Disability Discrimination Claims May Be Teachable Moments
Stephanie L. Wilkinson, SHRM-CP, SPHR, PAFM
Thursday, December 27, 2018
The scope of employment discrimination banned by the Americans with Disabilities Act (ADA) is sweeping. According to the Equal Employment Opportunity Commission (EEOC) which enforces the ADA, the law covers "any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term of condition of employment." Two cases illustrate some key pitfalls that employers need to consider to avoid actual or apparent discrimination.
Case No. One
Recently the EEOC sued Logic Staffing — a Washington state-based staffing and recruiting agency — that declined to hire a deaf job applicant. At issue in this case is whether he was qualified for a warehouse position. Logic Staffing told the applicant that he couldn't be hired for the job based on safety concerns, despite his insistence that he had performed well without safety incidents at previous warehouse jobs.
The applicant "was highly qualified for the position to which he applied and deserved the opportunity to be judged based on his abilities," according to the EEOC. "Employers cannot make a blanket decision to exclude job applicants because of a disability."
The Logic Staffing case is still pending, but it followed two other cases involving deaf job applicants, one of which was settled by the employer agreeing to pay the spurned applicant $88,000.
Case No. Two
This case involved the termination of a cashier at a Whole Foods store in Raleigh, North Carolina. The employee developed a serious kidney ailment that led to a kidney transplant. According to an EEOC report, the cashier missed work on two occasions related to her kidney treatment. Although she had explained the situation to her supervisor, she was dismissed due to her absences.
Instead of firing her, Whole Foods should have made a "reasonable accommodation" that wouldn't have caused the grocer "undue hardship," according to the EEOC. Whole Foods settled the case through a pre-trial "conciliation process." The terms included a $65,000 payment to the cashier for damages and a disability discrimination education program at the store for its supervisors.
The take-away from that episode, according to the EEOC: "An employer who is on notice that an employee's absence is related to her disability must comply with the ADA's mandate to reasonably accommodate her by making exceptions to its absenteeism policy if doing so does not cause an undue hardship."
The two cases also beg the question: What do the terms "undue hardship" and "reasonable accommodation" mean? The short answer is that they are constantly being defined with every case that the EEOC successfully pursues. Undoubtedly, there's plenty of room for interpretation. But the EEOC does offer some general guidance.
A reasonable accommodation is "any change in the work environment or in the way things are usually done to help a person with a disability apply for a job, perform the duties of the job, or enjoy the benefits and privileges of employment." It also could involve giving a newly disabled employee a different job that the worker can perform when he or she can no longer perform the original one.
A classic example of a reasonable accommodation would be reconfiguring the placement of office furniture to enable a wheelchair-bound employee to move freely. Another example offered by the EEOC is providing a reader or interpreter for a worker who is blind or hearing-impaired. That solution could, of course, present a big challenge, especially for smaller employers.
Undue hardship, according to the EEOC, "means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources and the needs of the business." However, not every cost is assumed to be sufficient grounds for claiming an undue hardship. "An employer may not refuse to provide an accommodation just because it involves some cost," the EEOC states. Also, "If more than one accommodation works, the employer may choose which one to provide."
One of the two recent cases may raise the question of how "disability" is defined. In the example of the deaf warehouse job applicant, there's little room for disputing that deafness fits the definition. But what makes a severe kidney condition a disability? Here's how the EEOC defines disability. "Not everyone with a medical condition is protected by the law," it notes. But people can demonstrate that they may be disabled, for example, if they:
- Have a physical or mental condition that substantially limits a major life activity such as walking, talking, hearing or learning, or
- Have a history of a disability, such as cancer that is in remission.
It's not okay to ask a job applicant whether he or she has a disability or require a physical exam prior to making a hiring decision. But questions can be asked or a physical exam can be requested after someone is hired, for purposes of assuring that the new hire can handle the job. Just be aware that "all new employees in the same type of job have to answer the questions or take the exam."
What to Do?
The stakes are high, when it comes to the possibility of ADA violations. For that reason, it may be prudent to consult with a labor law expert when in doubt about a planned employment action or decision that involves physical or mental capacity issues.
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Stephanie is the Firm’s Director of Human Resources responsible for payroll and benefits management, employee relations, recruitment, development and training, and strategic human resource functions. She is a member of the Society for Human Resource Management, CPA Firm Management Association, Buffalo Niagara Human Resource Association, and the New York State Society of Certified Public Accountants.