Just Ask Barney: Can the Job Coach be Excluded from a Worker's Performance Evaluation?
This new feature will share an issue of wide interest to our readers that originates in an actual technical assistance call to Northwest ADA Center. Since many of our customers particularly value the advice and information offered by Barney Fleming, Training and Information Specialist, we’ve named the feature “Just Ask Barney”.
The Situation
The caller was a job coach – we’ll call her “Bonnie” -- who has been supporting a young man with an intellectual disability – we’ll call him “Tony” -- in a business that had employed him for some time. Bonnie came to the job site often, and had been there recently. From all indications, Tony was not in any jeopardy in his job.
So Bonnie was a bit surprised when Tony’s mother called her, relating a story her son had offered when he came home the preceding day. Tony’s report was that he had met with his supervisor and had a “job interview”. He didn’t have any written information from the meeting. His mother was worried and called Bonnie to find out if Tony’s job was being eliminated.
Bonnie called Tony’s manager, who told her that she didn’t have time to include the job coach in a routine performance evaluation meeting, and besides, she needed to document that she had completed the meeting immediately. She said that Tony had signed off on his evaluation and that was that.
Bonnie’s Question
Bonnie’s question for Northwest ADA Center was whether she had any right, in her role as an active job coach, to be present at the performance evaluation meeting since the worker with an intellectual disability – Tony -- might not be expected to be a reliable reporter of what happened, any concerns the employer might have, or whether a corrective action was initiated.
Our Response
While many people think of reasonable accommodation in terms of equipment, physical changes to a building, or modifications to a work schedule, an accommodation for a worker with an intellectual disability may be behavioral or designed to improve communication. The answer addressed several important questions.
Could the reasonable accommodation process support the job coach’s participation in a performance evaluation of a worker with an intellectual disability?
For the employee with an intellectual disability, it is completely appropriate to request assistance in understanding job evaluations or disciplinary procedures. The employee may want someone to accompany them to ask questions and to explain the job evaluation results or the purpose of the meeting. A job coach, whose responsibilities include maintaining open communications and is already known to both the employer and the employee, would be one logical choice.
Must the request for the accommodation come from the worker, or can others make the request?
The request may be made in “plain English” orally or in writing, and it may come from the employee, a family member, friend, job coach, or other representative. Requests for accommodations can be made months or years after the job starts.
Can a business benefit from an accommodation?
Employers benefit in many ways from effective job accommodations. In this particular situation, the better the employee understands any suggestions for improving job performance or behavior in their performance evaluation, the better they can do the job. Simple and easy.
Could the employer simply ignore an accommodation request to include the job coach in a performance evaluation review because he or she was too busy, it was inconvenient, or he or she just didn’t want to?
The employer is expected to respond promptly to a request for an accommodation, and if some negotiation needs to occur, it should begin promptly. An employer is not required to make an accommodation that causes “undue hardship”, taking into account the nature and cost of the accommodation, the overall financial resources of the business, and the impact of the accommodation on the business. Ignoring the request would not be wise.
Have businesses been held responsible for denying this type of reasonable accommodation?
Yes, in August, 2009, Target Stores were sued by the Equal Employment Opportunity Commission (EEOC) for discriminatory practices “when it failed to notify [the] job coach and parents of any in-person meetings involving work issues and job performance, as requested” for an employee with limited intellectual functioning.
“The disabled employee was compelled to attend these in-person meetings alone without the assistance of a job coach or parent, even though repeated requests had been made by both the job coaches and parents to be in attendance at the meetings. Target had hired this employee with full knowledge of his disabilities and need for a reasonable accommodation,” according to the EEOC press release.
“What is particularly disturbing here,” the EEOC press release continued, “is that Target already knew this employee was disabled and needed assistance with communicating during in-person meetings.”
For more information, please see:
Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act, EEOC Publication at –
http://www.eeoc.gov/facts/intellectual_disabilities.html
Target Stores Sued For Disability Discrimination, EEOC Press Release 8-24-09
http://eeoc.gov/eeoc/newsroom/release/archive/8-24-09.html
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Publication at –
http://www.eeoc.gov/policy/docs/accommodation.html