On October 20, 2004, the Equal Employment Opportunity Commission issued new enforcement guidelines titled: "Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act." This publication, the first ADA-related guidance in two years, addresses workplace issues concerning individuals with "intellectual disabilities"- a condition once commonly referred to as "mental retardation."
The guidelines outlines the EEOC's position on many issues, including: When is an individual with an intellectual disability covered by the ADA? How and when may an employer gather medical information about an employee's intellectual disability? How should employers address safety concerns with employees who have intellectual disabilities? When can employers discipline an intellectually impaired employee for misconduct? Are employers vicariously liable for harassment of intellectually impaired employees? In addition, a large portion is devoted to the area of reasonable accommodation. Among other things, the EEOC provides examples of what it considers to be "proper" accommodations for individuals with intellectual impairments. More information, and a copy of the actual guidance, can be obtained on the EEOC's web site at www.eeoc.gov.
While a good overview of the EEOC's enforcement position, the EEOC's policy guidelines are not "law" and are often ignored by the courts. Employers have the right to disagree with the EEOC's position particularly when it is not supported by precedent. However, plaintiff's attorneys frequently use these position statements to bolster their legal theories. Likewise, employers should be aware of the EEOC's position, especially in the evolving area of disability discrimination law.