Nearly four years ago, I wrote a post discussing the problems of disclosure in the workplace for those of us on the spectrum. One reader responded in the comments section that in his country, Canada, employers are required to make accommodations for person's with disabilities if it does not cause undue hardship to the employer. The Americans with Disabilities Act here in the United States provides similar legislation.
Since the reason for disclosure is inevitably accommodations that could enable a person with autism or any other disability do their job, I thought I'd elaborate more on what I'd written way back and discuss whether or not accommodations would be helpful and other issues along those lines.
As regular readers of this blog know, I've been fired from multiple jobs in my life and have not worked in more than five and a half years. Some persons I know have suggested that accommodations are the answer to my problem and that under the ADA, employers are obligated to accommodate my disability. How helpful are accommodations for autistics? Is it feasible to apply the ADA to their cases? Has legal recourse among autistics been successful?
The Americans with Disabilities Act requires employers to make reasonable accommodations to employees that enable them to do their job without economic hardship to the employer. Businesses with less than 15 employees are exempt.
I'm curious exactly what are specific examples of accommodations that were actually granted and/or were upheld in courts of law if a disabilities group litigated against an employer or reported them to the EEOC, the body that enforces the ADA. A Google search turned up a variety of examples. Adding ramps for wheelchair bound employees, allowing the blind to use braille or speech generating readers, allowing deaf people to use sign language interpreters. A disabled secretary with severe asthma or problems with legs who could not climb stairs. They would give the duty requiring her to climb stairs in a two story office building to the able bodied person and have her do another duty such as filing. Are ASD's disabilities that could be accommodated or is this an apples versus hurricanes comparison?
Some autistics may be overly sensitive to light or loud noises (I don't fall in this category). These are easily modifiable factors, the person could be moved into another office where there is less sound or the lights dimmed.
However, autistics have social problems, e.g. inability to get along with coworkers, loud voices, poor social skills. In some cases (though not all) it might even be as drastic as sexually accosting a coworker. Ari Ne'eman, an individual in his early 20s who has never worked a day in his life, has stated that eliminating social pleasantry as a criteria for hiring or allowing persons to keep their jobs should be a criteria. This is something that would cause an undue hardship to the employer and other employees. Certainly this is not something they are required to do under the ADA.
What about making excessive errors or poor hygiene (reasons I've been fired). This is something that cannot be overlooked and would cause undue economic hardships for the employer. Could reasonable accommodations be made. One soloution is to let the autistic person who makes excessive errors go more slowly or review the work. But this would cost the employer money and cause an undue hardship. Other aspects of autism such as lack of executive functioning, inability to follow directions may also impair the autistic. It is unlikely there are any reasonable accommodations for these that would not be an undue burden on the employer.
Are employers required to hire the disabled person who may have the minimal qualifications over a more qualified non-disabled applicant? The answer is legally no. If a job requires someone to type 50 words per minute and the disabled person types 50 words per minute, but they find a non-disabled person who types 75, they can certainly legally hire the nondisabled person if they desire. In the same vein, employers are not required to accommodate a person on the spectrum, who makes excessive errors, does not do the job fast enough or has social problems that could cause an undue burden on the employer or fellow employees. If the job involved them being in public view of people, could the self-stimulatory behaviors be bad for business if it freaked the shoppers out if a grocery bagger for example were to engage in this behavior. This would likely persuade at least some shoppers to go to another supermarket. Would they be required to accommodate this person? I'm not sure of the answer to that. One example I came across is if someone had a disfigured face that could give fellow employees a customer a bad reaction the law does not allow them to discriminate on that basis. However, would the ASD employee be able to take any recourse with the EEOC or another agency if they were fired for that reason? I'll try to answer that in the paragraph below.
How feasible is enforcement? How could the autistic person prove they were discriminated against? What would stop employers from lying or claiming the person they did not like caused them undue economic hardship even if they hadn't. Employers would break the law and even in a court case, it would be difficult to prove that they had done so. In the above noted example, the employer could come up with some excuse if it were illegal for them not to accommodate someone's public self-stimulation. They would just falsify a productivity study (something that happened to me at one job I was fired from) or find some other excuse to get rid of them. I realize there may be exceptions to this, but they are likely few and far between.
Have autistics who have been refused accommodations they allege are reasonable been successful in court. In one instance I was able to locate, the answer is no. This case is interesting in that the individual involved was a physician diagnosed with Asperger's. This person was denied accommodations he asked the hospital to give him when he was unable to interact with patients properly or relay instructions or interact on the phone with other medical personnel. In spite of obtaining a diagnosis of Asperger's, the doctor was discharged from his hospital residency. He contended that he could do his job if the staff were aware of his disability and treated him with understanding. The hospital instead offered him a pathology residency, a specialty where he'd have no patient interaction. Though this would have been a viable option for him, he declined. The individual lost at all levels of appeal, including the federal court of appeals (the sixth circuit court) which is just one rung below the supreme court. The supreme court declined to hear his case.
In another instance an individual with Asperger's was denied a laboratory tech job after disclosing his diagnosis to his about-to-be employer. With the help of an EEOC attorney, he secured a settlement of $60,000. I wonder what was accomplished by this. How far is $60,000 going to take him as far as supporting him over his lifetime. Will the fact he has a disability and sued a perspective employer motivate others to hire him? Will he be able to perform his job with another company? Will anyone else hire him, particularly in a troubled economy? Though, ASAN and others who believe accommodations are an answer will claim this a victory, these are interesting points to ponder. These were also extremely high functioning individuals with Asperger's and not autism per se. How would others unable to graduate from medical school or become lab techs fare?
I'm still trying to locate any instance where an accommodation was successfully used for an autistic person or litigation resulted in them securing employment. I'll possibly be updating this post if I find something new.
Are accommodations a viable solution for the employment problems of persons on the spectrum? I believe the answer is no.