An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

Also, if an applicant signs any instrument relating to the obtaining or withholding of employment, such as a conditional offer, the school must give a copy of that instrument to the employee if requested to do so. 275 A. P RE -C ONDITIONAL O FFER I NQUIRIES A ND E XAMINATIONS The “pre-offer stage” encompasses any hiring activity that occurs prior to making a conditional offer of employment, including but not limited to written job applications, employment interviews, background investigations, and decisions to hire. At this stage, a school may not make a “disability-related inquiry,” which is defined as “a question (or a series of questions) that is likely to elicit information about a disability.” 276 Moreover, the restrictions on medical inquiries apply equally to inquiries made to third parties about the applicant, such as the applicant’s family, friends, and former employers. 277 1. A CCEPTABLE I NQUIRES B EFORE A C ONDITIONAL O FFER I S I SSUED The school may ask a job applicant to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 278 Examples of acceptable inquiries:  “This job requires that you to be able to lift 50 pounds, can you do that?”  “What are your qualifications and skills?”  “Do you ever use illegal drugs?” 279  State the attendance requirements for the job and ask if applicant can meet them. 280 Even if the school is aware of an applicant’s disability, the school may not ask about its nature or severity. 281 The school may ask applicants with obvious disabilities, or who volunteer information about a disability, to describe or demonstrate how they would perform the job functions affected by the disability. 282 However, an applicant may be asked to demonstrate performance of an essential job function only if all applicants are asked to do so. 283 2. I MPERMISSIBLE I NQUIRIES P RIOR T O A C ONDITIONAL O FFER It is unlawful to include general questions regarding disability status on an application form, pre- employment questionnaire, or in the course of the selection process. 284 In particular, a school may not ask an applicant about his or her workers’ compensation history, as that issue is likely to impermissibly elicit information about the severity of an applicant’s impairment. 285 At the pre-offer stage, a school may not ask questions such as the following that are likely to directly or indirectly elicit information about a disability:

 “Do you have any particular disabilities?” 286  “How serious is your medical condition?

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 91