Learning Disabilities in the Workplace: a Guide to Ada Compliance

• Publication year: 1996
• Citation: Vol. 20 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997

Learning Disabilities in the Workplace: A Guide to ADA Compliance

Hilary Greer Fike(fn*)

I. Introduction.............................. 490

II. Employment Discrimination and Individuals with Learning Disabilities........................ 492

A. Diagnosis of Learning Disabilities............ 493

B. Discrimination......................... 493

III. The ADA ............................... 495

A. ADA Employment Discrimination Provisions .... 495

B. Definition of a Disability and Persons Covered by the ADA............................. 496

C. ADA Compliance....................... 498

1. Employer Knowledge Requirement and Permissible Inquiries .................. 499

2. Qualified Individual with a Disability and Essential Functions of a Job ............. 500

3. Reasonable Accommodations............. 502

4. Undue Hardship ..................... 505

5. Job-Related Examinations............... 507

IV. Narratives: "Heather" and "Bob"............... 509

V. ADA: A Means to Integrate People with Learning Disabilities............................... 511

A. A Guide for Employers................... 511

1. Job Descriptions and Reasonable Accommodations..................... 511

2. Connection Between Learning Disabilities and Job Performance ..................... 518

3. Employer and Coworker Expectations and Societal Attitudes..................... 521

4. Workforce Integration.................. 524

5. Benefits of Employing Persons Who Are Learning Disabled.................... 525

6. Other Steps Employers Can Take.......... 526

B. Guide for Employees..................... 527

1. Strengths and Limitations of a Learning Disability .......................... 527

2. Myths and Facts About Disabilities........ 528

3. Accommodations..................... 530

4. Rights Under the ADA ................ 530

5. Other Steps Employees Can Take ......... 531

C. Heather and Bob: Strategies for Employment . . . 533 VI. Conclusion............................... 537

APPENDIX 1: Dyslexic Billionaires and Other Famous LD People........................ 539

APPENDIX 2: Resources.................... 541

I. Introduction

Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.(fn1)

Nearly one in seven Americans has some type of disability.(fn2) Confronted with an aging population and increasing numbers of people with disabilities, Congress in 1990 passed Title I of the Americans with Disabilities Act(fn3) (ADA) to ensure equal opportunity, economic independence and full participation for the approximately 43 million Americans with disabilities. The ADA applies to (1) an individual with either a mental or a physical impairment that substantially limits her ability to perform one or more major life activities, (2) an individual with a record of such impairment, or (3) an individual regarded as having such an impairment.(fn4) Although the ADA covers both mental and physical disabilities, a person confined to a wheel chair typically experiences different forms of discrimination than a person with a learning disability. Employers probably understand that the applicant in a wheelchair will need her desk raised on blocks, handrails in rest rooms, and elevators or ramps to provide access. On the other hand, an employer may have difficulty determining how to accommodate an applicant with a nonobvious disability such as visual-perceptual processing problem.(fn5)

The ADA's employment provisions provide both employers and disabled persons with an opportunity to build mutually profitable and beneficial partnerships. By working together, employers and disabled employees can be productive and achieve both business and personal goals. The ADA provides learning disabled persons an opportunity to apply their energy and talents in the workforce, and to be productive and successful members of society, while not unduly burdening employers.

This Comment is a guide for both employers and employees in successfully complying with the ADA's provisions, as they relate to persons with learning disabilities. Part II of this paper examines the types of employment discrimination that individuals with learning disabilities encounter in the application, daily work, and promotion processes. Part III provides an overview of the employment discrimination provisions of the ADA and how those provisions apply to people with learning disabilities. To illustrate how different people with learning disabilities fare in the workforce, Part IV includes narratives of two learning disabled people attempting to find equal employment and opportunity. These narratives provide a starting point for developing processes to integrate such people into the workforce. Part V provides an analysis of the problems confronting people with learning disabilities and provides suggestions for successfully integrating people with learning disabilities into the workforce.

II. Employment Discrimination and Individuals with Learning Disabilities

Individuals with disabilities are generally disadvantaged educationally, economically, vocationally, and socially.(fn6) People with disabilities usually obtain less education than those who are not disabled.(fn7) Although a learning disability is often hidden, individuals so afflicted represent a significant percentage of the United States population. For example, the Orton Dyslexia Society estimates that there are fifteen to twenty million workers with dyslexia.(fn8) Individuals with learning disabilities often have limited employment opportunities and generally work in unskilled jobs with high turnover, low wages, and diminished social status.(fn9)

A learning disability is a disorder that selectively interferes with the development, interpretation or demonstration of language or nonlanguage abilities.(fn10) The condition includes specific deficits in one or more of the following areas:(fn11)* oral comprehension * academic skills * organization * coordination * perception * expressive language * sustaining attention * nonverbal reasoning * integration * social judgment People with learning disabilities may have difficulty with reading, mathematics, accurately receiving and processing visual or auditory information, or motor coordination.(fn12) The public often confuses learning disabilities with mental impairments or mental illness, despite the fact that all three conditions are distinct from one another.(fn13) Typically, individuals with learning disabilities have average or above average intelligence.(fn14) Because of society's misconceptions about learning disabilities, one of the largest barriers that individuals with learning disabilities face is debunking the myths and discriminatory attitudes held by employers and coworkers.(fn15)

A. Diagnosis of Learning Disabilities

One problem facing people with learning disabilities is that they often are unaware of their disability unless they have been diagnosed while in elementary or secondary school.(fn16) They may assume either that their inability to understand is normal, or that they just are slow. If the person has above average intelligence, he may perform well in both educational and work settings, and his disability will therefore remain undetected. Many learning disabled people develop compensatory mechanisms that enable them to function effectively "until a change occurs in the job structure, such as increasing the pace of work, changing equipment, or altering the managerial style or size of the working group which causes performance problems."(fn17) When such a change occurs, many learning disabled people elect to work in positions that minimize the disability.(fn18) As a consequence, many intelligent and competent learning disabled people do not pursue advanced education or high-tech careers.

B. Discrimination

Another problem facing individuals with learning disabilities is their fear of discrimination by employers and coworkers. As such, they are reluctant to disclose their disabilities-both when seeking employment and after being hired. The fear of disclosure worsens when the disability is not obvious, and when it is likely that others will misunderstand the effect of the disability on work performance.(fn19)

Because many learning disabled people function effectively in their educational and work lives, nondisabled persons may be skeptical about the existence of the learning disability. Even if an employee with a learning disability performs effectively in most areas of his job, he may determine that an accommodation would help him perform better. Such an employee may hesitate in disclosing his disability because the "myths, fears and stereotypes" associated with learning disabilities may result in adverse consequences, such as less important project or client assignments, limited opportunities for promotion, and diminished recognition of accomplishments.(fn20)

Many employers may find learning disabilities perplexing because they are invisible and diverse in nature.(fn21) In situations where a learning disabled person applies to a...