Whether Attention Deficit Hyperactivity Disorder (ADHD) Should be Classified as a Disability?

 

Brian Rice

American Public University

The History of ADHD and How Businesses Have Operated

In discussing the history of ADHD and how the operation of businesses has been influenced by those suffering from ADHD, I must give a brief explanation of what ADHD is and the symptoms it manifests. Attention deficit hyperactivity disorder (ADHD) is a cognitive disorder. Symptoms of this disorder include a diminished attention span, degradation of impulse control and hyperactivity (Lilley, 2014, p.205).

In addition, the Mayo Clinic adds that people suffering from ADHD could be observed to have difficulty in meeting deadlines and difficulty in delegation and prioritization (Adult, 2017). Other symptoms listed by the Mayo Clinic include frequent mood swings ranging from simple impatience to outbursts of anger; poor time management skills; problems focusing on a task; trouble multitasking; poor planning; trouble coping with stress; low frustration tolerance; and a low anger threshold. (Adult, 2017).

While the acknowledgement of a disorder similar to ADHD was made in 1798 by Sir Alexander Crichton, in 1902, a British pediatrician named Sir George Still recognized ADHD as an actual disorder (Lange, 2010). In 1980, the Diagnostic and Statistical Manual of Mental Disorders (DMS) included the ADHD disorder. This paved the way for ADHD to be included as a recognized disorder in any anti-discrimination legislation. Yet, it wasn’t until 1990 that the Americans with Disabilities Act (ADA) defined the scope of what a disability is and the protections afforded to people suffering those disabilities (Americans, 1990).

Because the ADA set standards on how businesses must operate when dealing with people suffering from ADHD, we can understand that historically and prior to the ADA, businesses were under no obligation to make accommodations to those suffering from ADHD. While some businesses may have made some accommodations prior to the ADA mandate, the majority of businesses were free to either make accommodations or to discriminate against those with ADHD. 

Legislative History of ADHD

Even though there is no prior legislation explicitly labeling ADHD as a disability under the Americans with Disabilities Act, we look to the ADA for an explanation of what constitutes any medical condition to be a disorder under the Act. We then look to determine if ADHD meets that criteria in order to look to the ADA as a source of historical significance in presenting a legislative history for the Court to consider. 

On September 27, 1998, in an opening statement during a joint hearing before the subcommittee on the handicapped, the intent of the ADA was affirmed by Senator Weicker. He stated that the intent of the ADA was to stop the discrimination of people who suffered disabilities and handicaps (Americans with Disabilities Act of 1988). With the intent of the legislation fully disclosed, and aimed to protect those with disabilities, we look to the ADA’s definition of a disability.    

Under the ADA, a disability is defined as an impairment. The impairment can be either physical or mental. The impairment must substantially limit one or more major life activities of an individual. There must be a record of such an impairment or the individual must have been regarded as having such an impairment” (Americans with Disabilities Act of 1990).

When we apply this definition to the symptoms a person with ADHD is likely to experience, we can see that ADHD symptoms will meet the impairment criteria the ADA. Because of this, we can understand that the historic legislative efforts regarding the ADA are relevant to ADHD. Thus, the legislative history of the ADA is synonymous with a legislative history for ADHD and until the Court makes explicit law regarding ADHD, the ADA law will govern. 

Besides the historic context, the current legal authority pursuant to ADHD rests in the ADA (Americans with Disabilities Act of 1990). There are numerous cases that the Court can look to for guidance in making a determination as to whether ADHD should be regarded as a disability under the ADA. For instance, one example is of existing case law is 

In Wolfe v. Postmaster General, U.S. Postal Service, Wolfe who worked for the U.S. Postal Service as a machine mechanic, claimed that he was discriminated against due to his ADHD disability in violation of Rehabilitation Act, 29 U.S.C. § 794. The termination came as a result of Wolfe being subjected to seven disciplinary actions. Most of the disciplinary actions where due to his being absent from his work area. He was also disciplined for having unscheduled absences from work.

This case is relevant to our discussion because 29 U.S.C. § 794 relied on the ADA disability definitions and because of that, case precedent under the ADA served as a guide to a ruling in this case (Wolfe, 2012). Two important points in this case were discrimination claims made before and after the ADA was amended in 2008.

The amendment broadened the ADA definitions which gave rise to a broader standard used to determine what qualified as a disability under the ADA. Because the expanded definitions became effective on January 1, 2009, discrimination claims made by Wolf prior to that date had no standing. However, claims made after the 2009 enactment when before the Court.

Because of the 2008 amendment, the ADA guidelines reflects the position that as part of a successful ADA claim, the plaintiff is only required to show that the employer acknowledged the existence of some disability. The employer is not required to acknowledge the disability to be perceived as one which limits a major life activity.

While in a concrete sense, it may seem that this case does not have much relevance in the employer/employee relationship regarding ADHD or any other disability as it pertains to ADA. However, the importance of the language relating to the acknowledgement of the disability is that the onus is forever removed from the employer to be the arbitrar of what disabilities are to be considered to substantially limit life activities. This broadens the class of people an employer, once notified of a disability, must make provisions to accommodate.

In SR v. Kenton County Sheriff’s Office, the Court decided on issues such as qualified immunity and what is considered to be a proper pleading in an ADA case. It also answered the question as to what establishes a party as a proper defendant relative to an ADA claim (SR v. Kenton County Sheriff’s Office, 2015). In this case, two elementary school children who suffered from ADHD and were manifesting symptoms while in school, resisted physical restraint and the police were called to intervene.

Both children were eventually handcuffed by police and a suit was filed claiming that the handcuffing of small, young children suffering from ADHD was disability discrimination in violation of the ADA.  The plaintiffs also asserted that the defendants failed to abide by Title II provisions requiring public entities to make reasonable modifications to policy to avoid disability discrimination.

Because the children were handcuffed, the use restraints were the first option and other, more reasonable options were not employed.  At issue in this case was also whether the police knew about the disability. The case does support ADHD as being a protected disability under the ADA and it raised some interesting and relevant issues for the Court to decide.

In Calef v. Gillette, Fred Calef, an employee of Gillete, was involved in an altercation which caused his peers to fear for their safety. Because Calef had previous incidents of this nature, he was fired. What is of extreme interest in this case is that a prior altercation caused the company to refer Calef to an employee assistance program where he was subsequently diagnosed with ADHD and underwent treatment for the condition (Calef v. Gillette Co., 2003). 

Interestingly, this case shows that even with an accommodation, the person may not be qualified to perform the job since a therapist testified that even after prescribing medication and providing counseling, Calef continued to have altercations during and outside of the workplace. In fact, the Court cites that “Dr. Soma’s affidavit correctly recognized that the relevant disability determination turns not on the symptoms of untreated ADHD, but on Calef’s ADHD when he received medication and counseling.” The takeaway from this case is that Courts will consider not just the raw existence of a disability, but rather, they will also consider whether major life activity limitations are mitigated by medical treatment when determining if the person suffers from a disability.

References

ACLU charges sheriff with ADA violations in handcuffing of children with ADHD. (2015). The Brown University Child & Adolescent Psychopharmacology Update, 17(9), 1-7. doi:10.1002/cpu.30065

Adult attention-deficit/hyperactivity disorder (ADHD). (2017, August 15). Retrieved October 21, 2017, from https://www.mayoclinic.org/diseases-conditions/adult-adhd/symptoms-causes/syc-20350878

Americans with Disabilities Act of 1990, 42 USC §12102.

Americans with Disabilities Act of 1988: Joint Hearing before the Subcommittee on the Handicapped, Senate, 100th Cong. 1 (1988).

Antshel, K. M., Hendricks, K., Faraone, S. V., & Gordon, M. (2011). Disorder versus disability: The challenge of ADHD in the context of a high IQ. The ADHD Report, 19(2), 4-8. doi:10.1521/adhd.2011.19.2.4

Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003).

Coleman, C. J., Cooney-Painter, D., & Moonga, S. K. (2000). Attention Deficit/Hyperactivity Disorder in the Workplace Under the ADA in the Wake of Sutton. Employee Responsibilities and Rights Journal, 12(2).

Easteal, S. (2010). It just doesn’t add up: ADHD/ADD, the workplace and discrimination. Melbourne University law review, 34(2), 359-359. Retrieved from http://law.unimelb.edu.au/__data/assets/pdf_file/0009/1703574/34_2_1.pdf

Lange, K. W., Reichl, S., Lange, K. M., Tucha, L., & Tucha, O. (2010, December). The history of attention deficit hyperactivity disorder. Retrieved October 21, 2017, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3000907/

Lilley, L. L., Collins, S. R., Snyder, J. S., & Savoca, D. (2014). Pharmacology and the nursing process (7th ed.). St. Louis, MO: Mosby.

SR v. Kenton County Sheriff’s Office, Civil Action No. 2: 15-cv-143 (WOB-JGW) (E.D. Ky. Dec. 28, 2015).

Varcarolis, E. M., & Halter, M. J. (2010). Foundations of psychiatric mental health nursing: a clinical approach. St. Louis, MO: Saunders Elsevier.

Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014).

Wolfe v. Postmaster General, U.S. Postal Service, No. 11-12973 (11th Cir. Aug. 31, 2012).