Getting Hired With a Disability

Learn how the ADA protects job applicants with disabilities against discrimination during the hiring process.

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The Americans with Disabilities Act (ADA) prohibits employers from discriminating against job applicants with disabilities. If you have a disability and are searching for a job, you should know how the law protects you during the application and hiring process.

Who Is Protected

To understand your rights as an applicant with a disability, you'll first need to determine whether the employer is subject to the ADA or another state disability discrimination law. The ADA applies to employers with 15 or more employees. Your state may have a law that applies to smaller employers, too.

Second, to be entitled to the ADA's protections, you must meet the definition of a person with a disability. That means you must be substantially limited in a major life activity, such as walking, speaking, or eating. (For more information about what conditions qualify you as a person with a disability, see Nolo's article Disability Discrimination in the Workplace: An Overview of the ADA.)

Job Qualifications

Next, consider whether you're qualified for the job for which you are applying. Only qualified applicants and employees with disabilities are protected by the ADA.

Check the education and experience requirements. Though the law prohibits an employer from discriminating against you based on your disability, it doesn't require the employer to lower its hiring standards. You'll have to meet the same education and experience threshold as other applicants, unless those criteria are discriminatory (for example, because they are written to exclude applicants with disabilities).

Look at the job's duties. Make sure you can do the job's essential functions -- the basic job duties that are necessary to the position -- with or without a reasonable accommodation. It's easiest to do this if the employer gives you a job description or posting that describes what the job entails. If you can't tell what a job's essential functions are, you may need more information before you can decide whether you're able to do the job.

Once you know what the essential functions are, make sure you can do them. It's okay if you require a reasonable accommodation to complete them. The ADA protects those who can perform the essential functions with or without accommodation. For example, if you are able to fill out online forms with the assistance of voice-activated software, you are qualified for the position with a reasonable accommodation.

Don't worry if you can't do nonessential functions (as an office receptionist, occasionally lifting 25-pound boxes of paper, for example). As long as you can perform the essential functions, you are protected from discrimination.

Consider a reasonable accommodation. If you're confident that you can perform the job's essential functions with a reasonable accommodation, think about what accommodation would work. There's no guarantee you'll get the specific accommodation you request -- the employer is allowed to offer you an alternative if it solves the problem -- but it will confirm that you're qualified to do the job. (For more information on what constitutes a reasonable accommodation, read Nolo's article Disability Discrimination in the Workplace: An Overview of the ADA.)

Interviewing

Once you've applied for a job, you may be invited to interview for the position. At that point, you may have to decide whether you want to tell the employer about your disability. In some cases, you may not have much choice, because the disability is obvious -- for example, if you are hearing-impaired or use a wheelchair. In other cases, however, it may not be, and you may not feel comfortable disclosing it. You are not required to do so if you don't want to.

Should you disclose your disability? Although you don't have to disclose your disability, it may be difficult to avoid the subject entirely, and there may be benefits to discussing it. While an employer isn't permitted to ask you about a disability -- even if it is obvious -- the employer can ask you whether you are able to perform the job's essential functions, with or without a reasonable accommodation. The employer is also allowed to ask you how you would perform functions or to demonstrate how you would perform them. An interviewer who doesn't know that you need an accommodation might mistakenly believe that you aren't able to do the job.

Discussing reasonable accommodations. Because in most instances the employer can't initiate a discussion about your disability, you'll have to speak up if you want the employer to consider a reasonable accommodation. After all, unless you can show how you would do the job, the employer won't have the full picture of your true abilities, and that could hurt you.

How to handle stereotyping. Of course, if you disclose your disability early on, you may have to contend with the stereotypes and incorrect assumptions about disabilities that sometimes plague the workplace. If the interviewer asks inappropriate questions, take the conversation back to the position at hand. Make it very clear that you're capable of performing the job's essential functions.

Pre-Employment Testing

Your disability may also come into play during pre-employment testing. An employer can require you to take a medical exam, but only if you've received a conditional employment offer, meaning you're hired as long as you get the medical clearance to do the job. Also, the employer can't require you to take the exam if it doesn't require everyone in the position to do so. The employer must keep your medical records confidential and can only disclose necessary information to specific people who need it, such as emergency personnel.

Alternatively, the employer may require you to take a job-related test. (The test really should be job-related; for more information, read Nolo's article Testing Job Applicants.) If that's the case, you're entitled to a reasonable accommodation in the administration of the test. Even if you didn't disclose your disability during the interviewing stage, you should disclose it if you need a testing accommodation, like extra time on a written exam.

If You Don't Get Hired

Unfortunately, not every application or interview ends in a job. Sometimes, you may know the reason you weren't selected -- your salary requirements were more than the company was willing to pay, or someone with more experience and education was offered the job, for example.

But other times, you may suspect that the real reason you weren't hired is because of your disability. If that's the case, you may not have access to much information that confirms your suspicions. The employer may send you a letter or call you with a vague reason for not hiring you. Even if you ask for details about why you weren't hired, employers are often hesitant to give this information. Still, ask for specific feedback and explain that it will help you better prepare for your next opportunity.

If attempts for more detailed information are rebuffed, and you have reason to believe that the employer's decision was based on your disability, consider filing a complaint with the Equal Employment Opportunity Commission (EEOC) -- the federal body in charge of handling employment discrimination complaints -- or your state's fair employment agency. The EEOC or state agency may investigate your complaint, speak with the employer, or simply give you a letter confirming that you've filed a charge, which is a necessary prerequisite to filing a discrimination lawsuit.

To learn more about the ADA and steps to take if you believe an employer has discriminated against you, get Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

by: , J.D.

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