The Not So Obvious Truth About Managing Employees With Obvious Disabilities
Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to disabled employees unless doing so would impose an undue hardship on the employer. Reasonable accommodations, depending on the nature of the disability, may include a wide range of options, from providing special equipment, to modifying an employee’s work schedule, to providing a leave of absence. Generally, it is the responsibility of the employee with a disability to inform the employer that he or she needs an accommodation, which then triggers the employer’s obligation to participate in the “interactive process” of identifying and providing a reasonable accommodation to the employee. However, when a disability and need for accommodation are obvious, the employer’s obligation to provide an employee with a reasonable accommodation is triggered, even when the employee never mentions his or her disability and never requests an accommodation.
Courts have held that employers must offer the employee an accommodation, in the absence of the employee’s request for one when a disability and need for accommodation are obvious. The courts’ rationale is fairly straightforward. The ADA requires employers to reasonably accommodate their employees’ “known” disabilities. A disability is considered to be “known” by the employer when the employee (or a third party) informs the employer of the disability and need for accommodation. In addition, an employer is deemed to have knowledge of an employee’s disability if that disability is obvious. Courts have found that if the employee’s disability and need for accommodation are obvious, and the employer fails to offer a reasonable accommodation, the employer violates the ADA.
Consider, for instance, a recent decision from the Second Circuit, in which an employee with cerebral palsy worked as a sales associate with a major retailer. The evidence showed that his disability manifested itself in noticeably slower walking, walking with a limp, recognizably slower and quieter speech, and the inability to look directly at people when speaking with them. Indeed, one witness testified that “just by looking at him, you could tell he had a disability.” The employee never requested an accommodation and, furthermore, testified that he did not think that he needed an accommodation. Nonetheless, the court found that the employer should have initiated the interactive process to identify a reasonable accommodation for the employee’s “known” disability. The court commented that in such situations “the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation.” Thus, the court concluded that an employer has a duty to offer a reasonable accommodation if it knows, or reasonably should know, that an employee is disabled and needs an accommodation.
Similarly, a federal court in Oklahoma found that an employee’s failure to request a reasonable accommodation was not fatal to her ADA claim where it was undisputed that her employer was aware that she was deaf and legally blind. The employee claimed that she was unable to comprehend policies or communicate with her co-workers and that her employer discriminated against her by failing to provide her with a translator or interpreter. The court agreed and held that, because the employee was “virtually unable to communicate such a request to [her employer] based upon her impairments,” her employer knew the employee was disabled and should have initiated the interactive process to identify a reasonable accommodation.
An employer’s obligation to offer an accommodation before an employee’s formal request also applies to obvious mental disabilities. As one court has stated: “[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say ‘I want a reasonable accommodation’ particularly when the employee has a mental illness.” Instead, that court reasoned, the employer has to “meet the employee half-way” and, if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the “employer should do what it can to help.” Thus, in a case where the plaintiff had an IQ score that placed her in the “borderline mentally retarded range” and it was “common knowledge” among other employees that she had a significant learning disability, the employer was obligated to initiate the interactive process despite the absence of an express request for accommodation.
In sum, the law is clear that employers should not wait for an employee to request an accommodation when a disability is obvious. For example, if the employee is hearing impaired, the employer should ask the employee whether he needs an accommodation, such as a TTD (a telecommunication device for the deaf or hearing-impaired), in order to assist in the performance of the employee’s job.
This does not mean that every potential manifestation of a disability should be met with an offer for accommodation. For instance, courts have found that stress and unexcused absences are not considered obvious manifestations of a disability. In addition, the perception that an employee has poor judgment and impulse control and “behaved irresponsibly” were not sufficient to place employers on notice of the need for an accommodation. Moreover, employers need not be concerned that by approaching an employee who has an obvious disability, and asking that employee if he needs an accommodation, the employer would be “regarding” the employee as disabled. The Equal Employment Opportunity Commission (EEOC) has found that an offer to provide a reasonable accommodation in light of a perceived disability does not violate the ADA. Furthermore, several courts have recognized that “an offer of accommodation does not, by itself, establish that an individual was regarded as disabled.” However, an offer of accommodation with reference to an employee’s “disability” and resulting restrictions, if significant, could support a finding that the employer “regarded” an employee as disabled. When in doubt about approaching an obviously disabled employee with an offer of a reasonable accommodation, employers should consult with legal counsel.