Tuesday, December 1, 2009

Employment Discrimination Testimony Transcript

Testimony given to the US Equal Employment Opportunity Commission and Department of Justice Civil Rights Division, Town Hall Listening Session on the ADAAA Proposed Regulations, Philadelphia, PA, 10/30/09; Stuart Ishimaru, Acting Chairman of the Equal Employment Opportunity Commission, presiding.

MR. ISHIMARU: Next we have Ari Ne’eman. We look forward to your statement and welcome.

ARI NE’EMAN: Thank you very much and thank you for the chance.

I represent the Autistic Self Advocacy Network, a group of Autistic people speaking for ourselves.

For too long, prior to the passage of the ADA Amendments Act, the approach of addressing discrimination and of viewing the difficulties that those on the autism spectrum face through the context of discrimination rather than merely through the context of impairment or charity was one that was all too often not taken in the autism world. With the passage of the ADA Amendments Act, and the promulgation of regulations implemented with a unique view to building a culture of civil rights that coincides with the growing recognition of the rights of those of us on the autism spectrum, those who desire to speak for themselves and take an active role in how we are viewed in society are trying to address the ways in which the society still poses obstacles.

We're very pleased by the regulations proposed in order to implement the ADA Amendments Act. And we have three broad suggestions in terms of how to improve them for adults and youth on the autism spectrum seeking to find and maintain, and avoid discrimination in the context of, employment.

First, we note that autism was included amongst the list of examples of impairments that will consistently meet the definition of disabilities. We would like to suggest that this be somewhat clarified to broaden the term to autism spectrum disability, rather than just simply autism, seeing as the term autism is commonly understood to refer to five diagnoses in the DSM-IV: Autistic disorder, Asperger syndrome, and others on the autism spectrum. Now, these different diagnoses have somewhat different characteristics, but they all substantially limit communicating, interacting with others and learning. As a matter of fact, in the DSM-V, the next edition, it has been proposed that these diagnoses be combined into a single autism spectrum disorder or autism spectrum disability diagnosis reflecting the fact that for more individuals, the particular autism spectrum disability diagnosis they receive is largely dependent upon what professional they visited or what region of the country they should happen to live in. We believe that clarifying the language to reflect autism spectrum disability will ensure that all autism diagnoses are covered.

Second, we also believe that in respect to the "regarded as" from the symptoms of impairment leading to adverse actions by employers, when this is brought up, that some consideration for the needs of people with invisible disabilities must be addressed in respect to the facts for people with invisible disabilities. One of the greatest difficulties is that our symptoms of impairment are extent to a lesser extent in the general population. We propose that a phrase be added in the section under actions taken based on symptoms of an impairment or based on use of mitigating measures, clarifying that an action taken on the basis of behavioral symptoms also present in the general population also constitutes an action covered under the "regarded as" prong. For example, an individual who is dismissed from a data entry job because he or she does not make eye contact with their supervisor, even if the employer is unaware of the autism spectrum disorder or disability, should still be covered under the "regarded as" prong of this definition.

Third, we also encourage that in respect to section 1630.10, discussing qualification testing and qualification tests, that particular focus be given in the example of a specific example of the ways in which personality tests are administered by many employers. As a matter of fact, a 2003 survey by Management Recruiters International found that 30% of American companies use personality tests, which often act to serve as an obstacle to the full access and the equal consideration in employment and hiring decisions for people with social communication disabilities. As such, we propose the inclusion of an example, to make this section more actionable for those of us with invisible disabilities and for those of us with communication disabilities and focusing on whether or not employees are asked questions as a condition of hiring or relating to social relationships or anxiety in social or other contexts. We feel that this will have an effect on employment discrimination in hiring and promotion for people with invisible disabilities.

Overall, we were extremely pleased by the quality of these regulations. And our community is looking forward to working with the Equal Employment Opportunity Commission and working with the broader civil rights community to help build a culture of civil rights and a culture of ADA enforcement in the autism spectrum disability community and beyond.

Thank you very much for your time and I would be glad to answer any questions.

MR. ISHIMARU: Thank you very much. Very, very helpful. Are there any questions? No? I think you were pretty clear.

MR. ISHIMARU: I actually have one. On the personality tests, do you have a feel of how often they're used and for people with autism spectrum disability issues, are they ... will they always root out people who have the disability or does it happen more often than not?

ARI NE’EMAN: Well, this is something that's a growing concern in the human resources context. And one of the issues is that the use of personality testing is growing significantly, with 30% of American companies utilizing them in one form or another. There's a tremendous amount of diversity in terms of what personality tests are being utilized, the level of science that might back them and there's actually been in the disability context and we know in the context of social communication disabilities, in large part, because of the very issues that led to the passage of the ADA ... very little consideration as to the extent to which these personality tests are focusing on job-related tasks that would be covered by a matter of business necessity. We believe the anecdotal experience of many of our members and those of us on the autism spectrum show that these tests do tend to screen out adults on the autism spectrum. Particularly, because they're being applied in contexts that do not necessarily have those particular skill sets within the essential functions of that job. It's one thing if these tests are being applied in the context of sales force determination. It's another thing to be applied in an engineering context or in a data entry job or in another type of job. So we know that these are relatively widespread and we do know that they tend to, because they are generally focused on the nature of the employee's social interaction, the nature of the employee's private life, the nature of the prospective employee, to screen out many individuals on the autism spectrum and with other social communication disabilities or with other invisible disabilities.

MR. ISHIMARU: Very good. Thank you very much. Very helpful.

ASAN has posted the transcript of this testimony on our main website, and it is also available on the EEOC website. Please feel free to repost it if you so wish.


jonathan said...

I believe that Ari should go out and get a job before he gives testimony like this. A 21-year-old who has never been employed is not qualified to do such things.

Anonymous said...

Do you actually disagree with the testimony, Jonathan, or do you just think you should be the one giving it?

jonathan said...

yes, i disagree with the testimony, you can read the most recent post on my blog, www.autismgadfly.blogspot.com for the reasons why.

It is possible that is Ari had more life experience, including having had one paid job in his life, he would understand why his testimony before the EEOC is useless.

asansouthwestohio said...

Jonathan, I realize that you are not very familiar with the law; but briefly, there is quite a lot of case law on how to determine whether an employer's claimed reasons for firing or taking other actions against an employee are just pretexts for discrimination. If there is evidence to suggest that something might be a pretext, the case goes to the jury. So an employee can win a case (or, more often, get a settlement after the court denies the employer's motion for summary judgment) without any admission of wrongdoing by the employer.

The equal employment opportunity laws have in fact greatly improved job opportunities for racial minorities, women, and other groups. Although disability discrimination is still a serious problem, better enforcement efforts will help.


jonathan said...

Meg, have you ever been employed as anything at all? Or are you just a college student never employed like ari ne'eman.

What does the person have to go through to win the case assuming there is proof? How much do they have to pay in attorney fees? How many years do they have to spend litigating the case.

Even if you have examples of blacks or other minorities, can you cite a single example of an autistic person who EEOC legislation has helped.

Interesting that with the exception of Nate Tseglin, ASAN can't seem to come up with any examples of any autistic individuals that have been helped in any way by any of their legislative lobbying or any of their other activities.

What you don't understand, Meg, likewise with Ne'eman is that autistic people are impaired and their impairments actually do prevent them from making a living discrimination aside.

asansouthwestohio said...

There have been a few discrimination cases involving autistic people, but not many yet. You can find the agency enforcement statistics on the EEOC website, if you're interested.

Also, here's an article on a bullying case from last year, which the employer settled by paying the victim $70,000 and agreeing to improve its antidiscrimination policies.

And yes, I am employed and making a living...

NightStorm The Aspiewolf said...

I am also employed myself. I would like to see more opportunity for autists to be educated in the ADA and know their rights.