BY: Tad T. Roumayah | IN: Employment Law
When the Americans with Disabilities Act (ADA) became law three decades ago, it was a game-changer for the tens of millions of Americans who were unfairly excluded from so many aspects of life that others took for granted. When you see a ramp next to a set of stairs, braille on an elevator button, or a lift that can help someone get on a city bus, you can thank the ADA. But accessibility to buildings, businesses, and transportation wasn’t the only way that the Act attempted to level the playing field for those with disabilities.
All too often, talented, capable, and hard-working individuals were denied job opportunities solely because of the prejudice and perceptions of employers who equated disability with inability. Discrimination against those with disabilities during the job application and interviewing process kept countless Americans from pursuing their employment and career goals.
Before the ADA, most employers would have been well within their rights to refuse to hire an otherwise qualified and competent individual because they were wary of the perceived limitations that came with a candidate’s disability. That is no longer the case. Job seekers with disabilities have rights that all private employers with 15 or more employees must respect. And employers have obligations to treat candidates with disabilities fairly, including making accommodations for qualified individuals that allow them to perform the jobs for which they applied.
Like so many laws, the ADA is lengthy, nuanced, and subject to interpretation when applied to specific circumstances. Whether a particular act, statement, or decision violates the ADA is a fact-specific determination, and not every rejection email amounts to prohibited discrimination. However, all job seekers with disabilities should have a basic understanding of what employers can do, can’t do, or must do during the hiring process.
The ADA applies to all private employers with 15 or more employees and state and local government employers. It prohibits discrimination against individuals who are “disabled,” which for purposes of the ADA means someone who:
Like every other candidate, those with disabilities must have the requisite qualifications, education, experience, and skills needed for the job. But they must also be able to perform the “essential functions” of the job. If the disability makes that impossible, then refusing to hire someone on that basis likely isn’t discrimination. For example, if an “essential function” of a job at a moving company is the ability to lift and carry large appliances and heavy boxes, it would not violate the ADA to decline a job offer to a candidate who must use a wheelchair.
However, often, a disability may not make it impossible to perform a job’s essential functions. Instead, a qualified candidate may be perfectly capable of meeting the job’s requirements if the employer would make reasonable adjustments to their policies, facilities, or the ancillary responsibilities of a position to accommodate the disability.
Employers’ duty to make a “reasonable accommodation” for individuals with disabilities – both during the application/interview process and once a candidate is hired – is perhaps the most critical aspect of the ADA regarding disability discrimination in employment.
Under the ADA, an employer cannot simply say “tough luck” to a qualified candidate with disabilities just because their existing hiring process or the way a position has been traditionally performed would have the result of excluding the candidate. The employer has an affirmative obligation to make a reasonable accommodation for the disability so that the candidate enjoys the “benefits and privileges” of employment available to employees without disabilities.
Not every accommodation is necessarily reasonable. If it would cause an “undue hardship” that would require significant difficulty or expense, an employer may not be obligated to provide it. However, an employer cannot refuse to provide an accommodation solely because it entails some costs, either financial or administrative. If the requested accommodation causes an undue hardship, the employer still would have to provide another accommodation that does not.
This obligation applies to the hiring process, where examples of reasonable accommodation may include:
Job candidates who need a reasonable accommodation during the hiring process should request it from the employer as soon as possible.
If a candidate believes that a reasonable accommodation will be necessary to do the job, they need to address that issue with the employer as well, especially if their disability is not readily apparent. That is because the ADA prohibits employers from asking questions that are likely to reveal the existence of a disability before making an offer. However, employers can ask such questions and require a medical examination after extending a job offer but before the individual starts work.
Significantly, an employer cannot discriminate against a candidate because they asked for a reasonable accommodation, whether relating to the application process or the job itself.
Whether or not an employer met its reasonable accommodation obligations under the ADA depends on the specific facts and circumstances involved. Working through such requests, making needed adjustments, or determining that a requested accommodation causes an “undue burden” involves specific requirements too numerous to discuss here. Meeting with an experienced employment discrimination attorney is the best way to understand your rights before, during, and after the application process
The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing the ADA’s employment non-discrimination provisions. When a job candidate believes that a prospective employer discriminated against them in the hiring process due to their disability, they can file a charge of discrimination with the EEOC. The commission also provides employees and employers with extensive information and guidance about their respective rights and obligations related to hiring.
While the ADA has been the law of the land for 30 years, discrimination against individuals with disabilities sadly persists. Whether due to ignorance of the law or ignorance about disability, an employer that excludes qualified individuals from job opportunities is engaging in precisely the conduct the ADA was designed to counter – and now makes illegal.
Besides filing a charge with the EEOC, individuals who face disability discrimination in hiring or employment should discuss their concerns and questions with knowledgeable counsel who can best advise them on how to proceed. Please contact the employment law attorneys at Sommers Schwartz today.
View all posts byTad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.