A few FAQs to help avoid expensive ADA claims
Headlines show that in the past few weeks, the Equal Employment Opportunity Commission (EEOC) chalked up almost $2M in cases involving disability discrimination:
- [Company] Pays More Than $1 Million in EEOC Disability Discrimination and Retaliation Lawsuit
- [Company] to Pay Over $23,000 for EEOC Disability Discrimination Charge
- [Company] to Pay $325,000 in EEOC Disability Discrimination Lawsuit
- [Company] to Pay $37,500 in EEOC Disability Discrimination Suit
- [Company] to Pay $515,000 to Settle EEOC Disability and Genetic Information Discrimination Suit
These costs don’t reflect the time and resources employers need to defend claims, or the negative impact on their public image.
The federal Americans with Disabilities Act (ADA) prohibits discrimination based on an employee’s or applicant’s disability.
Here are a few FAQs (and answers) that might help employers stay compliant:
Q. Do employers have to grant every request employees make for a workplace change (accommodation) because of a disability?
A: No. Employers must, however, carefully consider each request on a case-by-case basis and decide whether it would be possible. Employers might not have to grant a request if it would be too costly or disruptive, given the employer's size, financial resources, and nature of its business. In addition, employers do not have to grant a workplace change request if employees do not have a current or past medical condition that presents a need for a change.
Q: May employers ask employees for medical information once employees ask for a workplace change because of their disability?
A: Yes. If the disability is not obvious, employers may ask employees for information about their disability. Employers may also ask employees’ doctor(s) for this information.
If the disability is obvious or employees have already given the employer information to show that they have a disability, employers may still ask about the kinds of limitations employees have if it isn't clear why employees need the requested workplace change.
Q: During the hiring process, may employers ask job applicants if they have a disability?
A: No. Employers may not ask job applicants if they have a disability or about the nature or severity of a disability. Employers also may not require job applicants to take a medical examination before making a job offer.
If, however, an applicant has a disability that is obvious or which the applicant told the employer about, the employer may ask, during the hiring process, if the applicant will need a reasonable workplace change to successfully complete the interview or hiring process.
Employers may also ask if an applicant will need a workplace change to perform the job, but only if the employer reasonably believes that a disability will interfere with an applicant’s ability to do the job. Having well-written job descriptions comes in handy during these conversations.
Employers should document all such actions and keep related information confidential and separate from employees’ personnel files.
Key to remember: Disability discrimination claims are often expensive. Knowing some of the ADA basics can help avoid such claims and keep employers compliant.