Wisconsin Lawyer: As I See It: Job Interviews and the ADA: Addressing the Elephant in the Wheelchair:

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  • Wisconsin Lawyer
    December
    01
    2013

    As I See It: Job Interviews and the ADA: Addressing the Elephant in the Wheelchair

    James (Jimmy) P. Anderson

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    Although the Americans with Disabilities Act allows prospective employers to ask certain questions about an interviewee’s disability, other, vital questions about the interviewee’s ability to perform job-related activities might end up unaddressed and unanswered. Jimmy Anderson, confined to a wheelchair since a vehicle accident in 2010, says interviewees should initiate the discussion of how they will perform job-related activities if employers do not.

    ElephantFew things invoke such mixed feelings of hope and dread as a job interview. Most people just want to appear well put together, likable, and employable. Others, like me, worry that an interviewer will think a physical disability will impede the applicant’s job performance if he or she is hired.

    In 2010, after my second year in law school, a drunk driver ran into the car in which I was riding. I was left paralyzed from the neck down. I learned to write, type, and perform other tasks with the fingers of one hand, with the assistance of a Tinodesis splint. I returned to law school one year after the crash and graduated one year ago.

    Jimmie AndersonJames (Jimmy) P. Anderson, U.W. 2012, is hoping for more interviews. He has experience in civil litigation focusing on medical malpractice, employment law, and Eighth Amendment issues. He recently finished an internship with the Wisconsin Department of Justice in the Civil Litigation Unit and is now helping the Department of Health Services update procurement contracts. He is the founder and president of the Victims of Impaired Driving Project, assisting individuals harmed in drunk driving crashes.

    Although the Americans with Disabilities Act (ADA) protects individuals in a variety of ways, when it comes to looking for a job, the ADA is not a magic wand that will eliminate every problem for applicants with disabilities. One of the bigger issues that can arise is miscommunication between applicant and interviewer.

    This occurs because the ADA encourages parties to remain silent as a way to avoid violating the law. For example, the ADA may protect me from having to answer certain questions about my disability, but that doesn’t mean those unanswered questions don’t linger in the interviewer’s mind. And even if the interviewer is technically allowed to ask certain questions, I can only imagine how difficult it is to ask those questions out of fear of insulting or embarrassing me.

    This could also lead to unanswered questions about mandatory job responsibilities. I don’t blame the interviewer for feeling awkward or uncomfortable if the “elephant in the wheelchair” isn’t properly addressed. It’s just the reality of the situation.

    To help with this, here are some recommendations for making the interviewing process a more positive and constructive experience for everyone involved.

    Own Your Disability

    The ADA defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” A disability, however, does not necessarily limit a person’s ability to do job tasks. The individual might still be able to do the tasks, but in an unconventional way, or with assistance.

    Although a covered entity is allowed to make pre-employment inquiries into the ability of an applicant to perform job-related functions, an interviewer may be hesitant to ask those questions. Leaving these questions unanswered, however, will not help you get hired.

    So own your disability by identifying the position’s core aspects for which your disability may be an issue and be ready to address them at the interview.

    For example, my disability makes it impossible for me to type proficiently with my hands. However, I use voice-recognition software that allows me to “type” as well as anyone without a disability. My interviewer might not be aware of this assistive technology and might not want to embarrass me by asking how I type. The interviewer could assume that I type one key at a time or not at all or that I need someone to type for me. Avoid harmful assumptions by anticipating what the prospective employer may want to know about a job-related activity, and make sure he or she knows how you’ll perform the activity.

    Turn Negatives into Positives

    The fact that you are interviewing is an accomplishment given how difficult your path was to get to this point. Use that to your advantage. Don’t simply list possible weaknesses; describe how you will overcome those obstacles or roadblocks to accomplish the position’s required duties. Addressing these issues will serve not only as a great opportunity to alleviate any concerns or questions but also as a way to highlight your strengths and tenacity. Your ability to rise above those difficulties is something to be appreciated and is a testament to your strength in the face of adversity.

    Do Not Be Afraid to Talk About Your Disability

    I know this can be difficult. You might be sensitive about your disability or feel the need to hide it, but it is important to talk about your disability with your interviewer.

    Doing so will break the ice and allow your interviewer to feel more comfortable discussing your disability. Initiating this discussion will give you the opportunity to learn more about how your possible employer will react to your disability. You want to work for someone who understands and supports you and your disability. This can only become clear after an open and frank discussion about your disability and how it affects how you perform job-related tasks.

    Conclusion

    To sum up, identify those issues that may arise in performing the job duties, be ready to explain and highlight how you will overcome those issues, and if the interviewer does not bring them up, you should.

    A final note for the abled: the disabled lawyer community is very small so my advice only applies to a small group of people. But what I hope you gain is a glimpse into the world of people with disabilities. I hope you better understand our difficulties and our concerns.

    WebXtra

    Jimmy Anderson Won’t Let Personal Tragedy Dictate His Life,” WisBar InsideTrack, Dec. 5, 2012.


    Employers Can Have Frank Discussion with Applicants and Comply with the ADA

    Employers must carefully balance their need for accurate information in the hiring process against their need to avoid asking questions that violate the ADA and other laws.

    Marna Tess-Mattnercom mmt srtf-law Marna Tess-Mattner, Marquette 1983, is a shareholder with Schmidt, Rupke, Tess-Mattner & Fox, S.C., Brookfield. She limits her practice to representing management in employment and labor law matters.

    Although employers are permitted to ask about an applicant’s qualifications and skills (including education, work experience, and licenses), an interviewer often wonders whether a candidate is capable of performing necessary job tasks. Most employers know the law prohibits inquiring at the interview stage whether a candidate has a disability, so when the existence of a disability is obvious (such as because the candidate uses a wheelchair or a service animal) or is mentioned by the candidate (such as through a request for a reasonable accommodation), employers do not always know how to respond. Many take the “safe” route of not responding at all.

    Ignoring the “elephant in the wheelchair” (attorney Jimmy Anderson’s phrase) or responding to a disclosure solely by saying “no employment decision will be made based on that information” misses an opportunity to demonstrate the employer’s willingness to accommo­date and work with persons with disabilities and to gain specific information about a particular candidate’s abilities. Interviewers, therefore, should welcome a forthright discussion of any accommodations that will enable the candidate to perform essential job functions.

    Permissible Questions. Because the interviewer’s comments and questions may be closely scrutinized for possible discriminatory bias, however, wise employers anticipate such discussions and prepare (preferably with the guidance of experienced employment-law counsel) a list of approp­riate questions and comments. For example, an interviewer may inquire whether the prospective employee can perform specific tasks (lifting up to a certain weight, walking up and down stairs, using a computer) required for the position in question with or without reasonable accommodations, but may not ask whether an accommodation is needed. It is helpful to have a detailed job description listing all physical and mental requirements, as well as environmental and interpersonal factors (for example, outdoor work, noisy production area, working in teams) for the candidate to review before asking about the ability to perform the tasks.

    When an employer reasonably believes that an applicant may not be able to perform one or more job functions because of a known disability, the employer may ask that particular applicant to describe or demonstrate how he or she would perform the function, with or without accommodation. An applicant has a “known disability” either because it is obvious (for example, the applicant uses a wheelchair or has a prosthetic limb) or because the applicant has voluntarily disclosed a hidden disability (such as a hearing impairment or epilepsy). If the applicant indicates that accommodation will be necessary on the job, then the interviewer may ask what accommodation is needed.

    Accommodations. The voluntary disclosures suggested in the accompanying article can provide an oppor­tunity for the interviewer to learn about accommodations that will enable an applicant with a disability to perform the job in question. It is helpful to the interviewer if the candidate provides as much information as possible about the accommodation. For example, if a candidate mentions that voice-recognition software enables the person to use a computer, the interviewer likely will appreciate information about the cost and availability of such a resource. If more than one accom­modation may enable the candidate to perform the job tasks, disclosure of such options is helpful.

    Employers must be careful not to make assumptions about what a person with a disability can or cannot do. Often a person who has a disability finds ways to accomplish tasks that may appear, to a person without that disability, to be difficult or even impossible for a person with the particular disability to engage in. Yet the limitations on what an employer may ask during the hiring process make it difficult for the interviewer or the applicant to explore whether the applicant can perform the job, unless the applicant discloses that information. A well-prepared interviewer and a candid applicant can together make an informed decision about whether the applicant is able to perform the job functions.

    Internet Resources. The Equal Employment Opportunity Commission has many online resources related to the ADA. A question-and-answer overview of dealing with disability-related issues throughout the entire hiring process is at http://www.eeoc.gov/facts/jobapplicant.html. For examples of questions that may and may not be asked during job interviews, see http://www.eeoc.gov/policy/docs/preemp.html. Information about when medical examinations may be required is available at http://www.eeoc.gov/policy/docs/qanda-inquiries.html.