Disability Discrimination in the Workplace: What Prospective Employers Can and Cannot Ask About Your Disability
- “Do you have any medical conditions which could limit your ability to work?”
- “Do you take any prescription drugs?”
- “Would you require any accommodations to perform this job?”
You may have been asked these or similar questions on a job application or in an interview. If you are a person with a disability, you may worry (justifiably) these questions will automatically disqualify you from a job if you answer them honestly.
Under the Americans with Disabilities Act and the Wisconsin Fair Employment Act, an employer cannot exclude an applicant from hiring consideration because of his or her disability. Because questions like these tend to reveal whether an applicant has a disability, employers may not ask such questions.
Questions A Prospective Employer May Not Ask
Prior to offering you a position, a prospective employer may not ask you if you have disability. Impermissible questions include:
- Asking outright if you have a disability
- Asking if you take any prescription drugs
- Asking if you will require accommodations to perform the job duties.
If you have an obvious disability, an employer may not ask you about the nature of that disability or the extent of its limitations. However, if you have an obvious disability that appears to potentially interfere with your ability to do the job, an employer may ask limited questions about how you will perform the job duties.
Additionally, an employer generally may not ask you to complete a medical evaluation prior to offering you a position. For example, if an employer’s pre-employment screening requires a personality test which may also reveal mental health diagnoses (such as the MMPI, or Minnesota Multiphasic Personality Inventory), this violates the Americans with Disabilities Act.
As with any rule, there are exceptions. Certain employers, such as government employers and government contractors, are required to collect Equal Opportunity statistics about applicants. This information should be collected in the aggregate rather than being associated with a specific applicant, must be kept confidential, and cannot be used to make hiring decisions.
Questions A Prospective Employer May Ask
An employer may ask questions to inquire whether you are able to perform the physical requirements of the job. For example, if a job truly requires an employee to lift fifty pounds, an employer might ask “Are you able to lift 50 pounds with or without an accommodation?” This question ensures that applicants are able to meet the job requirements, but does not reveal whether the applicant has a disability. If an employee has a disability and requires an accommodation to perform that job task, she may still truthfully answer such questions in the affirmative.
After offering you a position, an employer has a little more leeway regarding what information they may gather. An employer may condition your employment on successfully passing a medical exam, but only if all new employees are required to complete such an exam and there is a legitimate purpose for it. An employer may not ask you to complete a medical exam if it does not require all employees to do so (for example, if you have an obvious disability and they question whether you can do the job). The results of these evaluations must be kept confidential.
If you believe your employer or prospective employer has discriminated against you on the basis of your disability, please contact Hawks Quindel. Our experienced attorneys may be able to help.