Disability Dilemmas for Supervisors

Supervisors can ask applicants whether they can perform the essential functions of the jobs for which they have applied. However, if this question is asked, it should be asked of all applicants for the position. Moreover, the applicants should be given a job description that identifies the essential job functions.

Visible Disabilities

In some cases, however, an applicant will have a visible disability. For example, the applicant carries a white cane and wears dark glasses. Supervisors need to receive training on how to handle visible disabilities. The ADA provides that, even under these circumstances, 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 he or she 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.

Voluntary Disclosures/Requests for Accommodations

Sometimes an applicant will disclose in the interview process disability related information, even if a supervisor does not elicit it. Supervisors must be trained on how to respond to these disclosures.

Specifically, supervisors should be trained to reframe the issue in terms of abilities rather than disabilities. The supervisor should tell the applicant that the employer considers only abilities and then ask the applicant whether he or she can perform the essential functions of the job (as stated in the job description). If the applicant indicates that he or she 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 do not want supervisors engaging in this dialogue for three reasons:

• First, they are better off not knowing more detailed medical information. They cannot inadvertently disclose (or be accused of disclosing) what they do not 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 will not (or at least should not) have access to that comparator information.

Consequently, if an applicant indicates that he or she cannot perform the essential functions of the job, supervisors should be told to do only one thing: contact Human Resources. Supervisors may not ask any questions or make any accommodation determinations, one way or the other.

Post Employment Inquiries About Disabilities

The law on post-employment inquiries is less clear than the rules on pre-employment: Generally, an employer may make inquiries about disabilities post-employment if the inquiries are “job-related” and “justified by business necessity.” Easy to state, but more difficult to apply.

What is clear is that, just as we do not want supervisors determining what is or is not a disability, we do not 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? Yes, 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 negative consequences of the ADA is that it is dangerous to offer unsolicited help relative to physical or emotional conditions. It is legally 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.

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. In situations 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.

Hostile Work Environment

The ADA's prohibition on discrimination also prohibits harassment on account of disabilities. As with sexual harassment, the key with regard to disability-based harassment is prevention and correction.

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. For example, supervisors should be cautioned against using terms like “crazy” or “nuts” in describing a difficult employee. Moreover, as with other kinds of unlawful harassment, supervisors should receive training on their affirmative obligations. After all, “I didn't do anything” often is an admission, not a defense. For example, supervisors need to receive training to respond proactively to disability-based harassment that they see or hear, even in the absence of a complaint. Similarly, just as they report all requests for accommodations to Human Resources, they should report all disability related complaints (even if the employee requests confidentiality and/or that nothing be done).

Conclusion

Employers can minimize their exposure under the ADA if they 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 that are appropriate in isolation but problematic in relation to how the employer has handled other similar situations.

As we all know, the ADA prohibits discrimination on account of past, present and perceived physical and emotional disabilities. Generally, the key to avoiding liability is focusing on abilities and not disabilities. That's an easy mantra to articulate, but it can be deceptively complicated for a supervisor to implement. For example:

• An employee has performance problems. The supervisor believes alcohol abuse may be the cause. Can the supervisor focus on the perceived cause of the performance problems without creating a perceived disability claim?
• An employee who receives a written warning requests an accommodation for a stress disorder that allegedly is contributing to the performance deficiencies. How can the supervisor determine whether the employee has a disability potentially entitling him or her to an accommodation without inquiring about and obtaining highly confidential medical information?

Supervisors need to receive training on how to handle these and other workplace situations. This article provides a practical overview of the legal guts of supervisory training on the ADA.

Pre-employment Inquiries

When it comes to pre-employment inquiries, the ADA is clear. No inquires may be made about disabilities prior to the extension of a conditional offer of employment. For this reason, supervisors should be advised that they never should ask applicants any questions about disabilities.

Supervisors can ask applicants whether they can perform the essential functions of the jobs for which they have applied. However, if this question is asked, it should be asked of all applicants for the position. Moreover, the applicants should be given a job description that identifies the essential job functions.

Visible Disabilities

In some cases, however, an applicant will have a visible disability. For example, the applicant carries a white cane and wears dark glasses. Supervisors need to receive training on how to handle visible disabilities. The ADA provides that, even under these circumstances, 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 he or she 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.

Voluntary Disclosures/Requests for Accommodations

Sometimes an applicant will disclose in the interview process disability related information, even if a supervisor does not elicit it. Supervisors must be trained on how to respond to these disclosures.

Specifically, supervisors should be trained to reframe the issue in terms of abilities rather than disabilities. The supervisor should tell the applicant that the employer considers only abilities and then ask the applicant whether he or she can perform the essential functions of the job (as stated in the job description). If the applicant indicates that he or she 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 do not want supervisors engaging in this dialogue for three reasons:

• First, they are better off not knowing more detailed medical information. They cannot inadvertently disclose (or be accused of disclosing) what they do not 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 will not (or at least should not) have access to that comparator information.

Consequently, if an applicant indicates that he or she cannot perform the essential functions of the job, supervisors should be told to do only one thing: contact Human Resources. Supervisors may not ask any questions or make any accommodation determinations, one way or the other.

Post Employment Inquiries About Disabilities

The law on post-employment inquiries is less clear than the rules on pre-employment: Generally, an employer may make inquiries about disabilities post-employment if the inquiries are “job-related” and “justified by business necessity.” Easy to state, but more difficult to apply.

What is clear is that, just as we do not want supervisors determining what is or is not a disability, we do not 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? Yes, 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 negative consequences of the ADA is that it is dangerous to offer unsolicited help relative to physical or emotional conditions. It is legally 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.

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. In situations 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.

Hostile Work Environment

The ADA's prohibition on discrimination also prohibits harassment on account of disabilities. As with sexual harassment, the key with regard to disability-based harassment is prevention and correction.

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. For example, supervisors should be cautioned against using terms like “crazy” or “nuts” in describing a difficult employee. Moreover, as with other kinds of unlawful harassment, supervisors should receive training on their affirmative obligations. After all, “I didn't do anything” often is an admission, not a defense. For example, supervisors need to receive training to respond proactively to disability-based harassment that they see or hear, even in the absence of a complaint. Similarly, just as they report all requests for accommodations to Human Resources, they should report all disability related complaints (even if the employee requests confidentiality and/or that nothing be done).

Conclusion

Employers can minimize their exposure under the ADA if they 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 that are appropriate in isolation but problematic in relation to how the employer has handled other similar situations.