiry need go no further. Generally speaking, however, an individual with AD/HD may require "reasonable accommodations" to get the job done. In that case, the question then becomes what is a "reasonable accommodation." Under the ADA, the term "reasonable accommodation" may include:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
The Act, however, does not require an employer to make any changes that would result in undue hardship. Undue hardship is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include, the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer's operation. Undue hardship is determined on a case-by-case basis.
Fortunately, with AD/HD, most accommodations are minor and most employers are unlikely to suffer undue hardship in providing them. Examples of reasonable accommodations for persons suffering with AD/HD4 include:
1) Reducing distraction in the work space.
2) Giving instructions clearly - both orally and in writing, providing a whiteboard for task prioritization, etc.
3) Breaking large tasks down into more manageable parts.
4) Providing structure in long term tasks (checklists, deadlines for each stage, periodic meetings with supervisors).
5) Frequent and specific feedback on meeting performance expectations.
6) Extra clerical support.
7) Making audio and video equipment accessible.
8) Accommodations in examinations (extra time, quiet room, alternative format where appropriate) and in training programs (tape recorder, repetition, time for questions, supervised practice).
9) Modified work schedules and job restructuring.
10) Reassignment to a position which is a better match for individual strengths.
Even when employers can't offer flexible schedules, providing an empty office and/or a white noise machine can reduce distraction. Personal digital assistants (PDAs) and speech-to-text software can help an AD/HD employee stay organized.5
As a rule, litigation should be the last resort for anyone seeking relief from job pressures. Pursuing a claim under the ADA is time-consuming, expensive and uncertain. Moreover, a diagnosis of Attention Deficit Disorder does not automatically mean that accommodations on the job are needed. Many people suffering from AD/HD perform very well in their jobs, without requiring any special help.
For those who do need assistance but are unable to obtain any cooperation from their employer, the law provides an avenue or relief. Persons who think they have been discriminated against can file a complaint with one of the federal agencies responsible for enforcing these laws.
For more information, contact:
1.) Office of the Americans with Disabilities Act
Civil Rights Division
U.S. Department of Justice
P.O. Box 66118
Washington, D.C. 20035-6118
(202) 514-0301 (voice)
(202) 514-0383 (TDD), or
2.) Equal Employment Opportunity Commission
(800) 669-EEOC (voice)
(800) 800-3302 (TDD)
3.) The Human Relations Commission of your state
(see the blue pages in the phone book or call 411)
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1 Diagnostic Criteria from DSM-IV, The American Psychiatric Association, 1994, pp. 83-8.
2 29 C.F.R. § 1630.2(h) (ADA Title I).
3 45 C.F.R. § 84.3(j)(2)(i) (Rehabilitation Act).
4 "Attention Deficit Disorder in the Workplace Possible Accommodations By Employer" by the National Center For Law And Learning Disabilities.
5 "Succeeding in the Workplace" by Patricia Latham, JD et al. (JKL Communications, 1994).
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About the author:
Robin Bond, Esq., is president of Transition Strategies, LLC, a national employment law firm in Wayne, Pennsylvania. She represents employees and employers on employment law matters, and can be contacted at robin@transition-strategies.com.
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