When the Americans With Disabilities Act (ADA) first took effect, it applied only to law firms with 25 or more employees. But on July 26, 1994, the ADA began to apply to firms with 15 or more employees. These firms need to review their employment practices to be sure they do not violate the ADA. All firms, however, need to re-evaluate their hiring procedures due to recent guidance from the Equal Employment Opportunity Commission (EEOC).
In May of 1994, the EEOC released its Enforcement Guidance on Pre-Employment Disability-Related Inquiries and Medical Examinations Under the Americans With Disabilities Act of 1990 (Guidance). The Guidance tells employers what the EEOC will look for when it investigates charges of disability discrimination. The EEOC wants to keep employers from getting any information about disabilities during initial interviews. But even the EEOC admits that the distinction between permissible and impermissible questions is often subtle.
The Guidance focuses on two parts of the pre-employment relationship. Pre-employment means any time before an applicant begins working for an employer. The pre-employment relationship has two parts. First, there is the pre-offer stage, which is before an applicant has been given a conditional offer of employment. Second, there is the post-offer stage, which is after an offer has been made but before the person starts work. Questions and medical examinations that may be prohibited at the pre-offer stage may be permissible at the post-offer stage.
1. Don't ask questions about obvious disabilities. Don't ask, "Why do you use that wheelchair?" It's rude, and it's discriminatory.
2. Don't ask general questions about disabilities. Don't ask, "Do you have a disability that would prevent you from performing the essential functions of the job with or without a reasonable accommodation?" Stick with job-related questions. You can tell an applicant that the job requires employees to lift 30-pound boxes and move them down a flight of stairs 20 times a day. You can then ask, "Can you do that with or without a reasonable accommodation?"
3. Don't ask about the existence, nature or severity of a disability. Never ask, "Do you have AIDS?" (or any other specific disease or disability). The Guidance mentions that federal law prohibits anyone with epilepsy from being an interstate truck driver. Nevertheless, at the pre-offer stage, an interstate trucking employer cannot ask an applicant if the applicant has epilepsy.
4. Be careful what you ask about impairments. An impairment is a disability only if it substantially limits one or more major life activities. You may ask, "How did you break your arm?" because the question does not focus on a disability. But don't ask, "How bad is that break?" or "Do you think it will heal properly?"
5. Be careful with questions about limitations in performing major life activities. Don't ask a secretarial applicant questions like, "Can you stand?" or "Can you walk?" These questions about a major life activity are probably not job-related. You can ask questions about above-average performance of major life activities such as, "Can you walk two miles without discomfort?"
6. Do not ask questions if you reasonably expect the answers to relate to disabilities. You may ask, "How well do you handle stress on the job?" That's acceptable because people without disabilities may not handle stress well. But you cannot ask, "Have you ever been treated for your inability to handle stress?" Similarly, because many people without disabilities do not have perfect eyesight, you may ask, "Do you have 20/20 corrected vision?" But you cannot follow up that question to find out the applicant's corrected vision.
7. If an applicant volunteers information about a disability, don't follow up with a disability-related question. Sometimes applicants volunteer information about disabilities, even when interviewers haven’t asked about them. An applicant may volunteer that she has multiple sclerosis. Do not ask questions like, "How does that affect your work?" or "What's your prognosis?"
8. Use caution when asking about drug use. You may ask, "Have you ever used illegal drugs?" But don't ask, "How often have you used drugs illegally in the past?" Don't ask, "Have you ever been treated for drug addiction?" The ADA does not prohibit an employer from asking about arrests or convictions relating to drugs; however, these questions may be discriminatory under Title VII of the Civil Rights Act.
9. Be careful what you ask about alcohol. Alcoholism is a disability, so don't ask, "Are you an alcoholic?" You may ask, "Do you drink?" but not, "How much do you drink each week?"
10. Be careful what you ask about attendance. You may tell applicants your attendance policy and ask if they can meet it, for example: "Our employees work from 8:00 a.m. to 5:00 p.m. Monday through Friday. Can you meet those requirements with or without a reasonable accommodation?" You can ask, "How many days of work did you miss last year?" But don't ask, "How many sick days did you take last year?" If the applicant says, "I was absent six months last year," you cannot ask why.
11. Don't ask anyone else something you couldn't ask an applicant directly. Don't try to circumvent these rules by calling the applicant's former employer. If you can't ask the applicant something, you can't ask anyone else.
12. Understand the rules about asking an applicant to describe or demonstrate job-related functions. If you cannot reasonably believe that a known disability will interfere with job-related functions, don't ask the applicant to describe or demonstrate (with or without reasonable accommodations) part of the job, unless you ask all applicants to describe or demonstrate the function. For example, you could not ask a secretarial applicant to demonstrate how to handle phone calls simply because the applicant had only one leg, unless you would ask all other applicants for the same demonstration.
The Guidance says that an employer could ask an applicant with one leg to demonstrate the functions of a telephone lines person. That's different from the secretarial example because the employer could reasonably believe that the disability could interfere with the applicant's job performance.
If an applicant voluntarily discloses a hidden disability that could reasonably interfere with job-related functions, you may follow up with appropriate questions. The Guidance gives an example of an applicant who volunteers that he has claustrophobia. A prospective employer could ask how that would interfere with a job repairing underground sewers.
13. Know what you can ask about reasonable accommodations. Employers can tell applicants in advertisements or on applications about selection procedures like interviews, tests or job demonstrations. Then the employer can ask applicants if they need reasonable accommodations for that selection procedure. For example, an application could describe a required written test and ask the applicant to give the employer advance notice of the need for a reasonable accommodation.
If the applicant asks for a reasonable accommodation, you may ask for a doctor to document the disability. If an applicant claims he can't read an application because of dyslexia, you can ask for a doctor's letter verifying that the applicant's inability to read is due to a mental or physical disorder and not to a lack of education.
14. You may ask applicants if they have required certifications or licenses. You may ask applicants for attorney positions whether they are licensed to practice in your state. If an applicant says, "No," don't ask why. But if an applicant volunteers, "Because I missed the last bar exam while I was undergoing chemotherapy," you have not violated the ADA.
15. You may ask about eating and exercise habits. Most firms probably don't care about an applicant's eating and exercise habits. You may ask, "Do you eat three meals a day?" If the applicant says, "No, I eat more frequently because I have diabetes," you cannot follow up with a question about the applicant's condition.
Can your law firm require applicants to take a medical examination? That depends on when you schedule them. Pre-offer medical examinations (before the employer makes a conditional offer of employment) are discriminatory.
The Guidance says: "Medical examinations are procedures or tests that seek information about the existence, nature or severity of an individual's physical or mental impairment, or that seek information regarding an individual's physical or psychological health." The EEOC uses these questions to determine if a procedure is a medical examination:
- Is the test given by a health care professional or someone trained by a health care professional?
- Are the test results interpreted by a health care professional or someone trained by a health care professional?
- Is the test designed to reveal a problem or the state of the person's physical or psychological health?
- Is the test or procedure invasive (like a blood or urine test)?
- Does the test measure physiological or psychological responses instead of how an individual performs a task?
The Guidance also tells employers how the EEOC views several different types of tests:
1. Physical agility or physical fitness tests. Asking applicants to perform job-related functions like lifting a box isn't a medical test. You could ask applicants for messenger positions to run a mile in 20 minutes. But you can't take their blood pressure at the end of the test. Employers can ask applicants to sign releases before taking these tests. They can also give applicants a description of a physical fitness test and ask applicants to have their doctors certify that they can take the test safely.
2. Psychological examinations. The EEOC will look at a number of factors to determine if tests for intelligence, aptitude, honesty and personality are medical tests. Tests designed to measure an applicant's mental health or impairment are not permitted. You may give a test to see if an applicant is likely to lie. But if you work with a psychologist to look for a pattern of answers suggesting a psychological impairment, the test is not permissible. When giving these kinds of tests, you cannot ask:
- How often have you used illegal drugs in the past?
- Are you currently being treated for mental illness?
- Have you ever had psychological counseling?
- Do you take medication for any reason?
- How often do you drink?
3. Polygraph examinations. Few firms use polygraph examinations, in part because federal law and some state laws also limit the use of polygraph examinations for reasons unrelated to disability discrimination. Under the ADA, polygraph tests are not medical examinations. But questions generally used when giving these tests are not permissible. People taking polygraphs are often asked if they have taken any medication that could skew the results. This question cannot be asked at the pre-offer stage.
4. Vision tests. Whether these tests are permissible depends on the circumstances. An employer could ask an applicant for a position in a laboratory to distinguish between chemicals on a shelf if this is part of the job. But the employer cannot ask the applicant to read from an eye chart or require the applicant to have an eye examination by a doctor.
5. Drug tests. Drug tests are legal at the pre-offer stage. But the employer may not ask questions about drug use at the time of the test. If the applicant tests positive, the employer can ask whether the applicant used lawful prescription drugs that may have skewed the test.
6. Blood, urine or breath tests for alcohol. You cannot use blood, urine or breath tests to test for alcohol at the pre-offer stage.
Post-Offer Examinations and Inquiries
After an offer but before an applicant begins work, an employer may require a medical examination or ask questions about disabilities if:
- All entering employees in the same job category are given the examinations and inquiries; and
- The information is kept confidential.
These questions do not have to be job-related if they are given to everyone. Specific follow-up questions may be allowed at the post-offer stage. For example, at the post-offer stage, an employer may ask all entering employees if they have had back injuries. The employer may require people who say "yes" to have their backs examined. But the EEOC's warns: "If an exam or inquiry is used to screen out an individual with a disability as a result of the disability, the exclusionary criteria must be job-related and consistent with business necessity, and the employer must demonstrate to the investigator that the essential functions could not be performed with reasonable accommodation."
Bona Fide Offers
Employers cannot condition job offers on medical examinations unless the job offer is bona fide. That means the employer has evaluated all possible non-medical information. Sometimes it's not possible to evaluate all non-medical information before making a conditional offer. For example, an applicant could ask your firm not to check references with a current employer until after a conditional offer. When a prospective employer withdraws a conditional offer of employment after a medical exam, the EEOC will closely scrutinize the decision to be sure it was not discriminatory.
Bona fide offers are not limited to vacant positions; sometimes employers use pools of qualified applicants to fill anticipated openings. The Guidance says pools are not acceptable for all jobs: "It is unlikely a typical law firm can demonstrate that it needs to make offers to three applicants for one available attorney position. The law firm probably cannot demonstrate that it must have a ready pool of lawyers to fill vacancies, and that offers to two or three attorneys are likely to be revoked based on post-offer examinations or procedures."
Employers which use applicant pools must hire based on objective criteria, like application dates. They cannot, for example, maintain a pool of 20 applicants and select among the 20 for non-objective or discriminatory reasons. There are also special rules for ranking and re-ranking people in the pool.
Documenting the Need for Reasonable Accommodation
If an applicant asks for a reasonable accommodation at the post-offer stage, the employer may ask for documentation of the need for the accommodation and the individual's limitations. For example, after a conditional offer of employment, an individual may request 15-minute breaks every two hours to eat a snack to control her blood sugar. The employer may ask for her doctor to document that she has diabetes and needs the breaks.
Law firms need to keep medical information confidential and in separate personnel folders from non-medical information. Employers can disclose ADA information to a limited group of people such as supervisors and managers who need to know restrictions on work or duties or about reasonable accommodations. They can notify safety and first aid personnel, if a disability may require emergency treatment. Employers can disclose ADA information to government officials investigating ADA compliance, and they can share medical information with workers' compensation carriers or state agencies. Finally, firms can provide ADA information to insurance carriers.
Employers must keep information confidential even if the applicant was not hired or is no longer employed there. Employers can involve appropriate decision-makers to evaluate medical information at the post offer stage. If, for example, after extending a conditional offer of employment, a firm is asked for a reasonable accommodation by an individual with paraplegia, the firm may consult experts for advice.
The Guidance says law firms should limit information about disabilities to people involved in making the hiring decision: "For example, in some cases, a number of people may be involved in evaluating an applicant; some individuals may simply be responsible for evaluating an applicant's references. These individuals may have no reason to know an applicant's medical condition and therefore, should not have access to the information."
Law firms should evaluate their hiring procedures in light of the EEOC's Guidance. People in your firm may be conducting interviews with no training about interviewing. And how many partners (except for employment law experts) know they shouldn't ask an applicant about sick days? Educate your interviewers so your firm can avoid the problems associated with ADA violations.
INTERVIEW QUESTIONS THAT DON'T VIOLATE THE ADA
- Can you perform the essential functions of this job with or without are reasonable accommodation?
- Please describe or demonstrate how you would perform the essential functions of this job
- Can you meet the attendance requirements of this job?
- Do you think you handle stress well?
- Do you use illegal drugs?
- Are you licensed to practice law in this state?
INTERVIEW QUESTIONS THAT VIOLATE THE ADA
- How many sick days did you take last year?
- Have you ever been injured on the job or filed a workers' compensation claim?
- Are you in good health?
- Do you have cancer [or AIDS, epilepsy, diabetes, etc.]?
- How much do you drink each week?
- Have you ever been treated for alcohol or drug addiction?
- Have you ever been treated for mental illness?
- Do you have a disability that would affect your job performance?
- What kind of prescription drugs do you take?