Title I - Non-discrimination in the Hiring Process
Portions of Title I of the ADA cover non-discrimination
requirements in the recruitment, application process, including
pre-employment inquiries, testing, etc.
It is advisable that job announcements, advertisements, and other
recruitment notices include information on the essential functions
of the job. Specific information about essential functions will
attract applicants, including individuals with disabilities, who
have appropriate qualifications.
Information about job openings should be accessible to people
with different disabilities. An employer is not obligated to provide
written information in various formats in advance, but should make
it available in an accessible format on request.
When an employer uses an employment agency to recruit, screen,
and refer potential employees, both the employer and the employment
agency may be liable if there is any violation of ADA requirements.
The ADA prohibits any pre-employment inquiries about a
disability. This prohibition is necessary to assure that qualified
candidates are not screened out because of their disability before
their actual ability to do a job is evaluated.
The prohibition on pre-employment inquiries about disability does
not prevent an employer from obtaining necessary information
regarding an applicant’s qualifications, including medical
information necessary to assess qualifications and assure health and
safety on the job.
The ADA requires only that such inquiries be made in two separate
stages of the hiring process.
- Before making a job offer. At this stage, an employer
may ask questions about an applicant’s ability to perform specific
job functions; may not make an inquiry about a disability; may
make a job offer that is conditioned on satisfactory results of a
post- offer medical examination or inquiry.
- After making a conditional job offer and before an
individual starts work. At this stage, an employer may conduct
a medical examination or ask health-related questions, providing
that all candidates who receive a conditional job offer in the
same job category are required to take the same examination and/or
respond to the same inquiries.
What are the basic requirements regarding pre-offer inquiries or
interviews?
An employer may not make any pre-employment inquiry about a
disability, or about the nature or severity of a disability
- on application forms
- in job interviews
- in background or reference checks.
An employer may not make any medical inquiry or conduct any
medical examination prior to making a conditional offer of
employment.
An employer may ask a job applicant questions about ability to
perform specific job functions, tasks, or duties, as long as these
questions are not phrased in terms of a disability. Questions need
not be limited to the "essential" functions of the job. Questions
may be asked regarding ability to perform all job functions, not
merely those that are essential to the job.
An employer may ask all applicants to describe or demonstrate how
they will perform a job, with or without an accommodation.
If an individual has a known disability that might interfere with
or prevent performance of job functions, she or he may be asked to
describe or demonstrate how these functions will be performed, with
or without an accommodation, even if other applicants are not asked
to do so; however, if a known disability would not interfere with
performance of job functions, an individual may only be required to
describe or demonstrate how she or he will perform a job if this is
required of all applicants for the position.
An employer may condition a job offer on the results of a medical
examination or on the responses to medical inquiries if such an
examination or inquiry is required of all entering employees in the
same job category, regardless of disability; information obtained
from such inquiries or examinations must be handled according to the
strict confidentiality requirements of the ADA.
An interviewer may not ask questions about a disability, but may
obtain more specific information about the ability to perform job
tasks and about any needed accommodation.
Where an applicant has a visible disability (for example, uses a
wheelchair or a guide dog, or has a missing limb) or has volunteered
information about a disability, the interviewer may not ask
questions about
- the nature of the disability;
- the severity of the disability;
- the condition causing the disability;
- any prognosis or expectation regarding the condition or
disability;
- or whether the individual will need treatment or special leave
because of the disability.
An employer may ask questions to determine whether an applicant
can perform specific job functions. The questions should focus on
the applicant’s ability to perform the job, not on a disability.
1. Are you able to perform these tasks with or without an
accommodation?
If the applicant indicates that she or he can perform the tasks
with an accommodation, she or he may be asked.
2. How would you perform the tasks, and with what accommodation(s)?
However, the employer must keep in mind that it cannot refuse to
hire a qualified individual with a disability because of this
person’s need for an accommodation that would be required by the
ADA.
An interviewer may not ask whether an applicant will need or
request leave for medical at or for other reasons related to a
disability.
The interviewer may provide information on the employer’s regular
work hours, leave policies, and any special attendance needs of the
job, and ask if the applicant can meet these requirements (provided
that the requirements actually are applied to employees in a
particular job).
Information about previous work attendance records may be
obtained on the application form, in the interview or in reference
checks, but the questions should not refer to illness or disability.
Are there specific limitations on testing in the hiring process?
Employers may use any kind of test to determine job
qualifications. The ADA has two major requirements in relation to
tests:
- If a test screens out or tends to screen out an individual with a
disability or a class of such individuals on the basis of
disability, it must be job related and consistent with business
necessity. This requirement applies to all kinds of tests,
including, but not limited to: aptitude tests, tests of knowledge
and skill, intelligence tests, agility tests, and job
demonstrations. An employer is only required to show that a test is
job-related and consistent with business necessity if it screens out
a person with a disability because of the disability. If a person
was screened out for a reason unrelated to disability, ADA
requirements do not apply.
- The ADA requires that tests be given to people who have impaired
sensory, speaking or manual skills in a format and manner that does
not require use of the impaired skill, unless the test is designed
to measure that skill. (Sensory skills include the abilities to
hear, see and to process information.) The purpose of this
requirement is to assure that tests accurately reflect a person’s
job skills, aptitudes, or whatever else the test is supposed to
measure, rather than the person’s impaired skills. However, an
employer does not have to provide an alternative test format for a
person with an impaired skill if the purpose of the test is to
measure that skill.
Are accommodations required in the hiring process?
The employer must provide an accommodation, if needed, to enable
an applicant to have equal opportunity in the interview and testing
process. Needed accommodations may include:
