HR Basics, Legal Issues

How to Avoid a Disability Discrimination Claim When Hiring

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By Eric B. Meyer

I was reading this federal court opinion over the weekend. It involves a disability-discrimination claim brought by a deaf man who applied to become a lifeguard at a county pool, but didn’t get the job because the county thought his disability would compromise swimmer safety.

Plus, the town was not convinced that it could accommodate the deaf applicant because it couldn’t be 100 percent certain that he could safely be on the lifeguard stand alone, without someone constantly by his side.

Folks, I’m guilty.

Don’t jump to conclusions

I’ll admit, that when I started reading this opinion, I immediately jumped to the same conclusion as the county-defendant. How could it possibly be safe to employ a deaf lifeguard?

{Then again, my anecdotal knowledge of lifeguarding requirements suggests to me that the real life saving professionals run in slow motion or, at the county-level, have minimal tolerance for pubescent tonsil-hockey schemes}

Well, did you know?

  • A deaf man holds the record for most lives saved (over 900!) in his lifeguarding career.
  • The ability to hear is unnecessary to enable a person to perform because distressed swimmers exhibit visual signs of distress, which a deaf person scanning his or her assigned area can detect.
  • In a noisy swimming area, recognizing a potential problem is almost completely visually based. Individuals who become deaf before age three have better peripheral vision than hearing individuals.

According to the American Red Cross, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.

How to avoid making this mistake

It turns out that if the county had made in an individualized inquiry regarding the applicant’s ability to perform the job — he passed all the lifeguard tests with flying colors — or engage in an interactive process to determine whether he could be reasonably accommodated, it could have avoided litigation that progressed to one step shy of the U.S. Supreme Court.

That’s an expensive lesson to learn.

Here are two ways for you to avoid the same mistake:

1. Conduct an individualized inquiry to determine whether an applicant’s disability or other condition disqualifies him or her from a particular position. Put simply: don’t jump to conclusions — unless, of course, you like defending lawsuits.

In the case noted above, the County’s physician entered the examination room, briefly reviewed the applicant’s file, and declared, “He’s deaf; he can’t be a lifeguard.” This, from a physician with no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. An outside consultant further opined that the deaf applicant would be able to perform perfectly “100 percent of the time.” But that’s an impossible standard!

Learn from these mistakes. The Americans with Disabilities Act requires the individualized inquiry. Employers must avoid acting based on stereotypes and generalizations about a disability. Instead focus on the the actual disability and the effect that disability has on the particular individual’s ability to perform the job.

And remember that individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals. Instead, have someone who is familiar with not only the applicant’s disability but also the requirements of the position conduct the individualized assessment to determine whether the applicant is otherwise qualified.

2. Engage in an interactive dialogue. We’ve talked about this before. Covered employers have a duty to engage in an interactive process with a disabled employee or applicant, which requires communication and good-faith exploration of possible accommodations. The purpose of this process is to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Unless providing an accommodation would cause undue burden to the employer, it must do so.

So, talk with the applicant and get a sense of what will and won’t work to allow him/her to perform the essential functions of the job. You don’t have to accept the accommodation that you are asked to provide. However, you do have to provide an accommodation it is reasonable.

Follow these two steps and you’ll not only cut your risk of disability-discrimination claims, but greatly expand your employee talent pool.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .
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    This is a great example of the faulty assumptions many individuals (and therefore by extension companies) make about whether people with disabilities to do a specific job. Pass this on!