by Marilynn Mika Spencer, a California licensed attorney
Marilynn Mika Spencer and The Spencer Law Firm represent clients in the fields of labor and employment law. She is a graduate of the UCLA School of Law. Ms Spencer is on the Executive Board of the California Employment Lawyers Association (the largest and most influential plaintiffs employment bar in California); a former Member of the Executive Committee of the Labor and Employment Section of the State Bar of California; and a 2007 San Diego SuperLawyer (Employment & Labor; Employment Benefits/ERISA). Ms Spencer co-authored a chapter on the Americans with Disabilities Act (ADA) for the National Lawyers Guild publication, Employee and Union Member Guide to Labor Law.
This article was initially published in the Summer 2010 edition of the OCD Newsletter.
Note: This article is for general information only. It is not legal advice. Legal advice must be tailored to specific facts. For legal advice, please contact a licensed attorney in your state.
This year marks the 20th anniversary of the Americans with Disabilities Act (ADA). The ADA is a federal law designed to make it easier for people with disabilities to fully participate in society. The law is divided into five sections called “titles.” Title I covers employment. Titles II, III, IV, and V cover public services, public accommodations, telecommunications, and miscellaneous provisions.
In the two decades since the ADA was passed, working people have benefited enormously from the law’s protection. At the same time, there is much the law does not do, even though it could and should. Many people with disabilities do not know how to take advantage of the ADA, or are afraid to use the law because they do not want to reveal their disability. Also, many employers are uninformed about their legal obligations. Added to this are the effects of stigma and discrimination, highlighting that the law has yet to reach its full potential.
This article provides a summary of the ADA plus tips for working people with OCD.
What kind of workers does the ADA protect?
The ADA uses terminology with specific legal meaning, but in short, the law protects individuals with permanent or long-lasting physical or mental limitations, if those limitations have substantial negative effects, and if the individuals can do the main parts of their jobs, even if they need some kind of help to get the job done.
Which employers have to comply with the ADA?
The ADA applies to private employers and religious entities with at least 15 employees, state and local governments, employment agencies, and labor unions. U.S government employees are covered by the Rehabilitation Act, which is very similar to the ADA.
How does the ADA help working people?
The ADA offers two benefits to people who work or want to work. First, the law forbids employers from discriminating against individuals with disabilities, and second, the ADA requires employers to provide reasonable accommodation to employees with known disabilities.
What is meant by “discrimination”?
To discriminate on the basis of disability means to treat a person with a known disability differently from, and worse than, other people who do not have a disability. This different negative treatment might be found in applying for a job, or hiring, firing, advancement, pay, training, and all other parts of employment.
What does it mean to provide “reasonable accommodation?”
If an employer is covered by the ADA, it is also required to give people with known disabilities reasonable accommodation. “Reasonable accommodation” means to change some part of work so that a person with a disability can do the job. The change may include providing a quiet place to work; giving assignments and instructions in writing instead of orally; modifying work schedules; modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and more. The only limitation is if it would be an undue hardship on an employer to provide the accommodation; this usually means it is excessively expensive given the resources of the employer.
What else does the ADA do?
The ADA requires covered employers to offer qualified individuals with disabilities equal access to all employment-related opportunities. This includes medical insurance, social activities, vending machines, restrooms, and more.
In addition the ADA limits the questions an employer can ask a job applicant before a job offer is made. Employers may not ask if the applicant has a disability. If the applicant tells an employer she has a disability, the employer cannot ask about the nature or severity of the disability. However, an employer can ask applicants about their ability to perform specific job functions. An employer can extend a job offer on the condition the applicant passes a medical exam, but only if the exam is required for all other new employees in similar jobs.
Under the ADA it is unlawful to retaliate or punish an individual who opposes or complains about disability discrimination, who files a discrimination charge, or who testifies or participates in any way in an ADA case or investigation.
Although an employer may not discriminate on the basis of disability, if an applicant or employee is a direct threat to the health or safety of him/herself or of others, an employer may treat that individual differently due to the direct threat. An employer must prove there is significant risk of substantial harm which cannot be reduced or eliminated by reasonable accommodation. An employer’s assumption that people with disabilities are more prone to harm is not an excuse for discrimination.
How do you file a complaint against an employer who discriminates because of disability?
A claim of employment discrimination based on disability, failure to accommodate, or reprisal must be filed with the U.S Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination or failure to accommodate, or within 300 days if in a state with a fair employment practices agency. A person cannot file a lawsuit until the EEOC has had the opportunity to investigate and resolve the claim and issues a right-to-sue letter. These claims may be filed at any EEOC field office. For the appropriate EEOC field office, call the EEOC at (800) 669-4000 (voice), or (800) 669-6820 (TTY), or visit the EEOC web site at www.eeoc.gov.
Many states have laws that are similar to the ADA, or are more favorable to people with disabilities. Some state laws provide more generous remedies a longer time to file the claim easier procedures and more.
Practical tips for people with OCD
To tell or not to tell
Choosing if and when to disclose having OCD can be a hard choice to make. We are all aware of the stigma attached to mental disabilities. To reduce this stigma, organizations like the IOCDF are working hard to educate people with OCD and the public about this condition. And laws like the ADA help people with disabilities be more open about their disability because there is now some degree of protection against discrimination
While many people with mental disabilities such as OCD can hide their condition from other people, it is harder to conceal OCD on the job. This is because one typically interacts with the same people every day, all day long, and the worker is expected to meet performance standards.
When employees with OCD are engaging in rituals or experiencing self-doubt and uncertainty, their bosses and co-workers might believe the employees are slow, incompetent, lazy, or not paying attention. If OCD is leading to poor performance reviews, counseling, discipline, or other problems at work, it is time to consider whether or not to disclose the disability and ask for reasonable accommodation. If your work is suffering because you need reasonable accommodation, the ADA can help. However, you must request accommodation; otherwise your employer will not know the reason for your poor performance and may have the right to discipline or even fire you.
How to request accommodation
A request for reasonable accommodation should be directed to an immediate supervisor, manager, or to human resources/personnel. The request should identify the disability state it is permanent, or give the expected duration, and ask for reasonable accommodation.
“I request reasonable accommodation for my disability of obsessive compulsive disorder. My condition is permanent.”
If the employee knows what accommodations he or she needs, it is a good idea to specify them in the request:
“The accommodations I request are a white noise machine to eliminate distractions, and to be relieved of telephone duties for two hours every day so I can concentrate on my work.”
When an employer receives such a request it is legally obligated to discuss possible accommodations with the person with the disability. Sometimes the employer may request more information from your doctor, which is usually appropriate. If you believe the request is harassment or unnecessary, please consult with an attorney before refusing to cooperate.
All medical information an employer receives must be kept completely confidential by law and disclosed only to those who have a work-related need to know. For example, if you request accommodation from the personnel office, your supervisor will also need to know. However, your co-workers do not have a need to know. You may choose to disclose your disability to your co-workers. Sometimes it is a good idea to let your co-workers know so they do not assume that you are getting special treatment. It is best to give them factual information about the disorder and to let them know that you are doing what you can to learn to manage it. Enlist their help and support. General information about OCD can be found on the IOCDF website www.ocfoundation.org.
Protect your rights!
All communications with your employer regarding your disability or request for accommodation should be done in writing. Be sure to date everything you write ,and keep a copy. Keep all documents you receive from the employer regarding your disability accommodation request or work performance. Keep a log of any comments made or discussions that relate to your disability, including the date, what was said, who said it ,and if anyone else was present. If your employer discriminates against you, or refuses to accommodate you, this documentation will be very helpful in supporting your side of the story and in triggering your memory.
For more information
The IOCDF is planning to add legal information to its website. Watch for more information on your legal rights at work and more.