Data collected by our federal government during the 1990s shows that disabled people have an unemployment rate of 70%, as compared to the unemployment rate of non-disabled people which rarely reaches or exceeds even 7%. The unemployment rate among disabled people with a TBI was found to be 94%. There is no question that many barriers (both intended and unintended) exist to employment of people with disabilities, including people with a TBI. One legislative effort by the Congress with potential to improve the situation is the Americans with Disabilities Act (ADA). **

The ADA is a federal civil rights statute enacted in 1990. The ADA guarantees equal opportunity for persons with disabilities in four areas. These are: securing and maintaining employment as well as the terms, conditions and privileges of employment; access to and use of all places of public accomodation (such as housing, stores, restaurants, movie theatres, sports arenas and museums); access to and use of telecommunications devices and systems; and obtaining the benefits of state and local government services, programs and activities. The ADA does not apply to the federal government, which is covered by Section 504 of the Rehabilitation Act of 1973. Under the ADA, all employers with 15 or more employees (other than the federal government) are covered and are required to follow its non-discrimination provisions.

Some states have passed their own version of the ADA. California's version is found in its Government Code at Sections 12926 and 19702. State versions of the ADA may cover employers with fewer than 15 employees. In Alaska, an employer with just 1 employee is covered. In addition to private employers with 15 more more and state/local government entities, the ADA applies to labor organizations, labor-management committees and employment agencies.

ADA violations should be brought promptly to the attention of the nearest field office of the EEOC (Equal Employment Opportunity Commission) which requires filing of a complaint within 180 days of the violation. Under state versions of the ADA there may be a longer filing period with the state department of fair employment, but this should be carefully checked in the particular state where the employer is located. In 1995 and again in 2000, the EEOC issued a printed booklet called a "Guidance" to let covered employers know what questions they can and cannot ask job applicants and how they may or may not respond to information they acquire about an existing employee's disability. This booklet is a free publication obtainable by anyone, including job applicants or existing employees with a disability.

The beneficiaries of the ADA are people with disabilities; people with a record of having had a disability in the past (e.g. a person who used to be addicted to narcotics); and non-disabled people who are regarded as having a disability (e.g. someone with HIV, morbid obesity or facial disfigurement from burns). The ADA forbids discrimination (unequal treatment) against people with a disability. The ADA defines "disability" as a physical or mental impairment that substantially limits a major life activity. Substantially limits means the person cannot perform the activity at all or is significantly restricted in performing it as compared to the general population. Major life activities include such basic functions as thinking, learning, seeing, hearing, speaking, breathing, walking, self-care, performing manual tasks and interacting with others.

In the preface to the ADA, in the findings and purpose section, Congress wrote that there are 43 million Americans with a mental or physical disability and the number is growing as our population ages. Congress also wrote that historically people with disabilities have been isolated, segregated and discriminated against in employment, housing, public accomodations, education, transportation, communication, recreation, health services, voting and access to public services. The ADA was passed as remedial legislation to remove barriers erected through conscious and unconscious discrimination against people with disabilities, so they could enjoy full participation in our society and its economy.

What conditions represent mental and physical impairments covered under the ADA? Courts have found that diseases of the heart and lung as well as cancer, arthritis and osteoporosis are "physical impairments" covered under the ADA. Courts have found that certain learning disorders and psychiatric disorders are "mental impairments" covered by the ADA. Merely feeling stressed or merely having difficulty working in stressful situations does not constitute a covered mental disability. There must be an underlying physical or mental impairment that makes ordinary workplace stress intolerable and precludes employment without reasonable accomodation. Courts have found that personality traits, sexual orientation, pregnancy and aging are not covered impairments. Appellate courts in different jurisdictions are in conflict over whether particular conditions such as carpal tunnel syndrome constitute a covered disability. The US Supreme Court recently ruled that carpal tunnel syndrome is not a covered disability if it only precludes performing certain tasks on the job and does not make it difficult to carry out activities of daily living like brushing one's teeth.

In California, by statute, certain listed conditions qualify as "mental disabilities" if they substantially limit one or more major life activities. These are mental retardation, organic brain syndrome, emotional or mental illness or a specific learning disability. See, California Government Code Sec. 12926(i)(1). California has its own Fair Employment and Housing Act that covers a much broader array of disabilities, those that merely limit (rather than substantially limit) a major life activity. Under California's FEHA, when determining whether a person is disabled, the court may not consider the mitigating effect of medications or devices the person uses to treat or manage his medical condition (such as taking Dilantin for seizures).

With regard to employment the ADA does not protect all disabled persons. Rather it protects disabled persons who are qualified to do the "essential tasks" of the job with or without reasonable accomodation. The essential tasks of a job are those which are fundamental not marginal to the job. If you can perform the essential tasks of a job (with or without reasonable accomodation) an employer cannot refuse you employment just because you have a disability.

To accomodate a person otherwise qualified to do the job who has a disability, requires the employer to find way to modify the environment, procedures, training or hours of work, to make the workplace accessible to, and its facilities and equipment usable by, that person. Further, the employer must make the accomodation within a reasonble time. Taking a year or more to make it is not reasonable, as some courts have ruled.

Making the accomodation is often not nearly as hard or as disruptive as employers contend, and may simply require some old fashioned creativity. For instance, a person with migraines triggered by bright light or loud noise could be given a quiet, dimly lit office. A person who cannot type but can do the cognitive work required by the job, could be given a computer with voiceware that transcribes and prints what he says aloud. Accomodation does not always require expenditure of funds. It may be as simple as job sharing, telecommuting or modifying work schedules. The ADA does not require accomodation without regard to financial limits. It requires "reasonable accomodation" and allows employers to oppose making accomodations where the accomodation would be so expensive as to create an "undue hardship."

During the job interview an employer may not ask an applicant if he is disabled and an applicant is not obligated to volunteer that information. The employer may not ask about the job applicant's genetic background or workers' compensation claim history. However, if the applicant requests accomodation so that he can participate effectively in the job evaluation process, the employer may ask for medical proof of disability if such disability is of the hidden not the obvious type (like a paraplegic in a wheelchair or a blind person with a white cane and dog). Once the job applicant or employee puts the employer on notice that he wants a reasonable accomodation for his disability, the employer must make a legitimate and good faith effort to comply. The employer can do this through "an interactive process designed to determine the appropriate accomodation." In practice, this requires the employer to ask the employee how the disability impedes his job and how the employer could rectify the situation through reasonable changes. The employer may also consult with ADA experts on how to comply. However, the employer cannot respond by ignoring the request for accomodation or by demoting, transferring or firing the employee. If the employee perceives the employer is not making a good faith effort to comply and files a discrimination complaint with the EEOC or state equivalent, the employer may not retaliate by firing the employee and if he does, he will be subject to penalties under the ADA.

Traumatic Brain Injury (TBI) comes in varying grades of severity and has different effects on different people depending not just on the location and severity of the initial damage to the brain, but also upon the victim's genetics, age, gender, general health, previous history of concussions, psychological condition, educational background, employment background, quality of family support, quality of medical and rehabilitative care, and so forth. Once an employer knows his employee has a TBI, he cannot lump him with all other brain injured persons and treat him in a stereotyped fashion. Employers must look at each person with a brain injury on an individual basis when determining the appropriate accomodation. A person with blurred vision could have someone read to them. A person with right arm weakness, could have others carry things for him. A person suffering from cognitive fatigue, could be given more frequent rest breaks or work only in the morning before they become too tired to continue. A person who is easily distracted and thrown off task by interruption, could be put in a quiet room, and could be given a variety of prompts to keep him on track, such as computer reminders, visual cues, checklists or frequent progress reviews.

There are limitations to the scope of ADA rights. Having a covered mental impairment does entitle a qualified employee to reasonable accomodation, but does not shield that employee from the same discipline (including termination) that would be meted out to any employee for disruptive, menacing or violent behavior towards co-employees, managers or clients of the business. The US Supreme Court has recently ruled that ADA rights do not entitle a disabled person to take a job ahead of a co-employee with vested rights due to seniority.

If you believe you have been denied or deprived of a job, a place to live or a government service, on account of discrimination against you, because you have a brain injury, you should strongly consider filing a complaint with the federal EEOC within 180 days and seek advice from the EEOC staff or from an organization that advises people of their rights under the ADA. You may ultimately decide to file a lawsuit for discrimination, and if so, you should locate an attorney in your community who has solid litigation experience with ADA claims and suits, and who is recognized by his colleagues as a competent and effective professional in that field of law. Some ADA lawyers specialize in "access" cases involving physical barriers to entering or using a building. Others specialize in employment cases. Some handle both. Because of statutes of limitation, you should avoid delay and seek professional legal advice at the very earliest moment.

To contact the EEOC call 800-669-4000 (voice) or 800-669-6820 (TDD). For free advice on the ADA In California you can contact Protection & Advocacy, Inc. at 800-776-5746. For free advice on the ADA for violations committed in Oregon, Washington, Alaska or Idaho, you can contact the Northwest ADA/IT Center at 800-949-4ADA voice/TTY; E-mail at nwada@ohsu.edu or log on to www.nwada.org.