Hiring: Don’t Ask That Question

Every employer in the United States with 15 employees or more is required to follow the rules under the Americans With Disabilities Act ("ADA") when conducting a job interview.

The ADA prohibits disability-related inquiries during job interviews before a job offer is made. The purpose is to prevent discrimination in the hiring process against individuals with hidden disabilities.

What kinds of questions are prohibited? Try these:

1. Do you have a disability which would interfere with your ability to perform the job?
2. What prescription drugs are you currently taking?
3. How much alcohol do you drink each week?
4. Have you ever filed for worker's compensation?
5. How many days were you sick last year?
6. Have you ever been injured on the job?

Are there questions an employer can ask that might disclose the information the employer is really looking for? These questions are permitted:

1. Can you meet the attendance requirements of this job?
2. How many days did you take leave last year?
3. Can you perform the functions of this job with or without reasonable accommodation?
4. Do you have the required licenses to perform this job?
5. Do you illegally use drugs? (You cannot ask, "How often did you use illegal drugs in the past?" or "Have you ever been treated for drug addiction?")

Once the employer has made a bona fide job offer and before the employee starts work, the employer may make disability-related inquiries and require medical examinations. Employers may condition the employment offer on the results of the inquiries and examinations if all employee candidates for that job category must go through the same inquiries and tests and the information obtained is kept confidential.

If an individual with a disability is refused the job because of the results of the post-offer examination or inquiry, the employer has the burden of proving that the reasons for the withdrawal of the offer are job-related and consistent with business necessity, and that the essential job functions could not be performed by the disabled individual with reasonable accommodation provided by the employer.

If an individual with a disability is rejected for a job without an attempt at appropriate accommodation or asked the wrong questions in a job interview, the Equal Employment Opportunity Commission will welcome the rejected individual and will conduct an examination on behalf of that individual without expense to the individual.

A survey published by the United States Census Bureau estimates that 49 million Americans have disabilities that would be covered by the ADA ranging from asthma to AIDS. With this number of job applicants in the market with potential rights under the ADA, employers must establish appropriate procedures for interviewing.