Autism Spectrum Disorder and the ADA: New Conversations for Employers to Consider

By JAMES V. THOMPSON

A recent lawsuit filed by the EEOC against Otis Elevator Company alleges violations of and retaliation claims under the Americans with Disabilities Act (“ADA”) against a former employee based on Autism Spectrum Disorder (“ASD”) and attention-deficit/hyperactivity disorder (“ADHD”) impairments. U.S. EEOC v. Otis Worldwide Corp. , D. Mass. No. 1:23-cv-10612-DJC (filed 3/21/23). The lawsuit brings up interesting new questions for employers on what are reasonable accommodations for a person with autism, a mental—rather than physical—disability manifesting in social skills difficulties, and how do employers, especially in service industry settings, institute such accommodations in the workplace?

In Otis Worldwide, the employee was hired as an assistant mechanic by an elevator company in February 2021 and requested ADA accommodations in March 2021. The request included his treating psychologist’s certification of the ASD and ADHD diagnoses and explained employee’s “heightened sensitivity to loud ambient or vocal noises and its impact on his ability to think and concentrate.” Employee asked for reassignments to environments with “fewer competing auditory inputs, vocal or otherwise.” He received some work assignments not involving typical construction site noise and crowds, but was also assigned to more active construction sites. Meanwhile, employee sustained a foot injury in May 2021 and employer placed him on “light duty” with administrative work for two weeks, then on unpaid medical leave. Employee submitted medical notes clearing him to return to work without restrictions for the foot injury in late May 2021 through August 2021, and suggested possible reassignment to assistant mechanic. Employer’s own physician cleared him to return to work in September 2021. Employer then stated no assistant mechanic positions were available to accommodate his disabilities, though employee contends several positions for which he was qualified and which would have accommodated his disabilities were available. Employee ultimately resigned in November 2021 after several months on unpaid leave. Employee alleges employer failed to engage in a good faith interactive process and to provide reasonable accommodation and also retaliated against him for requesting an accommodation.

At this time, the employer has not filed a response to the complaint. Still, this scenario raises a question of what would be a reasonable accommodation for a worker with ASD.

“Qualified” Individuals and “Reasonable” Accommodations

Title I of the ADA requires covered employers to provide qualified individuals with disabilities an equal opportunity in employment-related matters and prohibits discrimination in employment on the basis of disability. Under the ADA, persons have a disability if they (a) have a physical or mental impairment that substantially limits one or more major life activity, (b) have a record of such impairment, or (c) are regarded as having a disability. The interpreting EEOC regulation states “an impairment is a disability … if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” The EEOC regulations include autism as such an impairment.

Further, the ADA protects “qualified individuals with disabilities” from employment discrimination. The individual must have the necessary skill, experience, education, and other qualifications to do the job as advertised or described. The employee must also be able to perform the “essential” functions of the job position, with or without reasonable accommodation. This protects from disqualification simply because a worker can’t perform incidental job functions, while it ensures a worker can perform the core components of the job. Nonetheless, an employer can still select the most qualified candidate available and make employment decisions on reasons unrelated to a disability.

Assuming the disabled claimant or employee is qualified, the analysis next moves to consider what is a “reasonable accommodation.” An accommodation is simply an adjustment to a job or work environment to enable a qualified individual with a disability to participate in the application process or to perform the essential job functions. But a reasonable accommodation opens a larger analysis: how much must the employer adjust or modify the job or work environment for the worker? Accommodations are considered “reasonable” if they do not create an undue hardship or a direct threat. The accommodation must seem reasonable on its face (i.e., does it appear feasible or plausible), and it must be effective to meet the individual’s needs. An employer is not required to find a job for an unqualified applicant, eliminate an essential job function of the position, lower quality or quantity production standards that are applied uniformly to all employees, or provide personal use items also needed off the job (e.g., glasses or hearing aids) or personal use amenities not provided to employees without disabilities. The only statutory limit is whether the accommodation is an undue hardship on the employer, and the employer must prove such. The ADA determines “undue hardship” on multiple factors: How much would the accommodation cost to implement or install? How extensive or disruptive would the accommodation be in the workplace? Would the accommodation fundamentally alter the nature or operation of the business? What resources does the employer have? In short—can the employer provide the accommodation relatively easily and still conduct business?

Evolving Workers, Evolving ADA Accommodations

The Centers for Disease Control and Prevention estimates 2.1% of adults in the United States have ASD. While that may seem a small percentage, the prevalence of ASD in children is increasing. A 2020 study estimated 1 in 54 children in the United States will have an ASD diagnosis; a previous study in 2000 had ASD diagnosed at a rate of 1 out of every 150 children. Employers, welcome to your future workforce pool.

Persons with ASD tend to have difficulty with social interactions and interpersonal communication. Autism manifests in sensory overload, such as overstimulation from lights and sounds, and social discomforts, like difficulty in speaking on the phone or attending large group meetings. These may not preclude a worker from being a qualified individual or render them unable to do essential job functions, but they are nonetheless impairments that trigger the ADA reasonable accommodation process. However, primarily mental disabilities such as ASD are much different than readilynoticeable physical disabilities, and studies have found that the public and employers tend to perceive them more negatively. Employers should be wary of these negative perceptions to mental-based disabilities to avoid potential discrimination or other ADA violations.

So what are potential reasonable accommodations for individuals with ASD? No definite list exists, but a growing number of options have been proposed for various employment circumstances:

Alternative lighting, noise-canceling headsets, timers, cubicle shields, and specialized computer apps for attentiveness.

Flexible schedules, modified break schedules, task flow charts, and visual reminders, written and simplified instructions, and verbal cues for concentration.

Job coaching and on-site mentoring for executive functioning deficits. Anti-glare and blue light filters, light filtering glasses, and cubicle shades for photosensitivity.

· Alternate communication technology, fans, and sound absorption panels for noise sensitivity.

· Air cleaners, carpet and flooring alternatives, low-odor paints and chemicals, masks, and remote work/telework for respiratory distress.

All these suggestions and more are already available on the Internet as resources for persons with ASD, along with templates on how to request accommodations and trigger the ADA interactive dialogue process. While reasonableness of these proposals may be questionable in certain circumstances, they are becoming more commonplace in the ADA conversation. If employees and job applicants with ASD, plus governmental agencies investigating ADA violations, are aware of these potential accommodations, then employers faced with ADA accommodations requests based on ASD should be aware, too.

Finally, the risk of penalties and lawsuits over ADA violations is also a good reason for employers to stay alert. The Otis Worldwide lawsuit is not a novel situation. Other ADA employment violation claims involving autism have hit employers with negative impacts:

An Arizona Subway franchisee in 2022 paid $30,000 to settle allegations that it failed to accommodate a newly hired employee with autism and ADHD, after the employee applied, his mother explained to the manager his autism diagnosis and need for accommodations (specific task instructions, repeated instructions, redirection, and supervision). The employer hired the man but allegedly didn’t give any formal training or provide the requested accommodations, then fired him after his fourth shift.

· A New Jersey company operating several McDonald’s franchises paid $100,000 in 2022 to settle a lawsuit over allegations it terminated an employee because of his ASD disability, even though he the restaurant. The company took over that particular McDonald’s restaurant and 2 months later abruptly terminated the employee, a grill cook.

· Party City Corporation agreed to pay $155,000 in 2019 to settle an ADA failure to hire lawsuit involving a job applicant with ASD who required a job coach as a reasonable accommodation. The ADA violation regarded the hiring manager’s disparaging comments at the interview in the presence of the applicant about both the applicant and previous employees who used job coaches.

· A woman with autism filed suit in North Carolina in 2021 against a compliance management and screening company, claiming her termination for alleged “unprofessional” communication on the company’s instant messaging platform violated ADA because the autism limited her ability to communicate and respond as expected. The employee claims she asked for help understanding what was considered unprofessional and claims she was told that even her asking that question was unprofessional itself. Around the same time, the employee asked to work from home and for a medical leave of absence for unrelated medical reasons. The employer disputed the claims and the case later resolved with an agreed dismissal.

Today’s employer must be prepared to address the concerns and legal rights of today’s workforce. With employees and job applicants increasingly affected with ASD, employers will need to consider new alternatives for reasonable accommodations. Hopefully those new alternatives can lead to an efficient and effective workplace for all involved.

James V. Thompson, Attorney Rainey, Kizer, Reviere & Bell, PLC jthompson@raineykizer.com