Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alexander Sperry | The Daily Recorder | Feb 7, 2012

Consider this scenario: An individual calls in response to an employer’s listing for a warehouse position. When asked to come in for a two-hour interview, the applicant mentions having “trouble sitting for long periods” due to his “bad back,” and asks if the interview can be broken up into two, one-hour visits. He also discloses that he never graduated from high school because of a “learning disability,” but states he has great prior experience.

This hypothetical raises a number of issues regarding pre-employment inquiries and the duty to provide “reasonable accommodation.” May the employer lawfully deny the applicant an interview because of his “bad back?” What about the request for a change in the interview process? What questions can the employer ask to assess the applicant’s physical limitations, and when can it ask them? Can the company reject the applicant because he lacks a high school diploma?

Modifying the Hiring Process

Employers must provide applicants with disabilities with reasonable accommodations to participate in the application process itself. Accommodations can take many forms, but may include: providing written materials, such as job applications or pre-hire testing, in accessible formats such as large print, braille or audiotape; providing sign language interpreters during an interview; giving applicants additional time to take pre-hire tests, and otherwise adjusting application policies and procedures.

As with all reasonable accommodations, an employer does not need to provide a specific accommodation if it would cause an “undue hardship” by creating significant difficulty or expense for the employer.

To determine whether modifications to the application process are necessary, employers may tell applicants what the hiring process involves and then ask them if they will require any accommodation for this process. However, an individual’s request for accommodation during the hiring process should not automatically exclude that person from consideration. Instead, the employer should determine the need for accommodations during the hiring process separately from those that may be needed to ultimately perform the job.

Assuming the employer accepted the applicant’s claim of disability at face value, it would have to decide whether to grant the modified interview format. If the disability were bona fide, the change to the interview format likely would be a form of reasonable accommodation, and one that can be accomplished without undue hardship.

Is the Applicant “Qualified?”

State and federal laws prohibit discrimination against a “qualified individual with a disability.” To be “qualified” an applicant must first satisfy the job’s necessary “skills, experience, education and other job-related requirements” and be able to perform the job’s “essential functions” “with or without reasonable accommodation.”

An employer need not hire someone who lacks necessary credentials or who or will be unable to perform the position’s primary duties even with accommodation. However, the employer must be careful in how it makes these determinations.

For example, disability anti-discrimination laws generally prohibit employers from asking disability-related questions or conducting medical evaluations until after making conditional offers of employment. This means employers should not ask in interviews or on applications whether applicants will require reasonable accommodation, since this would likely elicit disability-related information. For the same reasons, employers should not ask applicants about prior workers’ compensation filings, job injuries or illnesses.

An employer has greater leeway to make pre-offer accommodation inquiries where it is reasonable to presume an applicant’s need for accommodationäóîeither because a disability is obvious (e.g., the applicant is in a wheelchair or arrives with a guide dog to the interview) or because the applicant volunteers the need for accommodation. For example, because the applicant in the above example volunteered information about his “bad back,” the employer can ask him about his need for any accommodation in this regard if hired. However, the employer must not ask more probing questions about the disability itselfäóîe.g., asking whether the applicant’s back issue “is related to any disease or chronic medical problem?”

To determine whether the applicant is qualified, employers also may ask candidates whether they will be able to perform the job’s essential duties “with or without a reasonable accommodation.” Similarly, employers can ask applicants to describe or demonstrate how they would perform the job’s functions if hired. For example, an employer could ask an employee to demonstrate climbing a ladder, if doing so were an essential job requirement.

Once the employer makes a conditional job offer, the employer can also require the applicant to undergo a medical examination to confirm the candidate’s ability to meet job-specific physical requirements of the position (e.g., lifting, bending, etc.). However, medical examinations must be the final step in the application process and consistently required for the position.

An employer is permitted to ask applicants, at any time, whether they meet a position’s bona fide qualifications, and may end the hiring process if it determines such prerequisites have not been met. As such, an accounting firm hiring a CPA need not consider what may be required to accommodate a physically handicapped applicant who does not possess the required CPA license.

Still, employers may not disqualify disabled applicants who fail to satisfy arbitrary qualification standards. If a job requirement effectively screens out candidates because of a disability, the employer must demonstrate that the qualification is “job related” and “consistent with business necessity.”

For example, the Equal Employment Opportunity Commission recently opined that because an employer’s high school diploma requirement could screen out applicants with learning disabilities, an employer may not apply this standard, unless it can show that it accurately measures the ability to perform the particular job’s essential functions. Thus, in the example above, it may be difficult for the employer to lawfully disqualify the applicant for lack of a diploma, where his prior work experience and job skills are likely to be better measures of his ability to perform the warehouse job. At the same time, if the job requires skills that are related to a high school education, the diploma may be a bona fide job requirement.

With unemployment remaining high, employers often may choose from many qualified applicants. To avoid potential liability, hiring managers must carefully comply with laws and regulations regarding the hiring of individuals with disabilities, as well as other members of protected groups.