By Mark F. Kluger and William H. Healey
A blind man walks into the New Jersey Transit office and says he wants to apply for a job as a bus driver. It sounds like the start of a tasteless joke and while it may be a bit exaggerated for dramatic effect, that scenario highlights a very real legal issue faced by employers. The Americans with Disabilities Act (“ADA”) requires employers to provide every applicant with an opportunity to be considered for a position, even if he or she has an obvious impairment that the employer believes will be an impediment to their ability to do the job.
The EEOC recently taught a Texas-based oil transportation company that lesson, the hard way. On April 24, 2017, the EEOC sued the employer based on its rejection of an applicant for a position as a truck driver because he had one arm. In announcing its simultaneous settlement of the case, in which the employer will pay the applicant $65,000, the EEOC said, “the company made an assessment, without evidence or proof, that there was no accommodation that would allow [the applicant] to do the job safely and failed to engage in the interactive process of exploring that with him.”
The employer in that case likely believed that a long haul driver of an oil tanker needs two arms and hands to safely control the rig. So while there is some intuitive logic to the trucking company’s safety concern, the ADA simply does not permit an employer to act on an unsubstantiated assumption. In fact, in what seems like a bit of a tongue lashing, the Civil Rights Division of the Justice Department wrote in its Q&A about the ADA:
…the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence—rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes—the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
If faced with an applicant that has an obvious disability, keep in mind that an employer cannot ask for medical information or require submission to a fitness examination prior to making a conditional offer of employment. At the pre-offer stage, an employer can only show the applicant a job description or describe the duties and ask whether he or she can perform the essential functions of the job (which should be clearly identified) with or without a reasonable accommodation. If the applicant indicates that an accommodation would be necessary, the interactive process is triggered. At that stage, or if a conditional offer is made, the employer can explore whether available accommodations create an “undue hardship,” which under the ADA simply means, “significant difficulty or expense.” An employer is then in a much better position to make a determination as to whether it is prudent to hire the applicant and at the same time in a safer position to defend itself against a claim of discrimination should it reject the applicant.
The bottom line lesson is to remember what our mothers always told us we make of ourselves when we ASSume. And you can get sued for that!