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.

ADA: Disability-Related Inquiries and Medical Examinations; Hiring Discrimination

November 7, 2000

Dear :

This is in response to your letter dated August 14, 2000, to Susan McDuffie, District Director, San Francisco District Office, Equal Employment Opportunity Commission (EEOC or Commission), regarding the Americans With Disabilities Act of 1990 (ADA or the Act). You asked: 1) whether it would be a violation of the ADA for a public agency to make a conditional job offer to an applicant prior to conducting a background investigation of that individual; and 2) whether it would be a violation of the ADA for an agency not to hire an individual because it believes that applicant has lied during a polygraph examination.

1) Background Investigation

As you know, the EEOC enforces Title I of the ADA. 42 U.S.C. § 12111 et seq. The ADA specifically prohibits employers from requiring medical examinations or asking questions regarding the existence, nature, or severity of applicants' disabilities before extending an offer of employment. 42 U.S.C. § 12112(d)(2)&(3); 29 C.F.R. §§ 1630.13, 1630.14. The offer may be conditioned on the applicant's meeting an employer's legitimate medical criteria. These prohibitions are meant to ensure that an individual's non-medical qualifications are considered before his or her medical condition is evaluated. They also ensure that if a job offer is withdrawn after a medical examination or inquiry, the applicant is aware that the reason for the withdrawal relates to his or her medical condition, and not to non-medical qualifications.

An employer may require a medical examination or ask a disability-related question after it has made a conditional offer of employment and before an applicant begins work duties, if it does so for all entering employees in the same job category. 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.14. The job offer must be a "real"offer. This means that the employer has evaluated all non-medical information it reasonably could have obtained and analyzed before making the offer. See EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, at 18 (October 10, 1995)(enclosed). Of course, there are times when an employer cannot reasonably obtain and evaluate all non-medical information at the pre-offer stage. If an employer can show that is the case, the offer would still be considered a "real" offer. For instance, it may be too costly for a law enforcement employer wishing to conduct a background investigation to conduct a pre-offer investigation concerning non-disability related issues, and a post-offer investigation concerning disability related issues. In this case, the employer may be able to demonstrate that it could not reasonably obtain and evaluate the non-medical information from the background check at the pre-offer stage. Thus, an agency should conduct background checks prior to making conditional job offers, unless it can show that it would not be reasonable to do so.

2)Polygraph Examination

The Commission has explained that the very nature of a polygraph examination is to measure whether a person believes that he or she is telling the truth in response to a particular inquiry. See id. at 16. Under the ADA, polygraph examinations are not medical examinations, and thus may be given before a conditional offer of employment. An employer may not, however, ask disability related questions as part of a polygraph examination if that examination is given at the pre-offer stage. As long as an employer is not treating individuals with disabilities differently from non-disabled individuals, it would not be a violation of the ADA for an employer to refuse to hire an applicant with a disability because the employer believes that he or she lied in response to questions asked on a polygraph examination.

I hope that this information has been helpful to you. Please note, however, that this letter is an informal discussion of the issues raised by you and is not an official opinion of the EEOC. In addition, our failure to address other matters that may have been presented should not be construed as agreement with statements or analysis related to those matters.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

Enclosure

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