The ADA On Hiring: Give The Disabled A Fair Chance

03/05/07

You advertise a graphic arts position and an applicant comes in for an interview with her brother, who’s there to translate your questions for her into sign language.

You end the interview before it begins, because you feel you can’t hire a hearing impaired person for the position. She’d need to interact by phone or in person with clients often, and you know you can’t afford to hire a full-time interpreter to shadow her every move.

If you’re covered by the ADA, Americans With Disabilities Act, you just broke the law.

As the EEOC (Equal Employment Opportunity Commission) points out, “Individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates that it will be unable to provide the individual with reasonable accommodation to perform the job.”

The ADA Covers the Entire Hiring Process
The ADA covers most employers with fifteen or more employees. Its protections extend to the entire hiring process, according to human resources consultant Paul Toth of HR Resolution in Huntington, Vermont.

As a result, you may need to accommodate a disabled applicant, unless doing so would be a significant hardship for you. “You might have to provide an alternative format for the application or assistance in filling it out,” says Toth. “You might have to be a little flexible in the timing of interviews, making sure that the interview site is accessible, or allowing for someone to sign for the person interviewed.”

What if it’s clear that an applicant wouldn’t be able to do the job? “One of the biggest mistakes an employer can make is assuming that a person can’t do a job. Another problem is that some employers assume they know what a person with disabilities can or cannot do, or that they know what is best for them, says Toth.” Either sentiment can lead to unlawful discrimination.

In the opening example, the employer assumes that contact with clients must be over the phone or in person, probably because that’s how it has always been done. But would e-mail suffice? Could she hear with an amplified telephone? “To assume that the only way to do a job is the way it is currently done,” maintains Toth, “is not only a poor management decision, it can also lead to legitimate complaints of discrimination.”

Interviewing: Legal And Illegal Questions
It is important to keep interviews focused on the job and the applicant’s ability to perform it.

You cannot, for example, ask whether an applicant has a disability, either on an application form or in an interview. You can’t ask about the use of medications, how a person became disabled, or anything about the applicant’s history with workers’ compensation.

You can, however, ask whether an applicant can perform the essential functions of a job. And the rules are relaxed somewhat if the disability is obvious. Say a man in a wheelchair applies for a warehouse job that involves carrying and lifting boxes. You can ask how he would perform an essential task and even request a demonstration. In that case, you may also ask forthrightly whether he will need an accommodation to perform the job.

But don’t play games with such questions, Toth cautions. “The simple rule of thumb is that you should ask only job-related questions during screening. You should never ask questions designed to get applicants to reveal information about any disability they may have.”

How to Ask Questions
“Often, I find that employers have a legitimate job-related issue or concern but ask the question in an inappropriate or illegal way, says Toth.” He points to a hypothetical small business that has strict sick-leave policies because of its small staff. The owner might ask, “How many sick days did you take off last year?” That’s a forbidden question under the ADA.

Instead, advises Toth, “Ask the question this way: ‘We allow no more than six unplanned absences in any twelve-month period. Would you be able to comply with this attendance rule if employed here?”

The problem is that inappropriately worded questions could suggest to applicants that you’re trying to find out about the nature or extent of a disability. An applicant then might wonder if you’re going to use the information against him or her in the hiring process. And the applicant doesn’t get the job, he or she may head straight to a lawyer or the EEOC.

“Your main concern,” concludes Toth, “should not be, ‘Is this person disabled?’ but, ‘Can this person do the job?’ It’s as simple as that.

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