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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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: Qualification Standards; Hiring Discrimination
Title VII: Pre-employment Inquiries

January 19, 2001

Dear :

This responds to your letter of November 14, 2000 concerning the Model Selection Criteria for the . The primary question you appear to be asking is whether the may, consistent with the civil rights laws, use scores from the Model Selection Criteria to select applicants for participation in its operating engineer apprenticeship programs.

I. Description of the Model Selection Criteria

The materials enclosed with your letter contain Parts I and IV of the Model Selection Criteria, though your questions relate exclusively to Part IV. Part IV, in turn, appears to contain two sub-parts - one entitled "Application for Operating Engineer Apprenticeship" ("Application"), and another called "Pre-Employment Questionnaire" ("Questionnaire"). Your cover letter references both of these sub-parts, though you discuss only the Application in detail.

The Application contains thirty questions, each assigned a certain value depending upon the applicant's answer, with the maximum number of points available equal to 90. The Questionnaire contains 126 questions requiring a "Yes" or "No" answer. The questions concern a range of issues, including an applicant's hobbies and interests, training and course work completed, and experience performing tasks similar to those performed by an operating engineer apprentice. A value of zero to ten is assigned for the responses to the questionnaire based upon the total number of questions an applicant answers affirmatively (e.g., 101 or more affirmative responses equals ten points). An applicant's point totals on the Application and the questionnaire are added together to yield a final score, with a maximum of 100 points available.

Your letter explains that the"Model Selection Criteria" are "designed to increase retention/successful completion rates of apprenticeship programs." Apparently, an applicant whose score falls below a certain number could be excluded from an apprenticeship program on this basis alone. It is not clear what score would disqualify an applicant, although your letter states that the scoring system makes negative answers to all of the "transportation" questions on the Application (which total 17 points) "virtually an automatic disqualification."

II. Application of the Americans with Disabilities Act to the Model Selection Criteria

Disability-Related Inquiries

As you know, the Equal employment Opportunity Commission ("EEOC" or "Commission") enforces Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., which prohibits discrimination on the basis of disability by employers with fifteen or more employees and by other covered entities, including labor organizations. Discrimination under the ADA includes making disability-related inquiries or requiring medical examinations of applicants prior to a conditional offer of employment. As we stated in our

May 31, 2000 letter, under the ADA, an employer or other covered entity may not ask disability-related questions and conduct medical examinations until after it makes a conditional job offer. Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category. If the question or examination screens out an individual based on disability, the employer must demonstrate that the reason for the rejection is "job-related and consistent with business necessity."

It does not appear that any of the questions in either the Application or the Questionnaire are disability-related; consequently they may be asked as part of administering the Model Selection Criteria.

Use of the Model Selection Criteria

As to use of the scores from the Model Selection Criteria to exclude applicants from participation in local apprenticeship programs, the ADA says that a covered entity may not use qualification standards or other selection criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities, unless the standard or criterion is shown by the covered entity to be job-related and consistent with business necessity. 42 U.S.C. §§ 12112(b)(6) and 12113(a); 29 C.F.R. § 1630.10. The purpose of this provision is to ensure that individuals with disabilities are not excluded from job opportunities unless they are actually unable to do the job. See 29 C.F.R. app. § 1630.10. Use of scores from the Model Selection Criteria to determine which applicants will be accepted to the apprenticeship program would certainly constitute use of a qualification standard or selection criterion.

Therefore, if an applicant could demonstrate that, because of a disability, s/he was unable to obtain a high enough score on the Model Selection Criteria to participate in the apprenticeship program, would need to show that use of the score was job-related and consistent with business necessity. Under the ADA, this means that would need to show that any criteria that screened out the applicant on the basis of disability are related to an essential function of the apprenticeship position in question, and that no reasonable accommodation would enable the applicant to satisfy the criteria. See id. Thus, for example, an applicant who could not obtain a valid driver's license because of a disability and who answered "No" to Question 6 on the Application might be able to show that he was screened out of participation in the apprenticeship program because of a disability. , however, could defend such an exclusion by showing that a valid driver's license is required to perform the essential functions of an operating engineer apprenticeship (e.g., operating a crane or other vehicle).

Because disabilities and their effects on people are so highly individualized, it is impossible to predict with accuracy what questions on the Application and the Questionnaire would screen someone out on the basis of disability. Examples of such questions on the Application, in addition to Question 6, might include Question 17, which asks whether applicants are able to work in "extreme dust conditions, extreme heat, cold, or damp weather," and Question 20, which asks about the ability to work at heights. Questions 48 through 54 in the Questionnaire, which concern driving, might also tend to screen out an applicant with a disability, as well as Questions 25, 69 and 70, which inquire about an applicant's ability to climb and to lift heavy objects. As we indicated above, these are not disability-related questions, and we express no view as to whether should use them as part of administering the Model Selection Criteria. We simply want to alert you to the fact that if a score on the Model Selection Criteria screens out an applicant because of disability, should be prepared to defend use of the score as job-related and consistent with business necessity.

III. Application of Age Discrimination in Employment Act and Title VII

As you know, the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., protects individuals age 40 and older from employment discrimination because of age, and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., prohibits employment discrimination based on race, color, religion, sex, or national origin. None of the questions on the Application or the Questionnaire is a per se violation of the ADEA or Title VII, but, as in our last letter, we want to alert you to potential issues that may arise if an individual is disqualified based on a protected characteristic because of his or her response to a particular question. We will provide you with general guidance.

Military Experience

Because men as a whole participate in the armed forces at a higher rate than women as a whole, an employment policy that excludes an individual based on prior military service would disproportionately exclude women. Title VII does not apply to a veteran's preference that is provided by federal, state, or local law. 42 U.S.C. § 2000e-11. However, a voluntarily adopted veteran's preference would not be exempt. Thus, if the military preference disproportionately excludes women (or members of other protected groups), the would be required to show that it reflects legitimate job requirements.

Interest - Questions 25 and 26

In questions 25 and 26, applicants are asked what they expect to be doing in five and ten years, respectively. Zero points are assigned if the applicant expects to be retired. It is EEOC's position that, if these questions disproportionately screen out older persons, the would be required to show that they are job-related and consistent with business necessity.

Pre-employment Questionnaire

Some of the questions on the pre-employment questionnaire could disproportionately exclude applicants based on protected characteristics. For example, the questions about hobbies are heavily weighted toward stereotypical male interests. If these questions disproportionately exclude women (or members of other protected groups), the would be required to show that they are job-related and consistent with business necessity. Of course, questions directly related to an applicant's qualifications for the apprenticeship, such as prior related experience, would be more likely to be lawful than questions that are only tangentially related, such as hobbies.

IV. Conclusion

We hope this information is helpful to you. Please note, however, that this is an informal discussion of the issues you raised in your letter and does not represent an official position of the Commission. If you have any further questions about this letter or have questions in the future about related issues, please call Chris Kuczynski, at 663-4503, concerning any ADA matters, or Ernest Haffner, at (202) 663-4679, concerning any Title VII or ADEA issues.

Sincerely,

Peggy R. Mastroianni
Associate Legal Counsel

This page was last modified on April 27, 2007.