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Picking up a box a few times a week cannot possibly qualify as a hardship on the company and hardships are the only free pass as far as I can tell a company can utilize.
Guess we shall find out. If nothing comes of this, the power of social media is a great tool in this day and age.
Picking up a box a few times a week cannot possibly qualify as a hardship on the company and hardships are the only free pass as far as I can tell a company can utilize.
They are, but it can also be a hardship on the other employees. However it really depends how integral the company decides to claim that part of the duty is. You will have to see.
Guess we shall find out. If nothing comes of this, the power of social media is a great tool in this day and age.
I understand your frustration, but depending on the company, and the size of the company, I advise you to be careful. Spreading all over social media that the company didn't hire your wife because she is disabled could end you up in court. As the defendant. The company will VERY likely, especially after talking to its lawyers, have MANY different reasons to justify not hiring your wife. If there were 10 reasons that they state (or however many they claim) and you start trashing them in social media forums...they may decide to pursue legal action. Your only defense to those claims is "truth" and that is NOT truth as you see it but rather truth you can prove. If you can't prove it, with documentation, you may end up in a LOT of trouble for a public smear campaign.
And, yes people are going to side with someone who is REALLY discriminated against...but they are also quick to say that the person is just sue happy. Remember the woman who sued McDonalds? She was trashed in the media and public opinion...the basis of her suit was that McDonalds wouldn't pay the costs that medicare didn't for her hospitalization. So, just be careful before you try social media....
I actually believe that you do have a potential discrimination claim. As the Bunny said, some of the things that occurred (i.e. eating lunch during the interview) are irrelevant. Other things (i.e. speaking to your wife in a patronizing manner) are subjective and difficult to verify. However, there are some tangible actions that give me cause for concern.
Its important for you to understand how a claim of discrimination is evaluated. There is a three step process that was established many years ago. Every claim of disparate treatment goes through the same process. Its often called the "Shifting Burden of Proof." The burden is always on the employees to initially establish a prima facia case of discrimination. In other words, the burden is on the employee to establish make an allegation that, accepted at face value, would constitute an act of illegal discrimination, It is not a very difficult standard to reach. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for their action. Most allegations of discrimination fail at this level. Once the employer has articulated that case, then the burden shifts back to the employee to show that the employer's offered reason is a pretext (or cover) for discriminatory behavior.
In your wife's case, her claim is that she was not hired for the position because she was disabled. The basis for that claim their failure to accomodate. An employer CANNOT ask questions about an employees disability during the interview. They can lay out the requirements of the job and ask the candidate whether they can perform these essential functions with or without an accommodation - and that question should be asked of ALL applicants, not just the ones with visible/known disabilities. However, according to what you described, they did not do that. The interviewer made an assumption as to your wife's abilities without ever exploring whether or not reasonable accomodations were available (i.e. the cart) that might assist her in peforming those functions. This is to be an interactive process, not a process that an employer performs in a vacuum. Depending on the task, it may even be a reasonable accommodation to have someone else assist - or even to assign the task to someone else, if it is a marginal task.
The burden then shifts to the employer to explain their actions. They really only have two potential arguments. First, they can say that your wife was not the most qualified applicant, which is a possibility. This is why it is best to not address the accommodation issue until after a hiring decision is made. An employers best defense is to say, "I didn't even know (or consider) whether the applicant had a disability. Getting too involved in that discussion during the interview muddies the water. The second defense is that accommodating the applicant would constitute an undue hardsip. However, to make that last claim, you have to actually be able to sow that you considered various accommodations.
Remember, the burden shifts back to the employee. In this case, if the employer tries to make the claim that your wife was not the most qualified candidate, she can argue that that claim is a pretext for discrimination, based on the illegal questions that were asked during the interview. You can see where it would be cleaner for an employer to disqualify the applicant without considering their disability, or conversely to make a conditional offer, then determine whether it is an undue hardhip. They can still withdraw the offer, but at least everyone know's what is being dealt with.
I am not saying that your wife will prevail. You have only given us the facts from your perspective. The company will have a different interpretation of the facts, and it is the EEOC's role to reconcile those different views.
I will say that my experience with the EEOC's private sector policies has not been favorable. They have such a backlog that they have created a triage process. Based on the allegations, they assign the case a priority code of A, B, or C. "C" cases are dismissed for not stating a valid claim. "B" cases are sent to the employer, where a response to the allegations is requested. If the company provides a reasonable response, the EEOC closes the case without further inestigation. Only "A" cases, or cases that have public policy implications are actually investigated by an EEOC investigator. My suggestion is to check to see if you have a state or city civil rights authority who also has jurisdiction. Often, they have a smaller case load, and you'll get more direct attention.
I actually believe that you do have a potential discrimination claim. As the Bunny said, some of the things that occurred (i.e. eating lunch during the interview) are irrelevant. Other things (i.e. speaking to your wife in a patronizing manner) are subjective and difficult to verify. However, there are some tangible actions that give me cause for concern.
Its important for you to understand how a claim of discrimination is evaluated. There is a three step process that was established many years ago. Every claim of disparate treatment goes through the same process. Its often called the "Shifting Burden of Proof." The burden is always on the employees to initially establish a prima facia case of discrimination. In other words, the burden is on the employee to establish make an allegation that, accepted at face value, would constitute an act of illegal discrimination, It is not a very difficult standard to reach. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for their action. Most allegations of discrimination fail at this level. Once the employer has articulated that case, then the burden shifts back to the employee to show that the employer's offered reason is a pretext (or cover) for discriminatory behavior.
In your wife's case, her claim is that she was not hired for the position because she was disabled. The basis for that claim their failure to accomodate. An employer CANNOT ask questions about an employees disability during the interview. They can lay out the requirements of the job and ask the candidate whether they can perform these essential functions with or without an accommodation - and that question should be asked of ALL applicants, not just the ones with visible/known disabilities. However, according to what you described, they did not do that. The interviewer made an assumption as to your wife's abilities without ever exploring whether or not reasonable accomodations were available (i.e. the cart) that might assist her in peforming those functions. This is to be an interactive process, not a process that an employer performs in a vacuum. Depending on the task, it may even be a reasonable accommodation to have someone else assist - or even to assign the task to someone else, if it is a marginal task.
The burden then shifts to the employer to explain their actions. They really only have two potential arguments. First, they can say that your wife was not the most qualified applicant, which is a possibility. This is why it is best to not address the accommodation issue until after a hiring decision is made. An employers best defense is to say, "I didn't even know (or consider) whether the applicant had a disability. Getting too involved in that discussion during the interview muddies the water. The second defense is that accommodating the applicant would constitute an undue hardsip. However, to make that last claim, you have to actually be able to sow that you considered various accommodations.
Remember, the burden shifts back to the employee. In this case, if the employer tries to make the claim that your wife was not the most qualified candidate, she can argue that that claim is a pretext for discrimination, based on the illegal questions that were asked during the interview. You can see where it would be cleaner for an employer to disqualify the applicant without considering their disability, or conversely to make a conditional offer, then determine whether it is an undue hardhip. They can still withdraw the offer, but at least everyone know's what is being dealt with.
I am not saying that your wife will prevail. You have only given us the facts from your perspective. The company will have a different interpretation of the facts, and it is the EEOC's role to reconcile those different views.
I will say that my experience with the EEOC's private sector policies has not been favorable. They have such a backlog that they have created a triage process. Based on the allegations, they assign the case a priority code of A, B, or C. "C" cases are dismissed for not stating a valid claim. "B" cases are sent to the employer, where a response to the allegations is requested. If the company provides a reasonable response, the EEOC closes the case without further inestigation. Only "A" cases, or cases that have public policy implications are actually investigated by an EEOC investigator. My suggestion is to check to see if you have a state or city civil rights authority who also has jurisdiction. Often, they have a smaller case load, and you'll get more direct attention.
Hope this was helpful.
I agree with you that there is going to be a LOT of difficulty with winning the case. As I mentioned, there was a lot that was irrelevant and a lot that was subjective. You also mention that an employer CANNOT mention the disability. I was actually a part of an EEOC claim on the employer's side in which the interviewer and the applicant DID discuss the disability at length during the interview, and it was not just about the ability to do the job. The EEOC ultimately decided in the employer's favor, as it said that while it is not supposed to be discussed, in a casual and conversational interview in which there was no other evidence of discrimination, it does not show an intent by the employer to discriminate. We submitted evidence of an internal hire for the position and that satisfied the EEOC as to the employee's claim that it was a pretext. I truly do not know if it was discrimination or not, as the issue happened in another office of the company and I had no personal knowledge of the people involved.
I know the case I was involved with went away after the company responded with a non discriminatory reason that the employee was not hired.
This is what happens to people with disabilities all the time. Then, when they have no other option but to be on the street, they have to take benefits from the government. Then people call them lazy bums.
Who's the real loser, the disabled person who wants to work, or the employers discriminating?
This is what happens to people with disabilities all the time. Then, when they have no other option but to be on the street, they have to take benefits from the government. Then people call them lazy bums.
Who's the real loser, the disabled person who wants to work, or the employers discriminating?
You just illustrated why discrimination is so ugly. Everybody loses. The prospective employee loses, the employer loses, and the tax payers lose. That is why treating people fairly is about so much more than "just doing the right thing."
Based on my wife's history with the company, superb record, and she was about to be given her own store prior to becoming ill I would find it hard for them to claim they had someone better qualified.
Here is an extra added side to the story;
She was applying for a simple min. wage sales job there (remember, she use to be a manager).
This company is notorious for moving managers in and out due to poor sales. We sort of suspect this manager did not want to hire her as a lowly sales person because her disability may put her stats at risk (crock of you know what really).
Can't prove it, but just something to think about.
You just illustrated why discrimination is so ugly. Everybody loses. The prospective employee loses, the employer loses, and the tax payers lose. That is why treating people fairly is about so much more than "just doing the right thing."
Don't let any of the die hards here read this. After all.... life is not fair remember? It only has to be fair to ME. I'll take the 6 figures, the cars and the 2 houses. It's only fair to me, not you or anyone else.
Based on my wife's history with the company, superb record, and she was about to be given her own store prior to becoming ill I would find it hard for them to claim they had someone better qualified.
Here is an extra added side to the story;
She was applying for a simple min. wage sales job there (remember, she use to be a manager).
This company is notorious for moving managers in and out due to poor sales. We sort of suspect this manager did not want to hire her as a lowly sales person because her disability may put her stats at risk (crock of you know what really).
Can't prove it, but just something to think about.
This may not help her cause since she was not really applying for a job at her level of qualifications.
It is not against the law for companies to decide to not hire with overqualified individuals.
I am not a expert on the ADA-- but I wish you both well.
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