Ebola, Trypanophobia, And Deafness: What Does The ADA Require?

The questions raised by the Americans With Disabilities Act can't be answered with a simple yes or no.

Are you required to hire someone with a disability even if he cannot do the job?

And can you refuse to hire someone who you think – maybe – has a disability?

The Americans With Disabilities Act (“ADA”) is the place to look. However, these questions cannot be answered with a simple yes or no. There’s some work you have to do to answer them: it all depends – on the facts and circumstances, and whether the applicant can do the job, with or without an accommodation.

But generally – you cannot simply say “no job” – without a lot more.

What Is The ADA, And What Is A Reasonable Accommodation?

People with disabilities have one of the highest unemployment rates in the country. The ADA was passed to prohibit employment discrimination against people with disabilities – to address the stereotypes, assumptions, myths and fears that prevented those with medical impairments or disabilities from becoming employed.

I wrote before in ATL that “In simple terms, the ADA defines a disability as a condition that impairs a major life function such as walking, breathing, taking care of oneself or working.” The ADA prohibits discrimination against someone with a disability who can perform a job’s “essential functions,” and provides that an employer must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”

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Ah – yet another law where “reasonable accommodations” are required. Last week we saw that religious beliefs and practices must be accommodated if an undue hardship is not created.

Furthermore, an employer to whom an employee raises the issue of a disability and requests a reasonable accommodation must engage in meaningful discussions with the employee as to the proposed accommodation – an “interactive process.”

Ebola And The ADA

And firing an employee or refusing to hire an applicant if you perceive that he/she is disabled is also as violative of the ADA as if he/she actually in fact had a disability.

For example, a Tampa company was sued recently by the EEOC for allegedly firing an employee who refused to cancel an approved vacation trip to Ghana. The suit was based upon the ADA.

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Vacation in Ghana? The ADA? Huh?

Well, the EEOC sued because the employer’s decision to fire her was “based on perceptions of disability” – it “regarded her as disabled based on its unfounded fears and beliefs about Ebola in Ghana and the risk that she would contract Ebola on her trip.”

An EEOC regional attorney reiterated that the ADA “protects people from being discriminated against based on unsubstantiated fears, myths, and unfounded stereotypes about actual or perceived disabilities.”

The key words here are “actual or perceived disabilities” – and the “unsubstantiated fears, myths, and unfounded stereotypes” that previously bedeviled people with disabilities.

Trypanophobia And The Pharmacist

The ADA does lead to some interesting cases.

In 2011, Rite Aid began offering customers immunizations, and a longtime Rite Aid pharmacist who suffers from trypanophobia – a fear of needles – was fired when he refused, citing his impairment, to administer such immunizations. His doctor said that it would be unsafe for both him and his customers to require him to give injections.

He asked for an accommodation, and noted the nearby Rite Aid pharmacies – but was fired. He sued, and a jury awarded him $2.6 million.

But recall that the ADA does not protect someone who cannot perform a job’s “essential functions.” In this case, the appeals court reversed the jury, holding that the administering of immunizations was “an essential job requirement” of a pharmacist at Rite Aid, and that the accommodations proposed by the pharmacist – such as requiring Rite Aid to provide desensitization therapy – were not reasonable.

The pharmacist is seeking to appeal to the Supreme Court.

What About Hearing Impairment?

There’s a lot to say about the ADA (and I will say it in the many future posts that I will devote to it). Today, however, I will focus on deafness as a disability solely because, for reasons I don’t know, there are so many recent cases that involve this disability.

Less than two weeks ago, the EEOC announced that it had sued a California telecommunications company for allegedly denying a deaf employee his request for a sign language interpreter, “an accommodation that would allow him to interact meaningfully in the course of his work.”

On the flip side of this, the EEOC settled a case where a Texas cellphone repair facility was alleged to have denied employment to two hearing-impaired applicants. The company became aware that they were hearing-impaired after observing them in a group interview using American Sign Language (“ASL”).

And as much as the ADA leads to some interesting cases, it also leads to some strange ones.

Earlier this year, an Ohio employer settled a case in which it was alleged that it refused to hire an applicant “because she is deaf and cannot speak. [She] applied for the site manager position at one of the [housing service provider’s] housing communities. Despite its being an apartment complex that gives preference to deaf residents, [it] required the successful job candidate to be a hearing individual.”

Hard to believe – a housing community that “gives preference to deaf residents” refused to hire a deaf site manager.

And just last month, the EEOC sued a company because it allegedly refused to hire someone for a warehouse position because of his deafness.

The reason?

The company site manager said it in a text message: “we have determined that there is no job that we can offer that would be safe for you. There is just too much equipment traffic in our work areas and being able to hear a horn or equipment in operation is paramount for safety. I would not want to put you in a dangerous position.”

So the manager made a decision on his own as to the applicant’s disability and safety?

The EEOC noted that the company “never asked [the applicant] about his ability to perform any of the essential functions of a warehouse position, with or without reasonable accommodation.… the ADA requires employers to undertake a rigorous assessment of whether a disabled employee poses a safety threat in the workplace.”

Takeaway

You can’t refuse to hire someone who is hearing impaired without an individualized assessment of their condition and whether they can perform the essential functions of the job with or without accommodations. And you cannot speculate about the disability.

Oh, and you must engage in an interactive process with the applicant (or employee) to determine if there is a “reasonable accommodation.”

And most important: You cannot indulge in the myths and fears about people with disabilities that previously prevented them from gainful employment.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.