Earlier this month, Vice published a piece entitled “The Worst Discrimination I’ve Faced at Work Because of My Disability.” The piece features the stories of several individuals who have experienced work-related discrimination. One contributor was told that demotion was “in her own interest” after she lost her sight. This kind of workplace disability discrimination is clear-cut and easy to identify. Such treatment of a worker with an obvious physical disability is, without a doubt, unacceptable. However, holding employers accountable for unlawful mistreatment can be a much more straightforward process than holding employers accountable for unlawful mistreatment of a so-called “invisible” disability.

The Vice piece features additional stories from contributors with invisible physical disabilities and contributors with invisible mental health issues. A contributor with cystic fibrosis describes how her invisible disability affects her ability to obtain employment, as many employers aren’t eager to reasonably accommodate her need for “flexible working hours, the option to work from home and time off for hospital appointments.” A contributor with mental health issues described how she was gaslighted and kept from intermittent leave necessary for her condition. Although the contributors to the Vice story are all British, their stories are no different than those voiced by millions of workers with invisible disabilities residing in California and throughout the United States.

Protections for “Visible” and “Invisible” Disabilities Are the Same Under the Law

It’s important for both employers and workers to understand that the law does not draw a line between workers with disabilities obvious to the naked eye and workers whose disabilities are more difficult to perceive at a glance. The Americans with Disabilities Act and the California Fair Employment and Housing Act both guard against disability discrimination in hiring, employment, and termination – period. Employers are not permitted to discriminate against workers simply because they don’t “look” sick, injured, or otherwise disabled. Similarly, workers are not compelled to accept unlawful treatment on the part of employers simply because their disabilities don’t manifest in ways that others can easily perceive and/or understand. Disability is not a performative state. As a result, disability protections are not contingent upon performative demonstrations of their existence.

Why Is “Invisible” Disability Discrimination So Hard to Address?

Title I of the Americans with Disabilities Act requires companies that employ at least 15 workers to both provide qualified workers with disabilities with an equal opportunity to engage in and benefit from the full range of employment-related opportunities that they make available to others AND to make reasonable accommodations for known mental or physical limitations of those qualified workers unless doing so results in undue hardship to the employer. Each of these core requirements of the ADA offers insight as to why it particularly difficult to hold employers accountable for unlawful treatment of employees and candidates for employment who have been diagnosed with invisible disabilities.

A Lack of Empathy and a Wealth of Subconscious Bias

The Vice contributor whose need for reasonable accommodations was affecting her ability to obtain employment is not alone. Too often, employers fail to hire qualified candidates with invisible disabilities because – consciously or subconsciously – they are concerned about the challenges and/or potential “drama” involved with hiring someone who has unique needs that aren’t always easy to understand (and therefore aren’t always easy to treat as legitimate). If a qualified amputee is denied a job, that decision could be called into question in ways that would leave the employer legally liable for failure to properly consider someone for the job who has an “obvious” disability. It is, quite frankly, easier to argue that a candidate who has been diagnosed with Lupus simply “wasn’t a great fit for the job” because Lupus isn’t considered, by many, to be a true disability worthy of protection and reasonable accommodation. When employers discriminate against those with invisible disabilities, their biases are often subconscious and therefore easy to dismiss. They may not think of their actions as at-all discriminatory, which is tough, as subconscious biases are often harder to challenge effectively than conscious, “obvious” biases are. 

Putting the Responsibility for Managing an Invisible Disability on the Worker

If an individual is blind, their request for adaptive technology that will allow them to read company email cannot reasonably be denied by an employer. If an employer fails to accommodate an “obvious” physical disability in this way, there will be no question of the fact that they are denying their blind employee a reasonable accommodation. By contrast, if an individual suffers from Sjogren’s Syndrome and struggles with regular “flares” in which their eyes are so dry that they don’t function properly – but the worker isn’t legally blind – it may be much easier for an employer to argue that the worker doesn’t “need” adaptive technology, as the worker’s episodes are intermittent and aren’t “that big of a deal.” The employer may argue that when the worker’s eyes are “acting up,” they should simply focus on a task that doesn’t require reading. This contrast between the blind worker’s need for accommodation and the worker diagnosed with Sjogren’s need for accommodation illustrates a common problem – when a worker’s disability is invisible, employees often place the responsibility on the worker to “adjust” rather than addressing their need for accommodation. Invisible disabilities are, too often, treated as less legitimate, less urgent, and more controllable than those that are not invisible.

Legal Assistance Is Available

It’s critical for workers to understand that an employer’s lack of understanding and/or empathy does not diminish their right to request reasonable accommodations and to have those accommodations approved. Nor does a limited approach on the part of an employer diminish a qualified individual’s right to participate in the full range of employment opportunities available to others in re: hiring, compensation, promotion, and other work-related experiences. In the event that an employer refuses to accommodate a reasonable accommodation request or allow for proper access to employment opportunities in re: a worker with invisible disabilities, it is a good idea to speak with an experienced attorney about one’s options.

For immediate assistance, please call 800-337-7436 or submit an online contact form through our firm’s website. Consultations are always confidential, risk-free, and available at no cost to you. We believe that all workers deserve access to the information they need to make knowledgeable choices about their legal options. Don’t ever feel that you have to accept discriminatory treatment because your disability is “invisible.” Call today; we’re here to help.