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Disability Inquiries: When
and How to Ask Disability-Related Questions
Disability-related information is
sensitive data; there are contexts where it’s inappropriate and even illegal to
solicit it.
In particular, if you are providing employment-related
activities--- like job placement and training --- there are limits on direct and
leading questions about disability. This is because disability information has
been known to have disqualified otherwise eligible candidates in the past. To
protect against prejudice, the Americans with Disabilities Act Amendment Act
(ADAAA) Title I explicitly prohibits disability-related questions unless an
applicant has been given a conditional job offer.
But, what if you’re not
just engaged in employment-related activities? What if you’re an employment
placement agency that is also in the service sector, helping persons with
disabilities succeed with employment?
In the service context,
disability-related information is crucial; it can help you design targeted
programs that would benefit your community and ultimately the customer.
Disability-related information can also help you determine what reasonable
accommodations may be necessary to facilitate job placement.
The good
thing is, Title II of the ADAAA provides greater latitude in asking
disability-related questions when conducting service-related activities.
Therefore, to discern what you’re legally allowed to ask, identify first whether
you’re conducting an employment-related activity or a service-related activity,
and be guided accordingly. This advice is important especially if you’re a
service provider wearing “two hats” – service and placement.
The
following are other considerations when asking disability-related questions:
First, it’s legal across all contexts to inquire about disability status as
part of gathering demographic information. Customers have no obligation to
answer and you must emphasize this fact. You must also make it known to your
customers that if they do decide to disclose, all responses will be kept
confidential even after the helping relationship has been terminated. More
importantly, it should be known that refusal to disclose disability will not
disqualify a customer from the services you provide.
Inquiries
in Service-Related Activities
When asking disability-related
questions, make sure that the customer understands the reasoning behind the
inquiry. Remember, curiosity is never a good reason to ask about a disability.
The answer must be relevant to the success of the job application, the nature of
the work involved and/or the safety of working conditions.
An example of
a valid reason is needing information to determine if reasonable accommodations
are necessary to apply for or keep a job. For example, if an applicant with a
visual impairment applies for a job where visual vigilance is an essential
function of the job, you may ask your customer if he/she would need a reasonable
accommodation to perform the task. If the applicant answers in the negative, you
must respect the response. If your customer answers “yes,” you may inquire what
type of accommodation he or she needs.
Inquiries in
Employment-Related Activities
If you’re not allowed to ask
disability-related questions, how can you assess if your customer is capable of
the work involved?
A legal way is to just ask an applicant about their
experience or ability to perform specific job functions of the job. For example,
if the job involves typing, ask your customer if s/he can type. What’s not
allowed is to ask if s/he has a disability that will prevent him/her from
typing. Such a question is a leading question and considered illegal.
Asking about non-disability-related impairments is also allowed. Disability by
definition is a condition that substantially limits a major life activity. In
this sense, not all impairments are disabilities. For example, you may ask a
customer with a fractured arm how she broke her arm. Since fractures tend to be
temporary and do not substantially limit a major life activity, it is not
considered a disability.
If your customer voluntarily discloses about a
disability or the disability is obvious, you may also ask how s/he will perform
the essential functions of the job. For instance, if a customer has revealed
that he/ she has auditory impairment, you’re allowed to ask how they will be
able to respond to machine signals that are sound-based.
Lastly, asking
about current illegal drug use is permissible by law. Illegal drug use is not
protected by ADAAA. Legal drug use, however, is protected since it could relate
to a disability. It is also illegal to ask about a history of substance
dependence since this is considered a disability under the ADAAA.
Would you like to reprint this article?
You may as long as you include this blurb in its entirety:
Lisa Jordan
is a disability and workforce development expert. Lisa uses her keen ability to
identify challenges and develop solutions so
that workforce development professionals can increase their comfort level,
productivity and effectiveness when working with a diverse clientele. Download
Lisa’s White Paper on 5 Easy Disability Tips to Immediately Increase Agency
Accessibility by visiting
http://www.human-solutions.net.
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