A common question asked by employers is, do they have to hire an applicant who has a disability simply to avoid liability and discrimination claims? The answer is “no”, so long as the protected class applicant is not being hired based upon his/her class status or disability.

In general, an employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, assume that an essential function of a particular job requires the applicant to be able to lift at least 50 pounds and two people apply for the job, one of whom has a disability.The person with the disability can only lift 10 pounds but the other applicant can comfortably lift 50 or more pounds.The employer is free to hire the applicant who can lift 50 pounds as this ability is required for the successful performance of the job.

Employment discrimination and harassment issues are complex, and lawsuits for these claims can be extremely costly. Many discrimination claims arise from pre-employment screening and hiring procedures. Contractors who are hiring employees should take care to avoid basing any hiring decisions upon race, color, sex, religion, national origin, age, disability, and genetic information. It is also important for employers to be aware of both federal and state employment and discrimination laws.

If you would like more information about your rights or obligations as an employer or employee please contact me at pl@pjlesq.com or via telephone at (973) 949-3770.

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