Category: Disability Discrimination

As he turned to the third page of a job application for a secretary position with a local company, the man paused. He re-read the question he had just been asked on this seemingly standard application. Puzzled, he picked up the phone and dialed the number for his local Muscular Dystrophy Association office. He had come to rely on the organization since his diagnosis with the disease. He was hopeful that one of the kind volunteers he had come to know quite well be able to shed some light on his current dilemma. A woman cheerfully answered the phone and asked how she could help the man on this particular morning. The man posed a simple question for the volunteer: “Can a company ask me if I have a physical disability on a job application?” The volunteer hesitated before she responded. “I’m not entirely certain, sir. I would think that an employer cannot ask that question, but I would recommend contacting a lawyer to find out for sure.”

What Can a Potential Employer Ask?

Questions about what an employer can and cannot legally ask during the interviewing and hiring process are incredibly common. In California, employers are generally prohibited from asking questions about certain protected characteristics. However, there are ways employer can discover information about a potential employee through seemingly innocuous questions. Here we discuss when an employer can and cannot ask you questions about a disability during the hiring process. If you believe that you have been asked an illegal question on a job application, during an interview, or throughout the hiring process, contact an experienced employment discrimination attorney today.

Non-Job Related Questions About Protected Characteristics Prohibited

The California Fair Employment and Housing Act prohibits employers from asking non-job related questions of applicants or employees about race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation with the intent to make a limitation, specification, or discrimination. That sounds like a lot – but it essentially means that employers may not directly or indirectly ask you on a job application or during an interview about any of the listed categories. This prohibition is true for written and verbal inquiries.

Some Job-Related Questions May Be Appropriate in Certain Cases

Calfornia’s anti-discrimination laws are not intended to prohibit employers from hiring the best candidate for the job or to give applicants with protected characteristics a step up on the competition. Rather, California’s anti-discrimination laws are intended to level the playing field for all applicants and to prevent employers from discriminating (consciously or subconsciously) against competent applicants. In an effort to find a balance between protecting the interests of applicants with and the interests of the hiring employer, California law allows employers to pose certain job-related questions.

Under California law, employers may ask about an applicant’s ability to perform specific functions of the position or job. So, an employer may ask an applicant if he or she is physically capable of lifting 50 pounds on occasion. However, employers may only ask a question of this nature if it is job related, consistent with business necessity, and asked of all applicants in the same job classification.  Failure to adhere to these three requirements could mean that the questioning is discriminatory and illegal.

California also permits employers to ask potential employees if they will require “reasonable accommodation” to perform a job or job function. Employers may ask for medical certification to confirm the need for accommodation. Employers may also ask questions to determine the level of accommodation that would be required. The employer may not use the information to act adversely against the applicant. California law requires employers to provide “reasonable accommodations” for employees to perform their essential job functions. Reasonable accommodations are defined under the Americans with Disabilities Act as “modifications or adjustments that enable employees with disabilities to perform the essential functions of their job.” The fact of whether reasonable accommodations are or can be provided will depend on the facts of each individual case.

Employers may also make employment contingent on a medical or physical evaluation or assessment if the evaluation or assessment is (a) conducted to ascertain the ability to perform a job function, (b) consistent with necessary business operations, and (c) conducted on all employees in the same classification.

Contact an Experienced Employment Discrimination Attorney

What about the man suffering from Muscular Dystrophy who was troubled by the job application’s question about whether or not he suffered from a disease? The answer will depend on how the question was phrased. What was the question designed to do? What was the employer’s purpose for asking the question? Was the question explicitly about an affliction with Muscular Dystrophy? Or, was it a question that generally asked if the man had the physical capability to perform a specific job function or would require reasonable accommodation?

The best way to find out if you have been asked a discriminatory question during a job interview process is to contact an experienced employment discrimination attorney. The law prohibits employers from asking questions about characteristics that could lead to discrimination, but also provides certain circumstances under which questions designed to elicit potentially-discriminatory information are permissible. An experienced California employment discrimination attorney will be able to review your specific situation and determine if you have been the victim of improper employment discrimination. Contact our office today to learn more.