April 25, 2019
So What? Must Disability be THE Factor or A Factor to Establish Discrimination?
An individual files a claim alleging s/he was subjected to an adverse employment action (not hired, fired, not promoted, etc.) based of his or her disability. Does the disability have to be just one of several factors that might have come into play in the employer’s decision, must it be the sole factor, or something in between? On April 25th, the 2nd Circuit threw its proverbial hat into the ring on this question and joined three other circuits answering the latter. The court held the individual’s disability need not be the sole factor, but it does need to be the factor e.g., but for the disability, the adverse action would not have occurred.
Lessons learned? Train your (hiring) managers and recruiters. When it comes to employment decisions, focus on the job duties, essential functions and work performance, not on an individual physical or mental (dis)abilities. See the April 11th News post on this website, as well. Don’t let perception become reality.