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COMPLIANCE

Avoid these tricky ADA pitfalls when hiring staff

Every manager is aware of the wider doorways and lever handles and curb cuts and so on required by the Americans with Disabilities Act (ADA).

And every manager is aware of providing accommodations for employees.

But not every manager is aware of the less obvious ADA requirements that apply to electronic job applications, says Beth Loy, PhD, principal consultant with the Job Accommodation Network in Morgantown, WV. The organization is a technical assistance center on ADA compliance provided by the U.S. Department of Labor.

Changes, but not difficult ones

The ADA hurdle, Loy says, is in the job application.

Many employers now require people to apply for jobs online. Some have applications to fill out, and some even have skills tests that applicants take online and submit with their applications.

The ADA problem, according to Loy, is that “online application systems are not necessarily accessible to people with different types of disabilities.”

A process that involves an audio message, for example, can discriminate against people with hearing impairments.

Or a requirement to make a phone call can exclude hearing and speech impaired people who are limited to TTY, or teletypewriter phones.

Or a timed online test can discriminate against someone with a disability that requires more time for test taking.

There can be further violation if the application isn’t accessible to people who use screen readers that turn text into speech or Braille.

To remain ADA compliant, the office has to provide ways for persons with disabilities to participate in the application process on the same level with people who do not have disabilities, she says.

But that needn’t create a hardship. The changes aren’t difficult to make. An accommodation can be as simple as including a statement that people can mail in their applications or giving people the option of taking a timed test in the office with whatever accommodations are needed.

All the office has to do is think of what might impede somebody’s application efforts and set up the website so that everybody – disability or not – can apply for the job.

A broad, safe statement

Beyond the online application, the office has to make the interview itself accessible to people with disabilities, Loy says, and in that respect, the application needs to include a notice that anybody who needs an accommodation for the interview should notify the manager.

Think past the obvious such as wheelchair accommodations. The interview has to be available as well to applicants with disabilities such as cognitive limitations, communication problems, and even fatigue resulting from medical treatments.

And beware. The notice has to be broad so nobody can claim it’s another way of asking if someone has a disability. Simply say that all applicants should let the office know if accommodations are needed for the interview.

Medical questions can be tricky

Another caution: Be careful that no candidate gets asked a medical question. And that’s not as easy as it sounds.

Under the ADA, an employer can’t ask any disability-related question before an offer of employment is given. Neither can an employer ask questions on the application that would elicit information about a disability.

While everybody knows not to ask if an applicant has a physical or mental impairment or has received worker’s compensation, Loy says, a wrong question can get asked most innocently.

A manager trying to establish rapport with an applicant in a wheelchair asks, “How did that happen to you? My brother is in a wheelchair.”

Or with an applicant who is undergoing chemotherapy, the manager shares some common medical experience.

Or someone with a prosthesis gets asked, “Did you injure your leg on the job?”

Intent doesn’t matter. The questions are still illegal.

And here’s a surprise for many employers: It’s also an ADA violation to ask, “Do you need any type of accommodation to do this job?”

That too is an illegal medical inquiry, because, “Do you need an accommodation?” is the same as, “Do you have a disability?”

Phrase it instead as, “Can you do the essential functions of this job with or without reasonable accommodations?”

Make it a standard practice to ask that question with every applicant, whether there’s an obvious disability or not. That will defend against any claim that the question was designed to find out if someone had a disability.

Along with that, Loy says, the ADA recommends listing the essential functions of the job in the advertisement. That way, people know up front if they can do the work.


Editor’s picks:

The ADA and mental illness, medications, suicide, alcoholism, and threats


Pregnancy discrimination: don’t let good intentions get you in trouble


Job interviews: how to ask personal questions without committing discrimination


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