Q. Are there any circumstances where an employer can justify considering a prospective employee’s disability in making hiring decisions?
A. Employers may describe to applicants the qualifications necessary to perform the essential functions of the position and then ask whether they are able to perform the essential job functions.
The employer may not ask whether a prospective employee has a disability that may affect his or her ability to perform the job. If the prospective employee has a disability that is readily apparent, or the applicant otherwise indicates that he or she has a disability that may require accommodation, the employer may ask whether the applicant needs reasonable accommodations, and if so, what types of accommodations would allow the prospective employee to perform the essential functions of the job.
Then the employer could refuse to hire the applicant only if it determined that the requested accommodation caused an undue hardship, or if employing the individual would create a direct threat of injury to the applicant or others.
- Push hiring managers to specify their applicant criteria
- Check bankruptcy cases when sued—you just might win a quick dismissal
- Make sure your employment contracts give you enough flexibility
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- Doc clears return to work? Disability unlikely