EEOC Informal Discussion Letter

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.

Title VII: Religious Discrimination
ADA: Disability-Related Inquiries and Medical Examinations

March 10, 2005

Dear:

This responds to your February 3, 2005, letter inquiring whether various questions on an employment application for the School in, violate any of the laws enforced by the Equal Employment Opportunity Commission (EEOC). Specifically, the application questions you have asked about include inquiries regarding:

• nationality
• height and weight
• physical disabilities
• treatment for any physical, mental, or emotional disorder
• whether married, divorced,. number of children, and plans to marry within the next year (and if so name and employer of spouse)
• "testimony of [applicant's] personal salvation experience, home church, how frequently church attended, applicant's "attitude" and "practice" toward "soul-winning," applicant's practice and belief regarding tithing, ministries of interest, past involvement in local church, and "position on the modern tongues movement"
• whether "anyone [can] justifiably bring an accusation against [the applicant]" (or, if married, applicant's spouse)
• financial debts
• musical abilities, and hobbies

The statutes enforced by EEOC include Title VII of the Civil Rights Act of 1964 (Title VII) and Titles I and V of the Americans with Disabilities Act of 1990 (ADA). Title VII prohibits employment discrimination by private and state or local government employers with fifteen or more employees based on race, color, religion, sex, or national origin. Titles I and V of the ADA prohibit the same employers from discriminating against qualified individuals with disabilities.

The EEOC provides technical assistance concerning these laws. While we cannot make any representations regarding what position the Commission would take if a given matter were to come before it in a future discrimination charge, we can provide some guidance regarding general principles that might apply to the application form about which you have inquired.^[1]

Questions regarding religious background, beliefs, and practices

While Title VII prohibits most employers from making hiring, firing and other employment decisions based on an applicant or employee's religious beliefs or practices (or lack thereof), it is not per se illegal to ask applicants questions regarding their religious background, beliefs, and practices. Rather, such questions would be potential evidence of the employer's discriminatory intent if a religious discrimination claim was filed by an applicant alleging he or she was not hired based on religion, except in the case of "religious" organizations, which are allowed to employ people of their own religion.

Title VII's exception for "religious organizations" states that the law will not apply to "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." 42 U.S.C. § 2000e-1(a). A similar exemption exists for certain religiously-affiliated schools if they are, in whole or in part, owned, supported, controlled, or managed by a particular religion or religious group, or if the curriculum is directed toward the propagation of a particular religion. 42 U.S.C. § 2000e-2(e)(2)

The "religious" organization exception applies only to those institutions whose "purpose and character are primarily religious." Although no one factor is dispositive, significant factors include whether its articles of incorporation state a religious purpose, whether its day to day operations are religious, and whether it is for profit. That determination must be based on "[a]ll significant religious and secular characteristics." The determination of whether a particular employer falls within the "religious" organization exception permitting religious preference in hiring is made on a case-by-case basis.

If an organization or school is exempt from Title VII's religious discrimination provisions, then it can likely ask applicants about religious background, beliefs, and practices and make employment decisions based on the answers to those questions without violating Title VII. The "religious" organization exception, however, is limited to discrimination based on religion, so even "religious" organizations are generally not permitted to discriminate on other protected bases, such as race, national origin, or sex.^[6]

Questions About Nationality

Like questions about an applicant's religion or religious practices, questions about an applicant's nationality are not per se illegal. They may, however, be evidence of an employer's discriminatory intent in an action alleging failure to hire an applicant because of national origin. This is true even if the entity asking the questions qualifies as a religious organization, because, as noted above, Title VII's exemption for religious organizations only allows the organization to prefer members of its own religion, not to discriminate on other protected bases.

Disability-Related Inquiries

Under Title I of the ADA, an employer may not make any disability-related inquiries or require a medical examination of applicants at the pre-offer stage. This prohibition applies to inquiries made directly to an applicant, as well as to indirect inquiries made to an applicant's doctor. However, after making a job offer, an employer may ask disability-related questions and perform medical examinations, and the job offer may be conditioned on the results of these post-offer questions and examinations. All entering employees in the same job category must be subjected to the examination/inquiry, regardless of disability, and medical information obtained must be kept confidential. Post-offer, pre-employment disability-related questions and medical examinations do not have to be related to the job, but job offers may only be withdrawn on the basis of disability where the medical information shows that the individual cannot perform the essential functions of the position without posing a direct threat to safety, even with a reasonable accommodation. See EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995) (available at http://www.eeoc.gov/docs/preemp.html).

A disability-related inquiry is a question or a series of questions that is likely to elicit information about a disability. If there are many possible answers to a question and only some of them would reveal a disability, the question is not disability-related. Therefore, disability-related inquiries generally include questions that ask an applicant to divulge whether or not he or she has any physical or mental disabilities, questions about present or past physical or mental health treatment, and questions about present or past use of medication.

Several of the questions on the application, such as questions about whether an applicant has certain physical conditions and the question regarding whether an applicant has had treatment for any physical, mental, or emotional disorder, appear to fall squarely within this definition. Questions about height and weight are not disability-related. Even if these questions may sometimes reveal that an applicant has a condition such as dwarfism or morbid obesity, both of which may be disabilities, they will usually reveal no more than normal deviations in height or weight, which are not disabilities.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.

Sincerely,

Peggy R. Mastroianni
Associate Legal Counsel

^[1] Your letter does not specify what laws you believe the questions highlighted on the application form violate. In most instances, we assumed you believed the questions violated Title VII or the ADA. The questions about an applicant's financial debts and musical abilities and talents, however, do not appear to implicate any of the laws we enforce.

^[2] However, there is a broader "ministerial exemption" in Title VII permitting great latitude in various employment decisions involving clergy.

This page was last modified on April 27, 2007.