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CFIDS IN THE WORKPLACE
By Matthew I. Kozinets
Despite the debilitating symptoms of chronic fatigue and
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.
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.
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
This general rule includes
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
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 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.
In addition to equal treatment, Title I of the
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
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.
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
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.
Individual with a Disability
While the ADA provides employment rights to
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))
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
An "essential function" is
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
(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
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
However, the ADA does allow
"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
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
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
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
Title I of the Americans with Disabilities Act
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
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.
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
is a federally funded agency which helps disabled people return to the workplace.
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.