Some disabled applicants are willing to reveal their disabilities on job applications. Others aren’t.
Although employers can’t ask an employee about a disability—even an obvious one—they can ask whether the applicant wants to reveal a disability and whether that disability needs an accommodation. Just don’t ask the question directly.
Instead, include the invitation to address disabilities on the application by including a question: Can you perform the essential functions of the job with or without an accommodation?
If the applicant discloses a disability and says she can’t perform the job’s essential functions even with an accommodation, you can turn her down. You don’t have to second-guess her assessment and look for a reasonable accommodation.
Recent case: Korrin Stewart applied for a job as a waitress with Lee’s Log Cabin restaurant. On her application, she clearly stated she could not lift more than 10 pounds. The application included a list of job duties, including the ability to lift between 25 and 30 pounds many times during a shift.
The application asked whether any accommodation could be made so that she could perform all the required job duties, and Stewart answered “no.”
She wasn’t hired and she sued, alleging disability discrimination.
But the 7th Circuit Court of Appeals rejected her claim. It said the potential employer was entitled to rely on Stewart’s self-assessment that she couldn’t perform the job requirements even with an accommodation. (EEOC v. Lee’s Log Cabin, No. 06-3278, 7th Cir., 2008)
- Drawing the line on tardiness: the legal risks
- Outrageous co-worker harassment? 4 quick actions can help you avoid liability
- If you discover wrongdoing after the fact, you can use it in court to justify termination
- Stick to objective standards to avoid needless litigation
- 'Reverse racism' or 'Racism'â€”Victim says it's all the same