An important legal right for people with disabilities is the right to live free from discrimination in employment. Discrimination may take several different forms. Some employers use pre-employment medical examinations to identify and then screen out people with disabilities in the hiring process and deny them employment. Some employers withhold training, promotions or fringe benefits from employees with disabilities. And some employers harass or demote or even fire an employee after learning of an employee’s a disability – or after forming a belief that an employee may have a disability.
All of these actions are prohibited by the federal Americans with Disabilities Act (referred to as “the ADA”), covering employers with 15 or more employees, and by Oregon law covering employers with six or more employees. People with mental impairments, such as depression, are protected just as people in wheelchairs are protected. These laws also protect people with a past record of a disability and those people who do not have a disability but are treated as if they did because of a mistaken belief on the employer’s part.
Laws that protect against disability discrimination apply to private employers, state and local governments, employment agencies and labor unions. Different federal laws provide similar protections to employees and applicants for federal jobs, as well as to employees and applicants of employers that receive financial assistance from the federal government.
To be protected under Title I of the ADA, you must have a physical or mental impairment that substantially limits one or more major life activities. For example, walking, seeing, speaking, hearing, breathing, learning, performing manual tasks, caring for yourself, or working are major life activities that may be limited. You also could be protected if you have a record of such an impairment in your medical files. Another way you could be protected is if the employer thinks you have a physical or mental impairment. For example, if you have visible scars that do not impair you, you could be protected if you are regarded as being substantially limited. The final way you could be protected is if you are discriminated against because of your relationship or association with a person who has a disability. For instance, you cannot be denied health insurance by your employer because you have a child with a disability and the employer is concerned that its health insurance rates will go up. In addition to having a disability, you must be “qualified” for the position, either with or without reasonable accommodation, and be able to perform the essential functions of the job. In other words, you must meet the required skill, experience, education and other job-related requirements of the job that you want or currently have.
The term “reasonable accommodation” includes:
An employer is required to provide reasonable accommodations to a qualified person with a disability unless the accommodation would be an “undue hardship” on the operation of the business. An undue hardship means that the accommodation would be too difficult or expensive. Employers look at several things to determine if an accommodation is an undue hardship to their business. In general, a larger employer will be expected to make accommodations requiring greater effort or expense than would a smaller employer.
The employer must discuss possible accommodations with the qualified person as part of an interactive process; note, though, that the employer may select any effective accommodation, even if it is not the one preferred by the employee. If the employee requests a different accommodation, or the employer becomes aware that the chosen accommodation is failing, the employer must continue to try to accommodate the employee; there is a duty to continue the interactive process. If a reasonable accommodation would have been available, but the employer does not continue the process in good faith, the employer may be subject to a variety of different (potentially costly) penalties allowed under federal law.
Generally, no, an employer may not ask you about a disability before offering you a job. During the application process, you are not required to inform a prospective employer that you may need some accommodations in order to perform the job. An employer may ask if you can perform specific job functions, but an employer may not ask questions intended to draw out information related to a disability. For example, while an employer may ask you if you drink alcohol, an employer may not ask you how much alcohol you drink, or if you have ever been treated for alcoholism.
An employer cannot make you take a medical exam before you are offered a job, but after giving you a job offer, the employer may require you to undergo a medical examination or ask you disability-related questions — so long as the employer asks the same of all other applicants entering similar jobs. Then if the employer withdraws the job offer after learning of your disability, he or she must show that the reason for withdrawing the offer was job-related and consistent with business necessity or that you were excluded to avoid a direct threat to safety to yourself or others. The employer also has to show that no reasonable accommodation was available to allow you to perform the essential functions of the job or, in the alternative, that providing you the necessary accommodation would cause the employer undue hardship.
While the general rule is that an employer may not ask you about a disability before offering you a job, here is an exception: Some employers are required to invite applicants to voluntarily identify themselves as disabled, but only for the purposes of their affirmative action program measures. Some employers participate in programs that encourage affirmative action to benefit people with disabilities. These employers are required to clearly inform you that the information collected will be used only in connection with their affirmative action efforts, that the information will be kept confidential, and that if you choose not to disclose your disability status, that decision will not affect you in a negative way. The information you provide is required to be kept out of the application process.
Various agencies enforce these laws in Oregon. For more information on enforcing the rights of people with disabilities, visit the “Other Resources” section of the Oregon State Bar disabilities law information page.
Legal editors: Caitlin Dolan and Megan Dolan, October 2019