Interactive Dialogue as Good Business
April 4, 2021
The Case. An Oklahoma Burger King Franchisee has settled a disabilities discrimination suit with the EEOC. This franchise offered an intellectually disabled applicant a position as a dining-room/restroom attendant after an interview to which the applicant brought a job coach. When the now prospective employee requested that a job coach provide on-site support, the company withdrew its offer of employment, at least in part on the basis that non-employees are not allowed behind the counter even though the job coach was a no cost option to the employer and despite the evidence this individual had previously been successful in a similar position while using just such a job coach.
Applicants and employees have rights. If your organization is an employer of 15-employees or more, it is a covered entity under the Americans with Disabilities Act (ADA), and is required to accommodate qualified employees and applicants with disabilities unless doing so creates an “undue hardship.”
“Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors related to the cost of providing the accommodation: what might create an undue hardship for you, might not create one for a Fortune 500 company.
One comes to an understanding of what may be required through a process called the “Interactive dialogue.”
Identify the essential functions of the job.
Identify barriers to performance of essential functions.
Identify possible solutions or ways to eliminate the barriers.
Identify which possible solutions are reasonable.
Select & implement one or more identified reasonable accommodations.
Analysis. The requested accommodation was a zero-cost option for the employer, and while having a non-employee, non-customer on premises creates some liability, there could be measures taken to mitigate that liability. Non-employees being prohibited from being behind the counter is a legitimate business concern, but there are ways that prohibition could have been worked with that did not prevent this applicant from being accommodated. The candidate was qualified as they had previously done similar work.
The Consequences. This case has just settled with the Equal Employment Opportunity Commission (EEOC). The settlement includes a $30,000 payment to the applicant (by my estimation, roughly 2-years’ full-time salary at Oklahoma’s minimum wage) and an agreement to a three-year consent decree wherein the company will train its human resources manager and hiring managers in all locations on its newly updated reasonable accommodations process.
The company is also required to regularly report to the EEOC all accommodation requests and will utilize services from the Job Accommodation Network (JAN), a free resource provided by the U.S. Department of Labor’s Office of Disability Employment Policy.
Summary. By missing the opportunity to eliminate a barrier, and perhaps the opportunity to diversify the workplace, this company has now spent over a year in litigation, paid this person two years’ salary, agreed to additional regulatory requirements and oversight requiring even more financial resources, and, potentially worst, the negative publicity of having their company being discussed in the news. Be sure your job descriptions are current with all essential functions of the position, your handbook is current with all applicable policies, and be sure your hiring managers – especially your Human Resources team – understands the obligations of the ADA through training and communication. It’s not only compliance, it’s also just good business.
Ask CIP. If you’re not sure how to go about an interactive process or accommodating an applicant’s or employee’s disability, the CIP Group’s HR Services can help you build a solid infrastructure.