You have certain protections under both state and federal law if you have a disability. In Virginia, there are certain counties that also have civil rights protections at the local level as well. These protections extend to various employment actions including hiring, promotion, termination, and harassment.
If you are a job seeker with a disability, you should know how the law protects you during the initial hiring process. An employment law attorney can also walk you through your legal rights or provide analysis for your specific situation as well.
Federal Law: The Americans with Disabilities Act (“ADA”)
The ADA protects employees from discrimination based on their disability or perceived disability. It applies to most employees in the United States, but the employer must have at least 15 employees in order to comply with ADA requirements.
Who is Considered “Disabled” Under the ADA?
To be protected under the ADA, you must meet the legal definition of having a disability. Generally speaking, this means that you have a mental or physical condition that impairs or limits a substantial life activity.
This definition is deliberately broad to cover more employees. A substantial life activity could include any or a combination of the following:
- Lifting objects
It could also include an impairment to bodily functions, such as a bladder, respiratory, or heart condition.
The condition or limitation should not be a temporary one. Instead, you are expected to have this condition or impairment for the rest of your life.
Only “Qualified” Applicants are Protected Under the ADA
You must be qualified for the position that you have applied for to have protection under the ADA. This can be a difficult requirement because those who are considered qualified by one person may not seem qualified to the next person. The ADA defines a qualified worker as someone who is capable of performing the essential duties of the job.
Qualification is based on several factors. You may need to look to:
Education and experience requirements. Although you are protected from discrimination if you are disabled, that does not mean that the employer has to lower their hiring standards. If you do not meet the basic qualifications of the job, then the ADA cannot offer you protection.
The essential job duties. If possible, look at the job description of the position that you are considering. You should be able to perform the essential functions of the position with or without reasonable accommodations. For example, if you can fulfill the requirement of typing with dictation software, then you can perform the essential function of the job with an accommodation. Look for only the essential portions of the job. If lifting, for instance, is not an essential function of your assembly line job, but you may have to do it occasionally, then do not focus on that part of the job. Chances are that the employer can find someone else to that portion of the job for you or make other adjustments to the job requirements to meet your needs.
You can request a reasonable accommodation and still be considered qualified for a specific job. An accommodation is an alteration or adjustment to the job so that a certain employee can perform the basic functions of the position.
A reasonable accommodation could be something as simple as having more breaks to rest if you have a foot condition, for example. Accommodations that are not reasonable are often unreasonable because they would cost too much to implement or would be extremely difficult.
Virginia Disability Discrimination Laws
Virginia, through the Virginia Human Rights Act, also makes it illegal to discriminate against anyone for disabilities related to employment. State laws are similar to the federal law.
There are also Northern Virginia discrimination laws that can benefit employees who feel that they have been discriminated against in the hiring process. An experienced employment law attorney can help you with discrimination laws in your local area.
The City of Alexandria
The City of Alexandria passed their own Human Rights Code in 1975. This law covers additional areas of discrimination beyond employment, including credit applications and health and social services. It protects those with physical handicaps, as well as a variety of other conditions.
Prince William County
Prince William County enacted a Human Rights Ordinance in 1993 specific to their county. The goal of the ordinance is to protect every citizen so that everyone has equal opportunities and can take advantage of community life. If you feel that you have been discriminated against in Prince William County, you can file a complaint directly with the County Human Rights Commission.
The Human Rights Ordinance in Arlington County specifically targets employment discrimination. Their Human Rights Commission investigates and attempts to formally settle accusations of discrimination between employees (or potential employees) and employers. These services are even offered free of charge in Arlington County.
Fairfax County passed one of the earliest Human Rights Ordinances in Northern Virginia. If you feel that you have been discriminated against in Fairfax County, you can submit a complaint with the Fairfax Office of Human Rights and Equity Programs within 365 days of the incident. This local program works in a similar manner to the federal and state investigation and settlement processes. If you assert similar claims under state and federal law, the Commission will also file your claim at those levels as well.
Special Considerations in the Hiring Process for Those with Disabilities
Those with disabilities may be concerned about disclosing their disability on an employment application for fear that they will not get the job. Thankfully, state, federal, and sometimes local programs help prevent these types of situations. Knowing the following information about the application and interview process may be helpful.
Employers cannot specifically ask you whether you have a disability on an employment application. They can ask if you can perform certain tasks that are essential to the job, however. If they choose to ask you these questions, they must also include the phrase, “with or without reasonable accommodations.” That allows you to answer the question assuming that the employer will provide accommodations.
You are under no obligation to let the employer know whether you will need accommodations at this stage in the hiring process, and the employer is not permitted to ask. Keep in mind also that you do not have to answer any question on an employment application that you are uncomfortable answering. On the other hand, the employer is fully within their rights to decline to hire you if you do not fill out the application completely (assuming the application is asking legally permissible questions.)
The Interview Process
You are under no obligation to tell your employer during the interview process that you have a disability, but you can do so if you like. Your potential employer is also not permitted to directly ask you if you have a disability in person either. Like the application, however, they can ask if you would be able to perform the essential functions of the job (with or without a reasonable accommodation).
Your potential employer is also permitted to ask you to explain how you would do a particular job or ask you to demonstrate how you would do it. However, the employer can only do this if the same questions or tasks are required of everyone. He or she cannot single you out just because you may have a disability.
Generally, employers are not permitted to bring up your disability or accommodations that you might need. That means that if you want to discuss accommodations, you will have to start the conversation yourself. In some situations, this conversation is important if the employer seems skeptical about whether you can perform the essential functions of the job.
If the interviewer asks you inappropriate questions, steer the conversation back to what you can do for the company and how you can do it. It is important to make it clear that you can fulfill the essential duties of the job.
Pre-Employment Testing and Medical Examinations
Some employers require that you take a physical exam as part of the hiring process. You are not required to take a medical exam until after the potential employer offers you a position. The offer is then conditional on passing the medical examination. The employer cannot make you have this physical if the medical exam is not a regular part of the hiring process. That is, if the employer requires you to do it, they should require everyone to do it.
In other situations, you may have to take a job-related test. Again, the test must be required of everyone, and it should be job-related. If you need them, however, you can ask for reasonable accommodations to take the test. This could include having a reader, having extra time on the test, or taking the test in a different format. Even if you did not disclose your disability in the interview, you should still request accommodations if you need them for the testing stage.
If You Didn’t Get Hired…
Sometimes you can tell why a company does not hire you. It could be your experience or salary demands. It may also be a simple personality clash. However, if you suspect that the decision not to hire you was affected by your disability, you may have a civil rights claim. An employment law attorney can answer your questions in that situation. If you believe you are experiencing employment discrimination, contact The Brown Firm PLLC to discuss your rights and options.