Hiring and Potentially Unlawful Employment Practices

Twice in the last week I’ve been confronted by the issue of asking employment applicants whether they have any health or disability-related needs or requirements. First at a Human Resources Institute diversity event, and then on the application form for a part-time position I have applied for.

The practice seems quite prevalent among employers, who seem unaware that it is a potential breach of human rights. Based on the four years I spent working for the Human Rights Commission, let me explain what the problems, risks and solutions are.

Disability_symbols_16The Problem

Section 23 of the NZ Human Rights Act 1993 states:

Particulars of applicants for employment

It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22.

Section 22 of the Act says that, if an applicant is qualified for the particular job, an employer cannot refuse or omit to employ the applicant; offer or afford the applicant or the employee less favourable terms of employment, terminate the employment of the employee, subject the employee to any detriment, or retire the employee, by reason of any of the prohibited grounds of discrimination, of which disability/illness is one.

The employment application I filled in asked:

  • Do you have any health conditions that may affect your ability to effectively carry out the functions and responsibilities of the position you are applying for? If yes, please give brief details.
  • Please list any special requirements, on health or personal grounds, you may need us to consider if you are employed with us.

The Risk

By asking these questions, and by my answering them, the employer puts itself at risk. If I do not get an interview, I may reasonably suspect that I have not been shortlisted because of my answer. I could then complain to the Human Rights Commission that I was not offered an interview because the employer did not want to employ me because of my disability. The onus is on the employer to prove I was less qualified than the person they employed.

Even if I do get an interview but not the job, I may reasonably expect that I wasn’t chosen because of my disability. A further mistake employers make is to ask these questions at interview — again, it puts the employer under suspicion of disability discrimination and, if faced with a complaint, they must prove the person employed was more highly qualified than the disabled candidate.

The Solution

Mitigating the risk is quite simple.

For the candidate:

  • You are under no obligation to answer questions about your health or disability status on application forms, so don’t. I simply wrote, for both questions, “I will be willing to answer this question when and if an offer of employment is made (refer s23 Human Rights Act 1993-NZ).”
  • If you are asked similar question in an employment interview, say the same thing.
  • If you are offered the job, be willing to discuss your needs openly and honestly and, if need be, offer solutions to any problems that may impact on your ability to do the job.

For the employer:

  • Do not ask questions about health or disability status on application forms or in employment interviews.
  • When you come to offer to offer a candidate a position, this is the correct time to ask about health and disability status — for any candidate, as not all illnesses or impairments are visibly obvious.
  • An employer has a responsibility to offer reasonable accommodation of an illness or disability, but only if the accommodation does not cause undue hardship to the employer’s operation or other employees. Accommodations may be things like flexible hours, a slight change in duties or, in some cases, assistive equipment. (See more about being an accessible employer here.)
  • Working out whether an accommodation is reasonable or not can best done in a transparent conversation with the favoured candidate. Remember that, if they are your preferred choice, making changes will be balanced by having the best person for the job. Remember too that a qualified candidate will most likely have developed ways to manage the impact of their illness or disability. Take notes about the discussion, the suggested accommodations, whether or not you consider them reasonable and why.
  • If, after discussion with the candidate you feel there is no way to accommodate their needs without undue hardship, you may need to withdraw your offer of employment. The candidate may disagree and complain, but a clear record of the discussion will help you prove that you have been reasonable in considering the candidate’s needs.

The ADA, Service Animals, and Places of Business

Service Dog 1

The article I wrote in January about a restaurant owner’s refusal to serve a veteran with a service dog raised questions about how businesses are to respond to people with disabilities who use service animals.  Today, I wanted to share what the Americans with Disabilities Act (ADA) have to say about service animals in privately owned businesses that serve the public.

The ADA has a frequently asked questions page about this matter, and I decided to select a few question and answer statements from the page that business owners need to know in order to not offend those who use service animals or violate the mandate.  The key “take home points” within each response will be in bold.

How can I tell if an animal is really a service animal and not just a pet?

A:  Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal.

Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability.

What must I do when an individual with a service animal comes to my business?

A:  The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers.

I have always had a clearly posted “no pets” policy at my establishment. Do I still have to allow service animals in?

A:  Yes. A service animal is not a pet. The ADA requires you to modify your “no pets” policy to allow the use of a service animal by a person with a disability. This does not mean you must abandon your “no pets” policy altogether but simply that you must make an exception to your general rule for service animals.

My county health department has told me that only a guide dog has to be admitted. If I follow those regulations, am I violating the ADA?

A:  Yes, if you refuse to admit any other type of service animal on the basis of local health department regulations or other state or local laws. The ADA provides greater protection for individuals with disabilities and so it takes priority over the local or state laws or regulations.

I operate a private taxicab and I don’t want animals in my taxi; they smell, shed hair and sometimes have “accidents.” Am I violating the ADA if I refuse to pick up someone with a service animal?

A:  Yes. Taxicab companies may not refuse to provide services to individuals with disabilities. Private taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same or equivalent service.

What if a service animal barks or growls at other people, or otherwise acts out of control?

A:  You may exclude any animal, including a service animal, from your facility when that animal’s behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.

Although a public accommodation may exclude any service animal that is out of control, it should give the individual with a disability who uses the service animal the option of continuing to enjoy its goods and services without having the service animal on the premises.

All excerpts are courtesy of the Frequently Asked Questions page about service animals and businesses.

Though some of the statements I highlighted may seem to be ones that should be understood by all, they are not. People with disabilities are denied service and full participation in establishments utilized by the public each and every day in this country, and abroad.

Being ignorant of the law is no excuse when breaking it, especially when it infringes on the rights of a person to use a service or facility.  Business owners have to be knowledgeable about what their responsibilities are when it comes to the law, and people with disabilities have to speak out when their rights have been violated, whether intentionally or not.

Every week, I come across stories of people with disabilities, regardless of their ability, experiencing discrimination at alarming rates.  2014 will mark the 24th anniversary of the enactment of the Americans with Disabilities Act, and we are still fighting to “get in” and be treated as equal.  How much longer will the fight continue before the legislation is respected and followed, and we are given the opportunity to fully participate in all facets of society?

(Featured headlining image:  Courtesy of Wet Noses Dog Treats.)

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