United States: EEOC Offers Guidance On Intellectual Disabilities Under The ADA

In October 2004 the Equal Employment Opportunity Commission published "Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act."

This guide provides general information and examples of how the ADA’s existing standards apply to intellectual disabilities. The EEOC points out that, contrary to popular belief, employees with intellectual disabilities (more commonly known as "mental retardation," a term the EEOC wants to avoid) normally do not have a higher absenteeism rate than other workers or generate higher insurance rates or workers’ compensation claims. The EEOC says that people with intellectual disabilities can hold jobs such as data entry clerk, mail clerk, store clerk, messenger, printer, assembler, factory worker, hospital attendant, housekeeper, maintenance worker, and clerical aide.

The EEOC considers an individual intellectually disabled when IQ is below 70-75; the disability originated before the age of 18; and "significant limitations" exist in everyday life skills such as self-care, communication, social skills, health and safety, academics, self-direction, and work.

The individual must also meet one of the three previously articulated tests for coverage under the ADA:

(1) The impairment (or multiple impairments in combination) must substantially limit one or more major life activities, such as walking, seeing, hearing, thinking, speaking, learning, concentrating, self-care, and working. EEOC example: An individual who needs help cleaning his apartment, grocery shopping, going to appointments, cooking, reading mail, and paying bills is substantially limited in self-care and therefore disabled under the ADA.

(2) The individual has a past record or history of an intellectual disability. EEOC example: An individual diagnosed with an intellectual disability in high school has a past record or history of a disability and therefore is protected under the ADA.

(3) The employer mistakenly regards the individual as having an intellectual disability. EEOC example: An applicant has a facial deformity that affects her speech and an interviewer rejects her application because he believes that she has an intellectual disability and will be unable to communicate effectively with customers. The applicant is regarded as being disabled and therefore is protected under the ADA.

The ADA also protects individuals without a disability from discrimination based on their association with a disabled person. For example, an employer may not reject an applicant because of concern that the applicant’s child’s intellectual or other disability will result in the applicant’s poor attendance.

Employers are prohibited under the ADA from most preoffer disability-related and medical inquiries. For example, before a conditional employment offer has been made, employers may not ask whether an applicant was ever diagnosed with an intellectual disability, takes medication, or is receiving psychiatric treatment. Employers may ask an applicant if he can perform specific, job-related tasks, such as putting files in alphabetical or numerical order.

After a conditional offer has been made, employers generally are permitted to ask health and disabilityrelated questions and/or require a medical exam, as long as all applicants are treated the same.

After hiring, employers generally may ask for medical information if they reasonably believe, based on objective evidence, that the employee’s condition is the cause of performance problems or that the condition poses a direct safety threat.

The EEOC gives examples of accommodations for the intellectually disabled applicant or employee. Application Accommodations might include:

(1) providing a reader or interpreter for application materials;

(2) demonstrating what the job requires;

(3) replacing a written test with an expanded interview to allow an applicant to demonstrate skills.

Workplace Accommodations might include:

(1) job restructuring to exchange functions (for example, allowing the employee to assume his coworker’s cleaning duties while the coworker assumes his money-counting duties);

(2) training that is slower-paced, extended, broken into smaller steps, repeated as needed, or enhanced by visual aids or color coding;

(3) having a job coach available to facilitate communication regarding potential accommodation and to provide initial training, monitoring, and assessment;

(4) offering a modified work schedule;

(5) providing new or modified equipment (for example, a large-button telephone with speed dial and labeled buttons for a receptionist who has difficulty remembering office telephone numbers); and

(6) relocating an individual’s work station to reduce distractions.

Importantly, requests for accommodation can come from a third-party representative of the job applicant or employee. Employers must consider and respond to these requests just as if they were made directly by the disabled individual.

Moreover, an employer must initiate a discussion about the need for a reasonable accommodation even without a request if the employer knows or has reason to know that (1) the employee has a disability, (2) the employee has workplace problems because of the disability, and (3) the disability prevents the employee from requesting an accommodation.

Employers should be aware of the potential for harassment based on disability. The EEOC states that about 20% of discrimination claims brought by people with intellectual disabilities allege harassment. Namecalling and other humiliating, threatening, or harmful conduct should be addressed promptly and effectively. Harassment policies and training should include the employer’s prohibition of harassment based on disability.

If you have questions about accommodating an employee with an intellectual disability, or compliance with the ADA generally, please call Alison Maki or any other Vedder Price attorney with whom you have worked.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.