The Americans with Disabilities Act (ADA) is probably one of the most confusing employment discrimination laws that employers have to deal with. This is especially true in the hiring context. The dilemma is that, as an employer, you want to be sure that a prospective employee can perform all the functions of the job, but at the same time you don’t want to violate the law by asking or requiring things you’re not allowed to.
A General Rule for Complying with the ADA
A very general rule that will get you through most situations is that you are only allowed to ask about an applicant’s abilities and not his/her disabilities. So, you’re allowed to ask an applicant how s/he would perform the job functions, but you’re not allowed to ask whether the applicant has any disabilities that would prevent her/him from performing the job.
Other Rules about What You Can and Cannot Ask an Applicant- You cannot ask an applicant if s/he has a disability that will require reasonable accommodation if you don’t have any reason to believe the applicant has a disability
- But, if you have reason to believe the applicant has a disability, you can ask if any reasonable accommodations will be necessary
As an Employer, What Types of Questions Am I Not Allowed to Ask Applicants Concerning Disabilities?
Under the ADA, there are many questions that are not permissible. Below are some examples of things you cannot ask applicants during the hiring process:- You should never ask (or require) applicants to fill out a checklist of conditions or diseases they have had.
- Have you ever been hospitalized and if so for what?
- Have you ever been treated for a mental condition?
- Do you have any disabilities or physical conditions that might prevent you from performing the essential functions of this job?
- How many days did you miss work due to illness during your last year of employment?
- Have you even received treatment for alcoholism or drug addiction?
- Have you ever received treatment from a psychologist or psychiatrist and if so for what?
- Are you currently taking any prescribed drugs?
If There are So Many Things I Can’t Ask, What Can I Ask?
While the ADA limits the types of questions you can ask during a job interview or in the hiring process, you are still entitled to ask certain questions and gain some knowledge about the applicant. For example, it is appropriate to ask questions similar to the following:- Can you perform all the functions of this job?
- How would you perform the functions of this job? (If you ask this question, it is best to ask all applicants the same question).
- Do you use illegal drugs?
- Are you capable of meeting the attendance requirements of this job?
I’m Having Trouble with the ADA, Do I Need a Lawyer?
The ADA is highly complicated, like most other employment discrimination laws. There may be state laws that go beyond the ADA as well. An experienced employment lawyer will be able to help you understand the law and help you develop an appropriate interview process. Also, if an ADA discrimination case is brought against you a lawyer can represent you in court. |
 |
