In yesterday’s Advisor, we noted the fact that Americans with Disabilities Act (ADA) protections extend not just to employees but also to applicants. We started a list of tips for employers looking to avoid disability discrimination in the hiring process. Here are some more:
- Assess the application process, and note if there are any areas where someone with a disability may need accommodation. Determine some potential accommodations, and communicate that they’re available as part of the application process. (For example, if your application requires someone to listen to any audio, it may be useful to have captions and/or a text version available. It should be noted where these can be found.)
- If you require candidates or new employees to prove their capabilities via some type of test, demonstration, or standardized assessment, be sure to do so consistently, without singling out those who may be disabled. Tell applicants about this part of the process in advance; doing so will allow anyone who needs reasonable accommodations to request such.
- Ensure the job posting is clear about the essential job functions. Here’s why:
- If an individual is unable to perform the essential job functions even with reasonable accommodation (or if no such accommodation would exist), that person is not qualified for the role. An organization is not obligated to hire or consider hiring someone who is not qualified.
- An organization must consider a qualified person who may require reasonable accommodation to perform the essential job functions. Failing this would likely qualify as disability discrimination.
- Other job functions that are not core functions cannot be a basis for disqualifying someone. For example, if a role only occasionally requires the person to lift 50 pounds, but it is not an essential function, it would not be reasonable to disqualify an applicant who is unable to do so.
- Ask the same interview questions of all applicants for consistency. Also, be careful to not have interview questions that may either directly or indirectly uncover a disability. Here are some examples:
- Don’t ask about medical history or family medical history.
- Never ask about previous illnesses, injuries, hospitalizations, etc.
- Don’t ask whether the person has sought medical treatment for any physical or mental health issue.
- Never ask about disabilities directly or indirectly.
- Don’t ask whether the individual has taken Family and Medical Leave Act (FMLA) leave or filed a workers’ compensation claim previously. Not only could this look like disability discrimination but it could also appear to be discouraging such activities in the future, which is also illegal for covered employers.
Employers are not required to hire someone who is disabled if there is someone better qualified, but they also cannot disqualify someone who is qualified simply due to a disability.