Reasonable Accommodation vs Privacy: Challenges of an Ability-Centered World: Choose Privacy 2019

by Jayanti Addleman

Any time I address an issue I feel strongly about, I have to start with the disclaimer that these are my personal opinions, and may or may not reflect the policies and opinions of current or past employers. This is simply because I tend to get very passionate and carried away about causes, and when I am truly inspired, I may question the status quo. Though, to be clear, I do always obey the laws.

From the start of my professional career, long before inclusiveness was part of our everyday argot, and even before the Americans with Disabilities Act was enacted in 1990, I felt strongly about the need to hire people with disabilities. This was largely because I had grown up in a developing country where the presence of disabled people was common, but job prospects, services available for living independently, or opportunities to participate in everyday activities outside the house were almost nonexistent. The many services like wheelchair ramps, closed captioning, and TTY services that I came across even in the early 1980s in the US excited my imagination with the possibilities. I thought of all the friends and relatives from my childhood who had struggled to bring normalcy to their own lives and those of their loved ones who were living with disabilities.

The passage of ADA in 1990, though it had its roots in the earlier Rehabilitation Act of 1973, was a game changer like none since the Civil Rights Act of 1964. Suddenly we were adjusting our workplaces and public spaces to be inclusive in a way we had never been before; we were widening aisles and smoothening ramps; we were enlarging bathrooms and bringing in Kurzweil readers. And all was progressing well as we expanded our candidate pools and brought more diversity into our workplaces. We were giving everyone a chance to perform to their potential.

Then, slowly, while we were reaping the benefits of the new order as a society, the rumblings began. The resentments and the mutterings. The whispered accusations and the lawsuits. Suddenly supervisors were scurrying over to their HR divisions, only to be reminded of the very reasonable expectation of “reasonable accommodation” over and over. And not much else by way of guidance.

The ADA is, in the end, about our dignity as human beings. However, when “reasonable accommodation” requires delving and poking into an individual’s life, when reasonable accommodation and a person’s right to privacy are running counter to each other, suddenly, the years of shiny progress begin to feel quite tarnished.

If an employee has a visible accommodation like being in a wheelchair or carrying a white cane and they are willing bring up the issue of the need for accommodation in the workplace, then it is easy enough to adjust our ability-first environments. The challenge, of course, is when a disability or unique need is not openly discussed or visible.

Everyone has the right to share or not share specific aspects of their identity and to deal with those aspects as they choose. But what if you have a partially blind coworker who will not ask you for assistance in, say managing the production of a newsletter? They use a voice to text program that repeatedly makes errors in transcribing their dictation. In the interoffice communications this is not an issue since everyone can understand what was intended, but not so in the communications that are going out to the public, which should be accurate and, perhaps, also beautifully laid out. What is the supervisor to do?

What if you have a long term employee whose hearing is obviously failing? Coworkers are complaining and resentful of having to carry his workload. He cannot hear the telephone or disruptive patrons, or he misses half the discussion at meetings and gives responses that are unrelated to the question the user asked.

I could take the employee aside and have a private discussion and mention the issues that the coworkers are facing or I could ask if they need help. I could even offer to adjust assignments when possible. Instead, we are sternly warned against having a simple heart-to-heart conversation that actually protects their privacy. We are told to go the “performance route.”

This is a step that really irks many supervisors.

Yes, I understand about not forcing an individual with a disability to accept accommodations they don’t want. I also understand about not diagnosing problems when I am not a doctor. But I seriously wish there was something like a Good Samaritan law – and no, management rights don’t cut it – through which I could have a simple, private discussion before I must start documenting that an otherwise excellent employee is no longer performing to expectations. And, even after documenting the so called poor performance, the supervisor must then wait for the individual to request an accommodation, or for them bring up their temporary or permanent disability before helping. And then, after all else fails, the supervisor can impose a fitness for duty exam.

I understand privacy protections and the right to respect and dignity. I also understand that sometimes the performance route or fitness for duty may be the only option. More often than not, however, our way of reaching a place of reasonable accommodation for people with disabilities can be long-drawn, extremely intimidating and intrusive, and involves multiple supervisors, peers, or managers, and also HR and the legal departments. Quite the opposite of respecting privacy!

Not so long ago I made a comment at work about how productive one of our branch managers was. She had more than quadrupled the number of programs at the branch, she was doing outreach on a regular basis, had increased the Friends of the Library fundraising, and had built excellent esprit de corps among the branch staff. This branch manager was also in a wheelchair. Another staff member turned to me in a huff and said, “Why wouldn’t she be a high performer? She’s single and has no kids to distract her!” I could have hugged the aggrieved coworker. She had hit on my dream: that workers with disabilities should, once we’ve leveled the playing – or working – field, be judged just like their other coworkers or peers, who all have their own unique characteristics.

Let’s have conversations to find a way to bridge this gap between privacy and reasonable accommodation, not just for our coworkers but also for our clientele. Let’s find a balance between intrusive judgment and commonsense. Until we reach that sweet spot, please continue to reach out to your organization’s HR, Legal, Equal Opportunity or Civil Rights Office. Read your personnel manuals and your MOUs. But whatever you do, don’t take anything I have said as legal advice. These are just the outpourings of person with a passion.

Jayanti Addleman recently became the Library Director at Hayward Public Library and was the director at Monterey County Free Libraries for 12 years prior to that. She was on the Equal opportunity Commissions at Monterey County for 6 years, and is a strong proponent of making workplaces comfortable for all staff to work effectively and efficiently.