Determining just what is a disability has always been a challenge, but recent court rulings indicate that the focus should be on the accommodation process, not the issue of what's a disability.
Nevertheless, the interview is a minefield for the unwary. At a minimum, train your managers and supervisors, and all interviewers, on the basics of dealing with disabilities in the interview. There's a path to follow and it's important not to stray off it.
Remind your managers that if they get confused during the interview, it's OK for them to excuse themselves for a minute and check with HR. Better a little confusion or discomfort than an expensive and embarrassing blunder.
First of all, you may always ask whether a candidate can perform the essential functions of the position with or without reasonable accommodation. But, you may not ask the candidate whether or not he or she has a disability or what the disability is.
And you may ask applicants to demonstrate or tell how they would perform the essential functions of the position; however, this must be something that you ask of all applicant, not just those you suspect may have a disability.
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EEOC guidance says that:
IF you reasonably believe a person has a need for accommodation because of an obvious disability (for example, the candidate is in a wheel chair, or has a prosthesis)
You reasonably believe that accommodation would be required by a disability an applicant has voluntarily disclosed to you
The candidate asks for accommodation,
(and then only) you may ask whether the person needs reasonable accommodation, and what type of reasonable accommodation is needed to perform the job.
If the applicant, when asked whether an accommodation is needed, responds, “No,” you may not ask further about accommodation. (But you can, as mentioned above, ask the candidate to demonstrate how he or she would do the job, if you ask this of all candidates.)
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If the applicant says he or she will need accommodation, you may ask questions about the type of accommodation needed. For example, if a person with a vision disability requests software to make screen images bigger, you could ask the candidate about the availability of such software and its compatibility with your system software. You may not directly inquire about the nature of the disability.
As another example, if an applicant reveals to you that he or she needs an accommodation of periodic breaks to take medication, you may ask about the length and frequency of the breaks, but not about the underlying disease that requires the medication.
In tomorrow's Advisor, pregnancy as a disability, plus an introduction to an extensive collection of pre-written job descriptions.
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