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 and the ADA: Integrity Tests
September 9, 2013
Your July 19, 2013 letter to Seattle Deputy Director Edward G. Hill of the U.S. Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) was forwarded to this office for a response. Your letter concerns a client that “conducts integrity testing of employment applicants for third party employers.” (1) These tests “ask applicants to answer hypothetical questions about what they would do in situations that may involve criminal/illegal activity as well as questions regarding their current use of illegal, non-prescription drugs, including marijuana.”(2)
Your client is seeking (1) to confirm that the Commission’s April 25, 2012 Enforcement Guidance, titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“the Guidance” or “the Enforcement Guidance”),(3) is not applicable to these tests, and (2) to determine whether the tests’ questions “are lawful and permissible pre-employment inquiries under the Commission’s current guidance and enforcement positions.”(4)
Title VII of the Civil Rights Act of 1964, as amended
As you know, the Commission is the federal agency responsible for enforcing the federal equal employment opportunity laws, including Title VII of the Civil Rights Act of 1964, as amended (Title VII). Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.(5)
The Commission’s Enforcement Guidance explains how an employer’s use of criminal history information to make employment decisions may violate Title VII. For example, Title VII prohibits treating job applicants with the same criminal records and job qualifications differently because of a protected characteristic such as race or national origin (“disparate treatment discrimination”).(6) In addition, if uniformly applied criminal history exclusions operate to disproportionately and unjustifiably exclude people of a particular race or national origin because they are not “job related and consistent with business necessity” for the positions in question, they are unlawful under Title VII (“disparate impact discrimination”).(7)
Your letter provides three examples of questions from your client’s integrity tests.(8) These questions ask applicants to describe their current use of methamphetamine, their current use of illegal, nonprescription drugs at work, and whether they would take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.
Because these inquiries, and apparently other questions in the tests,(9) do not ask applicants to disclose their arrest or conviction history, they do not directly implicate Title VII liability concerning the use of such criminal history information in employment decisions as discussed in the Commission’s Enforcement Guidance. Additionally, Title VII does not prohibit employers from asking applicants about their current use of illegal drugs, illegal use of nonprescription drugs at work, or “hypothetical questions about what they would do in situations that may involve criminal/illegal activity. . . .”(10)
Even if your client’s integrity tests are not applicable to the analysis in the Enforcement Guidance, however, an employer may still violate Title VII if there is evidence to demonstrate that it designed, intended, or used the tests to discriminate based on a protected characteristic, or if there is evidence to demonstrate that it adjusted, or otherwise altered the scoring for the tests based on a protected characteristic.(11)
The Americans with Disabilities Act of 1990, as amended
The EEOC also enforces Title I of the Americans with Disabilities Act of 1990, as amended (ADA), which, among other things, limits the ability of employers to make disability-related inquiries of applicants and employees.(12) Disability-related inquiries are questions that are likely to elicit information about a disability.(13) However, because the ADA does not protect individuals who are currently engaging in the illegal use of drugs, asking applicants about current illegal drug use is not a disability-related inquiry.(14) If the questions in your client’s integrity tests are limited to those noted above, i.e., asking applicants about their current use of illegal drugs or illegal use of nonprescription drugs, they would not violate the ADA. However, questions about past addiction to illegal drugs or questions about whether an applicant has ever participated in a rehabilitation program are disability-related inquiries because past drug addiction generally is a disability.(15)
We hope this information is helpful to you. This discussion is an informal discussion of the issues you raised and is not an official opinion of the Equal Employment Opportunity Commission. For further information, please contact Carol R. Miaskoff, Assistant Legal Counsel, at (202) 663-4645 or Tanisha Wilburn, Senior Attorney Advisor, at (202) 663-4909.
Peggy R. Mastroianni
(1) Letter from ***.
(3) U.S. Equal Emp’t Opportunity Comm’n, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm [hereinafter Arrest and Conviction Records].
(4) *** Letter at 2.
(5) See 42 U.S.C. § 2000e et seq.
(6) See 42 U.S.C. § 2000e-2(a). See also Arrest and Conviction Records, § IV., Disparate Treatment Discrimination and Criminal Records.
(7) See 42 U.S.C. § 2000e-2(k)(1)(A)(i); Griggs v. Duke Power Company, 401 U.S. 424 (1971); Arrest and Conviction Records, § V., Disparate Impact Discrimination and Criminal Records.
(8) Integrity tests are generally used in employment to “predict the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism).” U.S. Equal Emp’t Opportunity Comm’n, Employment Tests and Selection Procedures, Governing EEO Laws (2010), http://www.eeoc.gov/policy/docs/factemployment_procedures.html.
(9) In your letter, you stated that “[t]he test(s) do not ask any questions about the applicant’s arrest or conviction history.” *** Letter at 1.
(11) See 42 U.S.C. § 2000e-2(h), (1).
(12) See generally 42 U.S.C. § 12101 et seq. See also U.S. Equal Emp’t Opportunity Comm’n, Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), § A., Background (2000), http://eeoc.gov/policy/docs/guidance-inquiries.html (stating that “[a]t the first stage (prior to an offer of employment), the ADA prohibits all disability related inquiries and medical examinations, even if they are related to the job”).
(13) See U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), http://www.eeoc.gov/policy/docs/preemp.html.
(14) See 42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a). The illegal use of drugs includes the possession or distribution of drugs which are unlawful under the Controlled Substances Act, and the unlawful use of prescription drugs. 29 C.F.R. § 1630.3(a)(2).
(15) See 42 U.S.C. § 12114(b)(1), (2); 29 C.F.R. § 1630.3(b)(1), (2). See also Preemployment Disability-Related Questions and Medical Examinations, supra note 13 (stating that an employer may ask applicants questions about their prior illegal drug use “as long as it does not go to past drug addiction”).
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