How to Keep From Treating People With Disabilities Differently

Workshop Goals

To understand the history of American attitudes and legislation regarding people with disabilities;

To learn how to properly assist individuals with disabilities in a courteous and respectful manner;

To practice providing assistance to people with disabilities, both fellow employees and museum guests.

In order to gain the most out of the presentation, please:

  • Listen with an open mind;
  • Be respectful of each other;
  • Challenge your thinking;
  • Be willing to learn something new that you can use on the job!

Challenge Activity

Bean Bags

  • Place a bean bag on your head
  • Move to the music!
  • If your bean bag falls off your head, freeze until another player, without losing his/her beanbag, retrieves the fallen one and replaces it on the frozen person’s head.
  • If the rescuer loses his/her beanbag, then he/she is also frozen until another person appears to rescue them both.

What is the object of the game?

How do you “win”?

What is the advantage of picking up a classmate’s beanbag?

What is the Definition of a Disability?

The Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibits discrimination on the basis of disability in several key areas including: state and local government services, places of public accommodation, employment, telecommunications and transportation.

The individual with a disability is a person who (3 part definition):

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment, even if they do not currently have the impairment; or
  • Being regarded as having such an impairment.

What is considered a disability?

The ADA does not list conditions that are considered disabilities; however it does list those which are not included.

Not covered by the ADA are homosexuality, bisexuality, transvestism, transsexualism, compulsive gambling, kleptomania, pyromania, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders.

The ADA does not cover individuals who are currently engaging in illegal drug use.

A short-term condition is generally is not a disability. The test is whether the impairment markedly limits major life activities when assessing the duration, scope, and impact of the impairment.

Small Group Activity

Divide into small to discuss your experiences and examples of instances you have assisted co-workers or museum guests with the following disabilities:

  • Physical
  • Sensory
  • Intellectual or Developmental
  • Emotional
  • Invisible

Remember that each person’s situation is unique!

Physical disabilities: a limitation on a person’s physical functioning, mobility, dexterity or stamina; a short list of examples:

  • Spinal cord injury
  • Amputation
  • Cerebral palsy
  • Multiple sclerosis
  • Spina bifida
  • Musculoskeletal injuries (eg back injury)
  • Arthritis
  • Muscular dystrophy

Sensory impairment: a limitation of one or more of a person’s senses; including:

  • Hearing Loss
  • Tinnitus
  • Limited vision/Blindness
  • Loss of Smell
  • Spatial awareness

A person could be born with the impairment or could it could develop throughout the lifetime.

Intellectual disabilities – significant limitations in both intellectual functioning and in adaptive behavior, which covers social and practical skills. Originates before age 18 years. Affects approximately 3% of the population.

  • Autism Spectrum Disorders
  • Down’s Syndrome
  • Fragile X Syndrome
  • Fetal Alcohol Spectrum Disorder (FASD)

Emotional

  • Mental illness has nothing to do with intelligence.
  • Mental illness is a condition that disrupts a person’s thinking, feeling, mood, and ability to relate to others.
  • Results in a diminished capacity for dealing with everyday life
  • Can include major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder (OCD), panic disorder, and personality disorder.

The Invisibility of Disabilities

Be sensitive that disabilities come in a variety of types, and each person is an individual

The impact of a person’s disability may not be easily seen.

Person may be perceived as lazy, when in fact, the disability impacts his/her ability to learn, work, and function.

Teachers and peers may see only behavior problems or uncooperative behaviors, rather than accommodating the disability.

A Brief History of Legislation

1964 – Title 7 of the Civil Rights Act

1973 – Rehabilitation Act, Section 504

1990 – Americans with Disabilities Act – First comprehensive civil rights law for people with disabilities.

History, continued

2008 – ADA Amendments Act

Expanded definition of the term disability to include individuals with amputations, intellectual disabilities, Epilepsy, Multiple Sclerosis, HIV/AIDS, Diabetes, Muscular Dystrophy, and cancer;

Strikes a balance between employee and employer interests;

Overturned two key Supreme Court decisions (Sutton vs. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. vs. Williams), where lower courts had found individual’s situation did not constitute a disability, therefore the question of discrimination had never been addressed.

American Attitudes – FDR

Franklin Delano Roosevelt

32nd President of the United States from 1933 to 1945.

Had suffered paralysis as a result of Polio.

Although the his use of a wheelchair was common knowledge, the wheelchair was not shown by the media.

Gather Your Thoughts

How do you feel about the cloaked FDR statue?

What do you think is more important: to respect President Roosevelt’s wishes OR to reflect modern views of people with disabilities?

How could this spectrum of opinion be reflected in the workplace?

As a manager, how do you work to bring understanding and acceptance among your staff, while following current ADAAA guidelines?

Let’s examine recent examples of people with disabilities who have achieved celebrity status!

Stevie Wonder

Born prematurely in 1950 in Michigan. Suffered retinopathy of prematurity (ROP), due to too much oxygen in the hospital’s incubator.

Began playing instruments at an early age and signed with Motown Records at age 11. Has had an amazing writing and recording career.

Celebrity spotlights can aid in bringing important issues into the spotlight.

Jim Abbott

Born in 1967, in Flint, Michigan, without a right hand

Baseball star for University of Michigan

Played in the 1988 Summer Olympics

Played Major League Baseball, and pitched a no-hitter in 1993 as a NY Yankee.

Amy Purdee

Born in 1979 in Las Vegas, Nevada

Contracted meningitis at age 19, resulting in double amputation below the knees and kidney transplant

Paralympic Athlete in Snowboarding – Bronze Medalist

Terminology Over Time

Crippled – an invalid and derogatory term that is no longer acceptable to describe people with disabilities;

Retarded – a medical term that can be used as a slur; no longer acceptable in everyday language:

Handicapped – something that hampers or hinders, such as in a race; no longer used in referring to people;

Normal people – avoid using this term when making a comparison, as this implies a person with a disability is not normal. Everyone is unique and has their own identity and abilities;

Person with a Disability – “people-first” language that focuses on the individual, not their condition.

Using People-First Language

American Psychological Association Style guide

  • Person’s name or pronoun first
  • Description of impairment or disability second
  • Descriptors should not modify or limit the person

Examples:

  • A boy with Down’s Syndrome, not “the Down’s Syndrome boy”;
  • Sydney has a hearing impairment, not “the deaf girl.”

Discussion: What Do You Do?

On the Job Situations You May Encounter

A guest arrives at an event with a cat in a stroller. She claims the cat is a service animal. Do you allow her entrance?

A group of 60 children is moving from the 1st floor exhibit to the 2nd floor through the only staircase in the wing. One child is on crutches. As the group’s tour guide, how do you handle the transition between floors?

What Do You Do?

Guidelines to Follow

  • If the guest claims the cat is with her as a service animal, the cat can be permitted to accompany her into the event. She does not need to produce any paperwork to justify the service animal.
  • Review the options with the student’s teacher/chaperone. If the child wishes to take the elevator, suggest a small group of students and an adult accompany her, so she does not feel alone or singled out.
  • Ask the guest if he would like to sit or hold onto in a chair inside the ride.

Employees with Disabilities: What is Reasonable Accommodation?

A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability.

Under the Americans with Disabilities Act, employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship

Examples of Reasonable Accommodations

  1. Providing a chair for a cashier who uses crutches so he or she can sit when not assisting customers.
  2. Reserving a parking space close to the entrance for an employee who has difficulty walking because of loss of a limb.
  3. Providing instructions and information in writing for an employee with hearing loss.
  4. Permitting a staff member to bring a service animal to work.
  5. Allowing an employee with tinnitus to play background music to help block out the ringing in his ears.
  6. Allowing more frequent work breaks or providing back-up coverage when an employee with a disability needs to take a break.
  1. Providing specialized equipment for an employee who has lost a hand or finger, such as a large-key keyboard, a one-handed keyboard, a trackball, a touchpad, or speech recognition software.

  2. Flexibility in scheduling to allow an employee with Post Traumatic Stress Disorder to attend counseling sessions or offering a later start time to a staff member with a spinal cord injury who has a lengthy personal care routine.
  3. Decreasing distractions, providing information in writing, breaking down complex assignments into small steps for a person with a traumatic brain injury.
  4. Making sure equipment is within reach for an employee who uses a wheelchair.
  5. Adjusting the height of an office desk for a staff member who uses a wheelchair, and ensuring the space is not obstructed by wastebaskets or other items.

Unacceptable Practices

Examples of A Record or History of Disability

Examples:

  • An employer refuses to hire a qualified candidate due to a history of mental illness, even though the person has recovered sufficiently to perform all essential functions of the job.
  • A dentist refuses to treat a patient because he was diagnosed as having HIV, even though the diagnosis was proven to be incorrect.
  • A retail outlet fires a woman who is pregnant, because they assume she will not be able to work during the busy holiday season.

Unacceptable Practices

Regarded as Having an Impairment

Examples:

  • An employee has controlled high blood pressure, which is not substantially limiting. However, his employer fears that the employee will suffer a heart attack and reassigns the employee to a less strenuous job.
  • A person with a severe burn or scar does not actually have a disability. He may be regarded as having a disability when he faces discrimination based on people’s attitudes toward him.
  • An overweight candidate for a bus driver position is not hired because the employer assumes (without conducting tests) that she will not be able to move fast enough in case of an emergency.

Courtesy

Gum chewing – Do not chew gum when speaking to people with hearing loss. It makes you more difficult to understand

Stand in front – When speaking to people with hearing loss, stand directly in front, so they can see your lips

Paper and pencil – Have a paper and pencil ready, in case communicating through written word may be more effective than spoken word

Sit down – when speaking to a person in a wheelchair, take a seat! Looking upward may hurt their neck, and it is common courtesy to be at eye level.

Ask if the person wants help before acting – Do not assume that someone needs help. Have the respect and courtesy to ask how you may help, and then follow directions

Be patient – Do not roll your eyes, cross your arms, or rush a person who needs extra time.

Use people-first language – always refer to the person first and do not use their situation as a descriptor.

End of Session Quiz

You are at the Information Desk and a guest in a wheelchair has a question. What is the most courteous way to approach the interaction?

An employee you are managing has been diagnosed with multiple sclerosis. She begins to walk with a cane, and is able to perform her job functions as school group facilitator in the laboratory. Discuss what types of accommodations can be made for her.

A child who uses crutches wants to watch the Dive Show at the Kelp Tank. All the seats are filled and many patrons have filled the open viewing area. How do you accommodate the child, so he can see the show?

List 3 new pieces of information that you learned, which you can use on the job.

1- Information Desk

Invite the guest to the side of the counter that is wheelchair accessible.

Sit at the chair, so you are eye-level.

Answer his questions respectfully.

Ask if the guest needs any assistance.

Ask if he is familiar with the location of the elevator.

2- Employee Accommodations

Review the employee’s job duties and discuss if any accommodations need to be made at this time, such as reassignment, additional time for tasks, use of a chair while working.

Make a plan to review her situation as needed, to see if any accommodations or a reassignment needs to be made.

For example, an employee who lead the student experiments in the laboratory could be reassigned to the Information Desk to answer the telephone with a headset.

3- Viewing the Show

  • Given that the situation involves a child, consult with the student’s parents or chaperone.
  • Ask if the child would like to sit by the tank or in the bleachers.
  • Show the family where the seating area for people with disabilities is located.
  • If someone is sitting in that area, respectfully work with the guest to find a spot for the child. Posted signs indicate that the are is reserved for people with special needs.
  • If there is no wiggle room, ask if the child would like a chair to sit, or ask a guest if they would mind moving over to accommodate the child.
  • Remember that you are responsible for the guests during the dive show. Feel empowered to make the situation pleasant for the guests, in a courteous manner. Call your supervisor if you need additional assistance.

Is ADHD Protected Under the Americans with Disabilities Act?

The answer to the question is somewhat long and complicated. So we will begin with writing that while someone with ADHD may qualify for protection under the Americans with Disabilities Act, not everyone with the diagnosis of ADHD will qualify. And that may include you or your child.

The Americans with Disabilities Act was established by Congress in 1990. The purpose of the Act is to end discrimination against persons with disabilities when it comes to housing, education, public transportation, recreation, health services, voting, and access to public services. It also aims to provide equal employment opportunities for people with disabilities.

The ADA was written to offer protections to individuals with disabilities, not individuals with any particular diagnosis. The Americans with Disabilities Act seeks to protect individuals with significant impairments in function.

By the way, it is estimated that the population of the United States is over 300 million persons. And it is estimate that about 19% of persons have some type of long-lasting condition or disability. That would be somewhere near 60 million persons. This includes about 3.5% with a sensory disability involving sight or hearing, about 8% with a condition that limits basic physical activities such as walking or lifting. It also includes millions of people with mental, emotional, or cognitive impairments.

Since Congress enacted the ADA courts have had several challenges in defining the scope of the Act.

  • What exactly is a disability?
  • Who would be defined as having a disability?
  • Is having a diagnosis the same as having a disability?

These are some of the questions that the courts have had to wrestle with, not to mention the questions related to how schools, work places, public transportation agencies, and more, are to implement the Act in daily operations with both employees and customers.

So, to the Question: Is Attention Deficit Hyperactivity – ADHD – included in the ADA?

The answer is “Yes, No, or Maybe.”

The ADA defines “disability” as a physical or mental impairment that substantially limits

one or more “major life activities,” such as walking, seeing, hearing, or learning. Having a

diagnosed impairment, such as ADHD, does not necessarily mean that an individual is disabled within the meaning of the ADA.

The ADA does provide for “mental” conditions or mental illnesses, and potentially ADHD fits in this category. But as with physical impairments, the diagnosis of a mental illness or mental impairment such as ADHD is not sufficient by itself to qualify for protection under ADA. Again, having a “diagnosis” is not the same as having a “disability.”

We are not lawyers, and our readers probably are not either, but it is interesting to look at some of the recent court cases regarding the ADA that directly related to children or adults with Attention Deficit Hyperactivity Disorder.

These two cases seem to expand the definition of “major life activities” to include concentration and cognitive functions:

  • Brown v. Cox Medical Centers (8th Cir. 2002), where reportedly the court stated that the “ability to perform cognitive functions” is a major life activity;
  • Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002), where reportedly the court held that “concentrating and remembering (more generally, cognitive function)” are major life activities.

But the courts have placed limitations on the scope of the Act as well, and have not just tried to accommodate everyone with ADHD. The court has its limits, and they have ruled that the ADA has its limits.

For example Knapp v. City of Columbus (2006 U.S. App. LEXIS 17081) is the story of three firefighters with ADHD who wanted the City to make accommodations for them in their jobs. The U.S. Court of Appeals for the Sixth Circuit declined to extend ADA coverage to three firefighters who had Attention Deficit Hyperactivity Disorder.

Three firefighters had claimed that ADHD substantially limited their ability to learn, so the City should make accommodations for them. But the court held that the firefighters failed to establish that their ADHD met the standards to qualify as a disability under the ADA.

A very important limitation of Act involved a ruling from an earlier Supreme Court case with Toyota in 2002 which the Sixth Circuit Court used in this case with the firefighters. The Sixth Circuit applied the U.S. Supreme Court’s test in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

Under the Toyota Motor ruling the courts must consider whether the person making the claim is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with his or her specific job.

When applying this test, the Sixth Circuit wrote that when a person who is seeking protection or accommodations under the ADA can fully compensate for an impairment through medication, personal practice, or an alteration of behavior, a “disability,” as defined by the Disabilities Act, does not exist.

In other words, if a child, teen, or adult with ADHD can “get the task done” or “get the job done” by using medications, applying behavioral management techniques, receiving counseling, using biofeedback, using Attend, or other treatment interventions, then they do not have a disability that is protected under the ADA.

In this court case, all three firefighters testified that taking Ritalin controlled their symptoms, and that they were able to fulfill their family and work obligations. Thus, an ADA disability was not found.

So, it would follow that if you, or your child, could function pretty well at work or in school when taking medication or Attend, or using some other treatment, no disability as defined under the ADA would exist – at least according to the 6th Circuit Court.

Also, it seems that as a result of this ruling, employers under the Sixth Circuit do not need to make accommodations for employees with ADHD under these conditions:

  1. When the disorder has not been shown to substantially impair their ability to perform tasks central to daily life;
  2. When the ADHD symptoms can be improved by medication or other treatments.

Here is a pretty good list from a major university of the conditions that must be met for ADHD to qualify for coverage and protection under the American with Disabilities Act of 1990:

  • The ADHD must cause significant impact or limitation in a major life activity or function;
  • The individual must be regarded as having a disability;
  • The individual must have a record of having been viewed as being disabled;
  • The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.

To establish that an individual is covered under the ADA, documentation must indicate that a specific disability exists and that the identified disability substantially limits one or more major life activities. Documentation must also support the accommodations requested.

  1. The evaluation must be conducted by a qualified professional, such as psychologist, neuropsychologist, psychiatrist, or other medical doctor who has had comprehensive training in the differential diagnosis of ADHD and direct experience with an adult ADHD population. The name, title, and professional credentials of the evaluator should be clearly stated. All reports should be on letterhead, typed, dated, signed and otherwise legible.
  2. Documentation must be current. The diagnostic evaluation must adequately address the individual’s current level of functioning and need for accommodations. In most cases, the evaluation must have been completed in the last three years. A school plan, such as an Individualized Education Plan (IEP) or 504 Plan, is insufficient documentation for a university, but can be included for consideration as part of a more comprehensive evaluative report.
  3. Documentation necessary to substantiate the diagnosis must be comprehensive and include:
    • Evidence of early impairment. Historical information must be presented to demonstrate symptoms in childhood which manifested in more than one setting.
    • Evidence of current impairment, which may include presenting attentional symptoms and/or ongoing impulsive/hyperactive behaviors that significantly impair functioning in two or more settings. In addition, the diagnostic interview should include information from, but not limited to, the following sources: developmental history, family history, academic history, medical history, and prior psycho-educational test reports.
    • Alternative diagnoses or explanations should be ruled out. The evaluator must investigate and discuss the possibility of dual diagnoses and alternative or coexisting mood, behavioral, neurological, and/or personality disorders that may confound the diagnosis of ADHD.
    • Relevant testing information must be provided and all data must reflect a diagnosis of ADHD and a resultant substantial limitation to learning.
    • Documentation must include a specific diagnosis. The diagnosis must include specific criteria based on the DSM-IV, including evidence of impairment during childhood, presentation of symptoms for at least the past six months, and clear evidence of significant impairment in two or more settings. The diagnostician should use direct language in the diagnosis of ADHD, avoiding the use of such terms as “suggests,” “is indicative of,” or “attentional problems.”
    • An interpretive summary must be provided that demonstrates that alternative explanations have been ruled out and that explains how the presence of ADHD was determined, the effects of any mitigating measures (such as medication), the substantial limitation to learning caused by the ADHD, and the rationale for specific accommodations.

Obviously, dealing with government regulations with their specific definitions can be very frustrating and difficult. It would be important to have realistic expectations in regards to the American with Disabilities Act and ADHD.

We would recommend getting legal advice from an attorney who specializes in educational law, or has expertise in the Americans with Disabilities Act, to learn more about how the ADA may apply in a specific case to a particular individual with ADHD.