The Americans with Disabilities Act is a federal law which provides protection for those with legally defined disabilities against employment discrimination in the workplace. An employer may not discriminate against an employee or potential employee based on their membership in a protected class (such as disability).

The act protects employees and potential employees from discriminatory action in all aspects of the work environment, so it includes protection not only on the job, but in the hiring process, as well. And, of course, it makes it illegal to fire someone for discriminatory reasons.

This may affect an employer’s hiring process. There are certain things employers cannot ask prospective employees because it would show discriminatory practices. However, employees are entitled to ask whether the prospective employee can perform the essential functions of the job, with or without reasonable accommodations under the ADA.

What is Considered a Disability Under the ADA?

A disability substantially limits a major life activity, such as walking, or feeding or dressing oneself. It may be a physical or mental disability. In some cases, an employee’s condition will have to be evaluated as to whether they meet this legal standard. However, there are numerous conditions, such as cancer, autism and cerebral palsy that are generally accepted as disabilities.

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How Do I Stay in Compliance with the ADA?

As a general rule, asking pointed questions regarding an individual’s disability or perceived disability is not permissible. However, you may ask about their abilities-specifically, their abilities to perform the major functions of the job.

An employer is required to make reasonable accommodation to an employee’s known disability. An accommodation that is reasonable is one that an employer can make without undue hardship, and includes changes to an employee’s job (a schedule change, for example) or work environment (for example, providing equipment or devices that help the employee do their job).

It becomes trickier if the employee or potential employee has not made their disability known, but it is still discriminatory to inquire specifically about any perceived disability. The following are some example of questions that could be construed as discriminatory by a potential employee:

  • 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 ever 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?

What are Some Examples of Permissible Questions?

As mentioned above, you may ask job applicants questions as to their abilities to perform the essential functions of the job, and you may inquire as to how they would perform those functions. If the position requires that they are able to lift/carry 30 lbs, then you can ask if they are able to do that. Instead of asking if their perceived/apparent disability will prevent them from lifting 30 lbs. For example:

  • Acceptable: asking an applicant in a wheelchair if they are able to lift and carry 30 lbs
  • Potentially Discriminatory: asking an applicant in a wheelchair how they can possibly carry and lift 30 lbs, and assuming that they are unable to due to the fact they use a wheelchair.

You are also allowed to inquire about any illegal drug use.

Do I Need a Lawyer to Ensure that I am ADA-Compliant?

The ADA can be confusing if you are unfamiliar with it, and there may also be laws in your state that affect employment practices. A local 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.