General Guidelines for Lawful Interviewing

Disability

INQUIRIES YOU CANNOT MAKE

These are examples of questions that cannot be asked in interviews or during reference checks.

__ DO NOT ask questions about whether the individual has a current disability or a past disability.

__ DO NOT ask whether the individual has any serious illness (such as AIDS), back problems, a history of mental illness or any other physical or mental condition.

__ If the individual has a disability that is obvious to the interviewer (such as an applicant that is missing a limb or uses a wheelchair),

__ DO NOT inquire how the individual became disabled or the prognosis for the applicant.

__ DO NOT ask questions about the nature or severity of the applicant's disability.

__ DO NOT comment in any way on the individual's physical condition except as described below.

__ DO NOT ask whether the individual wears a hearing aid or needs to wear glasses while on the job.

__ DO NOT ask questions about the applicant's past on-the-job injuries.

__ DO NOT ask about the applicant's medical problems by requesting the applicant to identify if he or she has or has ever suffered from a list of ailments, such as:

_ Diabetes            _ Ulcers                     _ Arthritis
_ Heart Conditions _ Hearing Problems    _ Migraines
_ Back Problems   _ Hepatitis                 _ Visual Problems

__ DO NOT ask whether the applicant has ever been treated for any mental condition.

__ DO NOT ask applicants to list any conditions or diseases for which they have been treated in the past.

__ DO NOT ask whether the individual has ever been hospitalized and, if so, for what condition.

__ DO NOT ask whether the individual has ever been treated by a psychiatrist or psychologist and, if so, for what condition.

__ DO NOT ask whether applicants have had a major illness in prior years, or whether they have any current illnesses.

__ DO NOT ask whether the applicant has ever been treated for drug addiction or alcoholism.

__ DO NOT ask how many days the applicant was absent from work last year because of illness.

__ DO NOT ask whether applicants are taking or have been taking any prescribed drugs.

__ DO NOT ask whether the applicant has a sexually transmitted disease, such as the HIV virus.

__ DO NOT ask whether an applicant has ever requested and/or received assistance or assistive devices in performing past jobs.

__ DO NOT inquire about an applicant's past or current need for or receipt of medical or disability benefits.

__ DO NOT ask about an applicant's past drug use or alcohol use.

__ DO NOT ask any questions regarding whether an applicant is or ever has been a drug addict or an alcoholic.

__ DO NOT ask whether the individual has ever filed a workers' compensation claim.

__ DO NOT ask whether the individual has ever received an award of workers' compensation benefits.

__ DO NOT ask whether an individual has ever been found to be disabled.

__ DO NOT ask whether the individual has a spouse, children or other friends with disabilities.

__ DO NOT ask about problems the individual has had because of a disability.

__ DO NOT ask questions of applicants with disabilities that you do not ask of other applicants, except as described below.

__ DO NOT ask whether the individual has any disabilities or impairments that may affect performance in the position.

__ DO NOT ask whether the individual has any disabilities or impairments that may affect performance in the position.

__ DO NOT ask whether the applicant has any physical defects that preclude the applicant from performing certain kinds of work, or ask the applicant to describe such defects or specific work limitations.

INQUIRIES YOU ARE PERMITTED TO MAKE

These are questions you may ask in interviews or during reference checks if they are asked of all persons applying for a particular category of job, regardless of disability.

__ YOU MAY ask whether the individual needs any reasonable accommodations or assistance during the hiring or interviewing process.

__ YOU MAY ask about the individual's ability to perform essential job functions.

__ YOU MAY give a copy of the job description to the individual that identifies all essential functions and ask whether the individual is able to perform all of those essential functions with or without a reasonable accommodation.

__ YOU MAY give a copy of the job description to the individual that identifies all essential functions and ask whether the individual is able to perform all of those essential functions with or without a reasonable accommodation.

__ YOU MAY describe the job and ask whether the individual can perform those functions.

__ YOU MAY ask about current use of illegal drugs or current alcohol use.

__ YOU MAY state the school's standards and expectations and ask if the individual can meet those standards. For example:

__ YOU MAY state the school's drug policy;

__ YOU MAY state the school's standards for on-the-job alcohol consumption;

__ YOU MAY state the school's smoking policies;

__ YOU MAY state the school's standards for attendance, including the availability or lack of availability of leave for newly-hired employees; and

__ YOU MAY state the performance standards and expectations for a particular position.

__ YOU MAY ask questions about any of the qualifications that the college or university requires for the position, including:

* Education;
* Experience;
* Licenses;
* Training;
* Basic reading and writing skills;
* Mathematical skills; and

__ YOU MAY ask about the individual's attendance at prior jobs, if the question is limited to days off or number of days late for any reason, and is not limited to days missed due to illness.

__ YOU MAY ask whether the individual has ever been involved in an accident on-the-job that injured co-workers or customers.

__ YOU MAY ask about an individual's accident record, especially accidents involving injury to property (such as traffic accident history for persons who will do driving) if you avoid questions about the individual's own injuries.

__ YOU MAY ask an individual how he or she could perform tasks, and with what accommodations, if the applicant indicates that he or she can perform the tasks with an accommodation.

Questions You May Ask If the individual has an obvious disability or another disability known to you that you believe may interfere with or prevent the individual from being able to perform the essential functions of the job:

__ YOU MAY ask the individual to explain or demonstrate how he or she can perform the essential functions of the job, with or without a reasonable accommodation.

__ If an applicant has a known or obvious disability that would not interfere with or prevent performance of the job, you CANNOT ask or require the applicant to demonstrate performance of a job junction, unless all applicants for those positions are required to do so.

INQUIRIES YOU MUST MAKE

If the individual indicates that he or she has a disability and may require a reasonable accommodation:

__ YOU MUST inquire about the types of accommodations the individual believes may be necessary.

__ YOU MUST make inquiries with the individual and, if necessary, with others, as to the nature and costs of the accommodations that may be necessary.

If the individual has an obvious disability or a disability known to you that you believe will interfere with the applicant's ability to complete the pre-employment procedures, including pre-employment testing,

__ YOU MUST raise that concern with the individual and inquire whether the individual will require any reasonable accommodation during the hiring process.

RESTRICTIONS ON HIRING DECISIONS

__ DO NOT refuse to hire an individual because the individual has asked for an accommodation.

__ DO NOT refuse to hire or consider an individual for a position merely because that person has a disability or is associated with a person with a disability.

__ DO NOT refuse to consider or hire a person merely because that person has filed a past workers' compensation claim or has back problems.

__ DO NOT refuse to hire a person because you think it might increase insurance or workers' compensation costs or because you think that they may pose a threat to the health and safety of themselves or others. This decision cannot be made based on speculation; it requires the input of the human resources department to ensure that the decision is defensible.

__ YOU MUST make or ensure that an individualized analysis is made before an applicant with a disability is rejected because of an inability to perform essential job functions or as a direct threat to the health and safety of the applicant or others. These decisions cannot be made based upon generalizations, stereotypes or assumptions.

__ If the position for which the individual is applying is one where the institution requires a medical examination, YOU MUST inform all applicants for those positions that any offer of employment is conditioned upon the satisfactory results of a medical examination.

__ YOU MUST contact the Office of Human Resources and/or the Office of Equal Opportunity Programs for advice and guidance on every individual with a disability who:

__ Requests a reasonable accommodation;

__ You are considering rejecting because of a physical or mental condition or;

__ You are considering rejecting because of an inability to perform the essential functions of the job.

EXAMPLES

__ YOU CANNOT ask whether an individual requires time off for medical treatment or a disability.

__ YOU CAN state the employer's neutral attendance policy and ask whether the individual can comply with the attendance requirements for the position.

__ YOU CANNOT ask about past on-the-job injuries.

__ YOU CAN ask persons with obvious disabilities to explain how they can perform the functions of the job safely without injuring themselves or others.

__ YOU CANNOT ask whether an applicant has a visual impairment.

__ YOU CAN state the essential functions of the job of bookstore cashier, for example, include the ability to observe customers for signs of shoplifting, check identification and other tasks, and ask whether the applicant can perform those tasks with a reasonable accommodation.

SAMPLE QUESTIONS
The following are samples of questions that may be asked about performance of job functions without referring to a disability.

University Division/Department- Clerical Position

__ Here is a job description for this position. Are you capable of performing each of the job duties on that description?

__ Our regular work hours are 8:30 a.m. to 5:00 p.m., but there may be requirements to work overtime during evenings and weekends, sometimes without much advance notice. Are you able to meet these requirements?

__ New employees get one week of vacation, seven days sick leave and may take no more than five unpaid leave per year. Can you meet these requirements?

__ One managers you may be working for does a lot of dictation using a dictaphone. Are you able to understand and transcribe dictation?

__Our minimum standard for all clerical personnel who will be doing word processing/typing is 65 words per minute with no more than five errors. Can you operate a word processor/typewriter at that rate of speed?

__ This position requires receiving phone calls from outside individuals, students or other employees that call into this office. There may be times when you are the only person available to take incoming phone calls and take messages. Are you able to perform this function? Will you be able to respond to inquiries made by individuals who call into the office?

__ The position frequently involves receiving incoming correspondence, review of that correspondence to determine its importance and/or destination. Are you able to perform this function?

If the applicant has an obvious disability that may affect performance, such as a vision impairment, you could ask the applicant to explain or demonstrate how the applicant could perform various tasks that customarily are done through reading, such as review of incoming correspondence, or making changes on documents that have been hand-written rather than dictated.

Shipping and Receiving Clerk/Warehouse Worker

The following is a job description listing the job duties for this position. Are you capable of performing each of these job duties?

__ Our warehouse workers are required to load and unload and deliver supplies for eight hours per day with one half hour off for lunch and two fifteen minute breaks. Are you capable of doing that?

__ Warehouse workers are required to be able to lift and maneuver goods using fork lifts, hand trucks and stack bed trucks. The goods in the warehouse may weigh over 50 pounds per item. Are you capable of performing this function?

__ Attendance is very important because of the way we staff warehouse workers. Warehouse workers are given up to 10 days sick leave and no unpaid leave during the first year, and 12 days paid vacation days. Can you meet these requirements?

__ During the past two years at your last job, how many days did you miss work that was not covered by your employer's policies?

__ Did your prior employer ever criticize your attendance?

__ At our warehouses, warehouse workers may be required to perform some of the duties of a laborer during slow periods. Here is a job description listing the normal duties of a laborer. Are you able to perform those duties for a full eight-hour shift on an occasional basis?

If the applicant has an obvious disability that may affect performance, such as impaired vision, you could ask, for example, how the applicant could perform such job functions as verifying requisitions or observing gas cylinders for safety instructions with a reasonable accommodation.

If the applicant had an obvious physical impairment such as a missing arm, you could ask the applicant to explain or demonstrate how he or she could perform the various duties of warehouse worker, including operation of a fork lift, hand truck, and other equipment, with or without a reasonable accommodation.