Whose Planet Is It Anyway?

Friday, February 06, 2009

Employers, Think Before You Discriminate

The United States Court of Appeals for the Third Circuit ruled last week in an Americans with Disabilities Act (ADA) case, Eshelman v. Agere Systems, that an employee was illegally terminated based on her employer's perception that she was substantially limited in the major life activities of working and thinking. The employee did not claim that she was actually disabled within the meaning of the ADA but contended that her termination was based on the employer’s belief that she was disabled or, alternatively, on her record of impairment.

The employee had undergone chemotherapy for breast cancer, which left her with short-term memory loss. She became disoriented at times while driving. After returning to work, she coped successfully with these problems by carrying a notebook, taking frequent notes, and riding with coworkers instead of driving. She received the highest possible performance rating on her appraisals for the two years following her return to work. She was promoted to a higher managerial position and earned raises and bonuses.

During a reduction in force, the facility where she worked was shut down. Supervisors planned to transfer her to another facility, based on her excellent performance history. However, when she mentioned her difficulty with driving and discussed the possibility of telecommuting, her performance rating was changed to one of the lowest scores and she was terminated. She was not given any opportunity to challenge this decision.

At trial, a supervisor testified that the change in the employee's performance rating was based in part on the employer’s perception that she would be unable to travel because of the residual effects of her chemotherapy and that she lacked the ability to perform the job. The jury found the employer liable for disability discrimination under the ADA. The Court of Appeals ruled that the evidence was sufficient to allow the jury to conclude that the employer had terminated the employee based on its perception that she was substantially limited in a major life activity.

The Court of Appeals noted that driving is not classified as a major life activity, which means that employees are not protected under the ADA from discrimination based on lack of driving ability. However, the jury reasonably could have inferred that the employer's concerns extended more generally to a belief that the employee was substantially limited in working and thinking, which are major life activities. Alternatively, the jury reasonably could have concluded that the decision to terminate the employee was based on her past history of having had such impairments. The Court of Appeals specifically stated that because the claim was based on the employer's perception of the employee's abilities, it was irrelevant whether the employee actually was disabled under the ADA.

There hasn't been much case law on the issue of thinking as a basis for a disability discrimination claim. However, because the recent amendments to the ADA have clarified that employees are protected from discrimination based on actual or perceived impairments in thinking, I expect that such lawsuits are likely to be brought more often.

Now, this is what I have to say to those who don't like the way their autistic workers think: Any employer who doesn't see a problem with discrimination on the basis of cognitive differences would be well advised to think twice about that.



  • Would an employer discriminate about thinking "differences" or thinking deficiencies? Which one is it? I wonder how it could pertain to disability discrimination if it was only a discrimination about cognitive "differences".

    Would discrimination about thinking impairments be about deficiencies that prevent an employee from doing their job correctly, or deficiencies that don't prevent them from doing their job?

    By Blogger lurker, at 3:49 PM  

  • You still at this, Lurker? You are so determined to paint these issues as bad aren't you. You're as bad as the employer depicted here.

    By Anonymous Anonymous, at 4:00 PM  

  • This comment has been removed by the author.

    By Blogger Ed, at 4:32 PM  

  • Timelord, I'd like to start with clarifying these issues, which I think is very important. I think the issue is out of control otherwise.

    By Blogger lurker, at 4:35 PM  

  • Let me try that again....

    Thanks for posting this ABFH.

    Discrimination can certainly impair lots of what are considered major life activities. Lacking tools for combating this discrimination in some cases can be the difference between work and unemployment.

    By Blogger Ed, at 4:39 PM  

  • Lurker, the type of disability discrimination addressed in this case is about an employer's perception that an employee has a deficiency.

    Employees are protected from disability discrimination if they can do their job correctly with reasonable accommodations.

    Therefore, by definition, whenever an employer is found liable for this type of disability discrimination, the employer was wrong in believing that the employee was unable to do the work because of deficiencies. That is why I used the word "differences" at the end of the post.

    By Blogger abfh, at 5:16 PM  

  • This comment has been removed by a blog administrator.

    By Blogger Larry Arnold PhD FRSA, at 6:06 PM  

  • Larry, I know you probably didn't mean anything serious, but I don't allow any comments on my blog that could be taken as death threats.

    By Blogger abfh, at 6:58 PM  

  • I am currently fighting this battle with my employer. I could not see myself winning before the ADA Amendments Act. I'm too smart (they would say) to forget to drink water, etc.

    The ironic part of my story is that my company was started by a guy believed to be an aspie (america's greatest inventor) and has a board member that advocates invitro genetic testing so I could be aborted. Yes, he is a member of your graveyard. GEe, who do I work for?


    By Blogger mentatmark, at 9:08 PM  

  • Mentatmark: Give 'em hell!

    As for the forgetting to drink water thing, I keep a coaster on the right-hand side of my desk as a visual reminder that there's supposed to be a cup on it. That works pretty well for me.

    By Blogger abfh, at 7:47 PM  

  • I am giving them hell, I currently am an autistic federal whistle blowing (OSHA and NLRB, with EEOC next if needed) union steward, and having fun.

    I have a mini fridge with a lot of water in it in my work area as my reminder at work. In my now 50 years, I have found a lot of solutions to problems I did not even realize I had. Something about a large data set.


    By Blogger mentatmark, at 1:00 AM  

  • a large data set

    Yes, that's exactly what these employers are failing to understand. They see only a set of unusual problems, and they don't realize that there's a set of solutions to go along with it.

    By Blogger abfh, at 10:17 AM  

  • I gave them a written request for accommodation two weeks ago, requesting that ALL management that deals with me be given some sort of class to understand that their interpretation of my motivations and methods are wrong, that I am not a bad employee for having the willingness to speak up about how to improve processes, safety, and morale.

    They eventually responded by asking for a list of what they could get me to make it easier to do my job. I reasserted that a class was needed for them to even begin to understand the simplest facts of autism, a diversity class of some sort, the type of thing my company does for all other issues relating to foreign cultures, race, gender, physical disability, etc. I want them to understand not just what weaknesses we have, but our tremendous strengths also.

    My time (20 years) there has shown them my potential, but ever since I first heard of AS in April of 2007 and immediately knew that they were describing me and made them aware of my Dx when I got it, my boss has been accusing me of discovering this phantom disorder as a ploy to misbehave.

    You should hear some of the BS he has pulled. Of course, when the book comes out that I might write, me good and bad experiences will be public knowledge. If I get mad enough to write it.


    By Blogger mentatmark, at 10:46 AM  

  • Would an employer discriminate about thinking "differences" or thinking deficiencies? Which one is it?

    That's kind of simplistic. I don't think either should be considered at all. The only thing that should matter is whether you're able to do the job.

    For example, I could have a major thinking deficiency in a social area to such a degree that even a toddler would understand social things better than I can. At the same time, I could be perfectly capable of performing my job duties.

    By Anonymous Anonymous, at 5:12 PM  

  • I have a problem with the term reasonable accommodations.

    Here is the defintion:
    "A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."

    Look at the phrases qualified applicant and qualified individual.

    All the employer has to do is say that social skills is what makes up a qualified applicant and an qualified individual.

    We would have to somehow lobby to get the phrase reasonable accommodations and change it's defintion slightly. Anywhere it says qualified than it should say something to this effect as an amendment.

    The term qualified does not include social skills unless it is the essential function of the job.

    By Anonymous Anonymous, at 2:39 PM  

  • mentatmark said...
    I gave them a written request for accommodation two weeks ago, requesting that ALL management that deals with me be given some sort of class to understand that their interpretation of my motivations and methods are wrong, that I am not a bad employee for having the willingness to speak up about how to improve processes, safety, and morale.


    Have you ever heard of Frederick Taylor's Scientific Management?

    These are his four principals:
    1. Replace rule-of-thumb work methods with methods based on a scientific study of the tasks.

    "It seems like management expects their employees to do things by rule of thumb these days."

    2. Scientifically select, train, and develop each employee rather than passively leaving them to train themselves.

    "It seems like employees have to train themselves these days to do their jobs."

    3. Provide "Detailed instruction and supervision of each worker in the performance of that worker's discrete task" (Montgomery 1997: 250).

    "For me, this would make the work place more tolerable."

    4. Divide work nearly equally between managers and workers, so that the managers apply scientific management principles to planning the work and the workers actually perform the tasks.

    I think we aspies and auties would thrive under Frederick Taylor's Scientific Managment System.


    This is Taylor's paper on Scientific Management.

    Look at this quote from chapter 2.
    "Perhaps the most prominent single element in modern scientific management is the task idea. The work of every workman is fully planned out by the management at least one day in advance, and each man receives in most cases complete wnt ten(this is supposed to be the word written) instructions, describing in detail the task which he is to accomplish, as well as the means to be used in doing the work."

    A lot of this is what we've been asking for in the workplace in my opinion.

    By Anonymous Anonymous, at 3:09 PM  

  • Cube Demon wrote:

    The term qualified does not include social skills unless it is the essential function of the job.

    Correct. Or, at least, one of the essential functions of the job. And "social skills" shouldn't be defined as aping the social behaviors of the dominant group, either. Not all that long ago, companies regularly used that excuse to avoid hiring women, complaining that women couldn't socialize at the country club in the same way as men, etc.

    Companies that are allowing their hiring managers to reject autistic applicants because of body language differences, etc., all ought to be sued.

    By Blogger abfh, at 4:26 PM  

  • AFBH, there was a politician here in Australia who once said, "If a person did not have the social skills I would not employ them". I was in the public gallery when he said it and it took all my self control to stop myself from yelling out "You discriminator!" (I would have been bounced out of the gallery if I had)

    By Anonymous Anonymous, at 6:02 PM  

  • Cube Demon,

    While people I have known for a while might refer to me as Mental Mark, only because I have a good sense of humor and can laugh at myself because of the stupid stuff I sometimes do, you don't know me well enough to call me that. So, I am going to assume that you misread my name Mentat mark. Wiki Mentat, relating to the sci fi book Dune.
    So, I laugh again...


    By Blogger mentatmark, at 1:26 AM  

  • Mentatmark

    My humble apologizes. Indeed, I did misread it. I do that alot. I'm just used to seeing an l there instead of a t. If it was two words like Mentat Mark I would've caught on. In essence, it was my error. I do this alot but I know not why?

    By Anonymous Anonymous, at 9:57 AM  

  • Probably because you were trying to go too fast per our conversations elsewhere, Cube Demon. It's a habit you need to break.

    By Anonymous Anonymous, at 5:28 PM  

  • "Probably because you were trying to go too fast per our conversations elsewhere, Cube Demon. It's a habit you need to break."

    You are right. I need to do what David Andrews does. I need to proofread better than I do. I do proofread but maybe I need to look twice or even three times. What happens is that my thinking can be faster than my typing so I think I type something but I do not. In addition, another side effect is I can type something wrong but I think I did it right. I am proofreading this as we speak.

    By Anonymous Anonymous, at 7:13 PM  

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