A pair of recent Americans with Disabilities Act (ADA) rulings provide two important lessons for employers: First, have well-written job descriptions for each position that include the job's essential functions. Second, test all workers before hiring to make sure they can perform the essential job functions.
Case 1: ADA won't apply if employee can't perform essential duties
You don't have to hire a worker or accommodate a disabled employee if that person doesn't possess the skills to do the job. If the deciding factor is the disability, you must prove that the disability interferes with the job's essential functions. As long as you've documented those functions in your job description before you advertised, you'll be on safe ground.
Recent case: A grocery store clerk suffered from Tourette's syndrome, a condition that causes twitching and occasional blurting out of profanity and racial slurs. His duties included stocking, shelving and some customer service. After making a racial slur to a co-worker, he was transferred to the night shift where there were fewer workers and customers. But after two other similar outbursts in front of customers, he was fired.
He sued under the ADA but lost. Reason: Interacting with customers was an essential function of the clerk job. And since this worker could not perform the essential function, even with an accommodation, he isn't protected under the ADA. The court said this worker could do other jobs but not this one. (Ray v. Kroger Co., No. CV-402-19, S.D. Ga., 2003)
Case 2: Test before hiring to avoid bad-fit hires
Don't put a disabled worker into a job situation that he obviously won't be able to handle. Use pre-employment tests to make sure the worker can do the essential functions of the job in the first place. Also, don't fire an employee simply because you fear he may pose some risk. Secure objective evidence first. Then, whenpop up, start the interactive process to discuss accommodations.
Recent case: A legally blind factory worker was fired after just three weeks on the job at a cheese factory. The company claimed he was a direct threat to himself and his co-workers after he routinely dropped cheese, put his hands too far into the grinder, bumped into other employees and wasn't careful when waiving a knife around co-workers.
The employee sued, claiming he was fired because of his disability. Surprisingly, he won. The court's reasoning: The company didn't have direct evidence that the risk of potential harm was significant enough. (Apparently, the court needed to see blood first!) Also, the court said the company never tried to offer an accommodation, it skipped right to the firing. (Hammel v. Eau Galle Cheese Factory, Civ. Action No. 02-C-405-C, W.D. Wis., 2003)
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