Discrimination in Hiring and the Americans with Disability Act
The Americans with Disability Act (ADA) can be one of the most difficult areas of the law for employers to understand, but it's essential that they do so in order to avoid discrimination in hiring. Jobs usually have specific duties than need to be performed, and the entire point of hiring someone is to find the person who is best able to perform those duties. The ADA, however, significantly limits what you can and can't ask an applicant about their physical abilities. In order to avoid practicing discrimination in hiring, first figure out what kind of employment practices the ADA covers and whether your specific business is covered by the ADA. Next, learn how to avoid charges of discrimination by safely and legally inquiring about a job applicant's ability to perform the job.
Employers and Practices Covered by the ADA
The ADA applies to private employers, state and local governments, employment agencies, and labor unions who have 15 or more employees. The ADA applies to all employment-related practices including:
- job applications, recruitment, advertising
- hiring, firing, layoffs
- advancement, tenure, and compensation
- training, leave, fringe benefits, and all other employment-related activities
How to Safely Inquire about an Applicant's Ability
Whenever you are designing questions on an application or during an interview, keep this simple rule in mind: you can ask about an applicant's ability to do the job, but you cannot ask about any specific disability. For example, here are two different questions that both get to the same point, but one is likely in violation of the ADA while the other is probably perfectly alright.
Incorrect: "do you think your physical disability would prevent you from lifting this heavy object?"
Correct: "how would you go about lifting this heavy object?"
The first, incorrect, question asks about a perceived disability and likely would run afoul of the ADA. The second question simply asks the candidate how he or she would go about performing a specific task. The key point is that the second question asks the applicant about his or her ability, which is always legal, and does not even mention any possible disability. Asking applicants about their abilities (rather than disabilities) also naturally lets them talk about their strengths and qualifications for the job, which is the point of the interview.
Be Consistent When Questioning an Applicant's Ability
It is also crucial that you be consistent with your questions. If you ask a potentially disabled person about their ability to perform job-specific tasks, but never asked other candidates, you may still be violating the ADA. Even if the question itself was perfectly legal, as above, the ADA looks past the question itself to see whether you're applying an otherwise legal question in a discriminatory fashion.
Inquiring About "Accommodations" for Disabled Applicants
Another tricky subject when it comes to dealing with potentially disabled applicants is whether you can ask an applicant if he or she needs and special "accommodations". Fortunately, the rule is fairly straightforward:
- If there is no reason to believe that the applicant is disabled, you cannot ask whether the applicant needs any special accommodation (special equipment or help).
- If there is a reason to believe that the applicant is disabled, because it's obvious (e.g., the applicant came in a wheel chair) or because the applicant told you about a disability, then you can ask whether the applicant needs any special accommodation.
Employers are Free to Hire the Most Qualified Applicant
Employers can often misread the ADA's anti-discriminatory intentions as requiring them to give people with disabilities special treatment. The ADA does not require an employer to give any preferential consideration to a disabled applicant over other qualified applicants. An employer is free to select the most qualified applicant available. The key point to remember is that the ADA is trying to ensure that such a decision is based on sound, business-related reasons and not on a person's disability.
Example Questions Provided by the Equal Employment Opportunity Commission
Finally, the Equal Employment Opportunity Commission (EEOC) has offered a number of example questions that you can and cannot ask in an interview.
You should never ask:
- Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various diseases or conditions.)
- List any conditions or diseases for which you have been treated in the past three years.
- Have you ever been hospitalized? If so, for what condition?
- Have you ever been treated by a psychologist or psychiatrist? If so, for what?
- Have you ever been treated for any mental condition?
- Do you suffer from any health-related condition that might prevent you from performing this job?
- Have you had any major illnesses in the past five years?
- How many days were you absent from work because of illness last year? (You may, however, tell the applicant what your attendance requirements are and then ask whether he or she will be able to meet those requirements.)
- Do you have any physical defects that preclude you from doing certain types of things?
- Do you have any disabilities or impairments that might affect your ability to do the job?
- Are you taking any prescribed drugs?
- Have you ever been treated for drug addiction or alcoholism?
- Have you ever filed a worker's compensation claim?
You can ask:
- Can you perform all of the job functions?
- How would you perform the job functions?
- Can you meet my attendance requirements?
- What are your professional certifications and licenses?
- Do you currently use illegal drugs?