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Job applications, interviews, and the ADA.

What questions you may ask and how you may ask them.

Increasingly associations have questions about the kind of preemployment inquiries they can make concerning disabilities of prospective employees or about the nature or severity of a disability.

Under the Americans With Disabilities Act (ADA), covered employers (those with 25 or more employees as of July 26, 1992, and 15 or more employees as of July 26, 1994) are prohibited from discriminating on the basis of a disability. According to the Equal Employment Opportunity Commission's Technical Assistance Manual (for a single free copy, call (800) 669-3362), current applications being used by employers should be screened in order to remove any questions that might run afoul of the requirements of the ADA.

The manual also gives the following examples of questions that are prohibited both on job applications and during interviews:

* Have you ever had or been treated for any of the following conditions or diseases (followed by a checklist of various conditions and diseases)?

* Are there any conditions or diseases for which you have been treated in the past three years?

* Have you ever been hospitalized? If so, for what condition?

* Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?

* Have you ever been treated for any mental condition?

* Is there any health-related reason why you may not be able to perform the job for which you are applying?

* Have you had a major illness in the last five years?

* How many days were you absent from work because of illness last year?

* Do you have any physical defects that prevent you from performing certain kinds of work? If yes, describe these defects and specific work limitations.

* Are you taking any prescribed drugs?

* Have you ever been treated for drug addiction or alcoholism?

* Have you ever filed for workers' compensation insurance?

Inquiry alternatives

These questions and those like them are prohibited because they have the potential for revealing the existence of a disability. An alternative to a question such as "How many days were you absent from work last year?" might be to communicate to the prospective employee that employment at your association requires x days of attendance per year. Then ask whether or not the applicant can meet this particular employment requirement.

You should also avoid direct inquiries, such as this one: "What disabilities do you have that would keep you from performing this job?" This does not mean you cannot ask an applicant whether or not he or she has the ability to perform a specific job, however.

Even questions about drug addiction or alcoholism or treatment for those conditions cannot be asked of the applicant, because a person who has been successfully rehabilitated from one of these addictions or who is undergoing treatment is considered a protected person under the ADA. Additionally, job descriptions should not be worded in such a way that they would ward off applicants with disabilities.

Compliance language for contracts

Suppose an association wants to conduct a seminar at a hotel. Can both the association and the hotel be responsible for ADA compliance? This sample contractual provision would require the hotel to take all necessary steps to comply:

"|Hotel~ hereby warrants to |sponsoring organization~ that |hotel~ to the best of its knowledge has complied with all applicable regulations and guidelines of the ADA promulgated pursuant thereto. |Hotel~ agrees to provide auxiliary aids and services as provided for under the provisions of the ADA whenever such services are required for a conference held at |hotel~.

"|Hotel~ has made every effort to make |hotel~ premises accessible by removal of barriers wherever reasonable, and |hotel~ has provided alternative services wherever barriers cannot be reasonably removed. |Hotel~ is committed to providing all of its guests with the best possible guest experience and has provided its employees with training and guidance in order to enhance its employees' understanding of the services required to comply with the provisions of the ADA.

"|Hotel~ agrees to indemnify |sponsoring organization~ in regard to allegations that |hotel~ facilities or services provided by |hotel~ failed to comply with the applicable provisions of the ADA or with any representations made by |hotel~ management in regard to such compliance."

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1993 American Society of Association Executives
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Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Title Annotation:Americans with Disabilities Act
Author:Webster, George D.
Publication:Association Management
Date:Mar 1, 1993
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