The "Reasonable Accommodation" issue

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How many job descriptions do not require "excellent communication skills"?

The detailed job description should detail what communication will be necessary whilst working, provided the employee can manage that then it will be harder to dismiss them.

I had a job application process where getting hired did not constitute the normal "pass/fail" nomenclature, but they invoked the words "satisfactorily complete." As a law student, I realized what they had done. They left themselves a way to refuse to hire a person who PASSED everything they were subjected to because while the applicant passed all the objective tests, hiring was contingent on a subjective standard that was undefined.

I don't know if a court would have upheld such a policy should someone turned down for no good reason was to sue, but the language used in the conditional offer of employment nullified any overt expectation that the job was automatically granted if the applicant PASSED the remaining steps in the hiring process.

Hmmmm...ah yes, this alludes to the famous Aspergian chasm between theoretical smarts and practical smarts.
Kind of eerie, but I wonder if an Asperger-related incident encouraged them to insert that clause??
Like maybe they fired someone on the spectrum who had top-notch scores on the written test, but couldn't seem to navigate the unwritten expectations - then he disclosed, so...makes you wonder...

Maybe.

What I suspected then, and now, is that they offered positions initially after the oral board interviews. Background checks came next, and the examiner worked with a thick packet you submitted at your oral board interview. So, odds are they offer the job BEFORE they know anything about you other than what happened at the interview.

Now, you might pass the background examination in that there is no valid reason to fail you for the position, BUT they might learn stuff about you that makes you "unpalatable" for them to hire. In short, they offered the job before they really knew who they were hiring and they want to leave a way out of their commitment that needs no validation other than they simply changed their mind about hiring you.

It was really crappy because everything they did in the conditional offer, including the timetable from the final week of testing to having to report for day one within seven days of being offered the job, indicated that they took the whole thing very seriously, and I would have only expected that from someone who had every intention of hiring me.

If all they wanted was a commitment that I would accept the job if it was offered, they SHOULD NOT have made a conditional offer of employment but rather call it a commitment agreement where they said they wanted to consider me further but ONLY IF I would definitely accept the position if it was offered (to try and weed out people who were not committed). At least that would not have created an expectation that if you pass everything else, you have the job.

At what point do you ask for accommodations? That should be something you could discuss with a company before taking a job, but we don't live in that perfect world. Competition for just about any open position is tough, the last thing you want to do is start making demands (as reasonable as they may be). Why hire someone who requires accommodations while there's no shortage of candidates who don't?

Even if you wait until you actually have the job, if you live in an at-will state, you can still be fired without explanation. The burden of proof would then be on you, the employee, to show that you were fired specifically because you have a disability.

As far as co-workers go, I spent a summer as a "customer service representative" at a gas station. After someone else quit, they hired on a middle-aged woman. I don't know if she was disabled, but she couldn't stand for prolonged periods and required a stool. Either way, disabled or not, she wasn't well liked by her co-workers, most of whom were on their feet for the entirety of their 8+ hour shifts. Granted, everyone there was pretty hostile when another employee needed time off due to a back injury, but point is, it's a little naive to assume that everyone will just "get it".

Having said all that, I don't think there's anything wrong with requesting accommodations. I believe if you need accommodations, you should be able to request them without fear of losing your job or being ostracized by coworkers, but it seems like, too often, that's not the way it is.

The trick for this is simple.

Requests should be made in writing, delivered via certified mail where the recipient or their agent must sign for it (otherwise the postman will just indicate what date it was delivered at the address). Ideally, the accommodation request should be drafted by an attorney who will take your needs and more effectively communicate them in the letter to your HR manager/employer.

Then, if you are demoted or fired, the EEOC (USA) should see a prima facie case of an ADA violation. Whenever something happens AFTER notice is given, it is presumed to be retaliatory, and even in an "at will" state, the employer has to document that your demotion/reassignment/termination was not the result of being notified of your disability. The hard part is always in proving that your notice preceded the employer's actions.

A certified mail letter being sent by an attorney is fairly bulletproof because the return receipt confirms that it was delivered on a given date to the addressee and the testimony of your attorney trumps anything the employer wants to claim happened because your lawyer is an officer of the court.

I've derived this strategy by watching what minorities do to exploit affirmative action/equal opportunity laws to lock in their jobs when they are in danger of being terminated for poor performance. By filing a complaint for discrimination, even if it doesn't really exist, with the EEOC the put the employer in a position where they can't be fired without it looking bad for the employer. They don't just say "discrimination," they go and get the paperwork rolling with the authorities BEFORE they say a word to the employer so they are untouchable.

Any time you go to the employer first and informally let them know you have needs or that a discriminatory act has happened, they can fire you and claim your discharge was for any other reason and blatantly deny that there was any issue you brought to their attention...it becomes your word against theirs, and the courts, for the most part, take the employer's side. A local attorney who specializes in discrimination cases told be blatantly that you have to have the "smoking gun" just to have a chance of getting the employer in court.

That is probably one of the hard questions to answer. A candidate who does not need any accommodations would probably be chosen in preference to one who needs substantial adjustments (although that would not be the reason for the choice.

I think I would decide based on whether the employer advertises itself as being "disability friendly" as the requests for changes are more likely to go to sympathetic ears.



Did she do less work when on shift (in comparison to a able bodied coworker)?

If all she needed changed was a stool to sit on when serving customers that would be more than reasonable. If she had to avoid some tasks such as stocking shelves (most of the petrol stations round here are also convenience stores) her co-workers would be justified in complaining since they had to do some of her work.

The trouble with disability accommodation requests for "hidden" or more complex disabilities such as Aspergers requires education and/or sensitivity training amongst the other employees. It's not like being physically handicapped, or deaf, or heck even dyslexic. The company may invoke the "undue hardship" clause on these grounds - they could argue that it's not sufficient to provide you with a list of unwritten rules of company/dept culture, proper communications etiquette and tone given your audience or situational context, etc, they would also have to educate others to interact with you in a certain way. And even if this didn't push them to invoke the "undue hardship" clause, what would likely result would be a backlash amongst your co-workers of harassment and exclusion to get you out, i.e. gang up on you.

A few years ago, I told a handful of co-workers that I had Aspergers Syndrome explaining what it was, since not one of them knew about it. It didn't change their approach towards me - I could clearly see they didn't read up on it. One colleague who tried to drill street-smarts into me kept repeating 4-5 times over things like not to send someone an email until X event, or say it a certain way and not to copy Joe, etc, b/c it would be perceived as [insert a negative]. He could have just said it 1-2 times and I would have understood. Conclusion: said co-worker automatically assumed I had ADHD b/c I was "impulsive" and "don't listen". When the reality was I just didn't see how others would perceive my email given the situational context and didn't instinctively process what variables to pay attention to. Hence the need for education and awareness training, telling them you have Aspergers doesn't cut it (whether you tell them, or the boss does).