Can HR Legally Ask the Questions That Applicants with Disabilities Want to Be Asked

The ground rules
Under the Americans with Disabilities Act, the general rule, familiar to human resources professionals, is that an employer may not ask “disability-related” questions until after it makes a conditional job offer to an applicant. “Disability-related” is defined as anything that is likely to elicit information about the applicant’s disability. But there are exceptions to the general rule, some of which apply to the proposed questions.

To determine whether these questions are lawful, we first have to distinguish between three different situations during the pre-offer stage. In the first, the applicant voluntarily discloses a hidden disability. In the second, the applicant does not voluntarily disclose, but the employer believes that the applicant will need reasonable accommodation because the disability is obvious. In the third, the applicant does not disclose any disability and the disability is not obvious.

In a 1995 “ADA Enforcement Guidance,” the U.S. Equal Employment Opportunity Commission said that in the first two situations, an employer may ask certain limited reasonable-accommodation questions. In the third situation, nondisclosure, the EEOC said that no disability-related questions during the pre-offer stage are allowed. Courts have generally agreed with the EEOC’s analysis.

Applying the rules
The analysis below assumes that the interviewer asks the questions during the pre-offer stage. 

• Is there any setting or equipment that will facilitate the interview process for you?

    This question is acceptable, as an employer may always ask applicants whether they will need reasonable accommodation for the hiring process. The question will probably make most sense after a brief description of what the hiring process involves (e.g., an interview, timed written test, or job demonstration).

• Is there any specific technology that you currently use or have used in your previous jobs that assisted you in your work performance?

    This question, placed in the proper context, is acceptable under any one of three scenarios: (1) an applicant voluntarily discloses a hidden disability; (2) an applicant voluntarily discloses that he will need a reasonable accommodation to perform the job; or (3) an employer reasonably believes that an applicant will need a reasonable accommodation because of an obvious disability. In each situation, the EEOC says that an employer may ask the applicant whether she will need reasonable accommodation and what types of reasonable accommodation would be needed to perform the job functions. This question is permissible because the interviewer can explain that despite the query about past and present technology, the question is intended to identify reasonable accommodations that may be necessary in the future.

Even under the three scenarios described above, there are important limits on employers. An employer may not ask questions about the applicant’s underlying condition. Nor may an employer ask reasonable-accommodation questions that are unrelated to the applicant’s expected job functions.

One final note about this question. Assume that an interviewer does not know that an applicant has a disability and the applicant does not disclose one. When posed to applicants who will use technology in the workplace, it is entirely legitimate and unlikely to elicit information about an individual’s disability.

• Other than technology, what supports did you have in previous jobs? If none, are there any you would benefit from?

This question appears to be another way of asking whether an applicant needs reasonable accommodation and what types of accommodations are needed to perform the job. To the extent that the interviewer frames it as such, it is permissible under any of the three scenarios described in response to the previous question. However, if directed to an applicant who does not voluntarily disclose a hidden disability or whose disability is not obvious, it may be unlawful, depending on how it is phrased. For example, a question about the number of “support staff” that reported to an applicant in a previous job is not likely to elicit information about a disability; a question about what “support” was necessary in order to perform the job probably will.

• Provide an example of how you use technology to carry out job duties.

Considering the request outside the context described in the main article, “Better Interviews for People with Disabilities,” a threshold question is whether it is even a disability-related query. After all, questions that are not disability-related are not unlawful under the ADA. Posed to applicants who use workplace technology to carry out job duties, it does not appear to be disability-related. Posed to applicants who do not use technology, the request may very well elicit information about a disability.

Assuming that the question is posed to an applicant who voluntarily divulges a hidden disability, or to one who has an obvious disability, it is permissible under the three scenarios described in response to the second question. This assumes, however, that the request is part of an inquiry as to whether the applicant will need a reasonable accommodation and what types of accommodation will be necessary to perform the job, and that the interviewer makes it clear that he is interested only in the job duties of the position the applicant seeks.

• Is there any technology that you don’t currently have that would be helpful to you in performing the job duties of this position?

Under any one of the three scenarios described in response to the second question, and as part of a discussion regarding the types of accommodations that will be necessary to perform the job, this question is permissible. Of course, some employers will be reluctant to ask this question out of concern that they will be obligated to provide the applicant, once hired, with a “wish list” of expensive accommodations. Employers should note that they are not obligated to provide every requested accommodation, or even the accommodation preferred by the applicant. The ADA requires employers to provide effective accommodations that do not cause an undue hardship, not necessarily the accommodation preferred by the employee.

• In the past, did you experience and problems between your technology and the company’s (former employer’s) information systems?

To begin with, are the former and prospective employers’ information systems similar? If so, the question may help the interviewer understand what potential accommodations may be required, or are possible. If not, it is difficult to see how the answer will assist the interviewer in assessing possible accommodations, and the question should not be asked.

In any event, the interviewer should focus this question more explicitly on the need for accommodations in the future, instead of solely on the past. The interviewer should explain, “In order to help us understand what accommodations you may need to perform your job functions if you are hired, please tell me whether you experienced any problems between your technology and your former employer’s information systems.”

Of course, this assumes that the question falls within one of the three permissible scenarios described above.

• Do you foresee your technology needs changing in the near future? Why and how?
  
  

In the context of a discussion about the types of accommodations needed to perform job functions, and under one of the three scenarios described in response to the second question, this inquiry is permissible.

• Discuss a barrier or obstacle, if any, that you have encountered in any of your previous jobs. How was that addressed?
  
  

Directed to an applicant who neither has an obvious disability nor voluntarily discloses one that is hidden, this open-ended question may very well elicit information about a disability. For such applicants, unless it is focused (e.g., “tell me about a budgetary obstacle you encountered and surmounted in your previous job”), it is risky.

The more difficult call is whether this question is unlawful when directed to an applicant who falls within one of the three permissible scenarios. It does not, on its face, ask about the types of reasonable accommodation necessary for the applicant to perform the functions of the job she seeks. But some of the other questions have not explicitly done so and, when modified, have not been objectionable. The problem with this question is its open-ended nature; even when a question falls within one of the three permissible scenarios, the EEOC says that it may not request information completely unrelated to the applicant’s expected job functions. This question, as phrased, does so. Unless focused on tasks or skills that are related to the applicant’s expected job functions, and explicitly premised on the need to identify accommodations necessary to perform the job, it remains risky.

• Do you anticipate any transportation or scheduling issues with the work schedule expected of this position?
  
  

This question can be rephrased to render it permissible when directed to any applicant. In its 1995 Enforcement Guidance, the EEOC said that an employer may state its attendance requirements and ask whether an applicant can meet them. An employer may also ask about an applicant’s attendance record. Because an employer is not obligated to provide the applicant with transportation to work as an accommodation, asking about transportation issues is of doubtful value. The question should focus on the employer’s attendance standards and the applicant’s ability to meet them.

A word of caution
Exceptions to the general rule prohibiting pre-offer disability-related questions provide interviewers with limited leeway. But questions about accommodations should be asked only if they fall within one of the three scenarios described above, and only if the interviewer does not transcend the limits identified by the EEOC. State law may also impose more stringent limits. Moreover, just because a question is lawful does not mean that an employer is out of harm’s way. An interviewer may ask a lawful question about the need for accommodation, decide not to hire an applicant, and face a claim that the rejection was based on the need for accommodation. Once an employer is aware of the applicant’s need for accommodation, it should be prepared to demonstrate that it relied on a legitimate business-related reason, rather than the need for accommodation, for rejecting the applicant.

Workforce, August 2002, pp. 38-44 — Subscribe Now!