Discrimination in Hiring and the Americans With Disability Act

Suppose you're looking to hire someone to fill a role in your company. You post the job opening, specifying the job duties and required qualifications. Of course, it's in your best interest to hire the candidate best able to perform the duties. But federal law prevents employers from denying job opportunities to people with disabilities unless their disabilities prevent them from performing the job's essential functions.

The Americans with Disability Act (ADA) provides a process for people with disabilities to pursue a disability discrimination claim. It also limits the type of questions employers can ask applicants about their physical abilities. If the employer violates the ADA, they may face hefty fines. The ADA reports that about 54 million Americans have disabilities (19% of the population). So, employers must understand and abide by the ADA in the hiring process.

This article describes Title I of the ADA, which relates to employment. Here, you'll find information on the following topics:

• What is the ADA?
• The employers and practices to which the ADA applies
• How to legally inquire about a job applicant's ability to perform a job
• Sample interview questions that either violate or comply with the ADA

See FindLaw's Disability Discrimination section for a selection of employee-focused articles on the ADA and workplace disability laws. If you have additional questions, consider contacting an employment attorney near you.

What Is the ADA?

The ADA is a civil rights law enacted in 1990 that prohibits discrimination against people who have disabilities. The law ensures that people with disabilities receive equal treatment and opportunities. The ADA formally recognized people with disabilities as a protected group. It's similar to the Civil Rights Act of 1964, which recognized equal treatment related to race, religion, and national origin, among others.

The ADA's goals concerning people with disabilities include:

• Assuring equal opportunities compared to people without disabilities
• Promoting economic self-sufficiency
• Ensuring that they can fully participate in private and public programs and receive the intended benefits of such programs
• Promoting independent living

The ADA consists of five titles covering different areas to promote these goals. These five titles are as follows:

• Employment (Title I)
• Government services (Title II)
• Public accommodations (Title III)
• Telecommunications (Title IV)
• Miscellaneous (Title V)

Each title sets out different requirements. This article only covers Title I, which addresses disability discrimination in employment. Specifically, we discuss how employers may reduce the risk of a discrimination claim during their hiring process. Consider visiting the ADA's website for more information about the other titles.

Employers and Practices Covered by the ADA

The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I. The ADA applies to any employer with 15 or more employees.

The ADA applies to all employment-related practices, including the following:

• Job applications and recruitment
• Hiring, firing, and layoffs
• Advancement, tenure, and compensation
• Training, leave, fringe benefits, and all other employment-related activities
• Interview questions

This article focuses on the interview process of people with disabilities. But it first provides a brief overview of Title I.

Title I - Equal Employment Opportunities and Reasonable Accommodations

Title I of the ADA requires employers to provide people with disabilities the same access to employment opportunities and benefits as people without disabilities. It prohibits employment discrimination based on a person's disability. It also defines “disability" and sets guidelines regarding reasonable accommodations. This section describes Title I's rules and requirements.

What Is a Disability Under the ADA?

The ADA defines someone as having a disability as follows:

• If they have a “physical or mental impairment that substantially limits one or more major life activities"; or
• Even if they do not currently have a disability, they have had such an impairment in the past; or
• People perceive or regard them as having such an impairment

Examples of these definitions include the following, respectively:

• A person who is blind or deaf
• A person who had a medical condition that limited some major life activities, such as cancer, but the cancer is in remission
• A person who sustained injuries to their body, but the injuries do not substantially limit any of their major life activities. The ADA provides an example of someone with “noticeable burn scars on their face." In the example, an employer turns away the person because they believe their condition “will make [them] unable to work with customers." The ADA protects this person from discrimination “because the employer regarded [their] scars as a disabling condition"

“Major life activities" refer to “functions that are important to most people's daily lives." The ADA provides walking, breathing, seeing, and sleeping as examples of major life activities. It also includes essential bodily functions, such as one's immune system and brain function. The ADA classifies drug and alcohol addiction as disabilities.

Qualified Individuals and Reasonable Accommodations

Under the ADA, employers must offer “reasonable accommodations" to “qualified individuals" with disabilities. Employers must base their employment decisions on business-related factors, not a person's disability. Employers may misread the ADA's anti-discrimination rules as requiring them to give people with disabilities special treatment. But an employer is free to select the most qualified applicant available.

The ADA makes it illegal to discriminate against qualified individuals. The law defines a “qualified individual" as someone who:

• Meets legitimate skill, experience, educational, or other requirements of the position
• Can perform the essential functions of the position with or without reasonable accommodation

The U.S. Department of Labor (DOL) defines a “reasonable accommodation" as a “modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process." For example, employers can't decline someone's interview because they request a reasonable accommodation.

As the DOL notes, reasonable accommodations are not special treatment. Instead, such accommodations often benefit all employees. Examples of reasonable accommodations include the following:

• Facility enhancements, like ramps or ergonomic workstations
• Modified work schedules (e.g., part-time work)
• Providing interpreters
• Allowing service animals in the workplace

Employers only must make reasonable accommodations. If the employee's accommodation request would place an undue hardship on the business, the employer likely does not need to make it. Undue hardship generally refers to “significant difficulty or expense" in making the accommodation. The Job Accommodation Network (JAN) offers free guidance to employers on reasonable accommodations.

Essential Job Functions

The ADA lists factors employers should consider when determining a job's essential functions. These factors may help employers determine whether a person with a disability is qualified. These considerations include the following, among others:

• Whether the employer considers these functions as essential
• Previous job descriptions
• How much time an employee spends doing the function
• Potential consequences if the person does not perform the function

For example, suppose an energy company posts a job opening. The job's essential functions include the ability to lift between 50 and 100 pounds and frequently climb ladders. The job's minimum required education specifies a two-year degree or two years of experience in the energy industry.

Now, suppose a person with a disability applies to the job. The applicant has worked in the energy industry for 10 years and can perform all the job's essential functions. This person is likely a qualified individual for the job. So, the employer likely must provide reasonable accommodations to the applicant.

But suppose a different person with a disability applies to the job. This applicant has no experience in the energy industry, and they have an unrelated degree. They also cannot perform the job's essential function due to their disability. The individual likely is not qualified. The ADA does not require the employer to provide them with reasonable accommodations.

The ADA and Job Interviews

Employers generally may only ask disability-related questions after they make a job offer. A “disability-related question" is one that “is likely to elicit information about a disability." This rule prevents employers from considering an applicant's possible disability before their non-medical qualifications.

Once employers make a conditional job offer, they may ask disability-related questions. They may also request an applicant to undergo a medical examination. But they may only do so if they ask such questions or request medical examinations for every entering employee.

The ADA offers an additional resource for employers regarding ADA-compliant job interviews.

Pre-Interview Considerations

As noted above, the ADA applies to all employment-related practices. This includes job interviews. An employer's job application and interview process must abide by the ADA's rules and regulations. For instance, employers cannot ask disability-related questions before making a job offer.

The ADA notes that employers and applicants benefit from a written job description outlining a job's essential functions. Setting out a job's essential functions allows employers to determine whether applicants can perform the job. It also sets a baseline of abilities potential applicants need for the job. A job description also helps determine whether the applicant is a qualified individual who may require reasonable accommodations.

Inquiring About Accommodations for Disabled Applicants

Another tricky subject is whether you may ask an applicant if they need any special accommodations. Fortunately, the rule is fairly straightforward:

• If there is no reason to believe that the applicant is disabled, you can't ask whether the applicant needs accommodations.
• If there is a reason to believe the applicant is disabled, you can ask whether the applicant needs accommodations. For example, if the applicant is in a wheelchair, you can ask what accommodations they need. Alternatively, if the applicant told you about their disability, you may ask them about accommodations.

When advertising a position, employers may post a notice regarding whether an applicant needs reasonable accommodations. For example, if the job application requires a written test, a person who is blind may request the written test in Braille.

The Job Interview

Employers must provide reasonable accommodations during the job interview if an applicant requests them. For example, a deaf job applicant may request an interpreter. Other people may request an interview via videoconference due to mobility issues.

Generally, employers should treat applicants with disabilities the same as non-disabled applicants. This means holding the applicants to the same standards regardless of their disability status. Interview questions should focus on essential job functions and an applicant's abilities, knowledge, and experience.

Employers may ask about an applicant's ability to do the job, but they can't ask about any specific disability. They also can't ask about a disability's nature or severity. For example, the following questions both get to the same point, but one is likely in violation of the ADA while the other is likely lawful:

Incorrect: "Do you think your physical disability would prevent you from lifting this heavy object?"

Correct: "How would you go about lifting this heavy object?"

The incorrect question asks about a perceived disability and likely violates the ADA. The second question asks the candidate how they would perform a specific task. Asking applicants about their abilities (rather than disabilities) also naturally lets them talk about their strengths and qualifications for the job, which is the point of the interview.

The ADA notes a narrow exception to the rule. If an applicant has a known disability, the employer may ask them to describe (or demonstrate) how they would perform the job's essential functions. The exception only applies when the employer reasonably believes a known disability may interfere with their ability to perform the job.

For example, suppose a person with one leg applies to a plumbing position. The employer may ask the applicant to describe or demonstrate how they would navigate a multi-level home with their tools. But the employer may not ask how the person's disability came about.

Suppose a person with one leg applies to a front desk position. The employer likely can't ask how the person would answer the telephone or send an email. Having one leg generally does not affect the applicant's ability to perform those tasks.

Post-Interview Considerations

Generally, employers may not require job applicants to undergo pre-interview medical examinations. But employers may make a job offer conditional upon a medical examination if the employer requires such examinations for every job offer.

Suppose an employer withdraws a job offer after a medical examination. In that case, the ADA requires them to demonstrate that it withdrew the offer due to job-related and business reasons rather than an applicant's disability.

Review the ADA's Guidance on medical examinations for more information.

Consistency in Job Interviews

It's also crucial that employers remain consistent with their interview questions. If you ask a potentially disabled person about their ability to perform job-specific tasks but never ask other candidates, you may violate the ADA. Even if the question itself is perfectly legal, as above, it could be used in a discriminatory fashion.

For example, if you ask a person who you believe (but do not know) has a disability to demonstrate how they would perform an essential function, but you don't usually ask applicants to do so, you may violate the ADA.

Sample Interview Questions

The EEOC has offered several example questions you can and cannot ask in an interview.

Employers may never ask:

• Have you ever sought treatment for any of the following conditions or diseases? (followed by a checklist of various diseases or conditions)
• Have you ever been treated by a psychologist or psychiatrist? If so, for what?
• Do you suffer from any health-related condition that might prevent you from performing this job?
• How many work days did you miss last year? (You may, however, tell the applicant your attendance requirements and then ask whether they can meet those requirements.)
• Do you have any physical defects that preclude you from doing certain things?
• Do you have any disabilities or impairments that might affect your ability to do the job?
• Do you have an addiction to any drugs or alcohol?
• Do you take any prescription drugs?
• Have you ever filed a workers' compensation claim?
• Have you ever participated in vocational rehabilitation training?

Employers may ask:

• Can you perform all the job's functions?
• How would you perform the job's functions?
• Can you meet the attendance requirements?
• What are your professional certifications and licenses?
• Do you currently use illegal drugs?

An employer's human resources department should ensure its pre-employment process conforms to ADA guidelines. An employer who discriminates against a job applicant due to their disability may face significant fines.

Additional Resources

The following resources may help employers conform their interview process to the ADA's guidelines:

• The ADA: Your Responsibilities as an Employer
• The ADA and Small Business
• ADA Update: A Primer for Small Business
• Pre-Employment: Interviews, Hiring, and Examinations

The ADA's website offers many more resources for employers, including, specifically, small business owners.

Questions About the ADA? Contact an Attorney

If you have any questions about disability discrimination in the hiring process, you may want to contact an employment law attorney in your area. An experienced attorney can provide information about the following topics, among others:

• Federal discrimination laws
• Legal advice regarding your company's employment policy
• Tax incentives and tax credits available to businesses that improve accessibility to those with a disability
• Legal advice about the Family and Medical Leave Act (FMLA)

If someone files a discrimination claim against your business, do not delay in contacting an employment law attorney.