How to Avoid Disability Discrimination in the Hiring Process

Under the Americans with Disabilities Act (ADA), it’s illegal to discriminate against an individual on the basis of his or her disability. This discrimination protection extends to anyone who is assumed to have a disability and also to those who associate with others who have a disability. This protection extends who not only employees but also any individual who is applying to work at the organization.

Employers must take action to ensure that their application and hiring process do not inadvertently discriminate against individuals with disabilities. Here are a few tips:

• Ensure your antidiscrimination policy includes disability discrimination; these policies should be distributed to everyone.
• Train everyone involved in the hiring process that avoiding disability discrimination starts with them. They should understand that:
  • An applicant with a disability is entitled to reasonable accommodations even as early as the application process.
  • If there are specific physical and mental requirements for all applicants, it’s acceptable to list those as part of the job description, and acceptable to ask all applicants whether and how they’re able to perform all of the required tasks, but it’s not acceptable to only ask those who may have a disability.
  • It’s not okay to ask if a disability will be a limitation. Focus instead on asking how the job will be performed (as noted above), and be consistent by asking all applicants the same questions.
  • It’s not okay to ask whether someone has a disability. If, on the other hand, the disability is obvious or the applicant has already divulged it, the topic of accommodations can be broached by the employer. Do note, however, that even if this comes up, it should not remain the focus of the questions, and the interviewer should not ask overly personal questions unrelated to the ability to do the job.
  • Remember that mental health is also covered under the ADA. Ensure those involved in the interview process understand that a history of mental health concerns should not be an automatic disqualifier for a job.
  • It would be inappropriate to make assumptions about an individual’s capabilities.
• Don’t require any type of medical examination before making a job offer.
• If you do require a medical examination after an offer has been made, ensure it is job related and that all employees hired into similar roles are treated the same. The general rule is that any medical exam must be “job related” and “consistent with business necessity.” With any required medical exam:
  • It should be clear exactly why the exam is required and what it is for.
  • It should not screen out candidates unnecessarily. For example, there’s not usually any reason to exclude a potential new employee for things like high blood pressure, high blood sugar, high cholesterol, or any other item that may be discovered during a medical exam that is not directly related to the job at hand and the ability to complete it with or without accommodation.
  • It’s also worth noting that even with a medical exam that is job-related, there may be additional considerations. For example, if the examination is testing some type of job-related ability, some applicants may be able to do the job if they have a reasonable accommodation. It would be beneficial if the employee understood the purpose of the exam so that he or she could request a reasonable accommodation in advance if required.
  • Steer clear of asking about family medical history, as that may violate the Genetic Information Nondiscrimination Act (GINA).

This list is just the start. In tomorrow’s Advisor, we’ll continue with more tips on how to avoid disability discrimination in the hiring process.