A DISCUSSION OF LAW AND JOURNALISM

ADHD: A Diagnosis In High Demand

By Halina Schiffman-Shilo and Courtney Weinstein

Tylenol. Concerta, Adderall, Ritalin. These four drugs are all commonly found at schools. But which one of these things is not like the others? The first (Tylenol) is an over-the-counter medication recommended for minor pains. The other three (Concerta, Adderall, and Ritalin) are for attention-deficit hyperactivity disorder (ADHD).

According to the American Psychiatric Association, only three to seven percent of school-aged children have ADHD. However, the Association concedes that, “studies have estimated higher rates in community samples.”

If those communities are high school, college, and beyond, I believe it.

Common symptoms of ADHD include inattention, hyperactivity and impulsivity. And while most of us have experienced these things at some point in our lives, ADHD is not a myth.

Have you ever read a page in a book and thought: “I don’t have a clue what I just read?” If that happens consistently, despite your best efforts to concentrate, it could be a sign of ADHD. The frustrations and disadvantages that come with not being able to focus, stay alert, or finish things on time, are real, and can be debilitating.

So as not to punish students for their disabilities, most schools allow students with ADHD to take extra time to complete an exam or a homework assignment. Some schools will also designate private rooms to students with ADHD so they can complete their exams with minimal distractions. And even College Board, the organization that administers the SAT, allows students who have been diagnosed with ADHD (and who request an accommodation for their disability) to take extra time—up to double the allotted time—for their exam.

And get this. A school does not, and indeed, cannot, inform potential employers when a 4.0 GPA and 2300 SAT was earned by a student who was granted such an accommodation. Under the Family Educational Rights and Privacy Act (FERPA) of 1974, schools are required to keep this information confidential unless the student consents to such a disclosure.

So what if a company hired such a student, only to learn that she needs double the time to complete her work?  Could the employer fire the new hire?  And could the employee sue if she were fired, even though she’d been hired, practically speaking, under false pretenses?

LASIS investigates.

The Americans with Disabilities Act (ADA) forbids, among many things, employment discrimination based on a person’s disability. In addition, a person with a disability is not required to disclose their disability to their employer, and the questions an employer can ask about their employees’ disability, if he or she has disclosed, are limited.

In order to be safeguarded by the ADA on the job, an individual must have a disability, which is defined by the ADA as anyone with a physical or mental impairment that significantly restricts one or more major life activities, and that individual must disclose her disability to her employer. Upon disclosure, the employer is obligated to give the disabled employee “reasonable accommodations” (to the extent that it would not cause the employer undue hardship) to do her job. But the requirement to reasonably accommodate only kicks in once (and if) the employee discloses her disability, or the disability is so obvious, such as using a wheelchair, that the employer has notice.

For example, in a Ninth Circuit Court of Appeals case in 2010, the Court determined that a California District Court erred in granting summary judgment to UPS when a deaf employee, Mauricio Centeno, sued UPS for not reasonably accommodating his disability. Mr. Centeno, who could only read at a fifth grade level, asked to have a sign language interpreter for important weekly and monthly staff meetings and trainings. Instead, his supervisors just gave him copies of the minutes of the staff meetings, which he had difficulty understanding. He was also expected to sit through the hourlong meetings, even though he could not physically hear or understand anything that was discussed. The court determined that there were enough issues of fact raised by the employee to warrant a full trial by the lower court and remanded the case back down.

The ADA also provides employers some measure of protection against discrimination, too. If an employee never told her boss about her disability and is fired, she couldn’t sue under the ADA — her boss couldn’t have discriminated against her for a disability that he didn’t know she had. In addition, if the employee is unable to perform her essential job functions, with or without a reasonable accommodation, she can be fired.

In a 2013 U.S. Court of Appeals case for the Eighth Circuit, Jeff Knutson, a visually impaired man, relying on the ADA, sued his former employer for firing him. Mr. Knutson’s former employer asserted that one of his essential job functions had been to drive a truck. Mr. Knutson maintained that he was able to perform his job duties without driving a truck. The case rested on the court’s interpretation of when an accommodation crossed the line into being unreasonable, and the court determined that an employer can’t reasonably be expected to eliminate an essential job function to facilitate the employee doing his job. The court determined that driving a truck was an essential function of the position Mr. Knutson held; his employer was therefore within its rights to fire him.

It is ultimately up to the individual to choose whether on-the-job disclosure is the right choice.

To those suffering from ADHD who are accustomed to extra time in school to complete papers and exams tasks: You may want to disclose your disability to your new employers.  There’s nothing shameful about it. And if your boss thinks you’re just lazy or not trying hard, you may be out of a job — and without legal recourse.

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