The law that's watching your interview, not just your offer

Most employers think of the Americans with Disabilities Act (ADA) as something that kicks in after someone is hired — desk setups, leave, accommodations on the job. But the ADA governs the hiring process itself, and that's where small employers most often trip. What you ask a candidate, when you ask it, and how you respond when someone needs an adjustment to interview are all regulated. A single poorly-worded question on an application can hand a rejected applicant a discrimination charge, even when the actual hiring decision was sound.

This is a practical recruiter-and-HR guide, not legal advice. The ADA applies to employers at or above a federal employee-count threshold, many states extend similar protections to smaller employers, and the details are genuinely fact-specific — so confirm coverage and close calls for your situation with counsel.

The cardinal rule: no disability questions before a conditional offer

The single most important ADA hiring rule is about timing. Before you've extended a conditional job offer, you generally may not ask about disabilities at all — not directly, not indirectly. That means no questions like:

  • "Do you have any medical conditions or disabilities?"
  • "Have you ever filed a workers' comp claim?"
  • "How many sick days did you take at your last job?"
  • "Are you currently taking any medications?"

What you can do at any stage is ask whether the candidate can perform the essential functions of the job, with or without reasonable accommodation. The distinction is everything: you may ask "this role requires lifting 40 pounds repeatedly throughout a shift — can you do that?" You may not ask "do you have a back problem?" The first is about the job; the second is about a disability, and it's off-limits pre-offer.

This is exactly why writing a clean job description that spells out the genuine essential functions matters so much — those functions are the only lawful frame for ability questions, and they're what a defensible decision rests on later.

Essential functions vs. marginal ones

The ADA turns on essential functions — the core duties that define why the job exists — as opposed to marginal tasks that are incidental. You can require that a candidate be able to perform the essential functions (with or without accommodation); you generally cannot screen someone out over a marginal task they could hand off.

Getting this right starts before you post the role:

  • Decide what's truly essential, in writing, when you build the req. If a duty is genuinely core, document it. If it's "nice to have" or rarely done, it's probably marginal — and treating it as a hard requirement is where exposure starts.
  • Don't inflate requirements out of habit. "Must be able to stand for 8 hours" on a desk job, or a blanket driver's-license requirement for a role that almost never drives, are the kind of unexamined requirements that produce disparate-impact problems against people with disabilities.

The same discipline that keeps knockout screening questions defensible applies here: every requirement you screen on should be genuinely job-related and consistent with business necessity.

Accommodating the application and interview itself

The ADA's accommodation duty reaches the hiring process, not just employment. If an applicant needs an adjustment to apply or interview, you generally have to provide a reasonable one — barring undue hardship. Common examples:

  • A candidate who's deaf requesting a sign-language interpreter or written questions for the interview.
  • A blind applicant needing an accessible version of an online application or a skills assessment.
  • Extra time or a different format on a timed test for someone whose disability affects the standard setup.
  • An alternative interview location or remote option for a mobility-related need.

You don't have to guess at any of this. The right move is to invite accommodation requests proactively — a simple line in your scheduling email ("if you need any accommodation for the interview, let us know") — and then engage when someone asks. Build accessibility into your assessment design from the start rather than bolting it on when a request lands.

The interactive process: a conversation, not a verdict

When an applicant (or new hire) requests an accommodation, the ADA expects an interactive process — a good-faith back-and-forth to find a workable adjustment. It is not "approve or deny." It's:

  1. The person identifies a barrier and requests help (no magic words required — they don't have to say "ADA" or "accommodation").
  2. You discuss the limitation and what would address it. You may ask for reasonable documentation of the need when the disability or limitation isn't obvious — but you stay focused on the functional need, not a fishing expedition into their medical history.
  3. You identify options together and provide a reasonable one. You get to choose among effective options; it doesn't have to be the candidate's first pick, but it does have to actually work.

The legal pressure-release valve is undue hardship — significant difficulty or expense judged against your size and resources. It's a real defense, but a narrow one, and "it's a little inconvenient" doesn't clear the bar. Document the interactive process either way: the conversation, the options considered, what you provided and why.

Where small employers actually get burned

The expensive mistakes cluster predictably:

  • Pre-offer medical questions buried in the application or background-check flow. Review every form a candidate touches and strip anything that probes health, disability, or workers' comp before the conditional offer.
  • Conditioning offers on a medical exam done wrong. Post-offer medical exams are permitted only if you require them of all entrants in the same job category — not just the candidate you're worried about — and the results are kept confidential and separate.
  • Treating an accommodation request as a red flag. Withdrawing interest or souring on a candidate after they ask for an interview accommodation is textbook retaliation. The request itself is protected.
  • Inconsistent handling. Granting accommodations for some candidates and brushing off others is both an ADA problem and a fairness problem — and it looks terrible next to your retained hiring records.

Bottom line

The ADA isn't a post-hire concern — it shapes what you may ask, when, and how you respond to a request from the first application onward. Anchor every ability question to documented essential functions, keep all disability and medical inquiries on the correct side of the conditional offer, invite accommodation requests up front, and treat each one as an interactive conversation you document. Apply it identically to everyone. When essential functions live in the job description, accommodation steps are tracked tasks in one pipeline, and your decision records are organized rather than scattered, an inclusive, defensible hiring process is the default instead of a scramble.