Lawsuit highlights unique considerations in hiring individuals with disabilities

Q&A with Philip Bruce

published in The Oklahoman | August 9, 2018

On July 23, the Equal Employment Opportunity Commission filed a federal lawsuit in Oklahoma City against the owner of a Burger King franchise, alleging the restaurant violated the Americans with Disabilities Act when it failed to hire an applicant because of his intellectual disability, which was caused by a traumatic brain injury.

In a business Q&A with The Oklahomanlabor and employment attorney Phil Bruce explained that Manuelito Kinley needed a job coach for a few days to help train him to do the job, which was to work as a dining room attendant. He had the job coach with him at the interview, during which he was told he would get the job. When he requested that the job coach help him with on-the-job training for the first few days of employment, the restaurant refused to hire him.

“Due to limited resources, the EEOC rarely files lawsuits, and it generally only does when it believes there is an egregious legal violation or it is pushing a certain policy goal,” said Bruce. “The EEOC previously has issued specific and helpful guidance for employers hiring individuals with intellectual disabilities. Further, it has taken the position, including in other lawsuits, that allowing an employee to have a job coach is, in most cases, a reasonable accommodation.”

Bruce advised employers that they should, in fact, consider hiring intellectually disabled individuals, given the benefits touted by disability advocacy groups, like very loyal employees who receive great personal satisfaction from having a job while at the same time performing a helpful service to their employer. Employers should also understand that they need to provide these employees a reasonable accommodation unless it imposes an undue hardship on the employer or a direct threat to the safety of the employee or others.

“When employers have an applicant that voluntarily identifies an intellectual disability — employers may not ask at the pre-offer stage if any individual is disabled — or later learns an employee has an intellectual disability, they should consult the EEOC’s specific guidance and work with their human resources office or legal counsel to help with the interactive process,” Bruce said.

Photo by Mike Mozart, some rights reserved, used by permission under CC license.