Show 09 __ Pre-employment and the ADA
In this episode, Rachel Kosoy moderates a presentation by Sharon Rennart on the topic of "Pre-employment and the ADA". The full-length webcast originally aired on May 26, 2004 and can be found at:
Pre-employment and the ADA Webcast
Beth Case:The Southwest ADA Center Podcast, Show number 9.
(music)
Beth: Hello, and welcome to the Southwest ADA Center Podcast. I'm your host, Beth Case. I want to thank Gordon Philpott for filling in for me on show number 8. I had completely lost my voice, but didn't want to delay the episode, so thanks to Gordon for stepping up.
In this podcast, we bring you highlights from the longer webcasts offered by the Southwest ADA Center. If you like what you hear and you want to hear more, you can go to our website at www.ada-podcast.com and find the link where you can listen to the full-length webcast.
In this episode, Rachel Kosoy interviews Sharon Rennert of the U.S. Equal Employment Opportunity Commission, better known as the EEOC. This webcast originally aired on May 26, 2004.
Sharon Rennert: What I want to start is to review the ADA employment rules regarding pre-employment questions and medical examinations. I'm sure many people out there are very familiar with it or maybe slightly familiar. Sometimes it can get a bit confusing. So I want to kind of take the first 15 or 20 minutes just to remind us all about what the ADA rules are when it comes to applicants and employers and the questions that can and cannot be asked, when things can be asked.
And then I'll open it up for your questions. But to remind us all at the beginning, the ADA rather uniquely for the employment discrimination laws actually sets out some dos and don'ts about what questions an employer can ask, cannot ask, or the timing of asking certain things. And that is unique. The other civil rights laws may discourage asking certain questions, may say it's not advisable to ask certain questions, but the other civil rights laws don't actually have prohibitions, whereas the ADA does. And the reason has to do with the fact that prior to the ADA, those of us who are old enough to remember this, employers routinely asked questions about applicant's medical history, about what kinds of medical conditions they may have, what they've been treated for, and oftentimes employers made decisions based on answers they got, and they may have gotten very little information. Maybe all they knew was that somebody had a condition or maybe at some point in their life did or a family member did, and that may have been the deciding factor to rule out a person's application. Of course the employer didn't have to say that that was the deciding factor. The employer could say, oh, there was something in your qualifications, or there was something in your education, and the employer might really stop at something that really should never have been a major issue to begin with. They never really gave serious consideration to somebody's true qualifications. So that's the reason when Congress got around to drafting the ADA, it decided to put some prohibitions on when employers could delve into medical issues.
And so we really divide the application process into two parts. The first part -- what we've come to call the pre-offer period, obviously before a job offer is given to an applicant. The second part, the post-offer period, after a job offer has been made, but before the individual actually starts working.
And during the pre-offer period, as I think everybody is well aware, employers are prohibited from asking questions that are likely to elicit whether or not an applicant has a disability. That's the standard we use. As with most requirements under the ADA, there is usually a standard that's been adopted. And the same is true here, that employers have been told they cannot ask questions that are likely to elicit whether or not an applicant has a disability. In other words, finding out that someone doesn't have a disability is just as bad as finding out that somebody does. The whole idea here is that the employer should not be focusing questions on whether or not applicants might have disabilities.
And so that means a wide range of questions are off limits. Now, clearly, do you have a disability is off limits. Asking about the presence of specific medical conditions, whether currently somebody has them or maybe even in the past. So, again, for those of us old enough to remember, there was oftentimes a very long printed list that employers would hand out that would say something like, you know, do you have now or have you ever had any of the following, and it would list every kind of physical and mental conditions that most of us were aware of and many things we'd never even heard of before. And sort of go through all the major body parts and, you know, wanting the know about our physical and mental condition. Those are illegal during this pre-offer period.
Asking people about prescription medications, asking people about hospitalization, all those kinds of questions are illegal. Asking people about workers' compensation history is illegal. Again because maybe that answer reveals whether or not someone has a disability. So, again, you can't ask questions about that.
Well, that's a lot of things you're not supposed to ask questions about. So what is an employer supposed to ask questions about? Obviously, about the ability to do the job. The employer can ask all kinds of questions about the ability to perform the essential functions of the job, the marginal functions of a job. Obviously they can ask about work history, educational history, licenses or certificates that individuals have to have to do certain jobs, all those kinds of questions can be asked. Employers can ask applicants to demonstrate an ability to perform specific job functions. That's permissible to do. They can require physical agility tests. These are usually tests where you might be asked to climb or run or lift and these kinds of tests can be done.
What kind of tests cannot be done? Medical tests, medical examinations. Again, employers are supposed to stay away from anything that is medically oriented. So a medical examination, and medical examinations can be targeted on physical conditions, but also mental conditions. You could not give somebody a psychological examination if that psychological test was designed to, say, diagnose a psychological impairment. That would be illegal to do at this pre-offer stage.
Now, oftentimes employers and applicants wonder, well, what about reasonable accommodation. You know, can employers can questions about that? Well, employers cannot ask the sort of universal question or uniform question of every one, do you need reasonable accommodation to do this job? That's around about way in essence of asking do you have a disability because who needs reasonable accommodations, who is entitled to reasonable accommodations, it's going to be people with disabilities. So you can't in that roundabout way ask the question. So you're not going to be able to ask of everyone do you need reasonable accommodations? That's different from asking the question, you know, can you perform the job with or without reasonable accommodation? The difference is if I ask about can you perform the job with or without reasonable accommodation, the focus of that question is on performing the job. The focus is not on whether you need an accommodation. Somebody who doesn't need an accommodation, who does not need one can say, yes, I can perform the job. You don't even have to address the accommodation issue.
Similarly, if I do need an accommodation, I can give the same answer. Yes, I can perform the job. I don't have to start talking about the accommodation, but obviously we can contrast that with a question that directly says, well, do you need a reasonable accommodation? There an applicant has to address head on the issue of accommodation, and that is going to be prohibited.
But we do have an exception. We do have an exception, and that is where an employer knows that somebody has a disability. Now, how is an employer going to know someone has a disability? A couple of ways -- one, it's obvious. The employer can tell by looking at the person, observing the person that there is a disability. Maybe it's because the person uses a wheelchair, maybe it's because the person is missing a limb, maybe it's because the person is blind. A person can tell that there is a disability, but an employer may also know that someone has a disability because the individual volunteered the information. This is the situation where it's a hidden disability. You can't tell by looking at the applicant that she has a disability, but the applicant has chosen to volunteer the information. So the employer knows the person has a disability. With that knowledge of disability, the employer is sitting there thinking maybe with that disability it might pose some problems performing certain job functions. And we wouldn't want the employer to be thinking, oh, well, maybe there is a problem, but I can't ask any questions and so you know what, I'm going to be safe rather than sorry and I'm just going to eliminate this person from consideration. Obviously that is counterproductive. Nobody wants that result.
So instead when an employer knows a person has a disability, and it is reasonable for the employer to wonder, to question, maybe with this disability there might be some difficulties performing specific job functions, in that situation an employer is entitled to ask the applicant two questions. The first question is would you need a reasonable accommodation to perform the following job function? So the idea here is that the employer is speculating, wondering, is there going to be a problem performing a certain job function rather than the employer just, you know, having that going around in his head. Better to ask the question, will you need a reasonable accommodation to perform the specific job function I'm thinking about? If the answer to that question is yes, I would need an accommodation, then the employer is entitled to ask the obvious follow-up question. Well, what form of accommodation would you need? So those are the two questions the employer can ask. Will you need a reasonable accommodation to perform a specific job function where I, as the employer, reasonably can wonder could there be a problem, could there be a need for accommodation? Will you need a reasonable accommodation? And if the answer is yes, what accommodation would you need? Those are the two questions about accommodations to perform the job that an employer can raise. Obviously this is going to come about probably in a job interview. The employer can do that. Notice, however, the employer is not allowed to ask about the disability. So the fact that somebody might -- who is using a wheelchair -- might start talking about, yes, I would need an accommodation to do this job function, the employer can't follow up by saying, and by the way, why do you use a wheelchair? That would be an illegal question to ask.
Okay, so that's sort of broadly the pre-offer period. The one other thing about accommodation to mention is employers can put into their job advertisements or their job notices, however they are advertising or on websites that they do provide reasonable accommodation. They can say that as a general statement that they provide it. They can specifically say they provide it for the job application process, and they can invite applicants to let them know if, indeed, an applicant will need an accommodation in order to access the job application process.
A person might need to get written materials in an alternative format. A person who uses a wheelchair, in order to come in for a job interview, may need to make sure that the facility is accessible. A person who is deaf may need to request a sign language interpreter. So there may be different accommodations that applicants will need in order to equally compete for a job and in order to make sure that the employer gets those requests in a timely way, the employer can put on all of its job ads or job notices that it does welcome requests for accommodation for the application and interviewing process.
Okay, very broadly, we've gone through the pre-offer period. Once an employer makes a job offer, we now move to the post-offer period. And this is the opportunity for an employer basically to ask all the questions that they were prohibited from asking during the pre-offer period and if they wish to do the medical examinations that they could not do pre-offer. Basically, the easiest way to think of the post-offer period is everything that an employer was prohibited from doing pre-offer, it is permitted to do post-offer. All the questions they can ask, all the medical exams that they want to order.
The only requirement here is that the employer ask the same questions and perform the same medical examination for all individuals who are offered this type of job. In other words, what the ADA does not want to have happen is an employer single out somebody with a known disability or someone who looks like he or she might have a disability and say we don't do medical exams for anyone else but you because you have a disability. We want a medical exam. Or because you have an obvious disability, we have questions we want you to answer about disability or tell us do you have these other 50 medical conditions potentially? You can't single out someone with a disability.
Instead, an employer has to decide for a particular job category, so before thee even start interviewing for this job category, we will require post-offer medical examinations or we will require individuals in the post-offer period to answer these disability-related questions. That's the only requirement. Basically, don't single out people with disabilities. Other than that, the employer pretty much has discretion to be doing any type of medical exam and asking just about any kind of disability-related question.
(music)
Beth: This webcast was a really difficult one to edit because every bit of it was so good! This only covers the pre-offer time -- the full webcast continues to cover the post-offer time, and has some great information. So to listen to the full show, visit our website at ada-podcast.com for the link.
Until next time, this is Beth Case with the Southwest ADA Center Podcast.
The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.
(music)
Beth: Hello, and welcome to the Southwest ADA Center Podcast. I'm your host, Beth Case. I want to thank Gordon Philpott for filling in for me on show number 8. I had completely lost my voice, but didn't want to delay the episode, so thanks to Gordon for stepping up.
In this podcast, we bring you highlights from the longer webcasts offered by the Southwest ADA Center. If you like what you hear and you want to hear more, you can go to our website at www.ada-podcast.com and find the link where you can listen to the full-length webcast.
In this episode, Rachel Kosoy interviews Sharon Rennert of the U.S. Equal Employment Opportunity Commission, better known as the EEOC. This webcast originally aired on May 26, 2004.
Sharon Rennert: What I want to start is to review the ADA employment rules regarding pre-employment questions and medical examinations. I'm sure many people out there are very familiar with it or maybe slightly familiar. Sometimes it can get a bit confusing. So I want to kind of take the first 15 or 20 minutes just to remind us all about what the ADA rules are when it comes to applicants and employers and the questions that can and cannot be asked, when things can be asked.
And then I'll open it up for your questions. But to remind us all at the beginning, the ADA rather uniquely for the employment discrimination laws actually sets out some dos and don'ts about what questions an employer can ask, cannot ask, or the timing of asking certain things. And that is unique. The other civil rights laws may discourage asking certain questions, may say it's not advisable to ask certain questions, but the other civil rights laws don't actually have prohibitions, whereas the ADA does. And the reason has to do with the fact that prior to the ADA, those of us who are old enough to remember this, employers routinely asked questions about applicant's medical history, about what kinds of medical conditions they may have, what they've been treated for, and oftentimes employers made decisions based on answers they got, and they may have gotten very little information. Maybe all they knew was that somebody had a condition or maybe at some point in their life did or a family member did, and that may have been the deciding factor to rule out a person's application. Of course the employer didn't have to say that that was the deciding factor. The employer could say, oh, there was something in your qualifications, or there was something in your education, and the employer might really stop at something that really should never have been a major issue to begin with. They never really gave serious consideration to somebody's true qualifications. So that's the reason when Congress got around to drafting the ADA, it decided to put some prohibitions on when employers could delve into medical issues.
And so we really divide the application process into two parts. The first part -- what we've come to call the pre-offer period, obviously before a job offer is given to an applicant. The second part, the post-offer period, after a job offer has been made, but before the individual actually starts working.
And during the pre-offer period, as I think everybody is well aware, employers are prohibited from asking questions that are likely to elicit whether or not an applicant has a disability. That's the standard we use. As with most requirements under the ADA, there is usually a standard that's been adopted. And the same is true here, that employers have been told they cannot ask questions that are likely to elicit whether or not an applicant has a disability. In other words, finding out that someone doesn't have a disability is just as bad as finding out that somebody does. The whole idea here is that the employer should not be focusing questions on whether or not applicants might have disabilities.
And so that means a wide range of questions are off limits. Now, clearly, do you have a disability is off limits. Asking about the presence of specific medical conditions, whether currently somebody has them or maybe even in the past. So, again, for those of us old enough to remember, there was oftentimes a very long printed list that employers would hand out that would say something like, you know, do you have now or have you ever had any of the following, and it would list every kind of physical and mental conditions that most of us were aware of and many things we'd never even heard of before. And sort of go through all the major body parts and, you know, wanting the know about our physical and mental condition. Those are illegal during this pre-offer period.
Asking people about prescription medications, asking people about hospitalization, all those kinds of questions are illegal. Asking people about workers' compensation history is illegal. Again because maybe that answer reveals whether or not someone has a disability. So, again, you can't ask questions about that.
Well, that's a lot of things you're not supposed to ask questions about. So what is an employer supposed to ask questions about? Obviously, about the ability to do the job. The employer can ask all kinds of questions about the ability to perform the essential functions of the job, the marginal functions of a job. Obviously they can ask about work history, educational history, licenses or certificates that individuals have to have to do certain jobs, all those kinds of questions can be asked. Employers can ask applicants to demonstrate an ability to perform specific job functions. That's permissible to do. They can require physical agility tests. These are usually tests where you might be asked to climb or run or lift and these kinds of tests can be done.
What kind of tests cannot be done? Medical tests, medical examinations. Again, employers are supposed to stay away from anything that is medically oriented. So a medical examination, and medical examinations can be targeted on physical conditions, but also mental conditions. You could not give somebody a psychological examination if that psychological test was designed to, say, diagnose a psychological impairment. That would be illegal to do at this pre-offer stage.
Now, oftentimes employers and applicants wonder, well, what about reasonable accommodation. You know, can employers can questions about that? Well, employers cannot ask the sort of universal question or uniform question of every one, do you need reasonable accommodation to do this job? That's around about way in essence of asking do you have a disability because who needs reasonable accommodations, who is entitled to reasonable accommodations, it's going to be people with disabilities. So you can't in that roundabout way ask the question. So you're not going to be able to ask of everyone do you need reasonable accommodations? That's different from asking the question, you know, can you perform the job with or without reasonable accommodation? The difference is if I ask about can you perform the job with or without reasonable accommodation, the focus of that question is on performing the job. The focus is not on whether you need an accommodation. Somebody who doesn't need an accommodation, who does not need one can say, yes, I can perform the job. You don't even have to address the accommodation issue.
Similarly, if I do need an accommodation, I can give the same answer. Yes, I can perform the job. I don't have to start talking about the accommodation, but obviously we can contrast that with a question that directly says, well, do you need a reasonable accommodation? There an applicant has to address head on the issue of accommodation, and that is going to be prohibited.
But we do have an exception. We do have an exception, and that is where an employer knows that somebody has a disability. Now, how is an employer going to know someone has a disability? A couple of ways -- one, it's obvious. The employer can tell by looking at the person, observing the person that there is a disability. Maybe it's because the person uses a wheelchair, maybe it's because the person is missing a limb, maybe it's because the person is blind. A person can tell that there is a disability, but an employer may also know that someone has a disability because the individual volunteered the information. This is the situation where it's a hidden disability. You can't tell by looking at the applicant that she has a disability, but the applicant has chosen to volunteer the information. So the employer knows the person has a disability. With that knowledge of disability, the employer is sitting there thinking maybe with that disability it might pose some problems performing certain job functions. And we wouldn't want the employer to be thinking, oh, well, maybe there is a problem, but I can't ask any questions and so you know what, I'm going to be safe rather than sorry and I'm just going to eliminate this person from consideration. Obviously that is counterproductive. Nobody wants that result.
So instead when an employer knows a person has a disability, and it is reasonable for the employer to wonder, to question, maybe with this disability there might be some difficulties performing specific job functions, in that situation an employer is entitled to ask the applicant two questions. The first question is would you need a reasonable accommodation to perform the following job function? So the idea here is that the employer is speculating, wondering, is there going to be a problem performing a certain job function rather than the employer just, you know, having that going around in his head. Better to ask the question, will you need a reasonable accommodation to perform the specific job function I'm thinking about? If the answer to that question is yes, I would need an accommodation, then the employer is entitled to ask the obvious follow-up question. Well, what form of accommodation would you need? So those are the two questions the employer can ask. Will you need a reasonable accommodation to perform a specific job function where I, as the employer, reasonably can wonder could there be a problem, could there be a need for accommodation? Will you need a reasonable accommodation? And if the answer is yes, what accommodation would you need? Those are the two questions about accommodations to perform the job that an employer can raise. Obviously this is going to come about probably in a job interview. The employer can do that. Notice, however, the employer is not allowed to ask about the disability. So the fact that somebody might -- who is using a wheelchair -- might start talking about, yes, I would need an accommodation to do this job function, the employer can't follow up by saying, and by the way, why do you use a wheelchair? That would be an illegal question to ask.
Okay, so that's sort of broadly the pre-offer period. The one other thing about accommodation to mention is employers can put into their job advertisements or their job notices, however they are advertising or on websites that they do provide reasonable accommodation. They can say that as a general statement that they provide it. They can specifically say they provide it for the job application process, and they can invite applicants to let them know if, indeed, an applicant will need an accommodation in order to access the job application process.
A person might need to get written materials in an alternative format. A person who uses a wheelchair, in order to come in for a job interview, may need to make sure that the facility is accessible. A person who is deaf may need to request a sign language interpreter. So there may be different accommodations that applicants will need in order to equally compete for a job and in order to make sure that the employer gets those requests in a timely way, the employer can put on all of its job ads or job notices that it does welcome requests for accommodation for the application and interviewing process.
Okay, very broadly, we've gone through the pre-offer period. Once an employer makes a job offer, we now move to the post-offer period. And this is the opportunity for an employer basically to ask all the questions that they were prohibited from asking during the pre-offer period and if they wish to do the medical examinations that they could not do pre-offer. Basically, the easiest way to think of the post-offer period is everything that an employer was prohibited from doing pre-offer, it is permitted to do post-offer. All the questions they can ask, all the medical exams that they want to order.
The only requirement here is that the employer ask the same questions and perform the same medical examination for all individuals who are offered this type of job. In other words, what the ADA does not want to have happen is an employer single out somebody with a known disability or someone who looks like he or she might have a disability and say we don't do medical exams for anyone else but you because you have a disability. We want a medical exam. Or because you have an obvious disability, we have questions we want you to answer about disability or tell us do you have these other 50 medical conditions potentially? You can't single out someone with a disability.
Instead, an employer has to decide for a particular job category, so before thee even start interviewing for this job category, we will require post-offer medical examinations or we will require individuals in the post-offer period to answer these disability-related questions. That's the only requirement. Basically, don't single out people with disabilities. Other than that, the employer pretty much has discretion to be doing any type of medical exam and asking just about any kind of disability-related question.
(music)
Beth: This webcast was a really difficult one to edit because every bit of it was so good! This only covers the pre-offer time -- the full webcast continues to cover the post-offer time, and has some great information. So to listen to the full show, visit our website at ada-podcast.com for the link.
Until next time, this is Beth Case with the Southwest ADA Center Podcast.
The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.