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Hearing Disabled Applicants Deserve Equal Consideration

The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit discrimination against persons with disabilities. An employer may not refuse to hire an otherwise qualified person because of a disability unless it is an insurmountable impediment to performing the job in question.

On September 24, 2018 the Equal Employment Opportunity Commission (EEOC) announced that it has filed disability discrimination claims against nationwide superstore Target for alleged failure to hire a hearing impaired person in its Antioch, California store.

John Hayes applied for an entry-level clerk position in September 2014. Finding his qualifications sufficient on paper but unaware of any hearing problem, Target representatives called Mr. Hayes twice.

Target policy is to leave a message for prospective applicants whom they do not reach. The EEOC asserts that upon reaching a Video Relay Service (VRS) that enabled Mr. Hayes to communicate with callers, the Target representatives left no message for him either time. The EEOC further contends that even though company HR told him when he called that Target would contact him for an interview, this never happened. The government alleges that Target did hire seven non-disabled persons to fill clerk positions shortly afterwards.

The EEOC is suing Target for front pay, lost wages, and other damages. The agency also seeks   an injunction for Target not to engage in such purported discrimination in the future.

EEOC Regional Attorney Roberta Steele stated, “Target had already determined that Mr. Hayes was qualified and available to start a new job when it learned from a VRS operator he was deaf. Target’s deviation from its standard operating procedures is strong evidence of discrimination.”

The EEOC San Francisco Office director noted that, “Mr. Hayes had a successful 17-year career with a major medical provider before he retired. He was stunned to discover that Target wouldn’t even interview him for an entry-level clerk position after learning he was deaf. Congress enacted the ADA to prevent just this sort of thing — employers refusing to consider qualified individuals because of their disability.”

Through engagement in an interactive process, employers must seek to reasonably accommodate disabilities unless doing so would cause undue hardship. For example, an employer may be able to accommodate a person with back problems by providing a better chair or permitting more frequent breaks, but is not expected to accommodate a blind person to drive a truck. An employment attorney can guide an employer through an interactive process that complies with the law.

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For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

September 28, 2018