Welcome, everyone. For some of you it is the morning, for others, the afternoon, but I appreciate you taking the time out of your day to join us for this topic. It has had a great deal of interest nationally and many people have connected to this call. I hope that you will get some information today that will be useful for you in your positions. First, I just want to introduce the program itself. Today our title is "To Disclose or Not to Disclose, What Are The Pros and Cons", the frequently asked question that the Disability and Business Technical Assistance Centers receive on a regular basis. This is part of our regularly ongoing monthly teleconference program that is part of our efforts to try to get information out to people in a cost effective and timely manner. It is a collaborative effort of the 10 Disability and Business Technical Assistance Centers across the country, also commonly referred to as Americans with Disabilities Act (ADA) and Accessible Information Technology (IT) Centers. This program is being recorded and will be made available after the session on our website at http://www.adagreatlakes.org/, as well as a transcript of the program which will be posted within about five business days once we are able to edit it. If you go on our website and follow the links, you will be able to access the transcript and the recording. In addition, this program is being real time captioned on the internet. This is to make sure we have accessibility of the program. If you are interested in accessing that service, you can go, again, on our website and connect to the service. Individuals are also able to ask questions directly through the captioning service to ensure that everyone has an equal opportunity to engage in the question and answer period as well. We are very pleased to have two very distinguished speakers with us today. Joining us on talking about this particular topic, the session is 90 minutes in length, approximately half of which we will spend with our speaker'' comments and then we will open it up for questions from you, the audience. The operator will come on at some point and give you some instructions on how to actually ask those questions. So let us begin so we don''t lose any more time here. Our first speaker is Suzanne Gosden. She is a human factors consultant and a national speaker and trainer for the Job Accommodation Network, or otherwise known as Job Accommodation Network (JAN), an international information and referral service that is sponsored by the U.S. Department of Labor, Office of Disability Employment Policy. She handles both ADA and accommodation cases and specializes in providing accommodation ideas for individuals with cognitive and neurological impairments. Her full bio is available on our website for today''s session if you would like to read more about her background and experience. Our other additional speaker today is Andrew Imparato. He is the first full-time President and Chief Executive Officer of the American Association of People with Disabilities, otherwise known as AAPD, which is a national nonprofit, non-partisan membership organization of people with disabilities, family members and supporters that was originally founded in 1995. Andy has a long history of being involved in many different issues. He i-got many experiences. He has been involved in a number of policy issues effecting people with disabilities. He has worked as a special assistant to Commissioner Paul Miller at the U.S. Equal Employment Opportunity Commission. He has counsel to U.S. Senate Subcommittee on Disability Policy chaired by Senator Tom Harkin of Iowa. He was a fellow staff attorney at the Disability Law Center in Boston, Massachusetts. He has shared on many occasions his own perspective with his own experiences with bipolar disorder and has been a key speaker and someone very qualified to talk on this particular topic. Again, his full bio is available on our website as well for your information if you would like to learn a little bit more both AAPD as well as Andrew''s background. So without further adieu, so we can have full opportunity for our speakers to maximize the session time, I will turn it over now and Suzanne will start. Go ahead, Suzanne.
Thank you, Robin. It is my pleasure to speak to the listening audience today regarding this very timely topic of disability disclosure. It is a topic we speak on almost daily here at JAN. I believe I have about 20 minutes to cover this topic since I am sharing the stage with Andy today, and with that in mind, let me tell you that I never miss an opportunity to open with a quote or a joke when I can find an appropriate one. And since time is of the essence, I thought I would put a quote in our session today. The quote I picked was "The surest way to be late is to have plenty of time". We have plenty of time today. Don''t we, Robin? Really, only 90 minutes, 45 of which we are going to speak while you guys listen. Well, let me tell you that I also never miss an opportunity to shamelessly promote JAN, the Job Accommodation Network. In the slides, you will see a picture of one of the buildings on our campus of JAN. JAN provides an information and referral service to the entire United States, though our office is located in the great state of West Virginia on campus of West Virginia University. Now, many of you can probably detect my accent already. Don''t be fooled. This is a Tennessee accent. I am not from West Virginia, but I tell people that I got here just as fast as I could. Well, let me tell you, when JAN staff members go out on speaking engagements, we generally ask for a show of hands to find out how many of our audience members know of JAN and/or have used JAN services in the past, and so I just can''t resist, maybe it is an old habit, but let us see a show of hands. I know I can''t really see you, but let us see a show of hands, who knows what JAN is? Who in our listening audience today has used JAN in the past? Go ahead and raise your hands and let the people at the conference table around see who you are and let me tell you, those of you who have your hands raised, thanks to you for using JAN services, 20 years strong this year. And for the members in our listening audience who are not familiar with JAN, permit me the opportunity to introduce our service to you. JAN is our nation''s central source for free information accommodation information. JAN can help identify accommodations for your clients and your employees with disabilities and JAN can answer your questions about ADA and other disability-related legislation. We do all of this over the phone. Now, we operate JAN by using a team approach, and I would like to introduce each of the teams to you. Several people from our staff are listening in today. Our first team, I shouldn''t say our first team, but one of three teams is the motor team. The motor team handles cases about disabling conditions affecting a person''s bones or muscles. If you have an accommodation question about something like amputations, back injuries, multiple sclerosis, muscular dystrophy, paraplegia, quadriplegia or other disorders effecting a person''s physical strength or abilities, you can call the motor team at JAN. There is another team at JAN, the sensory team that handles cases involving disabilities effecting eyes, ears, nose and throat respectively. If you have accommodation questions about asthma or other respiratory disorders, blindness or low vision, deafness or hard of hearing, speech impairment, allergies and so on, you can call JAN sensory team. The third team at JAN, the team that I am on incidentally, the cognitive and neurological team, handles cases involving disabilities mostly that effect the brain, which might include attention deficit disorder, depression, epilepsy, head injury, learning disabilities, sleep disorders, and so on. If you have an accommodation question about any of these disabilities, give this team a call. You might just get to talk to me. Well, we are not just here to learn about JAN today. We are really here to learn more about disclosure of disability. Disclosure just happens to be, ironically, a choice that some people with disabilities don''t get to make for themselves. Many people with disabilities have obvious impairments, obvious disabilities and their disability is known to others, whether or not they chose to disclose it. But other individuals, individuals that I like to say have hidden disabilities, have some benefit, if you will let me use that term loosely. They have some benefit to disclose or not to disclose, and is that? Well, it is because hidden disabilities are just that. They are hidden. Many people can go most or even all of their lives without disclosing their disability. They can choose to disclose whether or not they want to, to their employer, to their educators, to their doctors, even to their spouses. Yes, it is true, even to their spouses. I have heard it many times, statements such as I have been married to my husband for 15 years, I never knew he had a disability, or I never knew my wife had depression. I just never knew. I think it is really important to define exactly what a hidden disability is. It is a term that I use often, but many people don''t know exactly what I am talking about. But over the years, I have played and played with the definition until I worked it into something that could really explain it to my audience and I hope the audience today can understand the definition that I use. This definition, of course, is my own definition. It is not an official definition from a law or from an enforcing agency or from a dictionary or even from JAN. It is none of those things. It is my own definition. If you like it, feel free to use it. If you don''t like it, feel free to change it because it is no official definition. It is just the one that works for me. It is on the slide, but I am happy to read it to you. Here is the definition. The definition says that "A hidden disability is any impairment causing limitations not obvious to the naked eye, not easily discerned by others, or not noticeable in the person''s speech, behavior, or mobility." The impairment may affect the person''s brain, circulation, respiration, muscular or skeletal system, sensory abilities and so on. Honestly, a hidden disability could affect any part of a person''s body. Now, if we were in a room together instead of in a teleconference, I might ask some of you to tell me the names of some hidden disabilities that you have encountered through your personal experience or work experience and so on. But since we are not, instead I have decided to give you a list of a few, oh, I think about 15 or so names of disabilities that I believe to be hidden disabilities. Now, this is not to say that these disabilities are, quote, ADA disabilities, or that people with these disabilities are automatically covered under the ADA. This is just a list of names of impairments that I believe are, for the most part, hidden, and the list is there. I will just haphazardly read through a few of them. Epilepsy, migraine headaches, posttraumatic stress disorder, cancer, diabetes, respiratory impairment like asthma, for example. Now, I know some of you are probably looking at this list and you are saying to yourself, no, no, no, cancer is not a hidden disability. I can see a person bald from chemo, for example. That is not hidden. That is obvious. That is discernible. And my response to you would be, yeah, you are right. For that person who is undergone chemo and has lost their hair, their disability is not hidden. But what about a different person with a different type of cancer? Prostate cancer, perhaps, or thyroid cancer, who undergo surgery only or radiation only, who may not have the same symptoms that another person would have, say, with the loss of their hair. Could you see those impairments? Maybe not. Could you discern them? Maybe not. So those individuals'' disabilities might be hidden, although someone else''s would not be. The same could be said for any item on this list, honestly. We must look at each disabling condition individually. Sometimes a person with any impairment on this list, for example, will not have any identifiable way of discerning their disability from you or me, just by looking at them. Just believe it, it is really true in some cases, and in fact, with this list, given the experience that I have had here at JAN, it will be true in most cases. Well, let us take a look, for example, at some famous people with disabilities. You have got a slide there that has four famous people there. Coincidentally, these individuals are all individuals who have willingly disclosed their disability to media and other venues. James Earl Jones, I have a picture of Darth Vader up. He is not in that costume. I honestly don''t know who is in that costume. That is probably a trivial pursuit question somewhere, but James Earl Jones was in fact the voice of Darth Vader. Notably, I would say he is probably the most recognizable voice in America, perhaps even in the world, and James Earl Jones has a speech impairment, not had, not past tense. He has a speech impairment, a current speech impairment, and even to this day, he still works with a therapist and a voice coach regularly. And how about Tom Cruise, also on that slide? He has dyslexia, a disability effecting his ability to read print material. He disclosed this disability many times to the media, most recently in a pretty good article in Vanity Fair when he was promoting his last movie, called The Last Samurai. There is a picture of Halle Berry there who has diabetes, and in her case, this is truly a hidden disability, honestly hidden. No one can see inside her blood chemistry to see how her blood sugar is doing. There is a picture of Danny Glover there down at the bottom. Danny Glover has epilepsy. In recent years, Danny has become a strong advocate for people with disabilities and has developed or strengthened ties with advocacies and educational organizations like the Epilepsy Foundation of America. Well, I would like to share with you some stereotypes, if you will, or some myths or misnomers about people who have hidden disabilities. This slides here really are composite statements that have been made. I put them together from comments I have heard over the years primarily involving a person who has a learning disability or a psychiatric impairment, but not exclusively. I will just read those to you. These, again, are stereotypes or myths surrounding people who have hidden disabilities. The first one says that hidden disabilities are not believable, probably a lot of people have heard that. Another one says that hidden disabilities are not as severe as other obvious disabilities like mobility impairment. Another one says that hidden disabilities are hard to accommodate because the need is not obvious. The last one listed there says that people with hidden disabilities do not need accommodations. Honestly, it is because of reactions like these that people with hidden disabilities choose not to disclose their impairment to others, and that is really what we are here to talk about today. So let me ask you, why would an employee disclose their disability, given the stereotypes or the myths and misnomers that we just talked about? Well in, my opinion, the most obvious reason to disclose any impairment, hidden or otherwise, would be to ask for a job accommodation. That would be the most obvious reason, but there are other reasons. Other reasons such as to receive a benefit or a privilege specifically for people with disabilities, such as preferential hiring or transfer status, a special fringe benefit such as preferential parking and so on. That is not the main reason people would disclose an impairment, but it is one. Another reason might be to explain an unusual circumstance or a phenomenon such as why a person is tardy or absent or why their performance or conduct is, quote, off, and permit me the moment to say on that last point that while disclosing a disability certainly might explain a behavior or performance or conduct, it doesn''t excuse it, and most likely won''t get the individual out of a disciplinary or adverse employment action that would be taken for anyone who had the same infraction. But of course, barring that, there are benefits for disclosing a ability. The first one is that the person gets the accommodation. They asked for one, they got one, pretty simple. But other benefits might be that they gain protection under the ADA for having disclosed their impairment. This protection is freedom from discrimination, freedom from harassment, freedom from intimidation, in a perfect world, of course. The individual with a hidden disability may not need an accommodation, but they need the civil rights protection that the ADA offers and that is something that is a benefit for disclosing. Another benefit of disclose sure is that everyone involved, the employee, the employer, coworkers and so on, can develop awareness, compassion, and/or sensitivity, and this self disclosure can be very important, according to an article that I read in Adult Learning, which says that relationship development, image control, and social validation comes from disclosure. That can be very crucial in an educational or employment setting. Well, so given these benefits of disclosure, you might ask yourself, so why not disclose? I mean gosh, there is so many benefits. Why would you not disclose. Well, honestly there, are just as many benefits for not disclosing, some of them we touched on when we were looking at hidden disabilities. The number one reason that I encounter in my job, the reason not to disclose is simple enough. It is that the individual with the disability just didn''t need an accommodation from the employer and therefore, had no need to disclose their disability. According to an article in Psychiatric Rehabilitation Journal, individuals with hidden psychiatric impairments who might need accommodations decide that they would rather make them for themselves or find job that best matches their accommodation need and this just naturally leaves then in a position where they don''t have to disclose their impairment to their employer. The example is given in the article included a person who needed a part-time schedule as an accommodation, so that person sought out a part-time job, fixed his own accommodation. Another individual who found it difficult and stressful to work with others sought out a job where they worked a lone shift. I believe it was a shift where they developed film on their own. And lots of examples would be found like that. Many individuals do not disclose, however, because of negative stereotypes and for fear of adverse actions that can be taken in employment and these things are listed on the slide. Permit me just to read a few of them to you. The fear of being stereotyped or miss understood or even not believed, is one reason employees choose not to disclose. Fear that their confidentiality will be violated, fear of retaliation or that their disability will, quote, be used against them are some pretty good reasons that people choose not to disclose. And of course, another obvious reason not to disclose, and a very important reason to some, is the desire to maintain privacy about their own health, about their own disability. And so what benefits can we assume would come from non-disclosure? I could probably sum that up in one word and that word would be control. I think control is the benefit. The individual with the disability has control in the employment situation that in this case protected their privacy, either from everyone or from a select few. Some control is still exercised even when an employee with a disability discloses to some, say, to the people who need to know, but still maintains confidentiality and privacy so that the whole work force or every coworker or all of the second shift, for example, just never has to know about their disability. Sometimes, however, to maintain control, the employee decides that they want to disclose to everyone, and that is okay too. This is particularly common with individuals who have cancer, who want the support of their coworkers and their employers as they undergo chemo or some other treatment or surgery, and this is a situation close to our heart here at JAN. It is a situation we recently experienced at JAN. However, it is not the case for many individuals who have disabilities that still carry a stigma, even in this day and age, a negative stigma. Psychiatric impairments, for example. Learning disabilities would be another. Epilepsy, another. Well, the Equal Employment Opportunity Commission (EEOC) has a few words to say on disclosure of disability. Actually, I am saying more words than I have to say, and taken from their guidance on reasonable accommodation and undue hardship, I have put a slide together and it is there for everyone to see. A reference to this publication, by the way, and others, is included in a slide that is a few down further from this one. And if you will just give me the opportunity, I will just tell you what this says. By the way, the information from the EEOC really addresses the employee''s request for a reasonable accommodation, and I think it is safe to assume naturally that as disclosure is going to occur or has occurred when the employee is asking for an accommodation, and so we can look at some of the things the EEOC has said. Obviously the EEOC says that a person with a disability can disclose at any time, and that the individual is not precluded from requesting an accommodation because they didn''t ask for one when they applied for a job or when they first had the job offer made to them. The EEOC suggests that the individual with the disability hidden or otherwise, ask for an accommodation when they need one, and that could be at any time when they know there is a workplace barrier, when they have some other situation involving the performance of a job, competing for a position and so on. And the last thing on that slide, which I think is pretty important, no nonsense information says that as a practical matter, it may be in an employee''s interest to request a reasonable accommodation before performance suffers or conduct problems occur. And I agree with that wholeheartedly. Well, some other things the EEOC says about disclosure is that, well, when asking for the accommodation, the employee can use plain English. They don''t have to put their request in writing. They don''t have to mention the words ADA, or reasonable accommodation. They don''t even have to make the accommodation request themselves. Someone else can do that for them. The last point on this slide says that an employer can ask for, and it is the employee''s responsibility to provide documentation of disability. There are a couple of sides to this, however. Keep in mind that unless the disability is obvious, there might not- unless the disability is not obvious, pardon me, there might not be a need for documentation of disability, or unless the need for the accommodation is obvious. So, if you can see the person is in a wheelchair, or see that a person has an obvious disability, then you may not need documentation, but in the case of hidden disabilities, you almost always would need that. And that is pretty self-explanatory. I have one more slide that I call the chatter about disclosure. And I think it is important just to put this little aside here that we can call chatter, just something to be aware of, a phenomenon that happens. As people with disabilities get diagnosed or treated for their impairments or as they maintain impairments that they have had all along, some of this chatter is going to come up. Now, I have often said that the 21st century will be known as the age of advocacies, not just for people with disabilities, but for all people. And I really do believe this to be true, but we are about ninety-five and a half years away from finding out how prophetic I am, so let us just take it at face value and say that advocacies groups abound. They really do. Nationally, at the state level, even locally, for people with disabilities, and many advocacy groups have adopted very strong, even rigid stances on disclosure, either for or against, for many reasons. Some of those reasons listed above are solidarity, change, empowerment, protection, and that list could really go on and on, for or against, and I am not going to take a position either way, but advocacy groups generally do. Let me quote to you from Carol Ann Kiefer who wrote an article called "Out of the Closet: Escaping the Stigma." The stigma, she means involving a psychiatric impairment. She says, "Let us remember we cannot wait for others to tell our stories. We must remain visible, vocal, and unified." And so she, of course, is a person who strongly advocates for disclosure of disability. But let me tell you about a few other things you just might experience. Some medical professional, special educators, rehab counselors and so on, may advise people with disabilities not to disclose. That is not always a good thing, but that might be the information that people with disabilities are getting from those individuals. And some of those same individuals may advise people with disabilities to disclose at inappropriate times, say on the job application or on their resume would be an inappropriate time or place to do that, but individuals with disabilities are still getting that information. Now, the teacher in me just won''t let you get away without a reading assignment, so if you see the slide that is titled resources, it gives you three good resources to look at. All of them are on JAN''s website. One of them is a link that will take you to all of the accommodation, publications we at JAN that address a wide variety of disabling conditions, two EEOC guidance''s that are online from the EEOC, and I think they are pretty useful resources, and I would advise you to read them at your leisure. Finally, of course, one last shameless plug for JAN. Please call us or e-mail us or visit us on the web. Every single one of us are happy to help you with your ADA questions that you have regarding today''s topic on disability disclosure or on any other topic that is ADA or disability-related. If you would like to contact me directly, you can do so. My contact information is right here, by phone or by e-mail. If you are interested in reading any of the additional articles that I referred to today, and I believe I mentioned three, I am happy to share that information with you. Just let me have your requests and I will get those to you. And so listening audience, I certainly thank you for your attention. I tried to stay as close to 22 minutes as I can, and I will now turn the remainder of this session over to Andy. Andy, take it away.
Okay. Thank you. I want to thank Robin for inviting me to participate. Again, my name is Andy Imparato. I am the president and CEO of the American Association of People with Disabilities and we are a membership organization based in Washington, DC. Our mission is political and economic empowerment with children and adults with disabilities. For people that want more information about AAPD, I encourage you to go to our website at http://www.aapd-dc.org/. Other perspectives that I bring to the discussion, my most important perspective is I am a person with bipolar disorder, manic depression and I deal with disclosure issues on a daily basis. I have been pretty open about my disability throughout my career and I think it has helped me a lot, but I recognize that I work in a field where self identifying can sometimes be an advantage and that is not true in every field. I also bring the perspective of being a disability rights lawyer. I worked at the Equal Employment Opportunity Commission for three years, as Robin mentioned, for Paul Miller, one of the commissioners there and I did a lot of training for employers while I was there. I agree with much of Suzanne''s presentation. I think, you know, the most important thing I can say is that a decision about whether to disclose, when to disclose and to whom to disclose is a very personal choice and the context for that decision matters a lot. So, you know, Suzanne, one of her last points was talking about disclosing on a resume or a job application is not going to be appropriate. Well, I think she would agree that, that depends on the context. If you are applying for a job where having a disability is an advantage to get the job, then it may actually be very appropriate and advantageous to put it on your resume. But, you know, that''- you could also put it in the cover letter, and again, it is really going to depend on the context. I would say, you know, there are two big categories that we are dealing with when talking about disclosure and hidden disabilities, and it is not always simple to say that one person fits into one category neatly or the other category. Depending on your disability, you may bounce back and forth between the two categories, but I think just for purposes of thinking about disclosure and when to disclose, it is useful to think about these categories. One is what I would call a person with a hidden disability who needs an accommodation. The other person with a hidden disability who doesn''t need an accommodation or isn''t sure that they need an accommodation. If you are in the first category, I think there are lots of good reasons to come out and request an accommodation early on in your status with an employer. One reason to do that is you can start out on the right foot, you know, the employer as they are getting to know you can learn about your disability and if you are getting the accommodation you need from the very beginning of your experience on the work site, chances are better that you are going to maximize your performance and you are not going to run into performance problems. I think the worst case scenario year is to not disclose, run into a performance problem and then disclose in the context of trying to address the performance problem, but unfortunately, I think that is what happens a lot in the workplace. In terms of the second category, having a hidden disability but not needing an accommodation, you know, fro-I think people in that category, the advice that seems to resonate the most for me is to go ahead and establish your value as a worker. You know, get to know people. Show that you have a good work ethic and that you have a lot to contribute and then after you have established that, self identify to people that you want to know that, that piece of who you are, but the reason not to self identify on day one if you don''t have an accommodation is that can effect the way other people think about you and interact with you, and it may play into fears, myths and stereotypes that they have. I say that as a person who hasn''t really needed a lot in the way of accommodations and who has always been out from my first day in my various jobs that I have had at least since coming to Washington, DC. My disability really started to manifest in my first job at the disability law center in Boston. So, I was not out on the first day there because I didn''t really have an awareness of my stability at that point. So I think that there are other folks like me who are going to benefit from being out from day one and will deal with whatever fears and myths people have. But, again, I think I am probably the exception on that and part of it is that I work in a field where having a disability is a source of credibility. And I get a lot of support from others in the disability community for being open about my own issues. I wanted to just touch base on something that Suzanne talked about why would people come out at all, and she talked about you know, what I would call affirmative action reasons. If you know that a program is targeting folks with disabilities and that there is a potential advantage to self identifying, that is a good reason, but I think another good reason is that if you are working in a field that interacts with people with disabilities, you can have more credibility. I am not just talking about in the disability policy field. I think it can also give you more credibility and insights if you are talking about disability from a human resources perspective, if you are talking about disability from a marketing perspective, you know, trying to reach across the disability market or particular segments within the disability market, and if you are talking about disability from a product design or service design perspective. You have unique insights that come from your personal experience and you may want to be out in the workplace so that you can share those insights and people know that you are speaking from personal experience. Another important reason to come out from my perspective is disability pride. I mean, you know just like you might share other things about yourself that you have been through a divorce or, you know, talk about your children or talk about your religion or, you know, other things that are important parts of who you are, what make you the person that you are, you may want to share your personal experience with disabilities just as a way of getting to know coworkers better. If you share something personal about yourself, they may turn around and share something about them. In that process, you grow closer as colleagues. One thing I do want to touch base on that I don''t think Suzanne mentioned, but I think about a lot are parallels between this whole issue for people with hidden disabilities and the issue of coming out for people in the gay and lesbian, bi-sexual and trans-gender community. The human rights campaign, I think does a nice job on their website, which it is one of the largest national advocacies groups for the gay and lesbian community, they do a nice job on their website for offering reasons for people to be out as openly gay or lesbian or bi-sexual people at the workplace or trans-gender. I wanted to share some of these reasons because I think there are parallels with disability. One is that you are proud of your identity as a form of self-affirmation. Another is it can reduce stress of having to live a dual life. If people know about your disability at home or in some settings, but don''t know about it in others, it can create stress. It can be easier to find others who share your experience if you are out and open about your experience. You have a chance to educate others when you are open about your experience. It puts a face on disability in the workplace. It can de-spell myths and humanize disability for coworkers and colleagues. Another thing that human rights campaign does is people who know a gay or lesbian person are more likely to support equal rights for gays and lesbians. I think that is true in the disability context as well. And finally, it helps other people who have hidden disabilities feel comfortable in being out themselves in the workplace. One other thing I wanted to touch on is I think the issue is not simply when do you disclose, when is it a good idea and to whom and how, but how you talk about your own disability will affect how others react to it, and I think to the extent that you are comfortable and you have adjusted to your own status a person with a disability and you can talk about it in a way that makes other people feel comfortable, you are more likely to have a positive outcome. If you are still not comfortable with your own status as a person with a disability, being out with it may not produce the kind of results that you had hope for. The last thing that I wanted to say, and he then I am eager to get into the Q & A because I do find that to be always very interesting but I just wanted to share a story that I think illustrates one of the challenges that people with hidden disabilities face. When I was applying for jobs after my first job with the disability law center, I self identified in my cover letters as a mental health consumer in a job application that I sent to a national organization that did advocacies on behalf of people with mental disabilities. They checked with one of my references and asked the reference about me being a mental health consumer, which was illegal under the ADA, and my reference basically told them to talk on to me about it. I went ahead and did an interview with them and we went through the whole interview. They never brought it up. So I brought it up at the end of the interview. I said I know you talked with one of my references about me mentioning that I am a mental health consumer in my cover letter. I wanted to see if there was any question that I could answer on that. And at this point, the attorney who had done that didn''t say anything. The other attorney said, well, is there anything you want to tell us, which was probably the only legal thing she could say at that point. So I talked a little bit about my experience with depression and mood swings, and her immediate reaction was, oh, come on, Andy, we all see a therapist, why is that relevant. And I took that as a challenge to whether this was a legitimate condition that I had or whether it had a real impact on my life. So I went into a little more detail and shared some ugly aspects of my disability that I might want to share in the context of a job interview, and at one point it was like a light bulb went off. And she said oh, you are bipolar. She talked about an experience she had had with a coworker who was bipolar and was inappropriate at staff meetings. Needless to say, I didn''t get job, but I think that experience is not uncommon for people with a lot of hidden disabilities, even when folks do disclose the existence of a disability, there is a strong tendency to either dismiss it as kind of diminimus or irrelevant or not significant enough to matter or to assume that it is so significant that the person is not qualified or desirable or at least that they are not as desirable for the position that they are trying to compete for. So I think that is one of the challenges we face in the disability community. How can we create a larger space where people can be open with their hidden disabilities, be taken seriously as having, you know, real disabilities just like other forms of disability that you can see, but also recognize that they have, you know, the ability to contribute and qualifications that are the things that they should be measured by and not by, you know, their disability status or particularly by fears and myths and stereotypes that people associate with their condition. You know, to me, if more people are out with their disabilities at work, especially folks who, you know, are performing well and are secure in their jobs, it will create a change in public perceptions over time so that when other people self identify, their coworkers, their supervisors and the broader community around the workplace will recognize that, oh, yeah, he has or she has the same condition that Joe has up on the third floor or Suzie has on the fifth floor and it is going to become more normal and more natural for people to take in that information and not be uncomfortable with it. So, you know, I do have a bias and my bias is that it is better for folks who self identify when the time is right. My decision throughout my career has been to self identify from day one, but I recognize I have had somewhat of a unique career. For those of you on the phone who have hidden disabilities and are not out at work but are pretty secure in your jobs, I strongly encourage you to be out, to talk about your experience with a disability and to recognize that in doing that, you may not be helping yourself in a significant way, although I do think you will recognize benefits from doing it, but you will certainly be creating a work environment that is going to help other people as well. Why don''t I stop there and I am happy to take questions.
Great. Well, thank you very much, Suzanne, and Andrew, for your discussion on this topic because, as you know, and I realize from your work, it is a tough one. So at this point, I think we will ask for instructions on how to ask questions and our participants can now engage in a conversation with the two of you. So take over, please?
Thank you. If have you a question or comment at this time, please press the one key on your touch-tone telephone.
Our first question comes from Randolph.
When Suzanne was talking about to disclose or not to disclose, it was that slide about what EEOC says about disclosure, and it was the last statement on that particular slide where it reads as follows: as a practical matter, it may be in an employee''s interest to request a reasonable accommodation before performance suffers or conduct problems occur. What kind of conduct problems are you talking about?
Well, that information does come from the EEOC''s guidance, which is online at the site that I gave you, and you can read any subscript that they might have there, but if you don''t mind, I will do my best to interpret. A person who has any type of disability, hidden or otherwise, might have a conduct issue that could look like attendance problems, could loo- could look like insubordination. I am trying to think of some others as I write notes to myself. Attendance, insubordination, general lack of getting along with one another or working as a team player, so to speak, some of those things might be conduct issues. I have heard some extreme cases, cases that were pretty serious, like throwing a laptop out a window and some others. Those would be conduct issues related to lots of different impairments. And performance issues could be anything from not meeting sales goals or not meeting productivity standards and so on. I believe what the EEOC is trying to say in this moment is if the individual can foresee that there is going to be some type of conduct or performance issue, get an accommodation in place before you get in trouble for having that conduct issue or that performance issue or that productivity issue so that it never has to become an issue.
Wow, that is a rough one to deal with because I am thinking just based on what you said, I am thinking along the lines of, say, like various companies policies having to do with some of those said type problems you spoke about, which might be terms for termination even for the regular employee, don''t you think?
Yes, and in some cases, it could be even for a person with a disability. I believe a slide or two before this one, I explained that disclosing a disability that might explain a phenomenon or an unusual circumstance such as tardiness, that disclosing that disability doesn''t necessarily save that person from getting whatever reprimand might come down the road.
Oh, okay. Right.
Even with a personal with a disability might be disciplined for whatever is worthy of discipline in the disciplinary policy. Disclosing a disability and getting an accommodation in place that would keep you from being tardy or keep you from throwing the laptop out the window would be the way to go.
But of course, if you, as the individual with the disability had a performance problem or a conduct issue, it should be addressed as it would be with any person whether they are disabled or not.
One last question for Andy.
Andy, you mentioned that, you know, as you were talking, and I listened kind of intense I feel here, but did you mean to say that sexual preference was a disability? Say like if someone was gay?
No, no. What I was saying was that we as people with hidden disabilities face this issue around when do we disclose, how do we disclose, to whom do we disclose, and that there are people who are gay or lesbian or bi-sexual or trans-gendered who face that same issue. It is in a different context. They are facing it around sexual orientation. We are facing it around disability status. But the point I was trying to make is that some of the same reasons that groups like the human rights campaign advocate the benefits of people who are gay or lesbian being out and open about it in the workplace, some of those same reasons can apply to people with hidden disabilities in terms of them being out and open about having a hidden disability in the workplace.
Oh, okay. Thank you. I understand now. Thank you, sir.
Next question, please?
Next question comes from Donna.
Hello, can you hear me?
Yes, sure, Donna.
Okay. Good. I have got folks here, so I am on a speaker phone. My question comes from the handout that we have with you, Suzanne, to disclose or not disclose, the next slide to what was just discussed. Where it talks about the EEOC, with this EEOC says about disclosure in terms of a friend, family, health care professional or somebody else making a request on behalf of the employee.
I could see that being a challenge if the employee has decided not to disclose and family members, for instance, or a friend has decided this is in your best interest, and that is one piece of it. The other piece is what would be the HIPAA obligations for the health care professional under that?
Well, I will be honest with you. I can''t really address HIPAA because I don''t know that much about it, and my job here at JAN is to mostly address ADA questions and accommodation questions. And so what I can tell you is that in the EEOC''s guidance on reasonable accommodation and undue hardship, there is a question and answer that the entire publication is question and answer very easy to read. You don''t have to be an attorney or someone with a Ph.D. to get this publication and understand it well. Question number 2 says very plainly, may someone other than the individual with the disability request the reasonable accommodation on behalf of the individual? The answer is yes. All of those people that I just mentioned there, yes, they may make the request on behalf of the individual and then it says of course the individual with the disability may refuse to accept the accommodation that is not needed. Then it gives a couple of examples. One example is a spouse who calls in on behalf of the other spouse who has been hospitalized and another is a situation where the employee is sick with something and the doctor calls the employer and tells them they need something. And so those are the examples that the EEOC gives. Of course I don''t work for the EEOC, but I can definitely read to you word for word what their guidance says.
And their guidance is influencing the way we are all, the way we are all being practitioners in this ADA land. So there you have it.
Okay. Thank you.
Our next question comes from Gail Kraus.
Hi. My name is Dan Holder with Miami-Dade county. I had a question with a Harris poll some years ago indicated that people who had obvious disabilities who went to job interviews where the employer did not, and they did not discuss the fact that the person had a disability or how that might effect their job, often didn''t get hired or percentage wise didn''t get hired more often than those who did speak about it. Do you have any comment on that?
This is Andy. I am happy to take a shot at it. I think that, you know, I have heard those kinds of comments a lot as well. I think that if you have a visible disability, like you are in a wheelchair or you come in with a white cane or have some other type of disability that is readily apparent when you come in for the interview and you go through the whole interview and you don''t take the opportunity to try to explain to the employer how you can do the job notwithstanding whatever your condition is, you are missing an opportunity to educate the person doing the interview and they are less likely to intuit your qualifications and your ability to do the job and they may be very nervous about asking any questions because they don''t want to run afoul of the ADA or any other disability rights laws. I think it is good advice for folks that have disabilities that are easy for an interviewer to see when they come in for the interview to bring it up and talk about how you have been able to perform in other jobs and what types of accommodations you have needed or not needed. If it is things like assistive technology, I think there is value in explaining the technology to the interviewer, including talking about the cost of it, because from my perspective, having all those questions answered for the interviewer is going to make it more likely that they get beyond that issue and focus on your qualifications for the job.
And I agree with what you said there.
Thank you. Okay. We will go on to the next caller, please.
Our next question comes from Roselyn Harper.
Go ahead, Roselyn.
Okay. Do you have questions?[speaking to colleague]
This is Katherine Vu. I have a question. Is it legal for an employer or a person who interview me for a position to ask me what kind of disability I have and how should I handle that question?
I think that what we have heard from the speakers at this point is that there is a limit to when you can get information about disability and I don''t know if either Andy or Suzanne want to take it as a brief question just to clarify what your statement was on, you know, might mean having to proactively disclose or what they can ask me.
This is Andy. I can quickly say that what you just described would be an illegal question under the ADA. Employers are not allowed to ask somebody whether they have a disability or what type of disability they have. If you self identify in an interview or you have an obvious disability that the employer can easily detect in an interview, they are allowed to ask you if you would need an accommodation and what type of an accommodation you might need, but they are not allowed to go on a fishing expedition to learn more about your disability.
The position I applied for, I gave them a schedule - a letter, so they know that I have some kind of disability, but is it still illegal for them to ask me what is it about and what I have?
Again, they can ask yo-if you have identified as a person with a disability, they can ask you information that would enable them to know if you need an accommodation and what type of an accommodation. If you are trying to participate in a specific targeted hiring program like Schedule A under the Federal Government, the Federal Agency can ask questions that would enable them to determine whether you qualify for that program. But, you know, that is a very specific program that has very specific requirements. That is not the typical job interview situation. I don''t know if Robin or Suzanne know more about how the Schedule A program operates. I would hope a lot of those questions get asked at the generic level by the agency and that there is not an expectation that somebody who is doing interviews for a particular position is supposed to be an expert on Schedule A because I think that is unrealistic in terms of the federal work force.
Yeah, I don''t think we have an opportunity right now to really talk about that issue in depth, but I would really counsel the individual or anyone interested in that information to potentially contact your Disability and Business Technical Assistance Center for some assistance and they can help you fair some of that out. Contact them at 800-949-4232.
Thank you. Can we have your next caller, please?
Our next question comes from Carla Warren.
Go ahead, Carla.
Hi. My name is my Elaine-Portland, Oregon. I have a question in regards to the chatter about disclose sure. Specifically inappropriate times to disclose, what we found is that when we work with clients who are looking for community employment, no special programs, the accommodations already in place, and they choose to disclose on their application, on their cover letter, let us say in a resume or even in an interview and we find that the employment outcome is minimal at that point, what kind of guidance can you offer, offer me to discuss with these kinds and how to balance personal choice to disclose versus employment outcome?
This is Suzanne. Whenever I created this slide on chatter about other disclosure issues, I had in mind rehab counselors and social workers and special educators who have a position one way or another in an effort to help the individual do something in, say, transition from school to work or transition from hospitalization to rehabilitation to work or what have you. And sometimes people just-I don''t want to say get it wrong, but sometimes they miss the mark. I personally don''t think that it is necessary to disclose your disability every single time because I think there are a multitude of jobs out there that do not require you to be a person with a disability to get the job. I am not a person with a disability, yet I work in the disability-related field here at JAN and previously as a special educator. I didn''t have to be disabled to do the job, but it helps that I have knowledge about the-about lots of disability-related issues. And the knowledge that a person has from their personal experience in dealing with any type of disabling condition, hidden or otherwise, certainly might be of value in any job that they go to. It would be my preference not to see that on an application or at any time in the interview stage, unless there is, there is a need to bring that up. Unless they say if you are working at this crisis hot line, for example, it would help if you had these personal experiences. Or- well, I would have to try really hard to think up some other scenarios. I would just say don''t give the person the opportunity to count you out by looking at your resume and seeing something on there that generally the employer is not allowed to ask for and so why offer it up in advance? I know Andy has a different opinion than I do on this, but if this is the approach that your clients are taking and you are not getting very good responses, then change that and the change would be to not put it on there.
Yeah, I mean all I would add is that it is obviously a personal choice for your clients. I think your responsibility as a professional is to share with your clients what you have witnessed empirically, which is if you put it on there, you are less likely to get called up for an interview or you are less likely to get to the point where you can demonstrate your qualifications, and if that is true and that is what is happening and that is what you are seeing happen, then you are giving them good advice. If they fail to follow your advice, there is not a lot you can do about that.
Thank you. Next question, please.
Next question Robin Arbider.
Yes, one second, please. Okay. This is Susan Joann White. I wanted to know about the hidden disabilities, the allergy issue. I would like a little bit more information about that. What kind of basic information can you give me about allergies as a disability?
Well, we have a great publication on JAN''s web page on respiratory disorders. I would encourage to you follow that link that is on the slide that is headed; I believe it is called "Resources, accommodation ideas from JAN". If you type in that URL, it will take you right there, a drop-down list will pop up and you can pick respiratory disorders. And you would be able to read more about accommodations for people who have asthma and lots of other respiratory disorders. We do also have one on, oh forgive me. I can''t think of the exact name, but I think it is called accommodating workers with environmental illness or fragrance sensitivity or something like that. I didn''t write it, so the title isn''t right in my head. Now, when we look at the definition of disability under the ADA, the definition of disability says that a person has to have a physical or mental impairment that substantially limits a major life activity, and major life activities are things that most of us do every single day with little or no effort, like eating, breathing, walking, talking, seeing, hearing, learning, you know, stuff we do every day. We don''t even try to do it. We just do it. A person who has asthma or who has another respiratory impairment may in fact have difficulty breathing. That is a major life activity for sure, and may have difficulty with some other things as well, as a side effect or as a secondary impairment to difficulty breathing. So lots of people with those impairments might meet the definition of disability and be covered under the ADA, but that by no means says that all people with allergies or asthma or respiratory impairments are covered. It is always done on an individual case-by-case basis.
And would food allergies be also cover in that, or is it only respiratory and environmental allergies that wee be covered?
Well, again, we can''t say that the name of any type of impairment is specifically covered under the ADA. We cannot say that. There is no list of disabling conditions that are specifically covered in the ADA. So we cannot say allergies are covered or asthma is covered. My list of hidden disabilities were just that; disabilities that I thought were hidden. That is what that list was all about. If you want to look at whether or not a person is covered under the ADA, that is where we go here, is the person covered if they have, fill in the blank, disorder, if they have aids, if they have cancer, if they have diabetes, if they have food allergies, any impairment we can look at it. It is not the name of the impairment that gets them covered. It is the types of limitations that they have because they have that type of disability as to whether or not they could be covered. A person with food allergies, well, if we are looking at the definition of disability and we are looking at whether or not someone substantially limited in a major life activity and major life activities are things that most of us do every single day with little or no effort, I don''t mind telling you and my coworkers who are listening will agree, I don''t have any trouble eating. It is not a major life activity that I even have to think about. I can just do it every day. A person who has a food allergy might meet the definition of disability, but I would say not every person with a food allergy would.
All right. Yeah, okay. Well, thank you very much. We are very, we are limited for food, or I am, limited on what I can eat, but now Robin has a question.
Andy, I was just wondering how you balance, you know, being a positive activist and being-what otherwise might be hidden disability against perhaps like a natural ongoing backlash and I am saying that as a person with obvious attention disabilities and my frustration is that every time I disclose the nature of my cognitive disability-mental illnesses, learning disability, I immediately hear people say, oh, but you seem so smart.
yeah, well, you know, it''-I guess what I would say is that I don''t know if everybody heard the question. Maybe it will be helpful if I can repeat and it you can tell me if I got it right. What I heard you say was how do I balance sort of being out and open with my disability and sometimes what might be felt as a backlash or people reacting in a way that is inappropriate; is that a fair restatement?
Yeah, I mean I guess for me, one thing that I will say is that it has been very, very hard for me to predict how people are going to react to me being open for the first time with bipolar disorder. There are lots of people who have had bad experiences with folks with bipolar disorder and there are lots of people who have had good experiences and I can''t always predict who is in what category. One kind of funny experience I had, I was open in a speech I gave to a government gathering and one of my colleagues who had worked closely with my, but didn''t know about my disability, came up to me and said well, you are better, right? I said no, I am not better, it is still there. But I do think it is hard for some people to get to know you in a certain context and are used to thinking of you as not having whatever stereotype they have in their mind when they hear the diagnosis. It is hard for them to adjust when you give them the diagnosis. For me, that is yet another reason to be open about it, to a lot of people from early on in the relationship so that as they get to know you, it is in the context of the diagnosis and hopefully you are educating them and widening their perspective overtime. But again, I think the best way for us to deal with this is for more people to be out, particularly folks that are in positions where they are well respected in the workplace and well respected in their field. And what amazes me is that there are tons of people who work in the disability field both as advocates as service providers, as policy experts, as researchers, who are afraid to be open, even within their own work environments and I think that is very sad.
Thank you. Next question, please.
Our next question comes from Frank Pinter.
I have a question about the advantages of disclosure at a job interview for somebody who has a hidden disability, such as a psychiatric disability. What would be the advantage at the interview time for a non-disability field type of work?
Yeah, I mean that is going to be a hard one, especially psychiatric disability. I think if you are interviewing for a job that, let us say you are interviewing to be a Stock Broker and you have got a psychiatric disability. To me, the only reason to bring it up is, let us say there is a gap in your resume and you want to explain in case the employer has questions in their mind, why was it that between this, you know, three-year period you weren''t working, and this is a way to explain it. It is also a way to point to the fact that you have worked recently and had good performance appraisals, but the other thing is that some employers do consider disability as a positive in terms of their diversity recruiting goals. Unfortunately, I think that the number of employers that do that is relatively small and those that do consider disability a generally going to be happier with a disability with less stigma than a psychiatric disability. I think more often than not in that kind of generic job interview, you are going to be better off not disclosing your psychiatric disability at that stage.
I would just add to that, unless there is a need for an accommodation. I mean that, to me, is the number one reason why you would disclose a hidden disability. Given the example of a person with a psychiatric impairment, let us say they have a standing monthly 3:00 o''clock appointment with a therapist, and they know that once a month on Thursday at 3:00 o''clock, they have to go to this appointment, then they can go ahead and discuss, I have a need for flexible schedule once a month on these days and this is why.
But Suzanne, wouldn''t you agree that you would be better off disclosing that after you are given a job offer than doing it at the interview stage?
I suppose it depends on the type of job that we are looking at. The example you gave was a Stock Broker, and in my head, I got an opinion of a Stock Broker who is working very stringently five days a week in a firm. Of course certainly you might not have that. You might have some flexibility in the firm and you might not even have to disclose. You might be able to take off and go to that appointment without anyone ever noticing and it might be an opportunity that you never have to tell anyone.
Yeah, the only reaso-
As long as I answer hypotheticals, huh?
The reason I am suggesting that you may want to wait until you have the job offer is that at that point if they withdraw the job offer, you would know it was because of the accommodation you asked for. If you bring it up in the interview and you don''t get past the interview, you don''t really know why it was that you didn''t get past the interview.
I think, what we have found in our work, and I know many of my colleagues across the country, that people have to determine for themselves what they are most comfortable with and understand what the consequences are for you know, of the disclose sure at any one point. I don''t know if there is an absolute firm answer in any of it. I think that is what we are kind of discussing today, proceeds and cons on each side.
I think that a lot of employers are afraid of people also with, like heart conditions, diabetes, or epilepsy. They are afraid these people are going to have to take off a lot to go to medical appointments and so if they know it at the job interview time, they are probably not going to hire people with these disabilities for that reason.
they also may be concerned about immediately their cost of health care and stuff like that will often times become something in their mind.
Okay. Thank you very much. Next question, please?
Our next question comes from Mary Lee Daniels.
Hi. This is Mary Lee Daniels. The question is the EEOC says that an employer can ask for accommodation of disability. When providing an employer with an accommodation of a disability, what exactly should the document say? Does it need to include an actual medical diagnosis, require medical history and who should provide this? The psychiatrist? General practitioner? Or the person with the disability?
Do you mean documentation of disability?
When the person is asking for an accommodation?
Or when the EEOC says that an employer can ask for documentation of a disability.
Yes, that is correct. And that is generally? The case where the individual has asked for an accommodation and the employer says, oh, what disability, what are you talking about, especially in cases where the disability is hidden, and in the EEOC''s guidance on reasonable accommodation and undue hardship, question and answer number 6 addresses this very specifically, and what it says, if you will permit me just to read to you, it says that reasonabl-let me get that piece and let me get right to it. An employer may require the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and type of functional limitation it imposes. Appropriate professionals include, but are not limited to doctors, including psychiatrists, psychologists, nurses, physical therapists, occupational therapists, speech therapist, vocational rehabilitation specialists, and licensed mental health professionals. Now, that is what the EEOC says. I would add in there educational professionals because there are plenty of educational professionals who can give documentation, say, about learning disabilities and behavior disorders and so on. So that is what the EEOC says where you would get that documentation from, and it is the employee''s responsibility to provide that. So they would go to whoever is treating them for whatever impairment they have and have the doctor or whomever, write a note about how their disability effects them. And that doesn''t mean you are going to get the entire medical record. In fact, you are not entitled to that as an employer, but you can get information about the disability at hand, the disability for which the employee is asking for accommodations.
Okay. Thank you. And just in follow-up, do you recommend that when a person with a disability makes a request for a reasonable accommodation that they mak-that they identify what the reasonable accommodation should be or should they approach the employer with the issue?
At the Job Accommodation Network, we get calls from the employee and the employer and lots of other folks, rehab professionals, medical professionals and so on. When it is the individual who calls us, if they want to scope out what types of accommodations might be useful to them, we will give them some accommodation ideas and they can present those accommodation ideas to their employer when they make their accommodation requests known. Some individuals don''t call us first, or some individuals don''t need to call us. They already know what accommodations they need. If they do know, that is great, they can make the accommodation request at that time. If they know they have a need for an accommodation but have no idea how to fix the problem, they don''t know about a piece of equipment or a special piece of software or they don''t understand something like flexible scheduling or working at home as an accommodation for an example, then that doesn''t mean that the employer goes, oh well, we don''t have any ideas, it means that maybe the employer should call us at JAN and get some ideas about accommodations. It can happen either way. In fact, it happens both ways.
And this is Andy. All I would add is, you know, I think any time you are asking something of someone, if you know exactly what you want, you are more likely to get it than if you are not sure what you want. So I, I think it is worth distinguishing between what would be a strategic thing for the employee with the disability to do and what is required. They are not required to tell the employer exactly what the accommodation is that would work for them, but if they can figure that out and share that with the employer, they are much more likely to get something that is going to be effective for them.
Okay. Thank you.
Thank you. Next question, please?
Next question comes from Angela Petty.
Go ahead. Are you there, Angela? Okay. Move on to the next question, please.
Next question comes from Martha White.
Hello, go ahead.
Didn''t have you a question down there?
No, we didn''t.
Our next question comes from Cindy Tarshish.
Go ahead. Hello? Un-mute yourself if you need to.
Provision in the law which allowed employers to hire someone with a disability like epilepsy without fear that injury to that person is a result of a seizure on the job would not negatively impact their workers'' comp insurance rates, does anything like that exist now?
I will defer to the attorney in the room.
Let me make sure I understand the question. The question is, under current law, is there a way that an employer could basically be assured if they hired somebody that had a condition like epilepsy that if the person were injured on the job due to this preexisting condition, that the employer would not incur workers'' comp liability, is that the question?
Is that clear?
Yes, that is.
Okay. Yeah, I am not aware of any law that would, you know, give employers that kind of a safeguard. The employer''s obligation is to, you know, provide accommodations that could reduce the risk of injury, but, you know, once those accommodations are provided, if the person poses a significant risk of substantial harm to themselves or others in the workplace, you know, the employer has an affirmative defense that the person is not qualified and they don''t need to hire them for that position. I am sure there are people that would argue if that is true, then it is probably a good idea both for the employee and the employer that they not work in that kind of an environment. But I would worry if we were to pass a law that waived workers'' comp liability, that that would be abused and lots of folks would be asked to waive their potential to get workers'' comp because of, you know, any type of preexisting condition that they might have and to me, that defeats the purpose of the workers'' comp system. One of the reasons we have a workers comp system is we want safe workplaces and we want employers to have every incentive to provide a safe work environment as possible. I would just worry about waiving employer liability to facilitate having them hire people that might pose a health risk.
Thank you. We are also wondering how can people who work with and help and prepare for and decide about disclosing their disabilities?
Yeah, that is a great question. You know, from my perspective, one of the best things you can do with young people with disabilities is get them some real work experience before they leave school. If you do that and let us say they need an accommodation, they are going to get some practice in the context of an internship or, you know, part-time position where they can get some practice, self identifying, asking for accommodations, educating employers about their assistive technology they might need. That practice will help them when they find themselves out of school and looking for a full-time job. One of the things that I think is important is giving young people the opportunity to practice. And even setting up, if they haven''t had that chance during school, I think setting up mock interviews, you know, and giving them feedback on how to answer questions, how they talked about the accommodation issues could help them in the context of a real interview.
Thank you very much.
Thank you. Next question, please.
Our next question comes from Sandra Everett.
Hi. My name is Jean Lowell. I am with the Vermont attorney general''s office. I have a scenario that I would like to describe for you and ask you what your thoughts are on disclosure in the following situation: As an applicant for a job who has a history of a back impairment. The applicant did not fee-
Did we lose this person?
Yeah, it cut off for me.
Okay. Yeah. Unfortunately, I think we will have to move on, please. Hello?
Once again, ladies and gentlemen, if you have a question at this time, please press the one key on your touch-tone telephone.
Are there any questions?
Yes. Our next question comes from Roselyn Harper.
Are we having a problem with cutting off?
Our next question comes from Sandra Everett.
: Okay. This is Jean Lowell again. I guess I got cut off the last time. But I am going to try. This is the scenario where we have a job applicant with a history of a back impairment who felt he didn''t need accommodation, didn''t mention anything during the job interview and the employer''s practice was to have all applicants go through a post offer pre-employment physical. Based on what this particular applicant disclosed during that post offer pre-employment physical, the examining doctor ordered the applicant to go through an evaluation that was different an more extensive than the evaluation that candidates for this particular position normally had to go through. The result was that limitations were discovered that very likely would not have been discovered if the exam that was routinely given had been conducted instead of the more extensive comprehensive exam. The fine result was the applicant did not get the job. So what are your thoughts about disclosure in that situation? I am not sure that the person even had a choice not to disclose, but it had fatal consequences for the prospects of this particular job.
Andy or Suzanne, do you want to take that one?
I will start and then you can chime in. I think one thing to clarify is the way the EEOC has interpreted the pre-employment disability-related inquiry requirements in the ADA is that once you have extended somebody a conditional offer of employment, you are allowed at that point to subject them to questions including exams, as long as you do that for everybody in that job category. So the new answer that you are giving us here is that that is what occurred here. The perso-the disability issue was not raised in the interview. It came up in the context of an exam and then based on that, they did follow-up tests that ended up, you know, creating information that the employer used to disqualify the person for the job. I don''t know if that is okay to do under the EEOC''s analysis. I was under the impression that as long as you do the same thing with everybody in that job category, you are fine. But in this case, you are doing something unique as a follow-up to a preliminary test that you do for everybody in that job category. Suzanne, or Robin, are you all familiar with what the case law says on that?
Yeah, we have had some experiences with this and I think some of our colleagues across the country have as well. There i-if there is something in the evaluation that is done that may require, let us say I do a bac-everyone gets a back X-ray and I find something in that X-ray that needs further analysis. I could undergo related tests, but it had to be very specific to what I found. It doesn''t now mean offer me up to do an Human Immunodeficiency Virus (HIV) test or anything else that would be unrelated at that time. But I could do additional follow-up, but I would have to make an argument that was directly related to a potential limitation or a direct threat.
And I guess for me, let us assume that what they found out when they did that related test, you know, made it clear to the employer that the person was not qualified for the position that they were applying for and that there was no way to accommodate them to make them qualified for that position, you know, from my perspective, it is not really a disclosure issue. If they had brought it up during the interview, they still would have gone through the test; they would have been identified and still would not have gotten the job. I am not sure it is a disclosure issue. It is more of a can a person do this particular job. That is what the analysis is going to boil down to. Can they do the essential functions with or without reasonable accommodation.
Right, because even if the employer does find something in that follow-up testing, they still have obligation to-before they can withdraw the offer of employment to address whether or not there is any reasonable accommodation that can reduce or eliminate the direct threat or problem that may be,-have been found through that further evaluation. That is still-but it is a very tricky situation. You may want to contact your Disability Business Technical Assistance Center for additional clarification as we have ongoing relationships with the Equal Employment Opportunity Commission and seek more detail on what kind of testing and how it might have been related and conducted.
Okay. Great. Thank you.
Sure. Well, thank you very much. Unfortunately our time, what always happens with these sessions, ends with probably people hanging out there who did not get their questions asked and didn''t get the answer that they may have been looking for. We apologize for that, but there is a limit to everything. Those of you that still do have questions; again, I do encourage you to contact your Disability and Business Technical Assistance Center at 800-949-4232. And I also know that JAN, as Suzanne indicated earlier, has staff, very capable staff available to assist and answer and respond to questions and Suzanne, do you want to give your phone number again?
Yes. The telephone number for JAN is 1-800-526-7234. And if you have a personal question for me, of course you can call that number or you can e-mail me at firstname.lastname@example.org, which is the contact information on the last slide that I provided.
Great. Andy, I know many people may be interested in the work that AAPD is doing, as well as becoming a member of AAPD. How can they get in touch with you?
Sure. We do have a website and you can join on the website, which is aapd-dc.org. We also have an 800 number, which is 1-800-840-8844, and that does work for regular voice telephones or TTY''s, and if people want to get in touch with me personally, they can reach me at that phone number. My personal e-mail is just my last name i m p a r a t o and my first initial a, at aol.com.
Great. Thank you very much. I just want to remind people that, as I said earlier, we have a monthly session. Next month, our session is held on July 20th, and from 1:00 p.m. to 2:30 p.m. central time. The topic for next month is our traditional ADA update, 14 years later. This year we will be celebrating the 14 years of the ADA. We will be joined by Jon Wodatch, Chief of the Disability Rights Section of the Department of Justice, and Sharon Rennert, who is with the legal services area of the EEOC/ ADA division and they, both of them will be providing some insights as to what has been happening this year, plans for the agency in the upcoming year, and of course I am sure that some discussion of some of the outcomes of the supreme court decisions this last year will also be a time that people will want to engage and there will be a time for questions and answers. I want to thank everyone for joining us today. If you are interested in the ongoing program, please be in touch with your Disability and Business Technical Assistance Centers at 800-949-4232. And there is more to come in the upcoming months. Just as an FYI, we do have a new session added to our schedule on August 10th, where we will be addressing and looking at the revisions to the Americans with Disabilities Accessibility Guidelines and the Architectural Barriers Act revisions that are pending right now, and planning to be introduced sometime in July around the anniversary of the ADA. Our august 10th session will provide people an opportunity to get kind of an in-depth review of those changes to the accessibility guidelines and an opportunity to ask questions of access board staff at that time. That will be a two-hour session. It is an extended session due to the nature of the topic. You can get more information about registration on our website and from, again, your Disability and Business Technical Assistance Center. Again, thank you very much to our speakers for joining and giving of their time today. Thank you to all of our participants. We hope to have you come back again. Have a good day, everyone.