ADA: Job Skills For a Changing Workplace

By Kevin I. Lovitz
Special to EpilepsyUSA
Posted: August 24, 2004

It is no myth that employees with epilepsy face greater challenges in the workplace than non-disabled workers. The stigma associated with epilepsy can result in the loss of a job offer, harassment from co-workers and even termination.

In recent years, courts have made some tough decisions regarding the scope of protection afforded to employees alleging disability discrimination. Regrettably, many have been adverse to the rights of the employee.

Epilepsy and the ADA

The Americans with Disabilities Act was touted by Congress as a cure-all for disability discrimination in the workplace when it was introduced in 1990. Unfortunately, the positive intentions for the ADA have gone largely unrealized for a variety of reasons.

The ADA was designed to prohibit an employer from discriminating against a qualified individual with a "disability." However, in order to demonstrate a "disability" within the meaning of the ADA, an employee faces an uphill battle. A claimant must show that a physical or mental impairment substantially limits one or more major life activities, that the claimant is perceived as suffering from such an impairment or that there is a record of such an impairment. This task has proved to be difficult for persons with disabilities, and especially those with epilepsy.

Many courts have acknowledged that epilepsy is the type of condition envisioned by Congress as worthy of protection. However, the courts have failed to extend that protection to many claimants. In many cases, courts have rejected the notion that such a condition causes sufficient interference with a "major life activity." Other court decisions have looked at mitigating factors like the use of medication when evaluating whether a person with epilepsy is "disabled" under the Act. In these cases, courts have been unwilling to find persons "disabled" by definition, even though they have epilepsy.

Recently, the Supreme Court held that persons "…whose impairments are largely corrected by medication or other devices are not 'disabled' within the meaning of the ADA." Sutton v. United Airlines, Inc., 527 U.S. 471,486 (1999). Other lower courts have followed suit and have applied these principles to cases involving persons with epilepsy seeking protection under the Act. For example, in the case of Breech v. Beacon Construction, 24 NDLR P 268 (E.D. La. 2002), the court reasoned that an employee who experienced infrequent intervals of nocturnal epilepsy, which were largely controlled by medication, was not disabled. Further, in Todd v. Academy Corp., 57 F. Supp. 2d. 448 (S.D. Tex. 1999), the court likewise rejected a claim and ruled that a person whose epilepsy was well controlled with medication was not protected.

Even though there is an apparent dark cloud over ADA claimants in the courthouses, people who have epilepsy can nonetheless arm themselves with tools and information to guide them through difficult scenarios.

Can't Ask; Don't Tell

The greatest challenge to people with epilepsy is whether to disclose they have such conditions during a job interview. This rule is simple: Before an offer is extended, do not reveal it.

With limited exception, an employee should not disclose they have epilepsy, or any disability for that matter, before being offered a position. The reason for this is twofold. First, the ADA prohibits any such inquiry on the part of the employer. Second, volunteering information that you have a condition such as epilepsy may bias the interviewer without you even knowing, increasing the probability of rejection.

If an employer violates the law and asks whether you have a disability, you are not obligated to respond. At that point, you should take note of what was asked of you. If you are not extended a job offer, you may then wish to seek advice on how to challenge the decision.

However, after a job offer has been extended an employer does have the right to ask some limited, confidential medical questions. An employer can even ask you to submit to a medical evaluation, as long as the evaluation is relevant to your job function and whether you are capable of performing the essential functions.

To Ask Or Not to Ask For Accommodation: That Is the Question

Another troublesome issue for persons with epilepsy is when the condition should be disclosed to obtain a reasonable accommodation. The ADA not only protects employees with disabilities from discriminatory practices, it also mandates that an employer provide you with a reasonable accommodation – provided you are otherwise qualified.

What constitutes a "reasonable accommodation" has been the subject of much debate in the courts. A number of requests have been found to be reasonable, including some modifications to a work schedule and allowing reasonable time off for medical treatment and some minor modification of job duties.

The key is this: Before you ask for an accommodation and disclose that you have a disability, investigate whether your employer is legally obligated to provide you with such an accommodation. As a resource, the Equal Employment Opportunity Commission can offer you guidance. State and local discrimination agencies, as well as organizations such as the Epilepsy Foundation are also good sources.

Bear in mind, disclosing your condition for safety reasons presents a vastly different concern. If you have seizures and work with heavy machinery or dangerous equipment, you may need to consider disclosing your condition to your employer. An employer has the right to take safety into consideration and disclosing your condition could potentially prevent a serious injury to yourself or others in the workplace.

Be Proactive

Many times, victims of discrimination and harassment can take simple measures to avoid further problems – but fail to do so. The common belief is that if you complain about discrimination, it will only get worse. While retaliation can and does occur, it is arguably more advantageous to register a proper complaint to document the discrimination, than to try to "ride it out" and hope for the best.

These days, companies go to great extents to avoid discrimination and harassment lawsuits. They invest millions of dollars in preventative measures like educating human resource representatives by providing them with extensive sensitivity training and handbooks. For the most part, employers want you to be proactive and let them know when you are experiencing problems. Take advantage of this.

If you do register a discrimination complaint, you should be aware that the ADA and other discrimination laws protect you from retaliation. If you experience any adverse affects from your complaint, you should contact the EEOC and seek the advice of legal counsel.

Know Where to go for Help Before the Problem Occurs

This skill has to do with what you should do when all else fails. If you experience a problem that you cannot resolve on your own, help is not far away. You should know where to find it. Under the law, time is of the essence when it comes to registering a discrimination complaint. The statute of limitations can be as short as 180 days, and under certain circumstances even shorter, depending on the jurisdiction in which you work. Knowing what you need to do can save you valuable time.

There are many organizations that can provide you with information on filing a claim. First and foremost is the EEOC, but you may also consider state or local discrimination agencies. A wealth of information which can get you started is also available on the Internet. If you feel you need additional guidance from a professional, contact the bar association in your area for a referral to an attorney who is experienced in employment law.

Employees with disabilities cannot afford to wait for legislators to correct the problems of the ADA. Employees need to know that with the right information and guidance they can protect themselves in the workplace.

Editor's note: the writer is an attorney who heads the employment law and litigation department at the Philadelphia-based law firm of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. He concentrates his practice in all areas of employment law, including sex, age, race and disability discrimination, claims under the Family and Medical Leave Act, wrongful discharge and claims for overtime pay.