Timing is everything when it comes to compliance with the Americans with Disabilities Act (ADA), and employers need to know which questions are appropriate to ask prospective employees and when. Even non-disabled job applicants should not be asked certain medical questions during the interview process.
The ADA – which applies to employers with 15 or more employees – prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. An individual with a disability under the ADA is a person who: 1) has a physical or mental impairment that substantially limits a major life activity; 2) has a record or history of a substantially limiting impairment; or 3) is regarded or treated by an employer as having a substantially limiting impairment.
The protections provided by the ADA are not limited to employees. Job applicants are also offered certain protections. The ADA restricts employers from asking applicants disability-related questions and requiring a medical examination before they extend a genuine and conditional offer to the applicant. These restrictions are in place to ensure that an applicant’s disability is not considered before the employer evaluates the prospective employee’s non-medical qualifications. Read more about what you can and cannot ask after the jump.
Although employers may not ask disability-related questions during the interview process, they may obtain certain information to help evaluate whether an applicant is qualified for the job. Employers may ask applicants:
- About their ability to perform specific job functions.
- About their non-medical qualifications and skills such as education, work history and required certifications and licenses.
- To describe or demonstrate how they would perform job tasks.
An employer cannot ask questions that may elicit information on the disability status of an applicant. For example, an employer may not ask about an applicant’s workers’ compensation history, whether the applicant will need reasonable accommodation for a job, number of sick days taken at previous jobs, or any lawful drug use. The answer to any of these questions may reveal a disability of the applicant.
Even non-disabled persons are protected from improper disability-related questions. Griffin v. Steeltek, 160 F.3d 591 (10th Cir. 1998) held that a prospective employee need not be disabled to successfully sue for discrimination due to improper medical questions. On the employment application, Steeltek asked applicants if they had ever received workers’ compensation or disability income and if they have ever had a physical defect that may prevent them from performing certain job functions. Griffin responded that he had received disability payments due to severe burns on his hand and foot and that he had elbow surgery. At no time during the application process did Griffin claim to be disabled. Although he was told that he was the most qualified applicant and would likely be hired, he was eventually rejected, allegedly because he did not have the two years experience that was required for the job. Griffin was not told that experience was necessary for the position.
Griffin sued Steeltek for discrimination under the ADA. The trial court rejected his claim due to his not being a disabled person. On appeal, the U.S. Court of Appeals for the Tenth Circuit held that his non-disabled status did not preclude him from bringing an ADA claim. As the Court noted, the ADA policy of eliminating disability discrimination is best achieved if all prospective employees who are subjected to illegal medical inquiries are able to sue offending employers instead of limiting that right to people who are actually disabled.
At the pre-offer stage, an employer cannot require examinations that seek information about physical or mental impairments or health. The only exception to this rule is for drug testing. The ADA does not protect people who use illegal drugs and does not consider drug testing a medical exam. What constitutes a medical examination, however, is difficult to determine. Factors that will be considered when determining if a procedure or test is medical are:
- Are health care personnel administering the test?
- Are the test results interpreted by health care professionals?
- Is the test designed to reveal a physical or mental impairment or disability?
- Is the test invasive? Does it require the drawing of blood, urine, or breath?
- Is medical equipment used for the test?
Only after a conditional offer is made may an employer ask questions about a person’s disability and/or require a medical examination. Furthermore, disability-related questions and medical examinations must be required for all applicants, not just those with a disability. All medical tests must be within the scope of the job and be as nondiscriminatory as possible. An employer must keep a person’s medical information confidential and separate from his or her personnel file.
In another case, three rejected job applicants brought suit against American Airlines claiming the airline illegally conducted medical exams too early in the job application process. In Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005), the court found that offers of employment were not real and therefore the medical examinations were premature. The three applicants, who were HIV-positive, interviewed for flight attendant positions with American. After the interview stage, they received conditional offers, contingent upon passing both a background check and a medical examination. Before the background investigation was completed, American sent the applicants to have medical examinations where they filled out questionnaires and submitted blood samples. After the blood tests came back positive for HIV, American withdrew its job offers, citing failure to disclose this information during the medical exam.
It was the sequence of events that the U.S. Court of Appeals for the Ninth Circuit found critical in its decision. A “real offer” under the ADA means that the employer must complete all non-medical sections of its application process or show that it could not have done so before issuing the offer. American could not establish that it could have reasonably completed the background check before subjecting the applicant to the medical exam; therefore, the job offers were not real, and the medical exam was premature.
As these two cases demonstrate, it is critical that your company’s hiring process focus on the ability of a particular applicant to complete the job, not his/her medical history. If your company requires medical examination, the timing of these tests is important. To ensure that your hiring process is ADA-compliant, please consult legal counsel.
