The Americans with Disabilities Act includes ADHD as a disability. Find out what it means for you.
by ADDitude Editors
The Americans with Disabilities Act, or ADA, was established by Congress in 1990. The purpose of the law is to end discrimination in the workplace and to provide equal employment opportunities for people with disabilities.
The ADA applies to businesses with 15 or more employees. This includes:
Yes. The ADA provides for "mental" conditions or mental illnesses, but as with physical impairments, the diagnosis of a mental illness or mental impairment is not sufficient to qualify an employee for protection under the Act.
The following conditions must be met for ADHD to qualify for coverage:
No. Your employer or potential employer cannot ask questions about your medical or psychiatric history. An exception, however, is if an applicant asks for reasonable accommodation for the hiring process. If the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability.
Yes. Several courts have already ruled that in these situations, lack of knowledge of the condition or of how the disability may affect the employee may be an used as a legitimate defense for the employer.
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship, such as being too expensive or creating other problems within the workplace.
Reasonable accommodations for an employee who has ADHD could include:
No. An employer cannot make up the cost of providing a reasonable accommodation by loweringyour salary or paying you less than other employees in similar positions.
The U.S. Supreme Court ruled in Sutton v. United Airlines, Inc., and again in Murphy v. United Parcel Service, Inc., that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability." In other words, if you are vision impaired but can correct that impairment by wearing glasses, then you are not considered disabled. Likewise, if ADHD is successfully managed with medication, then it might be difficult to claim ADD as an impairment.
If you think you have been discriminated against in employment on the basis of your ADHD, you should contact the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.
You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. To contact the EEOC, look in your telephone directory under "U.S. Government." You can also call (800) 669-4000 for more information.
An article published by the New York Law Journal was not very encouraging. It says, "As more employees learn that their work-related problems may be attributable to Adult ADHD, some will likely seek protection fromdiscrimination under the Act. Employers faced with these disability discrimination claims should institute a two-pronged defense."
"First, the employer should force the employee to meet his burden of proving that he does in fact suffer from ADHD, and that the employee'sADHD impairs a major life activity. If the employee successfully establishes that he is disabled within the meaning of the Act, the employershould argue that the employee is unable to perform the essential functions of his job. This argument will be aided if the employer can point to awritten job description stating that general skills such as following instructions, completing tasks on time and getting along with others areessential functions of the employee's particular position."
"The symptoms of Adult ADHD are such that they will likely prevent the employee from performing these essential functions. Therefore,employees who are terminated because of behavior attributable to Adult ADHD will probably not be entitled to protection under the Act."
Keep in mind that the above is a legal opinion and not law. Still, it would be to the benefit of both you and your employer to resolve this out of court.