Legal Question in Disability Law in California

What are legal disability-related questions in a job interview in California? Is it legal to ask what one's disability is? Is it legal to ask about the impact of one's illness? It is my understanding that those are illegal questions and the legal and appropriate questions are about accommodations needed, or about one's understanding of disability community issues. Correct?


Asked on 8/23/10, 9:08 pm

2 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

Your 'understanding' is wrong. A company is entitled to question about your claim of condition, and require proof of condition and limitations, all for the purpose of determining whether you are entitled to 'accommodation' under ADA, and what and whether they will be able to offer or deny it. They are required to provide accommodation and are not entitled to 'discriminate' against you,but they are entitled to know. Now, if you believe you can demonstrate 'discrimination', feel free to contact me.

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Answered on 8/30/10, 11:51 am
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

I must clarify on my colleague's answer. It is not legal for an employer to ask a job applicant about whether they are disabled. They cannot ask and prospective employees need not tell, as disability has no basis on whether the employee should be offered a job.

Having said that, the employee still must be able to perform the essential functions of the job. They can be required to pass a physical and if unable to do so, may be denied employment unless they can perform the essential function of the job with a reasonable accommodation by the employer. Naturally, to provide a reasonable accommodation, the employer must be told of the disability. It can be revealed after the job has been offered but before taking the physical.

Is it smart to withhold the information up front? You decide.

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Answered on 8/30/10, 4:42 pm


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