Department of Human Resources

NONDISCRIMINATION IN THE HIRING PROCESS

Note: Scroll down or click any of the categories and you will be taken to the appropriate category below.

Recruitment, Applications, Pre-employment Inquiries, Testing

Overview of Legal Obligations

Job Advertisements and Notices

Accessibility of Job Information

Recruitment

Locating Qualified Individuals with Disabilities

Pre-Employment Inquiries

The Job Interview

Inquiries Related to Ability to Perform Job Functions and Accommodations

Inquiries about Attendance

Accommodations for Interviews

Conducting An Interview

RECRUITMENT, APPLICATIONS, PRE-EMPLOYMENT INQUIRIES, TESTING*

This document discusses nondiscrimination requirements that apply to recruitment and the job application process, including pre-employment inquiries.

A careful review of all procedures used in recruiting and selecting employees is advisable to assure nondiscrimination in the hiring process. Reasonable accommodation must be provided as needed to assure that individuals with disabilities have equal opportunities to participate in this process.

OVERVIEW OF LEGAL OBLIGATIONS

• An employer must provide an equal opportunity for an individual with a disability to participate in the job application process and to be considered for a job.

• An employer may not make any pre-employment inquiries regarding disability but may ask questions about the ability to perform specific job functions. An employer may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions.

• An employer may not require pre-employment medical examinations or medical histories. However, an employer may condition a job offer on the results of a post-offer medical examination if all entering employees in the same job category are required to take this examination.

• Anything that screens or tends to screen out a person with a disability on the basis of disability must be job-related and consistent with business necessity.

• Screening procedures must focus on the skills and aptitudes of an individual rather than job-impaired sensory, manual, or speaking skills, unless those are job-related skills the procedures are designed to measure.

JOB ADVERTISEMENTS AND NOTICES

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.

*Adapted from "A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act," Equal Employment Opportunity Commission, January 1992.

ACCESSIBILITY OF JOB INFORMATION

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.

RECRUITMENT

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.

LOCATING QUALIFIED INDIVIDUALS WITH DISABILITIES

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.

PRE-EMPLOYMENT INQUIRIES

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.

At this stage, an employer may:

• ask questions about an applicant's ability to perform specific job functions;

• not make an inquiry about a disability; and

• make a job offer that is conditioned on satisfactory results of a post-offer medical examination or inquiry.

2. 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.

3. Basic Requirements Regarding Pre-Offer Inquiries

• 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.

• 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, s/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 s/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 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.

Some examples of questions that may NOT be asked in job interviews:

• Is there any health-related reason you may not be able to perform the job for which you are applying?

• Have you had a major illness in the last five years?

• How many days were you absent from work because of illness last year?

(Pre-employment questions about illness may NOT be asked, because they may reveal the existence of a disability. However, an employer may provide information on its attendance requirements, if they exist, and ask if an applicant will be able to meet these requirements.)

• Do you have any physical defects that preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations.

• Do you have any disabilities or impairments that may affect your performance in the position for which you are applying?

(This question should NOT be asked even if the applicant is requested in a follow-up question to identify accommodations that would enable job performance. Inquiries should not focus on an applicant's disabilities. The applicant may be asked about ability to perform specific job functions, with or without a reasonable accommodation.)

• Have you ever been treated for drug addiction or alcoholism?

(Information may NOT be requested regarding treatment for drug or alcohol addiction, because the ADA protects people addicted to drugs who have been successfully rehabilitated, or who are undergoing rehabilitation, from discrimination based on drug addiction.)

• Have you ever filed for Workers' Compensation insurance?

(An employer may NOT ask about an applicant's Workers' Compensation history at the pre-offer stage but may obtain such information after making a conditional job offer. Such questions are prohibited because they are likely to reveal the existence of a disability. In addition, it is discriminatory under the ADA not to hire an individual with a disability because of speculation that the individual will cause increased Workers' Compensation costs.)

Information about an applicant's ability to perform job tasks, with or without accommodation, can be obtained through the application form and job interview, as explained below. Other needed information may be obtained through medical inquiries or examinations conducted after a conditional offer of employment.

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:

• Are you able to perform these tasks with or without an accommodation?

If the applicant indicates that s/he can perform the tasks with an accommodation, s/he may be asked:

• 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.

THE JOB INTERVIEW

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.

For example: If a person has only one arm and an essential function of a job is to drive a car, the interviewer should not ask if or how the disability would affect this person's driving. The person may be asked if s/he has a valid driver's license and whether s/he can perform any special aspect of driving that is required, such as frequent long-distance trips, with or without an accommodation.

The interviewer also could obtain needed information about an applicant's ability and experience in relation to specific job requirements through statements and questions such as: "Eighty percent of the time of this job must be spent on the road covering a three-state territory. What is your related experience? Do you have a valid driver's license? What is your accident record?"

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.

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;
2. proofreading documents for accuracy;
3. developing and maintaining files;
4. scheduling and making arrangements for meetings and conferences;
5. logging documents and correspondence in and out;
6. placing, answering, and referring telephone calls;
7. distributing documents to appropriate staff members;
8. reproducing documents on copying machines; and
9. occasional travel to perform clerical tasks at out-of-town conferences.

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.

INQUIRIES RELATED TO ABILITY TO PERFORM JOB FUNCTIONS AND ACCOMMODATIONS

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:

• The applicant may be asked to describe or demonstrate how s/he will perform specific job functions, as long as this is required of everyone applying for a job in this job category.

For example: An employer might require all applicants for a telemarketing job to demonstrate ability by taking a simulated telephone call but could not require that a person using a wheelchair take this test if other applicants are not required to take it.

• If an applicant has a known disability that would appear to interfere with or prevent performance of a job-related function, s/he may be asked to describe or demonstrate how this function would be performed, even if other applicants do not have to do so.

For example: If an applicant has one arm and the job requires placing bulky items on shelves up to six feet high, the interviewer could ask the applicant to demonstrate how s/he would perform this function, with or without an accommodation. If the applicant states that s/he can perform this function with a reasonable accommodation, for example with a step stool fitted with a device to assist lifting, the employer either must provide this accommodation so that the applicant can show that s/he can shelve the items, or let the applicant describe how s/he would do this task.

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.

For example: If an applicant with one leg applies for a job that involves sorting small parts while seated, s/he may not be required to demonstrate the ability to do the job unless all applicants are required to do so.

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.

INQUIRIES ABOUT ATTENDANCE

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).

For example: "Our regular work hours are 8:00 to 4:30, five days a week, but we expect employees in this job to work overtime, evenings, and weekends for six weeks during the summer and on certain other holidays. New employees get one week of vacation and seven sick leave days. Can you meet these requirements?"

ACCOMMODATIONS FOR INTERVIEWS

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:

• an accessible location for people with mobility impairments;

• a sign interpreter for a deaf person;

• a reader for a blind person.
  

CONDUCTING AN INTERVIEW

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.

Before making a conditional offer of employment, an employer may NOT ask previous employers or other sources about an applicant's:

• disability,

• illness,

• Workers' Compensation history, or

• any other questions that the employer itself may not ask of the applicant.

A previous employer may be asked about:

• job functions and tasks performed by the applicant,

• the quality and quantity of work performed,

• how job functions were performed,

• attendance record, or

• other job-related issues that do not relate to disability.

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.