ADA Guidelines: Avoiding Missteps in Recruiting

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Beware of disability discrimination in the interview process

When you’re prospecting for new employees, you like to know as much about them as possible. This probably means, among other things, an interview or two where you go into as much depth as possible about their abilities and attitudes. It may also mean testing, for professional skills, personality traits, and so forth.

You may use similar processes, too, when looking to promote from within.
This is all very well, but there’s danger lurking in the interview and testing process. You can run afoul of the Americans with Disabilities Act if you ask certain questions, or give certain tests.

What can I test for under ADA guidelines?

Here’s what happened to one company.

Supervisor James Joost couldn’t believe his ears. “You’re suing us because we gave you a personality test? That makes no sense at all,” he said.

Employee Brenda Casey stared back at him. “You have a lot of nerve giving me a test that tries to find out whether I’m paranoid, depressed, hypochondriac, or bipolar,” she said. “And I think you denied me the promotion because your stupid test said there was something mentally wrong with me.”

“I don’t think you’re nuts, but it’s nuts to say you didn’t get the promotion because of the test,” James explained. “You weren’t as well qualified as Sylvester. That’s why we picked him.”

“Forgive me if I think that’s a bunch of garbage,” Brenda said. “I think you discriminated against me because you think I’m a mental case. That’s illegal.”

Brenda filed an ADA lawsuit against the company, and won. A court ruled that the test violated the Americans with Disabilities Act, because it discriminated against employees on the basis of mental disability. The test was partly legitimate, in that it assessed personality traits, which a company is allowed to do. But the court said it also looked for signs of mental disorder, and was thus a medical test that could not be administered before hiring or promoting an employee.
(Karraker v. Rent-a-Center)

How the supervisor slipped up with ADA requirements

James would have been all right if he had done one of two things: delete the questions that probed for obsessions and manias, or use the test after promoting Brenda, to decide what duties she was best suited for. It’s discriminatory to use a test like this to reject an applicant for a job, or an employee for a promotion under the American Disability Act. But the test can legitimately be used once a hiring/promotion decision is made, as a way of determining how best to structure the employee’s new position – as long as the test doesn’t influence salary or benefit levels.

Caution: Even if a test question clears the disability discrimination hurdle, you’ll want to be keep privacy issues in mind in deciding whether to use it.

Are there ADA Guidelines in the pre-employment process?

Interviews can also trip you up, if you ask the wrong questions. An example:

“So, how did you lose your arm, Mr. Curtis?” supervisor Billy Dupree asked job applicant Ainsley Curtis. “I used to work for a tree-trimming service,” Ainsley explained. “I had an accident with a chainsaw.”

Billy grimaced. “That’s tough, man,” he said. “But what about this job? Is the injury going to get in your way, d’you think? How much of it have you got left, anyway?” he asked, glancing at Ainsley’s long-sleeved shirt, which hid the missing right arm.

Ainsley frowned. “It got cut off at the elbow,” he said. “But it’s not going to be a problem here, from what the lady told me about the job over the phone. I can still grip boxes using my stump.”

“Sure,” Billy said. “Well, thanks for coming in. We’ll let you know about the job.”

Ainsley didn’t get the job. He thought he was as qualified as any of the other applicants, and he filed an ADA lawsuit for disability discrimination. He argued that the company failed to hire him based in part on his responses to the questions about his arm. The court agreed, and awarded him $157,500 in damages, $100,000 of which was for interfering with Ainsley’s rights by asking improper questions. (EEOC v. Wal-Mart Stores)

How the supervisor slipped up:

Billy committed the gaffe of all gaffes by asking so blatantly about an applicant’s medical condition. There are more subtle versions of this mistake, though. For example, you could get in trouble in an interview with an applicant who uses a walker, by asking sympathetically how he manages to cross the street before the Don’t Walk sign goes on.

ADA Guidelines for managers

A prospective employee’s medical condition – or that of a current employee who’s up for promotion – is none of your business. What you can ask in an interview is this question: “Can you perform the functions required for this job, with or without reasonable accommodation?”
Generally speaking, when you interview an applicant you shouldn’t mention the words “disabled” or “handicapped.” Also, you shouldn’t frame questions in terms of an applicant’s medical condition or limitations, but rather in regard to his or her conduct, behavior, and ability to perform. Finally, it’s better to phrase questions in the positive rather than the negative. For example, ask about an applicant’s abilities, not disabilities.
Caution: Even if an applicant is the one who brings up his or her physical or mental condition in the interview, it’s safer for you to avoid follow-up questions. This doesn’t mean, however, that you can’t use information a prospective employee might volunteer about a health condition.

Avoiding ADA Compliance Pitfalls
Here’s an example of how an employer did this, legitimately.

“I’m pretty healthy, outside of my diabetes,” Kent Klingerman told production manager George Jepson. “But I don’t let it bother me much.”

“Oh?” George said.

“Yeah, the doctors keep telling me I need to watch my diet, but I figure if a man can’t enjoy his food, life’s not worth living,” Kent said. “So I pretty much eat whatever I want.”

“Well, that’s interesting,” George said, thinking to himself that Kent was pretty reckless to treat such a significant condition so lightly.

The job Kent applied for involved operating large machinery. After Kent’s interview, company managers worried that his uncontrolled diabetes might cause him to lose consciousness while at the machine, endangering himself and his co-workers. So the employer turned down his application.
Kent filed an ADA lawsuit, but lost. The court said the company was justified in its concern for safety, which is an ADA-approved exception. And because Kent had admitted unprompted that he didn’t control his disease, the company could use the information in its hiring decision. (Darnell v. Thermafiber)

ADA Guidelines for Managers
If an applicant mentions a disability, perhaps in expanding on an answer to a legitimate question you asked, it’s all right to note his answer as part of your record of the interview. You don’t want to throw out information that might be critical to workplace safety, for instance.

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