You probably have had people who claim they are disabled apply for open positions with your organization. How you handle each application can have a great impact: If you handle them incorrectly, you’re asking for a lawsuit.
That’s why it’s crucial for HR to monitor what happens to each employment application, whether you offered a job and how the applicant responded.
Here’s why: Sometimes, applicants use a claimed disability as “insurance” in case they are not hired. Some will immediately turn around and sue for alleged disability discrimination. But if you offered the applicant a job (even if you did not hire him for the original position, but called later to discuss another opening), it’s hard to argue you discriminate against disabled persons.
Recent case: Anthony Falso worked through a temporary staffing agency and was terminated from one of his assignments for what he thought was disability discrimination. He claimed to have a learning disability that required slight accommodations.
Falso then signed up with another temp agency called Ablest. The agency sent him to the same place he had been terminated from earlier. The client rejected him due to his past history with the company.
Falso’s contact at Ablest allegedly told him that the company had no intention of ever using him again “due to his learning disability.” He sued.
But Ablest showed the court that it actually had offered Falso other assignments after he allegedly had been told it would not. Essentially, company records cast serious doubt on Falso’s claims. Plus, Falso wasn’t able to show that he had explained the nature of his alleged disability, or even that he had made anyone aware of his problems. The court tossed out the case. (Falso v. Ablest Staffing Services, No. 05-CV-6547L, WD NY, 2008)
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