EEOCs Determination of “Reasonable Accommodation” for an Intellectual Disability

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Reasonable Accommodation
EEOC regulations define “reasonable accommodation” to include “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii)

It includes:
a)    making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

b)   job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.[1]

It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of business. Undue hardship means that the accommodation would require significant difficulty or expense.

EEOC Policy on Reasonable Accommodation
EEOC’s Procedures fully comply with the requirements of the Rehabilitation Act of 1973. Under the law, EEOC must provide reasonable accommodation to qualified employees or applicants with disabilities, unless to do so would cause undue hardship. The EEOC is committed to providing reasonable accommodations to its employees and applicants for employment to ensure that individuals with disabilities enjoy equal access to all employment opportunities. EEOC provides reasonable accommodations:

  • when an applicant with a disability needs an accommodation to have an equal opportunity to compete for a job;
  • when an employee with a disability needs an accommodation to perform the essential functions of the job or to gain access to the workplace; and
  • when an employee with a disability needs an accommodation to enjoy equal access to benefits and privileges of employment (e.g., details, trainings, office-sponsored events).

Common types of accommodations include:

  • Modifying work schedules or supervisory methods
    • Granting breaks or providing leave
    • Altering how or when job duties are performed
    • Removing and/or substituting a marginal function
    • Moving to different office space
  • Providing telework beyond that provided by the collective bargaining agreement or the relevant MOU.
    • Making changes in workplace policies

Providing assistive technology, including information technology and communications equipment or specially designed furniture

  • Providing a reader or other staff assistant to enable employees to perform their job functions, where the accommodation cannot be provided by current staff removing an architectural barrier, including reconfiguring work spaces
    • Providing accessible parking
    • Providing materials in alternative formats (e.g., Braille, large print)
    • Providing a reassignment to another job

EEOC on ADA and Intellectual Disability:
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. For ADA purposes, a “disability” is an impairment that limits one or more major life activities.[2] Mental impairments, including depression, anxiety, bipolar disorder, stress disorder, and emotional or mental illness can constitute a disability under the ADA, Reed v. Winwood Farm Home for Children, Inc., Civil Action No. 2:11-0679-DCN-BM, 2011 U.S. Dist. LEXIS 83253.

The EEOCs message in respect to intellectually disabled persons is the same as its message in respect to all disabled persons. As the EEOC points out, persons with intellectual disabilities “successfully perform a wide range of jobs, and can be dependable workers. The types of jobs people with intellectual disabilities are able to perform will depend on individual strengths and interests.”

While not every intellectually disabled person will necessarily be deemed disabled for ADA purposes, if a person is substantially limited in the ability to think, learn, work, remember or concentrate, the ADA will be implicated. ADA also protects persons who are not disabled, but are regarded as being disabled. This aspect of the law can become particularly important when dealing with intellectual disabilities. It explains how the ADA applies to job applicants and employees with intellectual disabilities.[3]

This means that employers must apply the same ADA protocols to the intellectually disabled as they would apply to an employee or applicant with a hearing loss or a spinal cord injury.

Reasonable Accommodation for the intellectually disabled

a) In the application process

Reasonable accommodation also must be made to enable an individual with a disability to participate in the application process and to enjoy benefits and privileges of employment equal to those available to other employees.

Persons with intellectual disabilities need reasonable accommodations to apply and/or interview for a job. Such accommodations might include:

  1. Providing someone to read or interpret application materials for a person who has limited ability to read or to understand complex information;
  2. Demonstrating, rather than describing, to the applicant what the job requires;
  3. Modifying tests, training materials, and/or policy manuals; and
  4. Replacing a written test with an “expanded” interview.

b)    During employment
The following are accommodations that employees with intellectual disabilities may need during their course of employment:

  1. Reallocation of marginal tasks to another employee
  2. Training or detailed instructions to do the job, including having the trainer or supervisor:
      1. give instructions at a slow pace;
      2. allow additional time to finish training;
      3. break job tasks into sequential steps required to perform the task; and
      4. use charts, pictures, or colors.
  3. Provide a tape recorder to record directions as a reminder of steps in a task
  4. Use detailed schedules for completing tasks
  5. Provide additional training when necessary
  6. A job coach may be required to:
    1. assist the employee in learning how to do the job;
    2. provide intensive monitoring, training, assessment, and support;
    3. help develop a healthy working relationship between management and the employee by encouraging appropriate social interaction and maintaining open communications; and
    4. assist the parties in determining what reasonable accommodation is needed.
  7. Modified work schedule or shift change
  8. Help in understanding job evaluations or disciplinary proceedings- An employer may allow the employee to bring someone to a job evaluation or disciplinary meeting to help him ask questions and to explain the job evaluation results or the purpose of the meeting.
  9. Acquisition or modification of equipment or devices
  10. Work station placement
  11. Reassignment to a vacant position when the employee is no longer able to perform current job.

Cases

In Dillon Companies, Inc. d/b/a King Soopers (D. Co. 2011), the Commission alleged that the charging party, a ten-year employee with intellectual disabilities, was subjected to harassment by supervisors, a head clerk, and a service manager.  The harassment consisted of repeated bullying and taunting which ultimately led to the employee’s termination. The Phoenix District Office found that the defendant, a supermarket chain, failed to take effective corrective action and thus settled the case for $80,000 in monetary relief and injunctive relief including training to management and reporting, among other things.

Similarly in Target Corporation (C.D. Cal. 2011), the EEOC alleged that charging party, a cart attendant who was suffering from cerebral palsy, limited intellectual functioning and a seizure disorder, was denied a job coach as a reasonable accommodation. When charging party was initially hired, defendant provided him with a job coach to assist him in his tasks as part-time stocker.  He subsequently held the position of cart attendant and continued to request reasonable accommodation. Defendant failed to ensure the presence of a job coach during work-related and job performance meetings. Defendant also reduced charging party’s work hours after he returned from a medical leave of absence. Finally, the Los Angeles District Office settled the case for $160,000 in monetary relief and injunctive relief.

Also, in Alstrun, LLP d/b/a McDonald’s (E.D. Penn., 2010), the Commission alleged that charging party, a parking lot and lobby worker at the restaurant, was discriminated against when he was harassed by his supervisor, other managers and co-workers because of his disabilities, i.e. intellectual disability. The harassment consisted of derogatory name as well as physical shoving, grabbing and threats. The Philadelphia District Office found that defendant failed to prevent the harassment despite repeated complaints and the employee was forced to quit. The case settled for $90,000 and injunctive relief.

The pending case of Hill Country Farms d/b/a Henry’s Turkey Service: (S.D. Iowa, 2011) further reflected EEOC’s allegation of a class of 31 men with intellectual disabilities being subjected to severe abuse and discrimination for more than 20 years by defendant’s owners and supervisors in violation of the ADA.  The abuse consisted of verbal and physical harassment, restricting their freedom of movement, requiring workers to live in deplorable and sub-standard living conditions, paying them only $65 a month for full-time work and failure to provide adequate medical care, among other things. Despite the repeated number of complaints, defendant’s supervisors, the workers’ purported caretakers, failed to take action.[4]

In Shim v. United Air Lines, Inc., Civ. No. 11-00162 JMS-BMK, 2012 U.S. Dist. LEXIS 184058, the United States District Court for the District of Hawaii found that defendant terminated Plaintiff because of his numerous requests for non-occupational medical leave. The Court further stated that defendant was aware that plaintiff was under the care of a psychiatrist, for disabilities such asanxiety, bipolar disorder and severe depression. He requested non-occupational medical LOAs — a form of reasonable accommodation under the ADA. And defendant terminated him because of the length of time he had requested such an LOA.

Similarly, in Stewart v. City of Osage Beach, Case No. 2:10-CV-04126 NKL, 2011 U.S. Dist. LEXIS 74162, Plaintiff’s plea for accommodation to work in the day shifts was denied for failure to state a claim. The Court stated that to show that defendant is substantially limited in the major life activity of working, she must present evidence that her overall employment opportunities are limited and specifically, she must show that her condition restricts her ability to perform “a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and training.” Because Stewart has not shown an ADA disability as defined in 42 U.S.C § 12102(2), she has failed to make a prima facie case of ADA discrimination and the defendant’s Motion for Summary Judgment is granted as to that claim.

Also, in Jackson v. Ill. Dep’t of Human Servs., 09 C 4194, 2011 U.S. Dist. LEXIS 110424, the Northern District of Illinois, Eastern Division granted defendant’s motion for summary judgment. Plaintiff failed to state a valid claim for reasonable accommodation, owing to disabilities like PTSD, insomnia, anxiety, depression, difficulty in concentrating, and dysthymia. For each of plaintiff’s proposed accommodations, he failed to provide sufficient evidence to allow a reasonable jury to find that he is a “qualified individual” within the meaning of the ADA.

In Simmons v. Potter, Civil Action No. 08-cv-02593-WYD-KLM, 2010 U.S. Dist. LEXIS 76592, the Colorado District Court ruled in favor of the defendant as plaintiff’s disability claim for PTSD and brain tumor failed because he failed to show that he was denied reasonable accommodations.

In Evans v. Maricopa County Special Health Care Dist., No. CV-12-01089-PHX-NVW, 2012 U.S. Dist. LEXIS 168418, the Arizona District Court found that the plaintiff’s first amended complaint did not specifically state the kind of reasonable accommodation she requested for her medical conditions including depression, generalized anxiety disorder, and a bladder issue.

In LaGatta v. Pa. Cyber Charter Sch., Civil Action No. 08-1268, 2011 U.S. Dist. LEXIS 100306, the Western District of Pennsylvania held that plaintiff’s receipt of Social Security Disability benefits foreclosed her ADA claim because she could not prove that she was a qualified individual, i.e., that she was able to perform the essential functions of her job, with or without reasonable accommodation for her disabilities of major depression and bipolar disorder.

In Chmiel v. Potter, 09-CV-555(RJA), 09-CV-555(RJA), 2010 U.S. Dist. LEXIS 141748, the Western District of New York ruled in favor of the defendant but did not consider plaintiff’s contention that he was not provided with the requisite accommodation for his known disabilities fordepression, anxiety disorder, and alcoholism and was terminated from his position as a letter carrier for the defendant without due consideration for those same disabilities.
In Stamm v. New York City Transit Auth., 04-CV-2163 (SLT) (JMA), 2011 U.S. Dist. LEXIS 36195, the Eastern District of New York held that for the purpose of defendant’s disabilities- PTSD and major depression, neither travel nor commuting were major life activities. Also, plaintiff failed to show a nexus between the reasonable accommodation sought and the major life activities.
In Bialko v. Quaker Oats, 3:CV-08-0364, 2010 U.S. Dist. LEXIS 30723, the Middle District of Pennsylvania denied plaintiff’s motion for partial summary judgment as he failed to present evidence that his mental health issues involving severe anxiety, panic disorder, generalized anxiety disorder and depression, rose to the level of a “disability” under the ADA.
In Dentice v. Farmers Ins. Exch., Case No. 10-C-113, 2012 U.S. Dist. LEXIS 89609, ruling in favor of the defendant, the Eastern District of Wisconsin found that none of plaintiff’s actions presented compelling evidence of defendant’s discriminatory intent related to his requests for accommodation of his disabilities arising from generalized anxiety disorder, panic disorder, and depression.

In Brown v. Arizona, No. CV-09-2272-PHX-GMS, 2011 U.S. Dist. LEXIS 79267, the Arizona District Court stated that because the Ninth Circuit shifted the burden of production to an employer challenging an employee’s qualified status (for suffering from depression), and because the State neither directly challenged plaintiff’s ability to perform the essential functions of her position with or without reasonable accommodation, nor did it produce any evidence as to what those essential functions were, summary judgment was inappropriate. Further, summary judgment was also denied with respect to the failure to accommodate claim.

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[1] 42 U.S.C. § 12111 (9)
[2] 42 U.S.C. § 12102 (1)

[3] http://www.eeoc.gov/laws/types/intellectual_disabilities.cfm
[4] http://www.eeoc.gov/eeoc/litigation/selected/intellectual_disabilities.cfm



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