I was browsing through an issue of Fortune Small Business and came across an article about the Americans with Disabilities Act (ADA) quite by accident as the cover of the magazine advertised “Entrepeneurs (some in wheelchairs) tap the booming market of disabled Americans” which fascinated me as my mother spent a number of years in a wheelchair. Situated amongst these stories was this article, which is another side of the ADA, specifically how ADA affects small business. The ADA exists for a very good reason and most companies I know and have worked with will do whatever it can to make whatever reasonable accommodations necessary, however discrimination does exist and can appear in the most subtle of ways. That being said, as with everything else, there needs to be a balance between the employee and the employer along with a willingness to compromise. Sometimes, however, knowing how readily achievable that compromise is the hardest part.
Justin Martin, the author of this piece states:
The law [ADA] even extends to psychiatric conditions. Fire a poor performer who happens to be depressed, and that employee may be able to sue, arguing that his condition is a disability. For such a case to hold up, the plaintiff needs to have a diagnosed condition and an employer must know about it. But ADA lawsuits stemming from psychiatric conditions are notoriously murky…Meanwhile, the number of ADA suitsâ€”over physical and mental disability, handicapped access, etc.â€”continues to rise, although that isn’t obvious from looking at the federal statistics. The EEOC received 15,376 ADA complaints in 2004. That’s nearly identical to the 2003 number: 15,377. But according to legal experts, an increasing number of cases are being filed in state courts.
Martin goes on to advise employers to make an effort to work with employees as, per the article “Doing something trumps doing nothing”. I agree. If the employer can show that they engaged the employee in the interactive process in order to determine what reasonable accommodations can be made, then the employer has shown that they acted in good faith.
It’s a slippery slope no doubt, but so is most of HR. The best we can do is communicate as well as we can, particularly when an employee needs help performing the essential functions of his/her job. After all, even the slightest awareness of an employee’s disability of any sort leaves you vulnerable to doing the right thing.