Interviews: What Employees Don’t Have to Tell You
By Kelly A. Hayden, JD, Chief Legal Counsel
Published June 18, 2024
The Equal Employment Opportunity Commission (EEOC) recently filed suit against a Baltimore employer for violating the Americans with Disabilities Act (ADA). The suit alleges that the employer terminated a scheduling assistant on her first day of work after she asked for an accommodation related to a vision impairment. Specifically, the employer questioned why she did not disclose her disability in the interview process and ask for accommodations prior to her first day.
The EEOC has made clear that an applicant does not have to disclose a disability or the need for an accommodation in the interview process unless the applicant is asking for an accommodation during the interview. (Should the applicant need an accommodation at this point, the employer may require documentation confirming the disability, the need for the accommodation, and any other information necessary to successfully provide the accommodation.) Remember, even when an applicant answers specific questions about performing essential functions, their answer may be based on their ability to perform the functions with a reasonable accommodation, although they don’t have to tell you that at the interview stage.
The same rule applies to other protected classes that may need accommodations, such as pregnancy and religion, meaning an employee does not need to disclose any information pertaining to these protected characteristics in an interview. Given the EEOC’s position, determining ability to perform essential functions can be tricky. Consider the following.
During an interview, an employer asks the applicant (and all applicants) about availability during certain key hours or days of the week. The applicant states they have open availability. On the first day, the employee states that due to their religion, they are unable to work on certain key days. Can the employer terminate the employee for lying during the application process?
This scenario has no clear-cut answer. While the employer did not ask about religion, and the employee could have provided their availability without mentioning their religion, the employee could argue the employer is required to consider their accommodation request and their termination is discriminatory (and may be perceived as such). In this situation, it may be prudent to discuss and consider the accommodation request anyway. If the request cannot be accommodated, the employer has two defenses to a discrimination claim (cannot make accommodation/falsifying application) as opposed to only the falsification defense.
Accommodation requests are frequently complicated. Employers should ensure that their managers and supervisors have basic knowledge and receive training regarding EEO laws. HR Source members can contact us through the HR Hotline Online or at 800-448-4584 to discuss issues related to this topic.