When Boilerplate Discriminates

David Perry, one of the top journalists currently writing on disability rights, reported on this whopper:

The Arc of Texas, an organization dedicated to inclusion, advocacy and disability rights, is hiring a new CEO. Their job announcement, as originally posted, made one thing clear: Disabled people need not apply.

Towards the bottom of the application, a strange list of criteria under the headline, “Physical and Mental Requirements,” included “Seeing, Hearing/Listening, Clear speech, Ability to move distances between offices and workspaces, Driving.” The next post, for another well-paid leadership position, added “manual dexterity, lifting up to 25 pounds, carrying up to 25 pounds” to the list, making it even more restrictive.

What’s a disability rights organization doing pre-emptively discriminating against disabled individuals in their most important hiring? And is this kind of language — which can be found in job postings from the tech sector, the non-profit world, and countless academic jobs — even legal?

(Note: at some point Arc edited the job requirements to remove the “physical and mental requirements.” Not clear when this happened relative to Perry’s article.)

I have to confess that, as a (mostly) able-bodied person, the “Seeing, Hearing/Listening, Clear speech, Ability to move distances between offices and workspaces, Driving” part didn’t initially seem discriminatory to me. But technology now exists that enables persons with visual impairments, etc., to take on management duties. And then there’s that “lifting/carrying 25 pounds” thing, which you see everywhere. I myself have (under instruction) included that in job descriptions, knowing all the while it was ridiculous. (I was hiring for non-physically-taxing office work, and also would be hard pressed myself to lift 25 pounds, much less do anything useful with it.) But I never connected the dots to see how discriminatory it was. So I’m glad that’s getting called out.

In his article, Perry lists several other examples of job descriptions that include discriminatory boilerplate, including a couple for teaching jobs that demand color vision and the ability to climb stairs. And here’s the worst one he found:

“The Director of Diversity and Inclusion at Tarrant County College District, an office that includes oversight over disability issues, must be able to meet “physical demands” such as the need to “sit; use hands to finger, handle, or feel objects, tools, or controls; reach with hands and arms; and talk or hear.” What’s more, the employee is “occasionally required to stand; walk; climb or balance; stoop, kneel, crouch, or crawl; and taste or smell,” as well as “frequently lift and/or move up to 10 pounds and occasionally lift and/or move up to 25 pounds.” And “Specific vision abilities required by this job include close vision, distance vision, color vision, peripheral vision, depth perception, and the ability to adjust focus.””

He notes that, “Every category in the Director of Diversity posting is listed as essential, even the ability to taste or smell.”

People with disabilities experience high levels of unemployment, and, as Perry notes, “Boilerplate clauses keep disabled people from even applying for jobs.” He also notes that they often represent an ADA violation, so it would be great for everyone involved, including the organizations doing the hiring, to ditch them.

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42 replies
  1. 1
    Keith G says:

    and also would be hard pressed myself to lift 25 pounds

    Sounds like you need some red meat in your diet.

    J/K, really.

  2. 2
    sparrow says:

    It seems like a person with a significant disability would be an *asset* to a group like this, no?

    And as someone who has participated in some very non-meritocratic evaluation processes, I cynically wonder why they even put this language in there… letters of reference will almost certainly tell you about any major things like being blind, and if you really want to be discriminatory, you just put the application in the trash. No one ever knows what really happened or how you made your short list. Unfortunately this is what happens all to often. But I’m glad to see the pushback.

  3. 3
    maya says:

    “frequently lift and/or move up to 10 pounds and occasionally lift and/or move up to 25 pounds”.

    $1 million in $100 bills is around 20 lbs. Plus the weight of the suitcase would be about 25 lbs. So, yeah, I can understand that req. for a CEO type.

  4. 4
    Jay S says:

    This may be equivalent to R Meyhew’s description of fugly insurance to keep the employers insurance costs down by eliminating the sickest.

  5. 5
    Roger Moore says:

    Am I right to assume that these are pre-defined categories that people are checking on a checklist? I have a hard time imagining adding that kind of requirement to a job posting for office work (or writing that stilted language) unless the person doing it were picking items from a checklist.

  6. 6
    Sad_Dem says:

    “lifting up to 25 pounds, carrying up to 25 pounds”

    No-longer-needed members of the executive committee usually weigh much more than that.

  7. 7
    Monala says:

    I work at a white-collar job, and I regularly need to lift 25 lbs. I am a nonprofit program manager who oversees several programs operating out of multiple locations. I work in the main office. I manage my budgets, which means that if there were any room in them for stuff like delivery services, I’d use it. Instead, whenever my program sites need supplies, I deliver them (usually when I am on my way to one of these locations anyway for supervision or meetings). This means regularly loading and unloading my car with boxes that often weigh as much as 25 lbs, sometime more. We have a part-time maintenance guy who works in our main office only, so if he’s around, he’ll help me load up my car. But he’s not always around, and usually when I get where I am going, I am the one to unload. (Obviously, all this means that I need to be able to drive, lift, see, etc.).

    I had an assistant once, before budget cuts resulted in a loss of her position, One of the requirements was being able to lift 25 lbs, which she said she could do, and then when she came on board, it turns out she couldn’t due to back problems. Needless, to say, I was not happy about that. (Actually, that might have been less problematic, if she had been a better employee in other areas, but she wasn’t, so the “not lifting even though I said I could” became one more area of frustration I had with her).

  8. 8
    Hillary Rettig says:

    @sparrow: one of the things I used to hear endlessly from HR people was that you had to treat every candidate exactly the same. if one got a math or writing test they all did, etc. i guess having a long list of disqualifiers right in the description itself provides good (if lazy and discriminatory) protection against lawsuits.

    same answer to Jay S’s point comparing this practice to fugly insurance policies.

  9. 9
    Hillary Rettig says:

    @sparrow: also great point this: “It seems like a person with a significant disability would be an *asset* to a group like this, no? “

  10. 10
    Hillary Rettig says:

    @maya: I could probably motivate myself to lift that. :-)

  11. 11
    Miss Bianca says:

    y’know, it’s funny, I got into it with some folks who were nattering on about how PC-ness was Ruining Academia as We Knew It, and one of their examples was a sort of “campus cultural coordinator” position – I guess they were citing it as Social Justice Warrior business run amok. One of the things they were knocking was the listing out of the sort of physical job requirements that are cited above, to which I found myself responding, “those are bog standard on most library job positions I’ve had to post”. That was when I realized that THEY were the ones that had pinpointed able-ist language and attitude! Not that that was their intent, and I doubt they would have thanked me for pointing it out. :) But it got me wondering how much of that language really was necessary in a library positon. (Lifting 25 lbs could conceivably be a sticking point for some positions, but probably not a lot).

  12. 12

    Huh. Never quite thought about that. 🎶the more you know

  13. 13
    Monala says:

    @Monala: My earlier comment was not to say that the disability organization was right or wrong for creating the job description as is, but pointing out that having an office job does not necessarily preclude having to lift heavy things.

    I agree that a person with a disability in general is going to be an asset to a disability rights organization.

  14. 14

    @Miss Bianca: well, and don’t ding me for stereotyping, I do have an MLIS–but brick and mortar librarians do deal with boxes of books.

  15. 15
    Hillary Rettig says:

    @Monala: fair points, all – and I also worked in nonprofit so know where you’re coming from – nonprofits are almost always so understaffed.

    Still, there are plenty of jobs where you don’t need to lift, or only rarely. In the jobs I had, the only lifting I had to do was (1) occasional boxes containing reams of paper, and (2) those giant water cooler bottles. There was always someone around who could do it.

    Listing 25 pounds when you don’t need it makes things problematic for hirers who actually do need that capacity because it leads people to think it’s a bs requirement.

    Not to mention that diversity is a plus worth achieving for its own sake.

  16. 16
    Miss Bianca says:

    @Major Major Major Major:

    Yup. And i’ve had to tote that barge, lift that bale (and that box of books) many, many times myself. But it wouldn’t necessarily hold for every position.

  17. 17
    Roger Moore says:

    @Monala:
    I think there’s an important distinction between recognizing that office work may require lifting things and demanding that every office worker be able to lift things. You were in a situation where you were the only person around, so you needed to have all the abilities needed, but that is less common. As you point out, when there were two of you in the office, it was survivable (if sub-optimal) if one was unable to lift heavy things. That makes me think the general case would put most of those requirements in the “good to have” category rather than the “essential” category.

  18. 18
    Monala says:

    @Roger Moore: Good point.

  19. 19
    Cacti says:

    The language that they’re using sounds like it comes from Title 20, sections 404 and 416 of the Code of Federal Regulations, along with the Dictionary of Occupational Titles from the US Department of Labor.

    Contrary to being something nefarious, I’d say the essential exertional and non-exertional requirements of a job are useful to know up front, to help impaired applicants determine what kind of reasonable accommodation(s) they’d need to perform it.

  20. 20
    trollhattan says:

    Your activist Supreme Court.

    The U.S. Supreme Court on Tuesday delivered a major blow to President Barack Obama by blocking federal regulations to curb carbon dioxide emissions from power plants, the centerpiece of his administration’s strategy to combat climate change.

    On a 5-4 vote, the court granted a request made by 27 states and various companies and business groups to block the administration’s Clean Power Plan. The move means the regulations will not be in effect while litigation continues over whether their legality.

    The brief order from the justices said that the regulations would be on hold until the legal challenge is completed. The court’s five conservatives all voted to block the rule. The order noted that the four liberals would have denied the application.

    A U.S. appeals court in Washington had turned away a similar request on Jan. 21.

    The states, led by coal producer West Virginia and oil producer Texas, and several major business groups in October launched the legal challenges seeking to block the Obama administration’s plan.

  21. 21
    chopper says:

    And then there’s that “lifting/carrying 25 pounds” thing, which you see everywhere.

    makes sense given how much CEO jobs require heavy lifting.

  22. 22
    Capri says:

    I’ve heard this described as the “blind pilot” problem. On the one hand you have to obey federal law and at some level most people understand that disabled people should be encouraged to enter the workplace. On on the other hand however, like it or not, there are some jobs that can only be done by folks with the right combination of physical or mental abilities. This allows employers to follow the letter of the law, by not discriminating since they don’t come out and say “Nobody in a wheel chair” or “Deaf need not apply”, but then making oddly precise requirements for the job so that only able-bodied people qualify. The lifting 25 pounds one is extremely common as it is thought to weed out folks with back problems and other “disability claims waiting to happen” – at my workplace 35 pounds is the cut-off.

    The whole situation reminds me of an old SNL Chevy Chase quote: We don’t judge people by the color of their skins, we judge them by the width of their nostrils.”

  23. 23
    Mnemosyne says:

    Honestly, this is where some good old-fashioned government incentives would come in handy, perhaps with a program that offers to help companies buy computers for sight-impaired employees, etc. Part of the issue is that companies are convinced that hiring the disabled will be too expensive because of the accommodations that may need to be made, so giving them free stuff to make those accommodations might help.

    We were at Disney California Adventure the other day and I noticed that the Photo Pass photographer who takes your picture in front of the Ferris wheel was in a wheelchair. And I suddenly realized, Well, duh, you don’t need to stand in order to work a camera! But until I saw it right in front of me, it never would have occurred to me that it could be done.

  24. 24
    Pogonip says:

    25 pounds would be 2 gallons of milk + 1 half gallon.

  25. 25
    Cacti says:

    For reference, the Federal definitions for the exertional levels of jobs, based on an 8-hour workday, are:

    Sedentary – lifting and carrying up to 10 lbs occasionally (2-hours), less than 10 lbs frequently (6-hours), sitting frequently (6-hours), and standing or walking occasionally (2-hours)

    Light – lifting and carrying up to 20 lbs occasionally, 10 lbs frequently, sitting frequently, and standing or walking frequently

    Medium – lifting and carrying up to 50 lbs occasionally, 25 lbs frequently, sitting frequently, standing or walking frequently

    Heavy – lifting and carrying up to 100 lbs occasionally, 50 lbs frequently, sitting frequently, standing or walking frequently

    Very Heavy – lifting and carrying more than 100 lbs occasionally, 100 lbs frequently, sitting frequently, standing or walking frequently

  26. 26
    Brachiator says:

    @Hillary Rettig:

    And then there’s that “lifting/carrying 25 pounds” thing, which you see everywhere

    I had a relative who was among the first women hired for clerical jobs in the post office in the 1950s. I probably am not correctly noting the job title, but it had to do with sorting the mail to by address (pre zip code). Originally, discrimination against women was justified by a requirement to have to drag a sack of mail to their work station.

    Anyway, the women there ultimately convinced those in charge that you could either have a guy or a cart bring in the mail. The need to have to lift the sacks was not essential to being able to do the job.

    Amazing that variations of this still exist.

  27. 27
    AnonPhenom says:

    @trollhattan:
    President Bloomberg will get it fixed. First thing.

  28. 28
    raven says:

    @Brachiator: I was a mail handler in the early 70’s. I worked on the dock unloading trucks for 10 hour shifts, 7 days a week with the 8th day off. They could work you like that for 6 months until you passed probation. We were a SCF, a regional facility that included the returns for the Columbia Record club. The canvas bags full of records were incredibly heavy as were the National Geographic bundles. The job was a fucking killer and I was happy when they reviewed my Army records and fired me for leaving some negative stuff out.

  29. 29
    Baud says:

    @trollhattan: simply calling balls and strikes.

  30. 30
    Bob In Portland says:

    sigh…

  31. 31
    Keith P. says:

    I’ve got an AV fistula on my left arm and am not supposed to lift more than 10 pounds with it. I could easily do 25+ in the other arm, but I definitely wouldn’t try to carry a laser printer or anything like that. Carrying extra weight in that arm is risking having to get another fistula (not fun, not cheap).

  32. 32
    TheMightyTrowel says:

    @Brachiator: Hell I’m an archaeologist which is a field that is (often perceived as) synonymous with hard field work. Yet, I’ve worked (IN THE FIELD) with disabled men and women. I’ve excavated next to a guy with one leg who used crutches all the time and i’ve been in labs with blind and deaf archaeologists – who also sometimes go into the field. One of the top people in my end of archaeology is epileptic and cannot drive anywhere or do some sorts of physical activities. Another of my mates is so severely dyslexic he was totally illiterate until he was 15 – now he’s got a phd and a tenured position.

    A little lateral thinking and a willingness to ask people what their skills are and to trust their own characterisation of their capacity and limitations is all that’s necessary to have a more diverse workplace. Is archaeology perfect? Of course not (and especially in Australia. Jesus, Australia, get it together!). Nevertheless, it’s not that hard and writing in limits like this up front, then justifying them based on able-bodied people’s imagination of what disabled people might be able to do or not do is pretty fucking shitty.

  33. 33
    Luthe says:

    As someone who is currently applying to government jobs and seeing a lot of this boilerplate, I can tell you that section is usually followed up by something along the lines of “or if you can do the job with reasonable accommodation.” Which is still kind of bullshit because you have to reveal your disability up front that way, but not quite as much bullshit as demanding the job be done by someone who doesn’t require accommodation at all.

  34. 34
    Hillary Rettig says:

    @Brachiator: yes and now the PO is a major employer and opportunity-provider of women and esp. minority women.

    Those of you involved with the PO may be interested of this story about my dad during the famous Bronx postal strike:

    http://www.hillaryrettig.com/2.....nest-hour/

  35. 35
    Hillary Rettig says:

    @Luthe: yeah and I could also see it as having a potentially chilling effect on applicants with disabilities.

  36. 36
    Hillary Rettig says:

    @TheMightyTrowel: great examples and great user name btw.

  37. 37
    Hillary Rettig says:

    @Cacti: pretty interesting info, and also pretty big gap between light and medium; also interesting that the common boilerplate skews towards “medium.”

  38. 38
    Hillary Rettig says:

    @Pogonip: according to google the 5 gallon water bottles (used in water colors) weighs around 40 pounds.

  39. 39
    Brachiator says:

    @Hillary Rettig:

    Those of you involved with the PO may be interested of this story about my dad during the famous Bronx postal strike

    Very interesting.

  40. 40
    Greg in PDX says:

    The one that irritates me is the “valid driver’s license and current insurance required” for jobs that don’t require driving. Many disabled people don’t drive. I don’t drive by choice and I don’t own a car, hence no insurance. I found out that in many states that is illegal, but regularly ignored by employers. When I lived in Boston years ago they had to pass a law making it illegal for an employer to list “must use own transportation to get to work”, meaning you couldn’t take the bus or subway or commuter rail . The city was pissed because they were trying to promote people leaving their cars at home and using public transportation instead, so they put a halt to that. As an OT side note. it is now illegal in a few states to run a credit check on potential employees who won’t be handling money.

  41. 41
    Keith P. says:

    @Greg in PDX: I see “Excellent communication skills” a lot in my field (IT). I’m pretty sure it’s recruiter-speak for “No Indians”.

  42. 42
    Comrade Colette Collaboratrice says:

    @Greg in PDX: My municipal government employer includes a requirement for a California drivers license for EVERY position. I’ve never once needed to drive for work, and most of my coworkers have also never needed to go anywhere public transit can’t take them. I’ve always assumed it’s meant to weed out people with drunk-driving records.

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