By Jamie Ray-Leonetti
Title I of the Americans with Disabilities Act as amended (ADAAA) prohibits employment discrimination by all employers – including local government employers – with 15 or more employees. The following section about the interview process will provide you with information about certain aspects of Title I and how it applies to a person living with multiple sclerosis or any other disability.
The Job Interview
If your disability is not apparent, avoid mentioning your disability, unless, after meeting with the interviewer for a while, you feel confident that doing so would not jeopardize your chances of getting the job.
If you are asked whether or not you can perform the essential functions of the job, you can simply say “yes” without mentioning any reasonable accommodations you may need in order to do so. But, if you feel it is appropriate, you can say something along the lines of, “Yes, but I have MS, which causes fatigue, so I may need to take breaks.”
Ordinarily, the person conducting the interview cannot ask whether you have a disability or whether you need any accommodations. However, the EEOC indicates in its Enforcement Guidelines on Pre-Employment Inquiries that an employer may ask an applicant questions about reasonable accommodations based on any of the following: if the applicant has an obvious disability and the employer reasonably believes the applicant will need an accommodation; the applicant voluntarily discloses a hidden disability and the employer believes an accommodation will be needed; or the applicant tells the employer that she or he will need an accommodation.
It is illegal for employers to ask questions about your medical history during the application and interview process. It is also illegal for them to require you to submit to an examination prior to being offered a job. If a medical examination is required of all employees in that position, then you may be offered employment conditional on passage of the exam. However, the employer cannot rescind an offer of employment based on a disability disclosed by the examination unless the disability would prevent you from performing the essential functions of the job.
Keep an eye and an ear out for disability-related questions, which are illegal both on a job application and during a job interview. Here are some examples:
- Did you attend special classes in school?
- Do you have a disability?
- How many days were you sick last year?
- Have you ever filed for worker’s compensation?
- Have you ever been injured on a job?
- How much alcohol do you drink each week?
- Have you ever been treated for alcohol problems?
- Have you ever been treated for mental health problems?
- What prescription drugs are you currently taking?
- Have you ever been hospitalized? If so, for what condition?
- Have you ever been treated by a psychiatrist or psychologist? For what condition(s)?
- Have you had a major illness in the last 5 years?
- Have you ever been treated for drug addiction?
For affirmative action purposes, a job application may have a voluntary question that asks if you have a disability. You DO NOT HAVE TO ANSWER THIS QUESTION if you do not want to.
However, employers are allowed to ask legitimate job-related questions. The Equal Employment Opportunity Commission (EEOC), in the Enforcement Guidance on Pre-Employment Inquiries and Medical Examinations, lists the following as examples of questions that an employer may ask applicants: "Can you perform the functions of the job?" and "What reasonable accommodations do you need to perform the essential functions of the job?"
If you believe that you have been discriminated against because of any disability, you can contact the Equal Employment Opportunity Commission (EEOC) at 1-800-669-4000. You can also contact attorneys Steve Pennington and Jamie Ray-Leonetti at the Client Assistance Program for more information. They can be reached at (215) 557-7112.