Before the Job Offer
During the interviewing process, you may not ask an applicant if he has a disability, even if one is apparent. This means that if an applicant uses a walker, for example, you may not ask why or how long he has needed assistance. Since a disability is visible in this applicant, you may ask him if he is able to perform the essential duties of the job with or without reasonable accommodation. Describe the essential (important, critical) duties of the job to him so that he can give you an accurate answer based on his abilities. An applicant who uses a walker may say something like, “I am able to perform the job with the use of my walker any time I need to walk more than ten feet” or “I can perform this job if I am able to keep the walker with me at all times.”
If a disability is not apparent in an applicant, ask him if he is able to perform the essential duties of the job and show him a job description or verbally tell him what the duties are. Do not ask whether or not a reasonable accommodation is needed because it's not appropriate in this situation.
A disability does not give an applicant an advantage over a nondisabled candidate. All persons considered for a position should meet the basic requirements for the job and be able to perform its fundamental duties, with or without a reasonable accommodation. Whether or not a disability is present plays no role in the selection process, and in the event of an unseen impairment, you wouldn't know about it anyway. Therefore, all questions asked during an interview should be identical for each applicant and focus on job skills, demonstrated work ability, education, and training as mentioned in Chapter 2.
You may not ask an applicant questions about disabilities or his medical history during a job interview. Here are some examples of illegal questions:
What medications are you taking?
Have you ever filed a workers' compensation claim?
Do you sleep well at night?
Have you ever had a mental breakdown?
What medical conditions run in your family?
The ADA protects only qualified applicants against hiring discrimination. If a candidate with a disability does not meet the requirements for the position, he is to be disqualified from consideration with the same criteria that a nondisabled candidate would be. The ADA's purpose is to provide an equal opportunity for employment for disabled persons; it is not meant to encourage employers to give preferential treatment to a disabled applicant.
Focus your questions on the ability to perform a job while avoiding ones about medical impairments. Although you may not ask an applicant if he suffers from insomnia, you may ask, “This job requires that you are alert and ready to start promptly at 6:00 A.M. each workday. Are you able to do this?”
You may not arrange for an applicant to have a pre-employment physical solely because of a visible disability. If the company has a written, consistent policy to conduct pre-employment physicals, a disabled applicant is to be examined under the same circumstances and in the same manner as one who is not disabled. The purpose of the exam for all applicants is to determine if they are physically able to perform the essential duties of the job. A job offer that is contingent on the results of a pre-employment physical must apply to all applicants for every position that has the requirement. You may not make an exception and signal out those who appear to have a disability or if you suspect there may be one. Remember that in regards to your hiring practices, consistency is critical.