In the last month or two, the Equal Employment Opportunity Commission (EEOC) has issued additional explanatory documents concerning two aspects of the Americans with Disabilities Act (ADA). The first of these documents, entitled Questions and Answers about the Association Provision of the Americans with Disabilities Act, addresses protections given to applicants and employees regarding people they associate with who have a disability. The second document, entitled Questions and Answers about Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act, explains various issues concerning applicants and employees with visual impairments. What are some of the implications of these documents for managers responsible for interviewing and hiring job candidates?

An often overlooked part of the ADA protects applicants and employees from discrimination based on their association with people who have a disability. An applicant who has a spouse or child, for instance, with a disability cannot be refused employment on that basis. However, the person with whom the applicant or employee associates does not have to be a family member. For example, if an applicant does volunteer work with an organization that helps individuals who have AIDS, an employer cannot refuse to hire the applicant because of those activities.

Because an employer will be considered to be acting in a discriminatory way if an applicant is turned down for a job due to an association with others who have a disability, it is important that interviewers be informed of problematic interview questions. Interviewers must be very cautious in asking such questions as:

1. "Tell me about your family." Aside from other problems with this kind of question (e.g., it may reveal the number of children an applicant has or whether the applicant is married), it may get the interviewer into problematic areas, such as a spouse or child with a disability, which could lead to ADA problems, as noted above.
2. "Describe the kind of interactions you had with people from this organization." Any kind of question about volunteer work that the applicant performed must be dealt with cautiously, so that you avoid leaving the impression that an association with people with disabilities was the reason for an adverse employment decision. Unless clearly job-related, it is probably best to avoid probing into the activities performed by an applicant on a volunteer basis. If you must delve into this area, be careful to avoid questions that shed a negative light on those activities.

The second area recently addressed by EEOC concerns visual impairment. Visual impairments can be somewhat tricky under ADA, as not all visual impairments will be considered a disability. Specifically, EEOC notes that a visual impairment is a disability if: (1) it substantially limits a major life activity; (2) it was substantially limiting in the past (i.e., if an individual has a "record of" a substantially limiting impairment); or (3) an employer "regards" or treats an individual as having a substantially limiting vision impairment. As with any other disability, EEOC prohibits the asking of certain questions before making a job offer. Specific examples provided include: "Have you ever had eye surgery?" "Do you use any medications for your eye?" and "Do you have any conditions that may have caused your eye problem?.

The EEOC document does note, however, that an employer may ask all applicants whether they can meet job-related requirements. Further, an employer may conduct non-medical tests that require the use of vision and that measure the applicant's ability to perform job-related functions. In terms of the latter, the EEOC document specifically states that an employer who runs a warehouse may ask all applicants if they can read the labels on products so that they can be stocked in the appropriate places, or may ask each applicant to demonstrate that he or she can perform this function.

Finally, the document notes that if a disability is obvious, or if an applicant discloses that he or she has a visual disability, and the interviewer believes the applicant will require a reasonable accommodation to perform the job, the employer may ask whether the applicant will need a reasonable accommodation and, if so, what type of accommodation will be needed.

Once a job offer has been made, the ADA allows an employer to inquire about and even conduct medical examinations for job-related impairments. It is important to observe, however, that an employer may not withdraw an offer from a person whose vision impairment is a disability, unless it can demonstrate that the applicant is unable to perform the essential functions of the position, with or without a reasonable accommodation, or that the applicant will pose a direct threat to safety.

It is becoming increasingly clear that interviewing can no longer be taken for granted. Even "small talk" initiated by an interviewer with the goal of relaxing the applicant can lead to inappropriate questions. In the absence of careful planning and appropriate guidance, employers increase their risk of discrimination claims. Interviews should be designed ahead of time, with questions carefully prepared and reviewed for job relatedness and legal appropriateness. Interviewers should be trained and refresher materials should be presented to them on a regular basis. Interview guidelines should be updated as appropriate and the interviewers informed of any changes.