Written Testimony of Joyce Walker Jones, Senior Attorney Advisor, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission

Meeting of November 16, 2011

I. Introduction

Madam Chair and Commissioners, I am happy to speak with you today about issues concerning the employment of veterans with disabilities. In 2008, the EEOC issued two guides – one for veterans and one for employers --that explain how the Uniformed Services Employment and Reemployment Act (USERRA) and the Americans with Disabilities Act (ADA) protect veterans with disabilities. I will now discuss some of the specific ADA principles set out in those documents and how changes made to the definition of "disability" after they were issued will now make it easier for veterans with disabilities to show that they are entitled to the ADA's protections.

II. Veterans with Disabilities and the ADA

As you know, thousands of veterans serving in Iraq, Afghanistan, and surrounding duty stations have lost limbs, been diagnosed with post traumatic stress disorder (PTSD), and have sustained brain, spinal cord, and other injuries. Now, they are coming home and seeking to return to their former jobs or looking to find their first, or new, civilian jobs. Despite their injuries, many do not view themselves as "disabled." I know from personal experience that my big brother, a U.S. Marine who fought in Vietnam, did not.

A 6'4", strapping, former high school football player, Willie voluntarily joined the military in 1964. A year later, he was deployed to Vietnam, where he spent 13 months on active duty. Although he was fortunate to return home without any obvious physical injuries, he definitely returned a changed man. Inexplicably, he would "space out" during conversations and unconsciously tap his foot; he also had recurring nightmares, was more easily irritated, and refused to look at any war movies. In retrospect, I am convinced that he had PTSD. Still, shortly after coming home, he managed to find an entry-level job managing a local gas station for a major oil company and eventually became a regional manager. In 1988, after years of chronic hypertension, his kidneys failed and he had to undergo dialysis three days a week for three hours a day. Yet, living by the motto "once a Marine, always a Marine," he rarely missed a day of work or asked to change his schedule to accommodate his dialysis treatments. My brother died one month before the ADA was passed.

A lot has changed since passage of the ADA in 1990. Although myths and stereotypes about disability obviously still exist, there is a greater understanding now than ever before that "disability" does not mean "inability." In 2008, we issued the guide on veterans because we wanted veterans to know what the ADA is, what rights they have, and what accommodations will work for them. We also wanted employers to know that many veterans with disabilities are able to – and want to – work.

A. Definition of Disability

One of the concepts both guides discuss is the relationship of the ADA's definition of "disability" to the term "service-connected disability," generally defined as a disability that was incurred or aggravated in the line of duty. The ADA defines an "individual with a disability" as a person who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment (i.e. was substantially limited in the past, such as prior to undergoing rehabilitation); or (3) is regarded, or treated by an employer, as having a substantially limiting impairment.

Now, as a result of the ADA Amendments Act (ADAAA) of 2008, it is much easier for individuals with a wide range of impairments to establish that they are individuals with disabilities, and updated versions of our guides will shortly be reissued to reflect this development. For example, the term "major life activities" includes not only activities such as walking, seeing, hearing, and concentrating, but also the operation of major bodily functions, such as functions of the brain and the neurological system.i Additionally, unlike the law as it had been interpreted prior to the amendments, the ADA no longer requires that an impairment prevent or severely or significantly restrict an individual's performance of a major life activity to be considered substantially limiting.ⁱⁱ The determination of whether an impairment substantially limits a major life activity must be made without regard to any mitigating measures (e.g., medications or assistive devices, such as prosthetic limbs) that an individual may use to lessen an impairment's effects,ⁱⁱⁱ and impairments that are episodic or in remission (e.g., epilepsy or post-traumatic stress disorder) are considered disabilities if they would be substantially limiting when active.^iv

Although the ADA uses different standards than the military and the U.S. Department of Veterans Affairs in determining disability, many more service-connected disabilities will be considered disabilities under the ADA than prior to the ADAAA. In fact, some service-connected disabilities, such as deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and PTSD, will easily be concluded to be disabilities under the ADA.^v As a result of the ADAAA, more veterans with service-connected disabilities than ever will be assured that the law will protect them from discrimination and that they will be able to obtain needed reasonable accommodations

B. Reasonable Accommodation

Both guides point out that the ADA requires employers to provide adjustments or modifications to enable people with disabilities – including veterans – who are looking for jobs and are already in the workplace to enjoy equal employment opportunities unless doing so would be an undue hardship.

1. Requests for Reasonable Accommodation

Although an applicant or employee with a disability generally has to request an accommodation, making a request is easy. The ADA does not require an individual to submit a written request for accommodation, mention the ADA, or use the term "reasonable accommodation." In fact, an individual does not have to explicitly say, "I have a disability" to start the interactive process. Rather, a person simply needs to tell the employer that he or she needs an adjustment or change in the application process or at work for a reason related to a medical condition. For example, if a veteran has a vision loss and cannot read standard print, he would need to inform a prospective employer that he needs the application materials in some other format (e.g., large print or on computer disk) or read to him. Someone acting on a veteran's behalf, such as a family member, rehabilitation counselor, health professional, or other representative, also can make the request. The guides explain that a person also may request an accommodation at any time during the application process or when he starts working even if he did not ask for one when applying for a job or after receiving a job offer.

2. Types of Accommodations

Both guides discuss a number of accommodations that veterans – or any employee, for that matter – might need in order to participate in the job application process, do a job's essential functions, or enjoy equal benefits and privileges of employment. While not all veterans with service-connected disabilities will need an accommodation or require the same accommodation, some veterans will need modified or part-time work schedules, permission to work from home, or leave for treatment of -- or recuperation from -- a disability. These are certainly accommodations that would have helped my brother. Others may need modified equipment or devices (e.g., assistive technology that would allow someone who is blind to use a computer or someone who is deaf or hard of hearing to use a telephone; a glare guard for a computer monitor for a veteran with a traumatic brain injury; a one-handed keyboard for a person missing an arm or hand; or a reconfigured workspace for someone who uses a wheelchair). A veteran with a traumatic brain injury or PTSD may need a job coach who can initially assist him if he has some difficulty learning or remembering what to do or may need a supervisor to break complex assignments into smaller, separate tasks.

3. Obtaining, Using, and Disclosing Medical Information

The guides also discuss the ADA's restrictions on an employer's ability to ask questions related to a veteran's service-connected or other disability and explain that a veteran is not required to disclose that he has a disability -- or any medical condition -- unless he will need a reasonable accommodation. The guides acknowledge, however, that some veterans may choose to disclose that they have a medical condition, such as PTSD or a traumatic brain injury, because of symptoms they experience or because they will need some change or adjustment to do their jobs.

In addition, an employer may ask applicants to voluntarily self-identify as individuals with disabilities or "disabled veterans" for affirmative action purposes. Finally, the guides explain that, though it is not required, employers may ask applicants, including veterans, to voluntarily disclose information about disabilities in order to give them preferences in hiring.

III. Conclusion

We believe our guides help veterans with disabilities understand their rights in the workplace, and serve as an important reminder to employers of their obligations under the ADA to provide reasonable accommodations. Each guide also includes a list of resources to help veterans who are looking for jobs and employers who want to recruit and hire them. In the days and weeks following this meeting, OLC will be updating the guides for republication. We welcome input from our panel members about how we can make these guides an even better resource for veterans with disabilities and for employers.

I again want to thank you for letting me testify today about EEOC's efforts to help eliminate the barriers to the employment of veterans with disabilities. I will be happy to later answer any questions you may have.

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Footnotes

ⁱ29 C.F.R. § 1630.2(j)(i)(1).

ⁱⁱ 29 C.F.R. § 1630.2(j)(1)(ii).

ⁱⁱⁱ 29 C.F.R. § 1630.2(j)(i)(vi).

^iv 29 C.F.R. § 1630.2(j)(1)(vii).

^v 29 C.F.R. § 1630.2(j)(3).