Interviewing and The ADA: Questionable Questions

08/25/08

You know you’re not supposed to ask whether a job applicant has children or what country she was born in. But say you’re hiring for a warehouse position. Can’t you ask a reasonable question like, “Have you ever had any back problems?”

Nope. The Americans with Disabilities Act prohibits any such questions or medical exams at the interviewing stage. “The ADA,” says attorney Richard D. Tuschman, “protects employees’ privacy concerns and [is] very specific in [its] requirements. Failure to comply may subject an employer to an expensive, time consuming lawsuit.”

Questions You Can’t Ask
Tuschman, a partner with Baker & McKenzie in Miami, elaborates on the interview questions that can land you in hot water:

“Don’t ask about current or past disabilities, or about any conditions or diseases for which they have been treated, including back problems or mental illness.”

“Don’t ask whether an applicant has ever requested or needed assistance in performing past jobs.”

“Don’t ask whether the applicant has any disabilities or impairments that may affect performance in the position.”

It may be difficult to understand the logic behind these recommendations, since the questions may be directly relevant to the job you have open. Yet the ADA wisely encourages employers to concentrate on the two most important things: (a) the essential functions of the job and (b) whether an employee can perform them with or without an accommodation that would make a disability irrelevant.

You may therefore ask the applicant, says Tuschman, if he or she can perform the main tasks in a job. You can even ask for a demonstration as to how a particular task (like lifting a box overhead) might be accomplished.

Note: The prohibition against asking disability related questions extends to asking others as well, like the applicant’s current or former coworkers, family members, or doctors.

Alcohol and Drugs: Sticky Points
Tuschman says you can also ask applicants about their current use of alcohol or illegal drugs. But don’t ask about the past use of either, because alcoholism and rehabilitation for drug addiction can be considered disabilities.

What’s more, tests for illegal drugs are not considered to be medical exams. You can feel free to require applicants to take one for a particular job.

Forbidden Territory: Past Injuries
Tuschman also advises against asking about past on-the-job injuries or workers’ comp history in the interview.

Again, the danger lies in presuming a person can’t do a job based on a medical history that reveals a disability a clear violation of the ADA.

Relief Comes with an Offer
Once you’ve made a conditional offer of employment, you can take steps to ensure the applicant can perform the essential functions of the job. For example, you can require a medical exam and ask disability-related questions (even about disabilities not related to the job) but only as long as you require the same exam and ask the same questions of anyone in that job category. Once the person is actually on the payroll, you may require medical exams and ask disability-related questions only if they relate to the job and are “consistent with business necessity.”