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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: ADA Pitfalls in the Hiring Process
June 26, 2007, Volume 9, No. 26
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: ADA Pitfalls in the Hiring Process
Do you know what your obligations are to accommodate a disabled
applicant? Responding correctly can mean the difference between
creating an effective hiring process and defending against a
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THIS WEEK'S E-TIP: ADA Pitfalls in the Hiring Process
How far do you have to go to accommodate a disabled applicant?
The
answer is deceptively simple. Under the
Americans with Disabilities Act
(ADA), you must provide "reasonable accommodation" to qualified
disabled individuals in all aspects of employment, including
hiring, unless
the accommodation would cause undue hardship.
In the case of disabled job candidates, your accommodation
obligations
often are two-fold. First, you may have to accommodate a
disabled
person in the application process, for example, by providing
extra time to
take a test or making your facilities accessible. Second, you
may have
to offer an accommodation that would allow the applicant to
perform the
essential functions of the job. Find out both what you have to
do to
facilitate the application process and what type of job
accommodations
you should consider.
Which Applicants Are Covered
The ADA defines a "qualified individual with a disability" as an
individual
who has the requisite skills, experience, education, and other
job-related
requirements. The person also must be able to perform the
essential
functions of the job, with or without reasonable accommodation.
A "disability" is defined as (1) a physical or mental impairment
which
substantially limits one or more major life activities; (2)
having a record of
such an impairment; or (3) being perceived to have such an
impairment.
The regulations implementing the law further define physical
impairments
as any physiological disorder or condition, cosmetic
disfigurement, or
anatomical loss affecting the body systems.
The regulations state that the term "substantially limits" means
the
person is unable to perform a major life activity that the
average person
in the general population can perform. Alternatively, it means
that the
person is significantly restricted in the way he can perform a
particular
major life activity as compared to the average person. Thus,
impairments that interfere with a major life activity in "only a
minor way"
are not covered.
The ADA regulations indicate that "major life activities"
include functions
such as caring for oneself, performing manual tasks, walking,
seeing,
hearing, speaking, breathing, learning, and working. An Equal
Employment Opportunity Commission (EEOC) Guidance also
identifies
thinking, concentrating, sleeping, and interacting with others
as major life
activities.
Accommodations in the Hiring Process
As a general rule, the ADA prohibits preemployment medical
inquiries
and examinations. Thus, you may not ask about the existence,
nature,
or severity of a disability and may not conduct a
medical examination
until after you extend a conditional offer of employment to the
applicant.
However, according to the Guidance, you may inform job
applicants that
a specific selection procedure (such as an interview, written
test, or job
demonstration) is part of the hiring process and ask applicants
to identify
any reasonable accommodation needed for the procedure.
Further, both the regulations and the Guidance establish that if
an
applicant requests reasonable accommodation in the
hiring process, or
requires an accommodation to perform the essential functions of
the job,
you may require the applicant to document the existence of a
disability, if
the need for accommodation is not obvious.
Reasonable accommodation in the hiring process includes making
modifications or adjustments to the job application and
selection
procedures that allow a qualified applicant with a disability to
be
considered for the position. The EEOC Technical Assistance
Manual
gives several examples of these types of modifications. |
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For example, it may be necessary to use a qualified interpreter for a
job
interview with a hearing-impaired applicant. Similarly, a disabled
individual with a back impairment may require a cart to demonstrate his
ability to perform the essential job function of transporting boxes
weighing 50 pounds, unless doing so would present an undue hardship
for the employer.
You also may be required to accommodate a qualified disabled individual
by modifying or adjusting the job position desired. According to the
regulations, reasonable accommodations of a job position may include:
making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; job restructuring; part-time or
modified work schedules; acquisition or modification of equipment or
devices; appropriate adjustment or modifications of examinations,
training materials, or policies; and the provision of qualified readers
or
interpreters. Reassignment to a vacant position, a possible
accommodation for current disabled employees, is not required for
disabled applicants.
Make Your Organization Accessible
The idea of accommodating a disabled individual under the ADA can be
overwhelming. In addition to having to master a new vocabulary, you
may feel as though you must be a legal expert, a physical therapist, and
a building accessibility specialist to determine what actions are
appropriate. However, as a practical matter, disabled individuals often
know the specific accommodations they need to work effectively, and
many modifications are relatively inexpensive.
Of course, if disabled applicants can't get in your front door to apply
for a
job, then your willingness to accommodate becomes highly questionable.
So make sure that your workplace is accessible to disabled candidates
and that your hiring process does not deter them from applying for a
job.
For example, if your HR offices are on the second floor and there is no
elevator, make provisions so applicants with mobility problems can be
processed on the first floor. Similarly, if a blind candidate cannot
fill out
your application, have an HR staffer ask the questions and write in the
answers.
You can show your commitment to complying with the ADA by taking a
few simple steps to make your workplace accessible and friendly to the
disabled. It makes good business sense and can protect you against
liability for disability discrimination. |
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on the ADA, reasonable accommodation,
and the hiring process in Hiring, Chapter 202, note 19.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
http://www.hrpolicyanswers.com.
If you have any questions, please call us at 1-800-437-3735. We'll
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happy to help you. |
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Information provided in HR Matters E-Tips is researched and reviewed
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