Did HR do a bus driver with a disability dirty? How you can avoid the same apparent mistake.

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Not cool, dude.

Hatter v. WMATA (opinion here) involves an individual with sleep apnea who applied for a bus driver position. He got the job conditionally, but later had the offer rescinded.

What happened?!?

Well, the offer was rescinded because the plaintiff chose not to submit sleep apnea test results to WMATA. Therefore, according to WMATA, the plaintiff did not complete the medical certification process.

Alone, that would be a sufficient reason to revoke an offer. No question about that. However, the plaintiff alleged that the defendant’s reason for not hiring him was pretextual. That is, the plaintiff claimed that a WMATA human resources employee—twice told him that a sleep apnea diagnosis would disqualify him for the position.

Rut roh.

While the defendant admitted that Human Resources did what it did, it submitted another affidavit from a WMATA doctor to contradict HR. In that affidavit, the WMATA doctor stated that an applicant is not automatically medically disqualified from employment due to a sleep apnea diagnosis.

So, effectively, the defendant compounded bad facts with contradictory statements from two employees. At summary judgment, that’s not exactly a recipe for success.

But, disputed material facts aside, the court was really put off by the dismissive approach taken by HR. Heed this lesson from Judge Chutkan:

A reasonable jury could therefore determine that Defendant’s stated explanation for not hiring Plaintiff—that he was not hired only because he failed to complete the certification process by submitting the medical results—was merely a pretext for discrimination against Plaintiff due to his disability.

The court further notes that Plaintiff’s unrebutted evidence of the statements made by WMATA’s human resources staff is especially troubling. In passing the Rehabilitation Act, Congress expressly wrote that “individuals with disabilities continually encounter various forms of discrimination in such critical areas as employment . . . [and] the goals of the Nation properly include the goal of providing individuals with disabilities with the tools necessary to . . . achieve equality of opportunity, full inclusion and integration in society, employment, independent living, and economic and social self-sufficiency, for such individuals.” … Defendant, like any employer, cannot evade liability under federal civil rights laws in this way. Such a practice, if proven, would subvert the very purpose of our nation’s civil rights protections, perpetuate the pervasive discrimination against individuals with disabilities that Congress expressly sought to remedy, and would lead to unacceptable results.

In other words, in cases involving the Rehabilitation Act, or its private-sector kissing cousin, the Americans with Disabilities Act, be careful when making absolute statements about someone’s disability automatically disqualifying them from a job. In Hatter, for example, the court noted that “the only evidence in the record … strongly suggests that Plaintiff was able to perform [the] essential job functions, as he had previously worked as a commercial passenger bus driver, and, more significantly, WMATA actually extended to Plaintiff a conditional offer for the position.”

So, when someone presents with a disability, avoid a rigid approach. Indeed, the ADA contemplates as individualized assessment of an individual’s disability and limitations to determine whether that person can perform the essential functions of the job with or without accommodation.

So, keep an open mind, ask questions, consider options, and then decide.

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