Psychologists may become involved with the Americans with Disabilities Act (ADA) through consultations with employers and workers or as an expert witness in litigation involving the act. In all these roles, the psychologist must gain an understanding of the many definitions in the act and the Equal Employment Opportunity Commission (EEOC) regulations mandated by it. The ADA not only is a valuable tool for use by disabled people against discrimination but also an arena of practice for forensic psychologists. Although the ADA is a complex mixture of definitions and rules, the forensic practitioner may enter this arena using many of the skills developed in tort cases or in civil rights cases involving sex or race. This research paper describes the ADA, discusses the roles that psychologists may play in workplace consultations, and examines the use of psychological evaluations in litigation related to disability.
Background of the Americans with Disabilities Act
The ADA was signed into law in 1990 and came into effect 2 years later. The law was designed to eliminate discrimination against people with disabilities. The statute (42 U.S.C. 12101, Section 2 b (1), 1992) enabled the development of regulations by the EEOC and has been shaped by a number of U.S. Supreme Court decisions. The most obvious impact of the ADA is seen in its transformation of buildings, roads, sidewalks, buses, and restrooms into places where people with disabilities may function with fewer barriers.
However, the advocates of disabled people who framed the ADA were more ambitious. The law intends to prevent individuals with disabilities from being discriminated against in hiring, training, compensation, and benefits. Under the ADA, it is illegal to classify an employee on the basis of disability or to participate in contracts that have the effect of discriminating against people with disabilities. The use of tests or other qualification standards that are not job related but result in screening out individuals with disabilities is also banned. Like the Civil Rights Act of 1964, the ADA protects workers who file complaints with the EEOC or other agencies from retaliation by their employers. Under the ADA, employers are required to provide “reasonable accommodation” for workers with disabilities who could qualify for jobs with appropriate assistance.
Mental Disabilities in the Americans with Disabilities Act
Forensic psychologists working in cases involving the ADA must have an understanding of the specific definitions that shape how the act is used. An important definition in the act is the definition of disability: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment.
A qualified individual with a disability is a person with a disability who has the basic qualifications for the job, including the skills, experience, education, and other job-related requirements required for the position the person either currently holds or wishes to obtain. In the context of the ADA, a qualified individual with a disability, with or without reasonable accommodation, can perform the essential functions of that job.
An impairment becomes a disability when it adversely affects one or more major life activities. One first considers the impact of the disability on non-work-related activities, which include self-care, sleeping, reading, and concentrating. If none of those basic human activities are affected, the inquiry shifts to work-related activities. The impairment must be considered severe enough to “substantially limit a major life activity.” How much restriction on essential life activity is caused by the disability is one metric, but the act also allows for consideration of the duration of the disability. Temporary disability is not considered, and chronic and recurring conditions must be considered substantially limiting while they are active.
Mental impairment refers to “any mental or psychological disorder, such as…emotional or mental illness.” The ADA provides examples of mental or emotional illnesses, such as major depression, bipolar disorder, anxiety disorders, and schizophrenia. Although not listed in the ADA itself, EEOC regulations also include personality disorders as potentially disabling conditions and point to the Diagnostic and Statistical Manual of Mental Disorders (currently the DSM-IV-TR) as the appropriate reference for determining the symptoms associated with mental disorders. The ADA specifically excludes conditions related to sexuality, such as homosexuality, bestiality, transvestism, transexualism, pedophilia, exhibitionism, voyeurism, or gender identity disorders not related to physical impairments. In addition, the act excludes other behaviors of which Congress did not approve, including compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse disorder resulting from the illegal use of drugs.
In general, the disabled worker must conduct himself or herself in the workplace just like other workers, unless the disability is causing conduct problems on the job. In those situations, the employer must provide reasonable accommodations that would allow the worker to meet conduct requirements. If a worker’s behavior constitutes “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” it may be considered a direct threat. The ADA allows workers who pose a direct threat to be fired or removed from the affected position.
The ADA treats the abuse of illegal substances differently than the abuse of legal ones. Current illegal drug use, including abuse of prescription drugs, is not protected by the ADA. Rehabilitated illegal drug users are protected, and the existence of a history of illegal drug use may not be a basis for discharge or discipline, although a relapse may legitimately trigger discharge. Workers who have addictions to legal drugs, such as alcohol, must experience a substantial limitation in a major life activity to be covered by the ADA. Alcohol-dependent workers with excessive absenteeism who report to work drunk or who endanger other workers because of their dependence are subject to the same discipline as other workers.
Psychological Consultations with Employers and Workers
The ADA mandates that an employer work with each disabled employee to develop a plan that takes into account the worker’s disability, the worker’s strengths, and the nature of the job. Psychologists may assist the employer to help craft an accommodation plan to allow the worker to function in the workplace. This may be done through changes in work hours or supervision levels or by simply providing time off for psychotherapy sessions.
Workers with mental disabilities may experience fluctuations in their illnesses that result in extended absences from the workplace. In these situations, the employer may require that the worker undergo a psychological evaluation to determine if the worker may effectively return to the workplace without irremediable deficits in work functioning or dangers to the worker or others. In these situations, the psychologist obtains information concerning the demands of the job. The next task is to determine if the worker can perform essential job functions with or without reasonable accommodation.
The psychologist may provide information about what accommodations may be made, which might include altering the interpersonal demands of the workplace, changing the environmental conditions, changing the worker’s shift, and eliminating distractions. In addition to reviewing the worker’s documented medical and mental records, the examining psychologist may administer a battery of tests. Cognitive assessment may be required in situations in which the mental disability may affect attention, concentration, or the ability to work quickly. Personality assessment may add additional information about existing patterns of psychopathology in relation to the worker’s history or the symptom picture that predicated the worker’s departure from the workplace. A full clinical history and interview is part of this assessment and should include a detailed vocational history to determine whether the presented impairments have caused the worker problems in the past. A history of relationships, both on and off the job, will illuminate the existence of interpersonal impairments that could limit vocational functioning.
The assessment should result in the psychologist’s opinion about whether the worker is disabled under the definitions of the ADA. Then, the psychologist determines if the worker’s disability is amenable to reasonable accommodation within the range of alternatives that are feasible for that employer. This decision, as all others in relation to the ADA, is related to the nature of the employer’s business, the number of employees, the cost of the accommodations, and other factors. For a small employer, changes in the worker’s schedule may not be reasonable, while for a large employer, more extensive changes in the workplace may be practical.
The psychologist’s active participation in discussions with the employer and the worker can result in a return-to-work plan that meets the worker’s needs and allows for the employer to return a trained and functioning employee to duty. The psychologist should listen to all the parties to craft a viable course of action for the employee’s return to work.
Litigation-Related Evaluations and Consultations
Failure to Provide Reasonable Accommodation
The ADA allows workers to sue employers for a number of acts and omissions in relation to the ADA. The worker may claim that the employer has failed to provide reasonable accommodation for a disability or has refused to hire a disabled employee. Assessment of plaintiffs in these cases involves evaluations similar to those used in return-to-work contexts because the psychologist is called on to compare the worker’s skills with the job requirements to determine if changes in the workplace would allow the worker to perform essential job functions. Employers may claim that no amount of accommodation would bring the worker up to a functional level, that the proposed accommodations are not feasible or would impose an undue hardship on the employer, that reasonable accommodation has been offered to the worker but was rejected, or that no effective accommodation exists for that worker in that job setting.
These evaluations should meet the standards for any litigation-related evaluation and include gathering a thorough history, reviewing the appropriate job, mental health, and medical records, appropriate psychological testing, and collateral interviews. The psychologist should prepare a report consistent with professional standards and be prepared to be questioned in deposition or in open court.
Disparate Treatment and Disparate impact Evaluations
If a worker is disabled according to the ADA and has not been hired, has been denied promotion, or has been fired, and nondisabled workers who are similarly situated have been treated more favorably, the disabled worker may have a claim for disparate treatment. If the disabled worker has experienced an adverse job action that is not a result of the employer’s overt discrimination but is a result of a policy that was designed to be neutral toward people with disabilities, the worker may have a claim for disparate impact.
Psychological evaluation in these cases focuses on the impact of the nonhire, firing, or nonpromotion. Emotional damages may flow from these adverse job actions, and the impact of changes in income and lost future job opportunities may be considered. Psychological evaluations in these cases may more closely resemble evaluations in personal injury or workers’ compensation cases, as reasonable accommodation is not an issue. Interviews with family members and friends may assist in determining if the worker has suffered emotional harm because of the employer’s actions.
Reprisal for Protected Conduct
If a worker files a complaint with the EEOC or other similar agency and is subsequently the recipient of adverse treatment or discharge from his or her employer, that employee may file a claim for reprisal. Psychological evaluation of these cases may follow the parameters of evaluations in disparate treatment and impact cases.
Disability Harassment and Hostile Work Environment
In some situations, disabled individuals experience harassment or hostile work environments because of their disability status. In these situations, the plaintiff must show that he or she is disabled and that because of the disability, he or she was subjected to physical or verbal conduct so offensive that a reasonable person would consider the work situation to be a hostile work environment. Also, the plaintiff must show that the employer failed to take prompt remedial action to stop the harassment. Evaluations for hostile work environment would follow the same pattern as outlined above.
- Foote, W. E. (2000). A model for psychological consultation in cases involving the Americans with Disabilities Act. Professional Psychology: Research and Practice, 31(2), 190-196.
- Foote, W. E. (2003). Forensic evaluation in Americans with Disabilities Act cases. In A. D. Goldstein & I. B. Weiner (Eds.), Comprehensive handbook of forensic psychology: Vol. 11. Forensic psychology. New York: Wiley.
- S. Equal Employment Opportunity Commission. (2000). Questions and answers on amending the interpretive guidance on Title I of the Americans with Disabilities Act.