The New York Times this week reported on a joint study conducted by Syracuse and Rutgers Universities that found employers are generally far less likely to hire applicants who reveal they have a disability. Individuals with a disability applying for jobs should take note. Thankfully, federal and Ohio disability discrimination laws prohibit employers from asking applicants whether they have a disability.
In the study recounted by the Times, the researchers sent out thousands of mock résumés and cover letters for fictional job applicants in the accounting industry with varying levels of experience. The applications were identical, except that for some, the cover letters revealed the existence of a supposed disability, either a spinal cord injury or Asperger’s Syndrome. According to the study, the “candidates” who revealed a disability received interest from prospective employers about 26% less frequently than the candidates who did not.
While I confess to not reading the study, the findings are not hard to believe. When Congress passed the Americans with Disabilities Act in 1990, it did so in the face of significant evidence that individuals with disabilities have historically faced overwhelming discrimination in hiring, and have had far higher rates of unemployment than the general population. At the least to the latter, this continues to be true even now.
The study did have some encouraging findings however. It suggested that the hiring bias against individuals with a disability was not statistically significant in all workplaces. For larger employers (i.e. over 15 employees) and those receiving federal contracts, the disparity seemed to disappear. Not coincidentally, both categories of employers are covered by federal laws prohibiting disability discrimination in employment (whereas smaller employers and those not receiving federal funds are not). This finding supports a common sense proposition: federal protections for individuals with disabilities do lessen the effects of discriminatory bias.
What can employers ask about applicant and employee disabilities?
The recent study provides a good opportunity to recap Ohio and federal law with respect to the hiring of individuals with disabilities. The Americans with Disabilities Act and Ohio law both prohibit discrimination against individuals with disabilities with respect to recruitment, advertising for vacancies, job application procedures, and hiring. Of course, this ban means that employers cannot typically refuse to hire individuals because they have a disability (assuming the individual can perform the essential job functions with or without a reasonable accommodation). Significantly, the disability discrimination laws also specify what employers can and cannot ask candidates about their medical conditions.
At the pre-hiring stage, before an offer is extended, employers may ask about the ability of an applicant to perform “job-related functions,” and may ask applicants to explain or demonstrate how they would perform those functions, either with or without a reasonable accommodation.
After an offer is made, but before the employee begins work, the restrictions are somewhat different. At that stage, an employer may condition an offer of employment on the results of a medical examination, and may make inquiries into the individual’s health, but only “if all entering employees in the same job categories are subjected to [the same examination or inquiries].” That requirement balances ensuring employees can do the job with the need to prohibit employers from singling out individuals who have a disability or those whom the employer suspects may have a disability.
Once an individual is officially employed, an employer may require a medical examination, or may ask about the employee’s health, only if it is “job-related and consistent with business necessity.” Whether an inquiry is permissible in these situations tends to be a very fact-specific question.
Should I volunteer to a potential employer that I have a disability?
As we can see from the study, there is a reason the disability discrimination laws prohibit employers from asking whether an employee has a disability: disclosure makes it less likely that qualified individuals with a disability will receive equal employment opportunity. With that in mind, the fictional candidates in the study should be a model for what not to do. Do not volunteer that you have a disability when applying for a job. Instead, the conversation between employers and applicants should center on an individual’s ability to perform the essential job functions. If reasonable accommodations are necessary to perform those functions, an interactive dialogue about the accommodations and how they would work might eliminate any unsubstantiated fears the employer would have about hiring the otherwise-qualified applicant. That is the process Congress envisioned when passing the ADA, and it is the path both employers and employees should follow when interviewing and hiring individuals with a disability.
Disability discrimination is perhaps the most frequent employment law claim we see in our practice. Sometimes the claims arise because employers simply do not understand the law. Other times, there’s cause to believe animus or stereotypes about individuals with disabilities have come into play.
If you believe you have been discriminated against on the basis of disability, contact the Cleveland employment law attorneys at Bolek Besser Glesius LLC today.