Attorney Brower’s Response
This response focuses on the legal issues related to disclosure of a person’s autism in post-secondary educational setting (2 or 4- year college), post-graduate university studies or formal job training program. It also addresses the person seeking employment. At the same time it is recognized that there are many other issues related to the decision whether or not to disclose a disability that are not addressed in this response. It is suggested that before a decision is made, the person faced with the decision should discuss all the relevant issues with a family member or trusted advisor.
It is good that you are considering the legal issues related to disclosing your identified disability to an educational institution or employer ahead of having to make the actual decision. This is not an easy question to answer, as in part it depends on the level of accommodations and support you feel you will need in either setting to be successful. To give you a better understanding of the legal issues generally, I will start with a general discussion of post-secondary disability law and then discuss post-secondary education and employment in more detail.
First, once you obtain a regular education diploma signifying completion of all the required high school courses, your entitlement for special education services and accommodations under the Individuals with Disabilities Education Act (“IDEA”) ends. That does not mean you are now without the protection against discrimination based upon your disability. However, graduation does signify that you are now the one responsible to seek out needed accommodations.
Your protection under applicable federal and state disability laws, will depend if you can meet the definition of a “disabled” person. If so, you may well be “eligible” for services and accommodations based upon your particular needs and the nature of what is needed. The difference is that when you were in high school the public school had the obligation to determine if you were eligible for accommodations and to decide what accommodations to provide. In the post-high world, it is up to you to disclose your disabling condition (i.e. autism) to the school or employer and then to request appropriate accommodations. The disclosure of your disability and providing details as to how it negatively impacts your ability to be successful in school or on the job is the only way that a determination can be made if you meet the required eligibility conditions. That information is also needed so the employer or school official can determine what accommodations or modifications to the job or classes are reasonable and appropriate to place you in a position to compete equally with your non-disabled peers.
As disclosing your disability to others is a very personal choice, it is a decision that should be made carefully after reviewing the pros and cons of disclosure on your own or with your parents and advisors. Some, but not all, of the benefits of disclosure are:
It is the prerequisite to receiving “reasonable accommodations” that will allow you to minimize the obstacles that may interfere with your work and/or school goals.
Once found to have a disability, various federal and state laws such as the Americans with Disabilities Act (ADA) and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA) provide protections against disability based discrimination.
It allows you to assemble a team of professionals with experience in addressing accommodations to help in developing needed accommodations.
On the other hand, it is your right to keep your disability to yourself. While disability based discrimination is illegal, not disclosing avoids the possibility that an employer may view providing needed accommodations are too burdensome. In a school setting, it may result in the loss of opportunity.
However, there are potential negative consequences of disclosure that you also need to consider. Only you can determine if the negative consequences outweigh disclosure. For example:
If you do not disclose your disability, you likely will not receive any accommodations for your disability. What effect that would have on your success is only something you can answer.
Disclosing your disability may cause others to treat you differently or even negatively and lead to exclusion from activities or opportunities.
It may cause others to view you as unable to perform at the same level as your peers and overlook you for a job, team, group, or organization.
Qualifying as a Disabled Person
A person qualifies as having a disability under the federal Americans with Disabilities Act (ADA) if they meet at least one of the following three conditions: (1) a physical or mental impairment that substantially limits one or more major life activities (such as walking, talking, seeing, reading, learning, working, etc.). Most persons with all but the mildest autism would qualify under this criteria. It is also possible to qualify by: (2) having a record of such impairment such as a person with a history of mental illness, or (3) if others see you as disabled such a being rumored to have HIV. However, under all three criteria you have to formally request to be considered disabled and provide reasonable proof of the disability. You also have to be able to perform the essential requirements of the job or course of study, even with reasonable accommodations. Essential requirements will vary with every job or degree program. Finally, the employer or school can reject the requested accommodation if it can be proven that providing it represents an undue hardship to the employer or school. Contesting a determination of an “essential requirement” or that a requested accommodation presents an “undue hardship” can become a source of a dispute that will need to be resolved by the state or federal agency responsible for the enforcement of disability rights.
Educational institutions, who receive federal funds either directly or indirectly, are also subject to the anti-discrimination requirements of §504 of the Rehabilitation Act, which require a post-secondary educational institution to:. . . provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school’s program. Recipients are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient’s program or impose an undue burden.
Disclosing Your Disability
Opinions vary as to when is the proper time to inform an employer of your disability, assuming you decide to disclose. Some counsel to delay until after the position is offered. Others advise to wait until after the employment offer is made and accepted. This addresses the fear that the positon will not be offered once the employer is aware of need for accommodations.. Other possible times to disclose include doing so with your resume or in a cover letter, at the initial interview or before any medical testing. Although likely not the best practice, you can always wait until a situation arises that you cannot successfully complete due to your disability. A lot will depend on what you perceive is the employer’s attitude regarding disabilities and its desire to have a diversified workforce.
The ADA is clear that an employer (+15 employees or a state/local government) can ask about one’s ability to perform a job, but prior to offering a job they cannot inquire if someone has a disability or require a medical examination. After the job is offered, a medical examination and drug screening may be required. However, rescinding the offer based upon a disability disclosed during a medical examination would likely be a violation of the law as long as the disability could be reasonably accommodated.
Post-Secondary Education – If you feel you need supports and services to be successful in post-secondary education whether that be a 4-year or 2-year college or a technical school, just like the employment situation it is totally up to the disabled person to disclose your disability and request appropriate accommodations. Most educational institutions have an office or department that is responsible to respond to a student who discloses their disability. This department determines if a student meets the disability requirements of the ADA or §504. If eligible for accommodations, then working with the student they make the determination as to exactly what accommodations are reasonable and appropriate. Accommodations can range from added time on examinations, written instructions or a quiet place to take exams. Course modifications are also possible. However, requesting course modifications may raise issues where the school feels the fundamental nature of the class or program is being impermissibly changed. The contact information for the office that addresses the needs of disabled students is usually found in the student brochure, the school’s website or posted at locations around campus. If not, the Admission Office will have contact information.
Once you meet with the proper person(s) you will have an opportunity to provide details about their disability and how it impacts the pursuit of an education. You will be able to discuss the accommodations you feel are needed. The discussion may include discussing what adjustments may be necessary to the school environment or to assist in the transition from high school. As requirements vary, it is important to also discuss the various academic requirements of the chosen course of study so a determination can be made as to how the requirements are impacted by your disabilities. That will lead to a determination whether or not the requested accommodations are “reasonable” or does the school see them as a financial burden or a fundamental change in the requirements of their program.
Common accommodations for students with a higher level of autism might include the following:
Breaks during class, especially for movement.
Extended time testing; distraction reduced testing room.
Typed in-class assignments rather than handwrite.
Clear, concrete directives to the student.
List all course requirements in writing, including assignment due dates and test dates. Avoid vague instructions. Provide advance written notice of any changes.
When using idioms, double meaning or sarcasm, review what you mean in concrete terms.
Should a student become upset by an unexpected change, provide the student with a simple directive. Neutralize the situation by maintaining an attitude of acceptance and nonjudgment while giving the student a calm, clear directive to help him or her regroup.
For more detail see: http://www.swarthmore.edu/academic-advising-support/students-autism-spectrum
Whatever process is used to create a plan of accommodations, it should be committed to writing. The disability office’s responsibility is to insure that each semester each faculty member that has to provide an accommodation is provided a copy of their need to implement the accommodations you require to be successful in their class. If accommodations are not provided, I would suggest you first review your accommodation plan with the faculty person who is not adhering to its requirements. If that does not resolve the issues, then you should take the matter up with the disability office as it is their responsibility under the ADA and §504 to make sure the plan is implemented. In the rare case that this does not resolve the problem, a complaint can be filed with the Office for Civil Rights (OCR) claiming an ADA or §504 discrimination claim for a failure to accommodate.
Note: (http://www2.ed.gov/about/offices/list/ocr/docs/howto.html regarding a discrimination complaint. Or Michigan Civil Rights Commission at https://taxinfo.unemployment.state.mi.us/MDCR.Civil.Rights/CMSWebPortal/ComplaintRequest.aspx
NOTE: What is being provided above is the personal opinion of Attorney John Brower. It should not be considered legal advice and it does not create an attorney-client relationship. Such a relationship can only be created after an Initial Consultation with attorney Brower and thereafter, the execution by both parties of a Retainer Agreement.