Employers and job seekers are often unclear as to their rights and responsibilities under the Americans with Disabilities Act (ADA). Some employers look upon the ADA with a little fear –- fear of litigation, fear that accommodating someone with a disability costs too much money, or fear that accommodations will mean more work for the employer or their staff. Perhaps the biggest misconception is that the ADA is a law for “those people”. In reality, the ADA is for all of us. According to the Social Security Administration, one in four of today’s twenty-year olds will become disabled before they retire. The ADA is a landmark civil rights law that provides for equal treatment of all people with a disability.
A key feature of the ADA is the provision of “reasonable accommodation.” A request for accommodation can be made at any point in the employment process, even during pre-employment activities. Job seekers have the right to request accommodation in order to fully participate in the hiring process. For instance, employers are required to make their on-line application processes accessible or provide an alternative means for people with disabilities to apply for jobs. However, employers can only provide accommodations to for a known disability. It is the responsibility of the person seeking an accommodation to disclose his or her disability in order to receive the necessary accommodation. Keep in mind though — disclosing a disability is not without risk and should be a planned event.
Disclosure is both a personal choice and a thoughtful process. You are not required to disclose your disability unless there is a need for an accommodation. Should you choose to disclose, it is best to avoid starting the process with a statement like I have a mental illness or I have a brain injury. When you use this approach, employers may focus too much on the label/diagnosis which can sometimes lead to stereotyping and misperceptions. Instead, it is important that your disclosure focus on the barrier(s) you are encountering and a possible solution for overcoming the barrier(s). If you can, provide suggestions about the types of accommodations have worked in the past and might be effective now. The ADA does not prescribe a preferred format for requesting an accommodation. Requests can be made orally, in writing, either by hard copy or email, or a third party can make the request for you.
There are risks and benefits to disclosing a disability during a job search. A primary benefit of early disclosure is that it establishes open dialogue with a potential employer. It can also ensure that if accommodations are necessary they can easily be requested in the pre-employment phase of the job hunt. This can be beneficial if you need assistance with completing a job application or require an interpreter during the formal interview. Resumes and cover letters, however, are not recommended venues for disclosure. A written disclosure does not allow the job seeker to emphasize his or her abilities or answer questions, and may risk an employer pre-judging your ability to do the job.
Some employers may encourage voluntary disclosure for affirmative action purposes. Many employers offer hiring preferences to people with a disability or veterans. Federal contractors may ask for voluntary disclosure in order to meet Section 503 of the Federal Rehabilitation Act requiring a goal of 7% of their workforce be composed of people with disabilities. It is important to remember, above all, disclosure is a personal choice and you are not obligated to disclose your disability.
The ADA requires employers to keep any disability information confidential during the hiring and employment process. Ultimately, a job applicant should be judged by their skill and merit to do the job, not whether s/he has a disclosed disability. This circles us back to the idea that someone who is a qualified applicant cannot be discriminated against due to a disability. There are some specific things an employer can and cannot ask someone in regard to a disability. An employer has the right to question how the impact of a disability may affect the way someone performs the essential functions of a job. An employer cannot, however, ask that someone be subjected to specialized medical testing unless it is required for every applicant or employee in that particular position.
There can be a risk to disclosing a disability. As mentioned before, disclosure should be a thoughtful process. As an example, a recent study at Syracuse and Rutgers Universities sent out over 6,000 resumes for advertised accounting jobs. Within the cover letter, 2/3 of the fictitious job seekers self-identified as having either spinal cord injury or autism. All applicants had similar qualifications. In the study, less than 5% of applicants with disabilities were contacted by an employer. Moreover, more experienced applicants with disabilities were less likely to get a response than applicants with the same experience but no disability. The good news in this study is that the ADA is working. For businesses with 15 or more employees, those businesses that must comply with ADA, the employees with a disability were more likely to be offered an interview.
Both the benefits and risks of disclosure should be carefully considered. Open communication with a potential employer is important, but consider if disclosing your disability is truly necessary to the job search process. The ultimate goal of your job search should be finding a job that you’re qualified for with an employer who values your skills and capabilities. Your disability should only be a topic of conversation during the hiring process if you think it’s relevant to establishing yourself as the best candidate for the job!
About the author:
Barry Whaley is a research administrator at the University of Kentucky Human Development Institute. He is also the Employer Outreach Coordinator for the Southeast ADA Center in Atlanta, GA. Previously, he was a Consultant for Atlas Research providing technical assistance and training for staff of the Homeless Veterans Supported Employment Project at Department of Veterans Affairs Medical Centers. For many years, he was the Executive Director of Community Employment, Inc. a supported employment provider. He has also worked for the Kentucky Office of Vocational Rehabilitation. He currently serves, by gubernatorial appointment, as a Member of the Advisory Council for Medical Assistance.
The Southeast ADA Center is a leader in providing information, training, and guidance on the Americans with Disabilities Act (ADA) and disability access tailored to the needs of business, government, and individuals at local, state, and regional levels. We also conduct research to reduce and eliminate barriers to employment and economic self-sufficiency and to increase the civic and social participation of Americans with disabilities. The Southeast ADA Center is a project of the Burton Blatt Institute (BBI) of Syracuse University and one of ten regional centers in the ADA National Network funded since 1991 by the National Institute on Disability, Independent Living, & Rehabilitation Research (NIDILRR).
The Southeast ADA Center is located in Atlanta, Georgia and serve as the regional office for an extended leadership network of Local and State Affiliates from eight (8) states in the U.S. Southeast Region Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee.