EEOC Fast Sheet Explains Prospective Employees' Rights Under the ADA

Article

The Employment and Labor Law Alert

November 26, 2003

Both employers and prospective employees are well aware that the pre-employment phase of any employment relationship requires a careful balance of investigation and revelation. Concerns over inquiry and disclosure are particularly manifest in the context of a disabled applicant. Under the Americans with Disabilities Act, an employer may not refuse to hire a qualified disabled person on account of his or her disability, and, over the years, in order to assist employers in navigating the course of interviewing and hiring a disabled applicant, the EEOC and the courts have drawn parameters for employers, identifying, among other points, what questions may be asked at what time during the pre-employment phase. Now, the Equal Employment Opportunity Commission (“EEOC”) has drafted guidance for employees, in the form of a Fact Sheet available on the EEOC’s website, at http://www.eeoc.gov/facts/jobapplicant.html. The Fact Sheet explains to job applicants their rights to accommodation of disabilities during and after the interview process and offers tips for how to ask for accommodations.

More particularly, the fact sheet is divided into sections, which spell out how a disabled applicant should proceed through the hiring process. In the first section, Reasonable Accommodation for the Application Process, the EEOC explains that if an applicant requires some special assistance, i.e., an “accommodation” of his or her disability in order to apply for a position, such as providing materials in accessible formats, like Braille or on audiotape, or providing or modifying equipment or devices, an applicant should request such accommodation and a prospective employer is required to provide a reasonable accommodation to assist in the application process. An employer is not, however, required to provide exactly the accommodation requested by the applicant if another accommodation might serve the same purpose, nor is the employer required to provide an accommodation that would constitute an “undue hardship” on the employer, in terms of cost or difficulty in providing the accommodation. The Fact Sheet suggests that an applicant advise a prospective employer of the need for an accommodation in the hiring process as soon as possible, in order to allow the employer to make appropriate arrangements.

The next three sections of the Fact Sheet, entitled Asking for an Accommodation, Discussing Disability with the Potential Employer, and Discussing Accommodation to Perform the Job, summarize the types of conversations an employer might have with a prospective employee. These sections note that while an employer should not initiate conversations regarding disability during the pre-employment phase, once a candidate has identified the need for an accommodation, an ongoing exchange has been commenced, in which the prospective employee has an obligation to be forthcoming with regard to the accommodations that would help him or her through the application process and the performance of the job in question, as well as with regard to documentation of a disability, should an employer request same. The Fact Sheet also notes that the ADA imposes confidentiality requirements on employers, and so medical information revealed during the hiring process is considered confidential.

In a section entitled Being Qualified for the Job, the Fact Sheet explains to applicants that an employer need not hire an individual whose disability, even with a reasonable accommodation, prevents him or her from performing all of the essential functions of a job. Such an applicant is not considered “qualified.” However, the Fact Sheet distinguishes essential duties from minor duties, noting that it is improper for an employer to reject a candidate simply because he or she cannot perform a task that is not among the major job duties. The Fact Sheet also advises that if an individual’s disability poses a “significant risk of substantial harm” to the candidate or to others, then the employer, after duly investigating the risk, may appropriately refuse to hire that individual.

The Fact Sheet also provides would-be employees with links to and contact numbers for additional information about the ADA, and advises of how to file a charge of discrimination in the event it appears a prospective employer has violated the ADA.

The Fact Sheet, with its practical guidance, provides job candidates with the basic information needed to invoke their ADA rights during the pre-employment phase; employers should be aware that properly armed candidates will require careful compliance with ADA requirements, and should, accordingly, refamiliarize themselves with the ADA requirements and, if needed, fine-tune their application processes. For specific guidance, or advice on practices, employers should feel free to contact any of the attorneys in Gibbons Employment Law Practice.