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I'll try and condense this into just the facts to keep it to the point.
Wife works at company as a manager for about 1 1/2 year. Did such a good job she was on the list to get her own store as the head GM.
Wife gets cancer.
During the course of treatment she gets the usual STD, LTD.
After so long they let her go (this is normal, so no big deal)
Due to complications, while my wife is now cancer free for almost a year, she is
left with a bum leg, walks with a cane, walking speed only, other than
a few things, she can easily still take care of herself.
Two years and lots of physical therapy after recovering she is ready to re-join the work force.
Contacts the old DM of the company and gets herself an interview.
All new staff at the store, no one she knew previous.
The lady interviewing her does all of the following things:
- comments on what my wife CANNOT do based on her disability
- eats her lunch during the interview
- admits she had not pulled her application up
- talks to my wife in the "awww you poor thing" tone the whole time
- asks questions about her disability without my wife giving consent first
- states she CANNOT do the job because out of the list of requirements, my wife cannot do ONE, which is stooping to pickup a box. They use carts in the
store and there are always other employees there who could help put it on the cart. This is a VERY minor part of the job, remember, my wife use to run
one of these stores.
- after so much my wife out of frustration states "you can't deny me a job based on my disability" and the lady responds "Well I don't know about that, I
don't recall reading anything about disabilities in the company book"
My wife was hurt, after numerous applications and people smiling to her face but never calling her back, this devistated her. The lady doing the interview showed total lack of interest in the interview, far as I can tell violated multiple ADA laws and treated her like a second class human being.
Right away I had her file with the EEOC - this is about 2 weeks ago, so we know we have a long process ahead of us.
I want to know based on these facts how do you think she will fair with the EEOC?
Beyond that how do you think the company will react to this charge in mediation?
As far as I am concerned my wife is free to take them through the ringer based on the way she was treated.
- comments on what my wife CANNOT do based on her disability
May or may not be something the EEOC finds issue with, as there is a reality to the statements, possibly.
- eats her lunch during the interview
Difficult to show this had anything to do with the applicant in front of her. Unless the person said I am eating because the person I am interviewing is disabled.
- admits she had not pulled her application up
Not relevant, as prior to the interview, especially without the application, would have had no way of knowing about the disability
- talks to my wife in the "awww you poor thing" tone the whole time
Also not relevant. Maybe the person is condescending to everyone or genuinely feels sorry for your wife, but likely not going to be an issue, as the tone of voice, honestly, is very subjective.
- asks questions about her disability without my wife giving consent first
Not really an issue either, as there is no real consent needed to address an obvious disability. You stated she uses a cane, so it is not like the person doing the interview was unaware from observation.
- states she CANNOT do the job because out of the list of requirements, my wife cannot do ONE, which is stooping to pickup a box. They use carts in the
store and there are always other employees there who could help put it on the cart. This is a VERY minor part of the job, remember, my wife use to run
one of these stores.
ADA and other discrimination claims are VERY different. With race, gender, national origin, you are not allowed to discriminate. With religion and disability, you ARE allowed to state that someone is not able to do a job based on their disability. Yes, there is a duty for a reasonable accommodation, HOWEVER if the company can show the reasonable accommodation will not make the person able to do the job, they can refuse, legally, to hire the person. A blind painter or roofer comes to mind...can they reasonably and safely do the job without accommodations? No. With accommodations? Still very likely no, so the ADA is not violated when the person does not hire a blind roofer. Also, keep in mind that the reasonable accommodations are up to the employer. Your wife can't say "Well I can do this, I just need this accommodation" rather the company gets to state what accommodation they are willing to provide. So, minor part of the job or not, if she is not able to do a part of the job, the company COULD argue that it was reasonable to not hire her.
- after so much my wife out of frustration states "you can't deny me a job based on my disability" and the lady responds "Well I don't know about that, I
don't recall reading anything about disabilities in the company book"
This could be helpful. Maybe. But there is an issue with statement and actions. If they do not hire your wife, and they don't hire her for a reason that is NOT her disability, or they claim that there was another reason, you may not have much of a case.
My wife was hurt, after numerous applications and people smiling to her face but never calling her back, this devistated her. The lady doing the interview showed total lack of interest in the interview, far as I can tell violated multiple ADA laws and treated her like a second class human being.
Honestly? I don't see a single overt violation of the ADA.
Right away I had her file with the EEOC - this is about 2 weeks ago, so we know we have a long process ahead of us.
I want to know based on these facts how do you think she will fair with the EEOC?
Beyond that how do you think the company will react to this charge in mediation?
Depends if it even gets there and if the company feels they did anything wrong. My guess is the company will come armed with any employee issues it had on your wife from the time she worked there before. Any complaints, issues, disciplinary action, reviews with areas that needed to be corrected, etc and say that they had the interview as a courtesy to a former employee whom they had no intention of rehiring.
As far as I am concerned my wife is free to take them through the ringer based on the way she was treated.
I understand on a personal level, but from a legal standpoint, there really isn't much that was a clear (possible) ADA violation. So the interviewer was dismissive...could be how the woman is. SO she ate her lunch, also could be how she usually is.
I think where your claim is hurt the most is being condescending, eating her lunch during the interview and not pulling up the application were all behaviors set in motion likely prior to knowing about the disability. So, hard to say she didn't bother to look at an application because of a disability when she wouldn't have known about the disability until your wife arrived.
Thanks for your time,
Unknown
Best of luck! Let us know what happens, if/when the EEOC investigates as info could change once the company is involved and answering questions.
I would call this place tomorrow morning: JAN - Job Accommodation Network - they have staff who you can discuss this case with for free and they will advise you on ADA and other related issues.
Actionable? On what basis? Actionable has a much higher bar than crummy.
I agree. Honestly, the only place where I saw the possible issue is in the statement the woman made about their handbook. Also, if the OP's wife isn't hired, and it doesn't sound like she will be, then OP has to prove that it was BECAUSE of the disability...and that is NOT ever going to be easy.
So based on the facts you really think that her disability had no bearing on not hiring her? Really?
.
Nothing that can be proven, based on your post. An EEOC hearing is not about "gutteral" feelings, but all about objective facts.
Now had the interviewer explicitly stated, "You can do the job, but we will NOT hire you, solely due to your disability", you'd have a solid case. And the statement would need to be either recorded or witnessed by a third party, or put in writing. And not inferred, but stated explicitly as written.
I understand the implications of he said she said, and I suppose if questions and the person is willing to lie then we have to roll with the punches.
But telling (not asking) my wife cannot do the job due to her disability when she can, minus one single item that could not possibly be construed as "hardship" on the companies behalf seems pretty damning on its own merit minus the extras.
So based on the facts you really think that her disability had no bearing on not hiring her? Really?
Didn't say that. Just said that there is no PROOF. In order to win in any court, or with the EEOC, you need something that is actionable as discrimination.
My wife has no negative record, as stated she was going to be made GM of a store because she was doing so well.
I am guessing this is in retail or sales? There are always negatives that people can find on someone...especially if they are looking for a legal reason not to hire the person. And no negative record and about to be made GM are NOT always the same thing. They can claim that she was good enough to promote based on their internal first strategy but not good enough to rehire.
If this situation doesn't display blatant discrimination against disability I'm not sure what will.
Someone saying that they will not hire the disabled. Or firing someone the day they come back to work with a disability.
I understand the implications of he said she said, and I suppose if questions and the person is willing to lie then we have to roll with the punches.
But telling (not asking) my wife cannot do the job due to her disability when she can, minus one single item that could not possibly be construed as "hardship" on the companies behalf seems pretty damning on its own merit minus the extras.
But, if they decide that it is an integral part of the job, they most certainly can argue as such. And, unfortunately, you yourself stated that it is integral. You said there are carts that they can use, and that there are always people around to help her to complete that task. That does imply that the company COULD argue that your wife completing her duties requires the disruption of the workplace. Just because you and your wife see the part of the job she would not be able to complete as minor, doesn't mean the company will nor does it mean the EEOC will.
Do I think this is crummy? Yes. But you didn't ask "Should I be mad" you asked "How will I fare with the EEOC?"
"(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;"
Especially if they can state that the disability severely restricts the tasks, such as inventory, processing of shipment, merchandising, etc.
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