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Q&A with Phil Bruce: Recent lawsuit highlights unique considerations in hiring individuals with intellectual disabilities

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Philip Bruce is a labor and employment attorney with McAfee & Taft.

Philip Bruce is a labor and employment attorney with McAfee & Taft.

Recent lawsuit highlights unique considerations in hiring individuals with intellectual disabilities

Q: On July 23, the Equal Employment Opportunity Commission filed a federal lawsuit in Oklahoma City against the owner of a Burger King franchise. What does the lawsuit allege?

A: The EEOC alleges that the Burger King restaurant violated the Americans with Disabilities Act when it failed to hire an applicant because of his intellectual disability, which was caused by a traumatic brain injury. According to the complaint, Manuelito Kinley needed a job coach for a few days to help train him to do the job, which was to work as a dining room attendant. The job coach was with Kinley at his interview, during which he was told he would get the job. When Kinley then requested that his job coach help him with on-the-job training for the first few days of employment, the restaurant refused to hire him, saying that unauthorized individuals, such as his job coach, were not allowed behind the counter. The EEOC's lawsuit claims that other individuals, such as delivery vendors, were allowed behind the counter and that Kinley's duties would be working in the dining room area, not behind the counter.

Q: Why did the EEOC file this lawsuit?

A: Due to limited resources, the EEOC rarely files lawsuits, and it generally only does so when it believes there is an egregious legal violation or it is pushing a certain policy goal. The EEOC previously has issued specific and helpful guidance for employers hiring individuals with intellectual disabilities. Further, it has taken the position, including in other lawsuits, that allowing an employee to have a job coach is, in most cases, a reasonable accommodation.

Q: Who qualifies as an individual with an intellectual disability?

A: The EEOC considers an individual to have an intellectual disability if the person has a functioning level (IQ) below 70-75 and has significant limitations in areas such as communication, practical skills, self-care or functional academics (reading, writing, and basic math). Oftentimes, an individual with intellectual disabilities may have a specific medical diagnosis, such as Down syndrome or being on the autism spectrum.

Q: What is a job coach?

A: In this context, a job coach is an individual who helps an individual apply for jobs, provides specialized monitoring and training on how to do a job, and helps develop appropriate communication between the management and disabled employee. Job coaches often work for a social services organization without cost to the employee or the employer. In this particular instance, Kinley's job coach helped him apply for jobs, helped with his interview, and was employed by Community Access, Inc.

Q: What steps should employers taken when considering hiring individuals with intellectual disabilities?

A: First, employers should, in fact, consider hiring intellectually disabled individuals. Disability advocacy groups routinely tout the benefits of these individuals; they are often very loyal employees who receive great personal satisfaction from having a job, while at the same time perform a helpful service to their employer. Second, employers must realize that they need to provide intellectually disabled employees a reasonable accommodation unless it imposes an undue hardship on the employer or a direct threat to the safety of the employee or others. The potential accommodations for intellectually disabled employees may seem unusual to some employers, such as color coding or using pictures to explain tasks, allowing employees to use special equipment or electronic devices, and allowing employees to have a job coach. Other accommodations may be more common, such as allowing modified work schedules. In no case should employers assume that an employee's disability automatically disqualifies him or her from a job. Rather, the employer should take an individualized assessment to determine if there is a real undue hardship — as opposed to a mere inconvenience — or an actual direct threat to safety. Finally, when employers have an applicant that voluntarily identifies an intellectual disability (employers may not ask at the pre-offer stage if any individual is disabled) or later learns an employee has an intellectual disability, they should consult the EEOC's specific guidance (available online at eeoc.gov/laws/types/intellectual_disabilities.cfm) and work with their human resources office or legal counsel to help with the interactive process.

PAULA BURKES, BUSINESS WRITER

Paula Burkes

A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and... Read more ›

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