The ADA’s Internal Conflict Disorder

The ADA prohibits employers from discriminating against individuals with disabilities. Yet, the law also makes it more difficult for us to reach out and help employees with performance problems where we suspect that the performance problems may be due to a physical or emotional condition. If an employer raises a suspected disability in the context of performance management, this well-intended desire to help may become the factual predicate for a perceived disability claim if the employee subsequently loses their job for legitimate, non-discriminatory reasons.

The ADA requires that we focus on abilities and not disabilities in making employment decisions. Yet, in determining whether someone is disabled under the ADA, the Supreme Court has demanded that employers make case-by-case determinations. These determinations often require obtaining confidential medical information regarding whether the condition substantially interferes with a major life activity.