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ADA
and the Job Interview
The
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. Generally,
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
(example: assigned
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? To
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:
The
EEOC's enforcement guidance states that the following inquiries
generally may not be addressed to job applicants:
And
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. Employers
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
particular applicant.
Andrew
S. Williams
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