The Employer's Legal Resource: EEOC Provides ADA Guidance Regarding Reasonable Accommodations for Digital Interviews
With the rise of technology, digital or virtual interviews have become an increasingly popular method for companies to evaluate potential employees during the hiring process. A digital interview provides a convenient virtual place for employers and job applicants to meet and interact using video, instant messaging programs, and web conferencing services (e.g. Skype) without having to step foot in the same city.
Recently, the Equal Employment Opportunity Commission ("EEOC") issued an informal discussion letter advising employers that they must provide a reasonable accommodation for applicants who are deaf or hearing impaired with respect to digital interviews, upon request by the applicant. An employer, or "covered entity" under the Americans with Disabilities Act ("ADA"), must be mindful of their ADA obligation to make hiring processes, including digital interviews, accessible to applicants with disabilities
ADA regulation prohibits an employer from discriminating against qualified individuals on the basis of disability at each stage of the hiring process, including the advertising, recruitment, and application phases. Employers cannot refuse to make reasonable accommodation to the "known physical or mental limitations of an otherwise qualified applicant with a disability" unless the employer can show it would cause undue hardship. Undue hardship means a significant difficulty or expense incurred by the covered entity when considered in conjunction with several factors enumerated by ADA regulations.
The EEOC letter confirms that digital interviews do not in and of itself run afoul of the ADA; but such hiring process must be made accessible, upon request, to enable a qualified applicant with a disability to be considered for the position. A company must provide a reasonable accommodation that enables an applicant to use the digital interview format effectively or must provide another method for conducting the interview. Additionally, the company will violate the ADA "if it does not provide a way for an applicant to request a reasonable accommodation in a timely manner, thus resulting in the applicant's losing the opportunity to compete for the position[.]"
The EEOC letter was issued in response to a job candidate who received two invitations to interview in the digital format. In short, the first company's invitation provided direct contact information to communicate questions and concerns, thus providing an avenue to request a reasonable accommodation. However, the second company warned applicants against attempting to call the company in any manner, without exception for reasonable accommodation requests. The EEOC surmised that the second company may be in violation of the ADA by failing to provide the candidate the opportunity to request a reasonable accommodation.
While not an official opinion of the Commission, the EEOC's informal letter serves as a reminder to employers that the obligation to provide reasonable accommodation under the ADA applies in the virtual world. Employers should ensure they are prepared to make appropriate and reasonable accommodationswhen utilizing new technologies.
By Helen M. Callahan, HCallahan@dsda.com