The Sophisticated Employer Blog

Back in the day, the biggest equal employment opportunity issue surrounding the hiring process was where and how the employer advertised for employees.

Word of mouth was taboo since the method tended to perpetuate the same demographics as those already in the workplace (i.e., white employees tended to refer their white friends). So was advertising only in the local, suburban newspaper for the same reason.

But today, the proverbial “Help Wanted” sign is on the internet and generally open to the public. So how does an employer get in trouble these days with its hiring process? 

I just read an interesting opinion by the United States District Court for the Northern District of Ohio that gave me pause. It is a case brought by Edward Kasper, as a class action, against Ford Motor Company. 

There are two interesting issues in this case but, first, let’s look at the allegations. The plaintiff Kasper is a developmentally disabled individual who attempted to apply for work at Ford. To apply, an individual needs to be able to navigate, at least somewhat, Ford’s website application portal. Kasper indicated that because of his cognitive disability, it made it difficult for him to navigate the portal and complete any “information-intensive” online tasks. 

To remedy such a problem, Ford’s website has a telephone number that a person with a disability can call to request accommodation with the application process. Next to the phone number is a message advising prospective applicants that they should not only leave their names and phone numbers, but also the details about the jobs that interest them. Ford will then return the call, although Kasper alleges no such call was made by Ford in response to his voice mail.

Kasper’s complaint is that the design of Ford’s website not only makes it difficult to find the phone number to call for accommodation without assistance, but also without help he could not access the information he needed about the job openings. Kasper alleges that this has a disparate impact on individuals with disabilities. He also brought claims for failure to accommodate under the Americans with Disabilities Act on behalf of himself and similarly situated disabled individuals.

The first interesting issue is that the court dismissed the disparate impact claim because Kasper failed to exhaust his administrative remedies at the Equal Employment Opportunity Commission (EEOC) as to this claim. In other words, that wasn’t part of the charge he filed at the EEOC. 

What makes this interesting is that apparently the need to exhaust remedies at the EEOC is not settled law nationwide. It is in the U.S. Court of Appeals for the Sixth Circuit, but not in other federal circuits. The United States Supreme Court will hear a case within a week that arose out of the U.S. Court of Appeals for the Fifth Circuit and had allowed a worker to pursue a religious discrimination claim that wasn’t raised in the charge filed with the EEOC. Given that the Supreme Court took a case that allowed the claims to go forward, I am hopeful it is planning on reversing that decision. By the way, the Supreme Court also just agreed to hear a trio of cases that will decide whether Title VII prohibits discrimination based on sexual orientation or transgender status. All I can say is, about time!

The second interesting part of this case is Ford’s argument that “it” has “no records of prospective applicants who did not actually submit applications” and that this is the only way Ford could identify other potential members of the class. The argument was rejected by the court as was Ford’s argument that “the class action vehicle is inappropriate simply because [Kasper’s] class claims may require individualized determinations as to whether class members are legally ‘disabled.’” 

While the appellate court recognized that this may be true, to accept this broad proposition so early in the case is the same as saying that a disability class action may never proceed. The complaint narrowed the potential class “to prospective Ford applicants whose disabilities impeded their ability to apply using Ford’s online application process.” According to the appellate court, that is sufficient to allow the case to move forward into discovery.

So, does your company use an online application process? How easy is it to navigate the portal?  If it is not easy, another potential class claim might be that it has a disparate impact based on age since older workers tend to be less tech savvy. 

You might try to navigate it yourself and see if you give up in frustration. Is there an easy way to bypass the process and seek accommodation? Or is it buried, along with the information the applicant would need in order to apply via phone? Ford may find out that its portal is not easily accessible via this class action.