Whenever someone with a disability applies for a job, you must consider whether a reasonable accommodation would permit the person to do the work. Unfortunately, it’s not always easy to know when you’ve done enough and when you should do more. And while going the extra mile to accommodate a disabled applicant can benefit everyone, a recent case shows that doing more than is required can have some unexpected and unpleasant consequences.
Applicant Not Qualified; Employer Looks For Alternative Jobs
Monte Sieberns, who is blind, applied to work as a cashier/sales associate at a Wal-Mart store. After his interview, the personnel manager and the store manager reviewed a list of essential job functions for the position and concluded Sieberns could not perform the work even with an accommodation.
The managers discussed placing Sieberns in a different position and considered using him as a telephone operator. But they finally determined the telephone system couldn’t be modified to accommodate Sieberns’ disability. What’s more, no telephone operator positions were available at the time. Sieberns was told the company had tried to find him another job, but was unable to do so.
After Wal-Mart refused to hire him, Sieberns sued for disability discrimination. He admitted he could not do the job he had applied for, even with an accommodation. But he argued Wal-Mart should have offered him another position which he could handle.
Court Rejects Discrimination Claim
A federal Court of Appeal ruled Wal-Mart had done everything right. The company only had to consider Sieberns for the position he applied for and, in fact, no other jobs were even available at the time.
Because Sieberns could not perform the sales position he applied for, either unaided or with an accommodation, the court concluded he simply wasn’t qualified and Wal-Mart had no obligation to hire him.
Low-Risk Hiring Strategies
The court observed that Wal-Mart had gone out of its way to try to accommodate Sieberns’ disability-doing even more than the Americans with Disabilities Act required. But ironically, it was those extra efforts that may have led Sieberns to believe Wal-Mart hadn’t done enough-causing him to sue.
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Here are some hiring procedures that can help minimize the possibility of an ADA lawsuit:
- Define essential job functions. Wal-Mart laid the foundation for defending against a discrimination claim by developing detailed job descriptions. When Sieberns applied, Wal-Mart managers were able to objectively review the job functions and conclude that Sieberns was not qualified, i.e., he couldn’t do the job even with an accommodation. Since the ADA doesn’t require you to hire some-one who isn’t qualified, Wal-Mart did not violate the law by rejecting Sieberns. (Computer software can simplify preparing job descriptions and is available from several vendors including KnowledgePoint, (800) 727-1133.)
- Look for accommodations. Doing whatever you can to accommodate an applicant’s disability can be a good idea, even when it might not be legally required. Both your organization and the disabled worker can benefit-and you’re much less likely to get sued if you can agree on an accommodation that allows the applicant to perform the essential job functions. But if you are sued, the fact that you went out of your way to accommodate the person will help your case.
However, each situation is different, and sometimes doing more than the law re- quires can create unreasonable expectations-and increase the likelihood of an expensive lawsuit if things don’t work out.
So you need to walk a fine line. Explore all reasonable accommodation options, but don’t discuss unnecessary and potentially unrealistic possibilities-such as considering an applicant for a position other than the one applied for-unless you have good reason to believe they will be able to do the job.
- Document hiring decisions. Defending yourself against a claim of hiring discrimination can be difficult if you don’t have a record of what happened with a particular applicant. Always document the objective reasons for your hiring decisions, and keep brief, legible notes on the reasons for selecting or rejecting someone. Also keep detailed records of your efforts to find reasonable accommodations for disabled applicants.