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Imaginary situation: a candidate arrives to a job interview for a position of software engineer. She had notified the HR manager that she has severe mobility problems and thus can't move around unless absolutely necessary. However, the interviewer demanded her to stand up and draw on the whiteboard during the interview, and insisted that she has to do that.
Should this be considered as an act of discrimination?

Pat W.
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user626528
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  • Is this about damages ? Getting hired ? Pain and suffering ? If it was painful, why didn't the candidate just simply refused the request to stand ? – Hilmar Sep 24 '20 at 12:40
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    The situation is imaginary, so no. Imaginary situations cannot win law suits. – Strawberry Sep 24 '20 at 15:59
  • Interviewers can be inappropriate, yes, so I suppose it is possible this particular act of meanness could happen sometime, somewhere. But before engaging an attorney and filing a lawsuit, why not bring it up right away with the HR rep who scheduled the interview loop or otherwise find a solution by escalating immediately inside the company conducting the interview? Surely that would have a higher possibility of leading to a beneficial outcome, and much sooner besides? – davidbak Sep 24 '20 at 17:01
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    @Strawberry, Law.SE permits hypothetical questions. When a user posits an "imaginary" situation, we construe it as a hypothetical. If you feel that the question crosses the line and requests specific legal advice, then please edit or vote accordingly. – Pat W. Sep 24 '20 at 18:54
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    Did she inform the interviewer of her disability? It's pretty easy for some piece of information to get lost somewhere between HR and the interviewer. It may or may not matter, but it could be something for the answers to address nonetheless. – NotThatGuy Sep 24 '20 at 20:02
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    @Strawberry Imaginary situations can involve imaginary lawsuits though. – NotThatGuy Sep 24 '20 at 20:05
  • @Strawberry imaginary people can't lose either... so we might as well make the imaginary disabled person do pushups and run 2 miles to get the job... – WernerCD Sep 24 '20 at 23:44
  • @WernerCD science uses thought experiments widely... but the fact that it's imaginary doesn't mean that you can imagine whatever you want. – user626528 Sep 25 '20 at 00:57
  • but imaginary limits on one side of an imaginary conversation (imaginary people can't win lawsuits) means that imaginary constraints on the other side are just as valid (imaginary people can't lose lawsuits). Either side negates the "thought experiments" which was my point - albeit sarcastically. I'd think real answers would involve something similar that's happened in real life cases - with caveats mentioned as pertinent and relevant. – WernerCD Sep 25 '20 at 01:06
  • WernerCD imaginary people definitely can win imaginary lawsuits - using real laws. And I think that theory is as important as practice. – user626528 Sep 25 '20 at 01:11
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    @NotThatGuy since the interviewer is an agent of the company, I doubt they could make much headway presenting an argument that ignorance on the part of the interviewer shielded them from their obligations under the ADA. Communication failures within a company are not a shield against litigation. – Dancrumb Sep 25 '20 at 02:29
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    @Dancrumb You're welcome to turn that into an answer, backed up with references. If it's little more than speculation, it's probably not appropriate here. – NotThatGuy Sep 25 '20 at 07:47
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    While I can predict the arguments presented and rulings made in a hypothetical lawsuit, I think it's pretty uncontroversial to assume that employers are liable for the actions of their employees while performing their occupation. However, that's not the question being asked; Ryan M covered that quite nicely – Dancrumb Sep 26 '20 at 12:36
  • @davidbak You might choose to pursue legal action to encourage the company to do better, or as advocacy for other disabled people. Someone this happened to probably doesn't want to work for that company anymore. If they can't handle accommodations for an interview, it would probably suck to work for them. – Azor Ahai -him- Sep 26 '20 at 17:58

2 Answers2

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Yes, this would be an ADA violation

The Americans with Disabilities Act (ADA) requires that "reasonable accommodations" be provided to people with disabilities in both the job application process and in the workplace. Specifically, this would be a failure to provide "modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires" as described in the EEOC enforcement guidelines.

Software engineers generally are not required to stand up and move around much to do their jobs, so the employer wouldn't have an argument that requiring an applicant to do so in the interview process is somehow related to job requirements. I'm a software engineer myself, and I spend almost my entire day sitting down (and very little time drawing on whiteboards, especially now that I'm not allowed to be in the building where the whiteboards are). Possible reasonable accommodations would include getting a portable whiteboard that's lower to the ground or allowing the candidate to draw on paper instead.

Ryan M
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    The office I'm not supposed to go into has tables with whiteboard tops in the conference rooms. I'm not normally a whiteboard fan, but they've been useful on occasions where I need to take a quick note while sharing my screen. – Dan Is Fiddling By Firelight Sep 24 '20 at 16:46
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    Yeah, we've got whiteboards too. Ours are the portable ones that can be wheeled around. We actually used them decently frequently, but if a coworker with mobility issues wanted us to gather around their desk while they drew on paper or to go wheel a whiteboard over from the corner so that they could draw on it for a discussion rather than all walking over to the corner together, that wouldn't be a problem. – Ryan M Sep 24 '20 at 16:50
  • Zoom has a whiteboard feature, so yeah, it would be fairly easy for the interviewing company to accommodate reasonably. – shoover Sep 25 '20 at 00:40
  • If the job however includes presentations, does that change the analysis? ssome software engineering positions (esp. Lead design) might explicitly contain "Your job is to present items to the team and customers", and whiteboards are a common means to present such. – Trish Sep 25 '20 at 08:08
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    @Trish I don't think so. There are lots of reasonable substitutes, like using a drawing tablet that's mirrored to a television or projector if you actually need to draw something. Even in non-pandemic times, a lot of presentations are conducted by someone sitting at a laptop sharing their screen with the presentation on it (almost all the presentations in my more formal meetings were done this way, especially since our team is split across countries). It's usually easier, because when someone inevitably needs to type something as a demonstration, they're already set up to show it to everyone. – Ryan M Sep 25 '20 at 08:13
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    @Trish the key part there is that while whiteboards are a common means to present such, they are not the only way to present; choosing an alternative means to present is plausible and a reasonable accomodation, and in such cases the company is required to make that reasonable accomodation and is not allowed to insist that the presentation must be on a whiteboard. – Peteris Sep 25 '20 at 13:33
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Depends what the job was.

If you had to lecture in front of a class and walk around to help students with their work then maybe it was not.

If you just sat and coded all day then definitely yes.

yukfoo
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  • I voted +1 up because this aspect was not discussed in the other answer: In many companies the workers also must hold training courses for other employees where the trainers must walk from one trainee to the other in the course room. If the new employee is explicitly told that holding such trainings is part of the job, the new employee must be able to walk around a course room to perform the job. – Martin Rosenau Sep 27 '20 at 07:27
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    @MartinRosenau While that's an interesting point, I disagree that a company could not provide reasonable accommodations allowing a movement-impaired person to do that. You could easily work around this in any number of ways: screen sharing, spacing desks widely enough to allow a wheelchair to pass between them, etc. There's unlikely to be a requirement that they specifically walk between the trainees (or be able to stand up), simply that they be able to move between them. – Ryan M Oct 03 '20 at 00:06