THE ADA AND THE JOB APPLICANT: 

RECRUITMENT, APPLICATIONS AND INTERVIEWS

Co-Ad, Inc.
Comprehensive Advocacy, Incorporated
Idaho's Protection and Advocacy System Since 1977
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Acknowledgement: This publication utilizes materials originally developed by the Arizona Center for Disability Law. Used with permission.

 

TABLE OF CONTENTS

A.  Introduction to the ADA and this Guide
What the ADA Covers 
How Co-Ad. Inc. Assists People with Disabilities 
This Guide is NOT a Substitute for Legal Advice 
Why the ADA Includes Employment Protections 
When the ADA Applies 

B.  Recruitment and Hiring Practices 

C.  Questions: Illegal or Legal? 
Disability-Related Questions 
Proper Questions About Abilities to Perform the Job 
Questions Where the Answer Reveals Information About Disability 
Specific Questions 

D.  Stages of Hiring 
Before the Conditional Job Offer 

After a Job Offer and Before the Applicant Begins Working 
After an Employee Begins Work 

E.  The Employer's Responsibility to Keep Disability-Related Information Confidential 

F.  Strategies for the Hiring Process 
Handling the Illegal Questions on an Application 
Handling the Illegal Question in the Interview 
Disclosure 
Disclosure for Accommodations 
Disability Documentation 
Confirming the Accommodation 
Emergency Care 
Investigations 
Filing a Charge 

Appendix 
Guide for obtaining documentation of disability/accommodation 
Sample letter for documentation 
Sample letter for requesting accommodation 
List of illegal questions 
List of legal questions 

 

 

A.  Introduction to the Americans with Disabilities Act (ADA) and this Guide

What the ADA Covers

On July 26, 1990, the ADA was passed by Congress. The ADA provides major civil rights protections to individuals with disabilities. The intent of this federal law is to reduce barriers to persons with disabilities and provide equal opportunity in employment, public accommodations, public services, transportation, and telecommunications. The various titles of the ADA affect many aspects of the lives of people with disabilities.

How Co-Ad, Inc. Assists People with Disabilities.

If you believe you have been discriminated against on the basis of a disability in employment or access to public services, public accommodations, pubic transportation or telecommunication services, staff at Co-Ad, Inc. can provide you with information about the ADA and enforcing your rights under the ADA. Co-Ad, Inc. is a non-profit, public interest law firm providing free advocacy, information and referral services, legal research, community legal education, and in selected cases, legal representation to individuals with disabilities. Co-Ad, Inc. is the designated protection and advocacy (P&A) system providing services for Idahoans with a wide range of physical and mental disabilities.

Information about the eligibility requirements and priorities are available from Co-Ad, Inc. upon request. Assistance is provided for disability related issues according to program eligibility requirements, priorities and staff availability.

This Guide is not a Substitute for Legal Advice

Co-Ad, Inc. recommends that persons obtain professional legal advice to resolve a legal dispute regarding discrimination on the basis of a disability. This guide is not a substitute for legal assistance. This guide is meant to provide people with disabilities with information and examples about employment protections under the ADA.

Why the ADA Includes Employment Protections

Oftentimes, people with disabilities do not have an equal opportunity to work or advance in their employment. People with disabilities are often restricted in employment opportunities by many different kinds of barriers. Some face physical barriers that either make it difficult or impossible to get into and around a workplace or to use work equipment at the site. Some are excluded because they communicate differently than their co-workers. Still others are excluded because of rigid work schedules which do not permit flexibility for people with special needs because of a disability.

In other cases, people are not denied opportunities because of actual barriers, but because of prejudice. These are the barriers in other people's minds: fears, stereotypes, presumptions, misconceptions about job performance, safety, absenteeism, costs, or lack of acceptance by co-workers and customers.

Congress enacted the ADA to eliminate these barriers to equal opportunity in employment. The ADA makes it unlawful for an employer covered by the law to discriminate against applicants and employees with disabilities. The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing this law. People with disabilities also have the right to bring private lawsuits against employers who discriminate against them if they first file a charge of discrimination with the EEOC within the time limits set out by the ADA. See Co-Ad, Inc.'s guide on "Enforcement of the Employment Provision of the ADA" for more information about the requirements for filing a charge.

This guide will provide the user with information about when the ADA applies to an employment situation. Other guides available through Co-Ad, Inc. on employment include:

When the ADA Applies

The ADA now applies to entities that include employers with at least 15 or more employees during a calendar year. To aid in compliance with the law the ADA provided for a phase-in period. Prior to July 26, 1994, only employers with at least 25 or more employees were covered by the ADA. Entities also covered by the ADA include employment agencies and labor unions. If employers contract with other agencies to perform services, such as background investigations and reference checks, the actions of the employer through the agency would be covered by the ADA.

The ADA protects qualified individuals with a disability. Disability is defined under the ADA as a physical or mental impairment that substantially limits an individual in the ability to perform major life activities, such as seeing, hearing, walking, performing manual tasks, working and learning. A person is qualified under the ADA if s/he has all of the skills, education, and experience necessary for the position and is able to perform the job with or without reasonable accommodations. For more information about what these special terms mean, see Co-Ad, Inc.'s guide entitled "An Overview of the Employment Provisions of the ADA."

B.  RECRUITMENT AND HIRING PRACTICES

The American With Disabilities Act (ADA) is unique among most civil rights laws because it makes it unlawful for employers to ask applicants about a disability before making a job offer. If an employer asks disability-related questions before offering the person a job, the employer has violated the law. The applicant does not have to show that the employer used the information to discriminate against the applicant for the employer to have violated the ADA. Merely asking a disability-related question is a violation.

The ADA was created to give people with disabilities an equal employment opportunity in all areas of employment, including hiring decisions. Prior to the ADA, employers often asked questions about disabilities in applications and interviews. If the applicant revealed information about his/her disability and was rejected, s/he would not know if it was because of the disability or for some other reason, such as not enough experience.

Congress created a system where employers must make their hiring decisions in two steps. First, the employer must select the most qualified candidate and offer the position without consideration of information about the disability. Then, after a job offer is made, an employer may make some inquiries about disability. These provisions of the ADA provide the greatest protection to people who have "hidden" disabilities or a history of a disability.

Congress intended for the ADA to improve employment opportunities among people with disabilities. Non-discriminatory hiring and recruitment practices are necessary if more people with disabilities are to join the workforce. Employers must also take other steps to make sure their hiring procedures do not discriminate against people with disabilities. Employers must recruit people using non-discriminatory advertisements and job announcements, provide applicants reasonable accommodations in the application and testing stage, and use tests that accurately measure the ability of an applicant to perform the job. This guide explains these requirements related to applications and interviews in greater detail in the sections that follow.

C.  QUESTIONS: ILLEGAL OR LEGAL?

The rules about what an employer may ask a person depends upon when the question is asked. There are three stages in employment:

The rules for each of these stages are outlined in this guide in Section D.

Disability-Related Questions

A disability-related question is one that tends to seek information about the following:

These are examples of illegal questions if asked on an application or during an interview:

These are examples of disability-related questions, but there may be other disability-related questions.

Keep in mind that the definition of a disability-related question is one that the employer should reasonably believe would cause the applicant or employee to provide information about the nature, existence, or severity of a disability.

Proper Questions about Abilities to Perform the Job

Congress did not aim to tie an employer's hands so that s/he could not ask questions to determine if an applicant is qualified for the position. An employer may ask questions about the ability of an applicant to perform the job with or without reasonable accommodations.

The EEOC, in the Enforcement Guidance on Pre-Employment Inquiries and Medical Examinations, lists the following as examples of questions an employer may ask applicants:

*Without the words, "with or without reasonable accommodations," these lawful questions would probably become unlawful. The ADA requires an employer not to discriminate against an otherwise qualified individual who needs a reasonable accommodation in the workplace.

Questions Where the Answer Reveals Information About a Disability

The answers to some questions may reveal information that the applicant has a disability. However, a question is not illegal simply because a person gives information about a disability in the answer. The question must tend to elicit information about a disability to be illegal during the interview or application process. Some questions may unintentionally result in information about disability.

Ana fills out an application where she is asked to list all of her jobs and the dates of employment. During an interview, the employer asks her why there is a 2 year gap in her employment. Ana states that she was undergoing treatment for a medical condition which has since improved. The question is not illegal.

In the previous example, the question is not a disability-related question because there are many reasons an applicant may have a gap in employment. Some reasons for gaps in employment other than disability include parental leave, continuing education, and travel. However, once an employee provides information about a disability in an application, resume, or interview, the employer is not permitted to follow up with disability-related questions.

Raul completes an application that asks for the name of schools attended. He attended a special school for students with disabilities. The employer asks during the interview why he was placed at that school. The question on the the application is legal but the follow-up question by the interviewer is unlawful.(1)

Specific Inquiries

Affirmative Action(2) Voluntary Self-Identification

The ADA does not prohibit affirmative action programs on behalf of people with disabilities. Employers are permitted to ask applicants to voluntarily identify themselves as a person with a disability prior to an offer of employment if the employer actually provides an affirmative action program for people with disabilities. Employers who are required by federal, state, or local law to undertake affirmative action programs and employers who voluntarily create affirmative action programs may ask applicants to identify whether they have a disability.

For example, a government entity such as the University of Idaho, Boise State University, Bannock County, or the City of Idaho Falls would be able to ask an applicant to voluntarily identify whether s/he has a disability.

If an employer is permitted under the ADA to invite applicants to self-identify a disability, then the employer must take several steps to make sure that the applicant is protected from discrimination. The employer must let the applicant know that:

To inform the applicant about the above information the employer must use clear language if the self-identification is on a form, then the form must contain clear, understandable language and be in large enough print to be conspicuous. The self-identification should be done on a separate form and apart from the application or on a sheet that is either torn or separated from the application. The information should not go to the individual who is making the selection of the applicant. If the self-identification is done verbally, the employer must still use clear, understandable language.

Lifestyle Questions

The ADA probably does not prohibit an employer from asking some questions about an applicant's lifestyle, such as eating habits, exercise habits, and weight of applicants, hobbies and sports. Although an employer might be able to safely ask an applicant if s/he eats three meals a day, the employer could not ask whether the individual needs to eat snacks throughout the day to maintain his/her energy. The latter question is more likely to obtain information about a disability, such as diabetes. If the first question did not result in an applicant providing information about a disability, then the employer must not ask additional questions about the disability.

Certain questions about weight may be illegal. Obesity might be a disability. For example, morbid obesity (being overweight by at least 1-1/2 times normal body weight) is a disability. Persons who are overweight because of an underlying medical condition might also be protected as an individual with a disability.

Questions about Alcohol Abuse

Employers may ask whether an individual drinks alcohol, but cannot ask questions about how much alcohol an applicant drinks or other questions that are likely to bring out information about alcoholism.

Other disability-related questions that would tend to bring information related to alcohol use:

Questions about Drug Use

A question about the current illegal use of drugs is permitted although it may reveal information about a drug addiction. Although drug addiction is a disability according to many medical professionals, a person who currently illegally uses drugs is not protected by the ADA. However, questions about past drug addiction would be illegal since a person is protected by the ADA if s/he is in a rehabilitation program or is currently not misusing drugs.

Questions about the legal use of prescription drugs are prohibited during the application stage. If an employer asks an applicant about prescription drugs, the employer is likely to learn about an applicant's disability. For example, prescription drug use might reveal to an employer that an applicant has a psychiatric disability, diabetes, epilepsy, heart disease or cancer.

The ADA does not prohibit drug tests to test for the current illegal use of drugs. If an applicant tests positive for drugs, then an employer may ask follow-up questions to determine if there are other reasons that a person may have tested positive. For example, a person may have tested positive for a controlled substance although the positive results is for a drug that was prescribed by a physician. An employer may ask if there are other medications that the individual takes that may have resulted in the positive test result. Following a positive drug test, questions regarding prescription drug use are not illegal. If asked at any time before a job offer, such questions violate the ADA.

The following are illegal questions when asked prior to a job offer:

NOTE: Questions about conviction for drug-related offenses are allowable. 

Need for Reasonable Accommodations

In general, an employer cannot ask an applicant whether s/he needs an accommodation to do the job before making a job offer. Asking about the need for an accommodation is a disability-related question. Although applicants may need an employer to be flexible for a variety of reasons, such as child care responsibilities, care of aging parents, education, the word accommodation has come to mean workplace modifications for disabilities. If asked about accommodations, most people with disabilities would likely disclose information about his/her disability to explain the need for an accommodation. An employer could use the question to screen out people with disabilities who need accommodations in violation of the ADA.

EEOC indicates in its Enforcement Guidance on Pre-Employment Inquiries that an employer may ask questions about reasonable accommodations if:

Although EEOC indicates that the employer may ask about the type of accommodation needed, the employer may not ask about the underlying disability. Because the law is new, it is too soon to tell whether courts will agree with the EEOC on their interpretation. If asked questions about accommodations prior to a job offer, contact Co-Ad, Inc. for more information.

Requests to Demonstrate/Describe Performance of Job-Related Duties

Generally, an employer may ask an applicant to show or describe how s/he would perform a job-related task because this request is more like a question about the ability to perform the duties of a job rather than a disability-related inquiry. However, if an employer makes a request for applicants to perform certain job duties or skills, the employer should make the request of all applicants, not just applicants with a known disability.

Rebecca and James both apply for an office assistant position where the assistant must type, do filing, and proofread manuscripts. Rebecca has a visual impairment. It would not violate the ADA for the employer to ask Rebecca and James to do a typing test to test for speed and accuracy and to give them a sample document to proofread.

There is one exception to this requirement to ask everyone entering the same job. If the employer knows the applicant has a disability that would likely interfere with performance of the job duty, the employer may ask only the applicant with a disability to do the demonstration.

Oscar and Albert apply for positions as service repairmen for washer and dryers. They both are required to supply information about their training and experience in repair. However, Oscar has paralysis in one arm. The employer wants him to demonstrate in the shop how he would be able to use some of the tools that generally require two hands to use. Since using the tools is related to the specific and essential job function, it is probably lawful for the employer to ask only Oscar to do this demonstration.

If an applicant needs an accommodation to demonstrate the job skill, the employer must provide the accommodation. If providing the accommodation for the demonstration would be a burden, the employer must allow the applicant to describe how s/he would do the task with the accommodation.

Attendance Requirements

An employer may give an applicant information about the attendance requirements of the job and ask the applicant if s/he believes s/he can meet those attendance requirements. An employer may even ask the applicant how may days of leave the person took at the last job or during the last year. The employer may also ask other questions to determine if the applicant abuses leave. The following questions have been judged by EEOC to be questions about the ability to perform job duties rather than disability-related questions.

Jorge applies for a position as an apartment manager. The employer asks him how many days he took leave during his last year of employment. Jorge tells the employer that he took 25 days of leave. The employer asks him how many days of leave were taken because he was sick. The first question did not violate the ADA, but the second question did.

D.  STAGES OF HIRING

Stage 1: Before the Conditional Job Offer

An employer must provide an equal opportunity for an individual with a disability to participate in the job application process and to be considered for a job. An employer must not ask disability-related questions prior to making a job offer. A disability-related question at this stage is illegal whether it appears on an application form, is made in a job interview, is asked during a background or reference check. It is illegal whether the employer asks or has someone else ask on the employer's behalf.

Applications

In an employment application form an employer may ask questions to determine whether an applicant can perform specific job functions with or without accommodations. These questions should focus on the applicant's ability to perform the job, not on the applicant's disability.

There will be times when an applicant may need an accommodation in the application process. A reasonable accommodation is any change in the way the work is done or other modification that permits the individual with a disability to have an equal opportunity to compete with other applicants. If an applicant needs an accommodation during the application stage, generally the employer may ask for medical documentation about the existence of a disability and the need for an accommodation. See the Appendix of this guide for a form and sample disability documentation.

Examples of accommodations that may be needed for an application include:

The Job Interview

An interviewer is prohibited from asking questions about a disability, but may obtain more specific information about the ability to perform job tasks and about any needed accommodations. The job interview should focus on the ability of an applicant to perform the job, not on the individual's disability. The employer must provide an accommodation, if needed, to enable an applicant to have equal opportunity in the interview process.

Even if an applicant has an obvious disability, such as using a wheelchair, service animal, or having a missing limb, or volunteers information about a disability, the interviewer may not ask disability-related questions.

The interviewer may give an applicant a copy of a detailed job description, then ask whether the applicant can perform these functions with or without a reasonable accommodation.

Samuel applies for a job as a limousine driver. Samuel has a diagnosis of a psychiatric disability and takes medication for his condition. Samuel voluntarily discloses this information during the interview. The interviewer asks if the disability would affect his driving, how long he has had the disability, and what medication he takes. These questions asked during the interview violated the ADA. The interviewer could have asked Samuel if he had a valid driver license, his accident history, and whether he has made claims on his auto insurance for collisions to learn whether Samuel could perform the job.

Sherilyn applies for a position as a mailroom clerk. The employer tells her that she would be responsible for receiving mail and packages, sorting the mail, taking the mail in a cart to many offices in the buildings, lifting boxes of supplies up to 50 pounds, and climbing a ladder to place the boxes on storage shelves up to 6 feet in height. The employer then asks Sherilyn if she can perform these duties with or without a reasonable accommodation. This is a lawful question

Background and Reference Checks

Call it the Golden Rule of the ADA: an employer may not ask a disability-related question of others that the employer could not ask the applicant. Before making a job offer, an employer (and anyone on the employer's behalf) may not ask disability-related questions about a job applicant from a previous employer, family member, or other source.

During an interview Grace tells the interviewer that she took one year off between her last job and the job for which she is currently applying. The interviewer asks her why she took a year off between jobs. Grace tells the interviewer it was to get treatment for a medical condition that has improved. The office manager does not ask any further questions about the medical condition. However, the office manager does call the last employer for a routine check of Grace's references. During the reference check, the interviewer also asks Grace's former employer what was the nature of the medical condition that caused Grace to leave her employment. The interviewer violated the ADA.

Testing

The ADA does not prohibit an employer from giving applicants tests to determine who has the necessary skills to perform a specific job. However, the employer must give those tests in a non-discriminatory manner and provide accommodations to people who need them to perform the tests.

2. Stage 2: After A Job Offer and Before the Applicant Begins Working(3)

An employer may ask disability-related questions during the second stage after an applicant has been offered a job, but before the applicant begins working. The employer does not have to justify why the disability-related questions are being asked. However, for the disability-related question to be lawful an employer must ask the question of all employees entering the job category and keep confidential any information about disability that the employee provides.

A construction company requires all people who are hired as laborers to answer questions about the existence or history of back or knee impairments, but do not ask people who are hired for the office and sales work to answer the same questions. The employer has not violated the ADA.

If a job offer is withdrawn by an employer after a new employee discloses information about a disability, the employer must be able to show:

that the reason the job offer was withdrawn was job-related(4) and consistent with business necessity(5) and the person could not be accommodated; OR

the new employee would be a direct safety threat(6) to others and the threat could not be reduced by reasonable accommodations.

Josefina applies for a position in a supermarket. She is hired and assigned to work as a clerk at the bakery counter. Prior to beginning work, she is asked to demonstrate that she can lift 50 pounds because all store clerks are required to be able to lift this weight without assistance. She is unable to lift 50 pounds without assistance because she has arthritis. The job offer is withdrawn. Lifting 50 pounds is rarely required for clerks who work at the bakery counter because they ring up sales and get bakery goods for the customers. Occasionally, boxes need to be removed that weigh about 50 pounds. But there is always more than one person working in the bakery to help lift the boxes. Withdrawing the job offer because Josefina cannot lift 50 pounds violates the ADA because the test is not job-related to the bakery clerk position and Josefina can be easily accommodated.

3. Stage 3: After An Employee Begins Work

During the third stage after an employee begins work, an employer cannot ask an employee a disability-related question unless it is job-related(7) and consistent with business necessity(8). This is different than the last stage. Once an employee has begun working, the employer must justify why s/he is asking a disability-related question. The following are examples of why an employer might need to ask disability-related questions.

The employee asks for an accommodation. Sometimes an employee may not need an accommodation when s/he begins working for an employer. However, circumstances may change. The employee's disability may worsen or the employee's job duties may change. An employer may request documentation of a disability and the need for an accommodation when the employee requests the accommodation, if the disability and need for an accommodation are not apparent.

Maxine works for a law firm as a paralegal. In her job she does a lot of work revising forms for clients with information about their situation. Most of her work is done using a computer. Maxine has a visual impairment which is worsening. She previously was able to do her work by placing a magnifier in front of her computer screen. She now needs a large screen for her computer. When she asks for the large screen, her employer may ask her for a statement from her optometrist or opthomologist and information about the amount the screen should be magnified,

The employer notices that the employee is having difficulty performing his/her job duties and believes that the difficulty may be due to the need for a disability-related accommodation. An employer may ask an employee if s/he needs an accommodation to perform the essential functions of the job even if the employee has not requested the accommodation.

Roy is a teacher at a high school. He is hospitalized for depression. He asked for use of sick leave during the hospitalization. When Roy returned to his teaching duties, the principal noticed that frequently Roy was absent and had used all of his accrued leave. The principal told Roy that his absences were becoming excessive and wanted to know if the absences were related to his disability. Roy told her the absences were related to his disability. They discussed various options for accommodations, such as a reduced work schedule for one semester or use of unpaid leave for further recuperation. The principal's discussion of the need for an accommodation did not violate the ADA.

Other laws require medical examinations, screening, and monitoring.

Alex works in a lab where he may have been exposed to a hazardous material. A safety law requires that he be monitored at regular intervals to make sure that he did not suffer any exposure or ill effects from exposure. This is required by the company's safety program and federal safety standards, so the employer has not violated Alex's rights under the ADA by doing the medical monitoring.

Doris drives a truck for a trucking company on interstate, long hauls. She must keep a current certification. The United States Department of Transportation requires drivers to get a periodic medical examination. Doris' employer does not violate the ADA by asking disability-related inquiries during the medical history portion of the medical examination.

The employee is not performing his/her job safely and the employer believes the problems with the performance are related to a disability or the need for an accommodation because of the disability.

E.  THE EMPLOYER'S RESPONSIBILITY TO KEEP DISABILITY-RELATED INFORMATION CONFIDENTIAL

An employer who asks disability-related questions or requires medical examinations after an offer of employment will obtain information about disabilities through these examinations and questions. The employer is required by the ADA to treat this information confidentially. The medical information should be kept separate from other personnel records and access should be limited.

To satisfy these requirements, an employer must keep information about disabilities, such as medical documentation regarding the need for an accommodation or a medical examination, in a locked, separate file apart from the personnel records. Only specific people should have access to the medical records. Co-workers should generally not have access to the medical records or the information contained in these records, except for:

F.  STRATEGIES FOR THE HIRING PROCESS

Handling the Illegal Question on an Application

An applicant should take along the list in the Appendix of illegal questions when s/he applies for jobs. If an application contains an illegal question, the applicant has several choices. The applicant can either leave the question blank and continue with the hiring process or complete the application. If the applicant does not complete the application, s/he can file a charge of discrimination with the proper agency to attempt to get the illegal question removed before applying.

The applicant who chooses to file a charge should take a copy of the application with him/her as proof of the violation. Some employers will not let copies of their application leave the building. The applicant should be prepared for this policy and take a small pad of paper to places where s/he applies. The illegal question should be written onto the sheet exactly as it appears on the application. List the date, the business, and the address where the application was used.

The applicant may file a charge of discrimination with the proper agency. See Section 9 on Filling a Charge. The charge may be filed directly by the individual or through an agency.

Generally, it is not recommended to answer disability-related questions on an application because an applicant does not know if the employer will use the information to discriminate, but the applicant can choose to answer a disability-related question. If s/he is not selected, s/he can file a charge of discrimination.

Handling the Illegal Question in the Interview.

If an applicant is asked an illegal question during an interview, s/he can either refuse to answer and tell the employer the question is not permitted under the ADA. The other option is to answer. If the individual is not selected, s/he can file a charge of discrimination. See Section 9.

Disclosure.

Keep in mind that a person is not required to voluntarily disclose that s/he has a disability before an employer offers him/her a job. The ADA was designed so that employers could not lawfully ask questions about a disability and use the information to screen out people with disabilities. Therefore, it is not recommended to disclose information about a disability before a job offer is made, even on an affirmative action self-identification form.

The applicant who has a hidden disability or a history of a disability benefits the greatest from the ADA protections about disability-related inquiries. A person with a visible disability may choose to tell the employer about his/her disability because s/he fears that the employer will see the disability and make a decision based on inaccurate information. An applicant may want to put the employer's fears at rest by telling them facts about the disability. If an applicant chooses to talk about his/her disability, the applicant is in control of how much to tell because an employer may not legally ask follow-up disability-related questions. The applicant who wishes to educate the employer about his/her disability may wish to think of ways how the disability will make them a valuable employee, such as the ability to overcome obstacles or approach a task with creativity.

Disclosure for accommodations.

If a person needs an accommodation to perform the essential functions of the job for which s/he is applying, s/he should request the accommodation after the job offer but before s/he begins work. If a person needs an accommodation for the application or interview, s/he should ask for the accommodation at the time s/he applies.

Disability documentation.

Because an employer is entitled to request disability documentation it is better to be prepared and have the documentation ready to give to the employer at the time that the accommodation is requested. If the employer does not request documentation than the employee does not have to provide it. Use the form and sample for requesting accommodations in the Appendix to explain to your physician or other professional what information is necessary.

Confirming the accommodation.

It is helpful to confirm in writing that the employer has agreed to provide an accommodation and the nature of the accommodation. Sometimes, accommodations are provided informally and, later, an employer decides to not provide the accommodation. Confirming the accommodation helps create a written record that the accommodation was provided by the employer.

Emergency care.

If an applicant knows s/he may need emergency care because of a disability, s/he should discuss emergency procedures after a job has been offered but before s/he begins working. The employer may request disability documentation regarding emergency medical procedures. It is better to have the documentation ready to present when you discuss the matter.

Investigations.

Applicants should be wary of employers who ask for releases to talk to neighbors, former employers, etc., without any limitation on the questions. These investigations may be used to obtain information about disabilities. If an applicant chose to agree to an investigation, s/he may want to alert people who may be contacted to write down any questions asked about disability. Another choice is to give a friend a copy of the list of unlawful questions in the Appendix. The persons called for a reference can check off any illegal questions.

Filling a charge.

An employee/applicant who believes s/he was discriminated against in the hiring process may file a charge of discrimination with the appropriate enforcement agency in Idaho. A charge must be filed if an individual wishes to preserve the right to bring a private lawsuit under Title I (Employment) of the ADA. Contact the Idaho Human Rights Commission (HRC) at (208) 334-2873 to process a charge, or the Equal Employment Opportunity Commission (EEOC) at 1-800-669-4000 or 1-800-669-6820 (TDD).

The deadline for filing charges under Title I of the ADA vary. The deadline may be as little as 180 days or up to 300 days from the date of the discrimination. For more information about which deadline applies, contact the IHRC or EEOC directly or file within the shorter deadline to be safe. See Co-Ad's guide, "Enforcing Employment Rights Under the ADA."

Appendix

Guide for Obtaining Documentation of Disability/Accommodation

The Documentation should include:

(do not evaluate "working" unless no other activity is substantially limited)

The Documentation may be provided by a:

Sample Letter for Documentation

January 15, 1996

Mr. Joe Employer
ABC Company
123 W. Smith St.
Pocatello, ID 83204

Dear Mr. Employer:

Joseph Jones has a physical impairment consisting of a spinal cord injury. He has paraplegia resulting in paralysis of his legs, but does have full use of his arms and hands. The physical impairment causes significant functional limitations in the major life activity of walking. He is unable to walk and uses a wheelchair. Joseph Jones is an individual with a disability according to the definition of the ADA.

As a result, he will need some accommodations in the workplace because of his disability. Generally, he will need an accessible worksite and ramp into the building where his worksite is located.

I am a vocational rehabilitation counselor who has worked with Mr. Jones. I would be able to offer you some specific recommendations on how to make his worksite accessible.

Call me at my office at 123-4567.

Sincerely,

Rebecca Smith
Vocational Counselor

Sample Letter for Requesting Accommodation

To: Ann Supervisor
From: Joe Employee
Re: ADA Accommodation

Date: September 16, 1999

I have the following condition: bipolar disorder . I have also attached a letter from my therapist, Dr. Jane Psychiatrist , that confirms that I have a disability due to the bipolar condition and need an accommodation. Because of my disability, I will need a flexible schedule to be able to attend therapy appointments. I have group counseling one time per week which can not be scheduled outside of work hours. I would like a flexible schedule on Tuesdays to be able to come in early so that I may leave by 3:30 p.m. for these appointments. Dr. Jane Psychiatrist has included in her letter that this is a necessary accommodation.

Please notify me by December 15th whether you will be granting me this accommodation. If you need additional information about this request, please let me know.

UNLAWFUL QUESTIONS

LAWFUL QUESTIONS

 

 

1. For schools to comply with the confidentiality requirements of the ADA, transcripts and other requests for records for employment should have references to disability and special education removed prior to sending them to employers. If an individual is requesting his/her records from the school, s/he should inquire whether the school will be routinely removing references to disability prior to sending the records.

2. Affirmative action programs are programs required by federal law designed to correct past discrimination against protected groups, and requires employers to take positive steps to eliminate and prevent discrimination. To take these steps employers usually must keep statistics on people who apply and are hired.

3. This is the stage that an employee should request an accommodation from an employer if s/he believes an accommodation will be necessary to perform the essential functions of the job. See Co-Ad, Inc.'s guide, "The ADA and Reasonable Accommodations."

4. Job-related means related to the specific job.

5. Business necessity means a person must be excluded because of a disability that makes him/her unable to perform the essential functions of the job.

6. Direct safety threat means that hiring the person with the disability would pose a significant and specific risk to the health or safety of others. The risk must be a current risk and not be remote or speculative. The risk must be based on objective data or facts. The risk must be one that cannot be eliminated or reduced to an acceptable range by reasonable accommodations.

7. See footnote #2 for the meaning of job-related.

8. See footnote #3 for the meaning of business necessity.

 

Printing of this document was funded by grants administered by the Department of Education, Rehabilitation Services Administration, Administration on Developmental Disabilities, and National Institute of Mental Health.

The legal information contained in this guide does not necessarily reflect the views of Comprehensive Advocacy, Inc.'s funding sources. The information is also subject to changes in the laws and the reader should research current laws before acting upon the information. Reprinted 7/99