The Tech Industry Hates Disabled People.

Today’s headline might be a bit incendiary and shocking. And that’s the point: it’s meant to wake folks up to the reality of some of the darker issues that remain underreported and under-discussed in the tech sector.

Also, this isn’t a post dedicated to being “woke.” It’s a demand that we take disability and discrimination protections seriously. (Gender, Racial, and Sexual Orientation discrimination rants are also available upon demand.)

When I started talking with folks about this topic, so many were surprised to learn that protections for disabled employees fall under a company’s regulatory and compliance umbrella (narrator: they absolutely do.) And there are clear, crippling, repercussions for companies that don’t understand or ignore what these regulations are. Companies both large and small have run afoul of these laws and were heavily penalized as a result. Here are a few notable ones:

• The National Federation of the Blind v. Target Corporation case, which resulted in a $6 million settlement and a commitment from Target to improve the accessibility of its website and mobile applications for individuals with disabilities.

• The United States v. University of California, Berkeley case, which resulted in a settlement requiring the university to make its online content more accessible to individuals with disabilities.

• The United States v. Education Management Corporation case, which resulted in a $95.5 million settlement and a commitment from the for-profit college to improve accessibility for students with disabilities.

I’m pretty sure that as the tech industry and the companies within it age, they will become a bigger and bigger target for discriminatory regulatory penalties. Just because nobody is noticing your discriminatory actions now, doesn’t mean you can keep doing it into oblivion.

At this point in my career, I have worked in almost every industry—agriculture, automotive, Big Law, banking, manufacturing, and higher education (what can I say, I have a short attention span.) Thus far, I have found the tech industry to be the most dismissive and least empathetic around disabilities. It is increasingly hard to treat the tech sector as an “adult” when it’s closer to the equivalent of the kid in the back of the classroom making crude and cruel jokes at the expense of others.

I grew up with two beloved cousins that would be considered by our society to be disabled. One is blind and the other is deaf. Both are incredibly bright young men graduating this spring and entering the workforce. One is a skilled developer and the other is trying to get into the graphic design niche within tech. Over the last few months, I’ve thought a lot about how their experiences in the tech industry will be. I know I can’t protect them from ignorant people or folks who are just sad and unhappy in their own lives, but they deserve as close to a level playing field as we can give them.

In the United States, there are a few major laws that offer protections for those employees who are disabled. The most well-known is the Americans with Disabilities Act (ADA). The ADA is a civil rights law that prohibits discrimination against people with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. It was created to remove barriers that prevent people with disabilities from participating fully in society and to provide equal opportunities for everyone.

The ADA is fairly modern (it was enacted in 1990) as a regulatory structure so it doesn’t have the same ancient panache that some of our older laws have (cough tax law cough). Congress also enacted the ADA Amendments Act of 2008, in order to eliminate additional discrimination against people with disabilities and to create clearer standards for addressing such discrimination.

This weekend I asked folks on Twitter to share with me their experiences with disability discrimination in the tech industry and boy o’ boy did I hit the mother lode. I received over 2,000 responses via DMs and email, with anecdotes from both small, pre-seed stage tech companies to stories of large tech behemoths that could trigger massive class action suits.

(Also, thank you to everyone/ that was brave enough to share their stories. I really/ appreciate everyone taking the time to share and I promise to be a good steward of your experiences.)

Below is a quick summary of what is actually happening out there in the workplace for employees around disability discrimination in case your head may have been in the clouds or the sand…

Pregnancy - The number of people who reached out to me with stories surrounding their employers’ behavior during pregnancy and the post-partum period was absolutely staggering. The stories people told me about being fired because they were pregnant, had pregnancy complications, or because they took parental leave were ridiculous. Employers really have been on that clown behavior…

Y’all. What the actual fuck is happening??? I cannot believe I still have to say this but pregnancy discrimination is illegal.

There are two laws that the EEOC enforces to protect job applicants and employees who are pregnant…with a third law coming soon.

The first law is Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which is called “Title VII.” This law prohibits sex discrimination, including pregnancy discrimination. “Pregnancy” discrimination under Title VII can be based on a current pregnancy, past pregnancy, potential pregnancy, medical condition related to pregnancy or childbirth, having or choosing not to have an abortion, and contraception.

The second law is the Americans with Disabilities Act. If you double-click, the ADA prohibits discrimination against an applicant or employee based on a disability, including a disability related to a pregnancy such as diabetes that develops during pregnancy. Before I get hate mail…though pregnancy itself is not a disability under the ADA, some pregnant workers may have one or more impairments related to their pregnancy that qualify as a “disability” under the ADA. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability. The ADA also requires that employers keep all medical records and information, including those that are pregnancy-related, confidential and in separate medical files.

To make things even more real for tech companies that refuse to understand the seriousness of these protections, President Biden recently signed the Pregnant Workers Fairness Act (PWFA) into law. Y’all have 49 days to get your shit together on that one.

Neurodiversity - So many people reached out with tales of companies that offer no accommodations or openly discriminate against conditions like Autism. Real quick for those in the back…the ADA requires all employers to provide reasonable accommodations to qualified individuals with disabilities that do not constitute an undue hardship (to the employer). What this means in plain English is that it’s the employer's responsibility to determine that the work to accommodate disabled employees is a real undue hardship, and be able to show that with actual tangible evidence.

From the stories I’ve heard, most employers don’t do any work at all around this—if you tell them that you’re autistic, they pretty much just reject you on the spot, or ignore you if you’re already an employee.

That doesn’t mean that disabled employees can’t be held to the same standards as other employees when it comes to performance. It’s not about lowering the bar, it’s about leveling the playing field. These laws aren’t about skirting work responsibilities—they’re absolutely about putting employees in a good position so that they can perform their job to the best of their ability.

Being compliant means being consistent with conduct and performance enforcement, and being careful to avoid making stereotypical presumptions as to an individual's ability.

One of the biggest biases against neurodivergent employees are around the social and interpersonal relationships they have at companies. For example, some disabled employees may have trouble making eye contact or interacting one-on-one; that doesn’t mean they’re bad employees at all. Instead, companies should be focused on helping them perform their role without putting them in those situations, or create employee training programs to better educate the whole company.

Ageism - Pwew. This one really got me. Almost as much as the pregnancy one. I received a Twitter DM from someone who literally was given the following statement (in writing) as a reason for their dismissal after 11 years:

How this got anywhere past a lawyer is beyond me (let’s be real no lawyer ever saw this sentence.) For the love of all things holy…never, ever, ever offer age as a reason for dismissal. EXTREMELY illegal. And also we all age and get older so like, that’s some karma I don’t think anyone wants…le sigh.

The Age Discrimination in Employment Act (ADEA) is a federal law that prohibits employers from discriminating against employees or job applicants who are 40 years of age or older. The ADEA applies to employers with 20 or more employees and covers all aspects of employment, including hiring, firing, promotions, and compensation. Under the ADEA, it is illegal to discriminate against an employee or job applicant because of their age. This includes making age-related comments or decisions, such as assuming that an older employee is less productive or less capable than a younger one. The ADEA also prohibits retaliation against employees who file age discrimination complaints or participate in investigations related to such complaints.

This doesn’t mean that if you’re a company with less than 20 people, or your employees aren’t 40, you can pull this off. Not only is it unethical and morally wrong, but there are dozens of local and state laws that protect against ageism too. Firing or discriminating against people based on their ages doesn’t set a good example for anyone and definitely doesn’t set you up for success as a company.

Alcoholism and Addiction - I received more than one story from recovering alcoholics and drug addicts about being asked to plan, attend, and drink at work-mandated happy hours/events. I don’t know how to tell folks, but if you put someone in a position like that, you might be one of the worst people alive. Who the fuck does that??? Some of the stories I heard were so problematic because not only is the behavior illegal, but it is also just cruel from a human perspective. Knowing you, as an employer, could be causing someone’s life to be ruined for one stupid work function is quite frankly, almost criminal.

The stories I’ve heard almost always have to do with networking events, or conferences, or one of the dozen Tech Weeks that happen in the industry. Employers not only ask but sometimes create job expectations that require attendance at events flowing with alcohol and heavy drinking—despite knowing that it’s not a good position for a recovering addict. (And I’m not even including sexual harassment, assault, or inappropriate behavior at these events too…too many times, a woman has come up to me at an event that I’ve attended saying “thank god you’re here, the guys here are being so creepy.”)

The Americans with Disabilities Act (ADA) clearly prohibits discrimination against individuals who are recovering from alcoholism or drug addiction. This means that employers cannot discriminate against employees or job applicants based on the fact that they are recovering alcoholics or drug addicts, and they must provide reasonable accommodations to these individuals. (However, it is important to note that current illegal drug use is not protected under the ADA. Your coke problem is yours alone here.)

Mental Illness - For those who wrote me their experiences with mental illness in the workplace, I want to extend an extra special thank you. Not only is it hard to speak about discrimination, but it’s extra hard when it’s for something as stigmatized as mental illness.

I received a lot of stories of folks who struggled to receive accommodations or time off after an emergency situation occurred with their mental health. One employee recalled a situation where they were dismissed from employment after an employer found a bottle of Wellbutrin on their desk after a depression diagnosis. Another employee sent me the quote below from a discussion they had to have with their company’s founder after someone let it slip that they were schizophrenic at a company-sponsored happy hour.

Title I of the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act of 1973 (Section 501) are the applicable federal laws that protect people with disabilities, including mental health disabilities, from discrimination at work.

After the COVID-19 pandemic, more and more employees are openly seeking help for mental health conditions, such as anxiety and depression. This is a positive sign of a shift in public perception surrounding mental health. It also means that we will start seeing more and more claims of mental health discrimination as folks are more willing to be open about their struggles. However, unlike most physical disabilities, an employee’s mental disabilities may not be immediately visible and may present differently than one might expect, resulting in potential confusion for employees, employers, and even courts on how to navigate mental disability discrimination issues.

The act governing mental illness discrimination lists the following nonexhaustive mental health conditions as potentially recognized disabilities: major depressive disorder, post-traumatic stress disorder, bipolar disorder, schizophrenia, obsessive-compulsive disorder, and personality disorder.

In addition to the ADA, employers should be aware that employees may pursue mental health claims pursuant to the Family and Medical Leave Act, which requires that covered employers provide eligible employees with up to 12 weeks of unpaid leave for treatment of or recovery from a serious health condition. The definition of a serious health condition is broader than the definition of disability, and usually also applies to mental health claims. Employers should also note that mental health claims can also arise in situations where employees raise hostile work environments or retaliation claims stemming from other protected activities.

Finally, employers should also be aware that state and local laws may also apply to a mental health disability claim and should be reviewed as they are popping up at an increasing rate.

Thanks for sticking around for all the heavy stuff y’all. I literally just realized it is Mental Health Awareness Month so seems like I might try to dive a little deeper into that topic in the coming weeks. However, in my next post, I will be doing a comprehensive guide on what all companies need to be doing to stay compliant, how they can be good stewards of employee health and wellness, and what basic information on ADA compliance training needs to be offered.