Home

Site Map

About Roger

Presentations (New!)

Curriculum Vita

Contact Me

Description of Business

Copyright Issues

Articles and Writings

Bee Baxter Meyer

Links

Portland Oregon Adult Resources

Current Research Projects

Hubert Cross Website

 

Roger N. Meyer "...of a different mind "
Puzzle Pieces Image

ADA, DISCRIMINATION, AND EMPLOYMENT CONUNDRUMS

Copyright 2000 © Roger N. Meyer

 

 

     [This is a post, slightly modified, that I sent a person concerned that her AS spouse was not rehired by an employer he had "temped" at for two and a half years.  She has also been under a constant squeeze in working for the same employer as a permanent professional engineer.  In both instances, neither she nor her husband "disclosed."  In her post to me, she indicated that both of them have encountered criticism from their supervisors for their "Aspie" behaviors.  This post was re-sent to a subscription listserv that has most of its members on the high functioning end of the autistic spectrum, or their “autistic cousins.”]

 

Dear_______:

 

     Thanks for your email.

 

     A suit of any kind, yours or X's, won't probably get either of you any money.  Here's why:

 

     In order to be a successful litigant under ADA, the claimant must have disclosed his or her disability to the employer, and requested reasonable accommodation.  This neither you nor X have done. 

 

     If you think his failure to be rehired it is a matter of age discrimination, the thing he might consider is getting together with a whole bunch of former [employer's name] employees, whether temporary or permanent who found themselves out of a job and were replaced by younger persons.  This establishes the likelihood of an employer pattern and practice of age discrimination, and also makes it more likely that a class action suit can be successfully pursued by all of the claimants as a group, not just as individual litigants to be picked off one by one by the employer’s deep pocket attorneys.

 

     Since you are still employed by X and have not found another job, I would recommend against disclosure until and unless you have a second firm job offer in hand.  That way, regardless of a "record," you will have something to fall back on.  In addition, if you intend to gain protection under ADA, you must disclose to the second employer just as soon as a valid offer of employment has been tendered.  What that means is that there should be some papers signed as well, not just a verbal offer.  If the employer were shifty, they could claim that the offer was verbal and not firm and they could withdraw it, in which case you will be left holding another bag.

 

     If you disclose your autism now, that has a mixed set of consequences.  In your letter of disclosure (not a verbal statement) to your immediate supervisor with CC's to the Human Resources Division, you must be careful not to disclose "too much," and to emphasize, in your request for accommodation, those reasonable measures calculated to assure and enhance your performance. Remember, the term is "reasonable" and another term to keep in mind is "disclosure."  What they know from what you tell them, and how they use that knowledge is subject to interpretation.  Please bear in mind that persons with disabilities have not fared well in the Supreme Court as of late.  I would be very cautious in raising claims that have little future chance of being sustained by a court somewhere.  Unfortunately, when people who feel discriminated against think of lawsuits as a way out, they fail to consider who their arguments must convince.  If you think only of another "reasonable" person, that is one thing, but it is not thinking far enough ahead.  Any time you raise claims or issues like this, you must ask yourself how it would appear to a judge somewhere.  That's your "audience," not your employer.

 

     Employment law and disability claims are an extremely tricky affair.  It takes an expert attorney to determine whether you have a case, and if you hear anything like "no," stop and think.  Normally, those folks get a 1/3 amount of the settlement, and unless your claim is huge, the aggravation and irritation involved for you may not be worth it.  They look at each case, even the big ones, as a dollars and sense issue.  Ultimately, the claimant should think in the same terms.  Claimants rarely reclaim jobs they lose because of discrimination.  Their most likely remedy is money damages as compensation for employer discriminatory behavior.  As righteous as the claimant may be on the "charging horse of principle," it's "principal" with an "a" as in money, that is the recognized form of relief in the civil court system in this country.

 

     The US Department of Justice, Civil Rights Division, has been loathe to enter even the big cases of discrimination, even though joining as co-counsel or even submitting an amicus brief takes little actual federal energy.  Attorneys in those departments are far more interested in settling matters short of filing suits than you would otherwise think.  This isn't only because they are "wimps," which many of US attorneys are, but also because they are "realists."  They know the case law on these kinds of claims, and it doesn't read well.  They count on the effect of a well-presented claim in civil court to embarrass the errant employer, and bring him or her to the settlement conference ready to cut a deal rather than have the ugly facts aired out in the open in a judge or a jury trial.  You'd be surprised at how sensitive some employers are to their community and industry images.  Things are tight right now in the job market, and gain a reputation as a discriminatory employer does little to attract good disabled OR able employees.

 

     It’s better to let a bad experience pass into history without ruminating about it, than nurse it and let your thoughts blind you to opportunity rather than "challenges" in successive job experiences.  Remember, rumination is a common AS challenge, and it is more pervasive and deep-rooted in women than in men, whether they are AS or not.

 

     You are right as well about the public record and a reputation that can follow you the moment you file a lawsuit.  The complaint and filing documents ARE public record, while the terms of settlement (which is the way 99% of these things are concluded) are rarely made a matter of open record.

 

     Not knowing the terms of settlements, most employers are understandably gun shy when considering an applicant with a proven reputation of being litigious.  It's no way to get a job, and a poorer way of keeping it.  If you are hired and they discover some time down the road that you have been suit-happy, they may find some plausible excuse to terminate you.  If performance under certain conditions has been a challenge for you, they'd get you around your weakest area, and hound you to death until either you quit or they fire you.  If they have to "fire," even though they are not supposed to tell the next employer, somehow the word gets around, and eventually you become blacklisted from the profession.

 

     I know that this kind of information is something you'd rather not hear, but it is better to be aware of your situation in the light of what is known and what is the current practice in the field of disability and employment law than to learn the lesson "too late" down the road of hopeful thinking.

 

     It's fair to say that right now courts are hostile to the employment-related claims of disabled people.  They have raised extremely high, many say arbitrary and unintended (by Congress) barriers to the exercise of rights identified in the ADA.  Until that situation changes through legislation in Congress (don't hold your breath with THIS Congress), the chances are getting narrower, not broader, for effective relief against discriminatory employers.

 

     For both of you, you may wish to seek the services of career counselors.  If stability and predictability, plus a simpler life style are what you seek, you owe it to yourself to ask whether your present line of work provides either.  From the look of things, it doesn't.  However, other careers are open to you both, and now may be a good time, when you aren't stressed out even more, to explore those avenues.  In your search, locate a career professional open to learning about Asperger Syndrome and High Functioning Autism.  Most professionals have little understanding about the impact of Autistic Spectrum Disorders on the day-to-day lives of working people.  You must be the educators to these professionals.  When it comes time to locating job developers who can assist you in finding a job, being placed, and being successfully retained, again you will have to roll out the books and the articles.  The responsibility is yours to be good self-advocates.

 

     Even if [your spouse] is happy with his present employer, his work is temporary, and if you become unemployed, you might have to face the prospect of becoming a temporary employee with no benefits as well.  That's the way the job market is developing, and whether we like it or not, employers are seeking out long-term contract relationships with temporaries as independent contractors or arrangements with agencies that supply temporary personnel.  They are doing this rather than adding additional permanent employees to their payrolls.

 

     It's a stupid arrangement, because in the end, these contracting methods cost them the loss of good employees.  They put a lot of money and time into training, and then watch those employees take a hike for better pastures and "real,” permanent jobs.  Even after repeated demonstrations that this is not a cost-beneficial way for a company to operate or grow, they still do it.  It costs easily twice, and often three times as much over the employment lifetime of an employee to treat the person as a temporary than as a permanent employee with decent benefits and the prospect of some permanency to the job.  The sad fact is that as long as employers only look for cheap, short-term solutions for a situation involving chronic shortages of key personnel, and there are temps out there to fill the slots, permanent-job seekers will remain second in lines that are getting shorter and shorter.

 

     I know we don't like change, but not liking it isn't going to alter the fact of life that this type of change has brought about. 

 

     We are the ones who must adapt to it.  The employers and the job market in general have already made the adaptations.

 

Copyright Issues

 

This article is copyright, all rights reserved by the author, Roger N. Meyer.  It may be reproduced in single copy once for personal use, and in no more than ten copies total for educational purposes.  Fair Use is authorized for all purposes and under conditions established by US Statute and the International Copyright Convention, to which the United States is a signatory nation.  No person shall publish, distribute, copy, or by other means make this material available to others for purposes of personal gain or professional self-aggrandizement.  Individuals wishing permission to exercise other than fair use or limited distribution as outlined above must contact the author, in writing, and receive explicit written permission from the author prior to engaging in further use of this material.


Go to the Top