In an article in The New York Times today, I wrote about the quandary facing those with hidden disabilities in terms of disclosure in the workplace. Many experts advise nondisclosure under most circumstances. Unintentional discrimination starts with the application process.
You can read the article here: Quandary of Hidden Disabilities: Conceal or Reveal.
I'd like to print an interesting letter I got this afternoon in response to the article from Roland Behm, an attorney living in Atlanta:
"The last paragraph of your article brought to mind the following quote from Justice Kennedy, in his concurrence with the 2001 decision of the Supreme Court in Board of Trustees of the University of Alabama v. Garrett:
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. … There can be little doubt … that persons with mental … impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.
I believe that bias against persons with hidden disabilities is more than benign neglect or ignorance. Your article referenced a question used in a pre-employment assessment that, answered honestly by a person with Asperger's, would be considered an "incorrect" response. Many of these pre-employment assessments incorporate personality tests that, intentionally or not, screen out persons with mental illness - including persons with Asperger's, veterans with PTSD, new mothers with postpartum depression and college students with bipolar disorder. Tens of millions of these assessments are submitted and analyzed each year, usually by a third-party company like Kenexa or Kronos.The EEOC has been attempting to investigate the Kronos assessments used by Kroger and, for more than five years, litigated over the agency's right to information on the assessments from Kroger and Kronos. After multiple district court decisions and two appellate decisions, Kronos and Kroger have been ordered to provide almost all the information requested by the EEOC. Why such a costly and time-consuming fight over data and information? From filings in the litigation, it appears that Kronos has no validation studies demonstrating that the assessments do not discriminate against persons with mental disabilities. Ultimately, it might be determined that the personality tests are "medical examinations," the use of which in a pre-employment context is illegal. If it is a medical examination, each applicant, not just those persons with a mental disability, have a claim against Kroger (the employer is liable under the ADA, even if a third-party assessment is utilized). Kroger and its related companies have used the assessment on millions of applicants over the past few years and the potential risk exposure is quite significant. "