Ada Pre-employment Inquiries: What Can You Do?

• Publication year: 2000
• Pages: 73
• Citation: Vol. 29 No. 11 Pg. 73

29 Colo.Law. 73 Colorado Lawyer 2000.

2000, November, Pg. 73. ADA Pre-Employment Inquiries: What Can You Do?

---

73

Vol. 29, No. 11, Pg. 73

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 73]

Specialty Law Columns
Disability Law Column
ADA Pre-Employment Inquiries: What Can You Do?
by Merrily S. Archer, Kevin W. Williams

Ten years after the passage of the Americans with Disabilities Act ("ADA"), people with disabilities still fare poorly in the job application and interview process. Employers struggle with the kinds of questions the ADA permits in a job interview, often asking inappropriate questions or no questions at all. Job seekers with disabilities also grapple with what types of questions they must answer in an interview and how they should answer them As a result, applicants with disabilities too often miss the chance to highlight their abilities

"One of my interviews was pretty much over before it really started. They didn’t really ask any questions," stated Anne Stratton, a disabled person who recently graduated at the top of her college class "People like to hire people who remind them of themselves, that they are comfortable with."1 Job seekers with disabilities echo Anne Stratton’s observation. "People with disabilities routinely are subjected questions like, ‘How did you end up in a wheelchair?’ as part of their job interview. If the interviewers do not ask outright, other questions make it clear that they’re dying to know," explained Julie Reiskin, Executive Director of the Colorado Cross-Disability Coalition. "Like everyone else, people with disabilities want to talk about their qualifications, not their disabilities."

Largely in an effort to "assure that misconceptions do not bias the employment selection process," Congress enacted a specific ADA provision governing the matters an employer can discuss with applicants during job interviews.2 However, the complexity of this statutory scheme actually may exacerbate discomfort and bias, as human resource officials could fear that one interview question may expose their company to liability. Perhaps because of this fear, Anne Stratton’s interviewer asked no questions, and as a result, missed a golden opportunity to appreciate the contributions Anne could have made to the company.

Coming years will see additional initiatives to promote the employment of people with disabilities, such as the recently enacted Ticket to Work and Work Incentives Improvement Act of 1999.3 Additionally, in July 2000, President Clinton issued a directive to all federal agencies actively to recruit disabled applicants.4 As more people with disabilities seek to enter the labor force, employers and their legal advisors must master the rules governing pre-employment inquiries. Further, because the Tenth Circuit Court of Appeals recognizes a cause of action for prohibited pre-employment inquiries, even when the applicant is not "disabled," mastery of the inquiry rules takes on added importance.

This article aims to clarify the kinds of questions an employer may lawfully ask an applicant during a job interview.5 The article outlines the statutory scheme governing pre-employment medical and disability inquiries and identifies and defines the kinds of questions the ADA prohibits and permits. Finally, the article discusses recent Tenth Circuit Court decisions that create a cause of action for unlawful pre-employment inquiries, irrespective of whether the applicant has a disability.6

Basic Statutory Scheme

In hearings before the Senate Committee on Labor and Human Resources in 1989, disability advocates identified pre-employment inquiries that focused on the disability rather than the ability to perform the essential functions of the job, as a "major source of job discrimination."7 Historically, employers too often used information elicited about the disability—particularly "hidden disabilities," such as cancer, mental illness, heart disease, and epilepsy—to exclude otherwise qualified candidates even before the employer had assessed their ability to perform the job.8 To switch the interview focus to ability-based inquiries, as opposed to disability-based inquiries, § 102(d) prohibits identification of a...