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Disability and Hiring: Lawful and Unlawful Interview Questions

The hiring process is where disability discrimination often begins, sometimes through questions an employer is not allowed to ask. The ADA and the NJLAD draw a clear line: before a job offer, an employer generally cannot ask about your disability or medical history. Knowing where that line sits helps you recognize when an interview goes wrong.

What an employer cannot ask before an offer

Whether you have a disability or a particular medical condition
How many sick days you took at a previous job
Whether you take prescription medication
Whether you have filed a workers compensation claim
Details about a visible disability or a condition you mention

What an employer can ask

An employer may ask whether you can perform the essential functions of the job, with or without a reasonable accommodation. It can describe the duties and ask if you are able to do them. It can require a job related medical exam only after extending a conditional offer, and only if it requires the same of all candidates for that position.

After a job offer

Once you have a conditional offer, an employer has more room to ask about health, but only in job related ways and applied consistently. It cannot withdraw an offer because of a disability if you can do the job with reasonable accommodation.

If an interview crosses the line

You are not obligated to volunteer a disability, and you can steer the conversation back to your ability to do the work. If you are asked an improper question and then not hired, the question itself can be evidence. Note who asked, what they asked, and when.

When to seek advice

If you believe a job offer was pulled or a position denied because of a disability or an improper medical inquiry, keep your notes and any written communications and talk to an attorney about your options.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent employees in New Jersey and throughout the New York City area. To talk through your situation with an attorney, call (212) 516-1868 or reach out to us for a free, confidential consultation. We work on a contingency fee basis, so you pay nothing unless we recover for you.

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