Refusing to hire a person with a particular disability without exploring reasonable accommodation or having real evidence that the person would pose a safety concern is an ADA violation. EEOC is suing two companies in Georgia for refusing to hire a person with epilepsy for a construction project in Georgia.
Pending Case: Garney Construction Co. was awarded a contract with Georgia Power Company for a power plant construction project there. The power company’s contract required operators of front-end loaders on the project to pass a physical exam established by the Department of Transportation and the American Society of Mechanical Engineers. Both exams can’t be passed by workers with epilepsy due to the medication taken by job applicants.
Employers can refuse to hire people who pose a “direct threat” to the safety of self, other employees, customers, or the public.. Refusing to hire someone can’t be based on a slightly increased risk, speculation about future risk, or generalizations about a disability. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation. The determination that an individual poses a direct threat must be based on reasonable medical judgment that relies on the most current medical knowledge available and that takes into account:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of potential harm.
In this case, this worker has been seizure-free since 1988. EEOC feels it’s a “myth” that the company risks on-the-job accidents by hiring people with epilepsy. Remember, the direct threat standard is difficult to meet and most employers are not able to invoke the standard except in extreme circumstances. An individualized assessment is needed to make a determination of direct threat.
Does your company have such a procedure in place? If not, now is the time to review your policies and procedures in order to mitigate your risk for employment discrimination and avoid a potential lawsuit. If you do, we would like to hear from you so we can share your best practices with others. If you don't hav a procedure yet or feel it needs some changes, Springboard can help.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.