The ADA prohibits employers from discriminating against individuals with disabilities. Yet, the law also makes it more difficult for us to reach out and help employees with performance problems where we suspect that the performance problems may be due to a physical or emotional condition. If an employer raises a suspected disability in the context of performance management, this well-intended desire to help may become the factual predicate for a perceived disability claim if the employee subsequently loses their job for legitimate, non-discriminatory reasons.
The ADA requires that we focus on abilities and not disabilities in making employment decisions. Yet, in determining whether someone is disabled under the ADA, the Supreme Court has demanded that employers make case-by-case determinations. These determinations often require obtaining confidential medical information regarding whether the condition substantially interferes with a major life activity.
The ADA requires that employers make reasonable accommodations on behalf of qualified individuals with disabilities. These determinations also must be made on an individual case-by-case basis. However, how one case is handled may serve as precedent in other cases (e.g., whether a particular job function is essential) so that ensuring consistency between and among the individual determinations is essential.
It is against these legal cross currents that employers must provide training to supervisors on how to comply with the ADA in particular and how to manage disabilities in particular.
1. No Questions about Disabilities.
The ADA is clear that no inquiries may be made about disabilities prior to the extension of a conditional offer of employment. Accordingly, supervisors should be trained that they never should ask applicants any questions about disabilities.
What supervisors can ask applicants is whether they can perform the essential functions of the jobs for which they have applied. If this question is asked, it should be asked of all applicants and the applicants should be given a job description which identifies the essential job functions.
2. Visible Disabilities.
In some cases, however, an applicant will have a visible disability. For example, the applicant is in a wheel chair.
Supervisors need to receive training on how to handle this situation. Even under these circumstances, the ADA provides that a supervisor cannot ask the applicant any disability-related questions.
Again, what the supervisor should be instructed to do is focus on essential job functions and ask the applicant whether and how they can perform them. However, where an applicant has a visible disability, these questions can be asked of the particular applicant, even if the questions are not asked of all other applicants.
3. Voluntary Disclosures/Requests for Accommodations.
Even if a supervisor does not ask an applicant about his or her disabilities, sometimes an applicant will disclose this information in the interview process. Supervisors should be trained to reframe the issue in terms of abilities rather than disabilities. More specifically, the supervisor should tell the applicant that the employer considers only abilities and then ask the applicant whether they can perform the essential functions of the job (as stated in the job description).
If the applicant indicates that they can do the essential job functions, that ends the dialogue. If they indicate that they cannot, then there may be a duty for the employer to engage in an interactive dialogue to determine if a reasonable accommodation is appropriate.
We don't want supervisors engaging in this dialogue for three reasons:
First, they are better off not knowing more detailed medical information. They can't inadvertently disclose (or be accused of disclosing) what they don't know.
Second, supervisors usually will not have had adequate training to determine whether a condition is a disability, whether a function is essential or whether an accommodation is reasonable, determinations that are critical to the interactive dialogue.
Third, how other cases have been handled is relevant in terms of consistency. Supervisors won't (or at least should not) have access to that comparator information.
Accordingly, if an applicant indicates that they cannot perform the essential functions of the job, supervisors should be told that they should do only one thing: contact Human Resources and not ask any questions or make any accommodation determinations, one way or the other.
1. No Questions about Disabilities.
While the law includes an absolute prohibition on inquiring about disabilities prior to the extension of a conditional offer of employment, the law does not impose an absolute prohibition post-employment. Rather, an employer generally may make inquiries about disabilities post-employment if the inquiries are "job-related" and "justified by business necessity."
However, just as we don't want supervisors determining what is a disability, we don't want them determining what is "job-related" and "justified by business necessity." Accordingly, it is recommended that the direction given relevant to applicants apply equally to employees: do not ask employees whether they have any physical or emotional disabilities or conditions.
But what if the supervisor suspects that the employee's performance is declining because of a physical or emotional condition? From a performance management standpoint, doesn't it make sense to try to get at the heart of the problem?
But what may make business sense is legally dicey. If the supervisor raises the issue of a physical or emotional condition in the context of performance management, the employee may perceive the supervisor as perceiving him or her as disabled.
Sad but true, one of the unintended adverse consequences of the ADA is that it is dangerous to offer unsolicited help relative to physical or emotional conditions. It is safer to focus on the substandard performance or behavior without any statements or speculations about the underlying cause.
Accordingly, supervisors should be counseled to focus on the workplace deficiencies they see and not what they believe may be the underlying cause. However, for organizations wise enough to have an Employee Assistance Program (EAP), the EAP can do what the supervisor shouldn't. The question is how the supervisor should refer the employee to the EAP under these circumstances.
In referring an employee to the EAP, supervisors should be instructed that they should not mention any specific conditions. A supervisor invites an ADA claim, for example, if the supervisor encourages the employee to go to the EAP because the employee seems depressed.
When supervisors refer employees to the EAP, they should remind employees of the EAP, letting them know that EAPs can help employees solve "workplace" (as opposed to "personal") problems. Of course, the EAP may focus on personal problems independent of the workplace. But the key is that the EAP and not the supervisor who shifts the focus there.
2. Voluntary Disclosure.
Of course, no matter how careful the supervisor may be to avoid disability-related comments or questions, employees sometimes voluntarily disclose the existence of a physical or emotional condition. Where this occurs, the supervisor is on notice that the employee may be entitled to an accommodation.
As with applicants, supervisors should be given a simple rule: report the disclosure by the employee to Human Resources, even if the employee does not specifically request an accommodation. Again, HR can then determine whether and how to commence the interactive dialogue.
Supervisors also should be told to contact Human Resources if an employee specifically requests an accommodation. It is also important for supervisors to understand that the duty to contact Human Resources is not limited to those situations in which the employee uses the word accommodation. If the employee says that he or she needs help, support or the like for a physical or emotional condition, the supervisor should contact Human Resources immediately.
3. Hostile Work Environment.
As we all know, the law prohibits not only sexual harassment, but also harassment on account of any other protected factor, including disabilities. Accordingly, the Supreme Court's pronouncements on prevention and correction apply equally to harassment on account of a disability.
Supervisors obviously need to be told that they cannot joke about or make fun of disabilities or otherwise denigrate or disparage disabling conditions or individuals with disabilities. Supervisors also should be cautioned against using terms like "crazy" or "nuts" in describing a difficult employee. Even if not severe or pervasive enough to constitute harassment, the labels could be admissible as evidence that the employer perceives the employee as emotionally disabled.
Employers can navigate through the cross-currents of the ADA if employers train their supervisors to focus solely on workplace performance/ behavior and to leave the accommodation process to the HR function. This delineation in responsibility is essential to avoiding supervisors becoming dangerously involved with medical information or making decisions which are appropriate in isolation but problematic in relation to how the employer has handled other similar situations.
Jonathan A. Segal is a Partner in WolfBlock's Employment Services Practice Group in the Philadelphia office. Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.