In part II of my blog series highlighting what I'm learning in my legal training with Joanna Morales, Esq., cancer rights attorney and CEO of Navigating Cancer Survivorship, I will be discussing the job interview process. Specifically, important takeaways that every advocate, caregiver, and survivor should know about a job applicant's rights under the Americans with Disabilities Act.
The ADA prohibits state and private employers with 15 or more employees from discriminating against a qualified job applicant with a disability. In the application process, before a job offer is made, an employer cannot ask an applicant to take a medical exam or ask any questions that are likely to reveal the existence of a disability. What this means is that an employer may not ask if you have a disability or about the nature or the severity of a disability (even if it is visible or obvious). They also cannot ask you questions such as, "How many days were you sick last year?" or "What prescription drugs are you currently taking?" However, employers can ask questions about your ability to do the job, as long as their questions are not designed to reveal disability-related information. These questions can include asking you whether you can perform the job and if you're able to meet the job's attendance requirements. Keep in mind that if you do choose to disclose that you have a disability, potential employers can then only ask whether you will need an accommodation to perform the essential functions of the job.
It is important to note that after a job offer is made and before the job begins, an employer may ask disability-related questions and conduct medical exam, regardless of whether or not any of this information is related to the job position, but only if all entering employees in the same job category must also do the same. Employers are also held to an extremely high standard of confidentiality with the information learned in this period, and must keep the information private with very few exceptions.
Disclosure in a job interview is a very personal decision, and there are many factors involved for each person. For a more in-depth look at the pros and cons, check out some of our past articles and blogs on the topic. If you have any further questions or believe that your employment rights may have been violated on the basis of disability, please contact the Cancer Legal Resource Center and/or the EEOC for more information.