The American Disabilities Act (ADA) prohibits various types of questions of job applicants. Any inquiries on job applications or in interviews regarding an applicant’s health or disabilities are illegal under the ADA, as well as other laws.
Prior to recruiting, the employer needs to determine the Essential Job Functions (EJF). When determining the EJFs you must ask yourself if each of the facets of the position are fundamental or integral to the job, MUST be done on a regular basis or on a rare occasion, or can this function be moved to another position without having a critical impact on this job, and the degree of expertise or skill needed to perform the function.
Pre-employment tests that measure such things as sensory, manual, or speaking skills are permitted under the ADA if the skill being tested is necessary to perform the EJF’s, meaning that the test is job-related, and if the tests have been validated to ensure that they measure what they purport to measure. If you are using un-validated skills tests, you are opening yourself to liability for discrimination.
The results of such tests may not be used to screen-out individuals with disabilities. Pre-employment tests should be administered with reasonable accommodations for those applicants who request accommodation.
The ADA prohibits pre-employment inquiries about disabilities, whether overt, hidden, or assumed
There are certain questions that are regarded as disability-related, and therefore illegal to ask in a job interview or solicit in background and reference checks:
- About physical impairments like scars, burns, or missing limbs.
- If he or she has a disability, for how long, the nature or severity of it, or how it occurred.
- About mental or physical impairments unless the applicant has disclosed it and the discussion is limited to determining if the person can perform the EJF’s, with or without reasonable accommodation.
- If ever been injured on the job.
- How many days sick last year.
- Been addicted, in counseling or treated for drugs or alcohol abuse.
- Been treated for any other disease, medical condition, or disability, or on any medications.
- Been in counseling or received psychiatric care, history of filing workers’ compensation claims.
- Whether there is any health-related reason the applicant may not be able to perform the job.
DO NOT assume that an applicant cannot do the job because of an apparent disability.
The applicant may be able to perform the essential functions of the job with or without reasonable accommodation. See next month’s Challenge or contact Bonnie Royster, SmartSource Hiring System Manager at Your People Professionals 805.928.5725 for Part II Interviewing Do’s to Comply with the ADA.