Commemorating the 29th Anniversary of the ADA: Considerations for Small Employers
May 26, 2020
by Jeffrey J. Tamburo
In a 2019 research study of small employers conducted by Cornell University’s Yang-Tan Institute, several employers talked about the decision-making processes in their work environments as being “more informal”, with no real policies and procedures when it comes to making reasonable accommodations for employees with disabilities. These employers also spoke of their “family friendly” atmosphere where “we have each other’s backs”. Yet 29 years after the enactment of the Americans with Disabilities Act (ADA), people with disabilities continue to face discrimination in the workplace. Case in point: EEOC v. Valley Tool, a manufacturer of custom tooling. In this recent case, the employer denied an employee a reasonable accommodation after the employee disclosed having a “blood disorder”, fired her, and then punished her for complaining about it. The employer told her that he thought he was hiring a “healthy employee”. In addition, another employee who complained about the manager's comment made about her colleague's blood disorder and other workplace issues was denied wage increases after she filed a discrimination charge. Valley Tool told this employee and the EEOC that the company denied her the wage increases because she had filed the discrimination charge and the company had to spend money responding to it. The EEOC is suing Valley Tool for disability discrimination and retaliation, both violations of the ADA as well as Title VII of the Civil Rights Act of 1964.
For this company and other small employers, their vulnerability lies in their lack of education about the ADA, and their not having more formalized policies and procedures in place. Managers frequently are lacking in knowledge when it comes to following a federal law such as the ADA. This is no minor point, because research tells us that employees with disabilities are at least 60% more likely to disclose a disability to their supervisor than to HR. In fact, many small businesses don’t even have a formal HR department, which makes it even more imperative for business owners and managers to understand the key concepts of the ADA, including the answers to questions such as, What do I do when an employee discloses a disability? Will I even recognize a disclosure when it happens? What does the ADA mean by reasonable accommodation?
Disability Disclosure in the Workplace: Have you ever had an employee disclose that they have a disability? Many small employers may state that they have “never worked with people with disabilities”, but the reality often is very different. When it comes to disability, many employers may think of wheelchair users rolling into their place of business, or someone who is blind and using a cane, or a person who is Deaf and uses sign language. These are disabilities that you can see, yet there are many disabilities that we cannot see. An employee with diabetes, a coworker with cancer, a colleague with anxiety disorder—these are all considered qualified disabilities under the ADA. We may not “see” them, but their impact is real, and according to the ADA employers are no less obligated to accommodate them. In fact, the employee doesn’t even have to mention the ADA or any other law nor provide specifics on their medical diagnosis. When an employee goes to a manager or HR and says something like “Because of X medical condition, I am having trouble doing Y job duty”, that is considered the beginning of a disclosure discussion.
Reasonable Accommodation: The primary reason that an employee may disclose a disability is for a reasonable accommodation. Both employer and employee have obligations under the ADA. The employee has a responsibility to disclose a qualified disability and to request an accommodation--and to provide medical documentation if requested by the employer--while the employer is obligated to set into motion a good faith and timely effort to find a reasonable accommodation that enables the employee to perform the essential functions of the job. The ADA calls this the interactive process, a process by which both employer and employee discuss options that allow the employee to perform the essential job functions. Ultimately, the employer can choose the option they prefer. The accommodation does not have to be the best option available, but it must be effective. Thus, the interactive process is a two-way street.
Thus, small employers must strike a balance between the benefits of a more informal work environment—benefits that may include more frequent, personal contact with employees, or creativity and flexibility with accommodations-- with the need to establish a process, so that all managers and supervisors recognize reasonable accommodation requests. Although small employers may have greater flexibility with accommodation requests, differences may not always be welcomed in a more insular environment. Establishing a simple and formal reasonable accommodation process that all managers and employees must follow promotes a culture of fairness for everyone.