Q: My daughter is disabled and is having a hard time getting a job. Can an employer refuse to hire her for no reason?
Kathy, Florence, AL
A: Some employers, but not all are subject to the Americans with Disabilities Act of 1990. The Rehabilitation Act of 1973 only extends to the federal government and protects only workers in the federal sector. The Americans with Disabilities Act of 1990 (ADA) applies to all employees – both in the private and public sector – provided their employer has 15 or more full-time employees for the calendar year. The Rehabilitation Act uses the term “handicap,”, while the ADA uses the term “disability.”
For example, the Equal Employment Opportunity Commission (EEOC) provides an example of a cashier in a store who has the disease lupus, which makes her more prone to fatigue. The employer could provide reasonable accommodation to this employee by giving her a stool to allow her to sit, instead of stand, while performing her cashier duties. An employer following the ADA would make this accommodation.
An employer does not violate the ADA if the employer refuses to hire an employee who poses a direct threat of harm to others or themself on the job. In Chevron U.S.A. v. Echazabal (2002), the U.S. Supreme Court unanimously ruled that employer did not violate the ADA when it refused to hire a former employee whose disability (hepatitis and liver problems) would be exacerbated (made worse) by exposure to toxins in the workplace.
The Court reasoned that the direct-threat defense articulated in federal regulations should also extend to workers who posed a danger to themselves. The Court did say that the direct-threat defense must be based on reasoned medical judgment and should not be used as a guise to discriminate against disabled workers who don’t truly pose a threat at all.
Tell your daughter to consider contacting the Easter Seals Foundation or Alabama Adult Vocational Rehabilitation.
Buckle up, drive safely, and as always, your referrals are appreciated!