By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. Hopkins@FELTG.com

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