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/ADA: Pre-employment Inquiry
August 5, 2002
This is in response to your letter dated July 10, 2002 to the United States Equal Employment Opportunity Commission (EEOC). You had additional questions concerning the Commission's previous response to you dated June 2002. First, you asked whether an employer can make pre-employment inquiries concerning an applicant's race, color, religion, sex, national origin, or medical care history.
Generally, making pre-employment inquiries which directly or indirectly disclose the applicant's race, color, religion, sex, or national origin does not constitute an automatic violation of Title VII, as long as the inquiries are made of all applicants. However, unless justified, such inquiries may be important evidence of discriminatory selection, since it is reasonable to assume that all questions on an application form or in a pre-employment interview are asked for some purpose and that hiring decisions are made on the basis of the answers given. Therefore, such inquiries are suspect and generally must be justified by showing that the information was not used for selection purposes, or that the inquiry concerned a valid criterion for employment.
Some employers may have a legitimate need for this information for affirmative action purposes or to track applicant flow. These questions are legal if they are noted on a separate form and are not used in the selection process. There are several methods that employers may use to enable them to acquire the necessary information and simultaneously defend themselves against charges of discriminatory selection. For instance, data necessary for applicant flow can be obtained by the use of "tear-off sheets" in the hiring process so that after completing the application and the tear-off portion, the tear-off sheet is separated from the application and is not used in the selection process. Robinson v. Adams, 847 F.2d 1315 (9th Cir. 1987) (Title VII is not violated where the screener is unaware of the plaintiff's race, which was noted only on a separate sheet from the application), cert. denied, 490 U.S. 1105 (1989).
However, employers may not ask job applicants about the existence, nature or severity of a disability. Making pre-employment inquiries concerning an applicant's medical care history is an automatic violation of the law. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs.
Second, you requested the meaning of the following sentence contained in the June 2002 letter:
Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-12(b).
This is standard language included in any letter where we provide general guidance. Section 713(b) of Title VII provides that in any action or proceeding based upon an alleged unlawful employment practice, a person may rely upon a written interpretation or opinion of the Commission as a defense. The letter in your case was general guidance and was not intended to be a formal opinion on the issue. We can issue a formal opinion on a specific matter only after a Commission investigation has been made.
For additional information on the EEOC and the laws that we enforce, please visit our website at www.eeoc.gov. We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-12(b).
Dianna B. Johnston
Assistant Legal Counsel
This page was last modified on April 27, 2007.
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