What you should and shouldn't ask an applicant.
The Americans with Disabilities Act (ADA) makes it unlawful for a covered employer to discriminate against a qualified applicant or employee with a disability. The ADA applies to private employers having 15 or more employees and engaged in commerce. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA.
The ADA prohibits employers from asking questions that are likely to reveal the existence of a disability before making a job offer (i.e., the pre-offer period). This prohibition covers written questionnaires and inquiries made during interviews, as well as medical examinations. However, such questions and medical examinations are permitted after extending a job offer but before the individual begins work (i.e., the post-offer period).
At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. This includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability. On the other hand, if there are many possible answers to a question and only some of those answers would contain disability related information, that question is not "disability-related."
An employer may not ask a third party (such as a service that provides information about workers' compensation claims, a state agency, or an applicant's friends, family, or former employers) any questions that it could not directly ask the applicant.
Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:
- Employers may ask about an applicant's ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.
- Employers may ask about an applicant's non-medical qualifications and skills, such as the applicant's education, work history, and required certifications and licenses.
- Employers may ask applicants to describe or demonstrate how they would perform job tasks.
Adapted from Pastor, Church & Law by Richard R. Hammar.
For more help on employment law, check out the article " Reviewing Your Church's Employment Policies and Practices " and the recent development " ADA and Church Hiring. "