UNDERSTANDING YOUR RIGHTS DURING THE JOB INTERVIEW
By Greg D. Trapp, Esq.


This article first appeared in Job Recorded Bulletin #176. JOB
(Job Opportunities for the Blind) is sponsored by the National
Federation of the Blind and the U.S. Department of Labor.

Job Opportunities for the Blind may be contacted at
1-800-638-7518.

The job interview is probably the most crucial step in the path
to becoming employed. It is your best opportunity to make a
favorable impression on a prospective employer. It may also be
your only opportunity to educate the employer about the
abilities of a blind person, and to make him or her feel
comfortable with your blindness. However, because the Americans
with Disabilities Act of 1990 (ADA) prohibits employers from
asking disability-related questions during an interview, you may
need to take charge of the interview process and raise the
questions yourself. To do this, you must understand what
questions are permitted by the ADA, and which ones are
prohibited. This article will briefly explain the impermissible
and impermissible questions, suggest some strategies for taking
charge during the interview process, and explain some options
you may have if you believe your rights were violated.

The rules governing preemployment disability-related questions
are complicated, as well as controversial. The Equal Employment
Opportunity Commission enforces the employment provisions of the
ADA, and issues interpretative regulations and guidelines. On
October 10, 1995, the Equal Employment Opportunity Commission
issued an "Enforcement Guidance" intended to clarify the
questions which may be asked during a job interview. The
guidance, Number 915.002, is titled "Preemployment
Disability-Related Questions and Medical Examinations." You can
obtain the full text of the guidance from the Equal Employment
Opportunity Commission web page, HTTP://WWW.EEOC.GOV. You may
also obtain the guidance by calling the EEOC publications center
at 1-800-669-EEOC. The guidance is available in alternate
accessible formats. Because this article can only briefly
examine this complicated subject, you may want to obtain a copy
of the complete guidance.

Prior to the passage of the ADA, it was common for employers to
ask job applicants about their medical or physical conditions.
Now, with the enactment of the ADA, an employer cannot ask
disability-related questions unless a job offer has been made.
Prior to a job offer, employers cannot ask questions that are
likely to elicit information about a disability, ask whether an
applicant has a particular disability, or ask questions that are
closely related to a disability. For instance, an employer
cannot ask if you are blind, or ask questions about the level of
any partial vision you might have. This type of information was
often used to categorically exclude blind applicants before
their ability to perform the job was even considered. These
questions are now prohibited to ensure that persons with
disabilities are given an equal opportunity to apply for a job
without regard to their disability.

Although an employer may not ask disability-related questions
during the interview, if the interview includes a process such
as a written test, an employer may ask if you will need a
reasonable accommodation for the interview. During the
interview, employers are allowed to ask questions to determine
if you are qualified for the job. For instance, an employer may
ask if you can perform job functions, including whether you can
perform job functions with or without reasonable accommodations.
Employers may also ask a job applicant to describe or
demonstrate how he or she would perform specific job functions,
as long as all applicants in the job category are asked to do
this. If the job function included computer use, you could
explain how assistive technology (such as a speech synthesizer)
might enable you to use computers. An employer may also state
the physical requirements of a job (such as the ability to lift
heavy weights or to climb ladders) and ask if you can satisfy
these requirements. Some employers who are unfamiliar with
blindness may not understand that a blind person can climb
ladders or perform other manual tasks, and you should take this
opportunity to explain how you could negotiate the work site.
Employers may also ask applicants to voluntarily disclose their
disability for purposes of affirmative action programs.

Employers are also allowed to ask about your qualifications,
work history, education, and job skills. Because employers are
allowed to ask about your qualifications, they can ask if you
have required certifications and licenses. For example, an
employer may ask if you have a driver's license, but only if
driving is a job-related duty. Unfortunately, it is still common
for employers to require a driver's license, even though the
travel could be accomplished by using public transportation,
cabs, or drivers. If you encounter this situation, you should
explain to the employer that you could perform the travel
through these alternative methods. A driver's license should
only be required for jobs such as a police officer, bus driver,
or delivery truck driver.

Many employers do not know what questions they can ask to
determine if you are qualified to perform the job, nor may an
employer understand what types of reasonable accommodations
could enable you to perform the job. The new Equal Employment
Opportunity Commission guidance attempts to address this problem
by giving the employer additional leeway to ask questions in the
case of a person with a disability. If an employer could
reasonably believe that an applicant would not be able to
perform a job function because of a known disability, the
employer may ask that particular applicant to describe or
demonstrate how he or she would perform the function, even if
other applicants were not asked this same question. For
instance, your disability would be a "known disability" if you
came to the interview using a cane or guide dog, and the
interviewer would be allowed to ask you to describe or
demonstrate how you would perform specific job functions. If you
said that you would need a reasonable accommodation to perform
the job, the employer may ask you questions about the type of
accommodation. Accordingly, you should educate yourself in
advance as to what reasonable accommodations you will need. For
instance, if you say that you need a speech synthesizer, the
employer is allowed to ask who makes the speech synthesizer and
if it would be compatible with its computer system. You should
be prepared to answer this type of question, and be able to do
so with confidence and authority.

The Equal Employment Opportunity Commission guidance attempts to
explain some subtle distinctions between the questions that are
allowed and the ones which are prohibited. For instance, an
employer can ask if you "can perform the job with or without
reasonable accommodations," but may not ask if you "need a
reasonable accommodation to perform the job." The first question
is allowed because answering either "yes" or "no" does not
reveal the presence of a disability, while answering "yes" to
the second question would reveal the presence of a disability.
The distinctions are equally subtle in the case of physical
testing. For instance, an employer may give vision tests to
applicants before a job offer, provided that the test is not a
"medical" exam. The Equal Employment Opportunity Commission
guidance states that "evaluating someone's ability to read
labels or distinguish objects as part of a demonstration of the
person's ability to do the job is not a medical examination."
However, the Equal Employment Opportunity Commission guidance
also states that an ophthalmologist's exam is medical, as is
requiring an individual to read an eye chart. If you are asked
to demonstrate your ability to read, you should keep in mind
that you may request a reasonable accommodation for the reading
test, or you may describe what reasonable accommodations could
enable you to perform the reading. This is a crucial moment for
you to educate your potential employer on your ability to
perform the job, and you should not miss the opportunity.

Despite your best efforts to educate a potential employer, you
may still be rejected for the job. If the employer rejects you
after a disability-related question or medical examination, you
may file a complaint with the EEOC. The EEOC will "closely
scrutinize" whether the rejection was based on the results of
that question or examination.

Persons who have a "hidden disability," such as a psychiatric
disorder, may choose to not disclose the existence of the
disability during the interview. If the employer does not know
of the existence of the disability, the employer will not be
able to exclude the applicant based on the disability. By
contrast, blindness is usually obvious to the employer. Because
the employer will normally be aware of the disability, a blind
person is in a different position from a person with a hidden
disability. Since the employer will be aware of your disability,
but may not know what types of questions that may be ask, you
must be prepared to voluntarily describe and demonstrate how you
can perform the job. This means that you must thoroughly
research the job and the reasonable accommodations you will
require long before you walk into the interview. One of the best
ways to do this is to talk to blind persons who are successfully
employed in similar jobs. By being prepared and informed about
your rights, you may discover a world of new employment
opportunities waiting for you.


BIOGRAPHICAL SKETCH

Greg Trapp has been a staff attorney with the Protection &
Advocacy System since 1992. Prior to joining Protection &
Advocacy, he was an Equal Opportunity Specialist at the
University of New Mexico. Mr. Trapp is a 1990 graduate of the
UNM School of Law. In 1993, he taught Disability Law as an
adjunct professor at the UNM School of Law. Mr. Trapp presently
serves on the New Mexico Commission for the Blind Statewide
Rehabilitation Advisory Council, serves on the IDEA State
Advisory Panel, and is on the Board of Directors of the National
Association of Blind Lawyers.

Send electronic mail comments to Mr. Trapp at the following
address: gtrapp@abq.com