Understanding Your Workplace Rights: A Job Seeker's Legal Primer
Knowing your rights does not make you adversarial. It makes you informed. This guide translates disability employment law into plain language so you understand what employers can and cannot do at every stage of the hiring process and beyond.
What Employers Can and Cannot Ask
Before a Job Offer
In the US, UK, Canada, and Australia, employers are generally prohibited from asking disability-related questions before making a conditional job offer.
Employers CANNOT ask:
- Whether you have a disability or chronic illness
- What medications you take
- Whether you have ever filed a workers' compensation claim
- How many days you were absent from work due to illness at your previous job
- Whether you have ever been hospitalized
- Whether you need accommodations (with narrow exceptions -- see below)
Employers CAN ask:
- Whether you can perform the essential functions of the job, with or without reasonable accommodation
- You to describe or demonstrate how you would perform specific job tasks
- About your qualifications, education, work history, and skills
The exception: If you have a visible disability, or if you have voluntarily disclosed a disability, the employer may ask whether you need a reasonable accommodation for the application or interview process. They still cannot ask about the nature or severity of the disability.
After a Conditional Job Offer
Once an employer has made a conditional offer of employment, the rules shift:
- The employer may require a medical examination, but only if all entering employees in the same job category are subject to the same examination.
- The employer may ask disability-related questions.
- The employer may withdraw the offer only if the examination reveals that you cannot perform the essential functions of the job even with reasonable accommodation, or you would pose a direct threat to health or safety.
Medical Examination Rules
United States (ADA)
- Pre-offer: No medical examinations or questions permitted.
- Post-offer, pre-employment: Medical examinations are allowed if applied uniformly to all candidates in the same job category. Results must be kept confidential and stored separately from personnel files.
- During employment: Medical examinations are permitted only if they are job-related and consistent with business necessity.
United Kingdom (Equality Act 2010)
- Section 60 restricts pre-employment health questions. Employers can only ask about health before an offer if it is necessary to determine whether the candidate can participate in the recruitment process, carry out a function intrinsic to the role, or if positive action provisions apply.
- Asking prohibited health questions does not automatically make the process unlawful, but it shifts the burden of proof to the employer if a discrimination claim is brought.
Canada
- The Canadian Human Rights Act and provincial codes generally prohibit pre-employment medical inquiries. Post-offer medical assessments must be bona fide occupational requirements.
Australia
- The Disability Discrimination Act 1992 prohibits employers from requesting medical information unless the inherent requirements of the job genuinely require it.
Pre-Employment Testing Accommodations
If an employer uses tests as part of the hiring process (aptitude tests, skills assessments, personality questionnaires, physical fitness tests), you have the right to reasonable accommodations.
Examples of Testing Accommodations
- Extended time for written or computer-based assessments
- Screen reader compatibility for online tests
- Large print or Braille test materials
- A separate, quiet room for testing
- An alternative test format that measures the same skill
- A sign language interpreter for verbal instructions
- Permission to use assistive technology
How to Request
Notify the employer or testing administrator as soon as you learn about the test. Provide enough information to explain what you need without disclosing your specific diagnosis. For example: "I have a condition that affects processing speed and I would benefit from extended time on the written assessment."
Conditional Offers and Medical Clearance
A conditional job offer means the employer wants to hire you, subject to certain conditions (background check, medical clearance, reference checks). Important protections:
- The condition must be applied equally to all candidates for the same role.
- If the medical assessment leads to withdrawal of the offer, the employer must show that you cannot perform the essential functions of the job with reasonable accommodation, or that you would pose a direct threat.
- The employer must engage in the interactive process before withdrawing the offer. They cannot simply reject you without exploring accommodations.
- Medical information obtained during this process is confidential. Only decision-makers with a need to know may access it, and it must be stored separately.
Probation Period Rights
Being on probation does not strip away your disability rights.
United States
- The ADA applies from day one of employment. Probationary employees have the same right to accommodations as permanent employees.
- Termination during probation for disability-related reasons is still discrimination if the employer did not engage in the interactive accommodation process.
United Kingdom
- The Equality Act applies from the beginning of employment, including during probation.
- However, unfair dismissal protections under the Employment Rights Act 1996 generally require two years of service. Disability discrimination protections have no service requirement.
Canada
- Provincial human rights protections apply from the start of employment, regardless of probation status.
Australia
- Disability discrimination protections under the DDA apply immediately. General unfair dismissal protections under the Fair Work Act may require a minimum employment period, but discrimination claims do not.
Filing a Complaint
If you believe you have experienced disability discrimination during the hiring process or employment, here is how to file a complaint in each jurisdiction.
United States: Equal Employment Opportunity Commission (EEOC)
- Time limit: File within 180 days of the discriminatory act (300 days if your state has a fair employment agency).
- How to file: Online at publicportal.eeoc.gov, by phone, by mail, or in person at your nearest EEOC office.
- What happens: The EEOC will investigate, attempt mediation, and may issue a "right to sue" letter allowing you to file in federal court.
- Cost: Free to file.
United Kingdom: Employment Tribunal
- Time limit: File within three months minus one day of the discriminatory act.
- Step one: You must contact ACAS (Advisory, Conciliation and Arbitration Service) for Early Conciliation before filing with the tribunal. This pauses the time limit.
- How to file: Online at employmenttribunals.service.gov.uk after receiving your ACAS Early Conciliation certificate.
- Cost: Free to file (tribunal fees were abolished in 2017).
Australia: Australian Human Rights Commission (AHRC)
- Time limit: No strict statutory deadline, but complaints should be filed within 12 months.
- How to file: Online at humanrights.gov.au, by email, by post, or by phone (with Auslan interpreter available).
- What happens: The AHRC will attempt conciliation. If that fails, you may take the matter to the Federal Court or Federal Circuit Court.
- Cost: Free to file with AHRC. Court proceedings may involve costs.
Canada: Canadian Human Rights Commission (CHRC) and Provincial Commissions
- Federal employees: File with the CHRC within 12 months at chrc-ccdp.gc.ca.
- Provincial/territorial: File with the relevant provincial human rights commission. Time limits vary (e.g., one year in Ontario, six months in British Columbia).
- What happens: Investigation, mediation, and potentially a hearing before a human rights tribunal.
- Cost: Free to file.
Step-by-Step Complaint Process (General)
Regardless of jurisdiction, the general process follows these steps:
- Document everything. Keep records of job postings, emails, interview notes, accommodation requests, and any responses. Note dates, times, names, and what was said.
- Seek advice. Contact a disability rights organization or employment lawyer for a preliminary assessment. Many offer free initial consultations.
- Attempt internal resolution. If the employer has an HR department or grievance procedure, consider raising the issue internally first. This is not always required, but it can resolve matters faster.
- File with the relevant body. Use the appropriate agency for your jurisdiction (see above). Be specific about what happened, when, and why you believe it was discrimination.
- Participate in mediation/conciliation. Most agencies will try to resolve the complaint through dialogue before formal proceedings.
- Proceed to hearing or court if needed. If mediation fails, the matter may proceed to a tribunal or court. Legal representation is recommended at this stage.
Practical Tips
- You do not need a lawyer to file. Complaints processes are designed to be accessible to individuals representing themselves.
- Disability rights organizations can help. In the US, contact your Protection and Advocacy (P&A) agency. In the UK, contact the Equality Advisory Support Service. In Australia, contact a Disability Advocacy organization. In Canada, contact your provincial human rights commission for guidance.
- Retaliation is illegal. Employers cannot punish you for filing a complaint or requesting accommodations.
- Keep copies. Always save copies of everything you submit and everything you receive.
Key Takeaways
- Employers face strict limits on disability-related questions before a conditional offer.
- Medical examinations must be applied uniformly and results kept confidential.
- You have the right to accommodations in pre-employment testing.
- Probation does not diminish your disability rights.
- Complaints processes are free, designed for self-representation, and available in every major jurisdiction.
- Document early, document thoroughly, and seek advice from disability rights organizations.