Under the Americans with Disabilities Act (ADA), employers with 15 or more employees are prohibited from discriminating against disabled employees or job applicants. In addition, most states have their own non-discrimination laws, which can apply to even the smallest of employers. For example, Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA) applies to all Michigan employers regardless of size. Most employers know that these laws prohibit disability-related inquiries during the hiring process. Because of this, employers rarely encounter situations where a disability is openly disclosed by a job applicant. However, the results of the study show that some employers simply may not know how to proceed when a job applicant discloses a disability in his or her cover letter, so they may shy away from even contacting a disabled candidate – exactly what could get them into legal trouble. The following may assist employers in addressing that scenario.
Under the ADA, there are three phases of the employment process, with varying restrictions as to what questions may be asked regarding employee medical or health related issues. During the pre-employment phase (prior to a conditional offer of employment), employers generally cannot ask any disability related inquiries even if related to the job. At most, an employer may ask whether the applicant is able to perform the essential functions of the job with or without accommodation. Importantly, the applicant must be informed of the essential job functions for this to apply, usually through a written job description.
During this first stage, an employer may be permitted to ask an applicant to describe or demonstrate how s/he will perform an essential job function or if an accommodation is needed to perform a specific essential job function. However, this applies only if the applicant has an obvious disability (for example, if the applicant uses a wheelchair) or if the applicant has voluntarily disclosed that s/he has a disability – such as the fake study applicants did here – and the employer reasonably believes the applicant will not be able to perform an essential job function due to this disability. In such a case, the employer also may need to engage in the interactive process with the applicant to determine if there is a reasonable accommodation that allows the disabled applicant to perform the essential functions of the job.
In some instances, an employer may have an obligation to reasonably accommodate a disabled job applicant with respect to certain aspects of the application process. For example, an employer may have to adjust an interview location for an applicant with a mobility impairment or provide application materials in accessible formats, such as large print or Braille, in order to provide the disabled applicant with an equal opportunity to participate in the job application process. This is true even if the employer believes that it will be unable to provide the job applicant with a reasonable accommodation to perform the essential functions of the job. Thus, even if an individual needs a reasonable accommodation for the application process itself, the employer may not have to provide the same accommodation upon hire if it is not reasonable.
Disability non-discrimination laws are designed to put disabled workers on a level playing field with non-disabled applicants or employees. If a disabled person can perform all essential job functions, with or without a reasonable accommodation, s/he should be treated equally. And while a private employer generally does not have to give preference to an openly disabled job candidate, it also cannot presumptively disqualify one. The results of this study show, in part, that some employers may not be aware of what the law requires. Undoubtedly, now that the results of this study are public, state and federal agencies (as well as plaintiffs’ attorneys) may turn their attention to this potential hiring issue. Employers would be wise to review their hiring practices and policies in light of these considerations. Failing to do so could be costly.
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PartnerDeborah Brouwer is managing partner of Nemeth Bonnette Brouwer and brings a wealth of diverse legal experiences and practical wisdom to her client engagements. After twenty years as in-house counsel at the UAW Legal Services Plan ...
