Tempted to ask applicants about their past medical history, disabilities or other private information related to potential disabilities?
Don’t do so before you make a job offer.
Requesting that kind of information too soon may violate the ADA and the New York State Human Rights Law (NYSHRL). If you’re in New York City, it could violate the New York City Human Rights Law (NYCHRL).
Plus, applicants who sue may be entitled to punitive damages.
Recent case: Barbara Katz applied for a job as an executive assistant through a placement agency. When she got through a second interview, she had to fill out an application, which the prospective employer provided. It asked about her medical history.
Katz told the agency she believed the question was illegal and revealed that she had been treated for breast cancer in the past. The agency rep told her she had to fill out the form. Katz declined to answer the questions, and instead wrote on the form that there was nothing in her medical history that would interfere with her ability to do the job.
When she didn’t get the job, Katz sued.
The court said her case could go to trial, adding that her suit could ask for punitive damages under the NYCHRL because the company couldn’t show it implemented anti-discrimination policies during the time the form was created and used. (Katz v. Adecco, et al., No. 11-CIV-2540, SD NY, 2012)