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
May 4, 2001
This is in response to your letter of February 7, 2001, inquiring whether the involvement of a mental health professional in evaluating an applicant's non-medical information constitutes a medical examination under the Americans with Disabilities Act (ADA). In addition, your letter raises issues about what may be considered medical examinations.
As you are aware, the ADA prohibits medical examinations and disability-related inquiries prior to a conditional job offer. Medical examinations and disability-related inquiries can be done during the "post-offer" period, as long as all applicants for a specific job category are subject to them. In order for a job offer to be considered bona fide, an employer must evaluate all relevant non-medical information which it reasonably could have obtained and analyzed prior to making the offer.
The EEOC, in its October 1995 Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations, offered a list of factors that are helpful in determining whether a procedure or test is medical. In some instances one factor may determine whether a test is medical, while in other situations a consideration of several factors will be necessary. One factor is whether a test is administered or the results are interpreted by a health care professional. However, the involvement of a mental health professional, by itself, would not mean that any test administered or reviewed by this individual is "medical ." Other factors would need to be assessed to make such a determination, including whether the test is designed to reveal a mental impairment and whether the employer is trying to determine whether the applicant has a mental impairment. Thus, the involvement of a mental health professional in administering or interpreting a test will always necessitate looking at other factors to determine if the test is "medical."
Your letter states that during the pre-offer stage an agency psychologist interprets tests and "inventories" (1) that assess "normal-range personality traits and characteristics," reviews biographical questionnaires and conducts a non-medical interview for the purpose of evaluating an applicant's "psychological suitability." The Preemployment Guidance states that psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment, such as those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In contrast, psychological tests that are only designed and used to measure such things as honesty, tastes, and habits would not be "medical." The Commission elaborated on this point in its March 1997 Enforcement Guidance on the ADA and Psychiatric Disabilities, stating that "[t]raits and behaviors are not, in themselves, mental impairments, although they may be linked to mental impairments." Such traits include stress, irritability and anger management, chronic lateness, poor judgment, integrity, teamwork, and prejudice.
Thus, questions or tests designed to determine whether an applicant exhibits any of these traits or behaviors would not be considered medical and should be done during the pre-offer stage. Such tests would not become "medical" examinations solely because a psychologist administers and interprets them. During the pre-offer stage, a psychologist can give non-medical tests, conduct interviews, or review questionnaires that are for the sole purpose of assessing an applicant's personality traits, characteristics, and behaviors.
I hope this information is helpful. This is not an official opinion of the Commission.
Christopher J. Kuczynski
Assistant Legal Counsel
1. Labels such as "psychological test" and "inventory" would not determine whether a specific test or inventory is "medical." Rather, the factors discussed above would need to be applied to a specific test or inventory to determine whether it is "medical." For example, the Minnesota Multiphasic Personality Inventory (MMPI) is a medical examination because it is designed and used to determine the presence of mental disorders or impairments.
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