Civil Rights 101: Performance Standards and ADA Compliance


Office Desk Managers supervising employees with disabilities may have concerns about performance and conduct issues, or assume when such issues arise that disability has to be involved. Of course, this isn’t necessarily true. In cases where supervisors know about a disability, they may be reluctant to hold the employee accountable. Their motives may be noble, but, in the long run, it’s not helpful to the employee who may be unaware of the performance problem or to co-workers who may have to pick up the slack.

“An employee’s disability will typically not come up when there is either a performance or conduct issue. But, obviously, we wouldn’t be here if it never came up,” said senior attorney advisor Sharon E. Rennert of the Equal Employment Opportunity Commission.

During a Jan. 25 webinar presentation sponsored by the American Bar Association, employment lawyers discussed best management practices. Part I of this two-part blog presents practical guidance on addressing performance problems in the workplace. Part II discusses how to deal with issues related to employee misconduct.

Consistently Apply Standards

Two basic precepts lay the groundwork for understanding the application of the Americans with Disabilities Act to employment performance standards (or production standards, as the term is used in the federal law).

First, generally employers can hold employees with disabilities to the same standards of production as non-disabled employees in the same position and follow the same procedures in dealing with performance issues, Rennert said.

Second, reasonable accommodation may be required for an employee to meet a standard. But lowering or eliminating a standard, or removing an essential function, isn’t considered a reasonable accommodation under the ADA where a worker can’t meet that standard because of a disability, she said.

In brief, “the ADA does not second guess an employer’s quantitative or qualitative standards,” and the role of reasonable accommodation in this context is never to excuse performance problems, Rennert stated. Rather, it functions to resolve a performance issue.

As a caveat, Lori D. Ecker, employment lawyer in the Chicago Law Office of Lori D. Ecker, noted another law that comes into play with employees with disabilities: the Family and Medical Leave Act may require adjustment of a performance standard for an employee who failed to meet goals due to a medical leave of absence.

Use Same Evaluation Criteria

In addition to establishing the duties and related requirements of a job, employers typically set the methods for evaluating job performance. The ADA doesn’t dictate how an employer chooses to evaluate job performance, the frequency of it or the evaluation criteria.

According to EEOC guidance, employers should use the same evaluation criteria for employees with disabilities and employees without disabilities. But they can’t necessarily require all workers to perform job functions in the same manner—an employee with a disability who performs an essential function in an alternative way must be evaluated accordingly.

Thus, employers should be careful about how they evaluate job performance “because sometimes how people perform a job may change because of disability,” Rennert said. A supervisor can assess the manner in which something is done, or whether the ultimate objective has been achieved.

Give Accurate Feedback

Supervisors should always give clear guidance to all employees regarding the quantity and quality of work that’s expected and the timetable for production, Rennert advised.

“I think one of the most important duties of any supervisor or manager is to tell employees when they are not meeting a supervisor’s expectations, when they’re not performing a job adequately,” she said. “It’s always important to do for all employees but certainly important to do for employees with disabilities.”

In the case of employees with disabilities, accurate, timely feedback about performance problems is especially critical because it may signal the need for a reasonable accommodation to meet a particular standard and remain qualified for the job, she added.

Focus on Performance, Not the Disability

When an employee raises disability for the first time in response to a low performance rating, the employer should talk to the employee about the performance problem and how performance needs to be improved, and not focus solely on the disability.

In the context where disability is raised but it’s not clear whether the disability is responsible for the performance problem, the employer should try to discern why the employee brought it up and whether it's actually causing the problem, Rennert said. Don’t assume the problem is related to the impairment.

Further, she noted employers have the option to ask whether the employee, in raising disability and connecting it to the performance problem, is requesting a reasonable accommodation.

Rennert encouraged employers to ask the question and to document it. Don’t leave room for ambiguity, she said. “An ambiguous situation may come back to haunt you.”

Based on recent ADA rulings, federal courts are more willing to broadly define what action on the part of employees constitutes a request for a reasonable accommodation, Ecker said.

Don’t Use ‘Carrot and Stick’ Approach

Where an employee requests a reasonable accommodation in response to a low performance rating, be careful not to use the request as “a carrot and stick,” Rennert cautioned.

For instance, don’t say to the employee we’ll discuss reasonable accommodation after you’ve improved your performance. Employers can’t refuse to consider or provide reasonable accommodation because there’s a performance issue, she said.

Instead, commence the interactive process immediately and ascertain whether the employee has a covered disability and whether there’s a connection between the disability and the performance issue. Explore what accommodations are available, absent undue hardship, that will enable satisfactory performance.

Finally, short-term changes that aren’t required as an accommodation, like temporarily relieving an employee with a disability of a job duty, may be appropriate if the employer provides such modifications for other similarly-situated employees.

If you’re willing to bend the rules, make sure there’s no disparate treatment, Rennert said.

 

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