By Peter Christian
Recognizing the value of individuals with disabilities in the workforce, state and federal government have recently taken action to remove barriers to employment. For example, this summer, Gov. Mark Dayton signed a directive ordering state agencies to increase hiring of people with disabilities to at least 7% of the state government workforce by August 2018 (up from less than 4% in 2013). Similarly, President Obama signed the Workforce Innovation and Opportunity Act (WIOA) into law this summer. The WIOA strives to increase access to high quality workforce services for individuals with disabilities while preparing them for employment.
If you are an individual with a disability hoping these government initiatives will impact you, it’s imperative that you understand your legal rights in the application/hiring process. The Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) provide the following protection for individuals in a pre-employment setting:
You do not have to disclose your disability to your potential employer.
A potential employer may not ask you if you have a disability – or about the nature or severity of your disability – during the hiring process. It is your choice whether to provide this information. If your disability will not impact your ability to perform the essential functions of your position, it may be in your interest not to disclose it, especially if you are worried about disability bias influencing the employment decision.
Importantly though, a potential employer may ask if you have the skills required to perform the duties of the job. An employer can ask you to describe or demonstrate how, with or without reasonable accommodation, you will be able to perform such duties. For example, a dentistry employer may require an applicant for a dental assistant position to describe how she will perform the essential job duty of taking and developing dental x-rays. This is because the law reserves the right for employers to make hiring decisions based on an applicant’s ability to perform the essential duties of the position, regardless of whether that ability is impacted by disability.
You do not have to provide information about subjects closely related to your disability.
Until you are offered a job, a potential employer is only permitted to ask about your ability to perform job duties. An employer may not ask questions about subjects related to disability that could prompt information about your disability in response. Questions seeking information on medications, past medical treatment, and workers’ compensation claims are prohibited.
Lying or refusing to answer an employer’s question may create unnecessary trouble for you.
Of course, illegal questions still sometimes arise in the application/hiring process. While the best way to handle an illegal question from a potential employer is a personal decision, it is important to consider that lying on an application may be adequate grounds for termination later, regardless of the appropriateness of the question. Some people address questions soliciting information about a disability that are unrelated to one’s ability to perform essential functions by simply stating “not applicable,” or by saying, “I can perform the essential functions of the job with or without reasonable accommodations.”
Your potential employer can only ask you if you need accommodation if your disability is obvious or if you disclosed a need for one.
Your potential employer cannot escape the protections described above simply by asking if you need reasonable accommodation. This type of question is prohibited as it clearly elicits information about a potential disability. However, if your disability is obvious (i.e. you are in a wheelchair) or you have already disclosed it, these questions are fair game.
You cannot be denied employment because of your disability.
Just as you cannot be terminated because of your disability, you cannot be denied employment because of your disability. As long as you can perform the essential functions of your job, your disability should not factor into an employer’s decision to offer you employment. If you feel that you’ve been denied a job that you were otherwise qualified for because of your disability, you may be entitled to certain remedies under the law.
In conclusion, the job market for individuals with disabilities is growing. As an individual with a disability looking to take advantage, it is important that you understand your rights. If you feel your rights have been violated in the application process, contact an experienced employment attorney to discuss an appropriate course of action.