Learning disability

[maddgore]

Jurisdiction

Louisiana

My husband has a severe learning disability (dyslexia). He has been employed at his current job for 14 years as a Master Operator. He is a very skilled heavy equipment operator with a class B CDL driver's license. Recently his employer started requiring Master Operators to have a class A CDL driver's license and provide classes and training. My husband and another employee explained they have a learning disability and needed additional assistance with testing. None was provided. He was told he was required by a certain date to have the required Class A CDL or would be demoted to a Utility Operator.
Is this a case of discrimination? If so, who should he contact?

 

[army judge]

Is this a case of discrimination?

No, I don't see anything that you've described to be discriminatory in any form, shape, or manner.

This MIGHT help you better understand "disability", as described by the ADA.

The Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq., generally prohibits employment discrimination by "covered entities" against a "qualified individual with a disability." "Covered entities" include employers, employment agencies, labor organizations, joint labor-management committees, and "discrimination" is prohibited in connection with job applications, hiring, firing, promotion, pay, training, and all other terms, conditions, benefits, and privileges of employment. The law also applies to job recruitment and advertising. Employers and other covered entities are required to make "reasonable accommodations" for the known physical or mental limitations of individuals with disabilities.

The ADA applies to employers with 15 or more employees, including private employers and state and local governments. Excluded from coverage under the ADA are the federal government and corporations owned by the federal government (which in general are covered by the 1973 Rehabilitation Act), Native American Indian tribes, bona fide tax-exempt private membership clubs, and certain religious organizations.

Defining "Disability"

Under the ADA, an individual with a disability is one who 1) has a physical or mental impairment that substantially limits one or more major life activities, 2) has a record of such impairment, or 3) is regarded as having such an impairment.

"Major life activities" are things such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, like the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The existence of a disability is determined without consideration of "miti-gating measures" such as medication, medical supplies, and assistive technology devices such as hearing aids or mobility devices.

A condition that comes and goes, or that is in remission, is considered a disability if that condition substantially limits a major life activity when it is active. However, a condition that only lasts a short time – such as a sprained ankle, broken leg, or seasonal flu – generally would not be covered.

A person who has a past record of a disability, or who has a history of a disability, even if they do not have a disability now, is protected from dis-crimination. This part of the definition might cover, for example, a person who has recovered from cancer or mental illness.

A person meets the requirement of being "regarded as having such an impairment" if they are treated as if they had a disability, even if they do not in fact have, and never had, a disability.

Excluded Classes

The ADA excludes from its definition of "disability" homosexuality, bisexuality, transvestism, and transsexualism. Pedophilia, exhibitionism, and voyeurism are also excluded. If an individual with one of these conditions also has an impairment that is considered a disability under the ADA, then that individual will be covered with regard to that impairment.

Both the ADA and the Rehabilitation Act of 1973 allow employers to take actions against employees for current drug abuse, and against employees whose use of alcohol affects their job performance. Employers may not, however, discriminate against a past or rehabilitated illegal drug user or alcoholic.

Qualified Individual

A "qualified individual with a disability" is a person with a disability who can perform the essential functions of a job. If the person is able to perform the essential functions of the job except for limitations caused by the disability, the employer must consider whether the person could perform these functions with reasonable accommodations.

Generally, it is the employer who determines the essential functions of the job. The ADA does not require employers to formulate and maintain job descriptions. Written descriptions can help determine what the essential functions of a job are, but they are not the only evidence and are not always accurate.

Reasonable Accommodation/Undue Hardship

The ADA requires an employer to make a "reasonable accommodation" to the known physical or mental limitations of an otherwise qualified person with a disability, unless to do so would impose an "undue hardship." A "rea-sonable accommodation" may be any change in or adjustment to a job, or to the work environment, that enables a qualified applicant or employee with a disability to apply for the job, to do the essential job functions, or to have equal rights on the job. Examples include installing ramps and making struc-tural modifications for an employee using a wheelchair, providing a TDD or a sign language interpreter for a deaf employee, or restructuring a job so that its essential functions can be performed by an individual with a disability.

An employer will not be required to make an accommodation if to do so would impose an "undue hardship." An undue hardship is defined as "an action requiring significant difficulty or expense." To determine whether an accommodation would impose an undue hardship, the following factors will be considered: 1) the nature and size of the accommodation; 2) the size, type, and financial resources of the specific facility where the accommodation would have to be made; 3) the size, type, and financial resources of the covered employer; and 4) the covered employer's type of operation, including the composition, structure, and functions of its work force, and the geographic separateness and administrative or fiscal relationship between the facility and the covered employer.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that would not be an undue hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying some of the costs or getting the accommodation from another source.

There is a detailed explanation of the reasonable accommodation requirement in the EEOC handout online at: Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA.

If you are trying to get help on figuring out what accommodation might be appropriate, you or your employer might contact the Job Accommodation Network (JAN) at 1-800-526-7234 (Voice), 1-877-781-9403 (TTY).

Employment Rights of Individuals with Disabilities: Rights Under the ADA, Sections 503 & 504 of the Rehabilitation Act, & LA Law - Disability Rights Louisiana

DOWNLOAD PDF Disability Rights Louisiana is a private, non-profit corporation designated by the Governor as Louisiana's protection and advocacy agency for persons with developmental disabilities, severe disabilities, and mental illness; and as the Client Assistance Program for clients of the...

disabilityrightsla.org

 

[justblue]

My husband has a severe learning disability (dyslexia). He has been employed at his current job for 14 years as a Master Operator. He is a very skilled heavy equipment operator with a class B CDL driver's license. Recently his employer started requiring Master Operators to have a class A CDL driver's license and provide classes and training. My husband and another employee explained they have a learning disability and needed additional assistance with testing. None was provided. He was told he was required by a certain date to have the required Class A CDL or would be demoted to a Utility Operator.
Is this a case of discrimination? If so, who should he contact?

I am dyslexic. I don't understand what additional assistance he would need with testing. Please clarify. Thank you.

 

[maddgore]

I am dyslexic. I don't understand what additional assistance he would need with testing. Please clarify. Thank you.

He is unable to read or write. But he understands verbal and visual training/testing.

 

[cbg]

For the record, I do not agree with Army Judge entirely.

But please clarify for me. Did your husband ask for "additional assistance" in general? Or did he specify what kind of assistance he wanted?

For that matter, what kind of assistance did he want?

 

[Tax Counsel]

Is this a case of discrimination? If so, who should he contact?

It's a form of discrimination. But it's important to remember that most discrimination is legal. For example, an employer preferring an applicant with a college degree over one who doesn't is discrimination in favor of those with college degrees. That is legal discrimination though.

Of course, what you want to know is whether your husband's employer's action here may have been illegal. Under the ADA an employer must provide reasonable accommodation to assist a disabled (whether the disability is physical or mental) employee in order to give the employee the opportunity to do the job at the required level of skill.

When it comes to taking tests, the nature of the test and the help requested matter a great deal. The object of the law is help level the playing field for the disabled employee, not provide the employee an advantage over other test takers. It can be hard to determine what accommodation must be provided and what is more than the law requires.

We don't have all the information here that would needed to give you and your husband a firm answer to you question. For that, your husband really needs to discuss this with an attorney who represents employees in employment discrimination cases. He shouldn't wait too long. The process of pursuing an employment wrongful discrimination case starts with filing a complaint with the federal Equal Employment Opportunity Commission (EEOC) and//or the state agency that enforces state illegal discrimination cases. If his job is in Lousiana then he has 300 days from the act of illegal discrimination to file a complaint with the EEOC or Louisiana Commission on Human Rights. Because the state and the EEOC have a cross filing agreement filing with one of them counts as filing with both, but make sure you ask the complaint also be forwarded to the other agency.

The first step, though, is for your husband to try to work it out with the employer. Then see the attorney, who may also contact the employer to resolve this while also filing the charges with the EEOC or LCHR. It's important to keep that complaint deadline in mind whatever else your husband does.

Note that attorneys typically take these cases on a contingent fee basis, which means the lawyer gets a share of any judgment collected as his/her fee. If the judgment goes in favor of th employer there is no legal fee to pay, but there may be some other expenses to pay. Also attorneys typically offer a free consultation so your husband loses nothing by meeting with a couple of attorneys to hear their view of his situation and if he decides to go forward with the process to sue the employer he'll have at least a couple of choices of attorney and can go with the one he feels will do the best for him and with whom he is most comfortable working with.

 

[army judge]

He is unable to read or write. But he understands verbal and visual training/testing.

Your initial claim of dyslexia is a far cry from illiteracy.

Illiteracy is not now, nor was ever it a disability.

illiterate

adjective

il·lit·er·ate (ˌ)i(l)-ˈli-t(ə-)rət

Synonyms of illiterate

1​

: having little or no education
especially : unable to read or write
an illiteratepopulation

2​

: showing or marked by a lack of acquaintance with the fundamentals of a particular field of knowledge
musically illiterate

 

[Tax Counsel]

Your initial claim of dyslexia is a far cry from illiteracy.

Illiteracy is not now, nor was ever it a disability.

True, illiteracy is not iself a disabilty. But if the person has a mental disability that prevents them from being able to learn to read and write, that underlying disability may be protected by the ADA. For example, I know a musician whose dyslexia makes it nearly impossible to write the music she composes. In her case, she's self-employed so the ADA isn't at issue, but she needs her sister to aid her in writing out the musical score. The music she composes and performs is stunning but she just needs some help with that one part of it. If she were, say, an employee of an orchestra that may well be something the ADA would cover.

In short, I think it makes a difference why the person is illiterate. If it's simply because the person never made the effort to learn it that's not a disability. But if the person has a mental condition that makes it very difficult or impossible to learn to read and write, that underlying mental condition would be a disability.

 

[maddgore]

No, I don't see anything that you've described to be discriminatory in any form, shape, or manner.

This MIGHT help you better understand "disability", as described by the ADA.

The Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq., generally prohibits employment discrimination by "covered entities" against a "qualified individual with a disability." "Covered entities" include employers, employment agencies, labor organizations, joint labor-management committees, and "discrimination" is prohibited in connection with job applications, hiring, firing, promotion, pay, training, and all other terms, conditions, benefits, and privileges of employment. The law also applies to job recruitment and advertising. Employers and other covered entities are required to make "reasonable accommodations" for the known physical or mental limitations of individuals with disabilities.

The ADA applies to employers with 15 or more employees, including private employers and state and local governments. Excluded from coverage under the ADA are the federal government and corporations owned by the federal government (which in general are covered by the 1973 Rehabilitation Act), Native American Indian tribes, bona fide tax-exempt private membership clubs, and certain religious organizations.

Defining "Disability"

Under the ADA, an individual with a disability is one who 1) has a physical or mental impairment that substantially limits one or more major life activities, 2) has a record of such impairment, or 3) is regarded as having such an impairment.

"Major life activities" are things such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, like the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The existence of a disability is determined without consideration of "miti-gating measures" such as medication, medical supplies, and assistive technology devices such as hearing aids or mobility devices.

A condition that comes and goes, or that is in remission, is considered a disability if that condition substantially limits a major life activity when it is active. However, a condition that only lasts a short time – such as a sprained ankle, broken leg, or seasonal flu – generally would not be covered.

A person who has a past record of a disability, or who has a history of a disability, even if they do not have a disability now, is protected from dis-crimination. This part of the definition might cover, for example, a person who has recovered from cancer or mental illness.

A person meets the requirement of being "regarded as having such an impairment" if they are treated as if they had a disability, even if they do not in fact have, and never had, a disability.

Excluded Classes

The ADA excludes from its definition of "disability" homosexuality, bisexuality, transvestism, and transsexualism. Pedophilia, exhibitionism, and voyeurism are also excluded. If an individual with one of these conditions also has an impairment that is considered a disability under the ADA, then that individual will be covered with regard to that impairment.

Both the ADA and the Rehabilitation Act of 1973 allow employers to take actions against employees for current drug abuse, and against employees whose use of alcohol affects their job performance. Employers may not, however, discriminate against a past or rehabilitated illegal drug user or alcoholic.

Qualified Individual

A "qualified individual with a disability" is a person with a disability who can perform the essential functions of a job. If the person is able to perform the essential functions of the job except for limitations caused by the disability, the employer must consider whether the person could perform these functions with reasonable accommodations.

Generally, it is the employer who determines the essential functions of the job. The ADA does not require employers to formulate and maintain job descriptions. Written descriptions can help determine what the essential functions of a job are, but they are not the only evidence and are not always accurate.

Reasonable Accommodation/Undue Hardship

The ADA requires an employer to make a "reasonable accommodation" to the known physical or mental limitations of an otherwise qualified person with a disability, unless to do so would impose an "undue hardship." A "rea-sonable accommodation" may be any change in or adjustment to a job, or to the work environment, that enables a qualified applicant or employee with a disability to apply for the job, to do the essential job functions, or to have equal rights on the job. Examples include installing ramps and making struc-tural modifications for an employee using a wheelchair, providing a TDD or a sign language interpreter for a deaf employee, or restructuring a job so that its essential functions can be performed by an individual with a disability.

An employer will not be required to make an accommodation if to do so would impose an "undue hardship." An undue hardship is defined as "an action requiring significant difficulty or expense." To determine whether an accommodation would impose an undue hardship, the following factors will be considered: 1) the nature and size of the accommodation; 2) the size, type, and financial resources of the specific facility where the accommodation would have to be made; 3) the size, type, and financial resources of the covered employer; and 4) the covered employer's type of operation, including the composition, structure, and functions of its work force, and the geographic separateness and administrative or fiscal relationship between the facility and the covered employer.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that would not be an undue hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying some of the costs or getting the accommodation from another source.

There is a detailed explanation of the reasonable accommodation requirement in the EEOC handout online at: Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA.

If you are trying to get help on figuring out what accommodation might be appropriate, you or your employer might contact the Job Accommodation Network (JAN) at 1-800-526-7234 (Voice), 1-877-781-9403 (TTY).

Employment Rights of Individuals with Disabilities: Rights Under the ADA, Sections 503 & 504 of the Rehabilitation Act, & LA Law - Disability Rights Louisiana

DOWNLOAD PDF Disability Rights Louisiana is a private, non-profit corporation designated by the Governor as Louisiana's protection and advocacy agency for persons with developmental disabilities, severe disabilities, and mental illness; and as the Client Assistance Program for clients of the...

disabilityrightsla.org

For the record, I do not agree with Army Judge entirely.

But please clarify for me. Did your husband ask for "additional assistance" in general? Or did he specify what kind of assistance he wanted?

For that matter, what kind of assistance did he want?

He has asked for questions and answers to be read to him and extra time to learn the walk around inspection of the vehicle. He was not provided any accommodation.

 

[justblue]

DSM-5 Changes in Diagnostic Criteria for Specific Learning Disabilities (SLD)1: What are the Implications? - International Dyslexia Association

In May 2012, we brought to your attention that the American Psychological Association was revising the Fourth Edition of the Diagnostic and Statistical Manual

dyslexiaida.org

I was VERY fortunate to get Dx'ed early (1971, I was six) and that I lived close to Boston, where the very best children's hospital in the world was/is located. Also, I was blessed with amazing parents that were receptive to the teachers concern that I had a LD, many of my friends' parents would not have been so receptive. When I was in school, many adults considered dyslexia some kind of intellectual impairment, sadly even some of my teachers.

The key is early intervention.

Now I am a voracious reader. But spelling is more of a challenge... thank goodness for spell check.

 

[maddgore]

True, illiteracy is not iself a disabilty. But if the person has a mental disability that prevents them from being able to learn to read and write, that underlying disability may be protected by the ADA. For example, I know a musician whose dyslexia makes it nearly impossible to write the music she composes. In her case, she's self-employed so the ADA isn't at issue, but she needs her sister to aid her in writing out the musical score. The music she composes and performs is stunning but she just needs some help with that one part of it. If she were, say, an employee of an orchestra that may well be something the ADA would cover.

In short, I think it makes a difference why the person is illiterate. If it's simply because the person never made the effort to learn it that's not a disability. But if the person has a mental condition that makes it very difficult or impossible to learn to read and write, that underlying mental condition would be a disability.

He was recently diagnosed with intellectual development disorder which includes dyslexia but was not treated properly during his childhood education.

 

[maddgore]

DSM-5 Changes in Diagnostic Criteria for Specific Learning Disabilities (SLD)1: What are the Implications? - International Dyslexia Association

In May 2012, we brought to your attention that the American Psychological Association was revising the Fourth Edition of the Diagnostic and Statistical Manual

dyslexiaida.org

I was VERY fortunate to get Dx'ed early (1971, I was six) and that I lived close to Boston, where the very best children's hospital in the world was/is located. Also, I was blessed with amazing parents that were receptive to the teachers concern that I had a LD, many of my friends' parents would not have been so receptive. When I was in school, many adults considered dyslexia some kind of intellectual impairment, sadly even some of my teachers.

The key is early intervention.

Now I am a voracious reader. But spelling is more of a challenge... thank goodness for spell check.

That is exactly what he was recently diagnosed with. None of the educational programs he was provided during his childhood helped in anyway. He also had private tutors after school to try to help with no luck.

 

[justblue]

That is exactly what he was recently diagnosed with. None of the educational programs he was provided during his childhood helped in anyway. He also had private tutors after school to try to help with no luck.

Can he read at all? Even basic reading? Did the Doctor that did the recent diagnoses recommend any follow up to help your husband learn to read?

I would suggest getting both paper and audio books from the library and he can listen as he reads along.
That may help him gain greater skills. And the more he reads the better he will get. Eventually his brain will develop a kinda auto correct when he reads. It's hard to put into words... as I read, when my eyes and brain are not communicating correctly the most logical word (in context to the subject being read) is inserted. It is just an automatic thing that happens.

Start with something simple but of an interesting subject matter to him.

I do wish him the very best.