More MS news articles for March 2000

Legal Basics: Job Hunting with a Disability

By Harriet McBryde Johnson, Attorney at Law

Note: This article offers general information about law and is not intended as a substitute for individual legal advice. Law varies from state to state and if you believe you have a legal problem, you should consult a lawyer in your state. The author does not provide legal advice on the Internet.

Under the best of circumstances, job hunting is probably the hardest job you'll ever have. For anyone, it requires energy and dogged persistence -- keeping at it in the face of rejection.

A disability can make this tough job even tougher. Functional limitations may make some jobs impossible. You may need to find a unique job that will accommodate your unique situation. Instead of merely adapting to the workplace, you may need a workplace that adapts to you.

Added to all of this is that ugly fact of life we'd like to forget: discrimination. Despite some real progress, many employers still have trouble seeing people with disabilities as part of the workforce. In your job hunt, you're likely to encounter unfounded myths, fears, and stereotypes. While you're talking up your resume, the person across the table may be thinking:

Attitudes like these may cut you out of that perfect job, before you even know what's happening.

The good news is that the law -- particularly the Americans with Disabilities Act -- now offers some help. It hasn't leveled the playing field. It certainly hasn't made job hunting easy. But you can improve your chances of winning the job that's right for you by going out on your quest armed with a little knowledge of how the laws work.

Q: Where do I get job leads?
A: You may use a service that specializes in finding jobs for people with disabilities. If you need disability-related services or equipment, your state vocational rehabilitation agency may be the place to go. Your independent living center may also offer practical support along with leads. However, you are no longer limited to disability agencies. Under the ADA, you should have access to all the places where other people find jobs -- your state job service, private employment agencies and temp services, union hiring halls, school placement offices, etc. If you want to work with someone who specializes in your chosen career field, you should not be shunted off to someone whose only specialty is disability.

Q: Are all employers covered by the ADA?
A: No, only those with 15 or more employees. Some states have comparable laws covering smaller employers, but in most states disability discrimination is legal in a very small business. You can still succeed with a small company, but success will depend entirely on how well you can sell yourself and your talents.

Q: Does the ADA guarantee me a job?
A: No, it only protects your right to compete. If you are qualified and able to do the job, you cannot be denied the job just because of your disability. Moreover, if you're able to do the job with an accommodation, the employer must provide "reasonable" accommodation to your disability.

Q: Do I report my disability when I apply for a job?
A: You are under no obligation to do so. Under the ADA, employers may not inquire about disabilities until after a "conditional offer" of employment has been made. That means you should be evaluated initially the way other people are evaluated, based on your education, experience, and skills.

Q: What if I want to report my disability? It's part of who I am.
A: It's your call. You are in control of your disability information, but disclosure does carry a lot of risk. For most employers, disability is still a definite negative. If you bring it out too early, employers may decide to avoid an uncomfortable situation simply by not selecting you for an interview. It's usually easy enough to come up with a justification for preferring someone else. On the other hand, if you make sure the employer sees your strengths before she sees your limitations, you might get the chance to sell yourself as a whole person with something unique to contribute.

Q: What if it's a disability-related employer, like an independent living center? Won't my disability be an advantage?
A: This question is really about politics, not law. The law gives you flexibility to disclose what you think is helpful and relevant to the job. You may want to make a general disclosure like, "I've been a wheelchair-user for 10 years," and save details for later.

Q: What if the application form asks about disability?
A: If the company is covered by the ADA, that's a violation, pure and simple. But do you want to file discrimination charges against the company you want to work for? It might sound easy to say, "Hell yes, I don't want to work for them anyway!" but when you're desperate for a job, even the remotest possibility of a job, it might be hard to stand on principle. The improper questions put you in an impossible spot. You should get a copy of the application form and get legal advice tailored to your situation. You will have three options:

Figure out how to frame an answer that is truthful but doesn't raise any red flags. Mark through the improper questions and make a notation like, "If I am selected, I will happily submit to a standard company medical examination." Disclose your disability.

What you don't want to do is lie. Some courts have held that you can legally be fired for making false statements on your employment application, even if the statements were in response to illegal inquiries.

Whatever you decide, keep a copy of your application and make notes on the application process. If you are not selected, you will have the documentation for a possible discrimination charge. In addition to the possibility of money damages for you, a charge might get the company to clean up its act and make things fairer for the next disabled applicant.

Q: What about job interviews?
A: Even in an interview, ADA employers may not ask about disabilities. However, they may ask about your ability to perform essential job functions. For example, if driving is part of the job, you can be asked if you have a valid driver's license. Generally, a job interview is a place to discuss your interests, qualifications, and experience -- and the job itself. Details about your disability should be discussed only after you're hired, and then only as necessary to make sure you can do the job, decide what accommodations you need, or serve some other legitimate business purpose.

Q: But my disability is obvious. Once they see me, it's out there.
A: If your disability is obvious, you might also be asked how you will perform essential job functions. For example, if you cannot move your hands, and the job involves computers, you may be asked what kind of interface you use.

Q: What if the interviewer doesn't follow the rules?
A: That does happen, so try to be prepared. Just as some employers still ask women whether they plan to have babies, they may ask you improper questions about your disability. How you handle this takes us away from law to politics -- again. Think how a smooth politician handles tough, sometimes improper, questioning: usually, it's a brief response with a positive "spin," and then a quick turn back to an appropriate topic. If you want to rely on your ADA rights, you may want to practice a standard response, like, "Let's save those details until you decide I have the right qualifications and I decide the job looks right for me. I'd hate to skip the normal job interview questions." Again, lying is not a good idea, as some politicians have learned the hard way!

Some applicants see the interview as a good opportunity to allay the potential employer's fears by laying out the facts about disability. That can work, but make sure disability doesn't swallow up the whole interview To get hired, you need to convince the employer you'll be the best person for the job. An interview is most successful when it makes the interviewer see you in the job, making a contribution to the employer's mission.

Q: You said something earlier about a "conditional offer of employment." What's that about?
A: Basically, under the ADA, the employer should first evaluate your qualifications without considering disability. Before asking medical questions, the employer must tell you that you're selected, contingent on your satisfying medical requirements. This means you should have a job offer, with all important terms like what you'll be doing, how much you'll be paid, and when you'll start. After the offer, you are subject to the same medical screening that applies to all applicants: you should not be singled out for special scrutiny because of your disability.

Q: If the employer gets my medical information anyway, what good does the ADA do me?
A: It may enable you to prove that your disability was the only reason you were not hired. You've already been told you have a job; if you get un-hired  after the company physical, the company can't claim some other reason. This is a tremendous boost for any possible discrimination charge. Employers know this, so the ADA gives them practical reason to evaluate you fairly.

Q: How do I handle the company physical? Just fill out the forms and show up?
A: For some people that's fine. If you have a stable condition like paraplegia and the job doesn't present any unusual challenges, you probably don't have much to worry about. If you have a progressive disability, a disability that could affect job performance or reliability, or other difficult issues (such as a psychiatric history or HIV diagnosis along with your physical disability), you may need specific legal advice. If you anticipate any difficulties, it's a good idea to discuss your job goals with your physicians. You may want to submit a "fit for duty" letter from your treating physician even if it's not requested. Company doctors will tend to defer to a professional colleague who knows you well.

Q: Do I have to choose between using my ADA rights to get a job, and applying for disability benefits?
A: No, but you should be careful. Remember, the ADA applies if you're "qualified," which means able to do the job either with or without reasonable accommodation. The Supreme Court has held that statements you make in disability claims can be evidence that you're not "qualified" under the ADA. The key is to avoid making inconsistent statements. This is an area in which individual legal advice may be especially useful.

Q: Can I do part-time or temporary work?
A: Sure. Increasingly, part-time and temp jobs are the gateway to "regular" employment; while such workers are often subject to outrageous exploitation, many go that route to get a foot in the door, gain experience, or pay the bills during the search for a job. For disabled workers, temp and part-time jobs may be a low risk way to test your capacities: Can you really put in a 40-hour week? Is telemarketing right for you? If you're on benefits, you should get benefits counseling to structure a job that will have the least impact on your "safety net."

While the ADA prohibits using contractual arrangements to evade legal duties, some employers clearly do manipulate temp arrangements to avoid putting disabled workers on permanent status. The ADA doesn't distinguish between part-time and full-time, permanent or temporary -- you have the same nondiscrimination rights. A temp agency should not ask medical questions until after you have a conditional offer of an actual job.

Q: My last job was a disaster. I got fired. How do I handle that?
A: This need not be an insurmountable problem. Most people who are hiring people have been fired at some point in their careers. Don't lie or conceal information, but look for a positive or neutral spin. If you have reason to think the next job won't be like the last, think how you can convey that to an employer. A long story about how nothing was your fault probably won't work -- remember, that's what they all say!

It's more productive to keep the focus on your positive qualities. Go back to someone, like another a former employer, who knows your work and get a glowing letter of recommendation. Attach that to your job application without being asked. A positive report from someone who worked with you for five years could outweigh the negative experience of a job that lasted two weeks.

Q: I've been offered a job, but I'm not sure if it's right for me. Should I take it?
A: First of all, Congratulations! You've managed to convince an employer you have something to offer! You've beaten the competition! Whatever the outcome, you have reason to be proud. Whether you should take the job or wait for something you're more comfortable with is not something a lawyer can tell you. You have to make a highly personal decision.

Some placement agencies may push you to accept the first job that comes up, but if you think the job would doom you to failure or abject misery, fight for something better. However, if what you're feeling is just cold feet, consider taking the plunge. Consider the options, the risks, the benefits, and get guidance from the people whose opinions you respect. Even if it's not the job you've dreamed of, it may put you on a path to better things.

(This story was posted on 21 Feb 2000)