Inquiries in Employment Related Activities

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.

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.