Can We Discriminate in Favor of People with Disabilities?

Dear Rita: Our agency serves clients with mental health needs, and we like to provide employment opportunities to individuals with mental illness. Can we say in the job advertisement for peer counselor that the applicant should have a mental illness? We are doing this not only to provide employment opportunities to individuals with mental illness, but also so our counselors will better understand the challenges facing their clients. Is it lawful to give preference in hiring to applicants with disabilities? Signed, Confused

Dear Confused:

The short answer is yes, if you're careful.

The Americans with Disabilities Act (ADA) only protects individuals with disabilities. The ADA does not make it unlawful for an employer to discriminate against an individual because the individual does not have a disability (see 42 U.S.C. § 12112).

According to an October 3, 1995 Guidance Letter from the Equal Employment Opportunity Commission (EEOC), an employer does not violate the ADA by requiring that applicants for a particular position have a disability. Many states have similar laws prohibiting discrimination against individuals with disabilities, but like the ADA, these laws typically do not protect those without disabilities. Find out more about the legal requirements for employers under the ADA

However, proceed carefully. While the ADA does not prohibit employers from affirmatively hiring certain disability groups, you cannot specifically exclude other protected groups or individuals with other disabilities. For example, if you want to hire only people with a history of alcoholism, you can't exclude alcoholics who also have mental illness. In other words, an employer can’t pick and choose which alcoholics to hire on the basis of the other disabilities they may have. In that example, an employer would still have a duty not to discriminate against an alcoholic that also has a mental illness if the individual was otherwise qualified for the position. And the duty to reasonably accommodate other disabilities would still exist.

A problem that employers may encounter with preferential hiring of people with disabilities is that while they can advertise that they want to hire people with certain disabilities, they cannot ask applicants medical questions before making a job offer. Only after having made a job offer can the employer verify that the applicant has the disability.

So, for instance, you could advertise that you’re seeking individuals with mental illness for a counseling position, but during the interview you can't ask the applicant if they have or have had a mental illness. However, it is permissible to show the applicant the job description or describe the job duties and ask what skills or related experience the applicant would bring to the position.

If the applicant voluntarily discloses his or her mental health history that’s fine, but don't ask any direct questions like "What diagnosis do you have?" or "When did your mental illness have its onset?" All questions in the application and interview should be focused on the applicant’s skills and experience related to the job for which he or she has applied. Of course, it always is a good idea to have standard applications and interview questions that are asked of all applicants so that you can have evidence of fair treatment of all during the hiring process. 

Also, nonprofits that have federal government contracts or subcontracts of more than $10,000 for supplies or services must adopt an affirmative action program to employ qualified individuals with disabilities and to advance such individuals in employment under Section 503 of the Rehabilitation Act. The requirement to comply with this law is typically included in the nonprofit’s contract to perform services or provide supplies to the federal government. Read more information about compliance with the Rehabilitation Act

It is really great to hear that organizations are assisting and empowering workers with a history of substance abuse or a developmental disability to overcome barriers to employment. Nonprofits with the mission to assist people with those very challenges are the employers who best understand what is needed -- and sometimes, more importantly, what is not needed -- by these workers.


Comments (6)

  • Does anyone know how this applies to private employers, and if they are allowed to post jobs that target an individual with a disability/disabilities?

    Mar 17, 2011
  • I wouldn't target any particular group but rather add in a statemenet of somewhere along the line of "we encourage applicants from those with (whatever the disability) disability to apply" in the EEO statement section.


    Mar 17, 2011
  • In most cases employment laws don't distinguish between nonprofits and for-profits, so I would think the same guidelines would apply.

    Mar 18, 2011
  • The use of the word "discriminate" in the title is off-putting and misleading. It almost made me not read the content, which I'm very glad I did because the question is not about discrimination at all, but advocacy. This is great information, very well articulated and summarized! And, HR bureaucracy aside, everyone should be following EOE practices because they're important and essential and your org has integrity...not because the government told you that you have to.

    Mar 18, 2011
  • I'm confused...why is this column "Ask Rita" but written by someone named Ellen Aldridge?

    Mar 18, 2011
  • "Ask Rita in HR" is actually written by two HR attorneys: Ellen Aldridge and Pamela Fyfe. Sometimes they write separately; sometimes together, and sometimes they have a guest HR columnist. They both work for the Nonprofits Insurance Alliance Group, and their time writing Ask Rita in HR is donated by NIAG. Hope this helps! Jan

    Mar 18, 2011

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