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It is important to understand that the ADA is not an Affirmative Action statute; therefore, it is not intended to make up for past discrimination. Rather, the ADA simply serves to level the playing field for people with disabilities. Employers are not required to hire someone just because she/he has a disability, and they are not required to fill any quotas. In fact, employers don’t even have to consider anyone for a position unless they can fulfill the “essential job functions” with or without accommodations. Essential job functions are defined by the ADA as core responsibilities, or those activities that are intrinsic to the job. Employers, therefore, should consider a person with a disability just as they would a person without a disability - will this person be able to do the job for which she/he is applying?
Application Process Employers need to take caution during the candidate screening process to avoid any illegal practices with respect to the ADA. For instance, an application process that is especially difficult for people with disabilities is considered unfair and illegal, unless an accommodation is provided that allows the individual to complete the process. It is legal and appropriate for an employer to tell applicants what the hiring process involves (for example, an interview, timed written test, or job demonstration), and ask applicants whether they will need a reasonable accommodation for this process. This question must be asked of all candidates. If the need for accommodation is not obvious, an employer may ask an applicant for documentation about his/her disability. The employer is entitled to know that the applicant has a covered disability for which she/he needs an accommodation. Pre-employment Exams Employers must provide reasonable accommodations for people with disabilities to complete pre-employment exams. Such pre-employment exams must relate to an essential job function, and must actually measure skill, rather than a disability. If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is "job-related and consistent with business necessity” (EEOC). Because job candidates have to disclose a hidden disability prior to getting a job in order to receive accommodations on pre-employment exams, those who choose not to disclose and take the exam without accommodations may do poorly. Employers should therefore carefully consider the implications of using pre-employment exams and ensure that they actually relate to the essential job functions. Interviewing The ADA strictly limits the circumstances under which employers may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition. The employer may ask a wide range of questions designed to determine an applicant's qualifications for a job, but may not directly ask about the existence, nature or severity of a disability during an interview, unless previously disclosed by the candidate. They can, however, inquire about the applicant’s ability to perform specific job functions that may be related to a disability, including reliability, anxiousness, reading and learning. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs. |
| Illegal Questions - examples | Legal Alternatives |
|---|---|
| Do you have a disability? Have you ever been hospitalized? If so, for what condition? Have you ever been treated for a mental condition? Have you had a major illness in the last 5 years? How many days were you absent from work because of illness last year? Are you currently taking any medications? |
Are you able to perform the essential functions of this job? (The interviewer must have already thoroughly described the job.) Can you demonstrate how you would perform the following job-related functions?" (Pre-employment questions about illness may not be asked because they may reveal the existence of a disability. However, an employer may provide information on its attendance requirements and ask if an applicant will be able to meet these requirements.) |
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Post Job Offer After the job offer has been made, the employer may ask disability-related questions and conduct medical examinations as long as you do this for everybody in the same job category. The employer may withdraw the offer if it is discovered that the applicant cannot perform the essential functions of the job, or that the individual would pose a direct threat to the health or safety of self or others; however, consider whether any reasonable accommodation(s) would enable the individual to perform the job's essential functions and/or would reduce any safety risk the individual might pose. In addition, if the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation. Confidentiality With limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information is considered confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. |