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Abilities and Evidence
Should Inform Your Decisions |
You've probably heard of the old chestnut warning about making assumptions. Keep it in mind when making employment decisions that could fall under the federal Americans with Disabilities Act (ADA).
A couple of cases point up the danger of letting stereotype-based assumptions enter into decisions about a person's ability to perform a job.
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The Threat of Harm |
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The ADA prohibits discrimination in hiring, firing, promoting, compensating and training.
And it applies to recruitment, advertising, tenure, layoffs, leave, fringe benefits, and other employment activities.
Under some circumstances, the ADA lets employers exclude individuals who pose a threat to the health or safety of themselves or others. However, an employer can't simply assume that a threat exists. The employer must use objective, medically supportable methods to establish that there is a "significant risk" that "substantial harm" could occur. |  Browning-Ferris, Inc. paid $194,000 to settle an employment discrimination lawsuit in 2003. The waste management company was charged with violating the ADA by firing an employee with Crohn's Disease, an inflammatory intestinal disorder.
The employee worked as a boom truck driver and trash compactor repair person. According to the Equal Employment Opportunity Commission (EEOC), Browning-Ferris discharged the driver because it feared Crohn's Disease "would lead to life-threatening consequences" when combined with an exposure to waste.
Both the employee and medical specialists told the company that people with Crohn's Disease would not be adversely affected by being around waste.
A federal jury in Tennessee awarded nearly $41,000 in another case involving a man who suffered from diabetes.
Kevin Armstrong applied for a position as a baggage handler with Northwest Airlines. He received a conditional job offer from the airline and passed a pre-placement physical. After the physical, however, a physician under contract to Northwest learned that Armstrong was diabetic and dependent on insulin injections for survival. Shortly after the physician's discovery, the airline withdrew the job offer.
The EEOC filed suit against Northwest on behalf of the job applicant, alleging the airline violated the ADA by discriminating against a diabetic.
Northwest argued there was no violation of the ADA because Armstrong was a threat to himself and others as a result of his medical condition. (Under some circumstances, the ADA permits employers to exclude individuals who pose such a threat. See right-hand box above for more information.) However, in a decision in 2002, the jury rejected the airline's contention and awarded $19,250 in compensatory damages and $21,000 in back pay.
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The Lessons to Be Learned |
Avoid making assumptions and basing employment decisions on stereotypical ideas of an applicant's disability. Base decisions on actual abilities.
Use verifiable facts and solid scientific evidence if your company determines that an employee or applicant is incapable of safely and effectively performing a job.
Compile sufficient information to support these decisions. Documentation helps your company ensure that it isn't falling prey to unlawful stereotyping.
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This article is provided as a service by: L.S. Sherman Litigation Consulting.
LSSLC is a group of complex litigation specialists helping attorneys prepare successful complex litigation through the management of detailed technical information and engagement of experienced testifying experts of unsurpassed quality.
Contact Linda Sherman: 610-642-7755 |
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LSSLC, LLC provides the information in this newsletter for general guidance only, and does not constitute the provision of legal advice or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.
The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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