“Once we start viewing people by focusing on maximizing their potential, it wouldn’t matter if they have a disability or not, because the goal is the same for everyone,” says Professor Angélica Guevara.

BLOOMINGTON, Ind. – Angélica Guevara recently spoke with the CEO of an Indiana company that was facing a dilemma over a worker who was neurodivergent. The employee, who dealt with anxiety and autism, wasn’t meeting any of the goals being set for them despite many accommodations being made by the company.

“Because disability is close to her heart, she was trying to be very understanding,” Guevara said of the employer. “She tried as much as she could for months to communicate better, to meet more often with this employee, to support them and help them achieve their goals, but it just was not happening.”

Eventually, the worker had to be let go. Guevara, an assistant professor of business law and ethics at the Indiana University Kelley School of Business and a neurodivergent person as well, empathized with employer, who despite her best efforts, had to face that the situation was not a good fit for her or the employee under the current law.

The situation described above is an example of how current federal disability law fails those with non-apparent disabilities, like this employee and the employer. A company’s profit and maximizing human potential are not aligned.

Angélica Guevara

“Even if the employer is empathetic to the employee’s circumstances, they have no choice but to terminate a disabled employee, citing business necessity. The failure to protect disabled workers — especially those with increasingly common non-apparent disabilities – is a pressing concern,” Guevara writes in a special issue of the Texas Journal on Civil Liberties & Civil Rights about the intersection between disability and the law.

More than a quarter of all Americans – 27 percent – have some sort of disability, including nearly 13 percent who have cognitive disabilities that aren’t obvious.

However, as exposed by the COVID-19 pandemic, many more suffer from depression, anxiety, and post-traumatic stress disorder, conditions that aren’t addressed through the “ability/disability binary” established and perpetuated through the Americans with Disabilities Act and other federal laws and policies. This includes those set forth by the Social Security Administration.

Guevara began thinking more about the issue after observing the legal challenges that those with “long-haul Covid” were facing. “There was a false sense of security about the law. I started thinking about the ones who aren’t able enough to stay employed but are not disabled enough to obtain resources to sustain them,” she said.

“The law itself cannot deal with fluctuating conditions, and the system is not built for individuals with flare-ups who sometimes may be able to work but at other times cannot,” she wrote. “More specifically, these conditions are not severe enough to qualify as a disability for disability benefits and too severe for an individual to stay employed.”

In the article, she highlights the shortcomings of federal disability laws and policies surrounding social security disability insurance benefits and proposes ideological and practical fixes.

“Nothing’s ever going to change unless we change the ideology behind how we view people with disabilities,” she said. “There wouldn’t be the concept of people falling through the cracks, because in essence our society would accept human variation and therefore would be able to provide whatever the individual needed to maximize human potential.”

Guevara suggests a shift in the law from viewing people with disabilities under a medical model that categorizes them as in some way incomplete. The current system perpetuates stereotypes of people with disabilities as incomplete or damaged, and who need fixing to accomplish daily tasks, she said.

“This model views the individual with pity, as defective, or as having an impairment that must be eliminated, treated or cured,” she wrote. “This model has a detrimental impact on those with non-apparent disabilities because when they disclose, or the disability becomes apparent, the message received is that the disability is their personal problem to fix.”

Any government assistance or employer accommodations are often seen as charitable actions.

With the amendment of the ADA in 2008, more people became covered under the definition of disability. However, employers can still argue through two major loopholes that the actions needed are unreasonable and present an undue hardship. More often, disabled employees are simply let go.

She proposes changes in the law that also require changes in how leaders and society view disabilities.

“Once we start viewing people by focusing on maximizing their potential, it wouldn’t matter if they have a disability or not, because the goal is the same for everyone,” Guevara said. “Normalizing the idea of maximizing human potential benefits all.”

Under this approach, even people without disabilities would benefit. For example, before the COVID-19 pandemic, companies viewed working from home as an accommodation for those with disabilities. Now, most everyone wants the option to work remotely.

The employee described above now works for a competing company and is thriving. His new employer was able to maximize his potential with his disability.

Guevara is the author of the article “Not Able Enough, Not Disabled Enough,” in the journal published by the University of Texas School of Law and the Civil Liberties & Civil Rights Section of the State Bar of Texas. Before joining the Kelley School faculty, she served as the American Bar Association’s commissioner for disability rights and as a business development specialist in the U.S. Department of Labor’s Office of Disability Employment Policy.