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Disabilities-related pre-employment
screening
By Kent Hanszen
Board Certified - Civil Trial Law
Texas Board of Legal Specialization
The Americans with Disabilities Act of 1990 was passed to protect most American workers from discrimination on the basis of disabilities. Under the ADA, employers may not deny employment to or take adverse employment action against disabled employees who can perform the essential functions of their jobs with reasonable accommodation. The Equal Employment Opportunity Commission is tasked with enforcing the ADA.
Pursuant to EEOC guidelines, employers violate the ADA when they ask disability-related questions at the wrong time in an interview process. This article sets forth general precautions employers must take to avoid running afoul of the ADA while screening potential employees.
Under the ADA, employers may not ask disability-related questions until after they have made a conditional job offer to a potential employee. Similarly, employers may not require medical examinations until a conditional offer is made. This pre-offer prohibition is designed to ensure that employers fully evaluate an applicant�s non-medical qualifications, particularly in the case of a hidden disability, before excluding a candidate on the basis of a disability.
Although employers may not inquire specifically about a disability during an interview, they may fully discuss the job requirements and ask whether the potential employee would be able to meet those requirements. For example, employers may:
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State that the job requires employees to lift 20 pounds or more and then ask whether the applicant can fulfill that requirement;
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Ask applicants to describe or show how they would fulfill job requirements; and,
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Ask about any of the applicant�s non-medical qualifications, such as education and training.
After a conditional job offer is made, employers may then ask disability-related questions or require medical examinations. They must, however, require all potential employees to submit to these requests. In short, if one potential employee is compelled to submit to a physical examination after receiving a conditional offer, then all potential employees similarly situated must submits to the same physical examination.
If an employer wishes not to hire a potential employee after disability-related questions have been asked, the employer must be able to show that the reason for the rejection is job related and consistent with business necessity. If the employer determines that employment of the applicant would pose too great of a safety threat to be hired, the employer must be able to demonstrate that hiring the potential employee would create a serious risk of harm to the applicant or to others and that the risk could not be reduced through reasonable accommodation.
Kent Hanszen can be reached at Hanszen Laporte, 4309 Yoakum, Houston, Texas 77006 or by phone at (713) 522-9444, fax (713) 524-2580, or e-mail to
[email protected].
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