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hrpro37
hrpro37, Sr. Director, Human Resources
Category: Employment Law
Satisfied Customers: 116
Experience:  10+ years of experience in human resources roles with a specialization in employment law
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I recently applied position (promotion) with my company.

Customer Question

I recently applied for a position (promotion) with my company.
This position would be at another location.
After the interview I mentioned to the Manager that interviewed me that I had a disability, that it did not affect my work performance and I was glad that our company (large tech firm) has progressive policies toward individuals with disabilities. She acknowledged this and expressed no issue.
Later in the week, my current manager at my current location mentioned the hiring manager contacted her asking if my disability was a "problem" and if there were any "concerns" as it related to the position I was seeking.
I have reason to suspect that my -disclosing- my disability to management has kept me from promotions in the past. My job performance and ratings are excellent; reviews are consistently "exceeding expectations" for my role.
My question is: does this act of the hiring manager contacting my current manager equate to discrimination?
Submitted: 7 months ago.
Category: Employment Law
Expert:  hrpro37 replied 7 months ago.

Hello,

Thank you for using JustAnswer. It is difficult to tell for sure if this would be considered discrimination. There isn't a specific rule that says managers within the same company can not talk to each other about specific employee performance. However, asking a question about an employees disability is somethings that shouldn't be done because it leads to questions of possible discrimination.

If you weren't selected for the role, I would ask specifically why you were not selected and highlight that you have all the qualifications needed and also that you have had a stellar performance record with the company. If they can not provide you with a satisfactory answer then you may be dealing with discrimination based on the Americans with Disabilities Act.

Feel free to ask follow up questions if you would like and please don't forget to rate me so that I receive credit for addressing your question.

Thank you,

Amber

Customer: replied 7 months ago.
Thanks for your response. Because our company is also a federal contractor they have an affirmative action policy towards those with disabilities.This is part of the language of their individuals with disabilities policy "[Company name] takes affirmative action to attract, retain, and promote protected veterans and qualified individuals with disabilities. All personnel actions are administered without regard to an individual’s covered veteran status or physical or mental disabilities.If you are an [Company] employee or an applicant who has received an employment offer from [Company], you may voluntarily identify yourself as a protected veteran or an individual with a disability. This information will be kept confidential except when needed for accommodation, safety, or compliance purposes. To request a self-identification form, contact the Human Resources department."To me, the portion which reads "All personnel actions are administered without regard to an individual’s covered veteran status or physical or mental disabilities." and "This information will be kept confidential except when needed for accommodation, safety, or compliance purposes" appears to have been violated in this circumstance. Although I -did- disclose to the hiring manager my disability status, wouldn't this need to remain confidential as it was not "needed for accommodation, safety, or compliance purposes"?As you stated, inquiring about my disability to another manager without my consent would appear to violate the updated section 503 of the ADA (summary) "All self-identification information must be kept separate from other personnel records and cannot be available or used for any employment decision that could lead to adverse impact (such as hiring or performance review)." Section of the actual federal code below.I have no interest in taking legal action against my employer, I simply want the promotion that I feel I am qualified to receive (and have been passed up for twice already).Should I raise this issue with HR? Should I include that I fear adverse action or retaliation for even disclosing my concerns?I know that much of this "discrimination" is often implicit.Thanks
L.From the actual code "(7) Qualification standards, tests and other selection criteria—(i) In general. It is unlawful for the contractor to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criterion, as used by the contractor, is shown to be job-related for the position in question and is consistent with business necessity. Selection criteria that concern an essential function may not be used to exclude an individual with a disability if that individual could satisfy the criteria with provision of a reasonable accommodation. Selection criteria that exclude or tend to exclude an individual with a disability or a class of individuals with disabilities on the basis of disability but concern only marginal functions of the job would not be consistent with business necessity. The contractor may not refuse to hire an applicant with a disability because the applicant's disability prevents him or her from performing marginal functions."
Expert:  hrpro37 replied 7 months ago.

In the case of a federal contractor, they are absolutely held to more strict standards and in this case, I think you absolutely have a legitimate concern here. As far as next steps, you can either make a claim to the DOL or bring it up to your human resources contact and let them know you feel you may have been discriminated against.

Keep in mind that you will want to keep detailed records of any conversation you have had with anyone regarding your disability or internal application procedures.

Information on how to file a claim with the Department of Labor can be found here:

https://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm

I hope that answers your question, please do not forget to rate me so that I receive credit for addressing your question (it does not cost anything additional)

Thank you!

Amber