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The Art of the Loaded Question Meets the Americans with Disabilities Act Service Provider


On a regular basis I receive a phone call from a seasoned work evaluator who has come face-to-face with the loaded question, “How many of these cases have you litigated?”

The caller is typically an occupational therapist or physical therapist who has made a presentation to a prospective U.S.-based corporation. The therapist usually has a couple of decades of hands-on work evaluation experience (see: https://www.roymatheson.com/ ) with additional work on reasonable accommodation or medical examination under Title I of the Americans with Disabilities Act (see: https://reasonableaccommodation.com/ ).

The basis of the question is the supposition that since the therapist has not litigated a case under ADA Title I he or she is not qualified to work in his or her area of expertise. And, more to the point, the act of asking the question is intended to prove the argument implied in the question.

Keep in mind that a question is not an argument. And simply asking a loaded question is not a fallacious argument. Rather, loaded questions are typically used to trick someone into implying something they did not intend. For instance, salespeople learn to ask such loaded questions as: “Will that be cash or charge?” This question gives only two alternatives, thus presuming that the potential buyer has already decided to make a purchase, which is similar to the Black-or-White Fallacy. If the potential buyer answers the question directly, he may suddenly find himself an actual buyer. (paraphrased from http://www.fallacyfiles.org/loadques.html)

An honest question in this circumstance would be “How many qualified individuals have you evaluated under 42 U.S.C. § 12112(d) – Medical examinations and inquiries?” Or, “Examples of the type of reasonable accommodation we address in this company are based on the need to alter work position frequently due to such conditions as the fluctuating symptoms of reflex sympathetic dystrophy (complex regional pain syndrome). Please give us an example of the type of positional accommodation you would suggest if the job to which the worker is attached is consumer napkin folding machine operator (see: Indergard v. Georgia-Pacific Corporation, No. 08-35278).

And of course there is always the question of, “Given that you are a university trained occupational therapist and have advanced training in such Title I issues as reasonable accommodation, post-offer employment testing, and functional capacity evaluation for safe return to work how are you equipped to assist this company to accomplish our goal of doing the right thing for each of our employees?”

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