70 West Madison St.
Chicago, Illinois 60602
and the Job Interview
Americans With Disabilities Act of 1990 (the "ADA")
generally prohibits discrimination against any "qualified
individual with a disability" in the workplace.
Covered employers include those with 15 or more employees for
each working day in each of 20 or more calendar weeks in the current
or preceding calendar year. Covered
employers are not allowed to discriminate in regard to job
applications and hiring as well as other aspects of employment such
as advancement, discharge, compensation and training.
qualified individuals with disabilities must be provided
"reasonable accommodation" by their employers to the
extent such accommodation is required to allow the disabled employee
to perform the essential functions of the job.
"Reasonable accommodation" may include modification
of the employer's physical facilities or equipment (example:
lower a control panel to permit a worker in a wheelchair to
operate a machine), job restructuring (example:
incidental typing, which is not an essential job function for
a file clerk with cerebral palsy, is assigned to another employee)
or providing personal assistance for employees with disabilities
readers for workers with impaired vision).
"Reasonable accommodation" does not include any
accommodation that for financial or other reasons would impose an
"undue hardship" on the employer.
The exact meaning of these terms (reasonable accommodation
and undue hardship) is not spelled out in the statute.
The Equal Employment Opportunity Commission ("EEOC"),
the agency charged with providing guidelines for ADA compliance and
enforcing the penalty provisions of the statute, envisions an
informal discussion between employer and disabled employee to
determine an appropriate "reasonable accommodation."
At the same time, the employer is prohibited by the ADA from
asking certain questions about an employee's physical and mental
limitations. For many
employers, ADA compliance is particularly troublesome in the
application and hiring process, where concerns relating to an
applicant with an obvious disability will arise.
How can an employer deal with disabled applicants without at
the same time violating specific ADA prohibitions?
assist employers, the EEOC has recently issued "Enforcement
Guidance on Pre-Employment Inquiries under the ADA" that
specifies how employers are supposed to deal with the requirements
of the ADA during the hiring process.
Generally, employers can ask about an applicant's ability to
perform specific job functions, but until an applicant has been
given a job offer, no disability-related questions can be asked.
Consequently, an employer may make the following
inquiries of a job applicant:
employer can ask if the applicant can satisfy certain physical
requirements for the job, such as the ability to lift a certain
amount of weight or the ability to climb ladders.
can ask about qualifications for the job, such as education,
work history and required certificates and licenses.
can also request applicants to demonstrate how they would
perform certain job functions.
an applicant has an obvious disability that affects his ability
to perform job functions (for example, the applicant uses a
wheelchair) or the applicant voluntarily discloses a disability
during the hiring process, the employer may then ask if the
applicant needs reasonable accommodation to perform the job.
If the answer is "yes," the employer may then
ask about the type of accommodation that may be required, but not
the underlying physical condition.
If the answer is "no," then no further inquiry
can be made.
employer may ask an applicant whether the applicant can meet the
employer's attendance requirements, and may ask about the
applicant's prior attendance record (for example, how many days
was the applicant absent during the applicant's last job).
An employer may not ask how many days the
applicant was "sick."
employer can ask an applicant about current illegal drug
use (not an ADA disability), but generally cannot ask about lawful
(prescription) drug use, which may relate to a disability.
employer can ask about prior illegal drug use to solicit
information about "casual" drug use (not an ADA
disability) but cannot inquire about past addiction to
illegal drugs or controlled substances (an ADA disability that
employer can ask an applicant about drinking habits so long as
the questions do not request information about alcoholism, a
protected ADA disability. For
example, an employer can ask if the applicant drinks alcohol, or
whether the applicant has ever been arrested for driving under
the influence. The
employer cannot ask how much the applicant drinks or
whether the applicant is an alcoholic or has been treated for
employer may give psychological examinations to applicants (for
example, to measure an applicant's honesty), but examinations
that tend to identify medical disorders or impairments (for
example, anxiety or depression) are prohibited.
EEOC's enforcement guidance states that the following inquiries
generally may not be addressed to job applicants:
employer should not ask an applicant if the applicant has
a particular disease or condition, such as AIDS.
In addition, employers should not ask a question that
might disclose information about disabilities unless it relates
to an essential job function (example:
Do not ask whether an applicant has a driver's license
for general information purposes.
Ask that question only if driving is an essential job
employer should not ask an applicant about prescription
employer should not ask an applicant if the applicant
needs reasonable accommodation to perform a job.
the applicant's disability is apparent or voluntarily disclosed.
employer should not ask an applicant about the
applicant's workers' compensation history.
employer should not ask about an applicant's
"addiction" to drugs.
employer should not ask if an applicant is an
employer should not ask how many days an applicant was
employer should not ask if an applicant has ever been
treated for mental health problems.
finally, an employer may not ask third parties (for example, former
employers or state agencies) for any information about an applicant
that cannot be requested directly from the applicant.
should carefully consider the EEOC enforcement guidance.
Employment application forms should be reviewed to remove or reword
impermissible questions. Job interviews should be conducted in
compliance with the enforcement guidance, which may require briefing
supervisors and other employees who conduct those interviews.
Finally, the EEOC enforcement guidance covers other matters (for
example, medical examinations) which may be a part of the job
application process. The above summary does not address these
and other matters that may have to be considered with respect to any
Golan & Christie LLP
70 West Madison St.
Chicago, Illinois 60602