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Understanding Invisible Disabilities and an Employers Obligation Under the ADA

What is an invisible disability?

Under the Americans with Disabilities Act (“ADA”), a disability is a physical or mental

impairment that limits one or more major life activities. A major life activity can include

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,

standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.

Notably, the ADA does not designate a disability as something that can be seen at first

glance. Invisible disabilities, also known as “hidden disabilities” or “nonapparent

disabilities”, do not manifest in ways that are immediately apparent to others. A few of

the most common invisible disabilities covered under the ADA include attention-

deficit/hyperactivity disorder (ADD, ADHD), anxiety, dyscalculia, autism, depression,

post-traumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD), diabetes,

Tourette syndrome, and bipolar disorder.

Employees with invisible disabilities often do not display obvious symptoms in the

workplace. Unfortunately, this leads employers and other employees to drastically

miscategorize or misunderstand certain behaviors. As a result, employees with invisible

disabilities are more likely to face unlawful discrimination in the workplace, as they are

inaccurately perceived as being incapable of performing their job.

What is my employer’s obligation under the ADA?

Under the ADA, employers, including state and local governments, with 15 or more

employees, are prohibited from discriminating against people with disabilities, including

invisible disabilities. In fact, employers are strictly forbidden from discriminatory

behaviors throughout all phases of employment, including job application, hiring, firing,

compensation practices, and job training.

Once an employee discloses a disability to their employer, an employer has certain

obligations under the law. An employer must provide a reasonable accommodation, that

would allow a qualified individual to perform the essential functions of the job. An

employer must also engage in the interactive process, to ensure all potential

accommodations or solutions are addressed with the employee.

In Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115 (9th Cir. 2000), the Ninth Circuit has

further considered an employer’s obligation under the ADA. Here, the Court states

employers should:

- meet with the employee who requests an accommodation,

- request information about the condition and what limitations the employee has,

- ask the employee what he or she specifically wants,

- show some sign of having considered the employee's request,

- and offer and discuss available alternatives when the request is too burdensome.

It should be noted that employers are not required to provide a requested accommodation

or engage in the interactive process if the accommodation causes an undue hardship on

the business or puts others at risk of harm. Determining whether an accommodation poses

an undue hardship or creates a risk of harm varies by case.

Finally, employers have an obligation to refrain from retaliatory behavior under the ADA.

If an employee engages in a protected activity, including disclosing their invisible

disability, requesting an appropriate accommodation, and/or complaining about

discriminatory behavior, an employer cannot retaliate with an adverse employment action

as a result. In Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct.

2405 (2006), the Supreme Court analyzes whether an employment action is adverse, by

looking at the actions “deterrent effects.” Common adverse actions include termination,

demotion, disciplinary actions, or reduction in pay. Notably, in Arizona and the Ninth

Circuit this term is broadly defined and can encompass a variety of actions that are

viewed on a case-by-case basis.

Conclusively, an employer has an obligation to provide an inclusive work environment

for employees with invisible disabilities, by refraining from discriminatory and

retaliatory behaviors. These behaviors are best avoided by employers who educate their

staff, leverage employee resource groups, use inclusive language in all employment

related documents and meetings, and implement assistive technologies to provide a safe

workplace environment for employees with invisible disabilities.

What to do if you have an invisible disability?

Understandably, many employees with an invisible disability are unsure of their

protections under the ADA, as well as their employers’ obligations under the law. If you

are struggling with an invisible disability, there are certain steps you should take.

1) Understand your rights. If you have an invisible disability and work for an

employer with 15 or more employees, including state or local government, you

have protections under the ADA. Specifically, your employer cannot partake in

discriminatory or retaliatory behavior against you. If such behavior occurs, contact

Robinson Law Offices right away.

2) Familiarize yourself with company policy. Often, employers implement policies

or procedures for employees with disabilities. Refer to your employee handbook

or training materials, if applicable, to understand what resources your employer

provides for disability disclosure. If this information is not readily accessible,

reach out to HR to get detailed instructions on your employer’s disability policy,

as well as how to access ADA forms.

3) Disclose your disability. Research suggests that nearly half of employees with an

invisible disability have failed to disclose their condition to their respective

employer. It is necessary that you inform your employer about your disability. An

employer cannot provide an accommodation or engage in the interactive process

unless they are aware of your invisible disability.

4) Work with your medical provider. First, inform your medical provider about

your employers’ disability procedures and policies, and have them fill out your

required ADA forms with all applicable information. Second, provide your

medical provider a list of the essential functions of your job. Your medical

provider should properly request an accommodation with these functions in mind

and avoid presenting an accommodation that could constitute an undue burden on

your employer.

5) Keep a record. Keep a detailed record of each disclosure effort made, as well as

all communications you have had with your employer regarding your disability. It

is also helpful to maintain records of your disability treatment plan, as well as

documentation provided by your medical providers. Because invisible disabilities

are not apparent, this documentation can prove helpful should an issue arise.

Robinson Law Offices Can Help

Robinson Law Offices passionately advocates for all individuals who have been

diagnosed with an invisible disability, and it is our goal to ensure employers are meeting

their obligations under the law. If you have an invisible disability and believe your

employer has discriminated or retaliated against you because of this disability, contact

Robinson Law Offices to speak with an attorney.


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