Can They Ask That? Disability Inquiries During Pennsylvania Job Interviews

A question that can catch any job seeker flat-footed: "Do you have a disability or any condition that would prevent you from performing the duties of the job?”  What do you say? Refusing to answer is at best a bad look and at worst an admission that you have a disability. 

What can you do in this situation? Can the interviewer even ask this question?

What is a Disability Under the Law?

The Americans with Disabilities Act (ADA) definition of disabilities:

• A physical or mental impairment that substantially limits major life activities or bodily functions.

  
  

• A record of impairment, even if it isn’t classified as a medical disability.

  
  

• Someone who doesn’t have a medical disability, but is regarded as having a disability.

  
  

• The ADA makes it unlawful to discriminate against someone based on his or her association with a person with a disability. For example, the ADA also outlaws discrimination against those with a disability in government services, public accommodations, private employers, labor organizations, and labor-management committees.

The Americans with Disabilities Act does not provide a definitive list of medical conditions that are automatically considered ADA disabilities. However, you can find a list oft he most common physical and mental impairments typically covered and NOT covered under the ADA here.   

The Law is On Your Side (Mostly)

Federal and Pennsylvania laws are in place to protect you from discrimination based on disability. The big players are:

• The Americans with Disabilities Act (ADA): This landmark federal law prohibits discrimination against qualified individuals with disabilities in employment.

  
  

• The Pennsylvania Human Relations Act (PHRA): Similar to the ADA, the PHRA protects individuals in Pennsylvania from discrimination based on disability, among other protected characteristics.

  
  

These laws generally prohibit employers from making inquiries about your disability before a job offer is made. This means employers may not require you to do a medical exam, and they may not ask an applicant if they have a disability. If you have a disability that is obvious, then the employer may not ask about the nature or severity of your disability.  They want the focus to be on your qualifications and ability to perform the job, not on your medical history or perceived limitations.

What Can They Ask? Questions Focusing on the Job, Not You

Instead of directly asking about a disability, employers can ask about your ability to perform specific job functions. Here are some examples:

• Acceptable: "Are you able to lift 50 pounds?" or "Can you stand for extended periods of time?" (If these are essential functions of the job)

  
  

• Unacceptable: "Do you have any back problems that would prevent you from lifting 50 pounds?" (This veers into disability inquiry)

  
  

See the difference? They are asking about your capabilities related to the job, not about your disability itself. If you have an obvious disability or you told them about a disability, the employer can also ask if you require any reasonable accommodations to perform the job.

When Can They Ask About a Disability? The Post-Offer Stage

After a conditional job offer has been made, things change a bit. An employer can then ask disability-related questions and even require a medical examination, as long as these inquiries are job-related and consistent with business necessity. This means:

• They must ask the same questions of all employees in the same job category.

• The medical information must be kept confidential and separate from your general personnel file.

• They can't withdraw the offer based on your disability unless it can be proven that you can't perform the essential functions of the job, even with reasonable accommodation.

However, your employer may not ask you about your family medical history (whether your relatives have medical conditions) or other questions related to genetic information during this medical exam.

Reasonable Accommodation: Your Right to a Fair Shot

This is where the "reasonable accommodation" piece comes in. If you have a disability that affects your ability to perform a job function, you have the right to request a reasonable accommodation. This could be anything from a modified workstation to a flexible schedule. The employer is required to engage in an interactive process with you to determine if a reasonable accommodation can be made without causing undue hardship to the business.

What to Do if You're Asked an Illegal Question

If an interviewer asks you a direct question about your disability before a job offer, you have a few options:

1. Refocus on Your Qualifications: You can steer the conversation back to your abilities and how they relate to the job requirements. For example, if asked if you have a medical condition, you could say, "I am fully capable of performing all the essential functions of the job and am confident in my ability to meet the demands of this role."

2. Answer a Question with a Question:  You can ask how your answers will impact their decision on whether to offer you the position.  You can also ask about the company’s policy on protecting your private health information; with whom will your answers be shared.

3. Politely Decline to Answer: You can simply say that you're not comfortable answering that question as it relates to your health information.

4. Consider if you want to disclose: Ultimately, whether you disclose your disability on a job application is a personal choice. Legally, you’re not obligated to disclose a disability. Some disabilities may be non-apparent or minimally impact job duties. In such instances, disclosure could arguably introduce unintended bias, running counter to your goal of being objectively evaluated as a candidate for a job.

Important Considerations:

• Honesty is Important: If you're asked about your ability to perform a specific job function, be honest. Misrepresenting your abilities can lead to problems down the road.

• Document Everything: Keep records of any questions you're asked and any responses you provide. Make notes about the interview as soon as possible after its completed while your memory is fresh.  This could be helpful if you believe you've been discriminated against.

• Seek Legal Advice: If you believe you've been subjected to illegal disability-related inquiries or discrimination, consult with one of the Fiffik Law Group employment attorneys.

The Bottom Line

Navigating the job search process with a disability can be challenging. Knowing your rights is the first step. Employers in Pennsylvania, and across the country, are legally obligated to focus on your qualifications and abilities, not on perceived limitations related to your disability. Don't be afraid to stand up for your rights and seek legal counsel from Fiffik Law Group if you believe you've been treated unfairly.