Ohio Disability Discrimination Attorney Best Answer: Can an employer ask me during a job interview to disclose whether or not I suffer from a disability? Can I decline to disclose a medical condition on my job application? What kind of lawyer do I need to sue my job for employment discrimination?
The latest and greatest innovation in Human Resources technology is to allow applicants to apply for jobs online. Paper applications are gradually being phased out by a lot of corporations in favor of using electronic applications. Online applications allow employers to shift through thousands of candidates to figure out who best suits the needs of the company and the position. Many of the new innovations to the application process include a section to self-identify your race, veteran status, and even if you suffer from a disability under the ADA. Are applicants, when asked to self-identify as disabled required to disclose a disability on an employment application?
As our employment discrimination attorneys have discussed, under the Americans with Disabilities Act (“ADA“), an employer cannot discriminate against qualified applicants because they suffer from a disabling condition. (See Can I Sue If I Was Turned Down For A Job Because Of Discrimination? Best Lawyer Reply!). Our employment law lawyers have address other forms of discrimination in the hiring process as well. (See Top Employment Law Lawyer Reply: Can An Employer Refuse To Hire Me Because Of My Gender?; Top Gender Discrimination Lawyer Reply: Can An Employer Refuse To Hire Me Because I’m Pregnant?; What Should I Do If I Was Rejected For A Job Because I’m Black? I Need A Lawyer!; and Can An Employer Refuse To Hire Me Because I’m Transgendered? I Need A Lawyer!).
Getting back to disability discrimination, employers cannot refuse to hire you because you have a disability so long as you are able to do the essential duties of the job. The ADA does not require a job applicant to immediately disclose a disability to an employer and employers cannot ask applicants about a disabling condition in order to weed them out from the hiring process. When would it be beneficial for an employee to self-identify? If you need an immediate accommodation for a disabling condition, you may have no choice to disclose the need for an accommodation at the job interview. Many job applicants who suffer from physical disabilities such as being wheelchair bound cannot hide the need for an accommodation at an interview with an employer.
An employer can, however, without running afoul of the ADA, provide the employee information on what the job duties are and ask they applicant whether or not they will need an accommodation. Let’s go through an example to understand how the process works. Let’s say our fake employee, Ada Smith, lost her left arm at an early age and is able to write, work, and function with her right arm only. Smith applies for a job at ABC Corporation as a Materials Handler. During her interview, Boss Jones, the Human Resources officer, explains to her that the Material Handler position will require her to be able to lift a certain amount of weight along with stapling boxes for shipping. Boss Jones notices that Ada does not have a left arm and could ask one of the two following questions:
Is your missing left arm some kind of disability?
I stated previously the job requirements for a material handler, do you require any form of a reasonable accommodation for those duties?
While it may be obvious that Ada is missing her left arm, the employer cannot ask if her left arm is some form of disability. They may certainly ask if she needs a reasonable form of accommodation and under the ADA, Ada can either decide to tell Mr. Smith about her left arm or decline discussing the issue if she is able to do all of the essential duties of the job without an accommodation.
Let’s take a real life example of disability discrimination in the hiring process from the case of Harrison v. Benchmark Electronics Huntsville. In that case, John Harrison was brought in as a part of a batch of temporary workers at Benchmark. When he started, the employer had a policy of screening its temporary workers for possible permanent employment positions. If the temporary employee’s supervisor thought that he or she met Benchmark’s needs, the temp employee would be asked apply and take the necessary drug test. Typically, once that temporary employee passed the drug test, human resources would make the offer of permanent employment, unless the hiring manager instructed otherwise.
Under this policy, John was asked ant then applied for permanent employment. After the company had approved the requisition to hire for the position, John, who was the only applicant, completed to take the drug test. By that point, John had received no complaints about his performance.
The employer’s Medical Review Officer reported that John’s test were positive for barbiturates.
John reported having a prescription. The Medical Review Officer in the presence of John’s manager asked John how long he had been disabled, what medication he took, and how long he had taken it. John reported that that he had epilepsy since he was two years old, and was prescribed barbiturates to control it. He also provided his dosage. Shortly thereafter, the Medical Review Officer reported that John’s drug test had been cleared. By this time, HR gave the manager approval to hire John. But, the manager instructed HR not to make an offer to John for permanent employment and then told the staffing agency to end John’s temporary assignment.
The staffing agency told John that his assignment to Benchmark ended, because of performance and attitude issues. John sued for improper medical inquiry during the hiring process and wrongful termination.
After the trial court dismissed John’s claims, the United States Court of Appeals for the Eleventh Circuit reversed and held:
Section 12112(d)(2) prohibits medical examinations and certain medical inquiries at the pre-offer stage. Consistent with Congress’s intent, the regulations adopted under the ADA by the EEOC provide that an employer may make “pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the job related functions.” 29 C.F.R. § 1630.14(a); see also 56 Fed.Reg. 35725, 35732 (1991). The regulations clarify that while it is appropriate for an employer to inquire into an applicant’s ability to perform job-related functions, it is illegal for him to make targeted disability-related inquiries. See 29 C.F.R. § 1630.13 (“[I]t is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.”). The EEOC has defined “disability-related” questions as those “likely to elicit information about a disability.” EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (EEOC Notice 915-002) (Oct. 10, 1995), available at http://www.eeoc.gov/policy/docs/medfin5.pdf [hereinafter Enforcement Guidance]; see Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir.1995) (recognizing the “likely to elicit” standard). On the other hand, “if there are many possible answers to a question and only some of those answers would contain disability-related information, the question is not `disability-related.’“ …
In addition to allowing inquiries directed at an applicant’s ability to perform job-related functions, the ADA recognizes an exemption for drug tests. See § 12114 (“For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination.”). Employers may also ask follow-up questions in response to a positive drug test, see 29 C.F.R. § 1630.3(a), as correctly noted by the district court. See Enforcement Guidance (“[I]f an applicant tests positive for illegal drug use . . . the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs. [For example,] the employer may lawfully ask questions such as, `What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?’“). However, the regulations, coupled with the EEOC’s guidelines, make clear that disability-related questions are still prohibited. See Enforcement Guidance (“Employers should know that many questions about current or prior lawful drug use are likely to elicit information about a disability, and are therefore impermissible at the pre-offer stage.”) As the legislative history of § 12112(d)(2) makes clear, the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” H.R. Rep. 101-485, pt. 2, at 79.
While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning. Since the district court did not recognize that § 12112(d)(2) prohibits disability-related inquiries, it found that the facts supported summary judgment. Harrison testified that Anthony told him his drug test was positive, that he disclosed his prescription, that he was then taken to Anthony’s office where he answered questions about his medication, and that Anthony remained in the room during this interview. Anthony denied ever knowing that Harrison suffered from epilepsy, and he acknowledged that it would be improper for him to be present during the MRO interview. Although BEHI was permitted to ask follow-up questions to ensure that Harrison’s positive drug test was due to a lawful prescription, a jury may find that these questions exceeded the scope of the likely-to-elicit standard, and that Anthony’s presence in the room violated the ADA, especially considering the conflict between Harrison’s testimony—that to answer the MRO’s questions he was forced to disclose the fact and extent of his epilepsy—and Anthony’s—that he never knew Harrison suffered from the condition. A reasonable jury could infer that Anthony’s presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries. On summary judgment we must give Harrison the benefit of that inference.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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