Americans Disabilities Act-RIGHTS (long) | ADHD Information

(For those in the United States)

ADD/ADHD and The Americans with Disabilities Act (ADA)

What is the ADA?
The Americans with Disabilities Act, or ADA, was established by Congress in 1990. The purpose of the law is to end discrimination in the workplace and to provide equal employment opportunities for people with disabilities.

What Employers Are Covered by the ADA?
The ADA applies to businesses with 15 or more employees. This includes:

    * private employers
    * state and local governments
    * employment agencies
    * labor organizations
* and labor-management committees

Is ADD/ADHD included in the ADA?
Yes.

The ADA provides for "mental" conditions or mental illnesses, but as with physical impairments, the diagnosis of a mental illness or mental impairment is not sufficient to qualify an employee for protection under the Act.

The following conditions must be met for ADD/ADHD to qualify for coverage:

    * It must cause significant impact or limitation in a major life activity or function
    * The individual must be regarded as having a disability
    * The individual must have a record of having been viewed as being disabled.
* The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.

Can an employer or potential employer ask if I have ADD or ADHD?
No.
Your employer or potential employer cannot ask questions about your medical or psychiatric history. An exception, however, is if an applicant asks for reasonable accommodation for the hiring process. If the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability.

Do I have to tell my employer that I have ADD/ADHD in order to be covered by the ADA?
Yes.
Several courts have already ruled that in these situations, lack of knowledge of the condition or of how the disability may affect the employee may be an used as a legitimate defense for the employer.

What are reasonable accommodations?
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship, such as being too expensive or creating other problems within the workplace.

Reasonable accommodations for an employee who has ADD/ADHD could include

    * job restructuring
    * part-time or modified work schedules
    * reassignment to a vacant position
* adjusting or modifying examinations, training materials, or policies

Can an employer lower my salary or pay me less than other employees doing the same job because I need a reasonable accommodation?
No.
An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions.

I take medications for my ADD. Do I still qualify for accommodations on the job?
The U.S. Supreme Court ruled in Sutton v. United Airlines, Inc., and again in Murphy v. United Parcel Service, Inc., that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability." In other words, if you are vision impaired but can correct that impairment by wearing glasses, then you are not considered disabled. Likewise, if ADD is successfully managed with medication, then it might be difficult to claim ADD as an impairment.

What do I do if I think that I'm being discriminated against?
If you think you have been discriminated against in employment on the basis of your ADD or ADHD, you should contact the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. To contact the EEOC, look in your telephone directory under "U.S. Government." You can also call 1-(800)-669-4000 for more information.

What have employers been told about ADHD and the ADA?
The following is from an article in the The New York Law Journal. It is not very encouraging.
"As more employees learn that their work-related problems may be attributable to Adult ADHD, some will likely seek protection from discrimination under the Act. Employers faced with these disability discrimination claims should institute a two-pronged defense.

"First, the employer should force the employee to meet his burden of proving that he does in fact suffer from ADHD, and that the employee's ADHD impairs a major life activity. If the employee successfully establishes that he is disabled within the meaning of the Act, the employer should argue that the employee is unable to perform the essential functions of his job. This argument will be aided if the employer can point to a written job description stating that general skills such as following instructions, completing tasks on time and getting along with others are essential functions of the employee's particular position.

"The symptoms of Adult ADHD are such that they will likely prevent the employee from performing these essential functions. Therefore, employees who are terminated because of behavior attributable to Adult ADHD will probably not be entitled to protection under the Act."

Keep in mind that the above is a legal opinion and not law. Still, it would be to the benefit of both you and your employer to resolve this out of court.

More Resources from around the Internet
ADD in the Workplace
From the ADDA Web Site. Article written by Kathleen G. Nadeau, Ph.D., author of ADD in the Workplace

Top Ten ADD Traps in the Workplace, and how to avoid getting caught by them!
Also by Kathleen G. Nadeau, Ph.D.

Work-site Accommodations to Consider for People with Learning Disabilities and/or Attention Deficit Disorder
From the Job Accommodation Network, West Virginia Universitygoldenmoment38484.6451157407This might be of interest to some too:

Facts About the Americans with Disabilities Act(Just so some in the U.S. are aware)

The Americans with Disabilities Act and the Rehabilitation Act of 1973

Two federal laws—The Rehabilitation Act of 1973 (RA) and the Americans with Disabilities Act of 1990 (ADA)—prohibit workplace discrimination against individuals with disabilities. The RA prohibits discrimination in three areas: (1) employment by the executive branch of the federal government, (2) employment by most federal government contractors, and (3) activities funded by federal subsidies or grants, including organizations receiving federal funding.

The ADA extends the concepts of the RA to (1) private employers with 15 or more employees, (2) all activities of state and local governments, including employment, and (3) "places of public accommodation," including most private schools and higher education institutions.

It is important to understand that being diagnosed with ADHD does not automatically make an individual eligible for protection or accommodations under the RA or ADA. The protections of these laws extend to individuals who meet four conditions:

* They are individuals with disabilities under the law;
* They are otherwise qualified for the position, with or without reasonable accommodations;
* They are being excluded from employment solely by reasons of their disability; and
* They are covered by the applicable federal law.

To be eligible for the protection offered by the ADA and RA, an employee must disclose the disability to the employer. The decision to disclose a disability to an employer or not can be a difficult one. On the one hand, an employer is not required to make accommodations unless the employee has disclosed the disability. On the other hand, discrimination often begins when the employee makes the disclosure. These factors must be weighed before making the decision to disclose.

Reasons for not disclosing:

* If you do not need accommodations
* If you are performing well on the job
* If you feel that disclosing your disability will cause your supervisor and co–workers to discriminate against you

Reasons for disclosing:

* If you fear losing your job because you haven't received the accommodations you need to succeed
* If you are about to be fired because of performance issues

It is possible to request accommodations without disclosing information about the disability. First, if possible, try to provide the accommodations yourself—by coming in early or staying late to avoid distractions, for instance, or by programming the computer to remind you of appointments. Second, frame requests to the supervisor from a position of strength, rather than bringing up the disability. For example, instead of saying:

"I have a disability called ADHD, which makes it hard for me to remember things and follow through," it might be better to reframe from a standpoint of strength, by saying,

"I work best when I use a tape recorder to help me remember everything new, until I get proficient."

Similarly, instead of, "I know that the Americans with Disabilities Act protects those of us with disabilities from discrimination, so I know that you will need to provide me with special accommodations," it might be better to reframe from a standpoint of strength, by saying,

"I believe my strengths are consistent with the essential tasks of this job. If I can take the time to review my notes in a quiet place before each meeting, I can assure you that I can excel at this position."

Read the information and resource sheet entitled, "Legal Issues for Adults with ADHD in the Workplace and Higher Education," for more information on ADA and RA.