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; Hiring

March 31, 2008

Dear____:

This is in response to your email dated January 29, 2008, to the Equal Employment Opportunity Commission’s (EEOC or Commission) Baltimore Field Office, asking whether the Americans with Disabilities Act (ADA) permits the hiring officials of the ____ unit, to review the pre-employment medical examination results of applicants and use the results to sort and rank the applicants. In a conversation with Danielle Hayot, an attorney in this office, on March 12, 2008, you explained that the ____ is considering whether it can use information about an applicant’s weight, high blood pressure, diabetes, and other conditions to exclude applicants for law enforcement positions.

A. Disability-Related Inquiries and Medical Examinations in General

Title I of the ADA prohibits private, state, and local government employers with fifteen or more employees from discriminating against qualified individuals with disabilities. 42 U.S.C. §§ 12102-12213. A qualified individual with a disability is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with our without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. §1630.2(m). As you may know, under the ADA, an individual with a disability is someone who has an impairment that substantially limits (i.e. significantly restricts) one or more major life activities, has a record of a substantially limiting impairment, or is regarded (or treated) as having a substantially limiting impairment. 29 C.F.R. § 1630.2(g). Major life activities include such basic activities as walking, seeing, hearing, speaking, breathing, performing manual tasks central to most people's daily lives, caring for oneself, learning, and working. Sitting, standing, lifting, and reaching are also major life activities, as are thinking, concentrating, interacting with others, and sleeping. These examples of major life activities are not exhaustive.

Title I of the ADA also strictly limits the circumstances under which employers may make disability-related inquiries or require medical examinations of applicants and employees. Except in certain limited circumstances, an employer may not ask applicants disability-related questions or require them to undergo medical examinations before a job offer is made. Once the employer has obtained and evaluated all non-medical information and has made a “real offer” of employment, it may require all entering employees in the same job category to answer disability-related questions or submit to medical examinations and may conduct medically related follow-up examinations.¹

If an employer screens out an individual because of a disability based on the results of a post-offer medical examination or disability-related inquiry, the employer must demonstrate that the reason(s) for the rejection is/are job-related and consistent with business necessity. 42 U.S.C. §12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3). This means that the applicant is unable to perform the essential functions of the job, with or without a reasonable accommodation, or, where the employer rejects the applicant for safety reasons, that the individual poses a “direct threat” (i.e. a significant risk of substantial harm to self or others that cannot be reduced or eliminated through reasonable accommodation). 29 C.F.R. §§ 1630.2(r), 1630.15(b).

Medical information may be given to -- and used by -- appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA. Of course, the employer may only share the medical information with individuals involved in the hiring process who need to know the information. For example, an employee who is responsible only for determining whether an applicant meets the basic qualifications for a job or for interviewing the applicant, but not for making the ultimate hiring decision, would not be entitled to the applicant’s medical information.

B. Sorting and Ranking Applicants on the Basis of Medical Exam Results

As noted above, if an employer withdraws a job offer to an individual with a disability based on post-offer medical information, it must demonstrate that the individual cannot perform the job’s essential functions, with or without reasonable accommodation, or would pose a direct threat. Ranking and sorting applicants based on post-offer medical information would violate the ADA to the extent that qualified individuals are excluded from jobs or assigned to lower-ranking and/or lower-paying jobs because of a current or past disability, or because the employer regarded them as disabled (i.e., because the employer believes applicants with certain impairments are substantially limited in their ability to work).

However, not every physical characteristic constitutes an impairment that implicates potential ADA coverage.² For example, normal deviations in height, weight, or strength are not impairments. Thus, it would generally not violate the ADA to exclude someone from a job who exceeds what an employer considers an acceptable weight.³ Morbid obesity, however (i.e., weight that is 100% or more over what is considered normal) is an impairment, and it will be considered a disability if the applicant or employee can show that it substantially limits a major life activity, substantially limited a major life activity in the past, or is regarded as substantially limiting. While an individual with morbid obesity may experience limitations that make him or her unqualified for a particular job, it would violate the ADA to exclude someone whose morbid obesity is a disability from a job for which he or she is qualified. Similarly, withdrawing a job offer because a post-offer medical examination reveals that the applicant has high blood pressure, diabetes, or another impairment will violate the ADA if the impairment is, was, or is regarded as substantially limiting, the applicant is qualified for the position in question, and he does not impose a direct threat.

However, if the type of law enforcement positions at issue constitute “positions affecting public safety” within the meaning of EEOC enforcement guidance, it would be permissible under the ADA for the ____ to conduct periodic medical examinations of such individuals. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Questions 8, 18 (2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. Further, the ____ could conduct physical agility tests before an offer of employment is made and can conduct periodic physical agility tests of employees. 29 C.F.R. § 1630.14(a), App.⁴ However, the ____ would need to show, as with a post-offer medical exam, that the reason(s) for screening out any applicants or employees with disabilities on the basis of the physical agility test is/are job-related and consistent with business necessity. Id.

I hope this information is helpful to you. This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

Sincerely,

/s/
Reed L. Russell
Legal Counsel

¹ The[0] rules concerning pre-employment disability-related questions and medical examinations may be found at 42 U.S.C. § 12112(d); 29 C.F.R. §§1630.13, 1630.14; and EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), available at http://www.eeoc.gov/policy/docs/preemp.html.

² A physical or mental impairment means (1) [a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or `(2) [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h).

³ We express no view here as to whether height and weight standards may violate other employment discrimination laws, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., where they have an adverse impact (e.g., on the basis of sex).

⁴ Physical agility tests measure an applicant’s or employee’s ability to perform job-related tasks. As long as they measure only the ability to perform the tasks, and not the applicant’s or employee’s physiological responses to performing them (e.g., the applicant’s or employee’s heart rate or blood pressure before and after performing the tasks), physical agility tests are not medical examinations.

This page was last modified on May 6, 2008.

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