Whether an employment discrimination plaintiff may base a claim on bias allegedly favoring a member of the same protected class is an issue that has been seen many times in age discrimination cases, where a rule that the allegedly favored worker must be "substantially younger" than the plaintiff for a claim to exist is now well-established.

The issue also has appeared to a lesser extent in the race discrimination context, with claims that lighter- or darker skinned workers of the same race have received preferential treatment.

A recent, unpublished decision by the U.S. District Court for the District of New Jersey deals with the question under the Americans with Disabilities Act, in a case brought by a profoundly deaf paraprofessional who was denied re-hire by a local school district.

According to the school district, Leola Golembeski's claim is not viable under the statute, because the position Golembeski sought was filled by an applicant who herself is deaf.

But the court found that Golembeski raised triable issues with allegations that the applicant who was hired, although deaf, was not as disabled as Golembeski. According to Golembeski, the hired applicant is only latently deaf, wears a cochlear implant or bionic ear, and can communicate as a hearing person, while Golembeski can only communicate through sign language.

The court held that although Golembeski's claim does not "fit neatly" into the typical ADA model, she adequately challenged the school district's contention that she and the hired applicant were in the same protected class by drawing "arguably critical distinctions between their disabilities."

In any event, the court added, even if she hadn't done so, under a 1999 U.S. Court of Appeals for the Third Circuit holding, the fact that the hired applicant also is deaf did not "per se invalidate"  Golembeski's claim.

The decision raises interesting questions about the limits and nuances of an employer's obligations under the ADA.

For example, are employers only required to consider the extent of applicants' respective disabilities when the medical condition that afflicts them is the same, or are they also obligated to make comparisons and draw "critical distinctions" when applicants are afflicted by disabilities of a different nature?

Also, what level of medical evidence is an employer required to collect before comparing disabilities, and from which sources may such medical evidence be gathered, i.e., from independent sources alone or from the applicants' doctors as well?

Moreover, who should bear the expense of any necessary independent medical analyses?

The Golembeski case may be worth watching to see if these and related questions are addressed by the court.

Other recent EEO developments include:

• The U.S. Supreme Court agreed to consider whether the Age Discrimination in Employment Act precludes state employees from suing for age bias under the U.S. Constitution's equal protection clause.

• A federal district court in Ohio decided that the Equal Employment Opportunity Commission can seek relief under Title VII of the 1964 Civil Rights Act on behalf of a claimant who failed to disclose her potential bias claim during personal bankruptcy proceedings.

• The U.S. District Court for the Northern District of Georgia held that job seekers are not permitted to bring disparate impact failure-to-hire claims under the Age Discrimination in Employment Act.