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Intellectual Disabilities and the ADA
In October 2004, the EEOC published a paper explaining its view on how the ADA protects job applicants and employees who are “intellectually disabled” (a condition the EEOC and other government agencies formerly referred to as “mental retardation”). More than 2.5 million Americans have some form of intellectual disability, but only 31% are employed. The EEOC chair has expressed the view that it is unlawful employer attitudes toward the intellectually disabled, rather than the ability of the intellectually disabled to contribute to the workplace, that has kept this percentage so low.
It is apparent that this issue is on the EEOC’s radar screen: having taken substantial trouble to clarify its stance in respect to the ADA rights of intellectually disabled persons, employers should expect the EEOC, as well as lawyers and interest groups representing intellectually disabled applicants and employees, to be on the lookout for potential violations. Here is what you need to know in order to stay out of the spotlight, and avoid becoming a test case.
Initially, it is important to identify which intellectually disabled persons fall within the protections of the ADA. Recall that the ADA prohibits discrimination against a qualified applicant or employee because of a “disability.” For ADA purposes, a “disability” is an impairment that limits one or more major life activities. While not every intellectually disabled person will necessarily be deemed disabled for ADA purposes, if a person is substantially limited in the ability to think, learn, work, remember or concentrate, the ADA will be implicated.
Remember also that the ADA also protects persons who are not disabled, but are regarded as being disabled. This aspect of the law can become particularly important when dealing with intellectual disabilities. For instance, an employer might presume that a person with a speech impediment is intellectually disabled when, in fact, the impairment is purely physical. That person is considered to be disabled under the ADA, whether or not impaired in a major life activity, because he or she is perceived and treated as being disabled
The EEOC’s message in respect to intellectually disabled persons is the same as its message in respect to all disabled persons: throw away the stereotypes and the assumptions, and deal with the specific facts that pertain to the abilities of the applicant or employee with whom you are dealing – or else. As the EEOC points out, persons with intellectual disabilities “successfully perform a wide range of jobs, and can be dependable workers. The types of jobs people with intellectual disabilities are able to perform will depend on individual strengths and interests. Examples include: animal caretakers, laundry workers, building maintenance workers, library assistants, data entry clerks, mail clerks, store clerks, messengers, cooks, printers, assemblers, factory workers, photocopy operators, grocery clerks, sales personnel, hospital attendants, housekeepers, statement clerks, automobile detail workers, and clerical aides.” Those who automatically presume that the intellectually disabled cannot perform these or other jobs will be called upon to explain and justify the factual bases of their decisions to EEOC investigators and, potentially, federal court juries.
This means that employers must apply the same ADA protocols to the intellectually disabled as they would apply to an employee or applicant with a hearing loss or a spinal cord injury. Always remember:
- Just as employers cannot ask an applicant, prior to making a job offer, about his or her medical history or physical condition, an employer cannot ask an applicant whether he or she is undergoing psychiatric treatment, or has had an IQ test, or has cognitive or learning issues. The inquiries must be tailored to the applicant’s ability to perform the essential functions of the job.
- Just as employers must provide access to the interview process to those who cannot walk, an employer must provide access to the interview process to those with intellectual disabilities by, for instance, providing reading and other assistance with the application process, and by providing special opportunities to demonstrate work-related capabilities.
- Just as employers must reasonably accommodate those with visual deficits by, for instance, supplying special computer screens or re-allocating job duties, employers must reasonably accommodate those with intellectual disabilities by, perhaps, affording additional time to perform certain tasks, altering work station configurations, allowing the employee to use a job coach, providing special and more detailed instruction and supervision, and so on.
- Just as employers are obligated to initiate an interactive dialogue regarding potential accommodations with an employee who appears to be struggling to complete his or her job requirements because of a bad back, an employer who observes an intellectually disabled employee struggling to keep up or making mistakes must initiate a dialogue to find reasonable ways to assist the employee – breaking down the job into more understandable steps, or providing written instructions, or labeling buttons with pictures instead of words, and so on.
- Just as employers must take reasonable steps to prevent and ameliorate harassment of employees who have physical impediments, employers must take pains to prevent employees with intellectual disabilities from being called names, or from being ostracized because of their intellectual disability.
Do the employees in your organization responsible for hiring decisions know how to deal with the application and interview process respecting the intellectually disabled? Do your supervisors and managers know how to look for and handle the potential accommodations intellectually disabled employees might require?
It’s all about planning and training. Let us know if we can help.
