September 23, 2019

Recently, the clothing store PacSun was given a harsh reminder that the ADA’s requirement that employers provide qualified individuals with disabilities with reasonable accommodations applies to both employees and applicants.  Further, the EEOC drove home the point that rushing to snap judgments about whether an applicant may perform the essential functions of a job based on first appearances will cost you.  In this case, an individual in a wheelchair went into a PacSun store in Florida to apply for a job.  Even though the store manager had just told other non-disabled applicants that the location was hiring, the manager told the disabled applicant that they were not.  The manager never tried to understand what specific limitations the applicant might have or whether they could accommodate the applicant, but rather summarily denied him the opportunity to apply based on a rush to judgment about the applicant’s abilities.  PacSun ultimately settled the lawsuit for $85,000 and was required to comply with a litany of other requirements like requiring that PacSun update their anti-discrimination policy, conduct manager training, maintain a telephone hotline for employees to report incidents of workplace harassment and post a notice the EEOC created on the company’s website.  The ultimate moral of the story is, have a solid job description for each position that you are hiring for, ask every applicant whether they can perform the essential functions of the job with or without an accommodation, and engage in the interactive process to determine what accommodations you can make for disabled applicants and employees every single time.  Otherwise you won’t be calling myHRcounsel’s attorneys for proactive guidance, but litigation assistance.    

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