Disability Employment Lawyer Answer: Although the Americans with Disabilities Act (“ADA”) was enacted by Congress in relevant part “to increase employment opportunities and employment outcomes for individuals with disabilities” 29 USC 701(b)(4), not all persons with disabilities are protected against employment discrimination under this set of laws. The ADA places a general obligation on covered employers not to discriminate against “qualified individual[s] on the basis of disability.” 42 USC 12111(a).
What does “qualified individual” mean for ADA purposes?
Disability Employment Lawyer Answer: By definition, a “qualified individual” for purposes of the ADA is an “individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”42 USC 12111(8). (Best Law Read: ADA: Who is A Qualified Individual?). To be a qualified individual, the employee must also meet legitimate skill, experience, education, or other requirements the position. Written job descriptions prepared prior to any disability or accommodation issues arising may be evidence, although not necessarily conclusive, of the qualification requirements and essential functions of the job. (Best Law Read: ADA: What’s An Essential Job Function?).
Can an employer refuse to accommodate my disability so that I can take its pre-employment test?
Let’s look at a case in New York, decided in 2022, where a deaf man argued that he should not have to show he was qualified for the job in order for the employer to provide him with a sign language interpreter for its preemployment test.
In Ike Williams v. MTA Bus Company, 44 F.4th 115 (2d Cir. Aug. 12, 2022), Ike, deaf, and a speaker of American Sign Language, sued MTA Bus, a publicly operated transportation department that posted an employment notice, providing job descriptions and corresponding job qualifications for Assistant Stock Workers. The notice warned applicants that each applicant was responsible for determining if they met the qualifications for the job and that non-qualified applicants would be rejected. Qualified applicants would move forward in the selection process to a preemployment exam.
Ike applied and received a letter from MTA assigning him an exam date and notifying him that special accommodations for the exam need to be submitted in writing with documentation by email. Ike made a request for a sign language interpreter to interpret the exam and its instructions but was ultimately told no sign language interpreters would be made available for the exam. (Best Law Read: Can I pick The ADA Accommodation I Want? ). Ike was told he would be given a written version of the exam instructions while all other applicants would receive verbal instructions.
Ike did not perform well on the exam and scored too low to be considered for the job. Specifically, Ike failed the exam, scoring a 37.50 out of 100. A passing score would have been 70 or higher.
Ike argued that had he been given an interpreter, he would have passed the exam. When Ike sued MTA for discrimination on the basis of his disability because MTA denied him the reasonable accommodation of a sign language interpreter, MTA moved to have the suit dismissed. The employer argued in support of its motion to dismiss the case that (1) the applicant was not qualified for the Assistant Stock Worker position; and (2) it provided the applicant with a reasonable accommodation by being given the oral instructions for the exam in writing.
The Court considered whether an applicant like Ike, whose qualifications for the job were not previously known to the employer, could continue his discrimination claims.
In Ike’s case, the Court contemplated MTA’s posted job description and requirements for Assistant Stock Worker, the position for which Ike applied. It compared MTA’s posting for stockwork in an industrial warehouse setting with Ike’s submitted resume showing his work experience, which was 20 years of self-employment as a locksmith.
In the end, the Court ruled that Ike needed to show that he was qualified for the job in order to maintain his claims against MTA for disability discrimination and failure to accommodate his disability: “It is well-settled and uncontroversial law that a plaintiff asserting a disability discrimination claim in the employment context must be able to demonstrate – as part of a prima facie case – that he or she was qualified for the position at issue. Indeed, courts routinely dismiss such claims at the summary judgment stage where plaintiffs fail to come forward with evidence to support this necessary element.” Ike Williams v. MTA Bus Company, 2020 WL 1922911 at * 7. (Best Law Read: What Does Prima Facie Mean?). In other words, a job candidate must be qualified for the position sought in order to require a prospective employer to engage in the disability accommodations processes.
Beyond failing the exam by a wide margin, the trial court pointed out other evidence of the lack of qualifications: “Defendant cites Quiery’s testimony that, upon his review of Plaintiff’s application, he found that Plaintiff ‘d[id] not appear … [to] meet[ ] the minimum qualifications for the position,’ and that equivalent experience ‘would have to be stock work experience.’ Defendant also highlights the fact that, when questioned at his own deposition, Plaintiff himself admitted that, based on his understanding of the job posting (as translated to him by his friend), he did not believe he qualified for the position, and that he instead applied to get his ‘foot in the door,’ hoping that he would be able to later secure a locksmithing position.’” Id. (internal citations to the record omitted).
On appeal, the United States Court of Appeals for the Second Circuit held: “the EEOC guidance referenced by Williams reiterates that ‘[a]n employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job.’” EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, Question 13 (Oct. 17, 2002), (emphasis added). We read this language as we do the statute: to prevail on a discrimination claim based on an employer’s failure to provide accommodations during the application process, a plaintiff must show that he was qualified for the employment position at issue.” (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).
Importantly, the United States Court of Appeals for the Second Circuit held that Ike could not even get to the interactive process stage unless he could show that an accommodation would make him qualified for the job that he applied for: “Because we conclude that Williams was not qualified for the position at issue, we also reject his claim that the district court erred in declining to consider whether MTA Bus engaged in the interactive process called for by the statute. As the district court observed, even if Williams had raised such a claim in his complaint (and he did not), an employer’s failure to comply with the interactive-process requirement does not provide the basis for an independent cause of action under the ADA. … an employer’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue.” Id. (Best Law Read: What Is The Interactive Process For Disabled Employees?; Interactive Process: It Takes Two to Tango).
There, because Ike, as the applicant, did not have the baseline experience for the position, he could not maintain a claim for failure to engage in the interactive process.
What if you are a qualified individual who was refused a reasonable accommodation for a preemployment exam?
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