Does EEOC v. Abercrombie & Fitch (ANF) Have Implications For the ADA?

There have been a number of blog reports since the EEOC v. ANF ruling suggesting that this case has implications for the ADA. I do believe there are general implications for the rules on religious accommodation related to the ADA.  This includes, most notably, the need for employers and applicants to engage in a flexible interaction regarding potential reasonable accommodations. That said, I believe the purported connection to the ADA presents unnecessary scares for employers.  In a nutshell, the issue raised in these blogs is that that employers could face individuals with certain impairments (e.g., mental impairments) that are not obvious.  Thus, based on the Supreme Court’s ruling in the ANF case, could an applicant “blindside” an employer with a non-obvious disability?  My answer is a vigorous no!

I had believed for decades that employers must be informed about the need for accommodations by the applicant in both Title VII in religion and ADA accommodation cases.  However, as I wrote in a prior Alert on this case, what happened in EEOC v. ANF was unique and hard to apply to even other Title VII religious cases, let alone ADA cases.

As a starting point, there is nothing in Title VII that prohibits an inquiry into religious beliefs prior to a conditional job offer, whereas there is a strong prohibition against such inquiries in the ADA.  My solution for Title VII cases is to avoid hiding policies that might imply a need for accommodation.  The best way to do this is present what the critical job requirements are (e.g. work on Saturdays, dress policies, etc.) and to ask if there are any issues that would prevent the applicant from agreeing to these requirements.

For the ADA, EEOC Policy Guidance permits discussion of reasonable accommodations at the pre-offer stage if an impairment is obvious, self-disclosed, or if a request for accommodation is made.  Accordingly:

[F]inal guidance clarifies that employers may ask certain questions about reasonable accommodation at the pre-offer stage.  In particularly, employers will be permitted to ask limited questions about reasonable accommodation if they reasonably believe that the applicant will need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation.

So I still believe, quite strongly, that an applicant with a non-obvious physical or mental impairment cannot blindside the employer.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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