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 Exams
February 2, 2007
This responds to your January 3, 2007, letter asking whether the Americans with Disabilities Act (ADA) would allow you to require that advocates in a peer self-advocacy program that provides peer counseling to individuals with developmental or psychiatric disabilities have experience as consumers of mental health services. Your inquiry raises two separate legal issues: (1) whether it violates the ADA to impose a qualification standard requiring those selected for the position of “disability peer self-advocacy program advocate” to be a current or past recipient of mental health services; and (2) whether the employer may make pre-offer inquiries regarding an applicant’s current or past mental health services when reviewing the qualifications of applicants for a “disability peer self-advocacy program advocate” position. This letter will address both of these issues.
(1) Qualification Standard
Under EEOC regulation 29 C.F.R. § 1630.10, “[i]t is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless [as used it] is shown to be job-related for the position in question and is consistent with business necessity.” The Appendix to this section of the regulations explains that the “purpose of this provision is to ensure that people with disabilities are not excluded from job opportunities unless they are actually unable to do the job.” It further explains that selection criteria that exclude or tend to exclude individuals with disabilities “because of their disability but do not concern an essential function of the job would not be consistent with business necessity,” whereas those that do concern an essential function of the job may be consistent with business necessity.
A requirement that a peer counselor be a past or present consumer of mental health services is a “qualification standard” under the ADA. This requirement would obviously exclude or tend to exclude individuals with other types of disabilities, for example those with blindness, deafness, or another physical disability if they have never been recipients of mental health services, as well as those with mental disabilities who have not been recipients of mental health services. However, the selection criterion arguably would not exclude these individuals from employment “because of their disability.” Rather, applicants with physical disabilities or mental disabilities who do not have mental health services experience would be excluded because of the disability-related experience they lack rather than that which they possess.
Moreover, even if using mental health services as a selection criterion does exclude or tend to exclude other individuals with disabilities “because of their disabilities,” it arguably would be permissible for the position in question because this experience manifestly relates to an essential function of the job (providing peer counseling services) and is consistent with business necessity. By definition, peer counseling is counseling provided by someone who has like experience -- in this case, by someone who is or has in the past been a consumer of mental health services. Accordingly, requiring current or past receipt of mental health services as a prerequisite for employment as an advocate in a “disability peer self-advocacy program” would not violate the ADA.
(2) Disability-Related Inquiries
Questions about whether a job applicant has received mental health services are “disability-related inquiries” under the ADA because they are likely to elicit information about a disability, and as such are ordinarily prohibited prior to a conditional offer of employment. See EEOC Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations (10/10/95), http://www.eeoc.gov/policy/docs/preemp.html, and EEOC Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the ADA (7/27/00), http://www.eeoc.gov/policy/docs/guidance-inquiries.html. However, a covered employer “may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.” See 29 C.F.R. § 1630.14. It would appear that in the narrow and unique instance of a peer self-advocate program specifically designed for mental health services consumers to assist one another, the job functions actually entail using one’s own background as an individual with a disability who shares the client’s mental health services experience and can thus provide peer-to-peer training on self-advocacy skills. For a peer self-advocate position, inquiring about the nature of the applicant’s experience as a consumer of mental health services would thus be necessary in order to know if the applicant is qualified to provide peer counseling to individuals with disabilities in like circumstances. Therefore, pre-offer inquiries about prospective advocates’ mental health services experience could be permissible, because the questions are about the ability to perform job-related functions.
I hope this information is helpful. 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.
Christopher J. Kuczynski
Assistant Legal Counsel
This page was last modified on May 2, 2007.
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