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: Pre-Offer Medical Exams

July 1, 2003

Dear :

This responds to your May 30, 2003, letter concerning the circumstances under which the pre-offer use of handwriting analyses by employers may be prohibited under the Americans with Disabilities Act (ADA). Specifically, you ask whether requiring an applicant to provide a handwriting sample or take a psychological test violates the ADA's prohibitions on pre-offer disability-related inquiries and medical examinations. You also ask whether it would violate the ADA to have the handwriting samples evaluated by a "credentialed mental health professional, such as a psychologist."

As noted in our previous letter to you, 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. ⁽¹⁾ 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. EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995) (available at www.eeoc.gov/docs/preemp.html); see also EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 26, 2000) (available at www.eeoc.gov/docs/guidance-inquiries.html).

Whether the handwriting analyses that you inquire about 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. Similarly, asking an applicant whether s/he is taking any medications that may affect his or her handwriting also is prohibited. On the other hand, asking an applicant to copy certain text is not a disability-related question. Even if the handwriting analysis or psychological test does not involve disability-related questions, it still may not be administered pre-offer if it is a medical examination.

The EEOC Enforcement Guidance on Pre-employment Inquiries lists several factors that are helpful in determining whether a procedure or test is medical. In many situations, one factor may be enough to determine that a test or procedure is medical. In other instances, a combination of factors will be relevant in determining whether a test or procedure is a medical examination. One factor is whether a test is administered, or results are interpreted, by a health care professional. Although this factor, by itself, usually is not enough to determine whether a test is "medical," the involvement of a health care professional, such as a psychologist, always will necessitate looking at other factors to determine whether a test is a prohibited pre-offer medical examination.

Your letter asks whether an employer could use a handwriting sample or psychological test to screen for "personality traits/characteristics such as a tendency towards a quick temper, inability to concentrate on projects, [or] slow v. quick thinking processes." Again, our preemployment guidance states that psychological tests are medical if they provide evidence that would lead to identifying a mental disorder or impairment, such as those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). For example, a test designed to reveal whether a characteristic such as "slow" thinking or "inability to concentrate" is the result of a mental or psychological impairment is a medical examination. By contrast, tests that are designed and used to measure traits or characteristics such as honesty, tastes, and habits are not "medical." Similarly, tests used to identify traits such as poor judgment, chronic lateness, poor impulse control, and quick temper are not medical examinations. See EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities (available at www.eeoc.gov/docs/psych.html).

The determination of 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 EEOC's enforcement guidances.

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,

Joyce Walker-Jones
Acting Assistant Legal Counsel
ADA Policy Division

1. See letter dated February 11, 2000, from Christopher Kuczynski, Assistant Legal Counsel for the ADA Policy Division.

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