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To Disclose or Not to Disclose: That is the Question

People often ask for advice about if, how, or when to disclose their disability to employers. I wish that we could provide advice that applies universally. That would make navigating the workplace as disabled law students, employees, and future employees that much easier. However, the fact of the matter is, there is simply no one correct answer. You need to figure out what works for you—and it might not even be the same in every situation. 

 

Basic Requirements

 

Americans with Disabilities Act

 

Title I of the Americans with Disabilities Act (ADA) requires private, state, and local government employers; state and local employment agencies; labor organizations; and joint labor ­management committees with 15 or more employees to provide reasonable accommodations to employees, unless they pose an undue hardship. Additionally, the ADA prohibits discrimination against people with disabilities and those regarded as having a disability, both as employees and in the hiring process, and protects disabled individuals from retaliation for asserting their rights under the law. For example, it would protect someone from being fired or experiencing adverse employment consequences for reporting an incident of disability discrimination to human relations or a supervisor.

 

Rehabilitation Act

 

Section 501 of the Rehabilitation Act of 1973 protects federal employees. The protections are identical to those of Title I. However, no minimum number of employees at the worksite is required. Section 504 of the Rehabilitation Act of 1973 further states that no qualified individual with a disability shall be discriminated against by any program or activity that receives federal funds—including employers. These protections are also identical to the ADA and require no minimum number of employees to apply. Section 503 of the Rehabilitation Act of 1973 applies to employers under contract or subcontract with the federal government in excess of $10,000, requiring contracts to contain an affirmative action provision. Section 503 does more than what I’ve highlighted here, but this is what is most relevant as it pertains to disclosure. 

 

Exceptions from Coverage

 

The ADA and other similar statutes define “employee” as an individual “employed by an employer,” which is super helpful! 


Yes, that was sarcastic. 


That said, in a majority of circuits, these statutes have been interpreted to require, as a threshold, some form of remuneration to apply. See, e.g., O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). Unfortunately, that means that in those circuits, unless there is significant remuneration (which might also be provided in the form of direct benefits other than wages), unpaid interns are likely not protected by anti-discrimination statutes such as the ADA or the Rehabilitation Act of 1973. 


Other circuits do not look at one factor, and they apply additional factors more consistent with the general questions typically asked when assessing a master-servant relationship; however, the outlook is still rather grim, and it is unclear whether protections would apply in practice based on any fact-specific inquiry. See Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011) (holding that remuneration was only one factor, but remanding after evidence was provided that the firefighters received workers’ compensation and insurance coverage, gift cards, use of facilities, training, and access to an emergency fund, and that some firefighters received retirement or hourly wages). 


Nonetheless, many organizations provide accommodations to interns, and many may have internal policies that require such accommodations to be provided. Additionally, not providing accommodations to and discriminating against unpaid interns would, of course, be a terrible look for any non-profit, particularly one that aims to serve the public interest. Paid interns are covered employees like any other employee. It should also be noted that these protections only apply to employees, not to contractors. Some members of Congress have tried to close these loopholes but to no avail.[BK1] Several states, jurisdictions, and municipalities have different or more protective laws that do protect unpaid interns from discrimination; however, this is the current state of federal anti-discrimination statutes. 

 

How Does the Law Affect Whether I Disclose?

 

If you require accommodations in the interview or application process, or at your job, you must disclose your disability to your employer to request those accommodations. You need only disclose basic information about your condition, limitations, and necessary accommodations. If you do not request accommodations during the application or hiring process, you may still request accommodations once you are employed. Additionally, an employer is not required to retract any disciplinary actions or consequences from prior to your disclosure, even if your disability was the cause of the difficulty. In other words, your disclosure is not guaranteed to retroactively erase the consequences of any difficulties you have been having or warnings you have received in the workplace. If you have an understanding employer, it is possible, but it cannot be expected. 

 

Because you must disclose to receive accommodations and employers need not apply them retroactively, if you know you will need accommodations (or if you believe you might need accommodations and you cannot self-accommodate), it might be prudent to disclose sooner rather than later to avoid any delay in implementing your accommodations. Your organization or company might have specific procedures for disclosure (for example, through human resources or otherwise) that you must follow to request those accommodations. Other offices might simply require you to inform a supervisor. 

 

For those who do not require accommodations during the application or hiring process, when, how, and if you want to disclose might depend upon the following factors:

 

· the organization or business to which you are applying

  1. · the position to which you are applying
  2. · whether you think you will need accommodations in the future, and if so, at what point
  3. · what your comfort level is; and 
  4. · whether you think it could be relevant to your application. 


For some organizations or positions, being disabled could provide a helpful perspective and actually add to your initial application. For other organizations or companies with a less welcoming environment, one might make a different decision about such early, or any, disclosure if no accommodations are required. 

 

Many do not have the choice about whether to disclose—their disabilities are visible or immediately perceptible to anyone with whom they interact. Even still, those whose disabilities are visible or readily perceived might still have a choice about how much more they choose to disclose to others about their disability. Additionally, some individuals might have public information available about themselves and their disabilities. 


For example, anyone Google-searching me will know right away that I am disabled. That said, this conversation might not be as relevant, or the conversation might be different for those individuals. Additionally, some individuals might need accommodations for an interview (i.e., a sign language interpreter, ensuring the space is wheelchair accessible, etc.) that will require earlier disclosure and accommodations requests. That also diminishes choice about when and if someone discloses, and could lead someone to have to disclose before an offer is made.   

 

If you do decide to, or need to, disclose, how much you decide to disclose is also an extremely personal decision. As previously discussed, if you need accommodations, you only need to provide basic information about your disability, limitations, and necessary accommodations. You also only need to share with your supervisor or individual responsible for handling accommodations. This process might differ depending upon where you work. Anything beyond that, including sharing with co-workers who do not need to know about your disability, is a personal choice and beyond the scope of what is legally required to access your accommodations. 

 

There might be reasons why someone is uncomfortable disclosing or requesting needed accommodations. Even though employers are prohibited from discriminating against disabled employees, it still occurs. There is a stigma associated with having a disability, and employers might believe it is expensive or a waste of productivity to hire a disabled applicant, no matter how unfounded or based on problematic ideals. There is always that fear. Some individuals also might not want to disclose information about their disability because they just want to keep their health or other information private, or might be nervous about perception by other co-workers or unintentional disclosure to other co-workers. 


By the way—it is illegal for an employer to just disclose that an employee has a disability to other co-workers, although they can discuss the accommodations with direct supervisors on a must-know basis. But somehow, it still seems to happen!


Another reason current law students and recent graduates might not want to disclose to an employer is that if they have a mental health condition, many states still ask about mental health conditions on Bar applications. These questions drive stigma, non-treatment, and non-disclosure of mental health conditions within the legal profession. These issues are pervasive and systemic within the legal field and all areas of employment generally. There are, of course, a whole host of other reasons why someone might not want to disclose or receive accommodations—internalized ableism or shame included. These reasons are all valid, and we all struggle with these issues and conflicts at one point or another. Again, there is no right or perfect answer. All we can do is continue to fight against injustice on a larger scale to address some of these concerns. 

 

Even if you do not disclose, if you are regarded as having a disability and experience discrimination, you might still be protected from discrimination as an applicant or employee, depending upon the facts of the case. Disclosure is not required for all aspects and protections of the ADA to apply. 

 

For my own practice, I am personally of the belief that I would rather disclose early on so that I can weed out unaccepting organizations and not deal with unaccommodating ones who will likely violate the law, but that is not the best decision for everyone in every instance. That is what I do for myself. I portray and reframe disability as a benefit in all of my applications. I also know that I need accommodations for which self-accommodation will not suffice. I have had to walk into interviews using my walker, depending upon the day, so it is obvious I am disabled on those days. My disability is sometimes invisible and sometimes visible. I also tend to disclose my disability to others in the office beyond what is required, particularly since I do disability work. I often use my experiences to educate others about accessibility and working with disabled clients. However, that is not something I have to do; I choose to do that. 

 

Make no mistake: despite the ADA’s passage thirty years ago, misunderstanding about and discrimination against prospective and current disabled employees is still rampant. Disclosure decisions are extremely personal, and there is no correct time or way to disclose. There is also no requirement to disclose if you do not feel comfortable, particularly if you are not seeking accommodations. The decision you make might also differ depending upon the particular organization, company, or position to which you are applying or currently in, as well as your current situation. Our lives are not static—we are fluid, and we are permitted to change our minds depending upon the circumstances. 

 

There is still a lot of stigma and discrimination that makes it difficult to disclose both when accommodations would be beneficial and when they are unnecessary. There are also insufficiencies in the ADA, such as for unpaid interns and others, that might leave some of you unprotected in your workplace. Just know that the weight of the entire disability movement is not on your shoulders. Everyone should feel accommodated, respected, and safe in their workplace. We are in this fight together. 


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Marissa Ditkowsky

Marissa Ditkowsky

Co-Associate Director of Job Accommodations, American University Washington College of Law '19. Tzedek DC’s 2019-2021 Gallogly Family Foundation Fellow. Her project focuses on serving low-income DC residents with disabilities facing debt and the distinct issues they experience in the process.

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