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APPIC Newsletter Online
Use of the Term "Impairment" in Psychology Supervision
By Carol A. Falender, Ph.D.
cfalende@ucia.edu
Private Practice, Santa Monica, California and University of California Los Angeles
Christopher J. Collins, Ph.D.
Proskauer Rose LLP and
Edward P. Shafranske, Ph.D.
Pepperdine University
Abstract
The use of the term "impairment" to refer to psychology trainees who are not meeting performance requirements is fraught with legal risk. Specific uses of the term "impairment" under the Americans With Disabilities Act are described in the context of why this term should not be used in psychology settings.
"Impairment" is a term that has been used widely in descriptions of problematic behavior of trainees or of psychologists. However, with the introduction of the Americans with Disabilities Act, there was introduced a legal risk associated with use of the term "impairment" (Falender & Shafranske, 2004). The word "impairment" has a specific legal meaning akin to "disabled" in certain statutes that (i) prohibit discrimination against an individual with an actual or perceived substantially limiting impairment, and (ii) require employers to make certain accommodations to the "impaired" or disabled. The use of the word "impairment" in other instances can subject employers and others to particular legal risks.
Under the Americans with Disabilities Act (ADA), the legal significance and relationship between "impairment" and "disabled" is established in the text of the statute, and further developed in the ADA implementing regulations. The statute defines an individual with a "disability" as one who has "a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or [is] regarded as having such an impairment." 42 U.S.C. § 12102(2). The ADA regulations define "major life activities" as those functions an average person can perform with little or no difficulty such as "walking, breathing, seeing, hearing, speaking, learning, and working." (EEOC, 2004). Further, the ADA regulations define "physical or mental impairment" as:
(a.) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine, or (b) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h)
It is no longer an option for psychologists to use "impairment" as a general term to refer to trainees who are functioning below expected performance levels. Use of the term "impairment" creates legal jeopardy in several ways. First, there is the possibility that the trainee actually does have an ADA disability or impairment of which the supervisor may or may not be aware. Thus, use of the term "impairment" or "impaired" in the context of providing adverse or negative feedback or performance evaluation suggests that the evaluation was based on the physical or mental impairment (a potentially discriminatory act under the ADA), rather than on objective evaluation of performance tasks. Moreover, if the trainee has not informed the supervisor of the impairment, it is improper for the supervisor to identify it as an "impairment" or to question the supervisee beyond the context of whether the individual can in fact perform the tasks included within the internship or traineeship with or without reasonable accommodations (EEOC, 1992). Second, regardless of whether the trainee has an actual ADA impairment or disability, use of the term, "impairment" indicates that the supervisor "regards" the trainee as impaired under ADA, and is thus potentially discriminatory. Because, as explained above, the definition of "disability" under the ADA includes both actual impairments and perceived impairment, use of the term "impairment" creates an issue of fact of whether the supervisor regards the trainee as disabled. In one recent case (Adams v. Master Carvers of Jamestown Ltd., 2004), the court found that the employee did not have an actual ADA disability, but nonetheless concluded that statements made by the supervisor about the employee were evidence that the employer perceived the employee as disabled. Under the ADA, a supervisor cannot discriminate on the basis of perception of disability. If a trainee were terminated after being labeled as impaired, he or she could assert a claim under ADA that the termination was based on a perceived impairment that qualifies as a disability under the ADA, and would point to performance feedback and evaluation that used the term "impairment" or "impaired" as evidence of this perception.
Finally, if the supervisor labels the trainee as impaired, the trainee could argue that, in fact, the supervisor knew of his or her impairment status, knew that the impairment was making it difficult to satisfy performance expectations, but nevertheless failed to consider whether a "reasonable accommodation" might enable the trainee to improve performance. Although the law recognizes that it is generally incumbent on the impaired individual to request an accommodation, the ADA requires employees to provide reasonable accommodation to the "known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). A failure to make such an accommodation is itself an act of discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A). The ADA, in fact, contemplates an "interactive process" with an impaired individual to explore possible accommodations to a known disability, and some courts have concluded that the failure to engage in such an interactive is a violation of the ADA (Humphrey v. Memorial Hospitals Association, 2001). Using the terms "impairment" or "impaired" in the traditional manner suggests that the supervisor may have known of an impairment that was inhibiting performance, but nonetheless failed to engage in the required interactive process. Moreover, the trainee could also argue that supervision was itself deficient because it did not adequately address the known "impairment" and potential need for accommodation. The ADA recognizes that adjustment of supervisory methods can be one form of reasonable accommodation under ADA. EEOC, 2004b.
In terms of the use of the general term "impairment," the supervisor has the responsibility to give adequate notice, and thus, if there was a performance issue(s) (late paperwork, attendance problem, for example) and the supervisor simply recorded the performance as "impaired" this would not be giving the trainee adequate notice of the inadequate performance. If a supervisor has given adverse employment action-even a negative evaluation-and the evidence shows the supervisor made decisions for discriminatory reasons or perceived disability, there is strict liability for the employer.
In general, using the term "impaired" in the pre-ADA manner confuses what the employer knows or perceives, and therefore whether there was an obligation to commence the interactive process with the impaired/disabled employee. Distinguishing professional from legal impairment does not provide comfort in a legal context, as it is the word "impairment" which has legal status. In short, both in terms of avoiding legal risk, and providing meaningful feedback to trainees, there is no value in maintaining use the traditional terms "impairment" or "impaired" to describe poor performing trainees.
The ADA also provides clear definition regarding inquiries by supervisors concerning "impairment" or whether a trainee has any conditions that might be considered "impairment." It is not acceptable to ask disability-related questions or to conduct a medical examination prior to conditional offering of the position 42 U.S.C. § 12112(d)(4). Some sources (Khubchandani, 2004) advise asking all applicants before an interview if they need accommodations; however, this is not a correct action as it it is tantamount to asking if the interviewee has a disability (i.e., only an impaired or disabled applicant will respond "yes" to such a question). (EEOC, 1992). An applicant may be questioned about whether he/she can perform the essential functions of the job, describing or demonstrating how those functions would be performed with or without reasonable accommodations, and about whether he/she can meet attendance requirements. The disability may be "known" because it is obvious (a wheelchair or seeing eye dog, for example) or although "hidden" having been voluntarily disclosed by the trainee. It is the right of the trainee to disclose any impairment and to request reasonable accommodations. If the impairment is visible, the supervisor may discuss whether the trainee would be able to perform the job responsibilities with or without reasonable accommodations. Once this has occurred, it is the responsibility of the supervisor or employer to discuss the essential job functions and discuss the reasonable accommodations needed. An informal process should ensue in which individual needs are clarified and reasonable accommodations are identified. The supervisor/employer may ask for documentation that the individual has a disability and that the disability necessitates whatever reasonable accommodations (EEOC, 2004b).
Mitnick (2002) clarified that "even when an applicant/intern/postdoc claims he/she is a qualified disabled person, entitled to protection under the Rehabilitation Act or ADA, the internship/program site has no obligation to do so, unless the applicant/intern/postdoc also shows he/she can perform the essential functions of his/her position, with or without reasonable accommodation" (p. 27). Should the trainee meet the ADA definition, the site must either reasonably accommodate the individual or show that even with accommodation the trainee cannot perform essential job functions, or show that that the "requested accommodation would impose an undue hardship, based on the site's size; and the nature and cost of the accommodation" (Mitnick, p. 27; 42 U.S.C. § 12112(b)(5). "Undue hardship" refers to a level of significant difficulty or expense relating to the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. "Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business" (EEOC, 2004b).
Understanding of the spectrum of accommodations and "reasonable" quality of such is an important component of supervision as is the understanding of the ADA meaning of "impairment." Through this understanding, the supervisor models legal and ethical proficiency.
Recommendations:
. Do not use the word "impairment" in mental health training settings except to describe individuals who qualify under ADA "disability". Identify a new label for students who are not meeting performance standards. Suggested terms are trainees with problematic behavior, trainees not meeting performance standards, or difficult students.
. In cases of problematic students, it is best to use behavioral terms yoked to the evaluation tools in place for the traineeship. Do not diagnose. Simply identify and quantify problematic behaviors. Independent of avoiding legal risk, effective feedback would be fostered by more specific descriptive terms that provide more information to the supervisee. "Impairment" lacks useful information as a word to describe inadequate performance.
. Fulfill the supervisory obligation to give timely feedback with attention to strengths and areas of weakness as they arise.
. Supervisory training should address prevention of feedback or discussion that suggests a "perception" of "impairment" or disability when in fact the supervisor is dealing with a performance issue.
References
Adams v. Master Carvers of Jamestown Ltd., 2004 WL 335192 (2nd Cir. Feb. 2004).
Americans With Disabilities Act of 1990, 42 U.S.C.A.§12101 et seq. (West, 1993).
EEOC. 42 U.S.C. § 12112(d)(4);
EEOC "Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act", 1992
EEOC 29 C.F.R. § 1630.2(h).
EEOC Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. U.S. Equal Employment Opportunity Commission. Retrieved from http://www.eeoc.gov/policy/docs/psych.html on May 17, 2004a).
EEOC Enforcement Guidance: Reasonable accommodation and undue hardship under the Americans With Disabilities Act. Retrieved from http://www.eeoc.gov/policy/docs/accommodation.html June 17, 2004b.
Falender, C.A., & Shafranske, E.P. (2004). Clinical supervision: A competency-based approach. Washington, D.C.: American Psychological Association.
Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir.) 2001
Khubchandani, A. Interviewing applicants with disabilities for doctoral and postdoctoral
internship positions. http://www.apa.org/apags/diversity/interview.html (Retrieved from the internet 6/15-04).
Mitnick, M.K. (2002). Internships, postdocs, and the law. APPIC Newsletter, 27(2), 26-27.
Author Note
Carol A. Falender served for over 20 years as Director of Training at APA accredited child and family guidance centers. She is now in part-time private practice and Clinical Professor of Psychology at the University of California, Los Angeles.
Chris Collins received his J.D. at George Washington University National Law Center where he served on law review. He is a Senior Counsel at Proskauer Rose LLP.
Edward P. Shafranske is Professor of Psychology and Director of the Doctoral Program in Clinical Psychology at Pepperdine University.
Editor’s Note: Statements, opinions, and recommendations of the authors are their own and do not necessarily reflect. APPIC policies or concurrence with content specifics of the article. 8 December 2004
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