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Job discrimination in plain print

Follow-up on report about anti-disability clauses in job listings doesn’t yield many answers

February 10, 2016 2:00AM ET

Go to your favorite job site and search for “25 pounds.” In almost every industry, you’ll find anti-disability clauses — with companies stipulating, for example, that employees be able to lift that weight — littering listings for jobs that require operating a computer, teaching a class, managing a division or running a major organization. As I reported for Al Jazeera America last week, human resources departments routinely stick these clauses into their job postings in ways that are shocking and generally violate the Americans With Disabilities Act. Given that unemployment is one of the most important issues for the disability community, this is a problem.

Why does it happen? And what can we do about it? Since publishing my original report, I’ve spoken to legal experts, federal officials, disability rights officials and, most important, disabled job seekers. They have clarified both the depths of the discrimination and the path forward.

I also talked to some colleges and universities that I allege are discriminatory in their practices, asking the following questions: Why does the Tarrant County College district director of diversity need to taste or smell? Does a Lehigh Community College sociology professor really need to use hands to handle or feel? Why couldn’t a French professor at the University of Arkansas at Little Rock be blind? (I know of a blind French professor currently in the field.) Does the dean of fine arts at Eastern New Mexico University really need to lift 25 pounds? Should an accounting professor at Fisk University need to stand, walk or sit? Why does the director of first-year writing at the University of Texas at Arlington need to climb stairs and ladders?

Jacenda Davidson, the vice president for human resources at Fisk University, wrote to tell me that staffers in her department “routinely include the essential functions as required qualifications” and that she would be happy to review and identify only “the specific essential functions of the vacant accounting faculty position” — assuming doing so would not fundamentally change the position. She did not answer whether her department would do this for all positions or why it excluded people who couldn’t stand, walk, sit, use their hands, reach with their hands, talk, hear, lift up to 25 pounds or have close, color and peripheral vision. She declined a request for a follow-up.

Linda Baker, the executive director of college relations at Lehigh Community College, on the other hand, thanked me for making “a good point about ensuring that job descriptions mirror our openness to hiring people who have disabilities.” She added, “We are considering removing statements about specific physical demands and replacing those with a statement that indicates our willingness to accommodate employees with disabilities.”

These points really matter in deterring and discouraging disabled applicants. Over the weekend, I spoke to numerous disabled jobseekers in diverse fields who have long lamented these clauses. A blind woman mentioned how many desk jobs require drivers’ licenses, when what’s really required is that employees show up for work (by whatever means). An academic in the humanities who uses a wheelchair wrote to me:

Someone has taken a lot of time to describe the physical, mental and perceptual abilities of a “normal” person. I am disappointed that such normative language made it into these job ads. The academic job market is so trying and exhausting, and for someone with a disability, this sort of language stokes my worst fears, that I would be disqualified from a job because of my disability. It isn’t enough that I prove myself intellectually and professionally. Now I must also do so physically.

These individuals wished that I not use their names, citing the fear of bias in their job searches. 

Requirement creep, as I’ve been calling this phenomenon, is discriminatory and often illegal.

There are many jobs, of course, for which various abilities are required. A roofer should be able to climb a ladder. An electrical engineer may need color vision and manual dexterity. Nurses and nursing professors may well be required to lift heavy things. Moreover, in all kinds of work situations we are asked to do things not technically in our job description, especially in smaller offices. I am a university professor and a journalist. Per my job description, I teach, write, give talks, serve on committees and otherwise do nonphysical labor. I end up carrying stuff around all the time, and I’m happy to do it, but if I became disabled, I would in no way be less effective at the essential components of my work.

Requirement creep, as I’ve been calling this phenomenon, is discriminatory and often illegal. Chris Kuczynski from the legal counsel office at the Equal Employment Opportunity Commission (EEOC) expressed surprise at all these physical requirements in nonphysical jobs. He agreed with my conjecture that in most cases this language reflects a boilerplate clause that gets picked up and dropped into every job ad for an organization or company. That’s an explanation but not an excuse. “It’s certainly going to deter people from applying for these positions,” he said.

It may be not just boilerplate repetition, though. Karen Nakamura, the Robert and Colleen Haas distinguished chair in disability studies and a professor of anthropology at the University of California at Berkeley, suggested that at least some of these clauses are intended to forestall workplace disability lawsuits. If the job description says an employee must lift 25 pounds and then someone throws out his or her back, the clause protects the company from a suit.

How do we move forward from here? Kuczynski told me that the EEOC has a new strategic enforcement plan and that these clauses might fall under two of the six priorities: new and emerging issues and barriers to recruitment and hiring. An EEOC commissioner could simply choose to investigate “any kinds of standards that may be screening people out unintentionally or intentionally on a prohibited basis, including disability,” he said. However, the EEOC most often pursues employment discrimination when an employee or applicant contacts the agency. Theoretically, anyone who is disabled and would like to apply for any of these jobs but finds that one of those clauses excludes them by falsely listing a specific physical attribute as essential could go to the EEOC website and file a charge.

In the meantime, the disability rights community is ready to start pushing back against these clauses. Lawrence Carter-Long, a public affairs specialist for the National Council on Disability, told me via email that these “thoughtless cut-’n’-paste” clauses discriminate, “without a doubt.”

“Thankfully,” he added, “Job providers needn’t wait until they get sued before correcting or, better yet, preventing such mistakes. Clearly, this is now on the radar of the disability community. One thing is certain: In the Internet age, there is nowhere to hide. If employers don’t take the lead in addressing the issue, the disability community certainly will.”

Applicants who do not identify as disabled may just skim past these clauses. I had not noticed them before. Disabled applicants, though, skip right down to these clauses when hunting for jobs. For years, perhaps their whole lives, they have dealt with the way society stigmatizes disability, and so they don’t even apply. In fact, various individuals familiar with disability and employment compared the situation to the well-known statistic that women won’t apply for jobs unless they are 100 percent qualified (whereas men apply if they are 60 percent qualified). In fact, it seems that many marginalized groups are generally less likely to apply for jobs unless they meet all the qualifications, including disabled job applicants. It’s likely that many of these companies and universities would be happy to accommodate disabled employees but their hiring processes close that door.

These job ads provide the perfect opportunity to follow the maxim “Think globally; act locally.” We’ve got a national problem here in how we hire. Please look in your own communities, schools, organizations and industries. If you can, call them out and ask them to change. If you can’t because it’s not safe for you, let me know, and I’ll get to work.

Update: After this article was published, Angela Robinson, acting chancellor of Tarrant County College District, contacted me and said: “Your reporting raises legitimate questions about the composition of certain job descriptions and duties we have used. Upon my review, TCC is removing language from current job postings that relate to specific physical demands and work environment. This may take a couple of days. Longer-term, we are reviewing all job descriptions and will update, modify and/or permanently remove language that is contrary to TCC’s goals for access to education and employment.”

David M. Perry writes on language and power at How Did We Get Into This Mess? He is a history professor at Dominican University

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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