ADA: Title I: Compliance
What can you ask about disability during the hiring process
According to the EEOC, the ADA does not allow employers to ask questions that are likely to reveal the existence of a disability before making a job offer. During the hiring process, the only question an employer can ask a prospective employee is “can you perform the essential functions of the job with or without a reasonable accommodation?” This is a closed ended, yes-or-no question.
Disclosing a disability
When a person with a disability tells their employer that they have a disability or medical condition, they are disclosing their disability. It is important to note that a person with a disability can disclose their disability at any point in the employment process. Importantly, people with disabilities are under no obligation to disclose their disability to an employer or prospective employer. The ADA specifically limits an employer̥s ability to ask questions that are likely to uncover information related to disability (or to make disability related inquiries) at three stages
- Pre-offer: No disability questions are permitted at this stage. Ask only questions you ask of all applicants. Focus on the person̥s qualifications and the ability to perform the essential functions of the job.
- Post-offer: According to the EEOC, "once a conditional job offer is made, the employer can ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category."
- During Employment: Any disability-related inquiries that are made after someone is employed must be "job-related and consistent with business necessity."
In some cases, when a person chooses to disclose, they may just be sharing information about themselves. Often, people choose not to disclose until they need to do something differently on the job. In order for a person with a disability to receive a reasonable accommodation, they must disclose their disability to an employer. Disclosure sometimes initiates the reasonable accommodation process by the employer or prospective employer as it lets the employer know the reason why a reasonable accommodation is necessary.
Disclosing a disability is a personal decision. This decision is informed both the environment established by the employer and the individuals level of comfort within the employer environment. Medical information should always be kept confidential.
Employers covered by the ADA
According to the EEOC, many types of employers have an obligation not to discriminate against people with disabilities. Employers who have 15 or more employees must comply with the regulations laid out in Title I. Covered employers include:
- Private employers
- State and local governments
- Employment agencies
- Labor organizations
- Labor management committees.
The EEOC includes "agents" of an employer in the definition of employer. Agents of the employer act on behalf of the employer. They include managers, supervisors, foreman, or others who act for the employer. This might include outside organizations who support hiring or manage employer benefit programs. The employer is responsible for the actions of their agents who violate the law.
Equal opportunity versus affirmative action: What's the difference?
Equal opportunity is the idea that all people, regardless of their diversity characteristic, should be given an equal opportunity to succeed. The ADA is an equal opportunity law. Title I explicit prohibits employers "from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment." There are many other laws that support non-discrimination including Title VII of the Civil Rights Act, the Genetic Information Non-Discrimination Act, and the Pregnancy Discrimination Act. The binding characteristic of these non-discrimination laws is preventing discrimination based on one or more protected characteristics of a person.
Affirmative Action is different. Not only does it require non-discrimination, it also requires employers to pro-actively plan to engage members of protected classes in their workforce. The Rehabilitation Act provides us with a good example of affirmative action laws that impact applicants and employees with disabilities. The most recent regulations that have been released regarding the Rehabilitation Act align the non-discrimination requirements in the ADA with the Sections 501 (which applies to federal employers) and Section 503 (which applies to federal contractors) of the Rehabilitation Act. However, the regulations go further to require affirmative action planning by the impacted employers. Both laws set targets for including people with disabilities in the workforce. They ask that covered entities affirmatively recruit, hire, place and advance people with disabilities. An affirmative action plan is used to describe how each covered entity will achieve their goals.
Reasonable accommodation for job applicants
The ADA protects both job applicants and employees with disabilities. During the application process, employers cannot discriminate against qualified applicants with disabilities.
Applicants have a right to request a reasonable accommodation to participate in the interview process. Employers cannot refuse to hire someone because of their disability or their need for a reasonable accommodation. There are many things that employers can offer to ensure that the interview process is accessible. The EEOC offers the following examples:
- Providing written materials in accessible formats
- Providing readers or sign language interpreters
- Ensuring that all portions of recruitment and interview process are completed in accessible locations
- Providing or modifying equipment or devices
- Adjusting or modifying application policies and procedures.
In addition, employers are required to allow for extra time or an alternative format in testing if a test is required as part of the application or interview process. Employers do not have to provide accommodations that would cause an undue hardship. It will be important, however, to look for an alternative accommodation that is both reasonable and effective for the applicant.
Employment practices covered by the ADA
The ADA prohibits discrimination against qualified individuals with disabilities in all employment practices. These include the following:
- Job assignments
- All other employment related activities.
The ADA also protects applicants and employees with disabilities from retaliation for asserting their rights under the ADA.