110,000 reasons to remember that the ADA’s duty to accommodate starts before saying, “You’re hired.”

Pixabay.comHere’s a snippet from a recent EEOC press release:

The [Americans with Disabilities Act] protects employees from discrimination based on their disabilities and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as it does not pose an undue hardship.

That’s employees and applicants. And, that’s important.

The duty to accommodate begins early.

Here’s more from the same EEOC press release, announcing a $110,000 settlement amidst allegations of disability discrimination in the hiring process:

During a group interview, the two women used American Sign Language to communicate with one another, and the company became aware that they were hearing-impaired. In a meeting with one of the supervisors, Baker and Rice requested that the supervisor provide written information about the positions for which they were applying. The supervisor initially complied, but then refused to continue writing information for Baker and Rice, according to the suit. Baker and Rice were then told that S&B Industry would not hire them.

Indeed, in its reasonable accommodation guidance, the EEOC confirms that you “may tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.”

And, when the need for an accommodation is obvious, as it was here, the company may inquire about whether the applicant will need a reasonable accommodation to perform the essential functions of the job.

But, be careful about seeking TMI too early.

Because, usually, you can’t turn the application process into a series of disability-related inquiries.

Indeed, the ADA prohibits employers from making “inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Therefore, unless the need for an accommodation is obvious, companies should refrain from asking applicants whether they’ll need a reasonable accommodation to perform the essential functions of the job.

Better yet, go grab your job applications and your red pen and start going to work on questions about reasonable accommodations needed to perform the essential functions of the job. Those are pre-offer disability-related inquiries.

Better to wait until after a conditional offer.

The EEOC’s reasonable accommodation guidance reaffirms that “after a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job”; provided that it does so for all folks in the same job category.

Other tips for employers.

  1. Nothing in the ADA stops an employer from drug testing job applicants.
  2. Nothing in the ADA stops an employer from asking, “How will you perform this job?”
  3. If an applicant volunteers that she has a disability and needs an accommodation to perform the essential functions of the job, go ahead and have that interactive dialogue to inquire about reasonable accommodations.
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