What do the cities of DeKalb, Fallon, Isle of Palms, and Vero Beach have in common? All four cities have recently entered into settlement agreements with the U.S. Department of Justice for disability-related questions on their employment applications. When applications and registration forms are too nosy, they illicit too much information — information that could lead to intentional or unintentional discrimination on the basis of disability.
“Do you have any physical or mental conditions, which may impair your ability to perform the duties of the position(s) for which you are applying? Yes____ No_____. If yes, please state the condition and the nature of your work limitations:_____.”
“Are you now receiving or have your ever received any benefits or payments to you or your doctor for any job related injury? If yes, when and where did this occur?”
“Are you capable of performing the job duties (as outlined in the job description) required of the position without assistance or accommodation?”
“Check if any of the following are applicable: __Disabled Veteran ___ Disabled Individual.”
“Check the box that applies: [check box] “Disabled Veteran” [check box] “Disabled Person Not Entitled to Veteran’s Preferences. ”
The Americans with Disabilities Act prohibits these types of disability-based inquiries such as in job applications and even program registration forms. When an employer asks questions that may illicit information regarding a person’s disability and then chooses not to hire the applicant, it calls into question whether the decision was because the person had a disability. The settlement agreements are of particular importance here because DOJ has decided to pursue these employment practices among municipal governments covered under Title II.
“While disability related non-discrimination protections have been applicable to local and state governments for over 40 years now (Section 504 and the ADA) we are not surprised to see the large number of findings against local and state governments for their discriminatory hiring practices, specifically, the fact that they are asking disability and medical-related questions during the pre-employment process,” says Robin Jones, Project Director for the Great Lakes ADA Center. “Much of the attention related to employment discrimination over the past 24 years has primarily been on private employers while the employment practices of local and state governments have been able to fly under the radar. They have not had the same scrutiny in terms of their practices by both the public and enforcement community. The recent focus on this area of employment is encouraging as local and state government entities are often the largest employer in some communities and offer potential opportunities for the employment of persons with disabilities.”
The DOJ settlements should serve as a reminder to state and local governments to check their employment applications, program registrations and other public forms.
For employment purposes, entities should be familiar with the Title I Employment regulations, along with the technical assistance guides issued by the Equal Employment Opportunity Commission such as:
- Pre-employment disability related questions and medical examinations (PDF) (EEOC, 1995)
- Reasonable accommodation and undue hardship under the ADA (EEOC, revised 2002)
- Veterans and the ADA (EEOC)
Programs and Services
When it comes to participation in programs and services, program registration forms should never ask “do you have a disability?” or “what’s your disability?” The Title II Technical Assistance Manual states:
A public entity may not make unnecessary inquiries into the existence of a disability. ILLUSTRATION: A municipal recreation department summer camp requires parents to fill out a questionnaire and to submit medical documentation regarding their children’s ability to participate in various camp activities. The questionnaire is acceptable, if the recreation department can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The Department, however, may not use this information to screen out children with disabilities from admittance to the camp.
In order to prepare appropriately for participation, the form might instead ask a question or make a statement for completion like:
I require assistance for a disability related need (check all that apply):
- wheelchair accessible program location
- sign language interpreter
- real-time captioning
- assistive listening system
- large print
- advance information in electronic format
- other (please explain__________________)
For questions on employment applications, contact your regional ADA Center at (800) 949-4232. Feel free to send me an e-mail if you have a question on your program registration forms.