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ADHD has been around for quite a while now, but the full impact of ADHD on individuals in the workforce is often not clear. Before we get into what it might mean for you as a recruiter, let’s take a look at the symptoms of ADHD as defined by BLR’s HR & Mental Health website:
- Poor ability to manage responsibilities such as household chores, paying bills, or organizing belongings;
- Chronic stress and worry due to failure to accomplish goals and meet responsibilities;
- Relationship problems due to not completing tasks, forgetting important things, and getting easily upset over trivial matters; and
- Chronic and intense feelings of frustration, guilt, or blame.
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Is ADHD a Disability?
Even knowing the symptoms of ADHD, there is still some ambiguity as to whether ADHD is considered a disability. The Americans with Disabilities Act (ADA) does not have an exhaustive list of medical conditions that are considered to be disabilities, but instead, the definition of a disability has been purposefully made broad under the U. S. Equal Employment Opportunities Commission’s (EEOC) Americans with Disabilities Act Amendments Act (ADAAA).
The EEOC defines a disability in respect to an individual as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Such a broad definition leaves a lot to be desired when it comes to nailing down whether ADHD is or is not a disability.
So what does this mean for ADHD? It means that, depending on the circumstances, ADHD may or may not be considered a disability that merits protection under the law.
Not the Answer I Was Looking For
Each case regarding ADHD is fact-specific and must be decided individually. Because there isn’t a statutory answer, employers must rely on the interpretations of courts or administrative agencies. For example, in Calef v. The Gillette Co., a worker with ADHD claiming a wrongful termination due to disability discrimination was found to be not disabled. In this case, the court found the employee did not have an impairment that substantially limited one or more of his major life activities because he had the same capabilities both before and after he was diagnosed and treated.
However, in another case, Wolfe v. Postmaster General, a worker was able to prove that he was wrongfully terminated. The employee was considered to have a disability at the time of his termination, and the ADAAA requires merely that the employer consider the plaintiff to have a disability to merit protection. The Act was applicable in this case because the employee had provided documentation about his ADHD to his employer before the trouble began. In other words, he was able to establish that he was unlawfully targeted because of his diagnosis and his employer’s perception that he was disabled.
So if you have an employee who has ADHD and you wonder if it qualifies as a disability, remember, the law is fuzzy in this area. The only “sure way” to find out is to let the courts or administrative agencies sort it out. Naturally, that route should be avoided if at all possible!
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Moving Forward
Because ADHD may be considered a disability on a case-by-case basis, it’s best to assume that it is one to make sure you don’t open yourself to legal action during the interview process.
Regardless of what stage of the interview process you are in, the following are true:
- Discriminating against an employee because of any disability, including ADHD—before an offer, after an offer, and while an individual is in your employ—is illegal under the ADA.
- ADHD is tricky to identify under the best of circumstances. Don’t assume that because a candidate is having trouble focusing it’s because they have ADHD. They might be nervous, or something else you never considered might be going on.
- If your candidate tells you outright that he or she has ADHD, then and only then can you begin discussing reasonable accommodations for the job in question.
Tomorrow we’ll dig into the differing rules for handling an interview with a candidate that might have ADHD before and after an offer is made. Plus, an introduction to an interactive webinar, College Recruiting: The Keys to Building a Productive Program that Attracts Top Talent.