The Creative Portfolio of Melissa K. Vassar-Belloso

Thoughts of an Aspie: Getting to Know the ADA

by Melissa K. Vassar-Belloso

Getting to Know the ADA
By Melissa K. Vassar-Belloso

Introduction

As long as the daily grind has existed for Americans who need to make a living so has conflict and independent thought. Likewise,as long as government has existed so has the idea of laws and human rights. These two concepts have often run together when it comes to certain groups entering the workforce. A common occurrence when new groups of people have entered into the world of labor is that laws often get created around them to compensate for the expected differences and circumstances as well as the worst case scenarios such as inequality, discrimination, and unforeseen needs. There are actually a lot of laws you may not be fully aware of that spell out how groups like children,minorities, or even workers of certain ages should be considered in a workplace environment. Today we will be discussing one such document, The Americans With Disabilities Act of 1990, and cover the basics of the document and how it applies to us as people.

What is the ADA and Why is it Important?

The Americans with Disabilities Act was passed by congress in 1990 and was the nation’s first truly comprehensive civil rights law to address the needs and accommodations specific to the disabled as they applied to a place of employment. It was also a stance meant to prohibit and lessen discrimination toward the disabled in the workplace. While it may not seem like a lot or you may not be aware of how often it happens, discrimination in the workplace was and is still a big issue for the disabled community. Wrongful termination happens on staggering levels for those in the disabled community and that’s when the discrimination doesn’t happen at the the door and a disabled person is just simply passed over as a job candidate early on.

The act is key to a crucial point in time when the government and society in general began to acknowledge that disabilities created a significant difference for people and required special consideration. While it certainly hasn’t eliminated discrimination against the disabled in the workplace it was still a big step that should be acknowledged. Sadly, a lot of disabled workers don’t have the knowledge they should about this document and never come to know their full rights in the workplace as a result.

I myself only became truly aware of it a few years ago and it made me realize just how many jobs in the past have really shafted me and violated my rights as a person. Understanding the document was huge for me though. It empowered me to pursue legal action when the last company I worked for made multiple violations of it in the process of terminating me and allowed me to have a basis to build my arguments on when filing the claim. Having the knowledge and legal backing to advocate for myself was a big deal and it made me think about how many other people were suffering like me and didn’t even know they had the right to stand up for themselves.

Many of us aren’t likely to actually stop and think about what laws are there to protect us and spell out our rights as workers as opposed to the number of people just going through the motions in misery not knowing their rights are possibly being violated at that moment and they have a right to say something. Sure, we’ve all seen the typical posters in a breakroom spelling out something basic like The Family Medical and Leave Act or the many laws against sexual harassment but how often do you really look deeper into what your entitled to as a worker?

Typically when we go into work it’s much more heavily beaten in what we owe the company and not what the company owes to us as people. This isn’t always necessarily intentional but to me is far from surprising. For most companies, the most advantageous approach is to not assist employees with knowledge that might make them empowered or more aware of poor treatment. This means less complaints because in essence the workers have no clue they have the right to complain. The company isn’t technically lying but they also aren’t doing anyone a favor and create employees who question less.

For a disabled employee this can be a horrible downward spiral though. A lot of disabled employees have a right to  accommodations that might boost their work performance and possibly allow them to maintain a job but the more in the dark those employees are about those rights benefits the company because it means they don’t have to take any action to assist the employee’s success and also have more room to work when they decide to downsize the disabled worker based on performance. This means hundreds and possibly thousands of disabled employees who could have had a chance if they just exercised their rights to reasonable accommodations on the job are cheated out of a chance to shine on a daily basis because of an unfortunate ignorance and indifferent employers.

This to me is the cornerstone of what makes the ADA so important. To really see it’s value we have to understand what reasonable accommodation  and undue hardship mean in regards to the ADA.

Below is how reasonable accommodation and undue hardship are defined within the document:

“(9) REASONABLE ACCOMMODATION- 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.

(10) UNDUE HARDSHIP-

(A) IN GENERAL- The term `undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).”

Translating this is probably a little taxing but what it means to a disabled worker is a chance at success. It means that under the ADA you have a right to reasonable adjustments in the workplace that don’t unfairly tax the employer and might possibly allow you to maintain a job with a few environmental or routine  changes. Things like a relocation,different lighting, carefully scheduled and reasonable extra breaks,or even some kind of accessibility changes to a desk might make a world of difference to a disabled employee and increase their productivity significantly. This means that given the chance and some understanding from a workplace willing to respect their employee despite a disability, a disabled employee can become an asset instead of a liability.

Companies may be throwing out a gem when they insensitively dismiss the value of a disabled employee and don’t invest in them by making a few simple accommodations. Often times a disabled employee may just be better suited for other tasks or need a few small allowances  to get to their top performance. The unfortunate reality is that most companies write off disabled employees as less than people and a liability without exploring these avenues. This is not only unfair to the employee but a waste of talent that could be alternatively applied to the workforce with a slightly revised approach to matters. When things like this afflict disabled employees it often wears them down to the point their whole outlook changes and this means their overall potential and quality of life is heavily diminished in some aspects. Some of them may not mentally or emotionally recover and may end up becoming a statistic in some fashion following too much workplace discrimination and rejection.

The answer to the question of what counts as undue hardship will change depending on the workplace involved. Larger companies will have more wiggle room when it comes to certain accommodations but it’s important to consider that the biggest accommodation most disabled employees need is to feel safe and understood when their difficulties in the workplace are considered. For instance, a person who suffers from anxiety may just need you to understand they sometimes have panic attacks and need room to step away if one happens and a person with sensory issues may need something like a quieter area to work in or a location under less intense lighting. These are accommodations that are really not that tasking to most places and easy to set up.

Workers with a disability that affects their focus or sense of time may just need a little more positive reinforcement or possibly a slightly varied schedule structure. A worker with a physical disability might need a standing desk option to be able to stretch while working on occasion or even just a little insight on how to set up their work area better. These are simple fixes any business of any size can implement with little to no cost and effort. As a result you might discover that with their disability as less of a distraction you have a true company asset on your hands.

The ADA goes on to mention this on undue hardship:

“(B) FACTORS TO BE CONSIDERED- In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include–

(i) the nature and cost of the accommodation needed under this Act;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”

I think the true cost at the end of the day is when companies don’t realize the value in welcoming more disabled employees into their organization and giving them an honest shot at achieving their goals. It’s truly a situation where nobody wins. For most companies  some basic workplace accommodations are well within reach but they’re just too focused on their bottom line to care or see the disabled employee as a person. The key to this changing is that disabled employees need to gain knowledge and advocate for themselves. Life and your place of employment will unfortunately be blissfully ignorant of what you want or need so you need to step up and claim that right . Educate yourself on your workplace rights by learning about the laws that you can leverage to get better consideration at work. Being a little proactive might just be the key to you being able to find job success.

Why was the ADA Created?

Below is part of how the ADA discusses the reasoning behind the act:

“SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- The Congress finds that–

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

(8) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) PURPOSE- It is the purpose of this Act–

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”

Now to be fair, I don’t really need to add to that. It really speaks for itself in a lot of ways. The ADA was created to address workplace discrimination against the disabled and help set standards for how companies should treat those employees. It is also for the purpose of creating a situation where a job is just as much an opportunity for a disabled person as it is for a non-disabled one.

What I do want to address is the fact the ADA acknowledges the large and growing number of those with disabilities. This means that the number of people genuinely affected by this document increases all the time. You may not even be aware at this moment but it might actually apply to you in some way. In documents like these the numbers are based off of known cases so consider for a moment the thousands of people not diagnosed who don’t even realize they have unclaimed rights that could be a huge benefit to them or even the number of people who have been stigmatized into not disclosing a disability.

Another thing to note here is that the document acknowledges it is more difficult for those who are disabled to seek legal repair when terminated unfairly. Think of the ADA as a means of validation where prior to this act being passed there was little to none when a disabled employee was wronged or treated unfairly in the workplace. It’s hard to realize in the midst of our modern government that laws can be used to protect and help when they’re utilized correctly. Understanding the government and it’s true power can be enlightening and doesn’t always have to work against the people.

Who does the ADA Apply to?

The ADA not surprisingly applies to those with a disability which the document defines as a physical or mental impairment that substantially limits one or more of the major life activities of an individual.

It also says this in regards to the matter:

“(8) QUALIFIED INDIVIDUAL WITH A DISABILITY- The term `qualified individual with a disability’ means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and 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.”

Now there are a lot of things to note here but lets start by talking about who has what responsibility in a work relationship. An employer has the role of supervising,managing, and compensating while the employee has the role of fulfilling a desired task. That’s simple, right? But what this bit alludes to is that the employer can define what is essential to the role. This means that in essence it is within realm of possibility  for an employer to shape a job role to a job candidate or employee within reasonable limitation.

But there are a few things you need to do besides just being disabled to qualify under the guidelines of the ADA. The most important thing is that you need to understand your job role,have a formal diagnosis,make the company aware through the right channels, and document well from hire to end date.

Let’s start at the beginning. You’re disabled  and applying for a job. You’re on the page with the job description and not at the application yet. What should you do? The answer is to fire up your printer and save that job description. Make sure that you fully understand it,are capable of doing it to a satisfying degree whether you have accommodations or not and have some idea of how your disability might limit your performance if at all and what might remedy that. Cover your bases and apply prepared and with a realistic idea of your success factors. If you think you can reasonably try the job then go for it. If you think you might have minor issues but know any accommodations needed would be small and reasonable then also go for it because it’s still within your right to request reasonable accommodations if it becomes necessary. The ADA exists so you can seek out the same opportunities as a non-disabled job candidate.

So once you’ve applied for the job and gotten it, maybe you hit a rut and realize your disability is hindering your performance. What should you do now? The answer is to reach out to HR immediately. Most HR departments have specific forms they need turned in to recognize your disability and set up accommodations on the job. This is where you will typically need to have whatever doctor monitors your disability on board. Have them fill it out as clearly as possible and get it back to HR. In terms of self-disclosure the only ones who legally need to know are you and HR but you may also need to include your supervisor in the loop depending on the hierarchy of your workplace. If you fail to take this step of disclosing to at the minimum your HR department and getting the right documentation submitted you have basically forfeited your right to dispute anything at work. You must do your part to go through the right channels to get your disability recognized and documented if you want to leverage the real power of the ADA and request work accommodations.

Most of these forms will ask for your full diagnosis and how it affects specific areas of work as well as what kind of adjustments the medical professional recommends for you. I won’t lie to you. This is an awkward stage and may feel wrong in a sense but businesses need to function a certain way. You need to be flexible and considerate of business practices if you want the process to work at this point. The company won’t be able to do anything for you unless they have everything outlined on paper and there are a number of legal  and practical reasons for this.

But you also need to prepare for a fight because some companies will push hard at this juncture and they may begin to treat you differently as a number of parties are inclined to do when they discover a person is disabled. Whether unintentional or intentional they will be distracted by seeing a diagnosis but your main goal needs to be powering forward and focusing on success. Don’t get distracted by another person’s misconceptions and believe in the fact you have the law on your side if anything shifty happens after you’ve formally disclosed to HR.

But what is your next step from here? Well, that’s not a concrete answer but more than likely you need to push forward and try to succeed. Know the law and document carefully throughout the process of dealing with the company while you seek accommodations. Save and print your e-mails. Document your encounters. Take notes on everything when you have talks with your supervisor and HR representative. You need to stay on your toes while you fight for your rights because the unfortunate fact is that companies will work a lot harder to find ways to get rid of a disabled employee before putting that effort into helping them. They will realistically see you as a liability and not a person no matter what impression they’re trying to give you.If anything should ever happen you’ll appreciate your careful documentation.

One of the most important things you can document to weather a possible storm is your performance reports. If you have anything like customer testimonies,positive employee interactions or anything highlighting your accomplishments then keep records of them. A common issue is that companies may try to paint you in a negative light if a legal matter arises. Make sure you have a stack of proof you tried your hardest and did your best to succeed at the job so you can repaint that statement and bring the truth to the surface. It may seem like you’re just slowly killing a forest but don’t slack in documenting your time and experiences. You may have your eyes on success but the company is probably much more focused in discouraging you and hoping you won’t exercise your rights.

Make sure you have full documentation in writing from HR what your accommodations are, any adjusted expectations to your role, and the stipulations surrounding your accommodations. If they don’t produce that on their own then request it and insist on that request politely until you get it. The thing I can’t stress enough though is to be civil. Even though the other party involved will most likely not abide by this you need to stay civil throughout the ordeal. Never demand but state things politely and stay professional. Allow them to orchestrate the accommodations and this will be a good argument later on that you were flexible and accepted what was reasonable for the company. If you demand or appear to be taking advantage of the company the outcome won’t be that great.Try to work with them as much as possible and keep documenting things carefully just in case.

The key factor in drawing benefit from the ADA and using it to create a job opportunity for yourself is to remember to do your part while staying civil,open, and honest. Don’t get distracted by emotions when you can stand on the solid support of the law no matter what the outcome of the job experience ends up being.

A Start to Exercising your Rights

So we’ve talked a little bit about self-disclosure here and that’s a very important step. If you never self-disclose your disability the company can’t legally do anything for you. Companies can’t assume a person has a disability and make changes because that can actually be discrimination in its own right. You have to actually formally disclose to the company you in fact have a medically diagnosed disability that needs reasonable accommodation put into place. The ADA legally obligates them to practice business fairly and honor requests that are not undue stress.

Self-disclosure is difficult but remember that in the workplace it’s a need to know basis so only HR and possibly your supervisor needs to know. If you don’t want co-workers to know they don’t have to. Just do what you have to do to progress at your job and discuss only what you feel comfortable discussing with any parties who don’t need to know about your disability. It doesn’t eliminate people coming to their own assumptions but you need to ignore that and stay focused on job success.

The biggest step to understanding what to look for is to understand discrimination and how to classify it in the workplace.

The ADA defines discrimination as follows:

“SEC. 102. DISCRIMINATION.

(a) GENERAL RULE- No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compen- sation, job training, and other terms, conditions, and privileges of employment.

(b) CONSTRUCTION- As used in subsection (a), the term `discriminate’ includes–

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this title (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of administration–

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common administrative control;

(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and

(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).”

If you feel uncomfortable or think something wrong is going on then stay civil and start by reaching out to HR. Broach the subject politely and honestly while backing your claims with concrete law. This not only shows you are not a willing victim but will also reflect positively later if any legal issues arise.

More importantly, let’s discuss the worse case scenario here. Things might not go well and you might get wrongfully terminated. The first thing to remember is that it’s not the end of the world. Termination affects a lot of people whether they have a disability or not and you need to stay levelheaded.

Some companies will offer waivers to employees when they fall into certain groups. As a disabled employee you will most likely be considered within a group that might possibly seek legal action following termination. This could be for a number of reasons such as the company being aware of not doing what they should be doing and needing to effectively silence you from suing them or even a fear that one or multiple sensitive situations during your time of employment might be grounds for a wrongful termination case in some degree. Whatever the case a waiver is essentially a document that allows you to trade your right to seek legal repairs under the law for a sum of money or possibly temporary benefits.

The most important thing about a waiver is that you have time. Don’t let a company make you think you have to sign right there. A company has to legally give you a reasonable amount of days to read and consider the waiver. They are not allowed to coerce you to sign. If they do coerce or pressure you, politely explain that you need time to read it and think about it. Seek a lawyer if you don’t feel comfortable with your understanding of the document or at the very least have someone you know and trust put a second set of eyes to it.

This is very important because the moment you turn over that signed waiver you can never seek legal action for anything wrong done to you while at that job. No matter how sweetened that waiver is,weigh it against your rights as a human being to be treated properly.

While you consider the waiver also consider the terms you left the company on. Reflect on if any major injustices were done and how comfortable you were with the practices. If you feel your rights were violated,gather up your documentation and consult a lawyer. You might have a wrongful termination case that is worth more than that waiver. When I say it’s worth more I don’t mean in terms of money. While some cases of wrongful termination can grant you monetary reward the thing you want to really walk away holding proudly is your dignity as a human being. If you were wronged at that workplace and you have a waiver in front of you then you’re really deciding how much your dignity is worth at the end of the day.

The other key thing to consider is that if you have a waiver in your hand you need to take a closer look at the situation. Waivers aren’t handed out like lollipops at a doctor’s office. If you get a waiver, odds are there’s more to the situation. The company gave you a waiver for a reason. You’re a legal risk to them. Take time to really look at the situation closer because a waiver is a red flag that something is amiss.

But there are also organizations that can help you in this time of need. The one you need to start with is the Equal Employment Opportunity Commission. The EEOC is your best first stop when you feel you’ve been wrongfully terminated based on discrimination. They’ve been investigating and on occasions litigating discrimination cases in the workplace since practically the birth of the ADA itself. If it comes to this step you need to be patient. The process will be lengthy and stressful but if you have truly been wronged you will feel much better advocating for yourself and defending your rights. Advocacy can be scary but it can also be empowering and eye-opening to what you need to do to succeed with a disability.

Living with a disability is a fight and if you want to win that fight you have to strong and you have to keep climbing up when life pushes you down continually. Find solidarity in the disabled community but also learn to find strength in knowing the laws and how they can benefit you.

Conclusion

This one was tough for me to write in a sense because it’s something I’m still recovering from personally. One of the things I wanted to do was share what I’ve learned dealing with this process but I also want to impart to other disabled people struggling that you are human and you have rights. Don’t settle for being treated like less than who you are and don’t let the world bully you out of being gainfully employed and proud.

When you have  a job all you need to do is your best. That’s all anyone can do at the end of the day. Don’t focus on your disability limiting you. Focus on what you accomplished and strive to live your best life. Never let another person define who you are or what you can do and don’t be afraid to ask for things you have a right to.

Also, I encourage all of you and not just the disabled people reading this to take some time to read the Americans With Disabilities Act. I only touched on a fraction of what’s in it because I truly want you to take the time to discover it for yourself. It’s not just an act that concerns the disabled. It’s also a landmark in humanity and something worth discovering for yourself. The ADA defines an era and more people need to see it to understand and read in plain english that disabled people are human beings that deserve your respect and the same rights to happiness and prosperity. The ADA is a glimpse into a world we all need to take a good look at to strive for equality and the end of stigma on disabilities. At the end of the day the first thing we need to do to move forward as a society is open our eyes to the the fact that even the disabled are people and at our root we are all people who need to accept others for being a little different, but still very much human.

You can check out the EEOC and the ADA at https://www.eeoc.gov/eeoc/history/35th/1990s/ada.html .

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