Are You an Accommodating Recruiter?

February 20, 2013

By now, most all employers are aware that the Americans With Disabilities Act Amendment Act (ADAAA) has greatly expanded the definition of what conditions are protected disabilities. However, not as many employers are aware that the ADAAA protects not only employees, but applicants as well. A recent case in Arizona serves as an example of what employers need to do in order to comply with the Act.¹

Background

Rochelle Duran has been hearing impaired since she was born. In 2005, she applied for a Direct Support Professional position with Creative Networks. Ms. Duran was informed that she would be required to complete orientation and pre-employment training as part of the application process. Ms. Duran requested an interpreter for orientation and was told that the company would not supply an interpreter for the orientation, but would supply an interpreter for training. Because of this, when Ms. Duran showed up for orientation she was unable to understand most of what was said. Ms. Duran also completed Creative Network’s written job application around the time of the orientation. She was contacted by Creative Network and told that her application had been reviewed and the company wanted her to come in for pre-employment training. When told about Duran’s need for an interpreter, the company informed her that she would be responsible for finding her own interpreter, but the company would pay $200 for interpreter services. The training in question lasted 24 hours over a six-day period. Ms. Duran informed the company that $200 would not cover the cost of an interpreter for the training in question. The company indicated that it was policy to only provide $200 for the cost of an interpreter, but that Ms. Duran could bring in a friend or family member to interpret. Ms. Duran indicated that she did not have anyone who could interpret for her. Creative Network then placed Ms. Duran’s application in its inactive files.

What the Court Found

After filing a Charge of Discrimination with the EEOC, the Commission filed suit against the company for discriminating against Ms. Duran on the basis of her disability. Specifically, the EEOC alleged that Creative Network failed to reasonably accommodate Ms. Duran during the hiring process. The ADAAA provides that once an employer becomes aware of the need for an accommodation by an employee or applicant, that employer has a mandatory obligation to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. Interestingly enough, Creative Networks did not argue that paying more than $200 for a sign language interpreter would be an undue burden, which is a defense to the requirement to accommodate. In fact, one of Creative Network’s own witnesses testified that limiting the company’s coverage of interpreter services to $200 was unreasonable. What Creative Network did argue was that Ms. Duran was not hired because she never became an eligible applicant due to the fact that she did not take the required pre-interview training. The court shot this argument down immediately finding that Ms. Duran was not required to complete every step of the application process, or even apply, when discriminatory hiring processes deter her from doing so.

What This Means For Employers

This ruling is a harsh reminder for employers that the duty to accommodate extends not only to your current employees, but also applicants. In fact, the court has pointed out that if a company has in place an inherently discriminatory application process, liability may be imposed without someone even filing an application. Accordingly, it would be a good idea to make sure that your application/hiring policies do not create unnecessary hurdles for those with disabilities, such as limiting the amount that will be spent on interpreters. The best practice is to treat all applicants alike and openly engage in the interactive process with disabled applicants in an effort to identify and implement a reasonable accommodation.