Disability Discrimination and Job Interviews: What Employers Can and Can’t Ask

By Douglas Lipsky
Partner

Disability discrimination, though often subtle, remains a significant barrier to employment for many. Ever been in a job interview and wondered, “Can they ask me that?” It can get a bit tricky when the questions start to veer toward your health. Understanding your legal protections is essential. Let’s take a look at disability discrimination during a job interview and what you can do about it. 

Defining Disability Discrimination

Disability discrimination occurs when an employer treats a qualified individual unfavorably because of a disability. This can happen at any employment stage, including job interviews. It may appear as preconceived notions about a candidate’s ability to perform job duties or in overtly biased remarks. However, it’s not always obvious. Discrimination can also involve offhand comments or seemingly innocent questions about your health or abilities. No matter how it occurs, disability discrimination is illegal. 

What Employers Can and Cannot Ask

The Americans with Disabilities Act (ADA) sets clear rules about what is off-limits for employers to ask during a job interview. Employers must refrain from asking any questions that directly or indirectly disclose a disability. This means that probing into your medical history, asking for a medical examination, or directly inquiring whether you have a disability are all off-limits unless it pertains to a necessary job function or to discuss reasonable accommodations. For example, employers cannot ask:

  • “Do you have any health conditions?”
  • “How many days were you sick last year?”
  • “Have you ever filed for workers’ compensation?”
  • “Do you take any prescription medications?”

These questions are considered discriminatory because they make assumptions based on disabilities rather than focusing on the candidate’s ability to perform job-related duties.

Under New York law, the restrictions are even more pronounced. Employers must be cautious not to ask questions that could be perceived as discriminatory, even if they do not intend to discriminate. For instance, questions like “Can you lift 50 pounds?” should be qualified with “as a part of the job” to ensure they are tied to job requirements.

Employers should also avoid questions about the nature or severity of a disability even after a voluntary disclosure. Instead, they can ask if the candidate can perform specific job tasks and whether they would need reasonable accommodations to do so. By sticking to job-related inquiries, employers can avoid discriminatory practices and provide equal opportunities for all candidates.

How To Spot Disability Discrimination During a Job Interview

Recognizing disability discrimination is challenging as it doesn’t always come in overt forms. Examples include:

  • Pre-employment inquiries – An employer insists on knowing whether you require any medical procedures or have ongoing medical treatments that could affect your work, even though these are unrelated to job performance.
  • Assumption-based decisions – An interviewer assumes that because you have a visual impairment, you cannot handle responsibilities that involve reading or detail-oriented tasks, despite the availability of assistive technologies.
  • Inaccessibility – You’re unable to access the interview location due to mobility challenges, and the employer makes no effort to accommodate this, such as by providing an accessible interview venue or offering a virtual option.
  • Rejecting reasonable accommodations – During an interview, you mentioned that a minor adjustment to the workspace would enable you to work effectively. However, the employer rejected this outright without considering the feasibility of the accommodation.
  • Inappropriate job offers – An employer offers you a position that is more junior than the one you applied for or one that is unrelated to your skills and experience, implying that your disability makes you less capable.
  • Dismissal after disclosure – After voluntarily disclosing your disability, the tone of the interview changes, and you are quickly dismissed without further discussion of your qualifications.

If you sense discrimination during an interview, stay calm. You can politely decline to answer inappropriate questions or ask how the question relates to the job’s requirements. Afterward, document your experience. If you decide to pursue legal action, this record will be invaluable.

The Takeaway

Knowing what employers can and cannot ask allows you to navigate interviews with confidence, ensuring that your professional abilities are the focus. You are entitled to a fair evaluation based on your skills and experience. If you suspect discrimination due to your disability, you may have a valid legal claim. The best way to protect your rights is to consult an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.