Various forms of discrimination against employees and prospective employees are illegal under federal law, including discrimination against workers with disabilities.
Under the ADA, or Americans with Disabilities Act (42 U.S.C. 12101-12213), “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
The ADA defines disability as:
- “A physical or mental impairment that substantially limits one or more major life activities.”
- “A record of such impairment.”
- “Being regarded as having such an impairment.”
You can read more about how the ADA defines disability here.
The ADA applies to all of the following types of businesses and entities (“covered entities”):
- Private employers with a minimum of 15 employees.
- Employment agencies.
- Labor organizations.
- Joint labor-management committees.
However, the ADA does not apply to:
- Government agencies.
- Indian tribes.
- Tax-exempt private membership clubs, excluding labor organizations.
You can read more about the ADA’s anti-discrimination provisions here.
What if an Employer Violates the ADA?
If a covered entity violates the provisions of the ADA, the EEOC (Equal Employment Opportunity Commission) may become involved. The EEOC will inform the non-compliant employer of the claim against him or her, but may offer mediation prior to initiating a formal investigation. For investigative purposes, the EEOC has the right to issue a subpoena to collect documents, testimony, and other evidence. If the EEOC determines the employer did engage in discriminatory acts, it will grant the employee who was discriminated against the right to sue in court.
Under the ADA, the new maximum civil penalty for a first violation is $75,000 — $20,000 higher than the previous maximum of $55,000. The new maximum penalty for a second violation is twice as high at $150,000. These updated maximums apply to all violations occurring on or after April 28, 2014.
Can I Ask a Job Applicant About Disabilities During an Interview?
Interviews are an integral part of the hiring process, giving employers crucial insights into prospective new employees’ strengths, weaknesses, and professional capabilities. But while interviews are indispensable, employers must also be careful not to ask questions which violate federal law.
As a general rule of thumb, employers cannot ask any questions specifically related to a disability or apparent disability. For example, an interviewer cannot ask any of the following questions:
- Do you have any medical conditions which might affect your job performance?
- Have you ever been hospitalized? Have you ever been institutionalized?
- How many sick days did you take at your previous job?
- Do you have (“a specific condition”)?
- Have you ever filed for worker’s comp?
However, disabled applicants must be qualified for the job just as any non-disabled applicant would. Under the ADA, “’qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
What, then, is “reasonable accommodation”? The ADA defines reasonable accommodation as:
- “Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.” (For example, installing a wheelchair ramp.)
- “Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
Instead of focusing on a job applicant’s medical limitations, take the opposite approach: ask the applicant about what he or she can do. Examples of good questions to ask include:
- Do you have any special licenses or certifications?
- What about your education or experience makes you a good candidate for this position?
- Why did you leave your last position?
- What was your favorite aspect of your last position?
- Can you meet the physical requirements of the job? (Notice this question does not make any reference to a disability or medical condition: all applicants can be asked this question. For example, some jobs require heavy lifting capabilities.)
The Office of Disability Employment Policy, or ODEP, is a division of the U.S. Department of Labor whose goal is to “develop and influence policies and practices that increase the number and quality of employment opportunities for people with disabilities.” ODEP offers two excellent, free-to-use resources to help employers find qualified disabled job applicants:
- The Employer Assistance and Resource Network (EARN)
- The Workforce Recruitment Program for College Students with Disabilities (WRP)
You can read more about government resources for hiring disabled employees in this ODEP recruitment guide.
Are There Tax Benefits for Hiring Employees with Disabilities?
Certain tax benefits may be available to businesses which help to promote diversity in the workforce by hiring disabled job applicants:
- Barrier Removal Tax Deduction (IRS Code Section 190): A business of any size may claim a maximum annual deduction of $15,000 for expenses associated with tasks like making restrooms wheelchair-accessible, altering vehicles, or expanding the width of walkways.
- Disabled Access Credit (IRS Code Section 44, Form 8826): To be eligible, a business must have earned $1 million or less, or had no more than 30 full-time employees, during the previous year. The maximum annual tax credit is $5,000.
- Work Opportunity Credit (Form 5884): Once a disabled employee has worked for a minimum of either 90 days or 120 hours, the employing business may claim a maximum credit of “40% of the first $6,000 of first-year wages.”
By: The Jayson Law Group LLC—Based in Union, NJ, The Jayson Law Group LLC serves the legal needs of both individuals and businesses throughout Northern and Central New Jersey. Members of the staff are licensed to practice in both New Jersey and New York.