Q. I applied for a senior level job at a university and the application asks for information about having a disability – now or ever. I have had a disability, but I am afraid to say so. Some people say being more open can work for me as certain organizations need to hire people with disabilities; other people say don’t say a thing until you absolutely have to. Is asking about disabilities even legal? If I bring it up can they ask me more questions? I’d appreciate some guidance.
A. You have some great questions and in this situation, I consulted Attorney David Wilson at Hirsch, Roberts, and Weinstein, Boston based experts in employment law. Wilson outlines the situation for us.
So is it legal to ask about disabilities? Yes, if it is done as part of an affirmative action plan and is designed to benefit the applicants with disabilities.
If I say yes on the application can they ask for more details in the interview? Yes, but with limitations. The general rule under the Americans with Disabilities Act (ADA) prohibits employers from making disability related inquiries prior to an employment offer. However, section 503 of the Rehabilitation Act creates an exception for Federal contractors and subcontractors who are engaged in affirmative action efforts to hire more employees with disabilities. The goal is to invite applicants with disabilities to identify themselves on the job application form or by other pre-employment inquiry to satisfy the affirmative action requirements of the Rehabilitation Act.
The EEOC has offered guidance for employers for the past 20 years who ask applicants to self-identify, and provides the following information:
May an employer ask applicants to “self-identify” as individuals with disabilities for purposes of the employer’s affirmative action program?
A. Yes. An employer may invite applicants to voluntarily self-identify for purposes of the employer’s affirmative action program if:
1. The employer is undertaking affirmative action because of a federal, state, or local law (including a veterans’ preference law) that requires affirmative action for individuals with disabilities (that is, the law requires some action to be taken on behalf of such individuals); or
2. The employer is voluntarily using the information to benefit individuals with disabilities. Employers should remember that state or local laws sometimes permit or encourage affirmative action. In those cases, an employer may invite voluntary self-identification only if the employer uses the information to benefit individuals with disabilities.
If an employer wants to wants to invite applicants to voluntarily self-identify in connection with providing affirmative action, the employer must do three things:
1. State clearly in writing or clearly orally (if no written questionnaire is used), that the information requested is used solely in connection with its affirmative action efforts; and
2. The information is being requested on a voluntary basis, will be kept confidential in accordance with the ADA and that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA; and
3. They will keep any self-identification form separate from the application to keep it confidential.
At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. This includes directly asking whether an applicant has a particular disability or questions that are closely related to disability, but if there are many possible answers to a question and only some of those answers would contain disability-related information, that question is not “disability-related.”
For example, an employer can ask applicants if they can perform a certain job and to describe or demonstrate how they would perform the job including any needed reasonable accommodations as long as all applicants in the job category are asked to do this.
Your approach is to communicate your abilities, and the value you bring to the role at every stage of the interview process. You need to be prepared to demonstrate you are the best candidate, and any disability whether visible or not, will not determine your success.
-Elaine Varelas, Managing Partner, Keystone Partners