But The Applicant Didn’t Tell Me They Were Disabled…

By Fiona Ong - Shawe Rosenthal LLP

August 12, 2024

So, in my first week of work at my current law firm, I discovered I was pregnant. Obviously, the timing wasn’t great. And frankly, I was terrified to tell my new bosses that, gosh, in about 8 months, I would need parental leave. (And by the way, the only other female attorney at that time was also pregnant, and due around the same time). But when I finally did, the partners (including the other pregnant attorney) were all incredibly supportive. Which is one of the reasons why, after many years, I’m still here.

But I’m sure there was some internal consternation when I told them. That’s human nature after all – they didn’t get quite what they were expecting (since I was expecting – hah!). And although my partners were utterly fabulous, not every employer handles the unexpected well. Particularly when a bright and shiny new employee suddenly reveals that they have a disability and need an accommodation. In such a situation, many employers might feel as if the employee lied to them and react accordingly – but that can land them in hot water, as a recent press release from the Equal Employment Opportunity Commission made clear.

According to the EEOC, after a newly-hired scheduling assistant informed the employer about her vision impairments and need for accommodation, “the employer questioned why she did not raise these issues in her interview, and immediately terminated her.” The employer also apparently ignored offers from her vocational representative to provide – and pay for – the accommodations she needed. Which eventually led to the EEOC suing the employer for violating the Americans with Disabilities Act.

As the EEOC noted in its press release, the ADA prohibits employers from asking about an applicant’s disability prior to making a job offer, and further prohibits an employer from refusing to employ someone because they need an accommodation. And EEOC Regional Attorney Debra Lawrence pointedly stated that, “Under the ADA, job applicants do not need to reveal their disabilities before being hired.”

So, employers, although it may feel like the employee was not entirely honest if they didn’t tell you about their disability during the hiring process, that is how the law works. You can’t ask, and they don’t have to tell you – and this is to protect them from employers who wrongfully assume they can’t do the job or who would prefer not to deal with a disability (sort of the point of the ADA, yes?).

But once they are hired and inform you of a disability, you can and must engage in the interactive process to see if there is a reasonable accommodation that will enable them to do the essential functions of their job, or to enjoy equal benefits and privileges of employment. Of course, if there is no such accommodation available, or if the accommodation would impose an undue hardship (and that’s a high standard to meet – far more than simply being annoying or inconvenient), and there’s no other position that they can perform (because the EEOC insists that you must consider a transfer, as I’ve addressed in a prior blog post), you would not have to continue the employment relationship.

But keep in mind that many employees with disabilities can be and are valuable contributors to your business. And showing them the kind of support and consideration that my partners showed me can build a long-lasting and productive relationship.

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