Avoid Disability Discrimination When Hiring New Employees

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

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Of all the anti-discrimination laws, none is more confusing to 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 don't know 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 those functions.

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 more information on the ADA, including a discussion of who is covered under the law and an explanation of "reasonable accomodations," see Reasonable Accommodations for People With Disabilities: The ADA. 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.

For More Information

For a complete guide to your legal rights and responsibilities as an employer, read The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo).

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