An AIS client who is an attorney kindly sent us the following text to explain the Americans with Disabilities Act and how it pertains to people who stutter.
What is the Americans with Disabilities Act (ADA)?
The ADA applies to private employers with 15 or more employees, state and local governments, employment agencies, and labor unions. In short, the ADA prohibits discrimination by these entities against qualified individuals, on the basis of disability, in job application procedures, hiring, firing, advancement, compensation, training, and other terms and conditions of employment.
As a stutterer, why should I be interested in the ADA?
Recent amendments have broadened the scope of the ADA. If there was any doubt that stuttering was a disability under the ADA, these amendments may change that. The statutory language is encouraging, although these amendments are so new that they have not yet been tested in the courts.
These amendments became effective on January 1, 2009. While it is unclear whether these amendments would be retroactively applied to claims concerning conduct that occurred before that date, it is unlikely.
Am I covered by the ADA?
The ADA covers qualified, disabled individuals. An individual is disabled if he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.
There are a variety of major life activities listed in the statute, including speaking and communicating. In order to be substantially limited, you only need to have one major life activity affected by stuttering, not multiple activities. This means that if you are a stutterer, who is substantially limited in the major life activity of speaking, you may be considered disabled under the ADA.
The determination of whether or not you are disabled must be done without regard to the ameliorative effects of mitigating measures, such as hearing aids or insulin. For example, if you wear a SpeechEasy, and speak more fluently when doing so, it does not mean that you will not be considered disabled simply because the SpeechEasy makes you less impaired when it comes to speaking.
Also, disabilities that are episodic will still count, as long as they are defined as disabilities when they are active. This may mean that a person, who has periods of fluency and periods of disfluency, still may be considered disabled, even during a fluent period.
An individual is “regarded as” disabled if the individual establishes that he or she has been discriminated against because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. This part of the ADA addresses the fact that society’s fears and myths about disabilities can be just as handicapping as the physical limitations that flow from the actual impairments — something stutterers know all too well. Therefore, if your stuttering does not actually substantially limit your ability to speak, you still may be protected, if your employer discriminates against you because he or she believes your stuttering is a physical or mental impairment.
In order to be qualified, you must be able to perform the essential functions of the job — with or without a reasonable accommodation provided by your employer. The law requires that an employer make a reasonable accommodation to the known disability of a qualified individual. Therefore, you are responsible for asking for a reasonable accommodation; you must make your employer aware if you need a reasonable accommodation to perform your job. For example, in some cases, an employer may provide a reasonable accommodation to a stutterer, by allowing them to communicate via e-mail, rather than via the telephone. Note that individuals who only are “regarded as” disabled are not entitled to reasonable accommodations.
When I am applying for a job, may an employer ask about my stuttering?
No. An employer may not ask an applicant about the existence, nature, or severity of a disability. An employer may ask, however, about the applicant’s ability to perform specific job functions.
This information does not constitute legal advice or a legal opinion. It is not intended to be an exhaustive or complete summary of the law. It is only designed to give general information. Please consult your own attorney if you have any questions or would like legal advice or a legal opinion.