Must be qualified to apply

By Charlie Plumb

When someone contends they have been discriminatorily denied employment, whether the individual was truly qualified often becomes the primary issue. To defeat a discriminatory failure-to-hire claim, the employer must establish the individual did not meet requirements that were explained, essential to the position, and uniformly applied to all candidates.

Truck driver successfully battles cancer

Mark Kilcrease drove a commercial truck in Colorado for several years. After being diagnosed with acute myeloid leukemia, Kilcrease did not drive from 2002 until 2004 while he battled cancer. After successfully beating his cancer, Kilcrease began looking for a truck driving job.

In 2009, Kilcrease responded to a job posting by Domenico Transportation Company. The job required a Class A commercial driver’s license, three years of verifiable mountain driving experience, no moving violations for three years, and the ability to drive in the Colorado mountains throughout the year. In his pre-application questionnaire, Kilcrease noted he had eight years of driving experience and three years of mountain driving experience, but explained to Domenico he had been unemployed for several years – since 2002 – and was in remission from cancer.

Truck driving application rejected; lawsuit filed

Two weeks later, Phil Domenico contacted Kilcrease and rejected his application. According to Kilcrease, Domenico told him he was not hired because the employer’s health insurance policy would not cover him based upon his cancer history. Domenico denied making this comment and further denied rejecting Kilcrease’s application because of any pre-existing medical condition. According to the employer, it had rejected Kilcrease’s application because he lacked three years of recent driving experience – a requirement imposed by Domenico’s auto insurance company.

Kilcrease filed a lawsuit against Domenico Transportation claiming its failure to hire him was based upon his health condition and medical history and violated the Americans with Disabilities Act (ADA). The lawsuit made its way to the Federal Tenth Circuit Court of Appeals, which has jurisdiction over Oklahoma.

In order to maintain a discrimination claim under the ADA, an individual must demonstrate they are “qualified.” That means they must be capable of performing the essential functions of a job, with or without reasonable accommodations. The Domenico Transportation mountain driving qualification required three years of “driving routes that include grades of 6% or more sustained for at least a mile.” Kilcrease conceded he did not meet this mountain driving requirement. Kilcrease admitted his mountain driving totaled one and a half years, at most. When Kilcrease argued Domenico Transportation’s mountain driving requirement was not essential to their truck driving job, the trucking company showed:

  • The requirement was spelled out in the job posting.
  • The majority of its trucking routes involved mountain driving.
  • The mountain driving requirement was consistently applied to all driver applicants.

The court dismissed Kilcrease’s ADA discrimination claim and found in favor of the trucking company.

What is important

To pursue an ADA claim, an applicant, employee or former employee most show they are qualified to perform the job at issue. When the employer can establish it consistently applies standards that are important to actual operational or safety requirements, and the individual does not satisfy those standards, then the employer is protected against allegations of disability discrimination.

  • Kilcrease v. Domenico Transportation Co., No. 15-1320 (10th Cir. 7/12/16)