Dive Brief:

• The U.S. Equal Employment Opportunity Commission has sued Wal-Mart Stores East, LP, alleging it violated the Americans with Disabilities Act (ADA) when it refused to allow an applicant with a disability to take a physical assessment.
• The job applicant, who was born with her right arm ending at the elbow, had warehouse experience lifting up to 200 pounds without the use of a prosthetic. She applied for a job as a freight handler at Wal-Mart's Ochelata, Oklahoma, distribution center and interviewed successfully, according to EEOC. She also watched a video demonstrating the required physical assessment test and declined the employer's offer of an accommodation. "Wal-Mart nonetheless did not allow her to take the assessment without a prosthetic," EEOC said.
• "This case is a clear example of an employer jumping to conclusions based on an applicant's obvious disability," Andrea G. Baran, EEOC's regional attorney in St. Louis, said in a statement. "Employers cannot assume they know best whether a person with a disability can perform a job or needs an accommodation," L. Jack Vasquez, Jr., director of the EEOC's St. Louis district office, added. The Commission has asked for monetary damages, training on anti-discrimination laws, posting of anti-discrimination notices at the worksite and injunctive relief.

Dive Insight:

EEOC has long warned that stereotypes, when acted upon, can give way to discrimination.

In evaluating applicants, employers remain free to ask an indiviudal with an obvious disabiltiy to demonstrate how he or she might perform a certain task. Randy Lewis, who served as Walgreens' SVP of supply chain and logistics, told attendees at a recent conference that a problem-solving attitude is key. Lewis said he would ask applicants how they would approach a certain task, if they were unable to perform jobs in traditional ways. "If it takes two hands to handle the case, ask the person. Show them the job and ask how they'd do it," Lewis said. "Chances are they've had a lifetime of figuring out how to do it."

Importantly, employers may need to provide accommodations for workers who need them to particpate in the application process. EEOC offered the following example in its guidance on job applicants and the ADA: "John is blind and applies for a job as a customer service representative. John could perform this job with assistive technology, such as a program that reads information on the screen. If the company wishes to have John demonstrate his ability to use the computer, it must provide appropriate assistive technology as a reasonable accommodation.​"

Additionally, the guidence notes, the ADA requires employers to administer tests in a way that doesn't require use of an impaired skill, "unless the test is designed to measure that skill."