Job Interviews: Do You Know This Tricky ADA Rule?

Pop quiz about job interviews: If an applicant will need an accommodation to do the job, do they have to tell you so during their interview?

The answer is no, as a new suit filed by the Equal Employment Opportunity Commission (EEOC) about job interviews shows.

In the suit, the agency says an employer illegally discriminated against an employee because the employee did not disclose their need for a job-related accommodation during the interview process.

The problem: The law does not require applicants to make such a disclosure at that time – and prohibits employers from punishing them for not doing so.

Suit raises job interviews question

The target of the suit is All Day Medical Care Clinic, LLC, which operates five medical clinics in Maryland.

During the interview process, the applicant did not say anything about a need for job accommodations related to her visual impairments, the EEOC explained.

After the decision was made to hire her as a scheduling assistant, she told the employer about her vision impairments and her need for disability-related job accommodation.

The employer’s response, according to the suit, was to terminate her employment on her first day of work.

The EEOC also says that the employer questioned why the applicant/employee did not tell it about her need for accommodation earlier, such as during job interviews.

After the termination, the employer also allegedly ignored the woman’s request to keep the job and even rebuffed a vocational representative’s offer to fund and install the required accommodations.

If the allegations are true, the employer violated the Americans with Disabilities Act (ADA).

Disability inquiry rules under ADA

When it comes to job interviews, as a general rule the ADA bans covered employers from asking an applicant disability-related questions before a job offer is made. In addition, employers cannot terminate employees just because they need a disability-related accommodation.

“Under the ADA, job applicants do not need to reveal their disabilities before being hired,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office, in a release. “When an employer penalizes an employee for not raising issues of disability and reasonable accommodation during the job interview, it is requiring the employee to reveal information the employee legally does not have to divulge. An employer must engage in the interactive process when an employee raises issues of reasonable accommodation.”

Here’s the scoop on disability-related inquiries and the ADA.

• As to job interviews, before a job offer is made, questions about disability are generally off the table.
• Once a job offer has been extended, including after job interviews, the employer may ask disability-related questions and conduct medical examinations, as long as it does so for all entering employees who are in the same job category.
• For current employees, disability-related inquiries are permitted if they are job-related and consistent with business necessity. This means they are allowed if the employer has a reasonable belief – not based on stereotypes – that an employee’s medical condition will prevent him from competently and safely doing the job.

It gets a little tricky with ADA

On the question of what is allowed and what is not during job interviews – and before a job offer is made – there is an interesting wrinkle that all employers should be aware of.

Just consider this question and answer, drawn verbatim from an EEOC technical assistance document (emphasis added):

15. May an employer ask applicants on an application form or during an interview whether they will need reasonable accommodation to perform the job?

Generally, no. An employer cannot ask all applicants whether they would need reasonable accommodation to perform a job because the answer to this question is likely to reveal whether an applicant has a disability.

However, if the employer knows that an applicant has a disability, and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task, then the employer may ask whether she would need reasonable accommodation to perform that task. An employer might know that an applicant has a disability because it is obvious or she has voluntarily revealed the existence of one. If the applicant indicates that accommodation will be necessary, then the employer may ask what accommodation is needed.

This means, then, that there are times when an employer may ask about job accommodation early on in the process. But employers must be extremely careful in this regard and make sure it is reasonable to pose the accommodation question.

Accommodations for interviews are different

One final note: Don’t confuse asking about accommodations needed to do the job with accommodations that might be needed to complete the interview process.

Those are two very different things, and the EEOC has advised that employers are free to ask applicants whether they will need a reasonable accommodation in connection with the application process.