In a recent Q&A on the “Ask a Manager” blog, an individual wrote in to say that she had a genetic disorder requiring the use of a cane for walking and ring braces for finger stability. Although she had been public about her condition with friends and family, both in person and through social media, she was concerned that a job interviewer might view her ring braces as a form of costume jewelry inappropriate for an interview setting and, presumably, hold that against her. She did not believe that removing the ring braces for the interview was the best approach, both because they would be necessary in the performance of the job(s) for which she would be applying and because she felt that doing so “erased” her disability when she otherwise had embraced it as part of her life. So, the individual wanted to know whether, and if so what, she should preemptively say about the finger braces at the beginning of an interview. “Ask a Manager” suggested that she preface the interview by mentioning that the braces “aren’t evidence of unusual taste in jewelry – they’re supports for finger stability.”  Under the ADA, an applicant in the interview setting may, but is not obligated to, notify a prospective employer of her disability – unless, for example, an accommodation will be needed for the interview process itself. But what are the prospective employer’s options in this situation?

            Let’s put aside for the moment the possibility that the prospective employer may already be aware of this individual’s condition, given that she is “out” about it on Facebook. Under the EEOC’s ADA guidelines, while generally an employer may not ask an applicant whether she has a disability or will need a reasonable accommodation to perform a job, under circumstances where “[a]n employer might know that an applicant has a disability because it is obvious or she has voluntarily revealed the existence of one . . . and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task, then the employer may ask whether she would need reasonable accommodation to perform that task.” [EEOC ADA Guidelines for Job Applicants].

            In the above scenario, the individual is walking into the interview with the use of a cane, a visible sign of a potential disability. Thus, even without the finger braces in the picture, the interviewer may inquire about the individual’s ability for prolonged walking/standing/ stepping/etc. – if those types of tasks are a regular part of the job(s) in question. This, of course, presents a perfect opportunity for the applicant to address not only how, if at all, any accommodation will be needed for mobility issues, but also to mention the purpose of the ring braces and whether any form of accommodation (beyond the mere wearing of the braces) would be needed for her finger stability issues, without the potential clumsiness of bringing it up preemptively. If, however, the job(s) in question would not reasonably implicate the potential need for a mobility accommodation (e.g. sedentary desk jobs), then the interviewer should not make any reference to the cane, the applicant’s condition requiring the use of a cane or any other comments suggesting that the interviewer regards the individual as having a disability. Under such circumstances, a “head in the sand” approach is the recommended course of action, unless and until the applicant – or subsequently the employee – raises the need for an accommodation.

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Photo of David T. Wiley David T. Wiley

David T. Wiley is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Wage and Hour Practice Group, and is based in the Birmingham, Alabama, office.

Mr. Wiley creates and manages legal and electronic resources and materials to provide innovative client services; serves as a resource for other practice group members; monitors and analyzes regulatory and case law developments; and contributes to the firm’s blogs and legal updates. In his knowledge management role, Mr. Wiley draws on more than two decades of training, advising, and representing employers nationwide in federal and state courts and before administrative agencies on a variety of employment-related issues, including collective and class actions and all manner of discrimination and retaliation claims.

He is a regular speaker at employment law and human resources seminars and conferences, including the Alabama State Bar Labor and Employment Law Section’s annual conference.

Prior to obtaining his MBA and law degrees, Mr. Wiley served six distinguished years as an officer in the United States Navy Supply Corps. While attending law school, Mr. Wiley was the Senior Articles Editor for the Georgia Law Review.