Tests keep disabled workers from many jobs, not just at Dorney Park

ALLENTOWN — Dorney Park may not have intended to weed out a longtime special needs worker who was unable to get through a new interview process, but the obstacle the park created effectively eliminated 29-year-old Chris Emery from the job, legal experts say.

While the Dorney Park case went viral on social media last month and prompted Dorney to offer Emery his job back, it is not an isolated example.

Those versed in disability discrimination law say the kind of tests Dorney Park made Emery take are problematic and can amount to discrimination that keeps people with disabilities from securing employment.

“The American Disabilities Act anticipates this kind of explicit scenario and doesn’t allow for it,” said Kevin Barry, a Quinnipiac University law professor who specializes in disability issues. “It looked like this guy could do the job, he’s good at it and he likes it. Those are the people you want to keep.”

The law, created in 1995, prohibits a test or criterion for employment that “screens out or tends to screen out persons with a handicap or disability” unless the criterion is essential to the job.

Joe Michener, director of employment services for the Lehigh Valley Center for Independent Living, said what happened at Dorney Park isn’t unusual. He said he regularly finds employers creating obstacles they were unaware might keep a disabled person from a job. It’s encouraging to note, he said, none of these workplaces has pushed back against the CIL when approached about making changes — including Dorney Park, which, Michener said, sought advice from CIL after the Emery case caught fire.

“It’s mostly employers going, ‘Oh, wow. We didn’t know that,’ ” Michener said. “There’s so much information and knowledge that the employer has to have. It’s impossible to know everything without having resources. That’s what we’re here for.”

Dorney Park spokesman Mike Fehnel said the company is ready to learn.

“Dorney Park has a long history of employing individuals with special needs,” he said, noting that hundreds of disabled workers have held jobs there. “We are continuously working to make ourselves and our procedures better. We are working with several outstanding groups in our community to discuss our employment opportunities and we have provided additional training for our associates.”

He said the park’s usual one-on-one interview was “adapted to be more interactive” this year and included a group session component. He declined to provide details of the interview process or any specific information about Emery’s case.

Emery and his mother, Claudia Emery, who live in Hereford Township, Berks County, have not legally challenged Dorney’s process.

While her son is a cheerful man, he can be shy with those he doesn’t know, Claudia Emery said, and has difficulty reading and writing.

As he was about to start his 13th year at Dorney, Emery was subjected to an interview in February. Claudia Emery said at the end of the interview, she was told her son didn’t “fit in” to what the park was looking for. He was offered a second interview 30 days later, but Claudia Emery said she didn’t know if it would be any different and worried her son would be humiliated and disappointed a second time, so she declined to bring him back.

When she went to Facebook to express her frustration and her son’s heartbreak, friends shared her story and it exploded across social media, with people across the country rallying for Emery and condemning Dorney Park. Management at the amusement park reached out to the Emerys the following day to offer Chris a summer job, but his mother said she didn’t want him going back.

In the meantime, Emery’s story sparked the Philadelphia Fraternal Order of Police to cancel the outing it had planned at Dorney Park this summer and Lehigh Valley Autism Speaks to move its annual walk that for years was held at the park.

“It resonated with people,” FOP Lodge 5 President John McNesby said. “It really upset a lot of us.”

Claudia Emery said that in Dorney’s interview process, her son was required to write a few statements describing himself, participate in a group exercise to build a locomotive using Lego blocks, and read and respond to information about potential encounters with guests. Unlike in years past, Claudia Emery said, she was not given an opportunity to join her son during the interview. She was puzzled about the tasks Emery was asked to perform since his job for the last several years was to clean restrooms.

“What does that have to do with Lego trains?” Claudia Emery said.

It’s a legitimate question, according to Matthew Deschler, an employment attorney at Littner, Deschler and Littner in Bethlehem. An interview should be designed to examine a candidate’s ability to perform the essential functions of the job for which he is applying. An interview becomes worrisome if it involves methods that exclude people with certain disabilities that wouldn’t affect their job performance, Deschler said.

“While the screening process is neutral on its face and applies to everyone, it may have the result of separating people with certain disabilities from the rest,” Deschler said, speaking generally of such methods and not about Dorney’s process. “That’s even if those people with disabilities are just as capable of performing the essential functions of the job as the people who are not weeded out.”

This type of discrimination is more subtle than being fired or retaliated against because of a disability, Deschler said.

Focusing on talents

Of the 88,778 charges filed with the U.S. Equal Employment Opportunity Commission in 2014, 25,369, or about 28 percent, alleged discrimination based on a disability. Of those, only about 6 percent were failure-to-hire cases. Of the 4,212 charges filed in Pennsylvania that year, 1,315 alleged disability discrimination and 64, or about 5 percent, dealt specifically with failure-to-hire allegations.

To avoid such legal challenges, said Jeffrey Tucker, an attorney at King, Spry, Herman, Freund & Faul in Bethlehem and chairman of the Employment Law Practice Group, it’s important for employers to have written rules about a job and what an interview hopes to uncover, and for the process to be uniform and consistent.

“If you don’t think about these kinds of things you can easily fall into traps. It takes a lot of work to do some of this stuff, but you have to do it,” Tucker said. “You can’t avoid all legal problems but you can minimize legal problems.”

Companies should check with the EEOC to make sure a new hiring method doesn’t unintentionally screen out certain populations of the workforce, he said.

Deschler added that making changes to a screening process should come with serious thought.

“In court, they’re going to ask you, ‘Why did you make that change?’ And you’d better have a good explanation for that,” he said.

An amendment to the ADA in 2008 that expanded definitions of disability opened the door to more claims and, according to Barry, added fairness. The wording before 2008 focused on whether a plaintiff’s disability could be proven, Barry said, which harmed those whose cases hinged on a mental or intellectual impairment that might not be obvious in an interview.

“Those days are over,” Barry said. “Now the question is whether they’re qualified. And that should have always been the question.”

People with disabilities apparently are being overlooked in the Lehigh Valley. Their unemployment rate is twice that of the national average and many are underemployed, according to the State of the Lehigh Valley’s 2016 report. Pennsylvania ranks fifth in the nation in number of disabled residents, at nearly 1.7 million, the report says.

Only about 5 percent of people with a disability in the Lehigh Valley worked full time, according to the report. Thirty-eight percent of people with a disability in Lehigh County did not work in the last year; in Northampton County, that figure was 29 percent.

Perhaps the most troubling finding came from a poll of residents by Good Shepherd Rehabilitation, which showed 55 percent of respondents believed most people would not willingly accept a person with a disability as a close friend.

Companies have to be aware of how their decisions could affect people with disabilities, said Deirdre Kamber Todd, legislative and diversity chairwoman of the Lehigh Valley Chapter of the Society of Human Resource Management and a partner with Kamber Law Group. Ignorance, she said, is not an excuse.

“You can always change your interview process,” Todd said. “But the real question is: Does that interview reflect the essential job functions that this individual would have to do as part of his new job? If you don’t define that, the courts will.”

Todd said companies sometimes select candidates based on smoking or marital status or other elements that don’t pertain to the job. It becomes problematic when those elements pertain to a protected class, such as people with disabilities.

“I think it’s an ongoing challenge because a lot of employers don’t want anything they see as weaknesses,” she said. “There’s a lot of discrimination over things that have nothing to do with the job.”

A discussion with the candidate about what an interview will entail can go a long way in making sure the person is prepared or can ask for an accommodation they may be entitled to, Todd said.

Companies should seek advice from organizations that can help them tweak processes to ensure they’re not unintentionally screening out certain candidates, she said.

The Dorney Park case is unique because it pertains to seasonal employment and interviews recur each year. Emery’s long tenure with the park raises questions about why he was subjected to a new process if the job he was interviewing for hadn’t changed, Barry said.

“It would be powerful evidence that he was qualified to perform the essential functions of the job — that building Lego trains … was not indicative of one’s ability to do the job,” Barry said. “It’s something a court would pay attention to and something a lawyer would make a big deal out of.”

Amy Edgar, founder of the Children’s Integrated Center for Success, said reframing a simple question when an employer interviews a prospective worker with a disability could work wonders.

“The biggest issue they face in employment is that their talents are not recognized,” Edgar said. “It’s their differences that people see. It should not be ‘What do you need help with?’ but rather ‘What are your talents?’ “

With the number of people affected by autism and other disabilities growing, Edgar said something will have to change to provide a more inclusive workplace.

“It’s inevitable because the numbers are so clearly trending upward,” she said. “We can either embrace and find a way to make it work and have it help make us all better … or we can ignore it and drown in the tsunami” that we’re not prepared for.

swojcik@mcall.com

Twitter @Sarah_M_Wojcik

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KNOW YOUR RIGHTS

If you are disabled and believe you have been discriminated against in employment on that basis, you can file a complaint through the U.S. Equal Employment Opportunity Commission. Generally, complaints must be filed within 180 days of the alleged discrimination.

The EEOC’s regional office is in Philadelphia. For information or to file a complaint, call 800-669-4000. The office recommends you first complete a questionnaire to expedite the process: https://egov.eeoc.gov/eas/

The EEOC also provides guides for people with disabilities who are seeking employment: ada.gov/ada_title_I.htm

Source: U.S. Justice Department