May 7, 2010
Must You Hire A One-Armed Truck Driver?
Must You Hire A One-Armed Truck Driver? Cliff Ennico www.creators.com "I recently posted an advertisement for a delivery truck driver. Several individuals responded to the ad, but when I interviewed them I noticed that one of the applicants - a Gulf War veteran - had a prosthetic arm. I believe strongly in hiring veterans, and I realize they've made many technical advances in prosthetic limbs, but I'm really worried about this individual's ability to do the job. I'm also worried that if I hire one of the other qualified individuals, this guy will sue me for discrimination. What can I do?" The federal Americans With Disabilities Act ("ADA" for short) absolutely prohibits discriminating against disabled persons. I congratulate this reader for knowing that the law applies even to small businesses. If a disabled person feels you are violating the ADA and making it impossible for disabled or handicapped individuals to find jobs with your firm, he or she can certainly sue for discrimination. Yet clearly there are certain jobs people with certain disabilities will never be able to do. How do you avoid discrimination lawsuits without being forced to hire individuals who cannot perform the jobs they have applied for? First, make sure you haven't already discriminated against this individual during your initial job interview. Whenever you interview disabled or handicapped individuals for jobs, you have to be careful that you don't "signal" that you're focusing on their disabilities. So, for example, you would be totally out of line (and could well be sued) if you say something to this individual like "hey, you jerk, didn't you read my ad? I'm looking for a truck driver. How the Heck can you drive a truck with only one arm?" Even though you have a legitimate concern about this individual's ability to do the job, by focusing your attention on the person's disability you make it very likely this individual will feel he is being discriminated against. The correct way to answer this question is as follows: "as you saw from our ad, one of the essential functions of this position is driving a truck. Are you aware of any circumstances that would restrict or prohibit you from performing that essential function?" I know, I know, it's tough to remember all that, and it does sound a little "legal-esy", but that's the way the law requires you to ask that question. The next step is to determine if driving a truck is an "essential function" of the position you've advertise. Let's say you had a position that involved 95% clerical work, and 5% driving a forklift in your warehouse. If a person with a prosthetic limb applies for this position, he or she clearly can perform the clerical functions (the "essential" part of the job), but his or her ability to drive the forklift is in question. The ADA in this instance would require you to "restructure" the job and eliminate the forklift-driving component as a "reasonable accommodation" to the applicant's disability. Based on your e-mail message, I am assuming that driving a truck is an "essential function" of the job you've advertised. You are correct in pointing out that medical science has made tremendous advances in prosthetic limb technology in the past few years. Since this applicant is neither blind nor illiterate, and presumably knows that he is applying for a position driving a truck, he obviously thinks his disability won't stand in the way of his being able to do the job. Why not have him prove his ability by performing a short driving test in one of your company's trucks? If you do: be sure to test him under actual "combat conditions" (don't just have him drive around your parking lot; have him carry out an actual delivery so you can see firsthand how he is likely to perform on the job); be sure to "ride shotgun" with him so you can evaluate his performance, and have another individual present during the test so he or she can corroborate your evaluation; if you conclude that the applicant isn't qualified for the position, take detailed notes during the test documenting specific tasks he is unable to perform, and keep those notes in your employment records in the event he does sue you; and most importantly, be sure you require this test of ALL applicants, so it doesn't look like you're singling him out because of his disability. If he flunks the test - consider whether you might have another open position he might qualify for and, if you do, encourage him to apply for that position. Hiring a vet is one of the most noble things any small business can do, and you should go a little out of your way to find room for him in your organization. Not only is this the patriotic thing to do, but I think you'll find, as many of my readers have, that vets are incredibly loyal, grateful, disciplined, hard working employees, and can be a major asset to any small business. This guy did you (and a lot of other people) a big favor once by serving in the armed forces during wartime, and you owe him . . . big time. Cliff Ennico ( cennico@legalcareer.com is a syndicated columnist, author and host of the PBS television series 'Money Hunt'. His latest books are 'Small Business Survival Guide' (Adams Media, $12.95) and 'The eBay Seller's Tax and Legal Answer Book' (AMACOM, $19.95). This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com . COPYRIGHT 2007 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC. Permission granted for use on DrLaura.com.

Posted by Staff at 1:50 AM