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Appendix A: Nondiscrimination in the Hiring Process
This document discusses nondiscrimination requirements that apply to
recruitment and the job application process, including pre-employment
*Adapted from "A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act," Equal Employment Opportunity Commission, January 1992.
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.
For example: Job information should be available in a location that is accessible to people with mobility impairments. If a job advertisement provides only a telephone number to call for information, a TDD (Telecommunication Device for the Deaf) number should be included. Printed job information in an employment office or on an employee bulletin boards should be made available, as needed, to persons with visual or other reading impairments. Preparing information in large print will help make it available to some people with visual impairments. Information can be recorded on a cassette or read to applicants with more severe vision impairments and those who have other disabilities that limit reading ability.
The Americans with Disabilities Act (ADA) is a nondiscrimination law. It does not require employers to undertake special activities to recruit people with disabilities. However, it is consistent with the purpose of the ADA for employers to expand their "outreach" to sources of qualified candidates with disabilities.
Recruitment activities that have the effect of screening out potential applicants with disabilities may violate the ADA.
There are many resources for locating individuals with disabilities who are qualified for different types of jobs. People with disabilities represent a large, underutilized human resource pool. Employers who have actively recruited and hired people with disabilities have found valuable sources of employees for jobs of every kind.
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. Such protection is particularly important for people with hidden disabilities who frequently are excluded, with no real opportunity to present their qualifications, because of information requested in application forms, medical history forms, job interviews, and pre-employment medical examinations.
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 three separate stages of the hiring process.
1. Before making a job offer.
2. After making a conditional job offer and before an individual starts work.
3. Basic Requirements Regarding Pre-Offer Inquiries
Some examples of questions that may NOT be asked in job interviews:
Exception for federal contractors covered by Section 503 of the Rehabilitation Act and other federal programs requiring identification of disability
Federal contractors and subcontractors who are covered by the affirmative action requirements of Section 503 of the Rehabilitation Act may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry to satisfy the affirmative action requirements of 503 of the Rehabilitation Act. Employers who request such information must observe Section 503 requirements regarding the manner in which such information is requested and used and the procedures for maintaining such information as a separate, confidential record, apart from regular personnel records.
A pre-employment inquiry about a disability also is permissible if it is required or necessitated by another federal law or regulation. For example, a number of programs administered or funded by the U.S. Department of Labor target benefits to individuals with disabilities, such as disabled veterans, veterans of the Vietnam era, individuals eligible for targeted job tax credits, and individuals eligible for Job Training Partnership Act assistance. Pre-employment inquiries about disabilities may be necessary under these laws to identify disabled applicants or clients in order to provide the required special services for such persons. These inquiries would not violate the ADA.
Information that may be requested in interviews
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. The applicant could be asked:
If the applicant indicates that s/he can perform the tasks with an accommodation, s/he may be asked:
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.
To assure that an interview is conducted in a nondiscriminatory manner, interviewers should be well informed about the ADA's requirements.
The basic requirements regarding pre-employment inquiries and the types of questions that are prohibited on job application forms apply to the job interview as well. 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, as set out below.
Discrimination most frequently occurs because interviewers and others involved in hiring lack knowledge about the differing capabilities of individuals with disabilities and make decisions based on stereotypes, misconceptions, or unfounded fears. To avoid discrimination in the hiring process, interviewers should have factual information about people with disabilities and understand the importance of individualized assessments. This will help interviewers feel more at ease in talking with people who have different disabilities.
The job interview should focus on the ability of an applicant to perform
the job, not on the disability.
The interviewer may describe or demonstrate the specific functions and tasks of the job and ask whether an applicant can perform these functions with or without reasonable accommodation.
For example: An interviewer could say: "The person in this mailroom clerk position is responsible for receiving incoming mail and packages, sorting the mail, and taking it in a cart to many offices in two buildings, one block apart. The mail clerk also must receive incoming boxes of supplies up to 50 pounds in weight, and place them on storage shelves up to six feet in height. Can you perform these tasks? Can you perform them with or without a reasonable accommodation?"
The interviewer also may give the applicant a copy of a detailed position description and ask whether s/he can perform the functions described in the position, with or without a reasonable accommodation.
Questions may be asked regarding ability to perform all job functions, not merely those that are essential to the job.
For example: An Administrative Specialist job may involve the following functions:
1. transcribing dictation and written drafts from the supervisor and
other staff into final written documents;
Taking into account the specific activities of the particular office in which this secretary will work, and availability of other staff, the employer has identified functions 1-6 as essential, and functions 7-9 as marginal to this secretary's job. The interviewer may ask questions related to all nine functions; however, an applicant with limited mobility should not be screened out because of inability to perform the last three functions due to his/her disability. S/he should be evaluated on ability to perform the first six functions, with or without accommodation.
An interviewer may obtain information about an applicant's ability to perform essential job functions and about any need for accommodation in several ways, depending on the particular job applicant and the requirements of a particular job:
However, if an applicant has a known disability that would not interfere with or prevent performance of a job-related function, the employer can only ask the applicant to demonstrate how s/he would perform the function if all applicants in the job category are required to do so, regardless of disability.
If an applicant indicates that s/he cannot perform an essential job function even with an accommodation, the applicant would not be qualified for the job in question.
An interviewer may not ask whether an applicant will need or request leave for medical treatment 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).
The employer must provide an accommodation, if needed, to enable an applicant to have equal opportunity in the interview process. As suggested earlier, the employer may find it helpful to state in an initial job notice, and/or on the job application form, that applicants who need accommodation for an interview should request this in advance.
Needed accommodations for interviews may include:
The purpose of a job interview is to obtain appropriate information about the background qualifications and other personal qualities of an applicant in relation to the requirements of a specific job.
This document has discussed ways to obtain this information by focusing on the abilities rather than the disability of a disabled applicant. However, there are other aspects of an interview that may create barriers to an accurate and objective assessment of an applicant's job qualifications. The interviewer may not know how to communicate effectively with people who have particular disabilities or may make negative, incorrect assumptions about the abilities of a person with a disability because s/he misinterprets some external manifestation of the disability.
For example: An interviewer may assume that a person who displays certain characteristics of cerebral palsy, such as indistinct speech, lisping, and involuntary or halting movements, has limited intelligence. In fact, cerebral palsy does not affect intelligence at all.
If an applicant who is known to have a disability was referred by a rehabilitation
agency or other source familiar with the person, it may be helpful to
contact the agency to learn more about this individual's ability to perform
specific job functions; however, questions should not be asked about the
nature or extent of the person's disability.
A previous employer may be asked about:
If an applicant has a known disability and has indicated that s/he could perform a job with a reasonable accommodation, a previous employer may be asked about accommodations made by that employer.