ADAAA Sets Stage for Wild Ride

Ever since the Americans with Disabilities Amendments Act (ADAAA for short) became effective, there have been hand-wringing predictions about the nuclear winter of disability discrimination. Not to boast, but I predicted this well before the new law became effective.

A New York Times article on a new study out of Harvard doesn’t mention the ADAAA, but it’s all I could think about as I read the article. Let’s begin with Edgar Allan Poe’s The Imp of the Perverse, an old essay with new meaning for human resources professionals and employment lawyers.

Unspeakable things beg to be spoken in many workplace settings: a job interview; a performance review; a meeting where the newest HR policy is explained; a diversity training session. Things like, “You’re an idiot,” and “I’ll hurt you,” not to mention sexist jokes and racial slurs. According to Poe, “That single thought is enough . . . . There is no power in nature so demoniacally impatient, as that of him, who shuddering upon the edge of a precipice, thus meditates a plunge.”

The adult brain expends as much energy on inhibition as on action, and mental health relies on the brain’s normally sensitive, social filter to suppress deeply disturbing thoughts. And so, if an employee suffers from the mental inability to engage in stereotype suppression (what some would call stereotype hyperaccissibility), she would seem to have a disability as now defined under the ADAAA.

The reasonable accommodation? Let the employee say what she’s incapable of suppressing. It’ll promote a spirit of honest workplace communications. What’s wrong with letting the idiots you work with know their idiots?

But wait. If the thing insuppressible is a threat, an inappropriate sexual remark, a racial epithet, then the reasonable accommodation will cause liability under Title VII and other discrimination laws. You see what I mean. We’re in for a wild ride.