The Ninth Circuit Court of Appeals, which covers California, recently issued a pair of opinions highlighting disability discrimination issues that employers often stumble over in the hiring process.
What’s A Disability?In the first case, several United Parcel Service employees with vision in only one eye sued, charging that UPS’s policy of barring employees with their vision impairment from being truck drivers violated the Americans with Disabilities Act. But the Ninth Circuit has now ruled that the employees’ vision impairment wasn’t a disability under the ADA.1 That’s because the workers could still use their eyesight for typical daily activities such as driving, reading, using tools and playing sports.
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The court relied on a recent Supreme Court ruling that an impairment must substantially limit activities of central importance to daily life to be covered under the ADA. Keep in mind, however, that the California anti-bias law is more protective of employees and contains a broader definition than the ADA does of what constitutes a disability.
Interactive Process Obligations
In the other new case, Mladen Zivkovic claimed that Southern California Edison discriminated against him in violation of the ADA when he applied for a meter-reading position. Although Zivkovic indicated on his application that he was hard of hearing, there was no sign-language interpreter at his series of oral interviews. Ultimately, Edison rejected Zivkovic based on his scores from those interviews.
The Ninth Circuit explained that once an employee or applicant requests an accommodation, or an employer recognizes the person needs one, the employer must engage in an interactive process with the individual to determine the appropriate reasonable accommodation. In this case, said the court, Zivkovic triggered the interactive process by noting on his application that he was disabled and by mentioning after his first interview that he would have done better with an interpreter. The court returned the case to the trial court to determine whether Edison appropriately worked together with Zivkovic in an attempt to accommodate him.2Note that under state law, you can be sued for not engaging in an interactive process with a disabled employee—even if no appropriate accommodation can be found.