Approximately 4.4% of adults in the United States have attention deficit hyperactivity disorder (ADHD). ADHD can present serious obstacles for employees in the workplace and students in public schools. The symptoms include inattention, impulsivity, emotional dysregulation, and low frustration tolerance. But even where individuals are able to successfully manage their ADHD, they can face discrimination in the form of stigma and negative stereotypes.
Does federal disability law protect individuals with ADHD from discrimination in the workplace and education? Yes, but only under certain circumstances.
The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, makes it unlawful to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12112(a), (5)(A). The ADA also protects students with disabilities in public schools (SeeThe Supreme Court ruling in Fry v. Napoleon Cmty. Sch.).
A disability is defined as:
- A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- A record of such an impairment; or,
- Being regarded as having such an impairment. See 29 C.F.R. § 1630.2(g).
To be substantially limited, an individual must be unable “to perform a major life activity as compared to most people in the general population.” Id. § 1630.2(j)(1)(ii). Major life activities include, but are not limited to, “learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). Additionally, the Rehabilitation Act prohibits entities that receive federal funds from discriminating against otherwise qualified individuals with disabilities.
ADHD Must Be Sufficiently Debilitating
In what situations does federal law protect an employee or student with ADHD from discrimination? An individual is not automatically protected by the ADA by virtue of having ADHD. Rather, the individual must show that ADHD substantially limits their ability to engage in one or more major life activities. See 29 C.F.R. § 1630.2(g).
For example, in Ugactz v. United Parcel Service, Inc., the New York District Court held that a man named Paul Ugactz had sufficiently demonstrated that his ADHD qualified as a disability under the ADA, where he submitted a form from his doctor that stated that his ADHD, along with his major depression, caused him to experience “problems with memory, focus, and hyperactivity”; made him “easily distracted” and experience “chronic sleep disturbance”; and interfered with “the major life activities of thinking, concentrating and sleeping.”
On the other hand, in Weaving v. City of Hillsboro, the U.S. Court of Appeals for the Ninth Circuit held that no reasonable jury could have found the employee disabled under the ADA on the basis of his ADHD. In that case, a former police officer named Matthew Weaving argued that he was disabled because his ADHD “substantially limited his ability to engage in two major life activities: working and interacting with others.” However, the only evidence Mr. Weaving presented regarding his ADHD’s effect on his ability to work and interact with others pertained to “interpersonal problems,” which was not enough. Instead, he needed to show that “his relations with others were characterized on a regular basis by severe problems,” such as “consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.” Plus, there was evidence showing that Mr. Weaving “was, in many respects, a skilled police officer,” which undermined his claim that his ADHD substantially limited his ability to work. As the court summarized: “Weaving’s ADHD may well have limited his ability to get along with others,” but “that is not the same as a substantial limitation on the ability to interact with others.”
Individuals seeking ADA protection based on ADHD should be mindful of their obligation to show that their ADHD substantially limits major life activities, like thinking, concentrating, sleeping, or interacting with others. Based on the Ninth Circuit’s Weaving decision, personality conflicts that are a result of ADHD might not suffice.
The ADA entitles individuals with ADHD to reasonable accommodations in the workplace and school. See 42 U.S.C.§§ 12112(b)(5)(A), 12131(2). Reasonable accommodations for an individual suffering from ADHD could include providing a less distracting work or study environment, permitting the individual to work from home some of the time, or allowing the individual to take periodic breaks.
Those with ADHD who are contemplating requesting accommodations should remember three things:
- An employer or school is only required to grant accommodations for an individual’s ADHD if that individual has disclosed the ADHD to the employer or school. See id. “There are no magic words for requesting an accommodation,” but the individual must “link” the need for the requested accommodation to the disability at issue (Trammel v. Raytheon Missile Sys.). Unless the individual discloses the ADHD to the employer or school, the employer or school is not legally required to provide any reasonable accommodations.
- “[The] ADA provides a right to reasonable accommodation, not the [individual’s] preferred accommodation” (Jennings v. Towers Watson).. For example, in Maples v. University of Texas Medical Branch at Galveston, a medical student claimed that she had a right under the ADA to “retake her exams or perform extra credit” on the basis of her ADHD. The court disagreed and held that the medical school’s decision to provide her with “extra time and a distraction-free environment for exams” sufficed.
- “[A] defendant need not make an accommodation at all if the requested accommodation ‘would fundamentally alter the nature of the service, program, or activity.’” (Powell v. Nat’l Bd. of Med. Exam’rs, quoting 28 C.F.R.§ 25.130(b)(1)(7)(i)). In Halpern v. Wake Forest University Health Sciences, Ronen Halpern sought to challenge his dismissal from his medical school by arguing that the school’s refusal to provide him with a reasonable accommodation for his ADHD led to his inability to meet the school’s essential requirements. The accommodation that Mr. Halpern sought was a “proposed special remediation plan, which included ongoing psychiatric treatment, participation in a program for distressed physicians, and continuing in the Medical School on strict probation.” Holding that this proposed accommodation fundamentally altered the nature of the program too much, the court reasoned that “the Rehabilitation Act and ADA do not obligate a school to permit a student to continue in an education program with the hope that at some unknown time in the future he will be able to satisfy the program’s essential requirements.”
Employees or students contemplating requesting accommodations for their ADHD should remember that (1) their employer or school is not legally required to provide accommodations unless the individual discloses the ADHD; (2) the law only provides a right to reasonable accommodations, not preferred accommodations; and (3) the requested accommodation cannot fundamentally alter the nature of the job position or educational program.
Facing ADHD Discrimination? Explore Your Options
If you have been discriminated against at work or school on the basis of your disability, you should consult with an attorney to determine what your legal options are. Sanford Heisler Sharp has experienced disability discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.