posted on November 05, 2012 14:21
Your Rights in the Workplace
ADHD and Employment
Note to parents: Chances are your teen or young adult did not
receive information like this from high school guidance counselors or
the college employment office. Before your young adult enters the
working world, be sure he or she is aware of its realities for people
affected by ADHD or other disabilities.
by Lewis Maltby
THE TRANSITION FROM SCHOOL TO THE WORKPLACE IS A CHALLENGE for
people with ADHD. The demands are higher and the willingness to accept
lapses is lower. Worst of all, unlike in other aspects of life, there
are no true second chances. It’s like a parachute jump; you have
to get it right the first time.
Having ADHD presents special challenges in the world of employment.
Difficulties focusing, being easily distracted, impulse control, and
difficulty managing time often interfere with a person’s ability
to perform his or her job. Employers generally don’t understand
that these are symptoms of a medical condition and often move to get rid
of the person.
Fortunately, the law provides some help to people with ADHD. This
protection, however, is limited and not easily obtained.
Under the Americans with Disabilities Act, it is illegal for employers
to discriminate against employees or job applicants because they have
a disability. Even more important, the ADA requires employers to
provide “reasonable accommodation” to people with
Is ADHD a disability?
For someone to be protected by the ADA they must have a
“disability.” Not every physical or mental limitation is a
disability under the ADA. To be considered a disability, the condition
must “substantially limit a major life activity.” Unless the
limitation is substantial, the condition is not a disability. Mild ADHD
symptoms may not meet this standard.
People with more serious ADHD symptoms have a disability under the ADA.
Employers may not legally discriminate against them. If an employee with
AHHD performs her job as well as other employees, she cannot be
terminated because her occasional lapses in concentration or other
symptoms annoy her employer.
But even here, getting legal protection can be difficult. Judges, like
most people, don’t understand ADHD and are reluctant to consider
it a disability. While some court decisions have held that ADHD is a
disability, the majority have held that it is not. Winning a disability
discrimination case involving ADHD requires educating the judge about
ADHD and the way it affects the person involved in the case. Having a
qualified expert can be the key to this process.
Fortunately, one roadblock to legal protection has been eliminated.
Prior to 2008, the courts determined whether a person is disabled by
examining the extent of her limitation after mitigating steps have been
taken. A person with ADHD would be evaluated by the extent of her
limitation after she had taken medication. In 2008, the ADA Amendments
Act changed this rule. Whether a person is sufficiently limited to be
legally disabled is now determined by their condition without medication
(or other mitigation).
Is the accommodation reasonable?
Many people with disabilities have difficulties performing a
job under exactly the same circumstances as other people, but can
perform the job if changes (accommodations) are made. If these
accommodations are reasonable, the employer is legally required to make
Whether an accommodation is reasonable depends on how much cost it would
impose on the employer. While there is no numerical formula, the costs
must be modest. Examples of accommodations courts have held reasonable
● providing a telephone amplifier for an employee with a
● providing anti-glare computer screens for employees with
● raising the level of desks and other work stations for
people in wheelchairs
While there have been very few cases involving reasonable
accommodations for people with ADHD, decisions involving other
disabilities indicates that physical devices that reduce the amount of
distraction would be considered reasonable. Accommodations that might
help people with ADHD that would generally be considered reasonable
● being allowed to wear ear plugs or headphones to reduce
● being allowed to work behind a closed door
● receiving instructions in writing
In some cases, a person with ADHD may be incapable of performing one job
at a company but capable of performing another. If the employer has an
opening for such a job, a transfer would generally be considered a
Flexibility on time might also be valuable to employees with ADHD. For
example, an employee with ADHD-induced time-management problems might be
excused if he or she came in a few minutes late for work occasionally,
unless it interfered with getting the job done. An employee who works on
his or her own could easily make up the lost time by staying late or
skipping lunch. For an employee who works as part of a team, it would be
different. Unfortunately, there are virtually no judicial decisions in
Whatever the accommodation, it is essential that the employee
ask for it. Under the ADA, it is the employee’s responsibility to
inform the employer of her disability and the accommodation that she
ADA Amendments Act
Many people have the impression that the ADAAA eliminates all
the legal difficulties facing someone with ADHD. This is not the case.
While the ADAAA solves the problem of a person with ADHD not being
protected because his or her symptoms are reduced by medication, it does
not change the accommodation standard. An employer is required to
provide an accommodation only if it is “reasonable.” As
discussed above, courts have not been generous in their definition of
what is reasonable.
There is no single right way for a person with ADHD to approach
the workplace; every job and every boss is different. But here are some
● Look for a job and workplace where your ADHD
symptoms will not interfere with your job performance.
Momentary lapses in attention, having trouble with deadlines, and other
ADHD symptoms interfere with performance more in some jobs than others.
Among medical professions, for example, ADHD is less likely to affect a
researcher than a surgeon. Some workplaces are more conducive to success
for people with ADHD. A small, informal, cooperative workplace is
generally better for someone with ADHD than a large, impersonal,
● Look for an employer with an enlightened
attitude about disabilities. Some employers are willing to do
much more than others to accommodate people with disabilities. Before
you accept an employment offer, ask employees what it’s like to
work there. There is absolutely nothing inappropriate about this. Any
employer who objects probably has something to hide.
● Do not tell prospective employers about your
ADHD. This disclosure cannot help you and can easily hurt you.
Having ADHD is not an asset; it is a disability that can be managed. By
telling prospective employers about your ADHD, you raise the question of
how well you manage it. Technically, it is illegal for a prospective
employer to reject your application because of your ADHD. But that
doesn’t mean that some employers won’t do it. It’s
better to have a job than a lawsuit.
● If your boss criticizes your job performance
for reasons related to your ADHD, explain that you have ADHD and how
this affects your job performance. Be prepared to explain how
you will perform your job to your employer’s standards by managing
your ADHD or the accommodation you need in order to meet these
● If you lose your job because of your ADHD,
seek help. If you can’t afford an attorney, contact the
closest office of the EEOC or your state’s human relations
Lewis Maltby is president of the National Workrights Institute and a
nationally recognized expert on employment rights. He has testified
before Congress many times and has appeared on 60 Minutes, Larry King
Live, Oprah, and NPR’s All Things Considered. A human rights
attorney, Maltby founded the National Workrights Institute after leading
the American Civil Liberties Union office on free speech and privacy
protection in the corporate world. He is also the author of Can They
Do That? Reclaiming Our Fundamental Rights at Work (Portfolio,
This article originally appeared in the April 2011 issue of
Attention magazine. Copyright © 2011 by Children and
Adults with Attention Deficit Hyperactivity Disorder (CHADD). All rights