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194 | Recruitment and Selection Law for Local Government Employers
5.2.1 What Happens When an Employer Violates the ADA or GINA’s Rules on Medical Questions and Examinations?
Applicants and employees who believe that they have been discriminated against on the basis of either a disability or their genetic information or who believe that an employer has unlawfully obtained medical information or genetic information about them may file charges with the EEOC. They may ultimately bring a lawsuit in federal court, just as applicants and employees may do if claiming race, gender, or another prohibited form of discrimination under Title VII. Employers may be ordered to hire an applicant or to promote or reinstate an employee or to pay back pay or other money damages, including attorneys’ fees and costs.79
5.3 Bottom Line: Pre-Employment Questions and Medical Examinations under the ADA and GINA
1. Employers may not directly ask job applicants about disabilities and may not ask any other questions that are likely to disclose a disability. Employers should follow one simple rule: ask no medical or health-related question at the application and interview stages of the hiring process. 2. Employers may ask applicants about their ability to perform specific job functions, such as their ability to lift a certain amount of weight, and about their nonmedical qualifications and skills, such as work history, education, required licenses, and certifications. 3. Employers may ask applicants to describe or demonstrate how they perform specific job tasks. 4. If an applicant volunteers information about a disability, the employer may ask whether the applicant will need a reasonable accommodation to perform the job. 5. Employers may not require applicants to take a medical examination before a job offer is extended. 6. Employers may ask applicants to take nonmedical tests before a job offer is extended—for example, physical agility tests, skills tests, personality profile tests, or pre-employment drug tests (but
79. See 42 U.S.C. § 12117 (ADA) and 42 U.S.C. § 2000ff-6(a) (GINA).
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| Title | Recruitment and selection law for local government employers - Page 210 |
| Full Text | 194 | Recruitment and Selection Law for Local Government Employers 5.2.1 What Happens When an Employer Violates the ADA or GINA’s Rules on Medical Questions and Examinations? Applicants and employees who believe that they have been discriminated against on the basis of either a disability or their genetic information or who believe that an employer has unlawfully obtained medical information or genetic information about them may file charges with the EEOC. They may ultimately bring a lawsuit in federal court, just as applicants and employees may do if claiming race, gender, or another prohibited form of discrimination under Title VII. Employers may be ordered to hire an applicant or to promote or reinstate an employee or to pay back pay or other money damages, including attorneys’ fees and costs.79 5.3 Bottom Line: Pre-Employment Questions and Medical Examinations under the ADA and GINA 1. Employers may not directly ask job applicants about disabilities and may not ask any other questions that are likely to disclose a disability. Employers should follow one simple rule: ask no medical or health-related question at the application and interview stages of the hiring process. 2. Employers may ask applicants about their ability to perform specific job functions, such as their ability to lift a certain amount of weight, and about their nonmedical qualifications and skills, such as work history, education, required licenses, and certifications. 3. Employers may ask applicants to describe or demonstrate how they perform specific job tasks. 4. If an applicant volunteers information about a disability, the employer may ask whether the applicant will need a reasonable accommodation to perform the job. 5. Employers may not require applicants to take a medical examination before a job offer is extended. 6. Employers may ask applicants to take nonmedical tests before a job offer is extended—for example, physical agility tests, skills tests, personality profile tests, or pre-employment drug tests (but 79. See 42 U.S.C. § 12117 (ADA) and 42 U.S.C. § 2000ff-6(a) (GINA). |
