Do you know the potential ADA pitfalls in your hiring process?

Here’s a prime example of how tricky the hiring process can get when the Americans with Disabilities Act (ADA) comes into play.
Labor and employment law attorneys James H. Kizziar, Jr. and Amber K. Dodds with Bracewell & Giuliani analyze a recent federal court case where a company didn’t go far enough to accommodate a disabled applicant—and how that decision came back to bite them.

The Facts

Rochelle Duran, who is hearing impaired, applied for a direct support professional position with Creative Networks. She requested a sign language interpreter for orientation and pre-employment training sessions, which were a required portion of the application process.
Creative Networks agreed to provide an interpreter, but only up to a cost of $200, and suggested that Duran find a friend or relative to interpret for any sessions over that cost.
Unfortunately, $200 was insufficient to cover even one session of the orientation and training, and Duran was unable to provide another interpreter. Although Duran attended the orientation and training, the information was presented mostly verbally and she was unable to understand much of the material.
Eventually, Duran’s application was deemed inactive and she was not hired.
Duran filed a disability discrimination charge with the Equal Employment Opportunity Commission (EEOC), which subsequently filed suit in federal court for both the failure to provide a reasonable accommodation and the failure to hire Duran.

The Obligation for Reasonable Accommodation

The Americans with Disabilities Act (ADA) protects qualified individuals from discrimination in the application process, specifically including “job application procedures, . . . hiring, . . . [and] job training.”
The law protects job applicants through two main avenues:

  • requiring that employers provide reasonable accommodations to job applicants, and
  • prohibiting the denial of employment to a qualified individual because of that individual’s disability.

The ADA also requires employers to engage in a good-faith dialogue with an applicant to determine reasonable accommodations that would allow the applicant to complete the application process. Reasonable accommodations must be provided, unless the employer can show that the proposed accommodations would result in an undue hardship.
Significantly, this obligation exists even if the applicant may not complete all of the steps of the application process, or accept a job offer.
In this case, the employer conceded that providing a signing interpreter for the full orientation and training was a reasonable request, and the expense of providing the interpreter wouldn’t have resulted in an undue hardship.
Therefore, the court found that the employer’s failure to provide reasonable accommodation violated the ADA.

Discriminatory Failure to Hire

Failing to provide reasonable accommodation in the application process can also result in an ADA failure to hire claim where the applicant is not offered the position.
Failure to hire claims encompass an employer’s decision not to hire an otherwise-qualified, disabled applicant because the employer doesn’t want to provide reasonable accommodation either before the applicant is offered the position or after the applicant accepts the job and becomes an employee.
Here, the court found that Creative Networks denied Duran an employment opportunity (a job offer) because she asked for the reasonable accommodation of interpreter services during orientation and training.
The court rejected Creative Networks’ argument that it didn’t discriminate against Duran because it never reached the stage of considering her application.
Employers can’t avoid their obligation not to discriminate against otherwise-qualified, disabled applicants by arguing that the applicant wouldn’t have been hired anyway, the court said. Further, applicants aren’t required to show that they would have been hired, which would be extremely difficult, to prevail on a failure to hire claim.
The court found that Creative Networks’ failure to provide reasonable accommodations to Duran foreclosed her opportunity for employment by preventing her from proceeding further in the application process—and that amounted to discrimination.

Employer Obligations During the Hiring Process

Kizziar and Dodds emphasize that the ADA’s obligation to provide reasonable accommodations to qualified individuals with disabilities applies equally to job applicants and employees. Unless a requested accommodation causes an undue hardship, employers must provide reasonable accommodations even if applicants will not complete all of the steps of the application process or accept a job offer.
Further, employers may incur liability for failure to hire if their application procedures prevent disabled individuals from submitting applications or otherwise completing the application process.
Kizziar and Dodds recommend that employers should:

  • carefully analyze their application processes for requirements that indirectly hinder disabled applicants from applying;
  • have practical and reasonable accommodations available to suggest and provide to disabled applicants; and
  • take care not to let disabled applicants’ applications become inactive due to a lack of reasonable accommodation—liability for disability discrimination can occur even if an applicant’s application never reaches the level of being considered for a job offer.

The case is EEOC v. Creative Networks LLC.