ADHD not ADA-protected disability, First Circuit holds
The First Circuit dealt with an employee claim of ADA disability based on ADHD in Whitlock v. Mac-Gray, Inc. (1st Cir. 10/6/03).
The employee contended his ADHD was a disability because it substantially limited a major life activity — his ability to work. He argued that to function in the workplace he required that his condition be accommodated by providing partitions that blocked visual distractions and permitting use of a radio to block competing noises.
The court held this “evidence may establish that he has an impairment, but not that he is disabled for purposes of the ADA. ‘It is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.’ “Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
The court also relied on the basic proposition that “[W]hen the major life activity under consideration is that of working, the statutory phrase ’substantially limits’ requires . . . that plaintiffs allege that they are unable to work in a broad class of jobs.” Id.
The plaintiff offered no such evidence, but conceded in his deposition that he was capable of performing his work despite his ADHD and that the employer believed he could do his job. The court was unimpressed with his doctor’s “conclusory assertion of total disability — an assertion lacking elaboration and support in the record sufficient to make the individualized showing of [his] particular limitations.”
The court also found insufficient evidence of a perceived disability. The only potential evidence of this was that there had been a “continuing dialogue” between the employer and the doctor regarding the employee’s impairment, and the company had agreed to the employee’s requested accommodations, where it was undisputed that the employer regarded the employee as capable of performing his job.
Once again, this is not to say that ADHD can never be a disability under the ADA. Existence of a disability is a case-by-case decision; one can only say that here the evidence was insufficient.
I love the radio as a reasonable accommodation. Perhaps doctors who treat ADHD can medically justify the position that the distraction provided by a radio is less than other distractions there may be in the workplace. All I know is it sounds a lot like the argument I get from my teenager when I question her ability to do homework while listening to loud rock-and-roll. Come to think of it, I also used to claim I could study better with the stereo cranked up. I either know better now, or that’s an ability you lose with age.
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