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Americans with Disabilities Act

November 22, 2010
Some not-so-obvious conditions, like mental disabilities, also covered

Since the Americans with Disabilities Act took effect in 1992, individuals with various handicaps are protected. Businesses are required to make reasonable accommodations for their customers and employees with disabilities. Dealers have a record of compliance when the disabilities are obvious. But sometimes they aren't. A guidance memorandum issued by the Equal Employment Opportunity Commission states "the ability to interact with others" is considered to be a "major life activity." Therefore, anyone who exhibits "consistently high levels of hostility, social withdrawal, or failure to communicate when necessary" can be considered to be disabled. A major concern when the ADA was introduced was its failure to define what constituted a "disability." That was left to the EEOC and the courts. Over the years, the EEOC added various forms of mental illness to the list of covered disabilities. The basics are not new: Don't ask questions about mental health in interviews or on job applications. In any pre-employment testing, all acceptable candidates for a position must be subject to the same tests. It is the "reasonable accommodations" that may present problems for dealers and create concerns for their employees. Some concerns arise from the fear of the unknown and a misunderstanding of the nature of mental illness. As a result, there often is uncertainty about whether the psychiatrically disabled person presents a threat to the safety of co-workers-especially if medication is involved. The EEOC also suggests how to accommodate employees who may be mentally disabled: 1. Rewrite the employee's job description to include only the essential functions. An employee who is unable to perform a job's essential functions, even with a reasonable accommodation, can be terminated. 2. Provide an opportunity for flexible hours, part-time work, job sharing, or working at home, if possible. 3. Allow employees to set their own pace. Supervisors, for instance, might break large jobs into smaller components and assign the components one at a time. 4. Try to minimize external interruptions like personal phone calls. Provide an accommodation by allowing more frequent breaks. 5. Improve the workplace ambience with things like "white noise" filters, improved lighting, and enclosed workspaces. Accommodations for physical disabilities have pretty well assimilated since 1992. There are some things, however, that dealers should keep in mind to alleviate resentment felt by non-disabled employees. Remember these observations: • Not all disabilities are easily visible. Some employees, therefore, might think others are being coddled. Don't explain too much. Instead, offer something like "We're complying with the law." • Keep all personnel files confidential. Any medical information should be kept on separate forms in a separate file. • Strict dress codes may be considered a violation of the ADA for mentally disabled people, the EEOC has warned. Indeed, it may be easier to accommodate mentally disabled employees than physically disabled staffers. Also, know that employers are not required to lower their performance standards on the essential functions of a job-another reason to have good job descriptions for all dealership positions. For a copy of the current EEOC Guidelines, call its publication distribution group at 800-526-7234.