Last week, Janet Dhillon, Chair of the Equal Employment Opportunity Commission (EEOC), issued a message about national disability employment awareness month. In her message, she details the illustrious career of Itzhak Perlman. He was such an accomplished musician that many people just did not give a thought to his disability. Mr. Perlman had polio and had to use leg braces, crutches and, in his later life, scooters. Although disabled, Mr. Perlman contributed so much to the musical world.
I thought I would write about this month for a few reasons. I know that federal contractors, like federal agencies, have affirmative goals for employing individuals with disabilities. I understand that it may be difficult for employers to find outlets to help them in attracting qualified disabled applicants. Many applicants for positions do not wish to disclose their disabilities in fear that they may not be hired because of their disabilities. Remember that many disabilities are not observable, and applicants are not obligated to disclose disabilities unless they need a reasonable accommodation. In order for employees to feel comfortable to disclose their disabilities, the company must have a culture that expresses its desire to accept and embrace individuals with disabilities.
There is still stigma attached to having mental impairments. Although someone may have a mental impairment, it might not rise to the level of a disability unless it substantially limits one or more major life activities. As with all disabilities, the way each person is affected by the disability is different. All assessments should be done on a case by case basis. Each individual may have various triggers for the same condition such as PTSD. There are also misconceptions such as all people with PTSD are dangerous. We need to be mindful of myths and stereotypes when we are making employment decisions and considering an applicant’s disability.
Statistics show that the disabled are the largest unemployed and underemployed group in this country. The Americans with Disabilities Act (ADA) celebrated its 30th anniversary in June of 2020. It’s difficult to believe that in 30 years more progress has not been made to assist disabled individuals to achieve full employment. There seems to be a fear still about hiring the disabled and what it might cost the employer.
If a qualified individual requests a reasonable accommodation, the employer must engage in the interactive process with the employee. There should be a dialogue between the parties about the needs of the employee and how the employer may accommodate those needs. There are organizations that can assist companies with accommodations such as the Job Accommodation Network (JAN), the ADA Centers located throughout the country, or state Vocational Rehabilitation agencies. The employer is under no obligation to provide the reasonable accommodation the employee requests; however, the accommodation provided must be effective.
Undue hardship is one of the two defenses stated in the ADA. In this defense, the employer may assert that the reasonable accommodation is too costly. EEOC would consider the assets of the company in determining the validity of this defense. The other part of this defense is that the reasonable accommodation would adversely impact the operations of the company. The analysis of an undue hardship defense is very individualized based on these two factors.
The other defense for failing to reasonably accommodate someone is the direct threat defense. In this defense, the employer must demonstrate that the employee would be a threat to themselves or others. This must be an individualized assessment and cannot be based on myths and/or stereotypes. The employer should use the latest medical information in determining if there is a direct threat.
Many disabilities may be easily accommodated and are not costly. If you have questions about the ADA and/or reasonable accommodation, feel free to contact me at (502) 553-7648 or at eeoadvantage@gmail.com. Let’s all celebrate this month and try to make a difference!