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Accommodating Disabled Job Applicants is No Game

March 20, 2013

When we think of employers' reasonable accommodation obligations under the Americans with Disabilities Act, we usually think in terms of accommodating current employees. The ADA, however, equally extends this obligation to job applicants.

A recent lawsuit filed by the Equal Employment Opportunity Commission against Toys "R" Us illustrates this issue:

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer's Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas's mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas's mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

What is the takeaway for employers? Don't conflate the need for a job-related accommodation with an interview-related accommodation. If a job applicant needs an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.