Author: Stephen Sonnenberg

The last thing an employer wants to do is play workplace favorites. It’s certain to stir up trouble and resentment, and in some cases, it’s a direct path to a lawsuit. But some courts are pushing employers in that direction, telling them that the rights of disabled employees trump those of nondisabled coworkers who are better qualified.

    Here’s the problem. Two years ago, a California Court of Appeals ruled that under California law, employers must prefer disabled employees over more qualified coworkers when the disabled workers seek reassignment as a “reasonable accommodation.” In another case, a federal appeals court rightly dubbed that policy “affirmative action with a vengeance” under the Americans with Disabilities Act. Other courts in the federal system, meanwhile, can’t agree on this principle, either.

    So as jurists continue arguing, employers have no clear and geographically uniform answer to rely on. You can only hope that the courts in your jurisdiction ultimately will see one thing clearly: that antidiscrimination laws should guarantee disabled individuals an opportunity to compete equally, with or without accommodation. They shouldn’t mandate preferences that infringe upon your right to select the most qualified worker. And they certainly should not sanction the creation of a new class of victims–the nondisabled workers who are more qualified for a position but are passed over in favor of less-qualified disabled people. Preferential treatment for the disabled over more highly qualified persons could result in reverse discrimination in your organization.

    Here are some examples of what could happen. These scenarios don’t necessarily reflect the current state of the law, but they are the logical extensions of taking preferential treatment beyond just job-reassignment decisions:

• An employer has for years been grooming an African-American candidate for the position of chief accountant. The candidate correctly understands that, after a lengthy stint as second in command, she will eventually take the leadership position. When the job becomes vacant, a disabled employee who no longer can perform her current job and is minimally qualified for the chief accountant position asks for reassignment. If preferential treatment is the rule, the job will go to the less-qualified disabled employee.

• Several typists apply for the position of typing supervisor. One is disabled but, as a result of accommodations such as ergonomic office equipment and a voice-recognition word-processing program, meets the minimum job requirements. The others are nondisabled, are better qualified and have more seniority than the disabled employee. But the less qualified typist, with her preferential consideration, must be promoted.

• Two graduates of Harvard Law School apply to the Supreme Court to clerk for the Chief Justice. One was first in her class and is not disabled. The other is disabled, with academic credentials that are less impressive but comparable to those of at least some past Supreme Court clerks (that is, she is minimally qualified). The principle of preferential treatment for disabled employees–disability before qualifications–requires that the highest court in the land hire the less qualified applicant.

• Two salespeople, one of whom is disabled, work side by side. The disabled employee, whose accommodations include regular time off for physical therapy and a modified work schedule, sells far less than the nondisabled employee. When the economy sours and the employer has to eliminate one sales position, the disabled employee asserts his right to preferential treatment as a reasonable accommodation. Under the principle of preferential treatment, who gets fired? The more productive employee.

    There’s no doubt that the reasonable-accommodation requirement should offer some form of special consideration for disabled employees. But there’s a world of difference between consideration, which lets a disabled individual compete on a level playing field with the nondisabled worker, and preferential treatment. The first guarantees equal opportunity. The second erodes the rights of nondisabled workers.

    Traditional antidiscrimination principles that underlie laws like Title VII have never questioned the idea that the most qualified applicant has the right to be hired for a vacant position. When disabled employees with inferior qualifications demand preferential treatment to get jobs or promotions, nondisabled employees will claim reverse discrimination. Employers will be stuck, uncertain how to balance the rights of disabled employees against the rights of the nondisabled.

    It’s easy to imagine situations in which disabled employees sue their employers because they are not given preferential treatment in reassignment, promotion, hiring and discharge. And it’s just as easy to envision better-qualified employees in other protected categories suing employers for discrimination when they are denied promotion or laid off, their legally protected rights trumped by the purportedly “superior” rights of disabled employees who are, admittedly, less able to do the job.

    Here’s what you can do while the law is in flux. Remember that the fundamental rules about disabled employees are not in dispute. Talking to them about their need for possible accommodations remains very important. And continue to consider and implement reasonable accommodations that don’t result in undue hardship. If you are confronted with situations that would require preferential treatment, be sure that you’re up-to-date on the latest rulings in your jurisdiction. That probably means talking to counsel.

    But beyond that, schedule some time with legislators, through appropriate organizations and lobbyists. Workplace disability laws afford important protections to disabled applicants and employees, but they shouldn’t guarantee preferential treatment, and lawmakers need to hear that. The law should require a level playing field for all, regardless of disability.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, August 2003, pp. 15-16 — Subscribe Now!

The ground rules
Under the Americans with Disabilities Act, the general rule, familiar to human resources professionals, is that an employer may not ask “disability-related” questions until after it makes a conditional job offer to an applicant. “Disability-related” is defined as anything that is likely to elicit information about the applicant’s disability. But there are exceptions to the general rule, some of which apply to the proposed questions.

To determine whether these questions are lawful, we first have to distinguish between three different situations during the pre-offer stage. In the first, the applicant voluntarily discloses a hidden disability. In the second, the applicant does not voluntarily disclose, but the employer believes that the applicant will need reasonable accommodation because the disability is obvious. In the third, the applicant does not disclose any disability and the disability is not obvious.

In a 1995 “ADA Enforcement Guidance,” the U.S. Equal Employment Opportunity Commission said that in the first two situations, an employer may ask certain limited reasonable-accommodation questions. In the third situation, nondisclosure, the EEOC said that no disability-related questions during the pre-offer stage are allowed. Courts have generally agreed with the EEOC’s analysis.

Applying the rules
The analysis below assumes that the interviewer asks the questions during the pre-offer stage. 

• Is there any setting or equipment that will facilitate the interview process for you?

    This question is acceptable, as an employer may always ask applicants whether they will need reasonable accommodation for the hiring process. The question will probably make most sense after a brief description of what the hiring process involves (e.g., an interview, timed written test, or job demonstration).

• Is there any specific technology that you currently use or have used in your previous jobs that assisted you in your work performance?

    This question, placed in the proper context, is acceptable under any one of three scenarios: (1) an applicant voluntarily discloses a hidden disability; (2) an applicant voluntarily discloses that he will need a reasonable accommodation to perform the job; or (3) an employer reasonably believes that an applicant will need a reasonable accommodation because of an obvious disability. In each situation, the EEOC says that an employer may ask the applicant whether she will need reasonable accommodation and what types of reasonable accommodation would be needed to perform the job functions. This question is permissible because the interviewer can explain that despite the query about past and present technology, the question is intended to identify reasonable accommodations that may be necessary in the future.

Even under the three scenarios described above, there are important limits on employers. An employer may not ask questions about the applicant’s underlying condition. Nor may an employer ask reasonable-accommodation questions that are unrelated to the applicant’s expected job functions.

One final note about this question. Assume that an interviewer does not know that an applicant has a disability and the applicant does not disclose one. When posed to applicants who will use technology in the workplace, it is entirely legitimate and unlikely to elicit information about an individual’s disability.

• Other than technology, what supports did you have in previous jobs? If none, are there any you would benefit from?

This question appears to be another way of asking whether an applicant needs reasonable accommodation and what types of accommodations are needed to perform the job. To the extent that the interviewer frames it as such, it is permissible under any of the three scenarios described in response to the previous question. However, if directed to an applicant who does not voluntarily disclose a hidden disability or whose disability is not obvious, it may be unlawful, depending on how it is phrased. For example, a question about the number of “support staff” that reported to an applicant in a previous job is not likely to elicit information about a disability; a question about what “support” was necessary in order to perform the job probably will.

• Provide an example of how you use technology to carry out job duties.

Considering the request outside the context described in the main article, “Better Interviews for People with Disabilities,” a threshold question is whether it is even a disability-related query. After all, questions that are not disability-related are not unlawful under the ADA. Posed to applicants who use workplace technology to carry out job duties, it does not appear to be disability-related. Posed to applicants who do not use technology, the request may very well elicit information about a disability.

Assuming that the question is posed to an applicant who voluntarily divulges a hidden disability, or to one who has an obvious disability, it is permissible under the three scenarios described in response to the second question. This assumes, however, that the request is part of an inquiry as to whether the applicant will need a reasonable accommodation and what types of accommodation will be necessary to perform the job, and that the interviewer makes it clear that he is interested only in the job duties of the position the applicant seeks.

• Is there any technology that you don’t currently have that would be helpful to you in performing the job duties of this position?

Under any one of the three scenarios described in response to the second question, and as part of a discussion regarding the types of accommodations that will be necessary to perform the job, this question is permissible. Of course, some employers will be reluctant to ask this question out of concern that they will be obligated to provide the applicant, once hired, with a “wish list” of expensive accommodations. Employers should note that they are not obligated to provide every requested accommodation, or even the accommodation preferred by the applicant. The ADA requires employers to provide effective accommodations that do not cause an undue hardship, not necessarily the accommodation preferred by the employee.

• In the past, did you experience and problems between your technology and the company’s (former employer’s) information systems?

To begin with, are the former and prospective employers’ information systems similar? If so, the question may help the interviewer understand what potential accommodations may be required, or are possible. If not, it is difficult to see how the answer will assist the interviewer in assessing possible accommodations, and the question should not be asked.

In any event, the interviewer should focus this question more explicitly on the need for accommodations in the future, instead of solely on the past. The interviewer should explain, “In order to help us understand what accommodations you may need to perform your job functions if you are hired, please tell me whether you experienced any problems between your technology and your former employer’s information systems.”

Of course, this assumes that the question falls within one of the three permissible scenarios described above.

• Do you foresee your technology needs changing in the near future? Why and how?
  
  

In the context of a discussion about the types of accommodations needed to perform job functions, and under one of the three scenarios described in response to the second question, this inquiry is permissible.

• Discuss a barrier or obstacle, if any, that you have encountered in any of your previous jobs. How was that addressed?
  
  

Directed to an applicant who neither has an obvious disability nor voluntarily discloses one that is hidden, this open-ended question may very well elicit information about a disability. For such applicants, unless it is focused (e.g., “tell me about a budgetary obstacle you encountered and surmounted in your previous job”), it is risky.

The more difficult call is whether this question is unlawful when directed to an applicant who falls within one of the three permissible scenarios. It does not, on its face, ask about the types of reasonable accommodation necessary for the applicant to perform the functions of the job she seeks. But some of the other questions have not explicitly done so and, when modified, have not been objectionable. The problem with this question is its open-ended nature; even when a question falls within one of the three permissible scenarios, the EEOC says that it may not request information completely unrelated to the applicant’s expected job functions. This question, as phrased, does so. Unless focused on tasks or skills that are related to the applicant’s expected job functions, and explicitly premised on the need to identify accommodations necessary to perform the job, it remains risky.

• Do you anticipate any transportation or scheduling issues with the work schedule expected of this position?
  
  

This question can be rephrased to render it permissible when directed to any applicant. In its 1995 Enforcement Guidance, the EEOC said that an employer may state its attendance requirements and ask whether an applicant can meet them. An employer may also ask about an applicant’s attendance record. Because an employer is not obligated to provide the applicant with transportation to work as an accommodation, asking about transportation issues is of doubtful value. The question should focus on the employer’s attendance standards and the applicant’s ability to meet them.

A word of caution
Exceptions to the general rule prohibiting pre-offer disability-related questions provide interviewers with limited leeway. But questions about accommodations should be asked only if they fall within one of the three scenarios described above, and only if the interviewer does not transcend the limits identified by the EEOC. State law may also impose more stringent limits. Moreover, just because a question is lawful does not mean that an employer is out of harm’s way. An interviewer may ask a lawful question about the need for accommodation, decide not to hire an applicant, and face a claim that the rejection was based on the need for accommodation. Once an employer is aware of the applicant’s need for accommodation, it should be prepared to demonstrate that it relied on a legitimate business-related reason, rather than the need for accommodation, for rejecting the applicant.

Workforce, August 2002, pp. 38-44 — Subscribe Now!

Oneof every two Americans alive today will suffer from a mental illness at some point intheir lifetime, according to a recent report by the U.S. Surgeon General. Despite (orperhaps because of) its prevalence, mental illness has been stigmatized and feared. Inyears past, employees were reluctant to admit their mental impairment to coworkers andsupervisors. That is changing, thanks in part to the Americans with Disabilities Act(ADA), enacted by Congress in 1990.

So,too, is the amount of employment litigation related to mental disabilities. Employeespreviously reluctant or unable to litigate mental disability discrimination claims aredoing so with increasing frequency. As a result, employers face a host of thorny problemsranging from limits on independent psychiatric evaluations to requests for accommodationof “stress” and other vague, uncorroborated, or hidden emotional problems.

Familiaritywith the ADA and its interpretation by courts and the U.S. Equal Employment OpportunityCommission (EEOC) is essential if an employer is to avoid litigation.

Congressexpressly excluded the following conditions, among others, from the ADA’s definitionof “disability”: kleptomania, pyromania, exhibitionism, voyeurism, other sexualbehavior disorders, and psychoactive substance use disorders resulting from currentillegal drug use. Nor are common personality traits protected. Covered mental impairmentsdo not include, for example, poor judgment, a quick temper, or irritability, so long asthe traits are not a symptom of a protected mental impairment.

Excludedconditions aside, neither the EEOC nor the ADA itself provides a comprehensive list of allpotentially protected mental impairments. Rather, EEOC regulations broadly define a mentalimpairment as “[a]ny mental or psychological disorder, such as mental retardation,organic brain syndrome, emotional or mental illness, and specific learning disabilities.”This broad and non-exclusive definition has two implications. First, its open-endednature, coupled with the subjective and ill-defined nature of emotional illness, virtuallyensures that mental health professionals will play a key role in determining — anddisputing — that an employee suffers from a protected mental impairment. Second, becausethere is no definitive list of covered mental impairments, employers must analyzedisability claims and accommodation requests on a case-by-case basis. The statutorycriteria for all impairments, mental or physical, should guide the analysis.

As a general rule, the ADA places mental impairments onan equal footing with physical impairments. The ADA prohibits employers fromdiscriminating against a “qualified individual with a disability” because of thedisability, in regard to the terms, conditions, and privileges of employment. A personwith a mental or physical impairment is a “qualified individual” if he or she isable to perform the essential functions of the job with or without reasonableaccommodation.

Evenif an individual is a “qualified individual,” a mental impairment is notautomatically a disability. Under the ADA, a mental or physical impairment must “substantiallylimit” one or more major life activities of an individual. If a qualified employeehas a mental impairment that substantially limits one or more major life activity, has arecord of such an impairment, or is regarded as having such an impairment, the employeewill likely be entitled to protection under the ADA. Protected status, however, does notentitle an employee to each and every accommodation requested. An employer is not requiredto accommodate an employee’s mental or physical impairment if doing so would resultin an undue hardship.

Litigationof mental disability claims often focuses on whether the employee’s claim meets thestatutory criteria: is the employee a “qualified individual”?; is the employeesubstantially limited in a major life activity?; is the requested accommodation areasonable accommodation?; and/or would the accommodation cause the employer an unduehardship?

Tipsfor Employers

1. Ifan employee appears or claims to have a mental impairment, scrupulously avoid relying ongeneralizations or stereotypes regarding mental illness. Analyze situations on acase-by-case basis.

   
   

   TheEEOC cautions that the ADA was enacted, in part, to combat the myths and stereotypes uponwhich employment discrimination against mentally disabled individuals is based.Stereotypes and uncorroborated information about mental impairments should never be thebasis for an employment decision. Reject generalizations about mental impairments and,when appropriate, conduct a fact-specific case-by-case analysis.

2. Resistthe temptation to play armchair psychologist.

   
   

   Acompassionate response to an employee’s workplace problem is always appropriate;playing armchair psychologist is not. An employee with attendance infractions or conductproblems will find it easier to claim disability discrimination if a supervisor askswhether the employee’s difficulties are symptomatic of “too much stress” ora “nervous breakdown.” Instruct managers to document an employee’sperformance problem or misconduct by specifically describing the deficiency or behavior atissue. 

3.  Ifan employee complains that working with his supervisor is too stressful and causesemotional problems, elicit a written admission that he will be able to perform essentialjob duties only if he has a different supervisor or works in a different location.

   
   

   Nomatter how debilitating the effects of a mental impairment, it will not be protected underthe ADA if it stems solely from an inability to work with a particular supervisor or in asingle particular job. Courts and the EEOC agree that an employee is not substantiallylimited in the major life activity of working unless the employee is significantlyrestricted in the ability to perform either a class of jobs or a broad range of jobs invarious classes. Accordingly, ask (but not mandate) that the employee submit anaccommodation request in writing. 

4. Consider even vague requests for accommodation from employees, their familymembers, or their representatives as triggering a duty to engage in an interactive processwith the employee.

   
   

   Requestsfor accommodation of emotional problems are often as vague and ill defined as theunderlying impairment. A family member may inform a supervisor that the employee is “fallingapart” and needs professional help and “time off”; an employee may blurtout in the midst of a rush project that he is so “depressed and stressed out”that he can “no longer cope emotionally unless something changes.” Such commentsare more than mere complaints; they are, in part, requests.

   
   

   Inresponse to the “requests” described above, the employer should speak with theemployee to clarify his needs and create a written record of the meeting. Assuming thatthe employee articulates specific requests, the employer need not provide each of therequested accommodations. Rather, it may choose among reasonable accommodations so long asthe chosen one is effective.

5. Whenconsidering requests for accommodation, remember that the ADA requires employers toaccommodate only disabilities that cause substantial limitations, not all disabilities. Inother words, a psychiatric diagnosis is not determinative. 

   
   

   Inresponse to an employee’s request for accommodation, an employer’s fact-specificanalysis should focus not just on the employee’s psychiatric diagnosis but also onthe extent to which the employee is limited, if at all, in a major life activity. Theanalysis should be grounded on the employee’s limitation at the time of the requestedaccommodation.

6. Inmisconduct situations, distinguish between prospective and retrospective requests foraccommodation and ensure that disciplinary rules are uniformly applied.

   
   

   Courtsand the EEOC agree that reasonable accommodation is always prospective, not retrospective.  A prospective request for an accommodation thatwill assist an employee in complying with the company’s conduct rules shouldgenerally be granted, so long as it does not cause the employer an undue hardship.However, if an employee is unable to perform essential functions of her job even withreasonable accommodation, she is not a qualified individual under the ADA.

7. Don’tbe intimidated by psychiatric jargon; mentally impaired employees can often beaccommodated in the same ways as physically impaired employees.

   
   

   Mostindividuals are more familiar with physical than mental disorders. The same types ofaccommodations (e.g., sick leave, time off, reduced hours) that are afforded to employeeswith physical impairments should be considered for employees with mental impairments.

8. Designateone person or office to review all company requests for additional medical informationabout employees; ensure that such requests are narrowly tailored.

   
   

   Requestsfor accommodation based on claims of “stress ” or “difficulty coping ”are often suspect because the mental impairments on which they are based are hidden,unlike some physical impairments. In response to such vague complaints or equally vaguediagnoses from mental health professionals, employers may request certain additionalmedical information. Imposing limits on the type and scope of the information requested isthe key to avoiding liability. As a general rule, when the medical impairment or need foraccommodation is not obvious, an employer may ask an employee for reasonable documentationabout his or her purported disability and functional limitations. Reasonable documentationdoes not mean an employee’s entire medical record; it is limited to documentsnecessary to establish that the employee has an ADA disability and that the disabilitynecessitates a reasonable accommodation.

9. Requirethat employees submit to an independent psychiatric examination only in limitedcircumstances; designate one person or office to review and issue such requests.

   Toguard against abuse and malingering, an employer may require that a psychiatrist orpsychologist of its choice evaluate an employee if one of three conditions is met.

   
   

   First,a psychiatric examination may be required if an employer has a reasonable belief based onobjective evidence that an employee’s ability to perform essential job functions willbe impaired by a medical/psychiatric condition.

   
   

   Second,if an employee requests a reasonable accommodation, and either the mental impairment orneed for accommodation is not obvious, an employer may request an independent psychiatricexam.

   
   

   Third,an employer may require a psychiatric examination  if,  based on objective, scientific information, theemployee poses a direct threat to the health or safety of himself or others because of amedical condition.

10. Treatall information about an employee’s psychiatric impairment as confidential, whetherdisclosed by the employee, a mental health professional, or a coworker.

    
    

    TheADA requires that employers keep confidential all information regarding their employees’medical conditions, including information about their psychiatric disabilities. Evenmedical information voluntarily disclosed by an employee should be treated as highlyconfidential.

11. Reviewand revise job descriptions to include references to employees’ ability to cope withstressful circumstances and to cordially interact with coworkers to accomplish commontasks.

    
    

    Numerouscourts have held that mental stability and the ability to get along with coworkers areessential functions of a job, without which an employee is not qualified. Courts have alsoheld that the inability to cope with a stressful work environment does not constitute aprotected disability.

12. Developrelationships with mental health professionals and accommodation experts and maintain adatabase regarding their work.

    
    

    Accommodationrequests for mental impairments are typically supported by psychiatrists andpsychologists. Employers can employ such professionals to their advantage. In situationsinvolving a direct threat, for example, the immediate referral of an employee to apsychiatrist with expertise in violence assessment is often imperative.   

Workforce,June 2000, Vol. 79, No. 6, pp. 142-146 — Subscribe now!