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Avoid Disability Discrimination When Hiring New Employees

Publication: © 2010 Nolo

The Americans with Disabilities Act has very strict rules about what you can and cannot do during the hiring process.

Of all the anti-discrimination laws, none confuses employers more than the Americans with Disabilities Act (ADA), especially when it comes to hiring. Employers want to make sure that the person they hire can actually perform the job, but often aren't sure how to explore this issue without running afoul of the law.

If you remember one simple rule, you'll be in good shape: You can ask people about their abilities, but you can't ask about their disabilities. This means that you can ask how an applicant plans to perform each function of the job, but you can not ask whether the applicant has any disabilities that will prevent him or her from performing each function of the job.

One way to ensure that you stay within the rules is to attach a detailed job description to the application or describe the job duties to the applicant during the job interview. Then ask how the applicant plans to perform the job. This approach gives applicants an opportunity to talk about their qualifications and strengths. It also allows them to let you know whether they might need reasonable accommodations to do the job.

Some other rules to keep in mind:

  • If you have no reason to believe that the applicant has a disability, you cannot ask whether he or she will need an accommodation (meaning special help or equipment) from you to perform the job.
  • If you do have reason to believe that the applicant has a disability (for example, the disability is obvious or the applicant has told you about the disability), you can ask about accommodations.

If you still feel a little lost about which questions are legal and which aren't, see the list of permissible and impermissible questions below.

For a comprehensive guide to hiring and the ADA, refer to the website of the U.S. Equal Employment Opportunity Commission at www.eeoc.gov.

Job Interview Questions That You Can and Can't Ask Under the ADA

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the ADA.

According to the EEOC, you should never ask the following questions in a job interview:

  • Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various diseases or conditions.)
  • List any conditions or diseases for which you have been treated in the past three years.
  • Have you ever been hospitalized? If so, for what condition?
  • Have you ever been treated by a psychologist or psychiatrist? If so, for what?
  • Have you ever been treated for any mental condition?
  • Do you suffer from any health-related condition that might prevent you from performing this job?
  • Have you had any major illnesses in the past five years?
  • How many days were you absent from work because of illness last year? (You may, however, tell the applicant what your attendance requirements are and then ask whether he or she will be able to meet those requirements.)
  • Do you have any physical defects that preclude you from doing certain types of things?
  • Do you have any disabilities or impairments that might affect your ability to do the job?
  • Are you taking any prescribed drugs?
  • Have you ever been treated for drug addiction or alcoholism?
  • Have you ever filed a worker's compensation claim?

According to the EEOC, you may ask the following questions in a job interview:

  • Can you perform all of the job functions?
  • How would you perform the job functions? (If you want to ask any applicant this question, you should ask all applicants this question.)
  • Can you meet my attendance requirements?
  • What are your professional certifications and licenses?
  • Do you currently use illegal drugs?