This week marks the 33rd anniversary of the Americans with Disabilities Act, or ADA. Signed into law by President George H.W. Bush on July 26, 1990, the ADA prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. With the ADA’s passage, the U.S. Equal Employment Opportunity Commission, or EEOC expanded its scope. The EEOC was stablished in 1964 to administer and enforce civil rights laws against workplace discrimination based on race, color, religion, sex, national origin, or age. Since the ADA’s 1990 passage, the EEOC has also enforced laws that prohibit discrimination against job applicants or employees due to disability.
In the past month, six of the sixteen lawsuits listed in the EEOC’s newsroom focused on ADA violations. A Rochester-based tech company abruptly ended their interview with a qualified applicant for an engineering position and told him he wasn’t going to get the job because he was deaf. The company followed up with an email telling him his skill sets were perfect, but having an interpreter on site was too challenging. “The ADA protects applicants who are deaf or hard of hearing from being denied job opportunities because of their disability,” said the EEOC attorney handling the case.
Covius, a Seattle-based financial services support company, declined to hire an applicant after she shared during her interview that she had chronic conditions that required prescribed pain management medication. Covius apparently told their job recruiter that they did not hire the applicant despite her experience, due to her use of these medications. Around the same time, Covius hired at least two other applicants with similar or lesser qualification. “The ADA protects employment opportunity for applicants who can accomplish the essential functions of the job, with or without reasonable accommodation,” said the Seattle EEOC official.
Lastly, Walmart in Bullhead City, Arizona is facing EEOC charges for refusing to accommodate a woman with a seizure disorder who had to miss work after having seizures. Walmart’s attendance policy allows excused absences to accommodate a disability, but when the employee requested this accommodation, Walmart fired her instead. “Federal law requires employers to provide a reasonable accommodation so that employees with disabilities can do their job,” said the EEOC attorney.
In all three cases, the EEOC is seeking back pay and compensatory/punitive damages for the plaintiffs and injunctive relief to prevent similar future discrimination by the employers. Based on the EEOC’s annual report, 92% of their 2022 cases resulted in a consent decree, agreed to by both parties, and 3% in agreements favorable to the plaintiffs.
As somebody who lost employment opportunities after having seizures at the office, the Walmart case resonated loudly. Prior to 2014, I had severe seizures, known as refractory complex partial seizures, about seven times a month. During their initial stage, only I could detect the creeping sensation in my stomach and on my face. But once the brain chaos took over, there was no hiding a seizure’s outward symptoms of muscle clenching, uncontrollable moans and repeated tongue clicking, always disturbing to see for an outsider unaware of my condition. I lost awareness for a few minutes during these spells, and when I resurfaced, I was typically woozy, albeit functional for an additional 15 to 30 minutes, at most.
Despite my seizures’ disruptive nature, I worked full-time until I had my son. I generally didn’t share the fact that I had epilepsy with my employers until I had a seizure at work in my coworkers’ presence — then disclosure was non-negotiable.
I believe I’ve lost two jobs due to my epilepsy. In one case, my biannual evaluation very suddenly went south after I had a grand mal seizure at the office, after working there for several years. Following a battle with Human Resources, my employer offered me a one-year severance package, in part thanks to the ADA. I had a contract job with another employer when I took leave to have elective brain surgery, with the intention to return. But after my surgery, my boss never responded to my emails. I didn’t go back.
In 2014 I was able to get my seizures under control after undergoing two brain surgeries. Now that I have literally seized control of my condition, I am super-aware of how privileged I am to have what appears to be a “normal” body. With my disability camouflaged, I can masquerade as able-bodied. A 2016 report on Disability and Inclusion found that although almost a third of employees met the federal definition of disabled, only about 3% disclosed this to their employers. Given what happened to the Covius job applicant last month, this statistic is understandable. And of course, the applicant who was hard of hearing had no choice about disclosing his disability and was shown to the door mid-interview.
These recent EEOC cases show just how tricky self-disclosure of one’s disability can be. When I applied for my current job in 2019, I hesitated when I got to the question asking whether I had a disability. Should I admit to it? Haunted by my previous experience, I was tempted to answer no. I’d gone seizure-free long enough, and I could get away with concealing that information. The application question included a standard disclaimer stating they didn’t discriminate based on disability status. Could I trust that? I saved the question for last. When I circled back to it, I decided it was best to tell them who I really was. I checked the yes box, hit submit, and hoped my choice wouldn’t backfire in some way, which it didn’t.
Although I checked the “yes” box, I waited two years to share my diagnosis with my whole team. While I may not have seizures, epilepsy still has stigmas. But studies show that employees who disclose their disability are over twice as likely to feel happy as those who didn’t, which benefits both the individuals and the organization. Society, and by extension workplaces, frame health conditions and disabilities as problems to be solved. Consequently, many workplaces categorize disabilities as “afflictions,” resulting in situations like mine and the EEOC cases outlined above.
At a visceral level, I know that genetic conditions, neurological disorders, illnesses, and even simple aging are all part of the basic human condition, and disabilities are natural forms of human diversity. People shouldn’t be disparaged because their bodies are differently-abled but breaking down these barriers at the office requires intentionality. Action steps include calling out disability exclusions when we see them, offering disability fundamentals trainings for workplace managers, and establishing disability-focused Employee Resource Groups.
Happy anniversary, ADA, and kudos and gratitude to the activists who organized and put it in place. Thanks to the ADA, employees and job applicants have recourse when faced with workplace discrimination. But until workplaces and society take deliberate measures to increase people’s tolerance, empathy, and courage, many people with disabilities will hesitate to disclose them, and the ADA will have limited impacts.