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NYC Litigation Blog

Friday, May 8, 2015

Questioning Job Candidates About Disabilities

Can I Be Asked About My Disability at a Job Interview?

Potential employers need to limit the questions they ask in order to comply with state and federal anti-discrimination laws. Not all employers are well educated about these laws, and if you have an obvious physical limitation or disability, you may find yourself being asked questions related to your disability. 

Generally, the federal Americans with Disabilities Act and the New York Human Rights Law prohibit employers from asking whether a job applicant has a disability or about the severity of a disability. In fact, any question that is likely to elicit information about a disability should be avoided. This is true for written applications as well as in-person interviews.

Employers are usually within their rights to ask if you can perform the essential functions of the job with or without a reasonable accommodation. If your disability is obvious and that might hinder you in performing the job, you may be asked how you can perform specific job duties.

After a conditional offer of employment, an employer may require you to pass a medical examination, as long as all job candidates need to go through the same process. This may involve questions that would not be allowed during a job interview, but this medical information is supposed to be kept confidential (with exceptions) and separate from your personnel file.

Some medically-related information can be shared; for example,
• Managers who need to be informed of necessary restrictions or accommodations for you,
• Medical departments or safety personnel in case emergency treatment is needed where you work, and
• Government investigators looking into discrimination complaints.

If a physical exam results in a withdrawal of a conditional job offer, the employer must show that: 
• The reasons are job-related consistent with business necessity, or 
• Your disability poses a direct threat to the health or safety of yourself or others, and 
• There is no reasonable accommodation that would enable you to perform the essential job functions without posing a direct threat to the health or safety of you or others.

For more than 20 years, attorney Thomas M. Lancia has been advising both employers and employees regarding employment discrimination. Contact him today by calling (212)964-3157.


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