The Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified individuals with disabilities as to job applications and hiring. Employers subject to the ADA include those with 15 or more employees for each working day in each of 20 or more calendar weeks in a calendar year.
What does this mean for your organization and its hiring process?
ADA guidance generally allows a covered employer to ask a job applicant about general physical requirements for the job (can you lift 25 pounds or climb a ladder?), but cannot inquire as to disabilities until after the applicant has been extended a job offer. If the applicant voluntarily discloses a disability during the hiring process, then you can discuss a “reasonable accommodation” to permit the candidate to perform the essential duties of the job, but not the disability itself. Here’s a real life example of how the hiring process can run afoul of ADA requirements:
A blind applicant for a customer service representative job was told it would not do him any good to put in an application because the company was not set up to handle blind people. After he filed his EEOC charge, the company called the applicant for an interview, but gave him a braille test that had three times as many questions as the written test given to sighted applicants. The applicant had been trained to perform customer service jobs with the aid of screen-reading technology (JAWS), which translates text into speech. The company, however, never attempted to install the technology and did not consider whether other accommodations could be made that would enable the applicant to do the job.
The jury in the above case returned a judgment against the company for back pay, compensatory damages, and $300,000.00 in punitive damages (see EEOC v. EchoStar Communications Corp., a 2005 decision).
But is there a right and a wrong way to elicit relevant information about job applicants? Consider the following examples as “dos and don’ts” for your job applications and interviews:
- You can ask whether or not an applicant can meet the employer’s attendance policy and you can ask about an applicant’s prior attendance record. But be careful because you may not ask about the applicant’s workers’ compensation history or how many days the applicant has been “sick.”
- You can ask about current or past illegal drug use, which is not an ADA disability. But make sure you limit the inquiry to illegal drugs because asking about the legal use of prescription drugs is a no-no because that may amount to an inquiry about a disability. In either case, do not ask about a drug addiction because drug addiction (legal or illegal) is an ADA disability.
- You may ask an applicant if they consume alcohol or whether they have ever been arrested for driving while intoxicated. You cannot ask about how much an applicant drinks or whether the applicant is or has been an alcoholic (again, that is an ADA disability).
- Do not ask general questions that may be associated with a disability unless the questions relate to a specific job requirement. Example: do not ask whether an applicant has a driver’s license for general information purposes because the answer might disclose information about a disability. Ask that question only if an ability to drive is an essential job function.
- You can discuss reasonable accommodations required by a qualified individual with a disability before extending an offer of employment but only if the applicant raises that issue or the applicant has an obvious disability that could affect the applicant’s ability to perform the job (for example, the applicant uses a wheelchair and the posted job entails climbing a ladder).
Takeaways:
Your HR staff, managers and any other employee who is routinely involved in the employment “intake” process need to be familiar with the ADA rules. Also, bear in mind that questions you cannot ask in a job interview also cannot appear on your job application form!
The ADA is just one statute that applies to the employment process. Other protective statutes, federal, state and local, also may apply and present additional compliance challenges. It’s better to be safe than sorry, so always talk to a qualified professional if you have questions about a particular employment or pre-employment situation.