Asking An Employee About A Disability

By Amy E. Feldman

PHILADELPHIA (CBS) - So what is the law on what you can ask an employee about a medical condition?

Dillard's department store was sued by the EEOC for disability discrimination on the basis of its policy requiring employees to disclose personal and medical information. The department store asked a salesperson who was out sick the nature of her illness even though she had a doctor's note in order for her to have the absences excused. Which, to many employers, seems kind of reasonable.

Under the Americans with Disabilities Act, an employer can't ask about whether an employee is an individual with a disability or about the nature and severity of the disability, unless the inquiry is job-related and consistent with business necessity. And you don't have to prove you have a disability to be covered by that protection.

In Dillard's case, finding out about the absence - which didn't affect the employee's ongoing performance, wasn't a business necessity. It may seem reasonable to an employer to ask about your illness, but both the EEOC and as six year old with a sense of humor would tell you, SNOT.