A deaf person applies for a job and the employee who takes applications asks you “how can a deaf person do this job?” What if an essential function of the job requires interaction with the public or the ability to communicate with team members or to respond to an audible safety warning? Be careful—take a deep breath and remind your employee that the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to people with disabilities—even at the hiring stage. We got a good reminder of this requirement from a case the EEOC just settled with McDonald’s regarding just such a scenario.
The Alleged Facts
In EEOC v. McDonald’s Corporation, a deaf man, with prior experience as a cook and clean up team member at another McDonald’s, applied for a job at a Missouri restaurant and was scheduled for an interview. The complaint alleges that the applicant (who can neither hear nor speak) indicated he needed an American Sign Language (ASL) interpreter for his interview and the manager cancelled the interview. McDonald’s settled the suit, agreeing to pay the applicant $56,500 and entering a 3 year consent decree under which it will train its staff and provide a special phone line for applicants to request an accommodation.
Why Should You Care?
You should care because the EEOC is looking for cases involving recruitment and hiring. The EEOC’s recently approved 2017-2021 Strategic Enforcement Plan announced six national priorities, one of which is to eliminate barriers in recruitment and hiring that discriminate against protected classes, including against individuals with disabilities. The EEOC St. Louis District Director noted that “Federal law clearly requires employers to provide reasonable accommodations to deaf and hearing-impaired employees and applicants.” An EEOC attorney went on to say
“If a deaf applicant’s primary language is American Sign Language, then working with the applicant to have an ASL interpreter at the job interview is key to providing that applicant an equal opportunity to compete for the job.”
What Should You Do?
Does that mean employers have to interview and hire all deaf job applicants? No—but it means that you have to consider a deaf person’s application like you consider any other application. Does the applicant have the education, training or experience that would merit an interview? If so, the fact that the applicant is deaf should not be the end of the interview process—so don’t let assumptions about any limitations on the applicant’s abilities get in your way. If the applicant needs an interpreter for the interview, provide one, conduct the interview and see if this candidate is the best applicant as compared to his or her competition. If another candidate has better experience or skills, then hire the other candidate. You will have documentation that you made the hiring decision on the relative qualifications and not the disability. If, however, this person is the best candidate, then engage in the interactive process to determine whether or not the candidate needs a reasonable accommodation to perform the job’s essential job functions. Just like with any other disability, not all people who are deaf have the same type or level of impairment. Your applicant may be able to communicate with the public or team members or respond to audible safety warnings with little or no accommodation or with a readily available one. Don’t jump to conclusions.
So, train your recruiters and application takers to be sensitive to disabled applicants and be ready to provide reasonable accommodations during the job application process. If you only accept applications in person, make sure that the place an applicant has to appear is accessible (e.g., to someone in a wheelchair). If you accept applications on-line, be sure that your page provides a way for someone to request a reasonable accommodation during the application process. Most importantly, make sure employees understand that they should not assume you won’t provide a reasonable accommodation, even at the application or interview stage.