EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Disability-Related Inquiries and Medical Examinations
February 22, 2005
This responds to your January 5, 2005, letter to the Equal Employment Opportunity Commission (EEOC) asking whether an employer may ask certain job interview questions "without any fear of legal repercussions." Your letter lists twenty-one questions ranging from asking whether an applicant ever has been "fired/terminated" to whether he or she has a "drinking problem," has ever used drugs, or been arrested. You believe that employers should be able to ask these questions to mitigate potential lawsuits concerning negligent hiring practices. Our comments are limited to the laws that the EEOC enforces: Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination based on disability; Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, and national origin; and the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination based on age against persons who are forty years of age or older.
Preemployment Inquiries Under the ADA
Under the ADA, an employer may not make disability-related inquiries (i.e., ask questions likely to elicit information about a disability) or require a medical examination until after it makes a conditional job offer. A job offer is real if the employer has evaluated all of the relevant non-medical information that it reasonably could have obtained and analyzed prior to extending the offer. See EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (10/10/95). (This document is available on our website at http://www.eeoc.gov/policy/docs/preemp.html.) After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category.
Several of the questions you list are unlawful disability-related inquiries and, therefore, are prohibited at the pre-offer stage. For example, although an employer may ask questions designed to detect whether an applicant ever has abused leave (Question 6), it may not ask about an applicant's legitimate use of sick leave because this question is likely to elicit information about a disability. An employer also may ask applicants about their current illegal use of drugs but may not ask about their lawful drug use. Because Question 11, which generally asks whether the applicant ever has "utilized drugs" does not distinguish between illegal and legal drug use, it may cause applicants to disclose their lawful use of prescription drugs. If your intention is to ask about illegal drug use, the question needs to be clarified accordingly. Moreover, because past addiction to illegal drugs or controlled substances is a covered disability under the ADA, an employer may not ask whether an applicant ever has been addicted to drugs or been treated for drug addiction. Similarly, an employer may ask whether an applicant drinks alcohol but may not ask how much alcohol an applicant drinks or whether he or she has a "drinking problem." (Question 10)
Adverse Impact Under Title VII
It is the EEOC's position that employers should not inquire about matters that may disproportionately exclude members of protected groups unless the employer can show that the inquiry is job-related and consistent with business necessity. We believe that several of your proposed questions, which ask about arrest records and internal investigations (Questions 8 and 9) and an applicant's financial status (Questions 19, 20, and 21), may have an adverse impact on some protected classes.
Because arrests and investigations alone are not reliable evidence that a person actually has committed a crime, the Commission has concluded that an employer rarely will be able to justify making broad general inquiries about whether an applicant ever has been arrested or been the subject of an internal company investigation. EEOC Enforcement Guidance: Consideration of Arrest Records in Employment Decisions Under Title VII (9/7/90). Similarly, rejecting applicants on the basis of financial criteria such as poor credit ratings or a history of garnishments sometimes has been found to have an adverse impact on minority groups. Because such impact may exist, questions concerning an applicant's financial status should be avoided unless the inquiry is job-related and consistent with business necessity.
This letter is an informal discussion of the issues you raised and is not an official opinion of the EEOC.
Senior Attorney Advisor
ADA Policy Division
This page was last modified on April 27, 2007.
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