Full question:
We would like to ask the following questions on an employment application and would like to know if we can do so legally: 'This position is targeted for adults who are recovering from severe mental illness. Do you wish to declare that you are a member of this target population?' 'Our company is committed to accommodating limitations due to mental health disabilities. You may describe accommodations here or discuss them if you are interviewed.' and 'Have you ever had an episode of violence or threatening violence against another? If so, describe and summarize treatment and recovery process. (This does not necessarily disqualify you from employment.)
- Category: Employment
- Date:
- State: Montana
Answer:
Generally, it is not the asking of a question that is a violation of federal or state anti-discrimination laws; it is the practice of disqualifying applicants based on their answers to those questions that can be an unlawful employment practice.
Human resource personnel are cautioned about asking the potential employee if he has a disability that will interfere with his ability to do the job, if he has a specific illness, or how many days he was sick in the past year. All of these questions could indicate that an employer is discriminating against a qualified individual with a disability in violation of the Americans with Disabilities Act (ADA) of 1990.
The ADA allows you to ask the applicant to describe or demonstrate how they would perform an essential function(s) when certain specific conditions are met. An employer is prohibited from asking disability-related questions or requiring a medical examination before making an individual a conditional job offer. After the employer extends an offer for a position, it may ask the individual disability-related questions or require a medical examination as long as it does so for all entering employees in the same job category. Thus, while many of the referenced questions are impermissible pre-offer, they may be asked after a conditional offer of employment has been made. An employer that uses the results of such questions to screen out an individual because of a disability must show that the exclusionary criterion is job-related and consistent with business necessity.
For further discussion, please see:
http://www.eeoc.gov/foia/letters/2002/ada_inquiries_examinations_3.html
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.