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.

Title VII and ADA: Applicant Screening and Interviews

July 15, 2008

[ADDRESS]

Dear____:

This responds to your May 27, 2008 letter to the Office of Legal Counsel, Equal Employment Opportunity Commission (EEOC), requesting EEOC’s assistance “in understanding how ‘Equal’ processing is defined under the law specified by the EEOC and the ADA” and, in particular, asking whether “candidates [are] being treated equally (fairly and to the same standard) when screened using a written questionnaire when some candidates receive a few follow-up questions, others receive different follow-up questions, while yet other candidates applying for the same job, at the same time, receive no face to face questioning at all.”

Given the subject matter with which EEOC is concerned, we interpret your letter to be asking if it is a violation of federal EEO law to ask different questions of applicants applying for the same job at the same time and/or route such applicants through different employment screening processes. As discussed in detail below, the answer to this question is “no.”

As you are no doubt aware, applicants determined to have the same or similar qualifications by whatever means (written test, face-to-face interview) at different stages of the application process (after review of a resume, after a written test, after an interview) must receive the same treatment regardless of race, color, sex, national origin, religion, age, disability or prior protected activity. Conversely, any differences in treatment to which applicants are subjected – such as requiring only written questionnaires for some but both written questionnaires and face-to-face interviews for others - must not be based on their membership in a protected class. Specifically, the laws enforced by the EEOC contemplate employers selecting qualified applicants, which means that they necessarily contemplate differentiating between applicants based on their qualifications for the position at issue. This would include inviting only some applicants for face-to-face interviews, based on their qualifications for the position.¹

Under the Americans with Disabilities Act (ADA) an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to an applicant. See 29 C.F.R. §§ 1630.13 and 1630.14(b). Thus, any employment screening process or device that includes disability-related questions and/or medical examinations prior to a conditional job offer would violate the ADA, whether those questions/examinations were required of all or only some of the applicants. ²

In addition to prohibiting disability-related questions at the pre-offer stage of the employment process, the ADA prohibits employers from asking particular applicants to describe or demonstrate how they would perform the job in question unless all applicants in the job category are asked to do so. If the face-to-face questions at issue request a description or demonstration of how a particular applicant would perform the job in question when others are not asked, the questions would, in most circumstances, violate the ADA.³ However, the ADA does not prohibit the practice of asking applicants different follow-up questions of other types or seeking face-to-face interviews of some, but not all, applicants, as long as the general prohibition against disability-related questions/medical examinations is followed.

Once a conditional job offer has been made, an employer may ask any disability-related question and/or require medical examinations as long as it does so for every applicant for the same job. See 29 C.F.R. § 1630.14(b). To this extent, the ADA requires all applicants to be routed through the same employment screening process.⁴

We believe that the crux of your concern may be whether routing different applicants for the same position through different application processes adversely affects the hiring opportunities of certain applicants. In addition to prohibiting disparate treatment in hiring, Title VII of the Civil Rights Act of 1964 prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity.” This concept is called “disparate impact” discrimination.

If, for example, reliance on a written test in the application process disproportionately screened out Latinos, the employer would be required to establish that the test was job-related and consistent with business necessity. As we have recently stated in our Fact Sheet on Employment Tests and Selection Procedures (“Fact Sheet”), “[a]n employer could meet this standard by showing that successful completion of the test is necessary to the safe and efficient performance of the job. The challenged policy or practice should therefore be associated with the skills needed to perform the job successfully. In contrast to a general measurement of the applicants’ skills, the challenged policy or practice must evaluate an individual’s skills as related to the particular job in question.”⁵ If the employer shows that the selection procedure is job-related and consistent with business necessity, the person challenging the selection procedure must demonstrate that there is a less discriminatory alternative, such as another available test “that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group.” Fact Sheet; see also 42 U.S.C. § 2000e-2(k).⁶

Given this legal framework, “employers should [adopt] tests or selection procedures that are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose.” See Fact Sheet (employer best practices). However, even under the disparate impact theory of discrimination, there is no requirement that all applicants for the same position at the same time be asked the same questions or be routed through the same application process.

It may well be, as you imply in your letter, that the best business practice an employer could adopt in terms of hiring the applicants with the best qualifications is one that routes all applicants through a written questionnaire and a face-to-face interview with a trained professional. Such a practice is not, however, a requirement under federal EEO law.

I hope this discussion of the issues is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission (EEOC).

Sincerely,

/s/
Reed L. Russell
Legal Counsel

Footnotes

¹ If an employment selection procedure, including a qualification standard, disproportionately excludes members of a protected class, the employer must show that it is “job-related and consistent with business necessity” under Title VII, 42 U.S.C. § 2000e-2(k)(1) or based on a “reasonable factor other than age” under the Age Discrimination in Employment Act, 29 U.S.C. § 623(f)(1). See infra discussion of Disparate Impact.

² See EEOC Guidance: Preemployment Disability-Related Questions and Medical Examinations (Preemployment Questions) (October 1995) for a thorough discuss of the questions and examinations that are and are not permitted by the ADA during the application process.

³ An employer may ask a particular applicant to describe or demonstrate how she would do the job if other applicants are not asked, only if the employer could reasonably believe that an applicant will not be able to perform a job function because of a known disability. An applicant’s disability is “known” either because it is obvious (e.g., the applicant uses a wheelchair) or because the applicant has voluntarily disclosed a hidden disability. See Preemployment Questions at 5.

⁴ Although you do not specifically ask about the legality of psychological examinations, your letter mentions the use of “psychological testing” and we therefore suggest that you refer to EEOC’s Preemployment Questions at 11 for information concerning when psychological examinations are considered “medical” in nature and thus prohibited prior to a conditional job offer.

⁵ The Fact Sheet is available at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

⁶ This method of analysis is consistent with the seminal Supreme Court decisions about disparate impact discrimination, Griggs v. Duke Power Co., 401 U.S. 424 (1971). In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII. See 29 C.F.R. Part 1607. UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation. According to UGESP, when conducting a validation study, employers should investigate whether there are multiple testing or selection procedures “which serve the [employer’s] legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose.” 29 C.F.R. § 1607.3B; see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). If so, the employer should select the procedures “which have as little adverse impact as possible.” 29 C.F.R. § 1607.3B.

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