Accommodations in the Application: Job Seekers’ Protections Under the ADA and NJLAD

Most employers are aware that they are required to provide reasonable workplace accommodations to employees with disabilities under the Americans with Disabilities Act (ADA) and New Jersey’s Law Against Discrimination (NJLAD). But did you know that those protections also apply to applicants during the job application process?

Under the ADA and NJLAD, New Jersey employers are required to provide reasonable accommodation during the job application process to a qualified prospective employee, i.e. an employee who is capable of performing the “essential functions” of the position either with or without a reasonable accommodation. Examples of such accommodations are moving a job interview from the second floor of a building to the first floor when a person confined to a wheelchair is interviewing for the position and there is no elevator access to the second floor, or allowing a person with MS to wait inside in the air conditioning to fill out a job application when all other applicants are made to form a line outside in the summer heat, or providing someone with a learning disability with extra time or modified testing format to take a pre-employment test. However, only “qualified” applicants are entitled to such accommodations.

Applicants who are ultimately unqualified for the position in question are not entitled to reasonable accommodation during the application process, even if they are disabled under the ADA and NJLAD. Their disability, however, may not serve as the basis for the employer’s determination that they are unqualified. Therefore, employers should update job postings to ensure that the qualifications for the position are clearly articulated to attract only qualified candidates who possess the requisite skill, experience, and education to perform the job, even if the otherwise qualified candidates happen to have a disability.

Failure to hire a person with a disability in favor of a more qualified candidate is not in and of itself a violation of the ADA and NJLAD. However, failing to hire someone because of their disability is an actionable violation of both statutes and may result in costly discrimination litigation. The complexity and fact-sensitive nature of such situations is what makes it important to consult with an experienced labor & employment attorney when confronted with these issues.

About the Author

Robert Devaney, an associate with the firm, concentrates his practice in labor & employment law, education & school law, and family law. Robert focuses a large part of his practice on working with Military Veterans with their labor, employment, and family law matters. Having served in the United States Marine Corps for nine years before receiving his Honorable Discharge, Robert has a unique understanding of the issues that Veterans face in these areas. For example, he serves as legal counsel to the New Jersey Veterans Network and is Vice President of the New Jersey State Veterans Chamber of Commerce.