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Is it permissible to favor applicants with disabilities?

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Imagine there are two applicants for a job. Both are similarly qualified, but one applicant has a disability and requires the use of a wheelchair.

In that situation, federal anti-discrimination laws prohibit the employer from choosing the non-disabled applicant solely because the other applicant has a disability. But what if we turn that situation around? Can the employer choose to hire the applicant who has a disability solely because that applicant has a disability? According to a recent opinion by the Equal Employment Opportunity Commission, the answer is yes.

The EEOC is a federal agency that seeks to enforce federal employment discrimination laws. In addition to investigating and resolving claims, the EEOC occasionally provides guidance when questions are raised about the EEOC’s interpretation of certain laws.

A recent informal letter, issued in July, tackles the question of whether private employers can have a preference for hiring disabled individuals.

The EEOC noted that the Americans with Disabilities Act specifically excludes people without disabilities from its protection. That means that people without disabilities are not protected by the law, and therefore will not be able to allege that they were discriminated against for not having a disability.

According to the EEOC, therefore, any employer can:

  • Prefer applicants with disabilities
  • Have a goal of hiring a certain percentage of applicants with disabilities
  • Create job postings saying applicants with disabilities will be favored

This opinion letter may be of particular interest to employers who are currently seeking to hire qualified applicants. In a tight labor market, more businesses are hiring employees with disabilities. According to the Bureau of Labor Statistics, the unemployment rate among people with disabilities dropped from 2016 to 2017.

Employers that hire persons with disabilities must follow employment regulations, including making reasonable accommodations for these employees. However, the law certainly does not prevent an employer from firing an employee with a disability if that employee is not working out. Unless the employee is unable to carry out the essential functions of the job, even after being provided with a reasonable accommodation, the law simply prohibits employers from terminating employees because the employee has a disability

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