Most employers are aware of the responsibility to treat their employees fairly, but did you know that the rules also extend to the interview and hiring process?
The Equal Employment Opportunity Commission (EEOC) recently released its updated Strategic Enforcement Plan. One of the stated national priorities is to increase enforcement efforts related to hiring practices that conflict with ADA rules.
As an employer in Florida, you must have a solid grasp of the anti-discrimination laws laid out by the Americans with Disabilities Act (ADA). Failure to comply, whether intentional or not, can land you in hot water and cause a multitude of unnecessary headaches.
What You Need to Know
Title I of the Americans with Disabilities Act states that qualified applicants with disabilities must be provided with reasonable accommodations during the pre-employment interview and screening process. Employers are provided with limited protection under the caveat "except when such accommodation would cause an undue hardship."
In simple terms, a disability that limits a potential employee's ability to perform ancillary job functions must not exclude him from the opportunity for employment as long as she is qualified to perform the essential functions of the position. For example, if a grocery store cashier with chronic fatigue syndrome needs to have access to a stool so that she can sit while working, the employer must provide this accommodation.
This extends to the hiring process in many ways. Examples may include providing an interpreter for a hearing-impaired applicant, offering alternatives for pre-employment testing, or allowing different methods of submitting to a required drug test.
What are Reasonable Accommodations?
Reasonable accommodations are adjustments to the status quo that remove potential barriers to a disabled person's ability to obtain employment. Disabled individuals must be able to enjoy the same benefits of employment that are available to similarly-qualified non-disabled individuals. Some examples of reasonable accommodation include, but are not limited to:
- Providing training in alternate formats (large print, captioning, Braille)
- Restructuring the job to remove non-essential functions
- Modifying work schedules or absentee policies
- Modifying equipment or purchasing needed devices
- Changes to standard policies and procedures.
What is Undue Hardship?
An employer can claim undue hardship if a requested accommodation would cause a significant disruption to the business or excessive expense relative to the employer's financial resources. Requests should be evaluated on a case-by-case basis and employers are well advised to try to work with the employee rather than pursue an undue hardship claim.
It should be noted that undue hardship is not the same as an inconvenience. Unless the request would fundamentally alter the way that you do business, the EEOC will expect you to make the necessary accommodations. If a financial hardship is claimed, the EEOC will evaluate the resources of an organization in its entirety rather than a single department.
Avoiding Compliance Problems
One of the most common mistakes that an employer can make is deciding to cancel or refuse to finish an interview with a person who has a disability. Even if you believe that your business will be unable to modify the position as needed, you must still provide the applicant with the same interview opportunity as would be given to a non-disabled person. Only after you have completed the interview and determined if the person is qualified are you allowed to ask what type of accommodations would be needed if hired.
During the interview process, be sure to clearly explain the essential duties of the job and ask the candidate if he or she has the ability to perform them. Be careful about making assumptions based on a person's physical or mental disability.