How and When to Accommodate Cognitive Disabilities Under the Americans with Disabilities Act

Written by Chuck Levin, Attorney
Revised by Kathy Wilde, Litigation Director, March 2002

I. Introduction:

This paper will tell consumers and those involved in consumers' lives how the ADA may apply to people with a cognitive disability. By "cognitive disability", we mean someone who has difficulty reading, writing and understanding, due to mental retardation, autism, traumatic brain injury, or other disability. Examples based upon real life situations illustrate the kinds of issues and considerations that may be involved with this population. We give examples of reasonable accommodations that employers, businesses and public agencies may need to provide to give people with cognitive disabilities equal opportunities under the law. Reasonable accommodations for a person with a cognitive disability may look quite different than those for a person with a physical disability.

If, after reading this pamphlet, you have questions concerning how your worksite, business or agency can accommodate people with cognitive disabilities, or if you want to learn more about people with developmental disabilities, please call The Arc-Multnomah, 223-7279. Legal questions concerning the ADA may be directed to the Oregon Advocacy Center, (503) 243-2081, or 1-800-452-1694 (voice), (503) 323-9161 (TTY) or 1-800-556-5351 (TTY).

This brochure does not, and is not meant to, explore all the provisions and protections within the ADA. Instead, it offers a broad overview. It is not a substitute for legal advice from an attorney. The particular facts of each situation will determine the existence of an ADA claim. To learn more about the existence of a possible ADA violation in a particular context, contact an attorney with relevant experience.

II. Title I Overview (Employment)

Title I of the ADA applies to employment in the private and public sector. All employers with more than 15 employees are currently covered by the Act. Title I makes it illegal for these employers to discriminate against persons with disabilities in any terms of employment, including the job interview, advancement opportunities, work conditions, salary, and benefits. Title I, though, does not require an employer to hire someone who cannot perform the essential functions of the job in question with reasonable accommodation. Nor does it require an employer to choose a qualified person with a disability over a qualified person without a disability. But it does require that people with disabilities be given the same chance as everyone else in the workplace.

Following is an analysis of a hypothetical fact situation which explores the legal process involving Title I.

III. Title I: Example and Analysis

Frank, whose IQ is 70, wants to apply for a job at a grocery store. Because of Frank's behavior, or his mannerisms, or his speech, or because Frank tells the manager, the manager knows that Frank has a cognitive disability.

The application procedure at the grocery store consists of two parts: a job application form and an interview. Frank picks up the application form, but has trouble understanding it and fills it out incorrectly and incompletely.

The manager calls him to schedule the interview.

ADA Implications and Issues

1. If the manager was not aware that Frank had a disability, and did not regard him as having a disability, then he and the grocery store could not be liable for any wrongdoing under the ADA, because under the ADA, an entity can only discriminate against an individual with a disability if it is aware of the disability, or, if the person does not actually have a disability, if it regards the person as having a disability.

2. Here, the manager knows about Frank's disability. The Manager must therefore determine if Frank can meet the "essential functions" of the job with or without reasonable accommodation. If he cannot meet the essential functions of the job, even with reasonable accommodation, the manager is not required to further consider him for the position.

3. Title I requires employers to make reasonable accommodations to known disabilities of employees and applicants when necessary to afford them the same opportunity as others. Reasonable accommodations may be creatively developed and tailored to allow one to obtain and retain a job. The regulations state that whether an accommodation is considered "reasonable" will depend upon:
   1. The nature and net cost of the accommodation (taking into account the availability of tax credits and deductions, and/or outside funding);

   2. The overall financial resources of the facility involved in the provision of the reasonable accommodation, the number of persons employed there, and the effect on expenses and resources;

   3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;

   4. The type of workplace of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
   5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

   If the accommodation is not reasonable, then it is an "undue burden" and the employer is not required to provide it. In our example, as a practical matter, the Manager may first have to provide reasonable accommodations to Frank in the application process in order to find out whether Frank can meet essential job functions. Accommodations may include:

   1. providing an assistant to help Frank complete the job application form;

   2. explaining to Frank how to fill out the job application form in language he can understand;

   3. waiving the requirement that he fill out the job application sheet, in favor of the interview (unless the job would require that he be able to fill out similar types of forms or paperwork);

   4. enlisting the support, if necessary, of known case managers or of Frank's advocates to get Frank to the interview.

4. The ADA prohibits employers asking applicants about any disability. They can inquire only about their ability to do the job. Thus, the employer may ask questions designed to find out whether Frank can meet the essential functions of the job. The following questions are probably not permissible:
   1. "Has your IQ ever been measured: What is it?"

   2. "Do you have any disabilities?"

   3. "Do you take any medications?"

   4. "Have you ever lived in a group home?"

   The following questions are probably permissible:

   1. "Where do you live?"

   2. "Can you add and subtract (if the job requires this)?"

   3. "Can you lift 40 pounds at a time (if the job requires this)?

   4. "Do you have any case managers or advocates?" (would you mind if I contact them?)

   Note: although this question may seem disability-related and therefore impermissible, in those instances where an applicant's disability is readily apparent, the employer's knowledge of this information will allow him to communicate with those key players in the applicant's life that will be knowledgeable about the kinds of reasonable accommodations that may be required in order for the person to remain on the job successfully. Also, such persons may be in a position to provide required counseling or training to the individual which the employer may not be required to provide, which could mean the difference between the person's ability to hold the job and getting fired.

   Even if Frank is qualified to perform the essential functions of the job, the Manager is not required to hire him. The ADA is not an "affirmative action" law. However, if the Manager chooses to hire someone else instead of Frank, the reason for his doing so may not be related to Frank's disability, unless the disability precludes Frank from performing the essential functions of the job.

5. Assume Frank is hired for the job, but he cannot do it without reasonable accommodations. Depending on the nature of the job and Frank's precise limitations, such accommodations could include:
   1. flex-time

      (However, if Frank cannot meet work standards or quotas set by the employer, than he is not "qualified" for the job and the employer need not hire or retain him.)

   2. providing a reader

   3. providing other auxiliary aides or services

   4. first consulting with Frank's advocate or case manager if Frank is having problems on the job which would ordinarily lead to termination, and giving such people the opportunity to work with Frank to cure the identified problem.

6. If the employer does not know that Frank has a disability, but is suspicious that he does, may he ask him? No. An employer may not ask disability-based questions of applicants.

   If Frank asks for a reasonable accommodation but the employer doubts whether he has a disability, the employer may ask Frank to produce some sort of evidence, like a doctor's letter or evaluation.

7. During the application process, can the grocery store insist that Frank take a drug test?

   Yes. Drug tests are permitted under the ADA, so long as they test only for illegal drugs, and not prescription drugs. If a drug test shows that the applicant is taking an authorized drug, the employer may not act against the employee or applicant for such use, and in any court proceeding, the applicant may defend that such use is occurring under the supervision of a licensed medical practitioner.

   Current illegal drug users, though, are not considered people with disabilities under the ADA. A person who uses drugs illicitly cannot claim any protection under the act if their drug use is discovered as a result of a drug test.

8. Physical exams are not permitted at all in the application process, until an offer of employment is made. An offer of employment may be made contingent upon the passing of a physical examination, so long as:
   1. all job applicants are required to take the same exam;

   2. all information acquired in the course of the exam is kept confidential; and

   3. if, as a result of the exam, the applicant is denied employment, that the exam is consistent with business necessity and does not discriminate or tend to discriminate against people with disabilities.

IV. Title II Overview

Title II of the ADA pertains to all public entities, which the Act defines as:

1. Any State or local government;

2. Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

3. The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).

Title II imposes almost identical requirements upon public entities as Section 504 of the Rehabilitation Act imposes on entities receiving federal financial assistance. That is, public entities cannot discriminate against "qualified individuals" in their administration of services, programs, benefits, privileges, or opportunities. A person is a "qualified individual" if she meets the "essential eligibility requirements" of the program in question. If a person is a "qualified individual", then the public entity must make reasonable accommodations or provide auxiliary aids in order to make its programs or activities accessible.

V. Title II Example and Analysis

Jill, who has moderate mental retardation, goes to Senior and Disabled Services Division (SDSD) to find out about possible benefits and programs she may be eligible for. The receptionist gives her a brochure with the descriptions of the programs and benefits. Jill does not readily understand it, as the language is often technical and complex.

ADA Implications and Issues

1. SDSD is a public entity and is therefore covered by Title II of ADA.

2. As a Title II entity, SDSD must make its programs accessible to people with disabilities. Program accessibility means more than just physical access. It also includes making application and program information readily understandable.
   1. Therefore, SDSD must make the application forms and program descriptions accessible to Jill. Options may include:
      1. providing a staff person to explain the materials to Jill so that they are meaningful and comprehensible to her; or assist in filling out necessary paperwork.

      2. developing new, or supplementary materials geared towards people who do not read, write, or comprehend written information easily.

      These are reasonable accommodations which would allow Jill access to SDSD's programs. The agency's refusal to provide them, or similar accommodations, will likely constitute a violation of ADA.

3. As one of SDSD's target groups is people with disabilities, it should have people and procedures set up to identify prospective clients with disabilities. Standard questions that might be asked at intake for this purpose include whether the person has a history of special education; has a case manager, or has been hospitalized.

VI. Title III Overview (Public Accommodations)

Title III prohibits discrimination by private entities that offer public accommodations. Public accommodations include inns, hotels, motels, restaurants, bars, movie theaters, concert halls, stadiums, auditoriums, bakeries, grocery stores, shopping centers, laundromats, dry cleaners, banks, hair salons, lawyers' offices, museums, libraries, parks, zoos, private schools, day care centers, gymnasiums, spas, hospitals, doctor's offices, and other such places where the public is invited.

Title III prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that the public accommodations offers.

Public accommodations must make reasonable modifications in policies, practices, or procedures when to do so is necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the modifications would "fundamentally alter" the nature of what is being provided, or result in an "undue burden" to the public accommodation.

Public entities must further take steps to ensure that individuals with disabilities are not excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless such auxiliary aids and services would create an undue burden or fundamentally alter the nature of what is being offered. "Auxiliary aides" include such things as interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed cation decoders, open and closed captioning, TTYs, videotext displays, readers, taped texts, audio recordings, brailled materials, large print materials, and the acquisition or modification of equipment or devices.

Title III Examples and Analysis

Example 1:

John enters a restaurant to eat dinner. John is cognitively impaired and non-verbal. The manager comes by John's table and asks John to prove to him that he is carrying enough money to pay for a meal at the restaurant.

The waiter then comes to take his order. Upon discovering that John cannot communicate what he wants, the waiter ignores him or asks him to leave.

ADA Implications and Issues

1. The restaurant is a public accommodation operated by a private entity, and is therefore covered under Title III of ADA.

2. The restaurant cannot exclude John because he is cognitively impaired and non-verbal.

3. A restaurant would typically have the authority to question customers for the purpose of insuring that they have the capability of paying for their meals and service. However, restaurants do not question everyone about this, they are selective. The way they select whom to question may be suspect. If they are questioning all people with disabilities because of their fear, prejudice, or stereotype that people with disabilities are unlikely to be able to pay, this may violate the ADA. On the other hand, if they question a particular individual with a disability for reasons which may relate to the disability tangentially, but which are the same reasons that they would question anyone else, such as dirty or disheveled appearance, such questioning may pass muster under ADA because they are not disability-based.

4. John may require auxiliary aids to read or understand the menu. The waiter could easily serve in this capacity by reading and explaining the menu to him. John may then point to items on the menu to convey his wishes. By simply ignoring him, as in the example, the restaurant would be violating ADA by failing to take such steps necessary to ensure that he is not denied services or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. If auxiliary aids and services are unsuccessful at bridging the communication gap, the waiter would have justification for not serving John.

Example 2:

John, an individual with a cognitive impairment, and who has some challenging behaviors, visits a shopping mall. He is in the central area of the mall, shouting loud and rude remarks at passersby, including some obscenities. Some shoppers complain to mall authorities, who order John to leave the mall and not come back.

Nonetheless, John later returns to the mall, and hangs out in a jewelry store there. The owner of the store, seeing that John is not a customer who is likely to be able to afford to buy jewelry from him, orders him to leave.

ADA Implications and Issues

1. The mall as a whole is covered under Title III.

2. The mall may impose neutral rules concerning conduct expected of those who visit the mall. Such rules can prohibit violent or disruptive behavior, to enable the mall to conduct it's business in an orderly manner.

   In any event, the mall may require John to leave if he constitutes a direct threat to the health or safety of others in the mall. "Direct threat" means a "significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." While John's conduct likely does not constitute a "direct threat," John could still be excluded from the mall if he does not meet the mall's neutral rules concerning conduct of shoppers.

3. If John wants to return to the mall, against the mall's order that he not come back, he should be able to, if he meets the mall's neutral conduct rules. Even if the mall has neutral rules which allow it to keep disruptive people off the mall grounds for some unspecified time in the future, it must modify such rules or policies to accommodate John's disability.

4. If John is not being disruptive in the jewelry store, the owner cannot order him to leave his store, unless he also orders everyone else to leave who he believes is not likely to purchase jewelry from him,. whether or not disabled. Many shoppers go to malls to browse, and this is commonly accepted. John has the same right to browse in mall stores as anyone else.