Question:

I am currently sitting on a hiring panel for my employer. Last week, we interviewed a candidate for an accounting position who has a prosthetic leg and walks with a limp. He never specified the cause of the limp, but he made several references to his “working around” a disability. Frankly, I do not consider the job candidate actually disabled, because it appears that whatever medical condition he has would not impact his work as an accounting supervisor. We are planning to bring him back for a second interview, along with two other candidates. If we do not hire him, I do not want him to think it was because of his medical condition and sue us for disability discrimination. Can I clarify with him during the next interview that we do not consider him to be disabled?

Answer:

No. California law prohibits employers from inquiring about an applicant’s medical condition and possible disabling conditions before making a job offer. In your situation, your attempt to reassure the candidate may in fact be unlawful. You are permitted to ask whether the applicant can perform the essential functions of the job with or without accommodation, but if you ask this question, you should ask it of all applicants. The law requires employers to make employment decisions based solely on the relative strengths and weaknesses of applicants. If you end up hiring the gentleman who limps, your human resources staff may inquire regarding reasonable accommodations that may be necessary (e.g., a nearby parking spot).

A recent California appeals court decision sheds light on your circumstances. In Sandell v. Taylor-Listug, Robert Sandell, vice president of sales for Taylor-Listug, suffered a stroke and, thereafter, required a cane to walk and suffered from slurred speech. He was terminated three years later for alleged performance issues. Sandell subsequently sued for disability discrimination under the California Fair Employment and Housing Act (“FEHA”). He claimed that the company terminated him because he had a disability. The lower court dismissed the case before trial because no stroke-related medical issues kept Sandell from doing his work, he took no medicine, and he could perform his work at normal capacity (without accommodation) when he returned to work full-time. However, the Court of Appeals overturned the lower court, holding that evidence that an individual needs a cane to walk is “clearly sufficient to establish that a person is physically disabled under California law.” It also found that Sandell’s impaired speech was a disability. The appellate court concluded that Sandell presented sufficient evidence that he had a disability under the FEHA, the employer terminated him because of his disability, and the employer’s nondiscriminatory reasons for termination were pretext for discrimination on the basis of a disability. The case was remanded back to the trial court for further proceedings.

Both the FEHA and the federal Americans with Disabilities Act (“ADA”) prohibit discriminating against an employee or job applicant because of a physical or mental disability. “Disability” is generally defined as a condition that impairs an individual’s ability to perform one or more major life activities. In addition, the FEHA prohibits discrimination based on an individual’s “medical conditions,” defined as genetic characteristics or any health impairment related to or associated with a diagnosis of cancer or a record of cancer. Under federal and state law, major life activities include:

  • caring for oneself
  • performing manual tasks
  • walking
  • seeing
  • hearing
  • speaking
  • breathing
  • learning
  • working

Someone who is not considered disabled under the ADA could still be viewed as disabled under the FEHA. While the ADA requires that a condition impose “a substantial limitation” on a major life activity, California law requires only that it place “a limitation” on a major life activity. Under the FEHA, a major life activity is limited if the condition makes achieving the activity more difficult.

Therefore, in your hiring circumstances, an employee who has a prosthetic leg and walks with a limp but who works without limitations is nonetheless considered to have a disability under the FEHA because the individual is limited in the major life activity of walking. Your hiring committee must consider the relative strengths and weaknesses of your top three candidates and make the hiring decision based on your objective assessment. If you end up hiring the gentleman who is disabled under FEHA, you may inquire whether any reasonable accommodations may be necessary for the prospective employee to perform the essential functions of his job.
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