Can I ask how long a prospective employee can stand?
April 29, 2008 10:23 AM   Subscribe

OK. Hiring questions. Is it legal to ask whether an employee can stand for long periods of time if the job demands it?

I am hiring for a basic administrative position that requires a lot of collating papers (we're talking 1000s of booklets a week). Is it permitted to ask prospective applicants whether they can stand for long periods at a time, or if they have 'a physical condition' which would prevent them from completing this task (i.e. carpal tunnel)? I've seen ads that specify how much a person can lift, and I think this is along the same lines.

I really want to be fair in my hiring practices, not just for legal reasons but because I think it is one of the the great moral minefields. But I'm new to this. We're in Illinois.
posted by bdizzy to Work & Money (29 answers total)
 
IANAL, but I think you have to make reasonable compensation for people's disabilities. So is a chair reasonable?
posted by Gungho at 10:30 AM on April 29, 2008


Get an employment lawyer. Do it now. If you cannot afford an employment lawyer, you cannot afford to do business at all, and you especially cannot afford to be sued. A good employment lawyer will be able to answer your question quickly and inexpensively. Do not accept any legal advice you receive here. If you need help finding an employment lawyer in your jurisdiction, send me a MeFiMail.
posted by The World Famous at 10:31 AM on April 29, 2008 [1 favorite]


You should follow The World Famous's advice, but from a common sense perspective it seems fair to ask whether or not the person is capable of actually doing the job for which you are hiring them in a satisfactory manner.
posted by BobbyDigital at 10:37 AM on April 29, 2008 [1 favorite]


Employment and discrimination law rarely adheres to common sense. Get a lawyer.
posted by 0xFCAF at 10:39 AM on April 29, 2008


As I understand it, if a task is necessary to the fulfillment of the job description, you can ask about whether they can complete the task, but the focus of your question has to be whether they can do the task rather than on their abilities. The frame for it is whether they can accomplish the work you need to have done, not whether they can stand up or not, etc.

I hire for jobs where we stipulate that people have to have "auditory comprehension and speaking ability sufficient to carry on a two-way conversation," and have to be "able to traverse uneven ground/rough terrain." How they do it isn't something I can be concerned with, according to our counsel, as long as they can do it. If they traverse the terrain in a wheelchair, it's all good. If they are hearing-impaired, it's okay as long as correction with hearing aids, lip-reading, etc, allows them to have the conversation.

The way I handle this is to list all the capacities needed right there in the job description. When I arrange to interview someone I email them the job description (or in some cases send it by mail), and then, in the interview, go over it point by point and allow them to bring up any questions as we go.

Prospective employees might ask you for a "modification" which would allow them to meet the job description. They are invoking ADA when using that language - the American Disabilities Act. There are some resources on the site I linked for employers on the requirements of ADA. Generally, it is incumbent upon employers to make "reasonable" accommodations when requested to by employees.For instance, if the job you have to offer could conceivably be done by someone sitting in an office chair with wheels, and completed in an amount of time that doesn't unduly hinder you as an employer, you as an employer would be required to make those modifications. Now, I'm not sure whether you are required to make them in the hiring process or only after hiring someone. I am hoping someone who is AL will come along and clear me up where I'm fuzzy, here.

Also, if you use a payroll company to cut your checks, some of those companies offer a certain amount of free HR consulting with your contract. You could call them to check. You don't say what sort of business you're in, but if it's a nonprofit, do you have a lawyer on your board? And if it's not, do you have a lawyer on retainer? And if you are a small business, maybe you'll find help from the SBA's guide??
posted by Miko at 10:41 AM on April 29, 2008 [1 favorite]


American Disabilities Act.

Oops, that should be the Americans With Disabilities Act.
posted by Miko at 10:43 AM on April 29, 2008


Ooh, we just addressed something similar in my employment law class, but IANAL, so I'm just speculating based on the text.

According to the text my class was assigned (Employment Law: New Challenges in the Business Environment, 3rd Ed.) p.33:
An employer may not require an applicant to state whether he or she has a disability or to submit information concerning the disability. . . However, the employer may require the applicant to undergo a physical or mental examination to determine whether the person has the ability to perform the job. The examination must relate only to the essential job-related functions and must not be a fishing expedition. It must be required of all applicants, not just those with a perceived disability.
So, as far as I can tell, you can ask if they're able to stand for long periods of time, but you can't ask if they have any physical conditions that would prevent them from completing the tasks, since that would be asking about disabilities, etc. You can, however, have them perform a task or test to see if they can physically handle it, but it must be required of all applicants.
posted by Verdandi at 10:47 AM on April 29, 2008


IANAL (and you should get one!), but why not phrase it as, "This job requires {various things} and standing for a long period of time. Are you able to perform these tasks?" Thus you're not probing for a specific medical issue, but rather asking them to confirm that they're able to fulfill the set of job requirements? I don't know if this is specifically legal, but it seems less questionable than just asking if they're able to stand for long periods of time.
posted by fogster at 10:49 AM on April 29, 2008


Verdandi's section is good, but not interpreted quite as I've been trained to. Where it says:

whether the person has the ability to perform the job. The examination must relate only to the essential job-related functions and must not be a fishing expedition. It must be required of all applicants, not just those with a perceived disability.

It shouldn't be taken to mean "Can you stand for long periods of time?" but "Can you collate X stacks of paper in X amount of time?" The collating is the essential job-related function, not the standing.
posted by Miko at 10:52 AM on April 29, 2008 [1 favorite]


What Miko has said jives with my understanding of the law, although I agree with others that you are way deep into a minefield here. Get a lawyer.

It doesn't seem like the ability to stand is really a bona fide occupational qualifcation (BFOQ) if the task is sorting paperwork. It could be, but that depends on some pretty specific stuff, including whether it would be possible to re-engineer the task in such a way so as to accomplish it from a seated position, etc. The difficulty of accommodating someone may feed into it also: if the work is just sorting and collating, that's easier to do seated than if it's sorting, collating, and shelving, where the accomodation would potentially involve completely replacement of the shelving system.

What exactly constitutes a BFOQ is a really complex question, and you need to get it hammered out with counsel before you start asking any prospective employees possibly-discriminatory questions. Given that there are a lot of disabilities and age-related conditions that may make it difficult for someone to stand for a long time, that seems like a pretty tricky question.
posted by Kadin2048 at 11:15 AM on April 29, 2008


Can't hurt to get it from the horse's mouth -- From the Equal Employment Opportunity Commission: ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations:
Under the law, an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This helps ensure that an applicant's possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant's non-medical qualifications. An employer may not ask disability-related questions or require a medical examination pre-offer even if it intends to look at the answers or results only at the post-offer stage.

Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:
* Employers may ask about an applicant's ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.

* Employers may ask about an applicant's non-medical qualifications and skills, such as the applicant's education, work history, and required certifications and licenses.

* Employers may ask applicants to describe or demonstrate how they would perform job tasks.
Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category. If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.
posted by pardonyou? at 11:34 AM on April 29, 2008 [1 favorite]


Here in Illinois it is not illegal, in construction/manufacture etc, its often put in the want ad itself.

"Must be able to stand for 8 hours, lift over 50 lb etc."
posted by Max Power at 11:50 AM on April 29, 2008 [1 favorite]


Someone above probably already said this (but in more words), but basically, if an employee can do their work with reasonable accomodation, their disability should not keep them from getting the job. Could your papers be coallated while the employee is sitting in a chair (maybe a tall chair, if it's at a counter or something)?
posted by LolaGeek at 11:56 AM on April 29, 2008


If you're clever about this, you should be able to obtain your answer without even asking the question.

When the person walks in, you should be able to immediately assess if they have any significant disabilities. If they do, go through the motions of a verbal interview anyway but don't take it to the next level. For an able-bodied person, you conduct the rest of the interview standing. Preferably in the actual location of their work, so you can give them a dry-run. Make it a long interview and see if they wilt.

Anyway, I would advise you to give reasonable candidates (i.e. someone with the right attitude, aptitude, work ethic, and character) the opportunity to start the job even if they appear to fatigue after standing for more than 15 minutes or so. I had been at the desk for most of my professional life, then recently took a job that required me to be standing all day. The first few days were tiring, but I adapted within two weeks.

It shouldn't be a deal-breaker, because people can become fit much more easily than they can become honest, smart or hard-working.
posted by randomstriker at 12:12 PM on April 29, 2008


Oh, and I am soooo much healthier these days, now that my job requires to be on my feet. Desk work really destroys your body. Humans were not made to inhabit cubicles.
posted by randomstriker at 12:16 PM on April 29, 2008


I'd be careful using randomstriker's method, as it's no guarantee at all. It would rule out only the most visually obvious forms of disability, which are only a fraction of all disabilities across the spectrum of humanity.

There are any number of kinds of disabilities that people can legally claim, and not all of them would prevent someone from standing for 15 minutes. With some conditions, you can stand on some days but not on others due to joint pain, balance problems, fatigue, etc. With some conditions, you can stand for a short time but not for a long time. Sometimes they are able to stand, to gut it out for a while, but can't do it or are advised not to do it all day long. This is true not just for standing but for any number of disabilites. There are psychological, hidden, sporadic, intermittent and acute forms of disability as well as obvious physical challenges.

There is a real fallacy that disabilities can be 'seen' or tested for in short encounters like this. As someone who's managed people for a while, I've learned that you can't. Over time, you'll be approached by people who reveal something really significant that you would never have known - and they're entitled to protection under the law.
posted by Miko at 12:49 PM on April 29, 2008 [2 favorites]


Why don't you just tell them "this" is what the job entails? If you're overtly honest about what a job is, and what you expect from a candidate, then those who can't deal won't continue. I've gone on interviews where the recruiter really dissed the job.

Some of my favorites:
We don't pay enough...
This is a stressful, crazy and unorganized environment...
Customers will yell at you...
You will have to stand for your entire shift...
This is a very tedious job...
You will get bored...

Ask them how they would handle the job task and look for them to back it up with an example of something similar they had to do before. You can get the answer whithout asking a direct question.
posted by thewalrusispaul at 1:09 PM on April 29, 2008


When the person walks in, you should be able to immediately assess if they have any significant disabilities. If they do, go through the motions of a verbal interview anyway but don't take it to the next level.

I'm pretty sure this would constitute discrimination and could get you sued. So don't do this.
posted by hydropsyche at 1:28 PM on April 29, 2008


hydropsyche is correct that the "bring them in to see if they're a cripple and if so, can them" is pretty much exactly what employment discrimination law is meant to prevent. Don't do that.
posted by LobsterMitten at 2:01 PM on April 29, 2008


I'm pretty sure this would constitute discrimination and could get you sued.

Of course it's discrimination. Is it unwarranted discrimination? Unethical discrimination? Illegal discrimination? Likely none of the above, and certainly impossible to prove / sue for. Employers skirt the rules all the time.

I will concede to Miko that my advice is not foolproof. But then no hiring process is, and a certain percentage of new hires will always turn out to be duds.
posted by randomstriker at 2:28 PM on April 29, 2008


This is a legal question to ask, in some jurisdictions, for some jobs.

I was asked this question prior to taking a job as a grocery store clerk. I was asked this question (as well as the "lift 50 pounds?") question for my current job.

This does not mean that it is legal in your jurisdiction for your job.

Also, you can collate booklets sitting down, lying down, or tripping balls on acid. I know, as I did all three while working at Kinko's, collating thousands of booklets a night.
posted by klangklangston at 2:52 PM on April 29, 2008 [1 favorite]


Get an employment lawyer. Do it now. If you cannot afford an employment lawyer, you cannot afford to do business at all, and you especially cannot afford to be sued.

I'm about to post a message to an internet-based community blog website, in which I disagree with one of the previous posters. Do you think that I should get a lawyer, just to be on the safe side?

More to the point, the people who cannot afford to be sued are actually the least likely to be sued. Why on earth would you sue someone who cannot even afford a lawyer?
posted by sour cream at 3:03 PM on April 29, 2008


Of course it's discrimination. Is it unwarranted discrimination? Unethical discrimination? Illegal discrimination?

According to the law, yes, all of the above very well could be if run the way you suggest - especially if this posting was discovered and interpreted as an intent to exclude people with disabilities. It's like LobsterMitten says: the law is designed to be as fair as possible to both parties. The employer is supposed to be entitled to hire people who are capable of getting the job done. And employees are entitled to the opportunity to work, if they are capable of doing the job and are selected to do the job. If someone is capable of doing the job without undue burden on the employer and would be selected to do the job based on all other criteria as well, then there's no other reason but discrimination not to hire them.

Though I know the specific parameters for my own hiring, they were determined with legal counsel, and those who say you need a consult here are absolutely right. As you can see, this forum will get you varied answers, some of which would endanger you legally if you used them. Run this all by a lawyer before you design the interview process and finalize the job description.

the people who cannot afford to be sued are actually the least likely to be sued. Why on earth would you sue someone who cannot even afford a lawyer?


If only that were true. People do it so they can get an out-of-court settlement. People who can't afford a lawyer themselves will sue you, let alone worry about what you can afford. You never know who's got a brother-in-law, or what assets are under somebody's business name.

It's amazing what the courts feel a person/institution owns when even that person/institution doesn't feel like they can afford stuff.

Besides, the kind of consult needed for this isn't a full-time lawyer. It's a few hours' time.
posted by Miko at 3:43 PM on April 29, 2008


i have held jobs in the past with requirements like "must be able to lift X number of pounds" and other physical evaluations like that. you can;t be forced to hire somebody who is physically incapable of performing the job.
posted by swbarrett at 3:48 PM on April 29, 2008


Here's a page showing the steps someone might take if they thought discrimination was happening. Another good reason to talk to your own lawyer is inside:
Individuals with disabilities also may be protected by their state anti-discrimination laws, some of which are more stringent than the federal laws.
Also important to note, when considering whether someone can afford to sue you:
Q. What can an individual do if s/he believes that s/he has been discriminated against in employment in violation of Title VII?

A. That individual should contact the Equal Employment Opportunity Commission (EEOC) to find out whether s/he may file a charge. Congress has designated the EEOC as the federal agency responsible for investigating individual charges of discrimination under Title VII. Individuals who are federal employees, or applicants for employment with a federal agency, must file a charge with the equal opportunity office of the federal agency.

Q. What is the relationship between the EEOC and the U.S. Department of Justice?

A. If the EEOC, after investigating a charge of employment discrimination filed against a state or local government employer under Title VII, or the Americans with Disabilities Act determines that there is reasonable cause to believe a violation of the law has occurred and conciliation efforts are unsuccessful, the EEOC will then refer the charge to the Department of Justice. The Department of Justice will either initiate litigation on the charge or issue a notice of right to sue to the charging party, which entitles the charging party to file his or her own lawsuit in court.
posted by Miko at 3:49 PM on April 29, 2008


I'm about to post a message to an internet-based community blog website, in which I disagree with one of the previous posters. Do you think that I should get a lawyer, just to be on the safe side?

I don't think so, no. But if you are an employer trying to determine how to lawfully make hiring decisions and interview candidates, you should lawyer up.

More to the point, the people who cannot afford to be sued are actually the least likely to be sued. Why on earth would you sue someone who cannot even afford a lawyer?

Exactly. Employers are, by their very nature, likely to be sued, and they can afford a lawyer. They should get a lawyer, because they cannot afford not to have one. People who believe that they have been victims of discriminatory employment practices tend to assume that the prospective employer has enough money to hire a lawyer and be sued. In fact, in some jurisdictions, a corporate entity cannot proceed pro se.
posted by The World Famous at 5:23 PM on April 29, 2008


Of course it's discrimination. Is it unwarranted discrimination? Unethical discrimination? Illegal discrimination? Likely none of the above, and certainly impossible to prove / sue for. Employers skirt the rules all the time.

As others have said and cited caselaw to support, judging for yourself by looking at someone that they are too disabled to do a secretarial job that might require them to stand up for a long time, without asking about the disability to confirm that your judgment is correct or attempting to make reasonable accommodation even if it is, is both unwarranted and illegal. Someone who suspected you of this would have grounds both for suit and for pursuit of a claim through the EEOC. And if they saw this thread on the internet they would have quite a case indeed.

It's also unethical, because, unless you yourself are an expert diagnostician of human physiology and pathology you can't possibly make that judgement by watching somebody walk into a room.

And as someone with a good friend with cerebral palsy who also happens to be the hardest working person I've ever met as well as one of the smartest, making those kinds of snap judgments about a prospective employee based on appearance is a real asshole thing to do that could mean your losing out on a great employee.
posted by hydropsyche at 6:31 PM on April 29, 2008


Ugh. If someone can't walk, they aren't going to be able to be a tree trimmer. So there are scenarios where just looking at someone is expositive of their ability to perform the job.

It is legal to ask that question, IF standing is a necessary part of the job. You need to determine whether it is or not.
posted by gjc at 8:00 PM on April 29, 2008


You really don't need a lawyer's advice to prepare on how to handle a simple issues like this, or most other ones that could come up in interviews -- just some basic human resources knowledge.

First off, know that as the potential employer, you CAN talk about the functions and requirements of the job during the interview, and then you CAN ask an applicant if they are capable of fulfilling these requirements in an appropriate manner.

So - during the first part of the interview, you need to describe the type of work they'd be doing in this position. Talk about how much standing and lifting there is, along with other requirements, using specifics ("be able to lift 50 pounds;" "stand 8 hours;" "operate forklift;" "travel out of town for 2 or more nights 3 - 4 times per month;" "drive to client's locations in a personal car"). Of course, these need to be real and valid requirements and if they are that important to the position, then you should make sure that they are included in the written job description for the position you are hiring for.

Then, it is OK to ask any of these questions during an interview:
-Can you perform the essential functions of this job as I described, with or without reasonable accommodations?
-Can you meet the attendance requirements of this job?
-Can you fulfill the travel expectations of this position?
-Do you have the required licenses to perform this job?

You should ALWAYS type up the interview questions you'll be using in advance, so that you have that for reference. And, you want to ask each candidate you interview the same questions. You should also take notes during or after each interview, so that it is clear that your final candidate was selected for non-discriminatory or non-biased reasons. Make sure that from your notes you can compare things like prior work experience, extent of college education/life experience, customer service skills, filing skills, and attitude, initiative and interest expressed by the candidate. Documentation of of your interview process and decision making is what will protect you and your company against potential discrimination suits (not consulting a lawyer).

And, it is important to know that there are a lot of questions you CAN'T directly ask interview candidates. A number of questions you can't ask are related to ADA, such as things like:
-Do you have a disability?
-Do you have a disability that would interfere with your ability to perform this job?
-How many sick days did you take last year?
-Have you ever filed for worker's compensation?

There's also a number of questions you CAN'T ask that are unrelated to ADA, but are personal questions. I don't have a full list of those in front of me but I know it includes things like:
-Do you have children?
-Are you married? Single?
-Are you planning on having children? When?
-How old are you? (Now, remember, you can legally say: Head Counselors must be 18 years of age or older by the first day of camp. Can you fulfill this requirement?

Keep in mind that many interviewers do find out these details about candidates through legal, indirect questions, like: "So what did you do this weekend?" When the candidate answers by saying "I took my child(ren) to the playground," the potential employer has now learned the candidate has a small child. Whenever you interview just be conscious of what you do - or don't say - when interviewers are making small talk.

Anyways, if you are the point person responsible for interviewing candidates for any type of job, it is well worth it to read up on this topic and know what you can and can't ask. I went back and reread one of my HR text books - Human Resources Management for Public and Nonprofit Organizations by Joan Pynes - to make sure I worded those questions you can ask correctly. And, if you really want to learn more about employment discrimination, the best place to start is usually your state agency responsible for managing discrimination complaints - here in Pennsylvania, that's called the Pennsylvania Human Resources Commission (PHRC). I'm sure you have a similar agency in Illinois that has free education materials you can review.
posted by buttercup at 8:49 PM on April 29, 2008 [4 favorites]


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