I work at a law firm for people with disabilities, a law firm that does trainings in every corner of the state. We are continually presented with questions essential to those living with disabilities, and we do our best to address those questions directly. If we can leave our audiences a bit more confident in the protections they have as people with disabilities, we have done our job. I love answering audience questions, and they are important, thoughtful…and frankly sometimes predictable. Does this building need a push plate? Do I have the right to an accommodation, to a comfort animal, to demand a new supervisor? Am I in the right?
We try to answer carefully and responsibly. I speak from my experience as an advocate and investigator. The legal team shares the important duty of looking at protections offered by the law. One question we get consistently has to do with disclosure. Should I report my disability to my employer? In discussing the American’s with Disabilities Act, this is perhaps the most popular question we receive. Nervous job seekers rightfully want to ensure they afford themselves all necessary projections, while never exposing themselves to discrimination without cause. Answering this question is a presentation all on its own, with caveats, asterisks, and all the asides that usually come with these questions. But as an advocate, if I were forced to dilute the answer down to its simplest form, it might look like this:
Title I of the Americans with Disabilities Act is designed to ensure people with disabilities do not encounter discrimination in any phase of the employment process, whether it’s in applying for or working in a position. The law requires that employers interviewing candidates ask only if the candidate can fulfill the essential functions of the job with or without reasonable accommodations. Once you establish you are capable of fulfilling those functions, no further discussion should be expected unless you, unprompted, CHOOSE to raise issues surrounding your disability.
If your disability is not readily apparent, it might make sense to hold off on disclosing until you have the job offer, even if you are confident you’ll need accommodations. This is to protect you from an employer withholding the job offer simply due to prejudices or assumptions surrounding your disability. While denying someone a position based solely on a disability is a violation of Title I, it’s difficult to prove after the fact. Once the job has been offered however, Title I of the ADA entitles you to many additional protections, including a right to an accommodation. The general rule of thumb we offer to those with invisible disabilities is to not disclose in the interview process, but to then disclose during employment should you at any point require accommodations. If you as an employee do not require accommodations, it may make sense to never disclose and thus avoid exposing yourself to potential stigma and discrimination.
While this is not legal advice, nor is it comprehensive to every situation, it does offer a safe, sensible approach to the question of disclosure, one that I would readily adopt if my disability was less immediately apparent. As a person with a disability myself, I know firsthand the fears that can come with the interview process, particularly if the need for eventual accommodations is likely. Every person has the right to decide when and if to share their disability with their employer, or anyone in their circle. Not all people with disabilities will come to the same decision and that is okay. What is important is that all people with disabilities know their rights, and the unique protections offered by the Americans with Disabilities Act.
To learn more about the ADA as it pertains to the interview process, visit: https://www.eeoc.gov/policy/docs/preemp.html