The ADA prohibits employers from basing any hiring decision on an applicant’s disability, whether the disability is confirmed or only perceived by someone in the hiring process. An employer who learns an applicant has a history of depression and withdraws the offer on that basis has violated the ADA, regardless of intent.
Employer obligations under the ADA span every stage of the hiring process, from how the company words a job description through the specific, limited circumstances under which an employer may withdraw a conditional offer. The Equal Employment Opportunity Commission is the federal agency responsible for enforcing workplace discrimination laws, and recruitment and hiring barriers are a stated enforcement priority through 2028. In 2024, ADA cases represented 43% of all employment discrimination lawsuits the EEOC filed, and the agency recovered nearly $700 million for discrimination victims.
Employer Thresholds and Applicant Protections Under the ADA
Employer Coverage Thresholds
ADA Title I applies to private employers, state and local governments, employment agencies, and labor unions with 15 or more employees, and an employer with multiple locations counts all employees across every site combined. The ADA requires 15 or more employees on each working day for at least 20 calendar weeks in the current or preceding year, so a temporary drop in headcount does not automatically remove coverage.
Applicant Protections Under the Amended Law
Prior to 2008, courts interpreted the ADA so narrowly that the Supreme Court ruled people with conditions like cancer in remission and diabetes fell outside its protection. Congress responded with the ADA Amendments Act of 2008, which broadened the definition of disability significantly. An employer cannot argue that an applicant is unprotected simply because medication or a device keeps the condition under control. For example, a diabetic who manages the condition with insulin and an epileptic who controls seizures with medication are both protected under the amended law.
The ADA also covers applicants who are not actually disabled but whom the employer treats as though they are. For example, a hiring manager who notices an applicant walks with a limp and removes the applicant from consideration assuming the person cannot handle the physical demands of the job violates the ADA, even when the applicant has no qualifying impairment.
Essential Functions and Job Description Requirements
Qualified Applicants and the Essential Functions Test
To qualify for ADA protection, an applicant needs to:
- Satisfy the legitimate skill, experience, education, and other job-related requirements of the position; and
- Be able to perform the “essential functions” of the role with or without reasonable accommodation.
“Essential functions” are the core duties an employee is hired to perform, and a marginal duty is one that is incidental to the role and could be redistributed to another employee. The ADA prohibits rejecting a qualified applicant on the basis of an inability to perform a marginal duty.
To determine whether a duty is essential or marginal, the EEOC weighs the following factors:
| Factor | What It Means |
| Employer’s judgment | The employer’s own assessment of why the duty is fundamental to the role |
| Written job description | Whether the duty was listed as a requirement before recruiting began |
| Time spent on the function | How much of the employee’s working time the duty actually consumes |
| Consequences if omitted | Whether the position’s purpose is undermined if the duty goes unperformed |
| Past incumbent experience | Whether previous employees in the role actually performed the duty |
Outcome-Based Language in Job Postings
Job descriptions that specify the physical method required to complete a task rather than the result the task needs to produce can unnecessarily exclude qualified applicants with disabilities, and the ADA treats that as a potential basis for a discrimination charge. For example, a requirement that says “must walk across the warehouse” would screen out an applicant whose disability prevents walking, even if the applicant could navigate the warehouse just as effectively using a mobility device. Requirements written in this way are called method-based requirements.
The ADA-compliant alternative is outcome-based language, which describes what the job requires an employee to accomplish rather than how to accomplish it. Rewritten in outcome-based language, “must walk across the warehouse” becomes “must be able to travel across the warehouse.” The table below shows how other common method-based requirements translate to outcome-based language.
| Method-Based | Outcome-Based |
| “Must be able to read printed reports” | “Must be able to review and interpret written reports” |
| “Must be able to write notes during meetings” | “Must be able to record information during meetings” |
| “Must be able to stand at a workstation for eight hours” | “Must be able to remain at a workstation for a full shift” |
| “Must be able to carry boxes between floors” | “Must be able to transport materials between floors” |
| “Must be able to drive to client sites” | “Must be able to travel to client sites” |
Medical Questions in Hiring: a Three-Stage Rule
The ADA restricts when an employer can ask disability-related questions or require a medical exam, and the rules change at each stage of the hiring process.
Stage 1: Before an Offer Is Extended
Employers are prohibited from asking disability-related questions or requiring applicants to undergo medical exams at the pre-offer stage. A question is prohibited if it would reasonably lead an applicant to disclose a disability, regardless of how the question is worded. A question about how many sick days an applicant took last year is prohibited, whether or not the hiring manager intended it as a disability-related inquiry.
At this stage, questions need to stay focused on the applicant’s ability to do the job. An employer may ask whether an applicant can meet the physical demands of a position and verify that the applicant holds any credentials the role requires. An employer may also ask the applicant to explain or demonstrate how they would handle a specific work task.
The table below shows common prohibited pre-offer questions alongside the ADA-compliant alternative for each.
| Prohibited | ADA-Compliant Alternative |
| Do you have any disabilities? | Can you perform the essential functions of this role with or without reasonable accommodation? |
| What prescription medications do you take? | Is there anything that would prevent you from performing the duties of this role? |
| Have you filed for workers’ compensation? | Can you meet the physical demands of this position? |
| How many sick days did you take last year? | Can you meet the attendance requirements of this role? |
| Have you been treated for addiction? | Do you currently use illegal drugs? |
If an applicant has a visible disability or voluntarily discloses one, the employer may ask how the applicant would perform the job, but cannot ask about the nature or severity of the condition.
Stage 2: After a Conditional Offer Is Extended
Once the employer has extended a bona fide conditional offer to the applicant, the ADA permits the employer to ask medical questions or request that the applicant undergo a medical exam. To prevent employers from singling out applicants with known or suspected disabilities, the ADA requires the employer to ask the same medical questions and require the same exams of every applicant who receives a conditional offer in the same job category.
An employer can only withdraw an offer if the medical findings show the applicant cannot perform the essential functions of the role even with reasonable accommodation, or poses a direct threat to the health and safety of others.
Stage 3: After Employment Begins
Once an employee has started work, an employer can only ask disability-related questions or require a medical exam if there is an objective, reasonable basis to believe a medical condition is affecting the employee’s ability to perform the job, or that the employee poses a direct threat to the health and safety of others. For example, an employer who observes a sustained decline in an employee’s performance and has reason to believe a medical condition is the cause can require the employee to undergo a fitness-for-duty exam.
Accommodation Obligations During the Hiring Process
The ADA requires employers to provide reasonable accommodations to qualified applicants with disabilities during the hiring process, not just after someone is hired. A reasonable accommodation is any modification to the hiring process that enables a qualified applicant with a disability to participate on equal footing with other applicants. An applicant with a disability is generally responsible for requesting a reasonable accommodation, but an employer whose hiring process creates an obvious barrier for an applicant with a visible disability has an obligation to address it without waiting for a formal request.
An employer’s duty to provide a reasonable accommodation arises when an applicant requests one, or when the employer has reason to believe the applicant’s disability creates a barrier to participating in the hiring process. An employer whose online application portal cannot be accessed by a blind applicant using assistive technology, or whose pre-employment tests cannot be modified for an applicant who needs extended time, is in violation of the ADA before the hiring process has even begun.
Examples of accommodations an employer may be required to provide at the hiring stage are:
- Sign language interpreters for interviews
- Written materials in large print or Braille
- A physically accessible interview location
- Modified format or extended time on employment assessments
- Assistive technology access during testing
The Interactive Process
When an applicant requests a reasonable accommodation, or when the employer has reason to know one is needed, the ADA requires the employer to engage in an informal dialogue to identify what aspect of the hiring process the applicant’s disability prevents them from accessing and what modification would remove the obstacle. An applicant does not need to mention the ADA or use the words “reasonable accommodation” to trigger the employer’s duty to engage in the dialogue.
The ADA treats the employer’s duty to engage in the dialogue as a standalone obligation, and an employer who refuses to participate violates the ADA even if any accommodation would have ultimately been denied as an undue hardship.
The Undue Hardship Defense
The ADA does not require employers to provide every accommodation an applicant requests, and an employer can decline to provide one that would cause an undue hardship, or significant difficulty or expense. The burden of proving undue hardship falls on the employer, and the analysis is conducted case by case based on the cost of the accommodation relative to the employer’s total financial resources and whether the accommodation would fundamentally alter business operations.
AI Hiring Tools and ADA Liability
An employer who delegates hiring decisions to an automated screening tool cannot use the tool as a shield against ADA liability. A video interview platform that scores eye contact and vocal tone may systematically screen out applicants with autism or speech impairments, and a game-based test that requires rapid clicking or precise mouse movements may disqualify applicants with physical disabilities who are otherwise qualified for the role. Before adopting any automated screening tool, employers should ask the vendor whether the tool has been tested for bias against applicants with disabilities and confirm that applicants who cannot use the tool have a way to complete the hiring process without it.
How Conn Maciel Carey LLP Can Help
Conn Maciel Carey LLP’s Labor & Employment Practice advises employers on ADA co