Discrimination: What’s illegal?
The ADA prohibits discrimination in a broad range of employment activities, including the application and interview process, hiring, promotion and termination, job training, compensation and virtually any other term or condition of employment.
You may be held legally responsible for employment discrimination, and could have to pay for both compensatory and punitive damages, if you or your HR professionals:
- make an inappropriate inquiry about disability;
- fail to hire an otherwise qualified individual with a disability in order to avoid making a reasonable accommodation; or
- fail to make reasonable accommodation for an otherwise qualified individual with a disability unless the accommodation would create an undue hardship for your company (see page 12 for more information about reasonable accommodation).
Under the ADA, you and your HR professionals may not:
- use pre-employment tests that reveal the effects of a sensory, manual or speaking skills impairment unless the tests focus on relevant job skills or aptitudes. Standards or tests that are likely to elicit information about a disability are impermissible. All applicants must be required to take the same tests, without regard to disability, and the tests or job standards cannot be used unless they are job-related and necessary to the business;
- restrict otherwise qualified applicants or employees with disabilities from employment opportunities or job benefits unless no reasonable accommodation can be made to enable them to perform essential job functions;
- eliminate a qualified applicant who is caring for a family member with a disability simply because you believe that person will miss more work than an applicant without such a commitment; and
- enter into contractual relationships — such as those with employment agencies, labor unions, employee benefit providers and others — that result in discrimination against employees with disabilities.
In addition, you may not deny employment to a qualified applicant simply to avoid increased benefit costs associated with insuring a person with a disability. However, your company can continue to offer bona fide employee benefit plans that contain exclusions and limitations based on risk classifications as long as they are consistent with state law and are not used as a subterfuge for evading the intent of the ADA.
Be aware that employees with disabilities are entitled to participate as fully in workplace activities, including training, as other employees. You may need to provide reasonable accommodation to assist disabled employees to participate on a par with their co-employees.
The hiring process
Under the ADA, you must include qualified individuals with disabilities in your efforts to fill jobs, whether from within or outside the company. Reasonable accommodations may be required during the application process for an applicant with disabilities. Here is how the ADA specifically affects your hiring process:
- Access: Accommodations during the hiring process may be required to assist an applicant in gaining access to the interview locations. You may need to modify architectural barriers or alter the location of the interview as an accommodation.
- Testing: If you require tests, they must be given to all applicants for similar positions and measure only skills required for the job. You must also make reasonable accommodations for people with disabilities to take the test, such as providing a reader or audio-taped test for someone with impaired vision.
- Application and interview: During the hiring process, you may not ask if the applicant has a disability or about its nature or severity, unless the condition is obvious, like when an applicant wears a brace. However, you can describe the job and ask about the applicant’s ability to perform the essential job functions. You may not selectively ask some applicants that you suspect are disabled to demonstrate how they will do the job, but not ask all applicants to undertake a similar demonstration. Moreover, you can ask disability-related questions if you are asking for voluntary self-identification of disability for affirmative action purposes or if you are a federal contractor taking affirmative action under the Rehabilitation Act. In these cases, you must inform the applicant that it isn't necessary to answer, and that not answering will have no effect on the employment decision. You must also advise the person that the information will be used only in accordance with the law. Finally, the information must be kept separately from the employment application.
- Decision not to hire: You do not have to hire an applicant who does not meet job qualifications. For example, if you have a job that requires full-time regular attendance, such as a receptionist job, you do not have to hire an applicant who can only work part-time or who can’t perform the essential functions of the job.
Before you make an offer in the hiring process, you can ask disability-related questions only if you are asking for voluntary self-identification of disability for affirmative action purposes or if you are a federal contractor taking affirmative action under the Rehabilitation Act. In these cases, you must inform the applicant that it isn’t necessary to answer and that not answering will have no effect on the employment decision. You must also advise the person that the information will be used only in accordance with the law. Finally, the information must be kept separately from the employment application.