Everybody knows the Americans with Disabilities Act (ADA) protects people with disabilities against job discrimination. But exactly which questions are okay to ask in an interview, and which are illegal?
What kind of questions can an employer ask?
There must be a legitimate business need that is job-related to ask a question, and it cannot be aimed at finding out if you have a disability. For instance, if the job involves driving an interviewer cannot ask if you have a visual impairment that prevents you from operating a vehicle, but they can inquire whether or not you have a driver’s license.
An employer cannot ask:
• If you have a disability.
• How many sick days you took with another employer.
• About your worker’s compensation history.
• What medications you’re taking, or have taken.
• How much you drink, or if you’ve been in an alcohol rehabilitation program. (Alcoholism is considered a disability under the ADA.)
• If you’ve ever had a psychiatric evaluation.
However, an employer is allowed to ask:
• Whether you can perform essential functions that are part of the job you want.
• How you’ll perform a job function, if they know you have a disability.
• What reasonable accommodation you’ll need, if you have an obvious disability or disclose.
• How often you need breaks and what length they need to be, if you have an obvious disability or disclose.
• Whether or not you drink, or if you’ve been convicted for driving under the influence.
• If you use illegal drugs, if you’ve ever used illegal drugs, or what illegal drugs you’ve used in the last six months. (Drug addiction is considered a disability under the ADA.)
What should you do if an employer asks an illegal question during an interview?
There is no perfect answer. You may have to decide whether your primary goal is to get the job, or force the employer to change the interview process. If you decide you want the job more, you can refuse to answer the question without being combative or you can answer honestly. If not, file a complaint with the Equal Employment Opportunity Commission (EEOC) or state or local human rights agency. You can also file a complaint if you refuse to answer illegal questions and then don’t get the job.
Will I win my case if I file a complaint?
Not necessarily. You have to prove that the employer asked an illegal question, that you were not hired as a result of your answer to that question, and that you were able to perform the functions needed for that job, whether or not you would have required reasonable accommodation. There must be solid evidence that the decision not to hire you was based, at least in part, on your disability.
How do you prove you weren’t hired as a result of your disability?
You must prove that:
1. You have a disability.
2. You were qualified for the position.
3. You were not hired for the job.
4. The job remained unfilled or was filled by someone without a disability.
Then, the employer has to give a reason you weren’t hired that doesn’t involve discrimination, such as you weren’t qualified or you weren’t as qualified as the person who got hired.
Finally, you must demonstrate that the reason given by the employer is untrue, and that it was really your disability that prevented you from getting the job.
What can you do if you find an illegal question on a written application?
You can leave the question blank. Or, you can ask to take the job application home to complete and then show it to the EEOC or human rights agency and ask them to take it up with the employer without revealing where they got their information. You can still turn in the application, and this may get the application changed for those who come after you. But will the employer guess who caused a ruckus? Possibly.
What if the employer asks an illegal question, but still extends a job offer to you?
It’s possible the employer violated the ADA if they offer you the job, or if you withdraw your application before a hiring decision is made. You may ask the EEOC or a human rights agency to investigate in order to get the employer to remove the question from the interview process, but that’s more than likely going to cause friction at your new job.
Do people with disabilities get preference for jobs under the ADA?
Nope. If someone is more qualified for the job than you, the employer can choose them. Even if you are equally as able to perform the job as someone who does not have a disability, the employer is not obligated to choose you as long as the reason for the choice doesn’t involve your disability.
The information contained above is not intended to substitute for legal advice.
