In my business advising practice there will always come a time when a business owner has to consider hiring employees if they want to grow their company to the next level. Although there are a number of agencies that can help to match employees with employers, there is a growing pool of potential employees that are often overlooked: those individuals with disabilities. This is mostly due to what I call the “what if” fear factor that comes from not truly understanding the job capabilities of persons with disabilities (or not really wanting to take the time to do so); and equating that with the assumption they may end up in litigation down the line if the hiring did not work out.
The Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act) and the American with Disabilities Act Amendments Act of 2008 make it unlawful to discriminate against a qualified individual with a disability. If there is a conflict arising from a hiring of a person with a disability, there is the use of mediation and guidelines from the EEOC to help in this dispute process. My advice to those clients is to investigate the opportunity, as you might be able to offset costs, get more motivated employees, and create a win-win situation by hiring persons with disabilities.
Should you decide to hire a person with disabilities and a dispute does arise, you can use the services of a mediator to help resolve the dispute. As an employer the following is a listing of considerations that the EEOC and other government agencies provide to the employee in preparation of the mediation process which impact a person with special needs.
Accommodation for the Mediation Process
Sometimes individuals with disabilities will need an accommodation to allow full participation in the mediation process. Accommodations that might be needed include:
- assistance with verbal or written communications;
- specific meeting times or specific break times due to disability-related fatigue, medical treatment, medication, etc.;
- management of environmental factors such as light, noise, or chemicals;
- permission for a personal assistant to accompany a party throughout the mediation process;
- reminders about what is being discussed, the roles of others who are present, and the way the mediation process is conducted; and,
- other modification to the way the mediation is ordinarily conducted.
If you are an “individual with a disability” within the meaning of the ADA, you have a legal right to reasonable accommodation in the mediation if it is not an undue hardship, meaning it does not pose a significant difficulty or expense in light of the mediation provider’s resources or business operations, or fundamentally alter the mediation service. Many mediators will offer accommodation without regard to whether or not someone is a “qualified individual with a disability,” in order to facilitate full and meaningful participation by all parties to the mediation and their representatives.
There are many organizations that are working to provide employers with qualified employees such as Partners in Industry, Workforce Partnership, Wounded Warrior Organization, state supported Disabled Youth Employment programs, and agency coalitions. They do provide very successful partnerships with employers and disabled employees. So with the help of the ADA guidelines for handling employee disputes there are also avenues that will hopefully reduce the “what if” fear factor among employers as well. The mediation process and other forms of alternative dispute resolution is a tool that can be used by both parties and to date has played an important role in supporting the employment of this new pool of workers.
About Your Columnist
Michelle Burkart is a featured columnist for Women Taking Charge, the official blog of Connected Women of Influence, where she covers negotiation and conflict resolution. Currently, Michelle is the owner of TH!NKresolution, where she is a credentialed mediator; Hearing Officer for the San Diego Housing Commission; Member of the San Diego Superior Court Mediation panel as well as the NCRC Commercial Mediation Panel. Michelle manages and conducts business mediation services for TH!NKresolution to include pre-contract facilitation, contract disputes, personnel issues, conflict coaching and training, family business disputes, government agency disputes, and caregiver mediation.
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