Have you ever interviewed for a job where the interviewer asked “Can you perform all the functions of the job?” In my experience, most people seem to know this is a standard question allowed by the Americans with Disabilities Act, because the law has been around for almost 20 years. But when do those questions go over the line? How do you know when to set limits and what to do if you think the information is being used against you?
Employers are encouraged to ask if you fully understand the job. They should describe the job site (location, physical surrounding, etc.), provide a job description, Standard Operating Procedures (SOPs) and/or other current and accurate job-related documents as a common basis for the discussion. They should stick to the facts.
If you believe there may be a problem in performing a job, it is best to share your concerns and especially any personal experience you may have had with that aspect of the job. The interviewer should ask if there is another way to accomplish the function or the job. Would special equipment help? What about changing the physical location of the desk or workbench?
Many times there are simple fixes such as changing the height of the chair or workbench, or providing a small platform to stand on. It may not take much to isolate a workspace to reduce the number of distractions caused by the work environment when accommodating a person with ADHD.
The spirit of the law and those enforcing it is to go through a mutual discovery process resulting in the productive use of your work skills.
How do you sense the interviewer is not abiding by the spirit of the law? I see a red flag when they ask “do you have a disability that will prevent you from performing the job.” It does not smell right when they are focusing on your physical or mental impairment because of visible signs in the interview (such as a missing limb or glasses or hearing aid) rather than discussing the nature of the job.
They should not ask about your health (mental or physical) or that of a family member, or if you will need to take leave for personal treatment or the health care of someone in the family. They should not discuss the progress of an illness even if you volunteer information about a medical condition, its remission or treatment. They should not ask if you have had a drug or alcohol problem. Furthermore, they should not ask whether you have ever filed for workers’ compensation.
EEOC issued the final regulations for Title II of the Genetic Information Nondiscrimination Act (GINA) effective January 10, 2011. Among other provisions, the regulations include model safe harbor language that employers are strongly encouraged to use when lawfully requesting medical information from an employee, physician or other third party.
Under GINA, employers should not be asking at the post-offer stage of employment about whether relatives have mental disorders, cardiopulmonary disorder or other conditions that might have genetic components to them. References to family history should be removed from applications and post-offer medical examinations.
It is okay for an employer to ask for genetic information in many cases such as for voluntary wellness programs or any employer-provided health service. Even then, I find it better for employers to contract with a third party and not look at any personal health information. They are setting themselves up for trouble once the information is disclosed.
Charges are starting to be brought under Title II of the GINA law. There were 200 charges from the time it took effect on Nov. 21, 2009, to the end of the EEOC’s fiscal year on Sept. 30, 2010, and there have been 60 additional charges since Oct. 1 of this year.
You may contact EEOC’s Los Angeles District Office for filing a charge, obtaining mediation, or for information.