What do small business owners need to know about hiring people
with disabilities in Massachusetts?
Betsy.
Small business Owner.
Hi, I'm Betsy.
I own a small business in Massachusetts.
I'd like to tap into the talent pool of people
with disabilities, but it feels a bit intimidating.
I'm worried I'll say, or do something rude or even illegal without meaning to.
Can you give me some tips?
Kass, MOD.
Hi, Betsy.
I work at the Massachusetts Office on Disability.
Our team is happy to give information about disability
rights laws in Massachusetts and what they mean for you.
Betsy.
Small business owner.
Thanks.
My first question is I've heard of the Americans with Disabilities Act
and that it says employers aren't
allowed to discriminate against people with disabilities.
Does that apply to my small business?
I only have six employees.
Kass, MOD.
The Americans with Disabilities Act, or ADA applies to businesses
with 15 or more employees, but a similar Massachusetts law,
Chapter 151 B, applies to employers with six or more employees.
So yes, Massachusetts businesses
with six or more employees have a legal obligation
not to discriminate on the basis of disability.
Most people have heard more about the ADA
since it is a federal law that has more written about it.
The Massachusetts obligations are almost exactly
the same as the ADA.
Betsy.
Small business owner. Okay.
I'm going to be hiring soon.
Do these laws apply to hiring or only once
Someone is actually an employee?
Kass, MOD.
The laws apply to all stages of employment
from advertising a job through an employee
leaving, employers must not discriminate.
Betsy.
Small business owner.
What would be considered disability discrimination
in hiring?
Kass, MOD.
There are three main types of discrimination.
One: worse treatment.
This means treating somebody worse than other people simply because they
have a disability or are associated with someone who has a disability.
If an applicant with a disability isn't qualified
to do a job, you don't have to interview them.
On the other hand, you cannot refuse to interview an applicant
or refuse to hire a candidate because they disclose during
the application or interview process that they have a disability.
All applicants, disabled or otherwise,
should be evaluated on their skills, experience and ability
to perform the essential functions of the job they're applying for.
Declan, MOD.
Two: not providing reasonable accommodations.
If an
applicant is facing a barrier in the application or interview process
because of their disability, they can ask you for an accommodation.
If the accommodation is needed because of the disability
and it's reasonable for you to provide,
you must do so.
The word reasonable is key.
If what they're requesting is too burdensome and you haven't been able
to identify any reasonable alternatives, then you are allowed to deny
the request.
Camille, MOD.
Three: retaliation.
You are not allowed to retaliate against someone for asserting their rights.
For example, you cannot stop considering an applicant
just because they requested a reasonable accommodation
Kass, MOD.
Note that businesses also need to follow
architectural accessibility regulations that apply to their physical spaces.
These regulations define things like accessible signage,
walkways, entrances and parking spaces.
Betsy, Small Business owner.
What should I think about and include when writing my job
postings?
Kass, MOD.
It will help both you and your applicants if you do these four things.
One: clearly describe the essential functions of the job.
That means the core tasks that must be done for that role.
Two: make sure any required
qualifications are actually necessary to do the job.
This ensures you don't screen out
people with disabilities who could do the job perfectly well.
Focus on an applicant's ability to complete the work,
not how they complete it.
Three:
provide practical information about the hiring process.
For example, you might say “there will be a 20 minute screening
phone call, then a one hour interview at our Worcester store
where you'll be shown our layout and asked to make two common drinks.”
This detail is useful for everyone.
It can be particular helpful for people with disabilities
so they can work out if they need to request an accommodation.
Four: tell people
who to contact if they need to request a reasonable
accommodation.
Declan, MOD.
Download the sample job posting and the video description to see what
an accessible job posting that includes these four elements
looks like.
Betsy,
Small business owner.
What sort of accommodations might people ask for
at the application stage?
Declan, MOD.
If you have a paper application,
a common accommodation request would be a digital version
that their computer can read out loud or magnify.
Betsy, Small Business Owner.
How about interviewing?
What are common accommodations that are requested?
Declan, MOD.
It's going to depend on what you're asking them to do.
If you've got rolling chairs, someone might ask
to switch chairs for stability.
If you're doing a half day of interviews, someone might ask to take a five
minute break in the middle.
If there is a
reading task, someone might ask for extra time.
If you have printed materials, someone might ask
for a large print version.
Camille, MOD.
Applicants do not have to disclose a disability
unless they're asking for an accommodation.
Many disabilities are not obvious.
So often you only find out about an applicant's
disability because they're asking for an accommodation.
If you're not sure what exactly they're asking for or what is needed,
ask them what they think they need to participate in the hiring process.
You don't have to be an expert on their disability or what works for them.
That's their job.
It's your job to ask for clarification if you need more information
about what the obstacle is and what would effectively address it.
Just don't ask more than is necessary.
Betsy, Small business owner.
Do you have any best practice tips for how I approach interviewing?
Camille, MOD.
Evaluate all candidates on the same criteria.
You do not have to ask all candidates exactly the same interview questions.
However, it's best practice and works in both your and the candidate's favor
to give all candidates a chance to demonstrate or describe
in a compelling way how they will perform the essential functions of the job.
You can ask the follow up questions and you are allowed to analyze
all candidate's answers with skepticism.
Kass, MOD.
Avoid creating unnecessary barriers for people with disabilities or
asking questions that are intrusive or not directly related to performing the job.
For example, do not ask anyone,
“do you have a disability,
do you have
any limitations that would prevent you from doing the job,
or anything that is likely to give you information
about the diagnosis, severity or treatment of a disability.”
Naomi, MOD.
Here are some tips. One:
focus on what's actually needed for the role.
Design your interview tasks and questions for all candidates to evaluate
how well they could perform
the essential functions of the job based on their skills and experience.
That way, you're not basing decisions on assumptions about what candidates
can or cannot do, and you're not singling someone out for extra
grilling,
Kass, MOD.
For example, a landscaper is hiring workers.
She tells candidates
the interview will be a discussion followed by a practical element.
She asks each candidate about their experience
mowing lawns and trimming hedges, two key job tasks.
Candidate one does not have a disability and has two years
of landscaping experience.
Candidate two
who happens to have a disability does not have any landscaping experience.
The landscaper can turn down candidate two since they are less qualified.
Candidate three has a noticeable limp.
This made the interviewer concerned
that the physical demands of the job would be too challenging,
but she designed the interviews to have a practical element
where she could evaluate candidates performance of a mowing task.
The ease and obvious familiarity that candidate three
had with the tools and the care he took to make his work neat made her feel
he was actually the strongest candidate.
Declan, MOD. Two:
if it isn't essential that a task is done a particular way,
look at the outcome rather than how someone achieves it.
For example, for a paralegal job that involves reading and analyzing
a large volume of files, you might set an interview exercise
that involves reading and summarizing complex information.
If an applicant with a visual impairment uses screen reader software
for the exercise, they may be performing the task in a different way from others.
But whether the result is high enough quality and fast enough or not,
you have sufficient information about their performance of this task.
If someone needs a reasonable accommodation
in order to perform a task, then you are evaluating their performance
when they're using the accommodation.
Betsy, Small business owner.
I know I'm not allowed to ask intrusive
questions about a job applicant’s disability.
But if I have concerns about whether they will be able to do the job effectively,
how do I address that?
Naomi, MOD.
You don't have to interview or hire someone who is not qualified or able
to perform the key aspects of the job, whether they have a disability or not.
Hiring is all about identifying and weighing up the pros
and cons of different candidates.
You're allowed to have concerns and to address them.
You just want to do so in a nondiscriminatory way.
Declan, MOD.
If you have specific reasons to be concerned
whether a candidate can do the job, you are allowed to ask,
“can you perform all these specific job functions?
Please describe or demonstrate how you would perform
the specific job task, or
you've shared that you have a disability.
Is there any information or reasonable accommodation you'd like us to provide
during the hiring process so you have equal opportunity?”
Camille, MOD.
The approach we recommend is to be clear about the essential functions
you need candidates to do and give them an opportunity
to explain how they will perform those essential functions.
If you have a concern, raise it in terms of meeting the requirements of the job.
Don't offer commentary on someone's disability.
Do not ask for diagnoses or how they became disabled.
Here are a couple of examples.
Instead of saying “can you drive with those braces on?”
You could say “this position requires frequent trips to customer sites.
Most employees use their own car and we reimburse mileage.
What would be your plan for getting to customer sites?”
This way you aren't assuming they can't drive.
The applicant might say they plan on driving their own car
or they might respond with something like, “I don't drive.
I use public transportation.”
If you have concerns about whether their travel plans
are going to work, consider that just as you would
for someone making the same request without a disability.
For example, if someone is relying on public transportation,
you might consider whether that will affect their travel time
and whether it will reach everywhere needed.
Naomi, MOD.
If you're concerned about an applicant's physical strength for a retail position
that involves moving boxes around, you could say,
“each month we do a full day of restocking.
Will you be able to spend a whole day moving boxes of up
to 20 pounds from the loading dock into the store?”
They might say “I can lift boxes but can't carry them around unaided.
At my last job, I used a dolly and that actually reduced the trips back and forth.
If you have a dolly, I can show you how I can do it
if you'd like.”
Betsy, Small business owner.
Do I have to keep disability related information
confidential?
Naomi, MOD.
Generally, yes.
You should only share information on a need to know basis.
If a candidate has asked for reasonable accommodation, their request will
include information about their disability related symptoms or limitations.
For example, let's say someone asked to be emailed
a word or PDF version of a paper form.
You might be the person who decides
whether to grant this, but it's your assistant who has the forms.
So you might ask them whether they have a suitable file
they can email for you,
but you should not share any details about the person's disability.
Generally, you should not discuss with anyone else
that a person has a disability or that they've been granted an accommodation.
If anyone asks, you can simply say “this is something I approved.
It's a personal issue, it's private.”
Betsy, Small business owner.
It seems like this all depends on what the role is, that I'm hiring for
and how a person is affected by their disability.
Where can I go for more information to help me do the right thing
when I'm in the middle of hiring?
Kass, MOD.
You're right.
Reasonable accommodations always have to be
evaluated on a case by case basis.
Check out the links in the video
description to learn more about your obligations and practical tips
to make your job application and interview process accessible.
Declan, MOD.
If you have questions about a specific situation that aren’t answered
by these self-help resources, you can contact MOD
to request a disability rights consultation at
mass.gov/MOD/Contact or call 617-727-7440.
For example, if an applicant asks for an accommodation
and you don't think you can provide it and are not sure what to do,
one of our disability rights specialists can talk through with you how to properly
evaluate the request and respond so that you are doing the right thing.
Note that MOD is not staffed to handle urgent situations,
so make timeframes clear and give us as much notice as possible
so we can give your question the time it deserves.
This video provides an introductory overview.
Employment situations are often complicated
and depend on the specifics of the situation.
Please visit mass.gov/MOD/DisabilityRights
for more details.
None of our content should be considered legal advice.
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