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

February 11, 2000

Dear :

This responds to your January 24, 2000, letter concerning the Americans with Disabilities Act of 1990 (ADA).

In your letter, you state that your firm evaluates an individual's personality traits from handwriting analysis. You also state that, "[d]epending on what the employer wants to know, this could include evaluating emotions, thinking abilities, ability to relate well to others, instability in the personality that might be flags for dishonesty or violence, whether or not the person is likely to be an above average risk to do something inimical to the interests of the employer, and many other personality characteristics that would give the employer insights to the mental processes of the individual." In addition, you note that your evaluations involve "a great deal of psychological understanding." You ask whether this type of handwriting analysis may be administered before a job offer has been made.

As you know, under the ADA, an employer may not ask disability-related questions or conduct medical examinations until after it makes a conditional offer of employment to the applicant. A "disability-related question" is a question that is likely to elicit information about disability. A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health. Whether a test is medical depends on such factors as whether it is administered or interpreted by a health care professional, whether it is designed to reveal an impairment or physical or mental health, whether the employer is trying to determine the applicant's physical or mental health or impairments, and whether it measures an applicant's performance of a task or the applicant's physiological responses to performing the task. For example, a psychological test is medical if it provides evidence that would lead to identifying a mental disorder or impairment. On the other hand, if a test is designed and used to measure only things such as honesty, tastes, and habits, it is not medical. EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995) (copy enclosed).

Whether the handwriting analyses that you perform may be administered pre-offer depends on whether they involve disability-related questions or constitute medical examinations. For example, asking an applicant to provide a hand-written response to a question such as "What impairments do you have?" is a disability-related question that may not be asked pre-offer. On the other hand, asking an applicant to copy certain text does not involve a disability-related question.

Even if the handwriting analysis does not involve disability-related questions, however, it still may not be administered pre-offer if it is a medical examination. The evaluation would constitute a medical examination if the employer is trying to determine whether the applicant has a mental impairment or if the procedure is designed to determine the existence of such an impairment. Thus, for example, an evaluation that reflects whether an applicant has characteristics that are used to identify whether the individual has excessive anxiety, depression, and certain compulsive disorders is a medical examination. Alternatively, a handwriting evaluation that is designed and used to reflect only whether an applicant is likely to lie is not a medical examination.

Since your letter states that your evaluations vary "[d]epending on what the employer wants to know"and include a variety of things that may or may not concern mental impairments or mental health, it is not possible to determine whether they constitute medical examinations. The determination whether a test or procedure is a medical examination should be made on a case-by-case basis and should take into consideration the factors listed in the EEOC Enforcement Guidance.

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.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

Enclosure

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