People with disabilities have legal protections against discrimination in employment. Discrimination may take several different forms. For example, an employer might require medical exams, then use the results to screen out people with disabilities. That is employment discrimination. Some employers withhold training, promotions or job benefits from employees with disabilities. That is also employment discrimination. Other examples might be harassing an employee after finding out the employee has a disability. Sometimes an employer may discriminate against an employee they think has a disability, even if the employee does not.
The federal Americans with Disabilities Act (known as “the ADA”) prohibits these actions by employers. It applies to employers with 15 or more employees. Oregon state law applies to employers with six or more employees. These laws protect people with physical disabilities, such as people who use wheelchairs. They also protect people with mental impairments, such as depression. They also may protect people with a past record of a disability, and people who do not have a disability but whose employer thinks they do.
Laws against disability discrimination apply to both private companies and public employers. They also apply to employment agencies and labor unions. Federal laws provide similar protections to employees and applicants for federal jobs. Those laws also apply to employers that receive financial support from the federal government.
First, under Title I of the ADA, one of the following must apply to you:
Second, you must be qualified for the position you have or are applying to get. That means you must have the skill, experience, education and other requirements for the job. You also must be able to perform the essential functions of the job, either with or without reasonable accommodation.
The term “reasonable accommodation” includes:
An employer must provide reasonable accommodations to a qualified person unless doing so would be an “undue hardship.” 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 for their business. In general, larger employers are expected to make greater efforts than smaller employers.
If you are a qualified person, your employer must discuss possible accommodations with you. The discussion must be an interactive process. The employer may select any effective accommodation, even if it is not the one you prefer. If you ask for a different accommodation, or the one chosen for you is failing, your employer must continue to try to accommodate you. There is a duty to continue the interactive process. Your employer must continue the process in good faith to see if a reasonable accommodation is available. If they do not, they may be subject to penalties under federal law.
Generally, no, an employer may not ask you about a disability before offering you a job. You are not required to say that you may need some accommodations during the application process. An employer may ask if you can perform specific job functions, but may not ask questions meant to draw out information related to a disability. For example, an employer may ask if you drink alcohol, but not how much you drink, or if you have ever been treated for alcoholism.
An employer cannot make you take a medical exam before offering you a job. They can, however, require one after making a job offer. They can also ask you disability-related questions after offering you a job, so long as they ask the same of all other applicants entering similar jobs. If an employer withdraws the job offer after learning of your disability, they must show that:
The employer must also show either that there was no reasonable accommodation available that would allow you to perform the essential functions of the job, or that the accommodation needed would be an undue hardship for them.
There is an exception to the general rule against asking about a disability before offering you a job. Some employers invite applicants to identify themselves as having a disability for the purposes of an affirmative action program. These programs are meant to benefit people with disabilities. The employer must make clear the information you provide will be used only for that purpose, and will be kept confidential. They must also explain that choosing not to disclose your disability status will not affect you in a negative way. Any information you provide in response must 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, December 2020