by Greg D. Trapp
From the Editor: Greg Trapp has been a staff attorney with the Protection and Advocacy System since 1992. Prior to this he was an Equal Opportunity Specialist at the University of New Mexico. Mr. Trapp is a 1990 graduate of the UNM School of Law. In 1993 he taught Disability Law as an adjunct professor at the UNM School of Law. Mr. Trapp presently serves on the New Mexico Commission for the Blind Statewide Rehabilitation Advisory Council, the Individuals with Disabilities Act State Advisory Panel, and the Board of Directors of the National Association of Blind Lawyers. This is what he says about the all-important task of successfully negotiating the job interview:
The job interview is probably the most crucial step on the path to becoming employed. It is your best opportunity to make a favorable impression on a prospective employer. It may also be your only opportunity to educate the employer about the abilities of a blind person and to make him or her feel comfortable with your blindness. However, because the Americans with Disabilities Act of 1990 (ADA) prohibits employers from asking disability-related questions during an interview, you may need to take charge of the process and raise the questions yourself. To do this you must understand what questions are permitted by the ADA and which ones are prohibited. This article briefly explains the difference between permissible and impermissible questions, suggests some strategies for taking charge during the interview, and explains some options you may have if you believe your rights were violated.
The rules governing pre-employment disability-related questions are complicated, as well as controversial. The Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA and issues interpretative regulations and guidelines. On October 10, 1995, the EEOC issued an Enforcement Guidance intended to clarify the questions which may be asked during a job interview. The guidance, Number 915.002, is titled "Pre-employment Disability-Related Questions and Medical Examinations." You can obtain the full text of the guidance from the EEOC Web page, http://www.eeoc.gov You may also obtain the guidance by calling the EEOC publications center at (800) 669-EEOC. The guidance is available in alternate accessible formats. Because this article can examine this complicated subject only briefly, you may want to obtain a copy of the complete guidance.
Prior to the passage of the ADA, it was common for employers to ask job applicants about their medical or physical conditions. Now, since the enactment of the ADA, an employer cannot ask disability-related questions unless a job offer has been made. Before a job offer, employers cannot ask questions that are likely to elicit information about a disability, ask whether an applicant has a particular disability, or ask questions that are closely related to a disability. For instance, an employer cannot ask if you are blind or ask questions about the level of any partial vision you have. This type of information was often used to exclude blind applicants categorically before their ability to perform the job had ever been considered. These questions are now prohibited to ensure that persons with disabilities are given an equal opportunity to apply for a job without regard to their disability.
Although an employer may not ask disability-related questions during the interview, if the interview includes a process such as a written test, an employer may ask whether you need a reasonable accommodation for the interview. During the interview employers are allowed to ask questions to determine if you are qualified for the job. For instance, an employer may ask if you can perform job functions, including whether you can perform them with or without reasonable accommodations. Employers may also ask a job applicant to describe or demonstrate how he or she would perform specific job functions, as long as all applicants in the job category are asked to do this. For example, if the job function included computer use, you could explain how assistive technology (such as a speech synthesizer) might enable you to use computers.
An employer may also state the physical requirements of a job (such as the ability to lift heavy weights or to climb ladders) and ask if you can satisfy these requirements. Some employers who are unfamiliar with blindness may not understand that a blind person can climb ladders or perform other manual tasks, and you should take this opportunity to explain how you could negotiate the work site. Employers may also ask applicants to disclose their disabilities voluntarily for purposes of affirmative action programs.
Employers are also allowed to ask about your qualifications, work history, education, and job skills. Because employers are allowed to ask about your qualifications, they can ask if you have required certifications and licenses. For example, an employer may ask if you have a driver's license, but only if driving is a job-related duty. Unfortunately, it is still common for employers to require a driver's license, even though the travel could be accomplished by using public transportation, cabs, or drivers. If you encounter this situation, you should explain to the employer that you could perform the travel using these alternative methods. A driver's license should be required only for jobs such as a police officer, bus driver, or delivery truck driver.
Many employers do not know what questions they are allowed to ask to determine whether you are qualified to perform the job. Also, an employer may well not understand what types of reasonable accommodations would enable you to perform the job. The new EEOC guidance attempts to address this problem by giving the employer additional leeway to ask questions in the case of a person with a disability. If an employer might reasonably believe that an applicant was unable to perform a job function because of a known disability, the employer may ask that particular applicant to describe or demonstrate how he or she would perform the function, even if other applicants were not asked this same question.
For instance, your disability would be a "known disability" if you came to the interview using a white cane or guide dog, so the interviewer would be allowed to ask you to describe or demonstrate how you would perform specific job functions. If you say that you would need a reasonable accommodation to perform the job, the employer may ask you questions about the accommodation. Accordingly, you should educate yourself in advance about what reasonable accommodations you will need. For instance, if you say that you need a speech synthesizer, the employer is allowed to ask who makes the speech synthesizer and if it is compatible with the employer's computer system. You should be prepared to answer this type of question and do so with confidence and authority.
The EEOC guidance attempts to explain some subtle distinctions between the questions that are allowed and the ones which are prohibited. For instance, an employer may ask if you "can perform the job with or without reasonable accommodations," but may not ask if you "need a reasonable accommodation to perform the job." The first question is allowed because answering either "yes" or "no" does not reveal the presence of a disability, while answering "yes" to the second question would reveal the presence of a disability.
The distinctions are equally subtle in the case of physical testing. For instance, an employer may give vision tests to applicants before a job offer, provided that the test is not a "medical" exam. The EEOC guidance states that "evaluating someone's ability to read labels or distinguish objects as part of a demonstration of the person's ability to do the job is not a medical examination." However, the EEOC guidance also states that an ophthalmologist's examination is medical (as is requiring an individual to read an eye chart). If you are asked to demonstrate your ability to read, you should keep in mind that you may request a reasonable accommodation for the reading test, or you may describe what reasonable accommodations could enable you to perform the reading. This is a crucial moment for you to educate your potential employer about your ability to perform the job, and you should not miss the opportunity.
Despite your best efforts to educate a potential employer, you may still be rejected for the job. If the employer rejects you after a disability-related question or medical examination, you may file a complaint with the EEOC, which will "closely scrutinize" whether the rejection was based on the results of that question or examination.
Persons who have a "hidden disability," such as a psychiatric disorder, may choose not to disclose the existence of the disability during the interview. If the employer does not know of the existence of the disability, the employer will not be able to exclude the applicant based on the disability. By contrast, blindness is usually obvious to the employer. Because the employer is normally aware of the disability, a blind person is in a different position from a person with a hidden disability. Since the employer will be aware of your disability but may not know what kinds of questions may be asked, you must be prepared voluntarily to describe and demonstrate how you can perform the job. This means that you must thoroughly research the job and the reasonable accommodations you will require long before you walk into the interview. One of the best ways to do this is to talk to blind persons who are successfully employed in similar jobs. By being prepared and informed about your rights, you may discover a world of new employment opportunities waiting for you.