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Disability discrimination when hiring: The basics

| Jun 11, 2020 | employment law

Both California and federal law are clear about existing protections for employees with disabilities. But for any business, the effort to ensure compliance with discrimination laws should begin much earlier: during the hiring stage.

There are a number of guidelines employers must follow when evaluating job applicants who have a disability. Running afoul of these laws could result in a costly legal case – and the loss of a perfect candidate.

Unfavorable treatment because of a disability

Broadly speaking, the laws are straightforward. It is illegal to treat a job applicant unfavorably because they have a disability, a history of disability or a perceived disability. This means it is illegal to evaluate an applicant based on a real or perceived disability.

It is also not OK for an employer to ask candidates about the exact nature of their disability, or require them to undergo an exam other applicants are not routinely asked to do.

As an employer, you can ask an applicant about their ability to do job-related tasks. You may also reply to a request they make for reasonable accommodations. If you’re uncertain about what might be possible, officials suggest you “engage in a timely, good faith interactive process” with the applicant or their representative.

If an applicant cannot perform essential job duties, even with reasonable accommodations, or if they are not qualified for the position, it is OK to not hire that individual for that role.

Setting the business up for success

Some businesses see these regulations as an extra hurdle. That’s the wrong way to look at it. The Society for Human Resource Management has some how to make your business more inclusive. Suggestions include:

  • A robust training program for everyone, not just HR
  • A streamlined accommodations request process
  • Equal advancement opportunities for all employees
  • An enterprise-wide focus on disability inclusion

By implementing a strong hiring process, you not only ensure the best candidates rise to the top, but help protect yourself from potential disability discrimination allegations.