*** NEW ADA GUIDANCE ON INTELLECTUAL DISABILITIES ***

From: Cara Levinson
Email: CaraBLevinson@aol.com
Date: February 10, 2005

Comments

In October 2004, the EEOC issued an extensive fact sheet addressing how the ADA might apply to job applicants and employees with intellectual disabilities. It is available at: http://www.eeoc.gov/facts/intellectual_disabilities.html

This guidance may be of interest to some of you in the hiring/management of employees in such positions as custodian and food service.

According to the fact sheet, an individual is considered to have an intellectual disability when (1) the person's intellectual functioning level or IQ is below 70-75; (2) the person has significant limitations in basic skills needed for everyday life, such as communication, self-care, social skills, or work; and (3) the disability originated before the age of 18.

As explained by the fact sheet, not all persons with intellectual impairment are covered by the ADA. The general provisions of the ADA apply, so for a person to be protected his/her impairment must currently substantially limit one or more major life activity, have limited one or more major life activity in the past, or he/she must be treated by the employer as if the impairment substantially limits one or more major life activites. In addition, the individual must be qualified and able to perform the job, with or without reasonable accommodation.

Employers should note that such disabilities will not necessarily be obvious from an individual's appearance. While the guidance emphasizes that individuals with intellectual disabilities often have other impairments as well -- such as cerebral palsy, seizure disorders, and hearing and vision impairments -- such impairments must be considered in isolation as well as in combination with the intellectual impairment to determine whether they rise to the level of a disability under the ADA.

The EECO cautions that employers may not ask during the hiring process, prior to making a job offer, whether an applicant has an intellectual disablity, takes medication, has been hospitalized, or is currently receiving psychiatric treatment. Nor may an employer ask a third party, such as a family member, social worker, or job coach, any questions it could not ask the applicant directly.

In addition, if an emloyer learns that a non-disabled job candidate has a child with an intellectual disability, the employer may not deny employment because of a belief that the child's disablity will cause the employee to be absent from work frequently. This would be an example of an "association" form of disability discrimination prohibited under the ADA.

Of course, during the interview the employer can ask whether the candidate can perform specific, job-related tasks -- and may ask for a demonstration of those tasks -- so long as every candidate is asked those questions and must perform those demonstrations.

After an offer of employment is made, the employer may ask questions about the applicant's health or disability and may require a medical examination, as long as all applicants are treated in this same manner.

One important point of the fact sheet is the EEOC's view of possible accommodations: providing "readers;" modifying training materials; providing job coaches; and allowing an applicant to demonstrate skills rather than take a written test, among others.

The EECO emphasizes that persons with intellectual disabilities can successfully perform a wide range of jobs, but that many employers still exclude them because of unfounded fears and stereotypes. The EEOC cites studies showing that employees with intellectual disabilities do not have a higher absentee rate than employees without disabilities and that, contrary to popular misconception, insurance rates and workers' compensation claims do not increase when workers with intellectual disabilities are employed.

Please note that a large percentage of ADA discrimination claims brought by persons with intellectual disabilities allege harassment based on their disability. In fact, two weeks ago I delivered an all-day managerial training session for a national company that was compelled to hold the training under a consent agreement with the EEOC because of a complaint of disability harassment brought by an applicant with an intellectual disability. BEWARE!