For individuals suffering from physical or mental disability, maintaining employment and reaching full potential can be challenging. Employers and coworkers may be apathetic about the unique problems that disabled employees have in the workplace. Disabled employees may even face accusations that they are exaggerating their issues to evade job responsibilities.
Because disclosing a disability risks negative treatment by employers and coworkers, it's understandable that many disabled employees may try to hide their disability. This is particularly common for those with “hidden” disabilities without obvious markers like a wheelchair or hearing aid. The problem with this approach is that it isn't always possible to keep disabilities under cover, especially if the duties of the job exacerbate the employee's condition or make it so the employee needs an accommodation to continue working. So, should persons with disabilities voluntarily disclose their disability to the employer, and, if so, when?
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) has played a pivotal role in protecting the employment rights of disabled persons since its passage in 1990. It applies to all employers with at least fifteen employees, regardless of whether the employer is public or private. The ADA covers a number of employment-related questions that pertain to the rights of the disabled, including the issue of disclosing (or not disclosing) one's physical or mental disability.
The ADA bars employers from discriminating against disabled applicants or current employees. An employee's disability cannot be the basis for refusal to employ the worker, promote the worker, or deprive the worker of rights and privileges afforded to other non-disabled workers. Employers cannot take an applicant's disability into consideration during the hiring process, nor are they allowed to ask an applicant if they have a disability.
Employers are permitted to ask an applicant whether they would be able to perform their duties, either with or without accommodations, but the applicant has no legal obligation to disclose. If an applicant or employee requests an accommodation to enable them to perform their duties, the employer must make reasonable effort to comply.
When to Disclose
Some disabled people have obvious disabilities, such as being confined to a wheelchair, or requiring the services of a sign language interpreter to communicate with an interviewer, but what about those whose disability isn't so readily apparent?
In theory, it should not matter when an applicant or employee discloses their disability. According to the law, disabled persons cannot be fired or denied opportunities on the basis of any physical or mental impairment, provided that they can perform their job duties with or without a reasonable accommodation. In practice, however, disability discrimination does happen, even with federal labor laws in place.
Even if a job applicant is aware that they will need an accommodation to execute their duties, they have no obligation to reveal this during the interview process. Once they have accepted the job offer, they can then disclose their disability and make accommodation requests. Legally, the employer cannot rescind the job offer just because they don't want to deal with a disabled worker or an accommodation. That's why this approach—disclosing the disability after the job is accepted—is the preferred strategy for many disabled persons seeking employment.
Sometimes, an employee may not realize that they will need an accommodation until they have already started the job. If this is the case, the employee can simply request accommodations as the need arises. Again, employees have no obligation to disclose their disability, so their prior failure to do so cannot be held against them.
If you have been discriminated against by your employer, contact Barrett & Farahany, LLP. Our experienced employment lawyers in Atlanta will work with you to seek the justice you deserve.