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Don’t assume disability: Let applicant or employee bring it up

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The ADA makes it illegal to discriminate on the basis of a covered disability or to discriminate because of a perceived disability. In other words, the law says that an employer’s belief that an applicant or an employee has a disability—even if she does not—is enough to trigger liability if the employer acts on that belief and refuses to hire or discriminates based on the perceived disability.

That’s why it’s important for supervisors and managers to avoid jumping to conclusions about physical or mental conditions.

For example, when deciding to hire someone, you can’t consider the fact that she may walk with a limp or speak with difficulty. Taking those minor problems into account and then concluding the applicant can’t do the job may mean you are regarding the employee as disabled and unable to perform a major life function, such as working.

As the following case shows, employers that don’t assume someone is disabled don’t violate the ADA when they refuse to hire the applicant.

Recent case: Kerry Wright is a certified music teacher who served as a substitute teacher on and off for about two months. Then the school district quit calling her for substitute assignments.

Wright has cerebral palsy and some trouble walking. Her condition also affects her speech. Believing the school district stopped assigning her because of her disability, she sued under the ADA’s “regarded as disabled” provision.

There was only one problem with her theory—no one at the school district knew she had cerebral palsy or that her speech impediment and gait were related to that condition.

The 3rd Circuit Court of Appeals said Wright had to prove district personnel knew or believed she was disabled. When she couldn’t do that, the court dismissed her case. (Wright v. Dallas School District, No. 07-3300, 3rd Cir., 2008)

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