Job Interview Rights

Job Interview Rights

Greg

Trapp

Understanding

Your Rights During the Job Interview

by Greg D. Trapp

From the Editor: Greg

Trapp has been a staff attorney with the Protection and Advocacy System since

1992. Prior to this he was an Equal Opportunity Specialist at the University

of New Mexico. Mr. Trapp is a 1990 graduate of the UNM School of Law. In 1993

he taught Disability Law as an adjunct professor at the UNM School of Law. Mr.

Trapp presently serves on the New Mexico Commission for the Blind Statewide

Rehabilitation Advisory Council, the Individuals with Disabilities Act State

Advisory Panel, and the Board of Directors of the National Association of Blind

Lawyers. This is what he says about the all-important task of successfully negotiating

the job interview:

The job interview is probably

the most crucial step on the path to becoming employed. It is your best opportunity

to make a favorable impression on a prospective employer. It may also be your

only opportunity to educate the employer about the abilities of a blind person

and to make him or her feel comfortable with your blindness. However, because

the Americans with Disabilities Act of 1990 (ADA) prohibits employers from asking

disability-related questions during an interview, you may need to take charge

of the process and raise the questions yourself. To do this you must understand

what questions are permitted by the ADA and which ones are prohibited. This

article briefly explains the difference between permissible and impermissible

questions, suggests some strategies for taking charge during the interview,

and explains some options you may have if you believe your rights were violated.

The rules governing pre-employment

disability-related questions are complicated, as well as controversial. The

Equal Employment Opportunity Commission (EEOC) enforces the employment provisions

of the ADA and issues interpretative regulations and guidelines. On October

10, 1995, the EEOC issued an Enforcement Guidance intended to clarify the questions

which may be asked during a job interview. The guidance, Number 915.002, is

titled "Pre-employment Disability-Related Questions and Medical Examinations."

You can obtain the full text of the guidance from the EEOC Web page, http://www.eeoc.gov

You may also obtain the guidance by calling the EEOC publications center at

(800) 669-EEOC. The guidance is available in alternate accessible formats. Because

this article can examine this complicated subject only briefly, you may want

to obtain a copy of the complete guidance.

Prior to the passage of

the ADA, it was common for employers to ask job applicants about their medical

or physical conditions. Now, since the enactment of the ADA, an employer cannot

ask disability-related questions unless a job offer has been made. Before a

job offer, employers cannot ask questions that are likely to elicit information

about a disability, ask whether an applicant has a particular disability, or

ask questions that are closely related to a disability. For instance, an employer

cannot ask if you are blind or ask questions about the level of any partial

vision you have. This type of information was often used to exclude blind applicants

categorically before their ability to perform the job had ever been considered.

These questions are now prohibited to ensure that persons with disabilities

are given an equal opportunity to apply for a job without regard to their disability.

Although an employer may

not ask disability-related questions during the interview, if the interview

includes a process such as a written test, an employer may ask whether you need

a reasonable accommodation for the interview. During the interview employers

are allowed to ask questions to determine if you are qualified for the job.

For instance, an employer may ask if you can perform job functions, including

whether you can perform them with or without reasonable accommodations. Employers

may also ask a job applicant to describe or demonstrate how he or she would

perform specific job functions, as long as all applicants in the job category

are asked to do this. For example, if the job function included computer use,

you could explain how assistive technology (such as a speech synthesizer) might

enable you to use computers.

An employer may also state

the physical requirements of a job (such as the ability to lift heavy weights

or to climb ladders) and ask if you can satisfy these requirements. Some employers

who are unfamiliar with blindness may not understand that a blind person can

climb ladders or perform other manual tasks, and you should take this opportunity

to explain how you could negotiate the work site. Employers may also ask applicants

to disclose their disabilities voluntarily for purposes of affirmative action

programs.

Employers are also allowed

to ask about your qualifications, work history, education, and job skills. Because

employers are allowed to ask about your qualifications, they can ask if you

have required certifications and licenses. For example, an employer may ask

if you have a driver's license, but only if driving is a job-related duty. Unfortunately,

it is still common for employers to require a driver's license, even though

the travel could be accomplished by using public transportation, cabs, or drivers.

If you encounter this situation, you should explain to the employer that you

could perform the travel using these alternative methods. A driver's license

should be required only for jobs such as a police officer, bus driver, or delivery

truck driver.

Many employers do not know

what questions they are allowed to ask to determine whether you are qualified

to perform the job. Also, an employer may well not understand what types of

reasonable accommodations would enable you to perform the job. The new EEOC

guidance attempts to address this problem by giving the employer additional

leeway to ask questions in the case of a person with a disability. If an employer

might reasonably believe that an applicant was unable to perform a job function

because of a known disability, the employer may ask that particular applicant

to describe or demonstrate how he or she would perform the function, even if

other applicants were not asked this same question.

For instance, your disability

would be a "known disability" if you came to the interview using a

white cane or guide dog, so the interviewer would be allowed to ask you to describe

or demonstrate how you would perform specific job functions. If you say that

you would need a reasonable accommodation to perform the job, the employer may

ask you questions about the accommodation. Accordingly, you should educate yourself

in advance about what reasonable accommodations you will need. For instance,

if you say that you need a speech synthesizer, the employer is allowed to ask

who makes the speech synthesizer and if it is compatible with the employer's

computer system. You should be prepared to answer this type of question and

do so with confidence and authority.

The EEOC guidance attempts

to explain some subtle distinctions between the questions that are allowed and

the ones which are prohibited. For instance, an employer may ask if you "can

perform the job with or without reasonable accommodations," but may not

ask if you "need a reasonable accommodation to perform the job." The

first question is allowed because answering either "yes" or "no"

does not reveal the presence of a disability, while answering "yes"

to the second question would reveal the presence of a disability.

The distinctions are equally

subtle in the case of physical

testing. For instance,

an employer may give vision tests to

applicants before a job

offer, provided that the test is not a

"medical" exam.

The EEOC guidance states that "evaluating

someone's ability to read

labels or distinguish objects as part

of a demonstration of the

person's ability to do the job is not a

medical examination."

However, the EEOC guidance also states that

an ophthalmologist's examination

is medical (as is requiring an

individual to read an eye

chart). If you are asked to demonstrate

your ability to read, you

should keep in mind that you may

request a reasonable accommodation

for the reading test, or you

may describe what reasonable

accommodations could enable you to

perform the reading. This

is a crucial moment for you to educate

your potential employer

about your ability to perform the job,

and you should not miss

the opportunity.=20

Despite your best efforts

to educate a potential employer, you may still be rejected for the job. If the

employer rejects you after a disability-related question or medical examination,

you may file a complaint with the EEOC, which will "closely scrutinize"

whether the rejection was based on the results of that question or examination.

Persons who have a "hidden

disability," such as a psychiatric disorder, may choose not to disclose

the existence of the disability during the interview. If the employer does not

know of the existence of the disability, the employer will not be able to exclude

the applicant based on the disability. By contrast, blindness is usually obvious

to the employer. Because the employer is normally aware of the disability, a

blind person is in a different position from a person with a hidden disability.

Since the employer will be aware of your disability but may not know what kinds

of questions may be asked, you must be prepared voluntarily to describe and

demonstrate how you can perform the job. This means that you must thoroughly

research the job and the reasonable accommodations you will require long before

you walk into the interview. One of the best ways to do this is to talk to blind

persons who are successfully employed in similar jobs. By being prepared and

informed about your rights, you may discover a world of new employment opportunities

waiting for you.