EMPLOYER ALERT – DISABILITY DISCRIMINATION CLAIMS ON THE RISE

The EEOC reports that disability discrimination claims increased by 14% last year, and now account for one out of every five discrimination charges filed against private employers. In the past year, the EEOC settled two cases against national retailer Wal-Mart. In the most recent case, Wal-Mart paid $250,000 in damages and agreed to provide training to its supervisors in a case involving failure to provide a reasonable accommodation to a pharmacist who was disabled from an earlier gunshot wound. In the other case, Wal-Mart paid $300,000 to settle a claim that it failed to hire a job applicant because she has cerebral palsy. Because the ADA applies to all businesses with 15 or more employees, small employers are equally at risk for claims, and the financial impact of a significant settlement or jury verdict can be devastating.

Protect your company from liability by following these guidelines:

• Make sure job descriptions include the “essential functions” of the job, and leave out extraneous duties that could eliminate a disabled applicant from consideration.
• Do not include requirements such as lifting, standing, etc. unless they really are essential to the job.
• Avoid descriptions that favor a particular manner of performing physical tasks. For example, use “communicate with” instead of “speak with,” and “move” between locations instead of “walk” between locations.
• In interviews, do not ask questions about a disability. Focus instead on the essential functions of the job. Ask all applicants – not just those who appear outwardly to have a disability – whether they can perform the essential functions of the job.
• If a current employee requests a reasonable accommodation under the ADA, give careful consideration before making a decision. You are not required to provide the specific accommodation requested by the employee, nor are you required to provide an accommodation when doing so would cause an undue hardship on your company. You are also not required to eliminate an essential function of the job, or create a new job for the employee. However, you are required to provide a reasonable accommodation which would enable the employee with a disability to perform the essential functions of the job.