It seems reasonable to presume that companies will be reluctant to hire people with a disability that would supposedly cost them more money. In reality though, most of the accommodations that the employer will have to make are low cost and disabled employees often prove to be hard-workers, loyal and reliable.
The American with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment including hiring, pay, promotion, firing and any other term or condition of employment. It also prevents employees from being retaliated against when they enforced their rights under the law. It is considered disability discrimination when an employer or other entity covered by the American with Disabilities Act treats a qualified individual with a disability unfavorably because he/she has a disability.
Private employers with at least 15 employees must follow the ADA. The fight against discrimination begins at the hiring stage and there are a few tips that employers must follow if they don’t want to end up discriminating against potential future employees based on their disabilities.
The first thing is to know whom the ADA law protects. According to the Act, an individual is considered to have a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities; has a history of impairment (a previous disability); has a record of such impairment or is regarded as having such impairment. Indeed, if an employer discriminates against an employee based on its incorrect belief that the employee has a disability, the employee will be protected by the ADA. The Law can also protect an individual from being discriminated because of their relationship with a person with a disability (their husband for example).
Before the employee applies for a job he/she must make sure that the ADA applies to that particular company, that he/she suffers from disability and that he/she is qualified for the job. Indeed, the applicant must check the education and experience requirements because the ADA doesn’t require the employer to lower his hiring standards in order to hire an applicant with a disability. The applicant will have to meet the education and experience requirements as others applicants. The applicant will also need to make sure that you he/she is able to perform the job’s essential functions with or without a reasonable accommodation. Therefore, the employer should be able to communicate a job description for the applicant to be able to evaluate if he/she can perform the essential functions required by the position. It will not be an issue if he/she is unable to perform nonessential functions; for example, a receptionist who occasionally lifts 25 pounds boxes of paper. Essential functions are those duties that bear more than a marginal relationship to the job at issue. A function may also be essential if it requires special skills, if it requires a significant amount of time, if there are consequences if the function is not performed or if there are a limited number of employees to perform the function.
Finally, the applicant must consider reasonable accommodations. There is no guarantee that the employer will grant the specific accommodation the applicant requested and is allowed to offer an alternative that would solve the problem as well.
To insure that employers do not discriminate job applicants, there are some strict rules about conducting the interview itself. Applicants can decide whether to disclose their disability or not, if the disability is not obvious. If the disability is obvious, the applicant may not have much choice. Nevertheless while employers are not permitted to ask the applicant questions about the disability condition, even if it is obvious, it might be beneficial to disclose the disability in order to have an open discussion about it and discuss reasonable accommodations. Once the disability is disclosed to the employer, the applicant must make it very clear that he/she is able to perform the job’s essential functions.
The employer will only be able to request a medical exam from the applicant after he made him/her a conditional job offer. Also the employer can’t require the applicant to take a medical exam if he doesn’t require everyone in the position to do so.
Finally, employers have to keep all medical records confidential and separate from the rest of the applicant’s information. Those medical records can only be disclosed to specific people who need it such as emergency personnel or anyone involved in the decision process.
Employers may also request a job-related test and if the applicant needs testing accommodations, such as extra time, he or she will have to request it.
After the application process, if the position is denied to the applicant and if he/she feels that the employer denied the job based on the disability, the applicant must consider filing a complaint with the Equal Employment Opportunity Commission (EEOC: http://www.eeoc.gov). The EEOC may investigate the complaint or simply give the applicant a letter confirming that he/she filed a complaint, which is a necessary document to filing a discrimination lawsuit.