ADAAA

dusty moshier

Bear with me while I explain my position and ask my question. In my mind, with the adoption of the ADAAA, we now have, for sake of this question, two types of disabled people: (a) those that are actually disabled; and (b) those that are definitionally disabled.
The (a) group is included in the (b) group, but the (b) group may not be included in the (a) goup.
Suppose you have an equally qualified (a) and (b) person apply for a position (assume they are the same sex, age, national origin, etc.). The (a) person requires an accommodation that would cost more than the accommodation required for the (b) person.
They are both definitionally disabled and neither has or is entitled to preferential treatment as far as I can tell under the ADAAA.

Can you make your decision based on the lesser accommodation requirements of (b)?

Or, put another way, as between two disabled people, can you make a decision based on the least disabled vs. the most disabled?

I actually believe that with the adoption of the ADAAA definitions this scenario is going to arise more often than we think.

Any thoughts would be appreciated.

Dusty
2/19/09

NaeNae55

Dusty, I think you always have had the possibility of this scenario. Two otherwise equally qualified people who are in wheelchairs apply for a job, and both can do the job with accomodation. For instance, one could be in a wheelchair due to an accident, the other due to a disease. It is likely that though both are in a wheelchair, one will have more physical issues than the other.

The point is that you can't base your hiring decision on their disability or health situation unless it interferes with your business needs, or the accomodation is a hardship. In the above scenario, you would have to make a decision the same way you would if you had two equally qualified people, from a protected class or not, apply for the job. You have to dig deeper and make a decision based upon how they present themselves, their experience and education, and their references. In the end, it's a judgement call.

What you can't do is decide one protected class has more protection than another, nor can you decide that one's legally qualified disability has more protection (or is more deserving) than someone else's.

Just my 2 cents.

Nae

davids

In your scenario, you will have hired a disabled person, either way. Therefore, the rejected candidate would have a difficult time claiming you discriminated against him/her because of a disability. Could a person who was 50 years old claim you discriminated based on age, if you hired someone who was also 50? I am sure someone would try to make the claim, but it will be difficult.