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Title I: - Non-discrimination in the Hiring Process
Portions of Title I of the ADA cover non-discrimination requirements in the recruitment, application process, including pre-employment inquiries, testing, etc.
It is advisable that job announcements, advertisements, and other recruitment notices include information on the essential functions of the job. Specific information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications.
Information about job openings should be accessible to people with different disabilities. An employer is not obligated to provide written information in various formats in advance, but should make it available in an accessible format on request.
When an employer uses an employment agency to recruit, screen, and refer potential employees, both the employer and the employment agency may be liable if there is any violation of ADA requirements.
The ADA prohibits any pre-employment inquiries about a disability. This prohibition is necessary to assure that qualified candidates are not screened out because of their disability before their actual ability to do a job is evaluated.
The prohibition on pre-employment inquiries about disability does not prevent an employer from obtaining necessary information regarding an applicant’s qualifications, including medical information necessary to assess qualifications and assure health and safety on the job.
The ADA requires only that such inquiries be made in two separate stages of the hiring process.
What are the basic requirements regarding pre-offer inquiries or interviews?
An employer may not make any pre-employment inquiry about a disability, or about the nature or severity of a disability
An employer may not make any medical inquiry or conduct any medical examination prior to making a conditional offer of employment.
An employer may ask a job applicant questions about ability to perform specific job functions, tasks, or duties, as long as these questions are not phrased in terms of a disability. Questions need not be limited to the "essential" functions of the job. Questions may be asked regarding ability to perform all job functions, not merely those that are essential to the job.
An employer may ask all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.
If an individual has a known disability that might interfere with or prevent performance of job functions, she or he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however, if a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how she or he will perform a job if this is required of all applicants for the position.
An employer may condition a job offer on the results of a medical examination or on the responses to medical inquiries if such an examination or inquiry is required of all entering employees in the same job category, regardless of disability; information obtained from such inquiries or examinations must be handled according to the strict confidentiality requirements of the ADA.
An interviewer may not ask questions about a disability, but may obtain more specific information about the ability to perform job tasks and about any needed accommodation.
Where an applicant has a visible disability (for example, uses a wheelchair or a guide dog, or has a missing limb) or has volunteered information about a disability, the interviewer may not ask questions about
An employer may ask questions to determine whether an applicant can perform specific job functions. The questions should focus on the applicant’s ability to perform the job, not on a disability.
An interviewer may not ask whether an applicant will need or request leave for medical at or for other reasons related to a disability.
The interviewer may provide information on the employer’s regular work hours, leave policies, and any special attendance needs of the job, and ask if the applicant can meet these requirements (provided that the requirements actually are applied to employees in a particular job).
Information about previous work attendance records may be obtained on the application form, in the interview or in reference checks, but the questions should not refer to illness or disability.
Employers may use any kind of test to determine job qualifications. The ADA has two major requirements in relation to tests:
Are accommodations required in the hiring process?
The employer must provide an accommodation, if needed, to enable an applicant to have equal opportunity in the interview and testing process. Needed accommodations may include: