The Americans with Disabilities Act defends the rights of people with disabilities in the context of employment. Title I of the ADA pertains to employers with at least 15 employees. Companies that qualify are prohibited from discriminating against qualified individuals on the basis of disability.
What does the law define as a disability?
According to legislation, someone with a disability is a person who has a physical or mental condition that affects daily life activities. For example, disabilities can impact somebody’s ability to walk, talk, see, hear or learn in ways that people without disabilities can.
A disability may also impact the operational capacity of certain bodily functions, whether that be on a cognitive, musculoskeletal, respiratory, circulatory or endocrine level. People who are considered to have a disability often have a history of having one.
Also, people who face adversities because of a physical or mental impairment for the foreseeable future are regarded as individuals with disabilities. However, it is important to note that a disability does not need to be permanent or incurable to be deemed a limiting condition. It’s more about how the disability affects the person while it is present rather than the length of time for which it is present.
Avoiding discriminating against people with disabilities does not mean you must hire someone with a disability regardless of whether they are qualified for the position. Just like everyone else, people with disabilities must have the capacity to meet the requirements of the job for which they are applying.
That said, upon hiring someone with disabilities, you must ensure that reasonable accommodations are made on the individual’s behalf. For instance, if you hire someone who uses a wheelchair, it is imperative that you make the workplace wheelchair-accessible with the help of ramps and wide hallways. Similarly, if you employ people who are blind, ensuring that written aspects of the job are accessible to them is key.
Now, under the ADA, employers are not permitted to ask intrusive disability-related questions. For example, questioning a candidate about the severity of their disability is inappropriate. Similarly, requesting someone to sit for certain medical exams as a conditional detail of being hired is unacceptable.
For greater clarification, it’s important to reflect on the words of Carol Miaskoff. As legal counsel for the federal Equal Employment Opportunity Commission, she has noted that any questions pertaining to a candidate’s health or psychiatric history prior to being offered a job are strictly prohibited.
Furthermore, questions that relate to prior use of illegal drugs may violate the same anti-discrimination laws because questions of this nature may reveal that the candidate has an addiction. Since addiction is regarded as a disability, these types of inquiries are banned in the interview process as well.
Rather than posing questions like those, Miaskoff encourages employers to ask if a candidate is currently abusing drugs or taking anything illegal on a regular basis. Employers can also require candidates to pass a drug test prior to being hired, at which point the candidate can either consent to the test or refuse.
That said, it is essential that employers practice their due diligence when hiring people. The same goes for contracts put into place with freelancers or contractors. No matter what, industry-standard pre-employment screenings require all third parties to be in compliance with both state-level regulations and federal laws, the ADA included.
Now, employment lawyers have stated that questions regarding a candidate’s medical or psychiatric history are illegal, even if said questions are part of an official security screening process. Also, even if the person applying for the job signs a consent form, such questions are still illegal. There is no workaround when it comes to the ADA.
Instead of focusing on people’s differences and excluding them as a result, employers should emphasize the importance of celebrating and honoring people for who they are. Prior to the ADA, all types of disabilities carried acute stigmas. In fact, believe it or not, companies could blatantly discriminate against people without fearing repercussions of any kind. Times have certainly changed, and thankfully, it is for the better.
According to the United States Bureau of Labor Statistics, less than 22% of people with disabilities who are of age for employment have jobs. However, a whopping 70% of people without disabilities are employed. As you can see, so many people with disabilities do not work compared to those without disabilities despite the ADA being in effect for years now.
The law is designed to simplify matters and make sure people with disabilities are protected in the world of employment. However, applying the law and putting it into effect can take time. That’s why employers are encouraged to work with job applicants and employees alike. By doing so, employers can figure out how to reasonably and affordably accommodate those with disabilities.
Ultimately, the U.S. Equal Employment Opportunity Commission enforces the employment-related aspects of the ADA law. As an employer, if you are curious about whether a particular candidate can perform the essential duties of the position, keep this one rule in mind: always ask applicants about their abilities, not about their disabilities.