CFIDS IN THE WORKPLACE
By Matthew I. Kozinets

Despite the debilitating symptoms of chronic fatigue and immune dysfunction syndrome (CFIDS), many persons with CFIDS (PWCs) can work part or full time. Some PWCs never lose their ability to work. Others return to work after one or more years of rest and medical treatment.

While the ability to work is life-affirming and even joyous, PWCs are vulnerable to employment discrimination. Fears and misperceptions of CFIDS persist in our society. As a result, an employer may discharge, refuse to hire or fail to provide reasonable accommodations for a person because (s)he has CFIDS. A PWC who enters the work force should know how to protect him or herself from employment discrimination.

Title I of the Americans with Disabilities Act (ADA) is foremost among state and federal laws that protect disabled individuals from employment discrimination. Title I provides:  

No employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." (§42 U.S.C. Section 12112(a))

This general rule includes two important employment rights: equal treatment and reasonable accommodation. These rights promise to provide equal opportunities in the workplace for persons with disabilities. That is, opportunities not limited by prejudice, but equal to the jobs and benefits that individuals without disabilities enjoy.

A person with a disability may exercise these rights if (s)he fulfills certain responsibilities. (S)he must be qualified for the job sought, disclose his or her disability to the employer if a reasonable accommodation is needed, and contact the U.S. Equal Employment Opportunity Commission (EEOC) when a discriminatory act occurs. By fulfilling these responsibilities, a PWC may protect him or herself from employment discrimination and enjoy equal opportunities in the workplace.

Equal Treatment
Equal treatment is the right to be treated the same as other job applicants or employees. The ADA's right to equal treatment is modeled on Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on five protected characteristics: race, color, religion, sex or national origin. For example, an employer may not discharge an employee simply because (s)he is African-American.

Basically, Title I of the ADA adds "disability" to this list of protected characteristics. Thus if a qualified PWC applies for a job, an employer may not reject him or her simply because (s)he has CFIDS. The employer must give a qualified PWC the same consideration that an applicant with no disability is given.

Reasonable Accommodation
In addition to equal treatment, Title I of the ADA provides the right to reasonable accommodation. A reasonable accommodation is a modification in the work environment or in the typical methods of job performance. For example, a ramp may serve as a reasonable accommodation for a wheelchair-using employee whose work environment includes stairs. The purpose of this is to remove barriers from the workplace so that a disabled person may enjoy the same employment opportunities as other individuals. Failure to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability who is an applicant or employee may constitute employment discrimination under the ADA. (§42 U.S.C. Section 12212(b)(5)(A))

A PWC may need a reasonable accommodation to perform his or her job. For example, a PWC may be unable to maintain a rigid work schedule because CFIDS symptoms wax and wane unpredictably. As a result, he or she may request flextime as a reasonable accommodation. Flextime is a flexible work-when-able schedule. This would allow a PWC to work only during the time of day when (s)he feels best, or only on days when (s)he feels well enough to get out of bed.

Also, a PWC may be unable to work continuously for a prolonged period of time since persistent physical exhaustion characterizes CFIDS. In this case, a PWC may request rest breaks and a mat or couch to lie down on as a reasonable accommodation. Or a PWC may ask to work at home since commuting may exhaust him or her and a home office may facilitate more comfortable rest breaks.

Additionally, a PWC may be unable to perform certain physical or mental tasks due to physical weakness, pain or cognitive impairment. Reasonable accommodations that may benefit a PWC who cannot perform certain tasks include: reassignment of nonessential job duties to other workers; a scooter to alleviate walking; a cart with wheels if the job entails carrying; and lateral job changes to positions that are physically or mentally less stressful.

If a PWC needs assistance in determining reasonable accommodations for her job (s)he should call the Job Accommodation Network (see "For More Information" below). The President's Committee on Employment of People with Disabilities funds this information service.

While an employer has an affirmative duty to provide reasonable accommodation, an employer need not provide an accommodation if it imposes an undue hardship on the employer's business. (Id.) An "undue hardship" is a significant difficulty or expense. Factors to consider in determining undue hardship include the cost of the accommodation, the financial resources of the employer and the impact of the accommodation upon the employer's operation. (§42 U.S.C. Section 12111(10)(B)) For example, flextime may not be a reasonable accommodation because it may impose a significant cost to an employer. If flextime requires an employer to keep an office open during nontraditional work hours, an employer may incur higher utility and security costs. Or flextime may impose a significant difficulty on an employer. Flextime may disrupt an employer's operation if (s)he needs employees to work prearranged shifts. Thus the right to reasonable accommodation balances the needs of the disabled employee with the capabilities of the employer.

Qualified Individual with a Disability
While the ADA provides employment rights to disabled individuals, the Act also includes several responsibilities. The first responsibility is that a disabled individual must be qualified for the job (s)he seeks. The ADA offers no protection to unqualified individuals. "Qualified" means possessing the skill, education and experience that the job demands, and being able to perform "the essential functions of the job with or without reasonable accommodation." (§42 U.S.C. Section 12111(8))

A PWC should determine whether or not (s)he is qualified to perform a job before (s)he applies for it. (S)he should check his or her credentials to make sure (s)he has the requisite education, skills and experience, and assess whether physical or mental limitations will prevent him or her from performing the essential functions of the job with or without reasonable accommodations.

An "essential function" is a fundamental job duty - a main task. If a PWC can perform these duties with or without reasonable accommodation, (s)he may be qualified for the job (s)he seeks. For example, the essential functions of an office job may include answering the telephone, typing and light photocopying. If a PWC can perform these functions with the reasonable accommodation of rest breaks, (s)he may be qualified for the job. Occasionally, the job may require heavy photocopying in which an employee must stand at the copy machine for more than a few minutes. A PWC may be unable to do this task if CFIDS prevents standing for prolonged periods of time. However, (s)he may still be "qualified" for this job if heavy photocopying is not a fundamental job duty but only a marginal task.

A PWC may have difficulty assessing whether (s)he is qualified to perform a particular job. This assessment requires a PWC to fully acknowledge the impact of CFIDS upon his or her life, which can be depressing. However, if a PWC is unrealistic about physical or mental limitations and accepts a job that is beyond his or her abilities, (s)he may overexert her/himself and trigger relapses. Or (s)he may underperform and invite dismissal. In either case, (s)he should keep in mind that the ADA may not offer protection. An employer may lawfully discharge an employee if CFIDS (or any other disability) prevents him or her from performing the essential functions of the job with or without reasonable accommodation. Thus, a PWC may avoid many problems if (s)he can accurately determine in advance his or her qualifications for the job.

Disclosing One's Disability
Another responsibility under the ADA is that a PWC must disclose his or her disability to the employer if (s)he needs a reasonable accommodation. (If (s)he can perform the job without any accommodation, (s)he need not mention CFIDS or any other disability.) The ADA requires disclosure because an employer is not required to provide accommodation if it is unaware of the need.

Disclosure presents several problems, including the timing of the disclosure, the type of information that a PWC should provide and the tone of the discussion. The best time to inform an employer about one's disability and need for reasonable accommodation is after an employer tenders a job offer, but before an employee starts work. A PWC should not disclose his or her illness during a job interview. This knowledge may consciously or unconsciously affect an employer's decision on whether to hire the applicant. An employer may harbor prejudices or fears about CFIDS or illness in general. Or an employer may have concerns about excessive sick days or claims on the company's health insurance plan. Thus, a PWC should not volunteer information about CFIDS during a job interview.

Moreover, an employer may not ask a PWC about CFIDS during a job interview. ADA regulations read; "an employer cannot inquire as to whether an individual has a disability at the pre-offer stage of the selection process." (§29 C.F.R. Section 1630.13(1)) Thus, during an interview, an employer may not ask a PWC: "Are you disabled?" or "Do you have any health problems?"

However, the ADA does allow some inquiries. "Employers are permitted to make pre-employment inquiries into the ability of an applicant to perform job-related functions. and inquire whether or not the applicant can perform that function with or without reasonable accommodation." (29 C.F.R. Section 1630.14(a)) Thus, an employer may ask a PWC whether (s)he can perform a specific job task and how (s)he will perform it. Such questions must be "narrowly tailored" to serve a "legitimate business purpose." (Id.; 29 C.F.R. Section 1630.13(b)) In short, a PWC should not mention CFIDS during a job interview. If an employer raises the issue, a PWC should make sure that the question narrowly addresses a specific job task. If the question is a general inquiry about health status, a PWC need not answer it.

Once an employer tenders a job offer or lawfully raises the issue of disability during a job interview, a PWC may need to discuss and provide information about CFIDS. A PWC should explain to the employer what CFIDS is (since many people do not know much about it) and how it limits his or her physical or mental abilities. A PWC may offer documentation of illness, such as a letter from his or her physician. Also, a PWC should explain in detail the accommodations that (s)he needs to perform the job. For example, if a PWC needs rest breaks, (s)he should explain that (s)he will take a 10-minute break every hour to lie down on the couch in the employee lounge.

Overall, a PWC should assume a friendly, cooperative and assertive tone during this discussion. Also, a PWC should show an understanding of the employer's needs, including information about CFIDS or the ADA. Lastly, a PWC should assert his or her need for reasonable accommodation and not wait for the employer to suggest it.

Contact the EEOC
An additional responsibility under the ADA is that a PWC must contact the Equal Employment Opportunity Commission (EEOC) if (s)he becomes a victim of employment discrimination. The EEOC is a federal government agency that investigates and prosecutes employment discrimination claims. A PWC is a victim of employment discrimination when an employer refuses to hire or discharges him or her because (s)he has CFIDS, or fails to provide reasonable accommodations.

A PWC must file a "charge" with the EEOC within 300 days of the discriminatory act. A charge is a document that contains information about the discriminatory act and the persons involved. For example, if a PWC finds out that (s)he was discharged because (s)he has CFIDS, (s)he should file a charge that explains these circumstances.

If necessary, a PWC should file the charge as soon as possible. If (s)he misses the 300-day deadline, (s)he may lose the right to sue his/her employer. Even if the employer promises to resolve the situation through the company's internal grievance procedure, the PWC should not delay or avoid filing a charge.

To file a charge, call the EEOC discrimination claims telephone number in Washington, DC at 800/669-4000. To contact a local EEOC office, look up "Equal Employment Opportunity Commission" in the federal government listing in the telephone book.

Once a PWC files a charge, the EEOC will investigate and decide whether it wants to sue the employer. If the EEOC decides not to sue, it will issue a "right-to-sue" letter that allows a private party to sue. A disabled person cannot file a private lawsuit against an employer without a right-to-sue letter.

In addition to contacting the EEOC, a PWC who experiences employment discrimination should seek an attorney who specializes in employment discrimination law. An attorney may provide valuable assistance in filing a charge with the EEOC and other crucial advice. Fee arrangements with attorneys may vary. However, if a PWC wins a claim against an employer, the court may order the employer to pay the PWC's attorney's fees. (42 U.S.C. Section 2000e-5k)

A PWC may find an employment discrimination attorney by calling the state or county bar association. For example, in Phoenix, Arizona, the Maricopa County Bar Association provides a lawyer referral service through which a PWC may schedule a 30-minute consultation with an attorney for a $25 fee. Or a PWC may contact a public interest law organization such as Disability Rights Education and Defense Fund, Inc. (DREDF; see "For More Information" below). Hopefully, employers will voluntarily respect the rights of disabled job applicants and employees. However, some employers may need the threat of legal action or a court order to provide equal employment opportunities to PWCs.

Conclusion
Title I of the Americans with Disabilities Act promises that a qualified PWC has the right to equal treatment and reasonable accommodation. In fulfilling his or her responsibilities under the ADA, a PWC may enforce these rights and increase his or her chance of succeeding in the workplace.

Mat Kozinets is a visiting law student at Arizona State University College of Law.  He has had CFIDS since March 1992.  This article is adapted from "The Americans with Disabilities Act: Does the ADA Protect a Person with Chronic Fatigue Syndrome from Employment Discrimination?"  (Hofstra Labor Law Journal, 1995), which is available from the Association for $4.50.

The U.S. Equal Employment Opportunity Commission (EEOC) offers technical assistance concerning Title 1 of the ADA.  To order documents, call 800/6669-3362.  To ask questions, call 800/669-4000.  To file a charge against an employer, call 800/669-4000 or your local EEOC office.  Or write to:  Equal Employment Opportunity Commission, 1801 L Street NW, Washington, DC 20507.

Disability Rights Education and Defense Fund, Inc. (DREDF)  provides information and legal representation to persons with disabilities.  Contact this organization at:  1633 "Q" NW, Ste. 220, Washington, DC 20009, 202/986-0375; or 2212 Sixth Street, Berkeley, CA 94710, 510/644-2555 or 800/466-4232.

Bureau of Vocational Rehabilitation is a federally funded agency which helps disabled people return to the workplace.

Law Libraries are a great source of information about legal rights and precedent.  Law school libraries are open to the public and reference librarians are usually happy to assist members of the community.  Also, look up "law library" under the state and county government listings int he front of the telephone book to find local courthouse law libraries.