Take time to consider
The Board of Equal Treatment has heard two complaints about whether it was contrary to the Anti-Discrimination Act to refuse to employ candidates with a disability. In the first case, the Board found that the company had met its duty to accommodate; in the other case, the company had not.
According to the Anti-Discrimination Act, employers must not discriminate against candidates on the grounds of disability in recruitment processes. Consequently, if a candidate has a disability and the employer knows or ought to know about the disability, the employer must consider whether reasonable adjustments can be made to enable the candidate to perform the job.
Both cases concerned deaf candidates who applied for jobs as drivers.
In the first case, the candidate applied on the day the job ad was first published and was invited for an interview the following day. However, the candidate informed the company that he could not attend at such short notice because he was deaf and needed a sign language interpreter for the interview. After that, the company indicated that it ”needed to consider” whether the work – especially telephone calls to customers – could be subject to adjustment. The company came to the conclusion that this was not possible and therefore decided not to proceed with the application.
In the other case, the candidate stated in his application that he was deaf. He was rejected the following day on the grounds that telephone calls were an important part of the job.
Both candidates filed complaints to the Board, claiming that they had been discriminated against on the grounds of disability. They argued that it had been possible for the companies to make adjustments to the work to enable them to perform the job on an equal footing with other drivers.
Based on the circumstances of the two different cases, the companies argued that they had examined the possibilities of adjustments, but that the nature and unpredictability of the work necessitated the possibility of talking on the telephone and that it was not possible to adequately accommodate the work.
The Board’s decisions
In both cases, the Board found that the candidate had established facts showing that the rejection was based on the candidate’s hearing impairment.
In the first case, based on the circumstances of the case, including the fact that the company had told the candidate that they ”needed to consider” the situation, the Board found it substantiated that the company had considered whether it was possible to make reasonable adjustments. The Board agreed with the company that the relevant accommodation obligations would be disproportionately burdensome, so the Board found in favour of the company.
In the other case where the company had rejected the candidate immediately, the Board found that the company had not examined the possibilities of making reasonable adjustments. Accordingly, the candidate was awarded a compensation of DKK 15,000.
Norrbom Vinding notes
- that the decisions illustrate that if an employer knows or ought to know that a candidate has a disability, the employer must consider reasonable adjustments enabling the candidate to perform the job that he or she applies for; but
- that the employer is not obligated to make adjustments that would be disproportionately burdensome, taking into account, however, whether any adjustments could be facilitated through public measures.
The content of the above is not, and should not be a substitute for legal advice.
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