New York City Bar
Association Issues Best Practices Guidelines
for Interviewing and Hiring Job Candidates
with Disabilities
( June 15, 2007) The New York City Bar Association
issued a report today titled “Best Practices
Guidelines for Employers Interviewing Job Candidates
with Disabilities,” a step-by-step walkthrough
for navigating the myriad legal and ethical issues
involved in hiring and interviewing applicants
with disabilities. As the relevant law on the
subject includes not only the Americans with
Disabilities Act, but also the New York State
and NYC Human Rights Laws, this can be a difficult
process for small employers.
Key issues explored in the report include:
- Identifying the Essential Tasks of the Job
As the ADA makes clear that a disabled applicant
is not qualified if he or she cannot perform
the essential functions of the job with reasonable
accommodation, determining essential functions
of a job is vital for employers before they begin
interviewing applicants. The ADA does not include
the marginal functions of a position, so clearly
distinguishing the two is important in determining
if a disability is relevant to an open position.
For example, the essential function for a bus
driver is driving the bus, but occasionally cleaning
the bus is not and therefore a marginal function.
The report extensively explains distinguishing
essential functions.
Employers are required by law to provide reasonable
accommodations for an interview so that the interview
process offers an equal opportunity to disabled
candidates. This includes choosing the location
for an interview, providing sign language interpreters,
and increasing the time to take aptitude tests.
Phone interviews may not suffice as a replacement
for in-person interviews, as this disadvantages
an applicant. Reasonable accommodation does not
necessarily include anything involving undue
financial hardship
- Conducting the Pre-Offer Interview
During an interview, there are some questions
that employers are prevented from asking under
the ADA. Legitimate questions include the applicant’s
education, work history, and ability to perform
essential and non-essential duties of the position
in question, as with any other applicant, but
employers may not ask about the applicant’s
specific health and disabilities. Examples clarifying
these rules are provided in the report.
- Making the Post-Conditional Offer
The ADA regulates the sequence of an employer’s
hiring process by prohibiting medical examinations
until after a conditional job offer – and
requires that this offer be made in good faith,
and not as a pretense to obtain medical information
from applicants. The report details the specifics
of this process.
Employers are required to keep all medical information
private, regardless of if it was volunteered
or came as a result of a medical evaluation.
The report details the very specific situations
where this information can be shared, and how
it can be protected even if it affects a work
situation
