Your Legal Rights - Your Rights During the Hiring Process

The Americans with Disabilities Act (ADA) makes it unlawful for an individual with a disability to be discriminated against during the hiring process.  The hiring process includes the following activities:

Completing a job application

Pre-employment screening tests as part of the application

Interviewing for the job

Completing employment paperwork

Note: Please refer back to the section “Getting A Job/ Disclosure of your Diagnosis” for more information regarding this subject.

What does this mean? 

This means that even though you have a disability, an employer must consider you equally as an applicant.  They cannot refuse to hire you just because you have a disability.  They cannot hire someone else just because that person does not have a disability.

What does this NOT mean?

It does not mean that the employer has to hire you just because you have a disability.  You still must be qualified for the job and have the required education, training, experience, and skills for the job.  You must be able to perform your major job duties on your own or with reasonable accommodations. 

If your disability prevents you from doing minor parts of the job description, then the employer must still consider you for the position.  If your disability prevents you from doing the major duties of the job (with or without accommodations), then the employer does not have to consider you for the position.   For example, if the job position is “bus boy” (i.e., a person who clears off tables in restaurants), and you are not physically able to load and unload dishes, then you cannot perform the major duties of the job.  The employer might not consider you for this position because you cannot perform the major duties of the job.

Accommodations and the Hiring Process

If you have a documented disability and you require reasonable accommodations during the hiring process, the employer is required to provide you with reasonable accommodations.

Here are examples of reasonable accommodations that an applicant with a disability might request during the hiring process:

Written materials in alternative formats (e.g., large print, Braille, audiotape) Readers or sign language interpreters A job coach to join you during an interview or at other times in the hiring process  Extended time on employment screening tests More frequent breaks during employment screening tests Separate setting to take employment screening tests Separate, quiet setting to complete application Word processed rather than hand-written responses on application A quiet, non-distracting interview setting An outline / schedule of the interview A written version of interview questions Pause / extra time to respond to interview questions A break during the interview Written responses to interview questions rather than verbal responses * Based on your needs, there are other accommodations that you might request.

Tips on requesting an accommodation during the hiring process:

Request an accommodation as early as possible during the hiring process.

You may request an accommodation in writing, face to face, or by phone.

It is okay for someone else (job coach, VR counselor, health professional, family member) to request the accommodation for you.

Respond to any of the employer’s questions about your disability and needs as soon as possible.

You may need to provide documentation of your disability.  Documentation includes diagnostic reports, or summaries from a health professional.

Click here for more information about asking for accommodations. 

Here is what employers CANNOT do during the hiring process: 

When you are applying for a job or in a job interview, the employer is NOT allowed to ask if you have a disability.  This is to protect your privacy.  The employer is not even allowed to ask questions that might “lead” you to reveal that you have a disability. 

Here are some questions that the employer is NOT allowed to ask you during the hiring process: 

“Do you have a disability?”
“Do you have any serious medical conditions?”
“Do you ever have seizures (or any other specific medical condition)?”
“Do you have trouble breathing (or any other specific medical symptom)?”
“Do you have a disability that would interfere with your job performance?”
“How many days were you sick last year?”
“Have you ever filed for workers’ compensation?”
“Have you ever been injured or hurt on the job?”
“Are you taking any prescription medications? Which ones?”
“Have you ever had mental health problems?”
“Do you have any diagnoses that we should know about?”

The employer may not ask questions about your disability during the hiring process even if your disability is very obvious (e.g., if you are in a wheelchair).

An employer may not require a medical examination during the hiring process (an exception to this is if you are applying for some law enforcement or military positions).  After you have accepted a job offer, then the employer might require that you get a health physical. 

The employer may NOT tell others about your disability if you disclose it.  This means that they must keep it confidential and private during the hiring process AND once you are working at the job. 

There are some exceptions to this rule:

• Supervisors and managers may be told about reasonable accommodations that you may need.
• First aid or safety employees may be told if your disability might require emergency treatment (for example, if you have a seizure disorder).
• Employees of workers’ compensation offices may be told if necessary.

Here is what employers CAN ask you during the hiring process:

For more information about the American Disabilities Act (ADA), please visit these sites: www.ada.gov www.eeoc.gov

It is okay for the employer to ask if you need a reasonable accommodation, as long as they ask every applicant that question.  Here is what these questions might look like on a job application or in an interview:

“Can you perform the essential duties of the position, with or without
reasonable accommodations?”  

“Do you require accommodation of a disability in order to perform the
essential functions of the job, as addressed in the ADA of 1990?”  

“If you do require accommodation of a disability, please suggest the accommodations that you believe would be reasonable and would allow you to perform the essential functions of the job."

“In the event of an emergency, such as fire or loss of power, would you need special assistance to safely evacuate your work area?”  

Your rights during the hiring process: The Americans with Disabilities Act (ADA) makes it unlawful for an individual with a disability to be discriminated against during the hiring process.  This means that even though you have a disability, an employer must consider you equally as an applicant.  The employer does not have to hire you just because you have a disability.  In order to be considered for the job, you must be qualified for the job and have the required education training, experience, and skills.  When you are applying for a job or in a job interview, the employer is NOT allowed to ask if you have a disability.  It is OK for the employer to ask if you need a reasonable accommodation, as long as they ask every applicant that question.