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The Americans With Disabilities Act and Voice Disorders: Practical Guidelines for Voice Clinicians
The Americans With Disabilities Act and Voice Disorders: Practical Guidelines for Voice Clinicians *Derek Isetti and †Tanya Eadie, *Stockton, California, and ySeattle, Washington Summary: Objective. The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) resulted in changes to the legal definition of disability and substantially affected how those with voice disorders may qualify for reasonable accommodations under the law. However, there has been little guidance and a lack of awareness about these changes within the voice literature. This article examines the Americans with Disabilities Act of 1990 (ADA), the changes made in 2008 (ADAAA), and how the law applies to individuals with voice disorders. Study Design. This is a review article. Methods. The ADA and ADAAA are summarized with a particular focus on individuals with voice disorders. Types of reasonable accommodations within the workplace are suggested, and online resources are provided which outline the disclosure and accommodation process. Practical examples are used to provide guidance for clinicians who may be involved in counseling this clinical population. Results/Conclusions. Many individuals with voice disorders may not realize that their conditions can be classified as disabilities under the law, entitling them to workplace accommodations and time off to pursue medical treatment. However, disclosure laws such as the right to refrain from mentioning a disability during a job interview may not be protective of individuals with severe voice impairments, as symptoms are often difficult to conceal. Clinical implications and directions for future research are discussed. Key Words: Disability–Voice disorders–ADA. INTRODUCTION The Americans with Disabilities Act of 1990 The Americans with Disabilities Act of 1990 (ADA) was created by Congress in an attempt to reduce the obstacles faced by individuals with disabilities across many domains. This broadly includes obstacles related to employment discrimination, as well as access to medical care, public facilities, and telecommunication services. Title 1 of the ADA deals specifically with employment-related issues, including how individuals with disabilities are to be treated during the job interview process. The rules and protections under the ADA were recently expanded with the adoption of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). These amendments resulted in substantial changes to how the ADA may be applied to individuals with voice disorders. Yet, to date, there has been little attention in the voice literature about these changes, thus contributing to a potential lack of awareness among practicing speech-language pathologists (SLPs) and physicians. As a consequence, the purpose of this article is to review the ADA, while focusing on the recent changes associated with the ADAAA as applied to individuals with voice disorders. Specifically, this article will focus on the application of disability law within the workplace and during the job interview process. This information is critical to understand in terms of patient advocacy and when counseling individuals with voice disorders. For example, clinicians need to be aware that under the ADA, Accepted for publication April 10, 2015. From the *Department of Speech-Language Pathology and Audiology, University of the Pacific, Stockton, California; and the yDepartment of Speech and Hearing Sciences, University of Washington, Seattle, Washington. Address correspondence and reprint requests to Derek Isetti, Department of SpeechLanguage Pathology and Audiology, University of the Pacific, 3601 Pacific Ave., Stockton, CA 95211. E-mail: [email protected] Journal of Voice, Vol. -, No. -, pp. 1-8 0892-1997/$36.00 Ó 2015 The Voice Foundation http://dx.doi.org/10.1016/j.jvoice.2015.04.006
two individuals with relatively similar voice impairments (eg, dysphonia severity) may not have the same legal protections if one person feels that his/her disorder is not substantially limiting. Voice disorders are different from many other communication disorders because their severity may fluctuate from moment to moment (eg, spasmodic dysphonia [SD]), day to day (eg, muscle tension dysphonia [MTD]), or month to month (eg, recovery of function in vocal fold paresis). This variability results in symptoms that may not be consistent within or across patients. To illustrate how the ADA pertains to voice disorders, examples of potential accommodations are provided in this article, along with resources and Web sites that both clinicians and patients might find helpful. Finally, conclusions are drawn as to whether the policies outlined in the ADA are truly protective of individuals with voice disorders. Directions for future research are also suggested. However, before attempting to apply disability law to the area of voice, a thorough understanding of important terminology contained within these legal documents is warranted. Disability defined. The term ‘‘disability’’ is defined by the ADA as ‘‘.(1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.’’1 ‘‘Major life activities’’ include, but are not limited to, self-care, manual tasks, hearing, seeing, eating, interacting with others, breathing, sleeping, walking, standing, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating, and working.2 Thus, it is clear that individuals who have a difficulty in producing voice for the purposes of speaking and communicating are included under the ADA. To qualify as a ‘‘substantially limiting’’ impairment, expert testimony or physician documentation is not necessarily required. Credible testimony from the individual with a disability is often sufficient.
2 If an individual with a voice disorder wishes to claim a voicerelated disability in the workplace, more formal medical documentation could potentially be requested by an employer. Changes in the definition of disability that occurred in 2008 also need consideration and are summarized in the next section. The Americans with Disabilities Act Amendments Act of 2008 Many changes were made to the ADA in 2008 (ADAAA) that affected the definition of disability. First, the extent to which any impairment affects a major life activity is now to be evaluated without consideration of the effect of any mitigating measures, with the exception of ordinary eyeglasses or contact lenses. Mitigating measures in this case refer to such things as pharmaceutical and medical interventions or physical devices. As a concrete example, the limitations that a hearing impairment might impose on an individual are to be evaluated as if that person was not able to use hearing aids at all (ie, when the impairment is left untreated). As a second example, an individual postlaryngectomy might feel that he/she can communicate adequately using an electrolarynx as an extrinsic alaryngeal voice source. Yet, if that person had no access to an electrolarynx, then that individual may feel much more limited in terms of communication. This essentially means that the determination of whether an impairment is considered substantially limiting is now to be made prior to any intervention, with respect to a person’s baseline level of functioning. A second major amendment to the ADA was the inclusion of a broader definition of disability that is not necessarily restricted by duration of symptoms. For example, the original ADA of 1990 was interpreted to mean that ‘‘temporary, nonchronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.’’1 Under the ADA, impairments could not be transitory, and symptoms were required generally to persist for longer than 6 months to be classified as disabilities. Thus, under this rule, many voice disorders would not have qualified because of their transitory or acute nature. However, this changed as a function of the ADAAA of 2008. The Equal Employment Opportunity Commission (EEOC) issued new regulations pursuant to the ADAAA which explicitly state that temporary impairments can qualify. Section 1630.2(j)(1)(ix) of the EEOC regulations states that ‘‘The effects of an impairment lasting or expected to last fewer than 6 months can be substantially limiting.’’2 The definition of disability was therefore broadened to also include temporary conditions that might have a substantial impact on a person’s functioning. This change broadened the scope of who might qualify as having a disability among those with voice disorders. Finally, the ADAAA of 2008 ensured that wording was made more inclusive by insisting that the term ‘‘substantially limits’’ in the definition (ie, [an] impairment that ‘‘substantially limits’’ one or more of the major life activities .) should not be construed to mean ‘‘significantly restricts.’’ Episodic conditions may also qualify if they substantially limit activities when flareups occur. Section 1630.2(j)(1)(ii) of the newest EEOC regulations states that
Journal of Voice, Vol. -, No. -, 2015 An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting . The term substantially limits shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. Substantially limits is not meant to be a demanding standard.2
As a result of these changes, an impairment does not need to prevent or significantly restrict a person from performing a major life activity to be considered substantially limiting. Furthermore, in making an assessment of whether the impairment is substantially limiting, a comparison is to be made to most people in the general population without that condition. In making a determination of whether a person might be substantially limited, the assessment ‘‘should not demand extensive analysis.’’2 In summary, it is clear that changes made to the ADA under the 2008 Amendments are more inclusive, with a trend toward a broader definition of what it means to have a qualifying disability under the law. Before we apply these definitions to those with voice disorders, it is first important to consider who these laws were meant to protect, and in what situations they apply. Workplace environments are specifically summarized next. Reasonable accommodations. Under the ADA, an individual with a disability is entitled to ‘‘reasonable accommodations’’ in the workplace, which includes the interview process itself, if necessary. What constitutes reasonable will be explored momentarily; first, it should be emphasized that not every workplace (or what the ADA calls a ‘‘covered entity’’) is mandated to provide such accommodations. A ‘‘covered entity’’ refers only to businesses or organizations that employ more than 15 people.1 This implies that most small business owners need not adhere to the policies laid out under Title 1 of the ADA. However, there may be state laws in place which mandate similar provisions. Ironically, although the ADA was crafted by the federal government, federal employees are not covered under its policies. The stated rationale for this is that federal employees are instead to be protected according to the guidelines listed under the Rehabilitation Act of 1973. The Rehabilitation Act can be thought of as a precursor to the ADA that initially applied only to organizations that received federal funding. The ADA moves beyond federal employees and stipulates that no covered entity shall discriminate against a qualified individual with a disability during job application procedures, hiring, advancement, discharge, compensation, or training.2 Because the ADA is a broad document and includes somewhat nebulous terminology such as ‘‘substantially limits’’ and ‘‘reasonable accommodations,’’ a bipartisan law enforcement agency known as the EEOC handles many issues related to how the policies of the ADA are enforced. The EEOC is charged with the responsibility of enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 years or older), disability, or genetic information. The EEOC also serves as a resource for those
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The Americans With Disabilities Act: Guidelines for Voice Clinicians
with disabilities. Different disabilities, such as various types of voice disorders, might require very specific accommodations. However, one general accommodation that might be common across disability types involves the issue of time off from work. Examples of reasonable time-related accommodations according to the EEOC include ‘‘permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to a disability.’’3 This includes leaves of absence, occasional leave (eg, a few hours at a time), and part-time scheduling. Allowing an individual with a disability to change his/her regularly scheduled working hours is also permitted. An example would be an individual who requests to work 10 AM to 6 PM rather than 9 AM to 5 PM. One rationale for this flexibility in scheduling stems from the fact that some medications can contribute to lack of concentration or grogginess in the morning. Flexible scheduling enables some disabled employees to perform essential job functions more easily. Another agency associated with the ADA is known as the Job Accommodation Network (JAN). It is a service of the Office of Disability Employment Policy of the US Department of Labor. The JAN provides a series of online documents with disabilityspecific accommodation suggestions, serving as a resource for both employers and workers. It stands to reason that the accommodations an individual might require for epilepsy might be completely different from those required by a person who has SD, and so the JAN offers online PDF pamphlets of what might be termed reasonable for different conditions. Importantly, an employee cannot request a reasonable accommodation unless that individual first discloses his/her disability to the employer. The EEOC and the JAN essentially serve as resources and points of contact both for individuals with disabilities and respective employers. Employees must first contact their agency’s EEO office and follow identified steps and timelines before filing with the EEOC. An individual typically never sues a company directly citing discrimination under the ADA. Instead, the EEOC first makes attempts at mediation between the two parties. Lawsuits generated by individuals citing unfair treatment under the ADA are the exception and are only filed through the EEOC once attempts at mediation have failed. Officials at the EEOC essentially act as intermediaries and make the final determination as to whether accommodations are reasonable, given the resources of particular companies. The authors of this article recommend that job seekers and employers consult with both the EEOC and JAN if there is any doubt as to how the tenants of the ADA might apply to a specific job. The wording of the ADA itself uses rather nebulous terms such as ‘‘substantially limits’’ and ‘‘reasonable accommodations.’’ Although this type of language may allow for broad, inclusive coverage for many types of workers, it gives little guidance for job-specific scenarios. For this reason, the EEOC and JAN should be used as points of contact when specific questions arise. Disclosure. There are specific situations outlined in the ADA and its amendments in 2008 (ADAAA) that are meant to protect individuals who are applying for jobs. Although an applicant can choose to disclose the presence of a disability at any time, employers are not at liberty to ask about the nature of
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any suspected disability, such as a voice disorder, during the preemployment phase.4 Legally, any question that may elicit disability-related information is prohibited before any conditional offer of employment. If, during the preemployment phase, an obvious physical disability is apparent, such as an individual using a wheelchair, the employer may only inquire about how the individual might perform a specific job task, or if possible accommodations might be required.1,3 No questions related to the etiology of the underlying physical condition may be asked. Even if a worker willingly brings up a specific disability such as a voice disorder during an interview, the employer can never legally ask disabilityrelated questions such as ‘‘What causes that?’’ ‘‘How is that treated?’’ or ‘‘What are the symptoms of that disorder?’’ Instead, if an applicant mentions a disability, employers are encouraged to simply ask about whether reasonable accommodations might be required. Individuals who are contemplating disclosure should know that it remains up to the applicant to decide how much disability-related information to share during this phase. However, because the interviewer can never legally pose any disability-specific questions, this also means that the applicant may remain unaware of any concerns the employer might have. Employer concerns might be completely unfounded and could be put to rest by the applicant, but because the employer cannot articulate such concerns, the onus is placed on the applicant to preemptively clarify how the condition will/will not interfere with job tasks. Interestingly, after a conditional job offer has been made, the employer may then require a medical examination and ask broad questions pertaining to the disability in general. However, this process may only take place if this is a standard protocol for all applicants at that company. This fact runs counter to the information commonly found on a number of published Web sites that states that the only time an employee is ever legally bound to disclose a disability is when the applicant himself/herself is seeking a reasonable accommodation.5–7 The right of companies to ask disabilityrelated questions during a conditional job offer phase is a detail that is not widely publicized in the ADA. This is perhaps because for most jobs, a medical examination is not a standard prerequisite to a provisional offer of employment. If disability-related questions are asked during this conditional job offer phase and the applicant is then disqualified, the reason for disqualification must be consistent with business necessity and must be nondiscriminatory.4 Disqualification due to ‘‘business necessity’’ in this case means that ‘‘(1) an employee’s ability to do essential job functions will be impaired by the medical condition or (2) an employee will pose a direct threat to others or to himself/herself because of a medical condition.’’8 Any information regarding the disability that is conveyed to the employer must be kept in strict confidentiality at all times. Confidentiality may only be broken in the event that the disabled person might require emergency services or when governmental officials are investigating compliance with the ADA. Once on the job, an employer may only ask for disability-related information if the employee appears to pose
4 a risk to the safety of others, appears unqualified for the job, or needs a reasonable accommodation.4 If a person comes to possess a disability after they have been hired, all the rules of the ADA still apply. An employee can choose to disclose the presence of a disability at any time, even after the employee has already been hired. Once the disability is disclosed to the employer, the employer is then obligated to provide reasonable accommodations. Application to individuals with voice disorders It is important for both individuals with voice disorders and clinicians to be aware of how disability is defined under the ADA and how it might apply to their specific cases. Simply knowing that the terms ‘‘speaking and communicating’’ are considered major life activities under the ADA is fundamental information. Perhaps unbeknownst to many voice clinicians and the individuals they serve, these specific terms were only added to the ADA as a result of the Amendments Act in 2008 (ADAAA). As a result, those with voice disorders who feel they are substantially limited in their ability to speak effectively can meet the criteria for having a disability under the law. Several critical changes occurred as a consequence of the ADAAA of 2008. First, temporary voice disorders that might not have initially qualified under the ADA of 1990 can now theoretically be covered. Between 1990 and 2008, an employer technically could have stated that a voice disorder with symptoms expected to last less than 6 months would not entitle a person to accommodations in the workplace. Qualification under the old law seemed to depend more on duration rather than severity of symptoms. For example, before 2008, an individual with a vocal hemorrhage or acute laryngitis may not have been entitled to accommodations in the workplace. In addition, an individual who had dysphonia secondary to thyroid surgery may not have been granted accommodations if his/her voice might recover with peripheral nerve regeneration/recovery within the first 6 months after surgery. Even if a person was rendered completely aphonic in any of the aforementioned scenarios, the transient nature of those conditions (ie, symptoms lasting less than 6 months) would have precluded them from qualification under the original ADA. In contrast, individuals who use alaryngeal speech or who have progressive neurologic voice disorders would have been granted accommodations because of their chronic nature. Now, however, clinicians and their patients should realize that the playing field has been leveled, and any voice disorder can seemingly qualify as a disability worthy of accommodations if the symptoms are substantially limiting to that individual. A second important consideration for those with voice disorders is the fact that disability status is now granted at baseline functioning before any medical intervention. In other words, even if an alaryngeal speaker can communicate rather clearly with a tracheoesphageal prosthesis, his/her baseline communication is to be evaluated as if that prosthesis was unavailable to that person. Another concrete example might be the use of BOTOX (Allergan, Inc.) for the treatment of SD. Perhaps someone with SD has come to rely on regularly
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scheduled BOTOX injections, and these injections enable that person to function quite well in the workplace. But what if that individual was unable to receive injections? If that person feels that speaking would be substantially limited if he/she could not receive the injections, then that individual may be viewed as having a disability under the law. Episodic conditions may also qualify as disabilities as long as they substantially limit functioning when flare-ups occur. This implies that a person with MTD whose symptoms might be more prominent at the end of a workday (as opposed to the morning) or end of the workweek might also qualify as having a disability. There is also no stipulation in the current law that a disability that is behaviorally based would be excluded from qualification. In fact, other conditions that are associated with smoking or former substance abuse (ie, alcoholism) are listed as potential disabilities. Therefore, individuals with voice disorders secondary to phonotrauma or those that are functional in nature including MTD, functional aphonia, vocal polyps, granuloma, and vocal nodules, among others, may also be entitled to protection under the ADA. On the JAN Web site (www.askjan.org), the PDF referring to voice disorders states the following: There are many varieties of voice disorders. Some, such as unilateral or bilateral vocal fold paralysis, result from damage to the nerve pathways that control the movement of various parts of the voice box or larynx. Others result from damage to the vocal folds, which are commonly called vocal cords, due to overuse, cancer, acid reflux, and other causes.9
Because schedule change is considered a reasonable accommodation according to the EEOC, workers with certain voice disorders might benefit from such time-related requests. For example, in the case of SD, BOTOX injections into the intrinsic laryngeal muscles remain the current treatment of choice.10,11 Patients are sometimes subjected to long waits in clinics and/ or travel great distances to receive treatment.12 Employees with SD should technically be granted occasional leave of a few hours for medical appointments; they should also be entitled to part-time scheduling without fear of losing their jobs. Not only could time off for doctor’s appointments be requested, but working shorter days when speaking becomes more effortful (eg, at the end of a BOTOX cycle) or more breathy (eg, immediately after BOTOX) might be points for negotiation if the employee agrees to work longer hours when voicing is at its best. Other sample accommodations listed by the JAN9 for individuals with voice disorders include, but are not limited to, the following suggestions listed in Table 1. This list is certainly not exhaustive, and employees should feel free to make an accommodation request that might be more specific to a particular work setting. However, being that these particular accommodations have already received the approval of the JAN, they provide a starting point for what might be considered ‘‘reasonable’’ requests across multiple job sites. Many of these accommodations focus on either vocal hygiene (ie, rest, hydration) or amplification. These are not arbitrary recommendations, as many are actually backed by evidence-based research. For example, teachers with voice
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The Americans With Disabilities Act: Guidelines for Voice Clinicians
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TABLE 1. Sample Accommodations for Individuals with Voice Disorders According to the Job Accommodation Network 1. Allow increased use of text-based communication such as e-mail, instant messaging, and texting 2. Restructure job to reduce total amount of speaking required 3. Modify employee’s schedule to allow breaks to manage condition by eating, drinking water, using stress reduction techniques or vocal exercises, or resting voice 4. Allow flexible use of leave time when symptoms are exacerbated or to pursue treatment 5. Relocate workstation away from sources of background noise 6. Install noise reduction materials near work area 7. Allow use of a telephone voice amplification device 8. Allow use of a portable voice amplifier or a more powerful amplifier such as a PA (public address) system 9. Reduce background noise by installing noise reduction panels in meeting areas 10. Change meeting etiquette so only one person speaks at a time 11. Be prepared to use alternate means of communication such as pen and paper, typing, or an AAC device in cases of extreme vocal fatigue 12. Modify policies to allow employee to eat or drink at workstation 13. Allow use of assistive devices such as electrolarynx or AAC devices for employees who use these as a primary means of communication
disorders who were able to use voice amplification experienced significant reductions in voice handicap and voice severity ratings as compared with a control group of teachers without access to amplification.13 The beneficial effects of hydration on vocal fold vibration and phonation threshold pressure have also been well established.14–16 In making such accommodation requests of their employers, individuals with voice disorders are also serving a dual role by raising awareness of voice disorders in general. In certain work settings (ie, call centers), allowing all employees to drink water at their work stations while offering periodic breaks for voice rest might actually aid in the prevention of future voice problems. Employers may come to realize via an accommodation request from a single worker that there might be department-wide modifications that could be instituted at little to no cost. These types of changes could theoretically contribute to better vocal health for all employees. Limitations of the ADA Although the ADA offers several protections for those with voice disorders, there are a few limitations that warrant attention. These include limitations related to undue hardship, enforcement, essential job functions, as well as the ultimate decision to disclose a disability to a potential or current employer. These considerations are summarized in the next section. Undue hardship. One seeming loophole in the ADA is that an accommodation can be refused by any employer who considers the particular accommodation to be an ‘‘undue hardship,’’ causing significant difficulty or expense. An assessment of undue hardship is based on the cost of the accommodation, the size and financial resources of the business, and the impact of the accommodation on company operations. An employer is not obligated to provide an accommodation that eliminates an essential function of the job or lowers production standards. Employers also are not obligated to provide personal use items (eg, a portable voice amplifier or hearing aid) if those items are
also used by the employee outside of work. Knowing that the decision of whether to accommodate is left up to the employer seems to disempower the very person that the ADA was intended to protect. What might be deemed an undue hardship to one company may seem entirely reasonable to another. However, as mentioned previously, if a company is unwilling to provide accommodations to an individual, it is ultimately the EEOC that makes the final determination as to what is considered reasonable given the resources of each business. If after an investigation, the EEOC finds the requested accommodations to be reasonable, yet the business refuses to comply, then procedures for litigation can commence. Enforcement issues. Although well intentioned, the ADA is limited in terms of how its policies can be enforced. If an individual with a voice disorder applies for a job but is not hired, how might the individual prove that disability-related discrimination was the cause? If 50 applicants apply for one job, 49 may be rejected for any number of reasons. Unless an interviewer openly declares that he/she will not hire an individual specifically because of a disability (which would seem unlikely), proving a case for discrimination during hiring seems difficult at best. The ADA was passed in 1990, and yet as of 2011, individuals with disabilities were still employed at less than half the rate of their nondisabled peers.17 This discrepancy exists despite the fact that most of those with disabilities report that they would like to be employed.18 Subtle forms of discrimination could still be in place during the hiring process without the applicant ever knowing. This might be especially true for individuals with voice disorders whose impairments may be audibly noticeable to individuals in hiring situations. In fact, a recent study revealed that individuals with speech and voice disorders filed proportionally more discrimination and harassment claims through the EEOC than those with visual or orthopedic impairments.19 Why an individual with a speech or voice disorder should be subjected to proportionally greater hiring discrimination or harassment than an individual who is blind or uses a wheelchair is not clear.
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However, because this finding was so striking, the authors of that study concluded that across all disability types, those with speech and voice disorders in particular might especially benefit from information and training related to the skills necessary to navigate the job interview process. Essential functions. It was mentioned previously that an employer is not obligated to hire someone with a disability or provide an accommodation for an employee if an essential job function would be compromised. However, it would seem that there would be many jobs for which an employer could argue that a pleasant speaking voice might be deemed an ‘‘essential function.’’ Let us consider the following case examples to illustrate this point: Linda has been working as an electrical engineer with the same employer for the past 5 years. She was recently diagnosed with laryngeal cancer, and she has been scheduled to undergo a total laryngectomy. She has decided to disclose this diagnosis and upcoming surgery to her employer at the engineering firm in hopes of receiving reasonable accommodations under the ADA. She asks for occasional time off from work in order to change out her tracheoesophageal prosthesis, and Linda also asks if she can type out her questions rather than speak during daily webinars. Her employer finds these particular accommodation requests to be entirely reasonable. He feels that Linda could easily still perform her essential job duties as an engineer at his firm. Linda is pleased with the accommodations she is granted, and she feels that the protections of the ADA worked entirely in her favor.
Let us now assume that the same woman who was previously mentioned, Linda, is instead working as a receptionist at an upscale day spa. After 5 years of employment, Linda is slated to undergo a total laryngectomy. She meets with the owner of the day spa to disclose her cancer diagnosis and to ask for time off for her visits to the head and neck surgeon and/or SLP to change her prosthesis. Her employer is unwilling to keep her on as an employee because the employer considers a clear, pleasant speaking voice to be an ‘‘essential function’’ of her role as a receptionist at the spa. Although Linda might be able to communicate with a tracheoesophageal prosthesis, the owner feels that Linda’s voice would no longer convey the pleasant, relaxed image that she feels is important for the receptionist at her spa to possess.
Would the employer in the second scenario be entitled to withhold a reasonable accommodation in that situation? Is it simply the ability to speak that is an ‘‘essential function’’ of a receptionist or would the owner be correct in assuming that voice quality is equally as essential? The answer is not likely clear cut, and it is precisely these types of situations that would be presented to the EEOC. Disclosure dilemma. By focusing heavily on the issue of disclosure, the ADA also seems to cater toward individuals with hidden disabilities that can be revealed at a later date. Certain job applicants might easily be able to protect themselves by refraining from mentioning their hidden medical
conditions (eg, epilepsy, arthritis, hemophilia, diabetes, chemical sensitivities, chronic fatigue syndrome). Keeping certain hidden conditions concealable assures the applicant that the medical condition would never be a factor in the ultimate hiring decision. However, choosing when and how to disclose a disability to a potential employer is not necessarily an option if an individual has a more apparent disability at the outset, such as a communication disorder. Would an individual who stutters or who has ataxic dysarthria or a severe voice disorder be protected by not having to ‘‘disclose’’ these more noticeable impairments during an interview? For example, a law that prohibits an employer from asking a person who has had a total laryngectomy about his visible stoma (1) does nothing to ensure that hiring discrimination will not still take place and (2) does not take into account the body of social psychology research demonstrating that acknowledging and discussing an overt disability has seeming advantages over nonacknowledgment.20–22 The ADA assumes that the ability to refrain from disclosure is somehow a protective factor for all job applicants; however, in certain circumstances, it may do more harm than good. Research has shown that individuals who stutter, individuals who have a profound hearing loss, or individuals who use alaryngeal speech were regarded more favorably by observers when they did discuss their conditions, as opposed to when they said nothing.23–25 Thus, there is evidence to support that at least in the case of certain communication disorders, refraining from disclosure may not always be protective or advantageous. The topic of disclosure needs further research and should be an important consideration when counseling patients with voice disorders. Future directions Although at face value the amendments to the original ADA seem to offer more expansive coverage to those with disabilities, there is much research to be done in terms of how the statutes of the ADA might actually benefit those with voice disorders in the workplace. With additional studies, we might be able to discover whether refraining from disclosure during a job interview is truly beneficial for individuals with various types of voice disorders. Contrary to hidden disabilities that have been shown to be stigmatizing (eg, mental illness), we may find that a significant number of employers prefer a speaker with a voice disorder who does disclose the condition, as compared with that same speaker who does not acknowledge the dysphonia. Multiple studies have documented the fact that individuals with voice disorders are often rated more negatively (eg, less intelligent, less competent, etc) because of their vocal quality.26–28 This includes individuals with poor voice quality secondary to various etiologies,26,27 such as vocal nodules,29 SD,30,31 and alaryngeal speech.32 How these results might relate to a job interview setting and the ability to secure employment needs further study. Perhaps, speakers with severe voice disorders who do not disclose the source of their symptoms during job interviews might erroneously be regarded as having cancer, emphysema, or any number of conditions that may be considered more
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The Americans With Disabilities Act: Guidelines for Voice Clinicians
stigmatizing because of their progressive nature. For example, in a recent qualitative study, Nagle et al33 investigated listeners’ perceptions of speakers with SD. Nine inexperienced listeners were interviewed after judging speech samples from 10 women with adductor SD. Results showed that listeners made assumptions about the speakers that went beyond speech characteristics. With no diagnostic information provided to them, listeners assumed speakers were ill, were smokers, or were even ‘‘mentally challenged.’’ Thus, disclosure in severe cases may offer clarification for the symptoms that were already apparent to the employer at the outset. Qualitative research should also be conducted to ascertain what strategies people living with voice disorders are currently using when they do communicate their diagnoses to others. Personal stories of what has contributed to successful versus unsuccessful disclosure experiences in this population could be used to guide future research. In addition, studies that focus on how employers react to the voices of applicants with voice disorders could help us understand the hiring concerns that might be present, as well as the specific strategies that employers might recommend to applicants. Clinical implications Whether the ADA is actually effective in ameliorating hiring discrimination is beyond the scope of this review. However, it could at least be argued that a thorough knowledge of what constitutes a disability under the law and what types of accommodations can be requested has the power to influence decisions in the workplace. Individuals may not realize that under the law, a voice disorder that substantially limits their ability to communicate at work entitles them to accommodations. Clinicians should be able to provide resources and counseling about accommodations, such as those provided by the JAN (www. askjan.org). It is also unknown how familiar most practicing clinicians are regarding ADA policies. One basic implication is that clinicians might need to have a deeper understanding of disability law to become better advocates for those they serve. For example, in a recent study, 58% of patients with SD who were being treated successfully with BOTOX injections still reported decreased productivity at work.34 Clinicians should therefore be prepared to address patient concerns in this area. In all probability, most individuals will not be actively on a job search when they seek treatment for their voice disorders. The vast majority will already be currently employed or may be retired. For the former group, counseling on disclosure becomes less about how to do so within the context of an initial interview, and instead should focus on rights and potential accommodations in their current jobs. They should be told that disclosure and accommodation requests can occur at any time, and not just on hiring. On a personal note, the author (D.I.) recently conducted an interview with a physical education teacher who had been diagnosed with SD for >10 years. She mentioned that it was only during her most recent visit to the otolaryngology clinic that she realized her condition entitled her to an amplification device that she could use when teaching her students outdoors. Instead of having a fellow teacher take over her class when her voice quality was poor,
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she was now thrilled that she had a piece of technology that was purchased by her school. Although more specifics about this case are unknown (perhaps she would not have needed it years ago), it does lead us to wonder whether an earlier clinical recommendation for an accommodation by her SLP or laryngologist might have saved her years of struggle at work. Because individuals with voice disorders often self-select for treatment and are commonly diagnosed in outpatient clinics, the typical management team may include only an SLP and a laryngologist.35 Individuals with voice disorders often cope with changes in work-related environments on their own; referrals for vocational services are not standard. However, when placed within the context of other disability groups, individuals with voice disorders might have more work-related concerns than we realize. Consider the fact that in an acute setting, the impact of a severe burn or an amputation on work-related functioning would be obvious. It would be expected that a patient with a spinal injury would be provided with resources about how to reintegrate into the working world. Although voice disorders may not restrict mobility, they may still have devastating effects on an individual’s quality of life.36,37 An increasing number of jobs in today’s workforce rely on communication skills and voice use.38 Therefore, a patient-centered, holistic approach to intervention calls on all clinicians—SLPs and physicians—to recognize that although we are not vocational counselors, we can and should offer job-related resources to produce the best outcomes for those we serve. Acknowledgments The authors would like to thank Karen Beverly-Ducker of the American Speech-Language Hearing Association for her valuable insights and contributions to this work. This article is based on a chapter in a dissertation by Derek Isetti in partial fulfillment of the requirements for the PhD in Speech and Hearing Sciences from the University of Washington. REFERENCES 1. Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990). 2. Government Printing Office. Code of Federal Regulations 2013. Available at: http://www.gpo.gov/fdsys/pkg/CFR-2013-title29-vol4/xml/CFR-2013title29-vol4-part1630.xml. Accessed April 29, 2015. 3. Equal Employment Opportunity Commission. 2011. Available at: http:// www.eeoc.gov/facts/health_care _workers.html. Accessed April 29, 2015. 4. Illinois ADA Project. Disability Disclosure FAQs 2013. Available at: http:// www.ada-il.org/resources/. Accessed April 29, 2015. 5. Indiana Career Services. 2009. Available at: cdc.indiana.edu/doc/ disclosing-disability.pdf. Accessed April 29, 2015. 6. Boston University. Center for Psychiatric Rehabilitation 2011. Available at: http://cpr.bu.edu/resources/reasonable-accommodations/jobschool/ disclosing-your-disability-to-an-employer. Accessed April 29, 2015. 7. University of Montana Career Services. 2011. Available at: http://life.umt. edu/career/PDF/DisabilityDisclosureHandout.pdf. Accessed April 29, 2015. 8. Duston S. Employee Medical Exams and Disability-Related Inquiries Under the ADA: Guidance for Employers Regarding Current Employees 2011. Available at: http://www.hrtips.org/article_1.cfm?b_id¼24&view_ all¼true. Accessed April 29, 2015. 9. Job Accommodation Network. 2011. Available at: askjan.org/media/eaps/ employmentvoiceEAP.doc. Accessed April 29, 2015.
8 10. Duffy JR, Yorkston KM. Medical interventions for spasmodic dysphonia and some related conditions: a systematic review. (ANCDS Bulletin Board). J Med Speech Lang Pathol. 2003;11:ix–iviii. 11. Ludlow CL. Treatment for spasmodic dysphonia: limitations of current approaches. Curr Opin Otolaryngol Head Neck Surg. 2009;17:160–165. 12. Baylor CR, Yorkston KM, Eadie TL, Maronian NC. The psychosocial consequences of BOTOX injections for spasmodic dysphonia: a qualitative study of patients’ experiences. J Voice. 2007;21:231–247. 13. Roy N, Weinrich B, Gray S, et al. Voice amplification versus vocal hygiene instruction for teachers with voice disorders. J Speech Lang Hear Res. 2002;45:625–638. 14. Verdolini K, Titze IR, Fennel A. Dependence of phonatory effort on hydration level. J Speech Hear Res. 1994;37:1001–1007. 15. Verdolini-Marston K, Sandage M, Titze IR. Effect of hydration treatments on laryngeal nodules and polyps and related voice measures. J Voice. 1994;8: 30–47. 16. Verdolini-Marston K, Titze IR, Drucker DG. Changes in phonation threshold pressure with induced conditions of hydration. J Voice. 1990;4: 142–151. 17. Erickson W, Lee C, von Schrader S. 2009 Disability Status Report: United States. Ithaca NY: Cornell University Employment and Disability Institute; 2011. 18. Ali M, Schur L, Blanck P. What types of jobs do people with disabilities want? J Occup Rehabil. 2011;21:199–210. 19. Mitchell P, McMahon B, McKee D. Speech impairment and workplace discrimination: the national EEOC ADA research project. J Vocational Rehabil. 2005;23:163–169. 20. Hastorf AH, Wildfogel J, Cassman T. Acknowledgement of handicap as a tactic in social interaction. J Pers Soc Psychol. 1979;37:1790–1797. 21. Hebl MR, Kleck RE. Acknowledging one’s stigma in the interview setting: effective strategy or liability? J Appl Soc Psychol. 2002;32:223–249. 22. Hebl MR, Skorinko JL. Acknowledging one’s physical disability in the interview: does ‘‘when’’ make a difference? J Appl Soc Psychol. 2005;35: 2477–2492. 23. Blood GW, Blood IM. A tactic for facilitating social interaction with laryngectomees. J Speech Hear Disord. 1982;47:416–419. 24. Blood IM, Blood GW. Effects of acknowledging a hearing loss on social interactions. J Commun Dis. 1999;32:109–120.
Journal of Voice, Vol. -, No. -, 2015 25. Collins CR, Blood GW. Acknowledgment and severity of stuttering as factors influencing nonstutterers’ perceptions of stutterers. J Speech Hear Disord. 1990;55:75–81. 26. Altenberg EP, Ferrand CT. Perception of individuals with voice disorders by monolingual English, bilingual Cantonese-English, and bilingual Russian-English women. J Speech Lang Hear Res. 2006;49:879–887. 27. Blood GW, Mahan BW, Hyman M. Judging personality and appearance from voice disorders. J Commun Dis. 1979;12:63–67. 28. Lass NJ, Ruscello DM, Bradshaw KH, Blankenship BL. Adolescents’ perceptions of normal and voice-disordered children. J Commun Dis. 1991;24: 267–274. 29. Lallh AK, Rochet AP. The effect of information on listeners’ attitudes toward speakers with voice or resonance disorders. J Speech Lang Hear Res. 2000;43:782–795. 30. Isetti D, Xuereb L, Eadie T. Inferring speaker attributes in adductor spasmodic dysphonia: ratings from unfamiliar listeners. Am J Speech Lang Pathol. 2014;23:134–145. 31. Silverman FH, Hummer K. Spastic dysphonia: a fluency disorder? J Fluency Disord. 1989;14:285–291. 32. Evitts PM, Gabel R, Searl J. Listeners’ perceptions of the personality of male alaryngeal speakers. Logoped Phoniatr Vocol. 2007;32:53–59. 33. Nagle K, Yorkston K, Eadie T. Everyday listeners’ impressions of speech produced by individuals with adductor spasmodic dysphonia. J Commun Disord. 34. Meyer TK, Hu A, Hillel AD. Voice disorders in the workplace: productivity in spasmodic dysphonia and the impact of botulinum toxin. Laryngoscope. 2013;123:S1–S14. 35. Eadie TL, Hapner ER. Current issues in voice assessment and intervention in the USA. In: Yiu E, ed. International Perspectives on Voice Disorders. Tonawanda, NY: Multilingual Matters; 2013:90–102. 36. Cohen SM, Dupont WD, Courey MS. Quality-of-life impact of nonneoplastic voice disorders: a meta-analysis. Ann Otol Rhinol Laryngol. 2006;115:128–134. 37. Hogikyan ND, Sethuraman G. Validation of an instrument to measure voice-related quality of life (V-RQOL). J Voice. 1999;13:557–569. 38. Titze IR, Lemke J, Montequin D. Populations in the U.S. workforce who rely on voice as a primary tool of trade: a preliminary report. J Voice. 1997;11:254–259.
two individuals with relatively similar voice impairments (eg, dysphonia severity) may not have the same legal protections if one person feels that his/her disorder is not substantially limiting. Voice disorders are different from many other communication disorders because their severity may fluctuate from moment to moment (eg, spasmodic dysphonia [SD]), day to day (eg, muscle tension dysphonia [MTD]), or month to month (eg, recovery of function in vocal fold paresis). This variability results in symptoms that may not be consistent within or across patients. To illustrate how the ADA pertains to voice disorders, examples of potential accommodations are provided in this article, along with resources and Web sites that both clinicians and patients might find helpful. Finally, conclusions are drawn as to whether the policies outlined in the ADA are truly protective of individuals with voice disorders. Directions for future research are also suggested. However, before attempting to apply disability law to the area of voice, a thorough understanding of important terminology contained within these legal documents is warranted. Disability defined. The term ‘‘disability’’ is defined by the ADA as ‘‘.(1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.’’1 ‘‘Major life activities’’ include, but are not limited to, self-care, manual tasks, hearing, seeing, eating, interacting with others, breathing, sleeping, walking, standing, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating, and working.2 Thus, it is clear that individuals who have a difficulty in producing voice for the purposes of speaking and communicating are included under the ADA. To qualify as a ‘‘substantially limiting’’ impairment, expert testimony or physician documentation is not necessarily required. Credible testimony from the individual with a disability is often sufficient.
2 If an individual with a voice disorder wishes to claim a voicerelated disability in the workplace, more formal medical documentation could potentially be requested by an employer. Changes in the definition of disability that occurred in 2008 also need consideration and are summarized in the next section. The Americans with Disabilities Act Amendments Act of 2008 Many changes were made to the ADA in 2008 (ADAAA) that affected the definition of disability. First, the extent to which any impairment affects a major life activity is now to be evaluated without consideration of the effect of any mitigating measures, with the exception of ordinary eyeglasses or contact lenses. Mitigating measures in this case refer to such things as pharmaceutical and medical interventions or physical devices. As a concrete example, the limitations that a hearing impairment might impose on an individual are to be evaluated as if that person was not able to use hearing aids at all (ie, when the impairment is left untreated). As a second example, an individual postlaryngectomy might feel that he/she can communicate adequately using an electrolarynx as an extrinsic alaryngeal voice source. Yet, if that person had no access to an electrolarynx, then that individual may feel much more limited in terms of communication. This essentially means that the determination of whether an impairment is considered substantially limiting is now to be made prior to any intervention, with respect to a person’s baseline level of functioning. A second major amendment to the ADA was the inclusion of a broader definition of disability that is not necessarily restricted by duration of symptoms. For example, the original ADA of 1990 was interpreted to mean that ‘‘temporary, nonchronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.’’1 Under the ADA, impairments could not be transitory, and symptoms were required generally to persist for longer than 6 months to be classified as disabilities. Thus, under this rule, many voice disorders would not have qualified because of their transitory or acute nature. However, this changed as a function of the ADAAA of 2008. The Equal Employment Opportunity Commission (EEOC) issued new regulations pursuant to the ADAAA which explicitly state that temporary impairments can qualify. Section 1630.2(j)(1)(ix) of the EEOC regulations states that ‘‘The effects of an impairment lasting or expected to last fewer than 6 months can be substantially limiting.’’2 The definition of disability was therefore broadened to also include temporary conditions that might have a substantial impact on a person’s functioning. This change broadened the scope of who might qualify as having a disability among those with voice disorders. Finally, the ADAAA of 2008 ensured that wording was made more inclusive by insisting that the term ‘‘substantially limits’’ in the definition (ie, [an] impairment that ‘‘substantially limits’’ one or more of the major life activities .) should not be construed to mean ‘‘significantly restricts.’’ Episodic conditions may also qualify if they substantially limit activities when flareups occur. Section 1630.2(j)(1)(ii) of the newest EEOC regulations states that
Journal of Voice, Vol. -, No. -, 2015 An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting . The term substantially limits shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. Substantially limits is not meant to be a demanding standard.2
As a result of these changes, an impairment does not need to prevent or significantly restrict a person from performing a major life activity to be considered substantially limiting. Furthermore, in making an assessment of whether the impairment is substantially limiting, a comparison is to be made to most people in the general population without that condition. In making a determination of whether a person might be substantially limited, the assessment ‘‘should not demand extensive analysis.’’2 In summary, it is clear that changes made to the ADA under the 2008 Amendments are more inclusive, with a trend toward a broader definition of what it means to have a qualifying disability under the law. Before we apply these definitions to those with voice disorders, it is first important to consider who these laws were meant to protect, and in what situations they apply. Workplace environments are specifically summarized next. Reasonable accommodations. Under the ADA, an individual with a disability is entitled to ‘‘reasonable accommodations’’ in the workplace, which includes the interview process itself, if necessary. What constitutes reasonable will be explored momentarily; first, it should be emphasized that not every workplace (or what the ADA calls a ‘‘covered entity’’) is mandated to provide such accommodations. A ‘‘covered entity’’ refers only to businesses or organizations that employ more than 15 people.1 This implies that most small business owners need not adhere to the policies laid out under Title 1 of the ADA. However, there may be state laws in place which mandate similar provisions. Ironically, although the ADA was crafted by the federal government, federal employees are not covered under its policies. The stated rationale for this is that federal employees are instead to be protected according to the guidelines listed under the Rehabilitation Act of 1973. The Rehabilitation Act can be thought of as a precursor to the ADA that initially applied only to organizations that received federal funding. The ADA moves beyond federal employees and stipulates that no covered entity shall discriminate against a qualified individual with a disability during job application procedures, hiring, advancement, discharge, compensation, or training.2 Because the ADA is a broad document and includes somewhat nebulous terminology such as ‘‘substantially limits’’ and ‘‘reasonable accommodations,’’ a bipartisan law enforcement agency known as the EEOC handles many issues related to how the policies of the ADA are enforced. The EEOC is charged with the responsibility of enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 years or older), disability, or genetic information. The EEOC also serves as a resource for those
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The Americans With Disabilities Act: Guidelines for Voice Clinicians
with disabilities. Different disabilities, such as various types of voice disorders, might require very specific accommodations. However, one general accommodation that might be common across disability types involves the issue of time off from work. Examples of reasonable time-related accommodations according to the EEOC include ‘‘permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to a disability.’’3 This includes leaves of absence, occasional leave (eg, a few hours at a time), and part-time scheduling. Allowing an individual with a disability to change his/her regularly scheduled working hours is also permitted. An example would be an individual who requests to work 10 AM to 6 PM rather than 9 AM to 5 PM. One rationale for this flexibility in scheduling stems from the fact that some medications can contribute to lack of concentration or grogginess in the morning. Flexible scheduling enables some disabled employees to perform essential job functions more easily. Another agency associated with the ADA is known as the Job Accommodation Network (JAN). It is a service of the Office of Disability Employment Policy of the US Department of Labor. The JAN provides a series of online documents with disabilityspecific accommodation suggestions, serving as a resource for both employers and workers. It stands to reason that the accommodations an individual might require for epilepsy might be completely different from those required by a person who has SD, and so the JAN offers online PDF pamphlets of what might be termed reasonable for different conditions. Importantly, an employee cannot request a reasonable accommodation unless that individual first discloses his/her disability to the employer. The EEOC and the JAN essentially serve as resources and points of contact both for individuals with disabilities and respective employers. Employees must first contact their agency’s EEO office and follow identified steps and timelines before filing with the EEOC. An individual typically never sues a company directly citing discrimination under the ADA. Instead, the EEOC first makes attempts at mediation between the two parties. Lawsuits generated by individuals citing unfair treatment under the ADA are the exception and are only filed through the EEOC once attempts at mediation have failed. Officials at the EEOC essentially act as intermediaries and make the final determination as to whether accommodations are reasonable, given the resources of particular companies. The authors of this article recommend that job seekers and employers consult with both the EEOC and JAN if there is any doubt as to how the tenants of the ADA might apply to a specific job. The wording of the ADA itself uses rather nebulous terms such as ‘‘substantially limits’’ and ‘‘reasonable accommodations.’’ Although this type of language may allow for broad, inclusive coverage for many types of workers, it gives little guidance for job-specific scenarios. For this reason, the EEOC and JAN should be used as points of contact when specific questions arise. Disclosure. There are specific situations outlined in the ADA and its amendments in 2008 (ADAAA) that are meant to protect individuals who are applying for jobs. Although an applicant can choose to disclose the presence of a disability at any time, employers are not at liberty to ask about the nature of
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any suspected disability, such as a voice disorder, during the preemployment phase.4 Legally, any question that may elicit disability-related information is prohibited before any conditional offer of employment. If, during the preemployment phase, an obvious physical disability is apparent, such as an individual using a wheelchair, the employer may only inquire about how the individual might perform a specific job task, or if possible accommodations might be required.1,3 No questions related to the etiology of the underlying physical condition may be asked. Even if a worker willingly brings up a specific disability such as a voice disorder during an interview, the employer can never legally ask disabilityrelated questions such as ‘‘What causes that?’’ ‘‘How is that treated?’’ or ‘‘What are the symptoms of that disorder?’’ Instead, if an applicant mentions a disability, employers are encouraged to simply ask about whether reasonable accommodations might be required. Individuals who are contemplating disclosure should know that it remains up to the applicant to decide how much disability-related information to share during this phase. However, because the interviewer can never legally pose any disability-specific questions, this also means that the applicant may remain unaware of any concerns the employer might have. Employer concerns might be completely unfounded and could be put to rest by the applicant, but because the employer cannot articulate such concerns, the onus is placed on the applicant to preemptively clarify how the condition will/will not interfere with job tasks. Interestingly, after a conditional job offer has been made, the employer may then require a medical examination and ask broad questions pertaining to the disability in general. However, this process may only take place if this is a standard protocol for all applicants at that company. This fact runs counter to the information commonly found on a number of published Web sites that states that the only time an employee is ever legally bound to disclose a disability is when the applicant himself/herself is seeking a reasonable accommodation.5–7 The right of companies to ask disabilityrelated questions during a conditional job offer phase is a detail that is not widely publicized in the ADA. This is perhaps because for most jobs, a medical examination is not a standard prerequisite to a provisional offer of employment. If disability-related questions are asked during this conditional job offer phase and the applicant is then disqualified, the reason for disqualification must be consistent with business necessity and must be nondiscriminatory.4 Disqualification due to ‘‘business necessity’’ in this case means that ‘‘(1) an employee’s ability to do essential job functions will be impaired by the medical condition or (2) an employee will pose a direct threat to others or to himself/herself because of a medical condition.’’8 Any information regarding the disability that is conveyed to the employer must be kept in strict confidentiality at all times. Confidentiality may only be broken in the event that the disabled person might require emergency services or when governmental officials are investigating compliance with the ADA. Once on the job, an employer may only ask for disability-related information if the employee appears to pose
4 a risk to the safety of others, appears unqualified for the job, or needs a reasonable accommodation.4 If a person comes to possess a disability after they have been hired, all the rules of the ADA still apply. An employee can choose to disclose the presence of a disability at any time, even after the employee has already been hired. Once the disability is disclosed to the employer, the employer is then obligated to provide reasonable accommodations. Application to individuals with voice disorders It is important for both individuals with voice disorders and clinicians to be aware of how disability is defined under the ADA and how it might apply to their specific cases. Simply knowing that the terms ‘‘speaking and communicating’’ are considered major life activities under the ADA is fundamental information. Perhaps unbeknownst to many voice clinicians and the individuals they serve, these specific terms were only added to the ADA as a result of the Amendments Act in 2008 (ADAAA). As a result, those with voice disorders who feel they are substantially limited in their ability to speak effectively can meet the criteria for having a disability under the law. Several critical changes occurred as a consequence of the ADAAA of 2008. First, temporary voice disorders that might not have initially qualified under the ADA of 1990 can now theoretically be covered. Between 1990 and 2008, an employer technically could have stated that a voice disorder with symptoms expected to last less than 6 months would not entitle a person to accommodations in the workplace. Qualification under the old law seemed to depend more on duration rather than severity of symptoms. For example, before 2008, an individual with a vocal hemorrhage or acute laryngitis may not have been entitled to accommodations in the workplace. In addition, an individual who had dysphonia secondary to thyroid surgery may not have been granted accommodations if his/her voice might recover with peripheral nerve regeneration/recovery within the first 6 months after surgery. Even if a person was rendered completely aphonic in any of the aforementioned scenarios, the transient nature of those conditions (ie, symptoms lasting less than 6 months) would have precluded them from qualification under the original ADA. In contrast, individuals who use alaryngeal speech or who have progressive neurologic voice disorders would have been granted accommodations because of their chronic nature. Now, however, clinicians and their patients should realize that the playing field has been leveled, and any voice disorder can seemingly qualify as a disability worthy of accommodations if the symptoms are substantially limiting to that individual. A second important consideration for those with voice disorders is the fact that disability status is now granted at baseline functioning before any medical intervention. In other words, even if an alaryngeal speaker can communicate rather clearly with a tracheoesphageal prosthesis, his/her baseline communication is to be evaluated as if that prosthesis was unavailable to that person. Another concrete example might be the use of BOTOX (Allergan, Inc.) for the treatment of SD. Perhaps someone with SD has come to rely on regularly
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scheduled BOTOX injections, and these injections enable that person to function quite well in the workplace. But what if that individual was unable to receive injections? If that person feels that speaking would be substantially limited if he/she could not receive the injections, then that individual may be viewed as having a disability under the law. Episodic conditions may also qualify as disabilities as long as they substantially limit functioning when flare-ups occur. This implies that a person with MTD whose symptoms might be more prominent at the end of a workday (as opposed to the morning) or end of the workweek might also qualify as having a disability. There is also no stipulation in the current law that a disability that is behaviorally based would be excluded from qualification. In fact, other conditions that are associated with smoking or former substance abuse (ie, alcoholism) are listed as potential disabilities. Therefore, individuals with voice disorders secondary to phonotrauma or those that are functional in nature including MTD, functional aphonia, vocal polyps, granuloma, and vocal nodules, among others, may also be entitled to protection under the ADA. On the JAN Web site (www.askjan.org), the PDF referring to voice disorders states the following: There are many varieties of voice disorders. Some, such as unilateral or bilateral vocal fold paralysis, result from damage to the nerve pathways that control the movement of various parts of the voice box or larynx. Others result from damage to the vocal folds, which are commonly called vocal cords, due to overuse, cancer, acid reflux, and other causes.9
Because schedule change is considered a reasonable accommodation according to the EEOC, workers with certain voice disorders might benefit from such time-related requests. For example, in the case of SD, BOTOX injections into the intrinsic laryngeal muscles remain the current treatment of choice.10,11 Patients are sometimes subjected to long waits in clinics and/ or travel great distances to receive treatment.12 Employees with SD should technically be granted occasional leave of a few hours for medical appointments; they should also be entitled to part-time scheduling without fear of losing their jobs. Not only could time off for doctor’s appointments be requested, but working shorter days when speaking becomes more effortful (eg, at the end of a BOTOX cycle) or more breathy (eg, immediately after BOTOX) might be points for negotiation if the employee agrees to work longer hours when voicing is at its best. Other sample accommodations listed by the JAN9 for individuals with voice disorders include, but are not limited to, the following suggestions listed in Table 1. This list is certainly not exhaustive, and employees should feel free to make an accommodation request that might be more specific to a particular work setting. However, being that these particular accommodations have already received the approval of the JAN, they provide a starting point for what might be considered ‘‘reasonable’’ requests across multiple job sites. Many of these accommodations focus on either vocal hygiene (ie, rest, hydration) or amplification. These are not arbitrary recommendations, as many are actually backed by evidence-based research. For example, teachers with voice
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The Americans With Disabilities Act: Guidelines for Voice Clinicians
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TABLE 1. Sample Accommodations for Individuals with Voice Disorders According to the Job Accommodation Network 1. Allow increased use of text-based communication such as e-mail, instant messaging, and texting 2. Restructure job to reduce total amount of speaking required 3. Modify employee’s schedule to allow breaks to manage condition by eating, drinking water, using stress reduction techniques or vocal exercises, or resting voice 4. Allow flexible use of leave time when symptoms are exacerbated or to pursue treatment 5. Relocate workstation away from sources of background noise 6. Install noise reduction materials near work area 7. Allow use of a telephone voice amplification device 8. Allow use of a portable voice amplifier or a more powerful amplifier such as a PA (public address) system 9. Reduce background noise by installing noise reduction panels in meeting areas 10. Change meeting etiquette so only one person speaks at a time 11. Be prepared to use alternate means of communication such as pen and paper, typing, or an AAC device in cases of extreme vocal fatigue 12. Modify policies to allow employee to eat or drink at workstation 13. Allow use of assistive devices such as electrolarynx or AAC devices for employees who use these as a primary means of communication
disorders who were able to use voice amplification experienced significant reductions in voice handicap and voice severity ratings as compared with a control group of teachers without access to amplification.13 The beneficial effects of hydration on vocal fold vibration and phonation threshold pressure have also been well established.14–16 In making such accommodation requests of their employers, individuals with voice disorders are also serving a dual role by raising awareness of voice disorders in general. In certain work settings (ie, call centers), allowing all employees to drink water at their work stations while offering periodic breaks for voice rest might actually aid in the prevention of future voice problems. Employers may come to realize via an accommodation request from a single worker that there might be department-wide modifications that could be instituted at little to no cost. These types of changes could theoretically contribute to better vocal health for all employees. Limitations of the ADA Although the ADA offers several protections for those with voice disorders, there are a few limitations that warrant attention. These include limitations related to undue hardship, enforcement, essential job functions, as well as the ultimate decision to disclose a disability to a potential or current employer. These considerations are summarized in the next section. Undue hardship. One seeming loophole in the ADA is that an accommodation can be refused by any employer who considers the particular accommodation to be an ‘‘undue hardship,’’ causing significant difficulty or expense. An assessment of undue hardship is based on the cost of the accommodation, the size and financial resources of the business, and the impact of the accommodation on company operations. An employer is not obligated to provide an accommodation that eliminates an essential function of the job or lowers production standards. Employers also are not obligated to provide personal use items (eg, a portable voice amplifier or hearing aid) if those items are
also used by the employee outside of work. Knowing that the decision of whether to accommodate is left up to the employer seems to disempower the very person that the ADA was intended to protect. What might be deemed an undue hardship to one company may seem entirely reasonable to another. However, as mentioned previously, if a company is unwilling to provide accommodations to an individual, it is ultimately the EEOC that makes the final determination as to what is considered reasonable given the resources of each business. If after an investigation, the EEOC finds the requested accommodations to be reasonable, yet the business refuses to comply, then procedures for litigation can commence. Enforcement issues. Although well intentioned, the ADA is limited in terms of how its policies can be enforced. If an individual with a voice disorder applies for a job but is not hired, how might the individual prove that disability-related discrimination was the cause? If 50 applicants apply for one job, 49 may be rejected for any number of reasons. Unless an interviewer openly declares that he/she will not hire an individual specifically because of a disability (which would seem unlikely), proving a case for discrimination during hiring seems difficult at best. The ADA was passed in 1990, and yet as of 2011, individuals with disabilities were still employed at less than half the rate of their nondisabled peers.17 This discrepancy exists despite the fact that most of those with disabilities report that they would like to be employed.18 Subtle forms of discrimination could still be in place during the hiring process without the applicant ever knowing. This might be especially true for individuals with voice disorders whose impairments may be audibly noticeable to individuals in hiring situations. In fact, a recent study revealed that individuals with speech and voice disorders filed proportionally more discrimination and harassment claims through the EEOC than those with visual or orthopedic impairments.19 Why an individual with a speech or voice disorder should be subjected to proportionally greater hiring discrimination or harassment than an individual who is blind or uses a wheelchair is not clear.
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However, because this finding was so striking, the authors of that study concluded that across all disability types, those with speech and voice disorders in particular might especially benefit from information and training related to the skills necessary to navigate the job interview process. Essential functions. It was mentioned previously that an employer is not obligated to hire someone with a disability or provide an accommodation for an employee if an essential job function would be compromised. However, it would seem that there would be many jobs for which an employer could argue that a pleasant speaking voice might be deemed an ‘‘essential function.’’ Let us consider the following case examples to illustrate this point: Linda has been working as an electrical engineer with the same employer for the past 5 years. She was recently diagnosed with laryngeal cancer, and she has been scheduled to undergo a total laryngectomy. She has decided to disclose this diagnosis and upcoming surgery to her employer at the engineering firm in hopes of receiving reasonable accommodations under the ADA. She asks for occasional time off from work in order to change out her tracheoesophageal prosthesis, and Linda also asks if she can type out her questions rather than speak during daily webinars. Her employer finds these particular accommodation requests to be entirely reasonable. He feels that Linda could easily still perform her essential job duties as an engineer at his firm. Linda is pleased with the accommodations she is granted, and she feels that the protections of the ADA worked entirely in her favor.
Let us now assume that the same woman who was previously mentioned, Linda, is instead working as a receptionist at an upscale day spa. After 5 years of employment, Linda is slated to undergo a total laryngectomy. She meets with the owner of the day spa to disclose her cancer diagnosis and to ask for time off for her visits to the head and neck surgeon and/or SLP to change her prosthesis. Her employer is unwilling to keep her on as an employee because the employer considers a clear, pleasant speaking voice to be an ‘‘essential function’’ of her role as a receptionist at the spa. Although Linda might be able to communicate with a tracheoesophageal prosthesis, the owner feels that Linda’s voice would no longer convey the pleasant, relaxed image that she feels is important for the receptionist at her spa to possess.
Would the employer in the second scenario be entitled to withhold a reasonable accommodation in that situation? Is it simply the ability to speak that is an ‘‘essential function’’ of a receptionist or would the owner be correct in assuming that voice quality is equally as essential? The answer is not likely clear cut, and it is precisely these types of situations that would be presented to the EEOC. Disclosure dilemma. By focusing heavily on the issue of disclosure, the ADA also seems to cater toward individuals with hidden disabilities that can be revealed at a later date. Certain job applicants might easily be able to protect themselves by refraining from mentioning their hidden medical
conditions (eg, epilepsy, arthritis, hemophilia, diabetes, chemical sensitivities, chronic fatigue syndrome). Keeping certain hidden conditions concealable assures the applicant that the medical condition would never be a factor in the ultimate hiring decision. However, choosing when and how to disclose a disability to a potential employer is not necessarily an option if an individual has a more apparent disability at the outset, such as a communication disorder. Would an individual who stutters or who has ataxic dysarthria or a severe voice disorder be protected by not having to ‘‘disclose’’ these more noticeable impairments during an interview? For example, a law that prohibits an employer from asking a person who has had a total laryngectomy about his visible stoma (1) does nothing to ensure that hiring discrimination will not still take place and (2) does not take into account the body of social psychology research demonstrating that acknowledging and discussing an overt disability has seeming advantages over nonacknowledgment.20–22 The ADA assumes that the ability to refrain from disclosure is somehow a protective factor for all job applicants; however, in certain circumstances, it may do more harm than good. Research has shown that individuals who stutter, individuals who have a profound hearing loss, or individuals who use alaryngeal speech were regarded more favorably by observers when they did discuss their conditions, as opposed to when they said nothing.23–25 Thus, there is evidence to support that at least in the case of certain communication disorders, refraining from disclosure may not always be protective or advantageous. The topic of disclosure needs further research and should be an important consideration when counseling patients with voice disorders. Future directions Although at face value the amendments to the original ADA seem to offer more expansive coverage to those with disabilities, there is much research to be done in terms of how the statutes of the ADA might actually benefit those with voice disorders in the workplace. With additional studies, we might be able to discover whether refraining from disclosure during a job interview is truly beneficial for individuals with various types of voice disorders. Contrary to hidden disabilities that have been shown to be stigmatizing (eg, mental illness), we may find that a significant number of employers prefer a speaker with a voice disorder who does disclose the condition, as compared with that same speaker who does not acknowledge the dysphonia. Multiple studies have documented the fact that individuals with voice disorders are often rated more negatively (eg, less intelligent, less competent, etc) because of their vocal quality.26–28 This includes individuals with poor voice quality secondary to various etiologies,26,27 such as vocal nodules,29 SD,30,31 and alaryngeal speech.32 How these results might relate to a job interview setting and the ability to secure employment needs further study. Perhaps, speakers with severe voice disorders who do not disclose the source of their symptoms during job interviews might erroneously be regarded as having cancer, emphysema, or any number of conditions that may be considered more
Derek Isetti and Tanya Eadie
The Americans With Disabilities Act: Guidelines for Voice Clinicians
stigmatizing because of their progressive nature. For example, in a recent qualitative study, Nagle et al33 investigated listeners’ perceptions of speakers with SD. Nine inexperienced listeners were interviewed after judging speech samples from 10 women with adductor SD. Results showed that listeners made assumptions about the speakers that went beyond speech characteristics. With no diagnostic information provided to them, listeners assumed speakers were ill, were smokers, or were even ‘‘mentally challenged.’’ Thus, disclosure in severe cases may offer clarification for the symptoms that were already apparent to the employer at the outset. Qualitative research should also be conducted to ascertain what strategies people living with voice disorders are currently using when they do communicate their diagnoses to others. Personal stories of what has contributed to successful versus unsuccessful disclosure experiences in this population could be used to guide future research. In addition, studies that focus on how employers react to the voices of applicants with voice disorders could help us understand the hiring concerns that might be present, as well as the specific strategies that employers might recommend to applicants. Clinical implications Whether the ADA is actually effective in ameliorating hiring discrimination is beyond the scope of this review. However, it could at least be argued that a thorough knowledge of what constitutes a disability under the law and what types of accommodations can be requested has the power to influence decisions in the workplace. Individuals may not realize that under the law, a voice disorder that substantially limits their ability to communicate at work entitles them to accommodations. Clinicians should be able to provide resources and counseling about accommodations, such as those provided by the JAN (www. askjan.org). It is also unknown how familiar most practicing clinicians are regarding ADA policies. One basic implication is that clinicians might need to have a deeper understanding of disability law to become better advocates for those they serve. For example, in a recent study, 58% of patients with SD who were being treated successfully with BOTOX injections still reported decreased productivity at work.34 Clinicians should therefore be prepared to address patient concerns in this area. In all probability, most individuals will not be actively on a job search when they seek treatment for their voice disorders. The vast majority will already be currently employed or may be retired. For the former group, counseling on disclosure becomes less about how to do so within the context of an initial interview, and instead should focus on rights and potential accommodations in their current jobs. They should be told that disclosure and accommodation requests can occur at any time, and not just on hiring. On a personal note, the author (D.I.) recently conducted an interview with a physical education teacher who had been diagnosed with SD for >10 years. She mentioned that it was only during her most recent visit to the otolaryngology clinic that she realized her condition entitled her to an amplification device that she could use when teaching her students outdoors. Instead of having a fellow teacher take over her class when her voice quality was poor,
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she was now thrilled that she had a piece of technology that was purchased by her school. Although more specifics about this case are unknown (perhaps she would not have needed it years ago), it does lead us to wonder whether an earlier clinical recommendation for an accommodation by her SLP or laryngologist might have saved her years of struggle at work. Because individuals with voice disorders often self-select for treatment and are commonly diagnosed in outpatient clinics, the typical management team may include only an SLP and a laryngologist.35 Individuals with voice disorders often cope with changes in work-related environments on their own; referrals for vocational services are not standard. However, when placed within the context of other disability groups, individuals with voice disorders might have more work-related concerns than we realize. Consider the fact that in an acute setting, the impact of a severe burn or an amputation on work-related functioning would be obvious. It would be expected that a patient with a spinal injury would be provided with resources about how to reintegrate into the working world. Although voice disorders may not restrict mobility, they may still have devastating effects on an individual’s quality of life.36,37 An increasing number of jobs in today’s workforce rely on communication skills and voice use.38 Therefore, a patient-centered, holistic approach to intervention calls on all clinicians—SLPs and physicians—to recognize that although we are not vocational counselors, we can and should offer job-related resources to produce the best outcomes for those we serve. Acknowledgments The authors would like to thank Karen Beverly-Ducker of the American Speech-Language Hearing Association for her valuable insights and contributions to this work. This article is based on a chapter in a dissertation by Derek Isetti in partial fulfillment of the requirements for the PhD in Speech and Hearing Sciences from the University of Washington. REFERENCES 1. Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990). 2. Government Printing Office. Code of Federal Regulations 2013. Available at: http://www.gpo.gov/fdsys/pkg/CFR-2013-title29-vol4/xml/CFR-2013title29-vol4-part1630.xml. Accessed April 29, 2015. 3. Equal Employment Opportunity Commission. 2011. Available at: http:// www.eeoc.gov/facts/health_care _workers.html. Accessed April 29, 2015. 4. Illinois ADA Project. Disability Disclosure FAQs 2013. Available at: http:// www.ada-il.org/resources/. Accessed April 29, 2015. 5. Indiana Career Services. 2009. Available at: cdc.indiana.edu/doc/ disclosing-disability.pdf. Accessed April 29, 2015. 6. Boston University. Center for Psychiatric Rehabilitation 2011. Available at: http://cpr.bu.edu/resources/reasonable-accommodations/jobschool/ disclosing-your-disability-to-an-employer. Accessed April 29, 2015. 7. University of Montana Career Services. 2011. Available at: http://life.umt. edu/career/PDF/DisabilityDisclosureHandout.pdf. Accessed April 29, 2015. 8. Duston S. Employee Medical Exams and Disability-Related Inquiries Under the ADA: Guidance for Employers Regarding Current Employees 2011. Available at: http://www.hrtips.org/article_1.cfm?b_id¼24&view_ all¼true. Accessed April 29, 2015. 9. Job Accommodation Network. 2011. Available at: askjan.org/media/eaps/ employmentvoiceEAP.doc. Accessed April 29, 2015.
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