The EEOC has proposed new regulations to enforce the expanded version of the Americans with Disabilities Act passed last year. They’re going to have a big impact on many HR functions, including hiring.

Long story short: With a broadened definition of “disability,” more job applicants will be covered by the law.

As before, a disability’s defined as a condition that substantially limits a major life activity.

But instead of the old “eating, sleeping and working” that courts were used to, the new regs expand protection with a huge list of activities covering everything from caring for oneself and performing manual tasks to concentrating and communicating.

How HR can prepare

The following steps will help HR any new legal landmines created by the regs:

1. Train hiring managers – With more applicants considered disabled by the law, it’s more likely than ever that an unsuccessful candidate will sue for disability bias. Managers need to stay clear of interview questions that touch on health issues.
2. Review job descriptions – Seemingly innocent wording could be thought by courts to exclude to people with disabilities. A company could get in trouble, for example, if a job description lists a specific lifting requirement for a position that involves lifting only occasionally.

Remind managers: The law doesn’t, and never did, require you to hire anyone who’s unqualified. But with new opportunities for people to sue, it’s important than ever to keep the hiring process focused on the applicant’s ability to do the job.

To read a summary of the new regs, click here.

How can they find the right balance? What interview topics are off-limits?

Here are answers to three questions hiring managers have about interviewing disabled applicants:

1. Can we use a test to see if an interviewee can handle a necessary physical function — for example, heavy lifting?

Yes, those tests are OK. But only if you test every applicant, and not just those who appear disabled.

2. After describing the job’s requirements, can we ask applicants if they know of anything that would prevent them from performing those duties?

Yes, but again: You need to ask every applicant that question.

3. Can we ask if a disability is likely to get worse and interfere with performance in the future?

No — this type of question is akin to asking for a diagnosis or other medical information, which is prohibited under the Americans with Disabilities Act.

Bias complaints from rejected job applicants are on the rise, and the EEOC is cracking down on unintentional discrimination in employers’ hiring practices. Here’s how HR pros can keep their companies safe.

This year, the EEOC has several new laws to enforce and a mission to ramp up enforcement in existing areas, says Peggy Mastroianni, associate legal counsel for the commission, who spoke at a recent Society for Human Resources Management conference in Washington, DC.

Here are the four EEOC priorities for this year that will have the biggest impact on hiring processes, according to Mastroianni:

1. Background checks – According to the EEOC, policies against hiring convicted criminals can be discriminatory, because minority applicants are more likely to have criminal records. The commission is continuing to crack down on the unnecessary use of criminal background checks.
   How to prepare: Review all of your company’s selection procedures, making sure they’re necessary and related to the positions they’re being used for. Courts have held that criminal records can be used if there’s some connection between the type of conviction and the position being filled.
2. Ledbetter Fair Pay Act – The EEOC is expecting a big increase in pay discrimination claims because of the recently passed Ledbetter Fair Pay Act, which gives employees more opportunities to sue if they feel their paycheck’s taken a hit because of illegal bias.
   How to prepare: Review policies on how salaries are set (and make sure managers follow them), identify and correct unexplained pay discrepancies, and make sure documents related to pay are retained.
3. Religious discrimination – The EEOC has been active in pursuing complaints of religious bias and failure to accommodate religious beliefs. These types of suits are especially tricky for employers because courts almost always side with employees if there’s a question of whether their beliefs are genuine.
   How to prepare: Religion bias claims often arise when applicants or new hires tell a manager about a scheduling conflict due to religious services or holidays. Hiring managers need an idea of what’s a reasonable way to accommodate one of those requests.
   
4. The new ADA – One of the biggest employment law developments of 2008 was the passage of the ADA Amendments Act, a law that significantly expands the definition of “disability” and offers protection to more employees and job applicants.
   How to prepare: The new law doesn’t change employers’ obligations to accommodate disabled employees. But since the coverage is greatly expanded, it’s more important for hiring managers to be trained on following the law. They need to understand the difference between essential and nonessential job functions and avoid making assumptions about a candidate’s ability to perform.
   

As if hiring the right talent wasn’t tough enough, the Americans with Disabilities Act makes every step of the hiring process more difficult – from collecting applications and interviewing candidates to getting a new hire ready to start the job. Here are the most common pitfalls that trip up companies and how HR can help avoid them.

Last week, the EEOC released a question-and-answer guideline on disability hiring. Though directed at federal employers, the document contains plenty of information that applies to all companies.

Here are the answers to HR’s common questions:

1. What are the most common types of accommodations companies give applicants and newly hired employees?

Here are the top examples from the EEOC:

• making application and testing materials accessible in different formats (for example, making recruiting sites compatible with screen-reader software for the blind)
• altering facilities and work areas
• giving other employees responsibility for marginal tasks an employee can’t perform (as long he or she can handle the job’s essential functions), and
• changing the job’s schedule, if possible.

2. How do companies know if an accommodation will cause an “undue hardship?”

There’s no easy answer — figuring out which accommodations are reasonable is a case-specific question. The two most important factors to consider:

• cost (taking the company’s budget into account), and
• impact on other employees’ abilities to do their jobs.

For outside opinions and recommendations, the EEOC recommends contacting the Job Accommodation Network (www.jan.wvu.edu).

3. What if we think an applicant could pose a safety risk?

Again, determining whether a disabled applicant can perform the job safely requires an individualized assessment. Here are the things employers should take into account:

• the duration of the risk
• the nature and severity of the potential harm
• the likelihood that the potential harm will occur, and
• the imminence of the potential harm.

In other words, the EEOC says, “a slightly increased, moderate, speculative, or remote risk of harm” isn’t enough to deny someone a job.

Employers should consider qualified medical opinions, the person’s history performing similar work and of course, the possibility of erasing the safety risk with a reasonable accommodation.

4. Can employers give preference to disabled applicants?

Yes. Unlike other types of bias (race and gender, for example), there’s no such thing as “reverse discrimination” under the ADA. Though companies obviously want to employ the most qualified applicants, there’s nothing illegal about giving disabled candidates a preference.

Also, employers may state in job ads that they encourage qualified persons with disabilities to apply.

5. What should employers do after an applicant or new hire asks about accommodations?

Once HR or a manager knows someone needs an accommodation due to a medical condition, it’s time to start the “interactive process” to find out if any change is necessary and possible. Here are the EEOC’s keys for staying compliant and finding the best solution:

• Get specific — It’s important to get as much information about the specific limitations as possible.
• Ask for suggestions — The process is defined as “interactive” for a reason. The employee or applicant may know from past experiences what some possible accommodations are. (Note: The EEOC recommends giving priority to the employee’s preference, but companies aren’t required to do so if there’s a better solution.)
• Keep looking for alternatives — If a suggested solution isn’t reasonable, your obligations don’t end there. Companies need to exhaust all possible alternatives before deciding there’s no accommodation available.

In one case, an airline offered jobs to a group of applicants, contingent on successful completion of a background check and medical exam.

The exam revealed a few of them weren’t eligible for hire, and their offers were taken back.

The problem: The medical testing was done before the background check. The applicants sued, claiming the company violated the ADA by not saving the exam for last.

The court agreed, ruling the law requires medical tests to be the “only remaining contingency” in the hiring process.

According the EEOC, employers must obtain and analyze “all relevant non-medical information” before conducting any medical investigations, unless they can prove it was impossible to get all the non-medical info.

Cite: Leonel v. American Airlines, Inc.

The facts:

A recently-hired employee discovered he had a serious illness. He was still able to work, but when his co-workers found out, he started experiencing some immature harassment. He complained to his supervisors, but wasn’t satisfied with the response. Eventually, he quit and sued the company for disability discrimination.

The employer said:

After the man quit, the employer discovered that he had failed to disclose a prior criminal conviction on his employment application. If it had found out while the man was working, he would have been fired — therefore, he had no standing to sue for discrimination.

Who won the case?

Answer: The employee.

Why: Since no one at the company knew about the lie while the alleged harassment was happening, it was completely irrelevant. Learning about the conviction didn’t change the fact that he was discriminated against because of his disability.

Cite: Cicchetti v. Morris County Sheriff’s Office