Just how inclusive is your workplace? Do you use online applications? If visually impaired applicants cannot access your online application, chances are that your workplace fails to include these individuals. That means you could be both missing out on qualified applicants and making your business a target for claims.
Over the years, in an effort to simplify the processing of employment applications, many employers have turned to online platforms to handle those applications. Among other things, this allows easier filtering of applicants and their qualifications for the position(s) in question, and streamlines an otherwise daunting administrative task. But, could your online application process be filtering out individuals before they have an opportunity to complete it? As with retailers who sell their wares online, employers who use online applications can be targets for litigation involving a visually impaired applicant—or potentially a group of applicants—who was unable to apply for a job simply because he or she could not read the content of an online application. While public accommodation cases involving potential customers result in only the payment of the claimant’s attorneys’ fees, cases involving job applicants who have been denied the ability to seek employment because of a physical impairment can result in significant amounts being paid in damages.
In the last couple of months, several cases involving online job applicants have been filed throughout the country against employers because the online job applications are allegedly inaccessible to individuals with visual impairments. A major gaming retailer, restaurant, grocery chain, and disposable cup manufacturer are among those targeted since July 2018, with three cases being filed on August 10, 2018. In each of the cases filed, the plaintiffs each claim that they attempted to gain access to the employer’s website to complete an application (as they are otherwise qualified for the unspecified position(s) offered), but were prevented from doing so when the website was incompatible with the plaintiffs’ screen reader software. Then, each of the plaintiffs alleges that they each sought a reasonable accommodation from the prospective employer by sending three (3) letters requesting assistance in completing the application, such as re-designing the website to allow screen reader access. The complaints in each case allege that the plaintiffs’ efforts to seek an accommodation were rebuffed, whether by the employer’s complete failure to respond or other refusal to engage in the interactive process under the Americans with Disabilities Act. The current hotbed for the litigation appears to be California, but employers operating in other states should not consider themselves safe.
The EEOC’s Guidance on the Americans with Disabilities Act provides that “[a]n employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship).” Job applicants also look to similar rights provided under state anti-discrimination laws when seeking relief for allegedly inaccessible online applications. While online interfacing may render difficult the ability to assess an applicant’s initial qualifications, employers must think again about how they incorporate accessibility into their business models, including their hiring and application processes.
