What is a “Perceived” Disability!?

Here is another little cautionary tale – without a fairy tale ending – but rather a $70,000 price tag for monetary relief in a disability discrimination claim…

What happened? 

A frequent shopper at a retail store set up an interview with the store manager for a sales position. When the shopper/applicant arrived, the store manager recognized her and welcomed her saying, “I didn’t know it was you”.

And…here is where the wheels fell off the wagon or rather the horse-drawn carriage. 

This less than warm welcome by the manager was followed by a statement informing the shopper/applicant that she would never be hired “with that arm”. The store manager was referring to an injury that the shopper incurred in a serious automobile accident years earlier. 

What’s the problem you ask?

Without discussing the job requirements and asking the applicant if she could perform the essential functions of the job, the manager made a hiring decision based on an assumption that the applicant had a disability and could not perform the job. Perceiving a disability, even where a disability does not exist, can violate the Americans with Disabilities Act (ADA). 

Do your managers understand your legal requirements under the ADA?

Here are a few tips to protect you from a $70,000 lawsuit.  First, make sure that your supervisors and managers know that they cannot assume that an applicant has a disability that may impair the applicant’s ability to perform a job. They should not ask about a medical condition, but only if the applicant can perform the “essential tasks” of the job “with or without a reasonable accommodation”. In addition to management training on ADA compliance and interviewing techniques, a properly written handbook including a policy on reasonable accommodation and ADA-compliant job descriptions also ensure that your business reduces the risk of potential discrimination claims. 

What other risks do have that you are not aware of?  

One great way to find out where you might be exposed to risks and fines is our Strategy in a Nutshell Consultation. We identify areas that leave a small business open to employee-related claims and provide you with an actionable report with suggested strategies to correct any issues. For more information on this consultation, read more HERE.