It’s OK to ask questions about applicant’s ability to do specific job

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in Discrimination and Harassment,Hiring,Human Resources

Tell your hiring managers the good news. They can question an obviously physically challenged applicant’s ability to perform a specific job without risking a successful disability discrimination lawsuit based on regarding the applicant as disabled.

The key is to stick to questions related to the exact position the applicant seeks—not making generalizations about the impact on other major life functions or a broad range of jobs.

Recent case: Danita Davis was born with a right arm that is shorter and smaller than her left arm. She also lacks a thumb on the right hand. She claims that her medical condition doesn’t keep her from lifting or carrying objects in the workplace.

Davis applied for a job as a short-order cook at a Popeyes restaurant. The manager who interviewed her expressed some concern that she might not be able to lift the sorts of things a cook has to lift. The manager picked another applicant.

Davis sued, alleging the restaurant had illegally regarded her as disabled when she was perfectly capable of working as a cook.

The 11th Circuit Court of Appeals rejected her claim. It reasoned that, at most, the restaurant thought Davis might be incapable of working as a short-order cook.

That’s not the same as believing (wrongly) that Davis couldn’t work at a wide range of jobs or couldn’t care for herself. (Davis v. Sailormen, Inc., No. 07-12025, 11th Cir., 2008)

Final note: A better approach would have been for the manager to have Davis demonstrate she could perform the essential functions of the job, with or without accommodations. However, that’s legitimate only if all applicants must show their ability. 

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