Can an Employer Ask What My Disability Is?

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) provide important protections to help ensure individuals with disabilities can find gainful employment. Many employers might not want to hire individuals with certain disabilities, but refusing to hire an employee because of the employee’s disability when the employee can perform the job duties of the position is a violation of the law. To help protect employees from disability discrimination during the hiring process, the law places limits on what employers can ask job applicants during the recruitment or hiring process. Anyone who believes they experienced unlawful discrimination based on a disability should contact a San Francisco employment attorney about their rights.

Prohibited Questioning

The following inquiries are prohibited by employers or prospective employers:

• Whether someone is disabled
• The nature of the disability
• The severity of the disability

An employer also may not base hiring decisions on a real or perceived disability.

Permitted Questions

The law recognizes that employers need to understand an employee’s ability to perform the duties of a job. For this reason, an employer is allowed to ask if an applicant is able to perform a job. After an employee is hired, the employer may ask questions about a disability only if the information directly relates to the job and consistent with business necessity.

Medical Examinations

A company cannot require someone to undergo a medical examination prior to offering a job offer to the prospective employee. If the employer makes a job offer, it can require the employee to pass a medical exam, but only if the examination is job-related and consistent with business necessity and if the employer requires everyone offered the same type of position to take a medical exam. If a medical exam reveals that an employee has a disability, the employer cannot reject the prospective employee because he or she has a disability. The employer can only reject the employee if the employee is not able to perform the essential duties of the job, with or without accommodations.

What to Do When an Employer Asks Prohibited Questions

All too often, applicants or employees find themselves subjected to unlawful questions about their disabilities. At the moment, it can seem difficult to refuse to answer, but prospective employees do have the right to do so. It is illegal for a prospective or current employer to retaliate against an applicant or employee for refusing to answer disallowed questions.

If a company engages in prohibited lines of questioning, the specific legal remedies will depend on the circumstances of the situation. For example, if a company asked an applicant about a disability and then refused to hire them based on the answers, the applicant may seek placement in the position, back pay and benefits lost because they were not immediately hired, or both. In a successful discrimination claim, the employee may also get the employee to cover court costs and attorney’s fees.

Contact a San Francisco Employment Discrimination Attorney for Help

The law firm of Minnis & Smallets stands up for employees who experience unlawful disability discrimination during hiring or employment. Anyone who would like to discuss their legal options should contact our firm to schedule a consultation.