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

Title VII, ADEA: Preemployment Inquiries

May 31, 2000

Dear :

This is in response to your letter of March 15, 2000, in which you asked us to review a list of sample questions that may be used on application forms and in interviews with applicants for your apprenticeship programs. We reviewed these questions to determine if they pose problems under the laws enforced by the Equal Employment Opportunity Commission: Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination based on disability; Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, and national origin; and the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination based on age against persons who are forty years of age or older.

Preemployment Inquiries Under the ADA

Under the ADA, an employer or labor organization may not ask disability-related questions and conduct medical examinations until after it makes a conditional job offer. 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13(a), .14(a), (b). A disability-related question is one that is likely to elicit information about a disability. EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995) at 4 (copy enclosed). A job offer is real if the employer (or labor organization) has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer. Enforcement Guidance at 18. 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. 42 U.S.C. §12112(d)(3); 29 C.F.R. § 1630.14(b)(1), (2). 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." Enforcement Guidance at 2.

None of the questions on the list you enclosed are disability-related questions; therefore they may be used on application forms or in interviews. If, however, a particular applicant reveals information about a disability in response to one of the questions, the apprentice program administrator may not ask follow-up questions about the disability. On the other hand, if the information learned about an applicant's disability gives rise to a reasonable belief that the applicant could not perform the job's essential functions, the administrator may ask the applicant to describe or demonstrate how s/he would perform the job. Similarly, if, based on information learned in response to a question that is not disability-related, the administrator has a reasonable belief that an applicant will need a reasonable accommodation to perform essential functions, the applicant may be asked whether s/he needs accommodation, and if so, what type. See Enforcement Guidance at 5,6.

Preemployment Inquiries Under the ADEA and Title VII

We see no ADEA implications based on the questions in your list.

The following questions are not per se violations of Title VII, but we want to alert you to potential issues that may arise. We will provide you with general guidance.

Section VI. Attendance/Punctuality/Attitude

We recognize that the purpose of the question "how many Mondays or Fridays were you absent last year on leave other than approved vacation leave," is to determine if an applicant has abused leave by extending their weekends. However, this question may have Title VII implications if it is used to reject applicants who observe their Sabbath as part of their religious practices. Queries relating to availability for work on Friday evenings, Saturdays, Sundays, or holidays should not be made unless the employer can show that such inquiries do not have an exclusionary effect on its employees or prospective employees who need accommodation for their religious practices, or that such inquiries are justified by business necessity. Employers should consider alternative procedures that serve their legitimate business interests and which would have a lesser exclusionary effect on persons whose religious beliefs need accommodation. EEOC Religious Discrimination Guidelines, 29 C.F.R. § 1605.3(b)(2). Section 1605.3(b)(3) of the Guidelines further provides that:

The Commission will infer that the need for accommodation discriminatorily influenced a decision to reject an applicant when: (i) prior to an offer of employment the employer makes an inquiry into an applicant's availability without having a business necessity justification; and (ii) after the employer has determined the applicant's need for an accommodation, the employer rejects a qualified applicant. The burden is then on the employer to demonstrate that factors other than the need for an accommodation were the reason for rejecting the qualified applicant, or that a reasonable accommodation without undue hardship was not possible.

Therefore, we recommend that, if you use this question, you give the applicant an opportunity to explain his/her reasons for being off on Mondays or Fridays. Alternatively, you may amend the question as follows: "How many Mondays or Fridays were you absent last year on leave other than approved vacation or leave for religious observance?" (new language in bold)

Section VII. Education

Employers must simply be sure that pre-employment inquiries concerning educational attainment reflect legitimate job requirements. Generally, employers should not inquire about matters which may disproportionately exclude members of protected groups, unless the inquiry concerns a legitimate attribute for the job, i.e., the employer can show that the requirement is job related and consistent with business necessity. For example, Title VII may be violated where education requirements disproportionately disqualify protected groups and there is no evidence that the requirement is related to successful job performance or is required by business necessity.

Section XVII. Criminal Records

It is permissible for employers to ask about conviction records if the employer can show that it is job related and consistent with business necessity. See Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975) (employer's absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense is discriminatory because it has an adverse impact on minorities and is not justified by business necessity). For more information concerning the use of conviction records, see EEOC Policy Guidance No: N-915, "Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment," July 29, 1987 (attached); EEOC Policy Guidance No: N-915, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964," February 4, 1987(attached).

Section XVIII. Questions asked for Affirmative Action Purposes (Optional and on Separate Form).

This section requests the applicant's race, sex, national origin, and age. Employers may have a legitimate need for this information for affirmative action purposes or to track applicant flow. These questions are legal if they are noted on a separate form and are not used in the selection process. There are several methods that employers may use to enable them to acquire the necessary information and simultaneously defend themselves against charges of discriminatory selection. For instance, data necessary for applicant flow can be obtained by the use of "tear-off sheets" in the hiring process so that after completing the application and the tear-off portion, the tear-off sheet is separated from the application and is not used in the selection process. Robinson v. Adams, 847 F.2d 1315 (9th Cir. 1987) (Title VII is not violated where the screener is unaware of the plaintiff's race, which was noted only on a separate sheet from the application), cert. denied, 490 U.S. 1105 (1989).

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-12(b).

Sincerely,

Peggy R. Mastroianni
Associate Legal Counsel

Enclosures

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