A recent case brought by the Equal Employment Opportunity Commission (EEOC) emphasizes the importance of employer obligations to prevent disability discrimination in all aspects of employment including the hiring process. After just two hours of deliberation, a New York jury returned a landmark verdict of $1.675 million against McLane Northeast – a large facility distribution company – for discriminating against a deaf applicant.

The employer was found guilty of violating the Americans with Disabilities Act (ADA) by refusing to further consider a qualified applicant after learning she was deaf and thereafter refusing to hire her for one of two entry-level warehouse jobs.[i] In its defense, the company argued that the applicant was unqualified, failed to inform the company of any disability or request an accommodation. The jury was unpersuaded.

The ADA mandates that the definition of disability is to be construed broadly, in favor of extensive coverage, to the maximum extent permitted by the law.  Under the ADA, an employer may not ask a job applicant to answer disability-related questions, such as if they have a disability, or require them to take a medical exam, before extending a job offer. An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

Laws against disability discrimination (whether state or federal) protect disabled applicants/employees from generalized assumptions that they cannot perform the essential functions of the position sought with or without a reasonable accommodation. In the McLane Northeast case, once the employer became aware of the applicant’s disability during the initial interview it ceased all communications and continually ignored the individual’s resubmitted application. This failure to engage with the applicant was a key mistake that many employers make; presuming an inability to perform without engaging with the applicant or simply refusing to hire an individual with a disability without a showing of undue hardship.[ii]

Bottomline, when it comes to disability accommodation there are no magic words. Once an employer is aware of a disability, they cannot escape liability by placing the burden of engagement on the applicant/employee. They must interact with the individual within the guardrails provided by the applicable state/federal law to determine the true impact, if any, the disability has on the individual’s ability to perform the essential functions of the job sought.

[i] The applicant had a favorable initial interview conducted through a system that allowed the applicant to type in responses to questions that were relayed to the interviewer via a voice translator. At the end of the interview the applicant was told that someone from the company would follow up with her about the position. When no one from the company followed up with the applicant she resubmitted her resume.

[ii] Under the ADA an employer must provide a reasonable accommodation unless doing so would pose an undue hardship on the company,