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May 29, 2013

Sink or Swim – No Two People are Alike!

Filed under: General HR Buzz6:00 am

The Americans with Disabilities Act (ADA) was designed to prohibit discrimination on the basis of disability in employment, as well as various other public sector arenas.   For the ADA to afford protection to an individual, he must have a physical or mental impairment that substantially limits one or more major life activities, have a history or record of such an impairment, or is one who is perceived by others as having such an impairment.

An employer has particular obligations to employees and applicants with disabilities.  An employer may not ask questions about an applicant’s disability before making a job offer, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship.  Reasonable accommodations require several things, but we are going to focus on these two:

  • Treat the person as an individual.  Don’t make comparisons or generalize their disability.
  • Commit to and engage in the interactive process.

A recent case to consider is that of Nicholas Keith who became certified as a lifeguard in Oakland County, Michigan.  Keith was offered a lifeguard position with the county contingent on a medical exam, but was later rejected.  I should mention that Nicholas Keith was born deaf and cannot speak.  After a doctor examined Keith and a consulting firm performed a job-analysis for the tasks he would perform as a lifeguard, both determined he could not do the job.  Keith sued the county for allegedly violating the ADA.  The district court dismissed the case, but the appeals court upheld his case and sent it back to the district court to be reviewed again.  One of the things the appellate court considered in its determination was that the county did not engage in an interactive process with Keith.  Rather, the county accepted the opinion of the doctor and consultant instead.  Interactively conversing with Keith to determine if there were any reasonable accommodations of which he was aware that would allow him to be a lifeguard could have saved the county a lot in legal fees.  If the county would have asked him, Keith could have told them has the ability to detect loud noises because he has a cochlear implant!

The takeaway is not to judge someone by what we think we know.  Communicate with your employees and applicants to whom you have made an offer, who may need accommodations that are not hardships on your company.  Both you and your employees will benefit!


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