LAS VEGAS — As the talent market continues to contract, it behooves employers to make their talent strategy inclusive to workers with disabilities, a talent pool traditionally overlooked, according to presenters at the Society for Human Resource Management (SHRM) 2019 Annual Conference. But to hire, employ and retain employees with disabilities, workplaces will need to grapple with their unconscious biases and comply with related requirements created by federal and state laws.
Below, HR Dive lays out three important lessons on employing workers with disabilities presented at the conference.
#1: Fight unconscious bias toward people with disabilities
Everyone possesses unconscious biases. "In life, we start with all this data and information. At some point, we begin to select certain data," Susan W. Brecher, director of employee relations and employment law of the Scheinman Institute at Cornell University's ILR School, told attendees at the conference. "And once we select it, it leads us to assumptions."
These assumptions don't disappear over time. Instead, they inform decisions — including employment decisions, she said: "Bias clearly impacts productivity, morale, attrition, and it clearly impacts discrimination claims."
HR professionals, company leaders and employees can work against their unconscious biases. "Change cannot occur without recognition. That's your starting point," Brecher said. "If you're not exposed, you are starting out with this type of bias. If you have never experienced an individual who uses a wheelchair, you may start out with that bias."
HR departments can start to mitigate the effects of unconscious bias by educating their employees about it, Brecher said. Employers should make sure their unconscious bias trainings incorporate information on people with disabilities — more often than not, they fail to do so, according to Judy Young, associate director of the Scheinman Institute.
But the best way to address peoples' unconscious biases against people with disabilities is to hire people with disabilities, Young said. "Provide opportunities. The bias will disappear," she told attendees at the SHRM conference.
#2: Get creative to accommodate invisible disabilities
Of the 20% of Americans who have disabilities, 72% of them have disabilities that are not visible, Brecher said.
Some of these invisible disabilities range from anxiety and depression to attention deficit disorders, diabetes and fibromyalgia, according to Ogletree Deakins Shareholder Lara C. de Leon. Sleep disorders such as sleep apnea, autoimmune disorders such as lupus and arthritis, and learning disabilities such as dyslexia also fit into this category.
Workers with some of these disabilities may present HR and managers with an accommodation challenge, but it's one they can meet with an innovative spirit, de Leon told attendees at the SHRM conference. "You have an opportunity to be creative here and not just go 'pshaw' or 'suck it up,'" she said. "It's kind of easy if you just think about solving the problem without going overboard with it."
For employees who have disabilities that hinder their concentration or memory, for example, employers may want to discuss how an enclosed work space could help them. Maybe the employee would benefit from a pair of noise-canceling headphones, de Leon suggested. Managers could collaborate to provide the employee with a modified break schedule to maximize his or her focus. For an employee struggling to remember details of meetings or verbal instructions, a manager could appoint that employee or another to take notes and send out emails recapping team conversations and assignments, de Leon said.
#3: Assume and accommodate: an ADA overview
In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA). It expanded the ADA's definition of disability, broadening it to cover more people. The act also offered employment lawyers a handy mnemonic device. The ADAAA really stands for "Assume Disability And Attempt to Accommodate," de Leon joked with attendees.
Of course, the law and its amendments are more complex than an acronym can convey, but it communicates the basics.
"Disability has a super technical definition under the ADA," de Leon said. "My rule of thumb for HR professionals is don't get into the weeds over who is disabled under the ADA." The ADA defines disability as any physical or mental impairment that substantially limits one or more major life activities. Rather than grapple with this definition, de Leon suggested, HR professionals should focus on determining and providing an accommodation.
...Attempt to accommodate
A reasonable accommodation is any change in the work environment provided or allowed by an employer that enables someone to do a job. The ADA obligates employers to provide employees with disabilities accommodations that enable them to perform the essential functions of their jobs unless doing so would create an undue burden, de Leon said. There's a reason why employment lawyers generally encourage employers to provide accommodations: "Undue burden is a very, very high, high bar that employers are generally not going to meet," de Leon said.
There are some circumstances, however, that are truly unreasonable. For example, an employer does not need to hire someone to do another person's job as an accommodation, de Leon said. But, generally, employers should attempt to provide an accommodation. Doing so may pay off if a situation gives way to litigation: "As an employer, you get points for trying," de Leon said.
When to accommodate
Those in HR and management will want to prepare themselves for several situations that may indicate an employee's need for an accommodation, de Leon said. An employee may bring a request for accommodation to HR or to a manager on his or her own initiative, of course, but it's more likely that the need will be exposed in another way.
A worker may mention being stressed out or even needing to go to rehab — comments such as those should tip off HR and management to a potential need for accommodation, de Leon said. Employers may observe a change in behavior that indicates an employee struggling to perform due to a potential disability. If a stellar employee suddenly fails to make several big deadlines, a manager can intervene and offer to provide help. "It could be something. It could be nothing," de Leon said. "Ask those questions."
Employers will want to prepare themselves to receive an accommodation tip from others, too. A worker may observe that a colleague has made uncharacteristic comments, de Leon said. A family member of an employee may call into HR to let it know that they struggle with a disability.
How to accommodate: 'Avoid saying no'
Employers may find comfort in knowing that the ADA doesn't require them to make every effort to accommodate. But remember, de Leon said, a jury may one day be tasked with reviewing your effort. "You don't have to do everything you can do under the law, but what's a jury going to say? That's a high standard," de Leon said.
When an employee asks for an accommodation, HR and managers may be tempted to deny it, especially if the request is outlandish. "Avoid the knee-jerk reaction of 'oh, heck no,'" de Leon said. Employees sometimes ask for things — a comfort pig, a bouncy ball seat, five breaks a day — that make employers gasp, de Leon said. Before saying no, engage the employee in a discussion.
For employers operating in California, this discussion — called the interactive process — is a mandatory one. The ADA, however, does not legally obligate employers to engage in the interactive process. They should anyway, de Leon said. "You do get an A for effort in this area of the law," she said.
So instead of saying no to an employee's eyebrow-raising request, interact. "You can say 'No' later, after you interact. At least go through that process, right?" de Leon said. First, collect all relevant information from the stakeholders in the situation — the employee, the doctor, the manager. Liaise with all parties to find and propose a solution. "If the employee rejects the accommodation, they need to get over it," de Leon said. "You did your part."
Once an accommodation has been implemented, HR should remember to follow up, de Leon said: "Check back in a month — keep that door open so you can go back and change it if it's not working out."
Correction: A previous version of this article misstated the year Congress passed the Americans with Disabilities Act Amendments Act. Congress passed it in 2008 and it went into effect Jan. 1, 2009.