[Nfbf-l] Job Discrimination

Sat Oct 24 08:06:18 UTC 2009

Bill,
    Now that you have heard about what others assume and that these are
"standard questions", let me chime in and give you my take on this. First of
all, here's the disclaimer: I am not an attorney. The information I share
should not be construed as legal advice; rather it is intended as informal
guidance only!
    Section 102 of the Americans with Disabilities Act (42 USC 12112)
describes discrimination, in part, as

("6) using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the standard,
test or other selection criteria, as used by the covered entity, is shown to
be job- related for the position in question and is consistent with business
necessity"

    Furthermore, section 101 (42 USC 12111)requires employers to make
reasonable accommodations", which include

(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and

(B) job restructuring, part- time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices,
appropriate

adjustment or modifications of examinations, training materials or policies,
the provision of qualified readers or interpreters, and other similar
accommodations

for individuals with disabilities.

    The question you ask deals with the "essential functions" of a job. If
you are an IT person who is working in an office and never required to make 
on-site visits, the ability to drive is probably not an "essential
Function"; however, if the job requires you to visit customers in the field, 
then the ability to drive may be construed as an essential function! This 
being said, even if you do need to make on-site visits, there is another 
concept in employment discrimination law referred to as "Bona Fide 
Occupational Qualifications" (BFOQ). An occupation has specific 
qualifications that need to be met in order to perform the professional 
functions of a job. For instance, a counselor may be required to have a 
Master degree, a state license, and specific experience. However, the 
ability to drive may not be a BFOQ! At the same time, the possession of a 
driver license is a BFOQ for a taxi driver! If a counselor needs to make 
on-site visits to clients, hiring a driver for this person may be a 
reasonable accommodation, provided the accommodation does not cause an 
"undue hardship".
    I hope I was able to give you a little direction, rather than just blow 
hot air! (smile) I would be willing to continue this discussion for you and 
the rest of the list, since job discrimination is one of the biggest 
challenges we face as blind employees. With an unemployment rate of more 
than 70%, there is no doubt in my mind that we are discriminated against due 
to our blindness!

Fraternally yours,
Marion Gwizdala, President
East Hillsborough Chapter

----- Original Message ----- 
From: "Kirk" <kvharmon54 at gmail.com>
To: "NFB of Florida Listserv" <nfbf-l at nfbnet.org>
Sent: Friday, October 23, 2009 8:20 PM
Subject: Re: [Nfbf-l] Job Discrimination

>        Bill, I can understand your frustration without a doubt, however, I
> would assume that these requirements you have described such as must have
> a valid drivers License, or must be able to lift over 25 pds or more,
> should be associated to jobs that would require you to either drive or be
> able to pick up items of considerable weight. I know it can be very
> upsetting to you, but when I could see and hired people for my small
> businesses, I had these items mentioned in my applications. I placed them
> on my applications not to discriminate, but to help me  identify with
> applicants that could do the specific jobs they were applying for. Now,
> after saying that, If you are a computer programmer, then like you said,
> the only requirements for you are to close down your lap top at the end of
> the day and remove it from your work space! I hope that  you don't think
> that I am slighting your situation by any means Bill, but just trying to
> let you understand why it's legal and why employers do, at times, do what
> they do!  I don't understand at all why these employer's  you have
> described would ask these type questions however if they are looking
> specifically for computer programmers or computer or electronic
> technicians, ETC. I would assume that  if you were to research more
> thoroughly about this as to why these requirements are legal  on
> applications for clerical or computer jobs,and why employer's are asking
> for these answers on jobs without the need for them. Perhaps they could
> modify the law so that only jobs that  require certain needs would have
> these restrictions on their applications.   If employer's are not using
> these properly for there applications for specific job requirements than
> perhaps they could be forced to pay a fine and/or change their
> applications accordingly!  Your friend in  the cause, Kirk
>
>
>
> ----- Original Message ----- 
> From: "Bill Dennis" <billiam904 at yahoo.com>
> To: <nfbf-l at nfbnet.org>
> Sent: Friday, October 23, 2009 3:37 PM
> Subject: [Nfbf-l] Job Discrimination
>
>
>>I haven't posted to this list in well over a year but lately, I've had
>>something that really bugs me and I'm just upset enough to spill my guts
>>about it.
>>
>> I am a legally blind computer programmer who happens to also be an
>> amputee.
>>
>> I have worked all of my life except for a few years when I was on
>> dialysis before my kidney transplant.
>>
>> I've been in the computer industry for almost 25 years.
>>
>> The company I work for laid me off for 5 weeks and during that time, I
>> sought another job.
>>
>> I've been disabled since 1995 but physically disabled since 2004.  In all
>> of this time, I've only had a few employers openly discriminate against
>> me and most of those were out of ignorance but apparently, it is now
>> legal in Florida for an employer to list "working conditions" in the job
>> posting and eliminate people from even applying for the job based on
>> these so-called working conditions.
>>
>> One employer listed "must have eyesight" as a working condition.
>>
>> Two other that I've seen in the past two weeks places a minimum lifting
>> weight of 25 pounds.  Excuse me but computer programmers do not lift
>> anything but our laptops when it is time to go home.  That is what I.T.
>> people or laborers are for.  The lifting clause eliminates me due to eye
>> hemmoraging and of course, the fact that I walk with a prostetic.  For a
>> total, it would eliminate them because while you can probably do the
>> lifting, how will you be guided to where the items you are lifting need
>> to be moved?  I'm sure they won't hire a sighted guide for you and you
>> cannot use a guide dog or a cane if both of your hands are full.
>>
>> One other clause I've seen is "must have valid driver's license".  I used
>> to be able to arrange my own travel at my expense but I now no longer
>> have that option.
>>
>> I've been told that all of these "requirements" are perfectly legal and
>> that there is no one to validate these conditions to make sure that these
>> are actual working condition but simply the employer's way to eliminate
>> "uneanted" candidates.
>>
>> I would like to hear your thoughts on this.
>>
>> Bill Dennis
>> Orlando
>>
>>
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