Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.
Questions addressed to Ms. Lindeman may be addressed in this column.
Hiring and the Law
By Devora L. Lindeman, Esq.*
Question: I’m hiring customer service reps (“CSRs”) for our call center. We hire pretty much anyone who reads and speaks English. They need to read the necessary scripts and communicate with our customers. A quadriplegic answered our ad and came to our office to fill out an application in his wheelchair. He had a nice speaking voice, but we didn’t see how he could do the job, let alone fill out the application, so we thanked him and sent him on his way. A colleague told me we should have interviewed him. What should we have done?
Answer: Your colleague is correct. When someone has a disability, you need to treat that applicant like any other. You determine if the applicant has the skills, background and requirements you are looking for and whether he or she can perform all of the essential functions of the job. You pre-screen for basic skills, background, education etc., by looking at a resume or job application for example, test where appropriate, and interview those with the basic requirements to see if they can do the job and are a cultural fit for your business. You also may pre-screen out people for other reasons, such as they’ve indicated they want more money than you are paying for the position. If it is an administrative position and their cover letter has typos, that application may also hit the circular file.
In this case, it seems like the only pre-screening is whether the applicant reads and speaks English. If the quadriplegic applicant passed that preliminary requirement, he should have been moved to whatever your next application stage would be.
The disability discrimination laws generally preclude employers from making employment decisions because of an applicant or employee’s age, race, gender, religion etc. However, employers can fail to hire a disabled applicant if the disability precludes the applicant from performing what are called the “essential functions of the job.” Those are the functions the job exists to perform: typists type; graphic artists design; project managers manage projects etc. For example, the company can fail to hire the blind applicant for a truck driver position because of the applicant’s disability. The essential function is driving and blind applicants can’t drive. But, that same blind applicant may be perfectly competent to handle other positions. A company would be discriminating against the applicant by presuming the applicant couldn’t perform another position where the relationship to the disability is not as obvious. You need to look at each job and each applicant individually.
Companies are also required to provide “reasonable accommodations” if such would help the person perform the essential functions of the job. The accommodation that is provided needs to be something that actually assists the person to do the job, and that is reasonable for the company to do. For example, if a person with dwarfism applies to stock shelves, but can’t reach them, the company needs to provide a ladder. With the ladder (the “reasonable accommodation”) the shelves can be reached and the job can be done. Even if the company has to buy a ladder or step-stool, this is reasonable to do and the company would be required to do so.
Reasonable accommodations need to be provided in the application process as well. For example, the quadriplegic applicant may have needed help filling out the job application. That help needs to be provided. Accommodations provided in the application process need not be the same provided if the person is hired.
With the quadriplegic applicant, the company should not have presumed that the applicant was unable to do the job. Rather, he should have been asked. You describe the job functions and ask how he would perform them in a tone of voice that is not antagonistic to the applicant. For example, if your computers automatically dial phone numbers, so the rep doesn’t have to dial, and your CSRs plug headsets into that automated system, then a CSR doesn’t need to be able to physically dial the phone. He may, however, need some help putting on the headset—and that help would need to be provided.
Maybe you’ll find he can’t do the job—but maybe you’ll find that he’s done this type of thing before and that he’ll turn out to be your best CSR.
*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law. These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice. Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com. She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.
© 2011 Greenwald Doherty. May not be reprinted without permission.