The recent $20-million settlement with Verizon Communications has sent a clear message that disability discrimination is a serious offence. The class lawsuit, filed by the US Equal Employment Opportunity Commission (EEOC), said the company disciplined or fired hundreds of employees who weren’t able to comply with the company’s strict attendance policy. The employees in question were denied “reasonable accommodations” for their disabilities, according to the ruling.

With such serious consequences for discrimination in the workplace, and the burden of “accommodations” that comes with disabled employees, it’s understandable that a company might seek to reduce its risk by keeping employees with disabilities out of its workforce. But it can’t do that, as that’s illegal too, says employment lawyer Stephen Bird, a partner in the Ottawa law firm Bird Richard.

“Anyone who has an attendance problem is going to drive up costs,” admits Bird. “Why would you hire them?” But whether or not a disabled employee is going to have an attendance problem in the future is pure speculation, and you can’t avoid hiring them based on your perception that they may become a problem.

Attendance Issues

“It’s illegal to discriminate,” says Bird. However, he points out, there are circumstances in which an employer may have some recourse.

"The ability to attend work on a regular basis is a legitimate job requirement. So there is some protection for the employer,” he says. But the Verizon case shows that this protection isn’t always effective, and reasonable accommodations are an employer’s responsibility in order to avoid charges of discrimination.

So it’s understandable that employers are sometimes reluctant to embark on an employment agreement with someone they know or suspect is disabled. The burden of accommodation and the risks of discrimination charges may be seen as a deterrent. But whether or not the potential hire is the person most capable of doing the job should be the only criteria for the hiring decision, and it’s illegal to make the decision based on any other criteria.

Determining Physical Capability

Employers may also be concerned about the ability of potential employees who are disabled to physically do some jobs. Bird stresses that the person doing the hiring cannot discriminate or make assumptions about a person’s physical ability based on a disability or perceived disability.

“If physical capability is a requirement of the job, make a conditional offer,” says Bird. He suggests using the wording “Subject to you being able to demonstrate physical capability.”

Even then, advises Bird, ensure the physical test is related to the job. The courts will scrutinize the testing criteria thoroughly, should a rejected candidate file a discrimination lawsuit.