The "Reasonable Accommodation" issue

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As an Aspie man, I want to share with you a story I read about Mr. Mark Jakubowski, an Aspie med student in the USA who was terminated as a medical resident due to communication deficits, creating unnecessary panic and what not. After disclosing, he was offered a job in pathology where patient interaction would be minimal, but he insisted on "reasonable accommodations" consisting of "knowledge and understanding". After his let-go, the employment tribunal found his request too vague - I have to agree - but I feel very sad that Mr. Jakubowski put in so much time and effort and resources to have it culminate in this b/c he didn't know how to articulate his needs despite having obvious talent and aptitude as a doctor.

http://www.thompson.com/public/newsbrie ... AW&id=3288

Now here in Canada, the same principles apply: the burden of proof is on the employee to show that they can provide an accommodation request without imposing undue hardship on the employer. It has to be a concrete request, such as for written instructions or guidelines. An employer cannot fire you for disclosing the disability or retaliate for requesting the accommodations without giving it due consideration.

But it can be a fine line. So far, to my knowledge, there hasn't been a precedent in any country for a case of denial of reasonable accommodations being upheld with damages awarded. And why is that? Probably because nobody wants to touch it. True, each situation is unique to some degree, but someone in the next accommodations dispute could easily cite the precedent and the parallels to their case.

Of course, some accommodations can't be granted. Clearly, someone who is in a wheelchair could not be a firefighter, and someone with moderate-severe dyslexia couldn't be a journalist. For an Aspie, just consult one of the other threads on jobs that an Aspie should avoid, for ideas.

In the case of Mr. Jakubowski, perhaps he could have asked for a written list of the most common situations and prescribed responses, emphasizing his high medical skills & knowledge and that he just has "dyslexia" when it comes to reading situational context. I also pondered the idea of watching training videos of other resident doctors interacting w/ patients- but that would probably violate patient-doctor confidentiality, unless they got the patient to agree to taping it for med-school purposes...aaargh.

So, it's very subjective as to what constitutes "reasonable accommodations" - a boss of a certain personality type may say all-or-nothing. In other words, an employer could claim that somebody else would basically be doing the subject's job for them by acting as a "translator" from blunt-speak to more sensitive communication. That may well have been the result for Mr. Jakubowski even if he'd expressed his needs more pointedly as suggested, but I guess we'll never know.

I've recently fallen victim to this one! Finding myself struggling at work I asked for 'reasonable adjustments', and spelled out quite clearly the help I thought I needed. I was very careful to present a scenario which I thought could actually be seen as a 'win-win' situation. The diocese engineered my retirement on full pension on disability grounds, and my Union told me that what they had done would be accepted as 'legal' if I took them to a tribunal. That was the end of a 32 year 'career' in full-time church ministry.....

The pathology position sounded like a reasonable accommodation to me. Taking a job working with live patients doesn't make sense if you can't communicate well. For that matter, why would you even apply for a position you are not capable of performing. It's not fair to the employer or the clients/customers/patients, to fill a job you can't handle. And, it's not fair to the employer to give them a hard time about it when they rightfully refuse to give you the position you can't handle. The employer has a responsibility to the customers to provide workers who can work effectively with the customers. In this instance they did come up with a reasonable alternative. The man should have been grateful and should have taken this fair alternative. Maybe he can become more communicative over time, while working in Pathology, and later on transfer to live patients. However, until he is better at communicating, he has to take work he can handle, and not get upset at being refused jobs that are beyond his current ability.

I hope he reconsiders their Pathology offer. Remember, we on the spectrum are all:

A Different Drummer

If a man does not keep pace with his companions,
Perhaps it is because he hears a different drummer.
Let him step to the music which he hears,
However measured or far away.

--Henry David Thoreau

I'm sorry to hear about Mr Jakubowski but I agree that his request was too vague.

I've recently had to jump through a number of hoops at work to get reasonable accommodation at work and the only thing that they are willing to offer is that I don't have to attend social events at work.

This is despite telling them what NAS considers reasonble adjustment.... *sigh*

A bit late for Mr. Jakubowski, but what he could have done, and what other Aspies with doctor aspirations could do, is don't underestimate what you can gather from TV & movies. I used to watch teenager & young adult movies from the 90s to get a handle on how to "communicate cool", and it seemed to have worked well. Likewise, someone could be proactive and watch episodes of general hospital or whatever during their medical studies to observe how the doctor interacts with patients, even mimicking them in the mirror after (as long as no-one's around ).

I know that sounds like a bit of an oddball strategy, but hey, it has been known to work...

When I worked at the hospital I drove everyone crazy when I coined my own words for medical terminology.

Wow, that is SO like my family! Having now moved to France, I've cursed the day all those years ago when my dad introduced me to the cod french of Miles Kington's book 'Lets parler Frangais' - a wonderful joke for an Aspie father and son, only words from it now keep surfacing in my mind when I try to speak the Real Thing today.

And the French are baffled when I refer to my pocket electronic French dictionary as 'Le Frangulateur'....

at work if my partner can only speak Spanish I have to guess what the words are.

I would expect the employer would want full details of the accommodations needed before they can commit to them. They will need to work out the impact these would have in terms of cost, impact on other staff, reduced productivity.

They may be concerned that if they agree the list of accommodations will keep increasing to the point it is unsustainable.

I would suspect that most employers would object to having to employ two people instead of one (the exception to this would be when the person needing the assistance is so well regarded in their field that it is worth getting them an assistant, although they would be likely to have a secretary etc. when they reach that stage)

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I suspect that part of the problem is that AS is a non-physical condition, so it will be harder for the employee to justify some of the changes.

Most businesses are short of space and other resources. If an employee says they need to be in a room of their own (this would apply more to an office job) the only individual room in some offices may be being used by the boss.

It is important that the requests do not seem to put extra work onto colleagues as this will quickly cause resentment, it may be possible to swap tasks so that everybody ends up equal.

In many hospitals clinicians work as teams so a Nurse translating an autistic Doctor's blunt speak would not be a problem as long as they make a good team. As the Doctor gains experience in patient diplomacy he will learn to become more sensitive.

Those are three variables that are not quite as imposing as one might think

a) cost - virtually nothing, if the Asperger employee is provided with a list of the unwritten rules, e.g. do not send documents out to people outside your dept until your colleagues within the dept review it, do not take on tasks that overlap into someone else's role, etc (I have been tripped up by these in the past, and improved, but still relapse once in a while).

b) impact on other staff - I would say that, with a bit of enlightenment from other staff, they should be able to see the big picture that the Aspie employee will actually do better with the accommodations, and there is no unfair treatment, since the other employees are instinctively aware of unwritten norms & the "common sense" of interaction, so the Aspie is not being provided with anything they didn't already have.

c) Reduced productivity - if anything, it's on the contrary - having the unwritten norms as a framework spelled out would amplify the ASD employee's productivity. Unless one of their bigoted co-workers took it upon themselves to sabotage them...but that's for another thread.

It also helps to have a "work buddy" somebody to consult with on street-smart issues, but only as a secondary resort after first relying on the framework/list. After X period of time, one could see if there has been improvement in the Aspie's good judgement exercised in the workplace.

I would encourage those of you reading this to take a look at Barbara Bissonnette's "Forward Motion Coaching" guides, from her web page - she is a professional coach who specializes in helping Asperger employees, and liaising with employers. She talks about accommodations as well.

It's easier just to fire the autistic worker than to provide accommodations.

That's the reason why the ADA in the USA has done more to hurt disabled people than help.

Employers are not in business to take on liabilities. The "reasonable accommodation" standard of the ADA is rightfully set in that an employer determines what is "reasonable." The last thing we need is a court deciding what constitutes reasonable because there can be no uniform standard. What would work at Apple or IBM won't work at the corner market.

However, that means a person with a disability can't know when they have a legitimate case or not for discrimination.

More so, the whole problem with the "reasonable accommodation" rule is that it sets no clear black-and-white rules of what is right or wrong when dealing with employees with disabilities. The ADA has only helped people with "obvious" and "physical" disabilities because accommodating someone who is blind, deaf or unable to walk without braces, crutches or a wheelchair is relatively straightforward as compared to someone with a hidden disability or a disability that can come in any number of variations. No employer wants to hire someone who is a lawsuit waiting to happen.

So, yes, if you can clearly articulate what type of "accommodation" you need, it might be better than vague terms, but that means someone who is an NT advocates between the disabled worker and the employer to "translate" the employee's needs into language the employer can understand.

The autistic decides what is reasonable.

Cynical, but has a grain of truth to it. Employers are aware that not only is someone with a "hidden" disability more iffy in terms of accommodating, but they have a greater tendency to be harassed and bullied, and they want to avoid a lawsuit by exposing them to that (since human rights codes in most Western countries forbid harassment on the grounds of disability) - so, maybe, they think, it's better to do a preemptive strike and get rid of 'em.

Discrimination can be very hard to prove, but harassment not as much, if it's well documented (especially emails).
And, I wouldn't think it's too cynical of me to say that an Aspie employee could expect more harassment if he/she were to request accommodations, as a retaliatory gesture.

In any case - usually companies measure risk and impact on the bottom line, and the accommodations decision would be viewed through the same lens as any other risky decision, in terms of potential legal consequences, bad publicity, having to rehire & retrain, productivity gains/losses, etc, etc.

I just can't help but wonder if companies could categorically quash the disclosure & accommodations issue by invoking that "cliche clause" in the job description, i.e. "must have excellent communication skills". Does that mean that you lied to them on your resume??? I would say not, b/c such a clause is highly subjective - I could argue that people are not good communicators because they are too vague and ambiguous in what they say, expecting ME to pick up on what's not spoken.