The day after my last post, Diversity Inc. had a posting by Bob Gregg that emphasizes how complex the issue of disclosure is. Bob Gregg is a partner in Boardman Law Firm and periodically summarizes diversity-related legal cases. This posting summarized two ADA cases related to self disclosure of disabilities in employment.
In the first case, Trammell v. Raytheon Missile Systems, the plaintiff failed to inform the company of his arrest for larceny because he failed to pay $30,000 in casino debts. When the truth came out, he was fired for failing to report the arrest as required by company policy. At that point, he tried to claim that his gambling addiction was a result of depression, and, therefore, covered under the Americans with Disabilities Act. The court ruled that it was an unsubstantiated effort to get around the exception for the gambling addiction, since gambling is not considered a disability under the ADA. His claim was dismissed.
It's interesting to ponder what would have happened had the plaintiff disclosed during the hiring process that he had been diagnosed with depression. Certainly, claiming to be depressed after disciplinary action had been instituted was not helpful to him. I can't think of one employer who would not resist a claim if disclosure came about that way.
This kind of case is bad for all people with disabilities since many employers already think that all persons with disabilities are just trying to get away with something. When people use the ADA as a way of dealing with other problems, it seriously sets back our cause
In the second case, Legatta v. Penn Cyper Charter School, as soon as the plaintiff disclosed a diagnosis of bipolar, she was fired for insubordination after a couple of minor offenses. Other employees who had more serious infractions were not disciplined. In light of the timing of the firing along with the unequal treatment, the court concluded that it was discrimination.
That is the kind of act that the ADA is supposed to prevent. However, that form of discrimination is a concern for those do not disclose their disabilities.
To disclose or not disclose, it is really a tough call. If you disclose your disability you may run into discrimination, but if you don't, you don't have the right to hide behind a disability.
Annette Bourbonniere
401-846-1960
Fax: 401-846-1944
Twitter: @AccessInclude
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