ADA Title I - Employer Inquiries
I presently work in a building with central air-conditioning and my office is not on ground-level. I have a neuropathy, which affects my legs, and my ability to climb stairs. My doctors submitted letters to my employer that indicated that I should work in a building that is air-conditioned and on ground-level. However, my employer last year did not put me in these conditions, and I am going back to work. I anticipate that my employer is going to put me again in the same working conditions.
My question to you is the following:
Given that I have two doctors' notes on file, and that there were openings at the time, shouldn't my employer comply to my doctors' notes?
Please respond to this question, since, I need to know what the next step is that I need to take. Thank you very much.
Thank you for writing the Illinois ADA Project with your question. As long as a person has a disability as defined by the ADA, employers are required to provide reasonable accommodations unless there is an undue hardship, (defined as significant difficulty or expense), the accommodation fundamentally alters the job or program, or the accommodation creates a significant risk of substantial harm that cannot be alleviated through reasonable accommodation.
Depending on the specific facts of your situation, it is quite likely that your accommodation requests should be granted. You may need legal representation to protect your rights and I therefore advise that you contact the Illinois Protection and Advocacy Agency, Equip for Equality (EFE). EFE manages the Illinois ADA Project and the contact info is under my signature to this letter. Please call EFE and advise that you have a situation for intake and you will be referred to an intake specialist. Please let me know if EFE is unable to assist you further. Thank you.
Can an employer ask for a Social Security number on a job application?
Yes, but under the ADA, the employer cannot use the information to discover disability-related information.
I was just told that the EEOC has published guidelines that says (basically)- It is okay to ask about disability on employment applications. Can you think of any way that this can be accurate? A high ranking city official stated this in a meeting, and I think they are wrong, but thought I should ask the expert first. Thanks.
Disability related questions cannot be asked at the application stage. An employer can only ask disability-related questions, (or require a medical examination), after there has been a bona fide conditional offer of employment. After the offer, almost all disability-related information is fair game for questioning as long as:
- The questions are asked of every applicant for that position;
- The reason that the person is rejected is job related and based on business necessity.
However, EEOC Guidance provides that an employer may "voluntarily" ask a job applicant to "self-identify." This information must then be kept confidential and in a separate medical file as is true with any medical information obtained by an employer. The EEOC Guidance relevant to this area is included below. The entire EEOC document addresses other disclosure issues as well and may be found at http://www.eeoc.gov/policy/docs/preemp.html.
The U.S. Equal Employment Opportunity Commission
May an employer ask applicants to "self-identify" as individuals with disabilities for purposes of the employer's affirmative action program?
Yes. An employer may invite applicants to voluntarily self- identify for purposes of the employer's affirmative action program if:
- the employer is undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities (that is, the law requires some action to be taken on behalf of such individuals); or
- the employer is voluntarily using the information to benefit individuals with disabilities.
Employers should remember that state or local laws sometimes permit or encourage affirmative action. In those cases, an employer may invite voluntary self-identification only if the employer uses the information to benefit individuals with disabilities.
Are there any special steps an employer should take if it asks applicants to "self-identify" for purposes of the employer's affirmative action program?
Yes. If the employer invites applicants to voluntarily self- identify in connection with providing affirmative action, the employer must do the following:
- state clearly on any written questionnaire, or state clearly orally (if no written questionnaire is used), that the information requested is used solely in connection with its affirmative action obligations or efforts; and
- state clearly that the information is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA.
In order to ensure that the self-identification information is kept confidential, the information must be on a form that is kept separate from the application.
Alan M. Goldstein
The Illinois ADA Project at Equip for Equality