Making sure promotion decision isn’t discriminatory is no laughing matter

It’s not easy deciding who is right for a job. Employers have to study a candidate’s qualifications, education, experience, demeanor, and more. But sometimes the decision comes down to the little things—even a person’s laugh. The question an employer must consider is whether such a seemingly small factor poses any legal risk.

Current employee wants new job
Recently, a question about the lawfulness of turning someone down for a job over what some consider her annoying nervous laugh was put to a group of attorneys who were able to identify the risks in denying the individual’s bid for the job.

The employer explained that an employee’s current job requires little contact with customers, but now, she has applied for a position that includes significant customer contact as well as supervisory responsibilities. The employee has the qualifications for the new job, but her nervous laugh is off-putting. Coworkers and even a few customers have complained. The employer says the laugh and the employee’s apparent inability to control it is the only reason for not giving her the job.

Unlawful discrimination or appropriate personnel decision?
Mark M. Schorr, senior partner in the Lincoln, Nebraska, office of Erickson & Sederstrom, P.C., tells the employer “It appears that you’re able to articulate a legitimate nondiscriminatory reason for your decision: The employee isn’t well suited for a job involving considerable customer contact and supervisory responsibilities, as evidenced by the complaints about her annoying nervous laugh from both customers and coworkers.”

But Schorr says it’s essential to document the lawful reasons for the decision. “It’s important to remember that employers discriminate and make choices on a regular basis,” he says. “However, discrimination is unlawful only when it’s based on a designated protected category like race, sex, national origin, pregnancy, or disability.”

The employee’s laugh doesn’t put her in a protected status unless it’s related to a medical condition or disability under the Americans with Disabilities Act (ADA). Even if the laugh is related to a medical condition or disability, the employer likely would be able to claim that it’s a disqualifying condition, Schorr says.

Jason R. Mau, an attorney with Greener Burke Shoemaker Oberrecht, P.A. in Boise, Idaho, also notes that pinning the decision on the laugh can be legitimate, but the ADA must be taken into account. “You are allowed to base employment decisions on a physical impairment that makes the employee unqualified for the job.” But he says that if the employer regards the employee’s laugh as a substantial impairment or believes it substantially limits a major life activity, it’s possible that the decision not to promote the employee could be discrimination under the ADA.

Mark Adams, a partner in the Jones Walker New Orleans office, says the laugh probably shouldn’t prevent the employer from denying the employee the job, but he advises thinking through how to explain the decision to the employee.

“When you break the news to her, it probably would be a good idea to explain the reason in terms of her need to improve her oral communications skills,” Adams says. “Suggest training that would improve her chances if the position comes open again.”

James F. Kilcur, a partner in the law firm Saul Ewing LLP in Philadelphia, says the ADA issue must be considered. If the laugh is a neurological or psychiatric disorder, it may qualify as a disability under the ADA.

“If that’s the case, the question becomes whether the condition prevents her from performing the essential functions of the job she is seeking,” Kilcur says. “If so, you must decide whether a reasonable accommodation is available. However, you shouldn’t assume the employee has a medical condition if she hasn’t presented any medical documentation.”