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 Examinations
February 14, 2002
This letter responds to your inquiry concerning conditional offer of employment procedures particularly in relation to polygraph examinations and psychological tests conducted by police and fire departments in Southern California. You have asked for some guidance in setting up a conditional offer of employment procedure in compliance with the ADA. Specifically, you want to know whether and under what circumstances an offer of employment (1) may be conditioned upon the results of a polygraph examination, a comprehensive background check, a psychological evaluation, and a medical examination; and (2) may be extended to more applicants than there are positions available.
As you are aware, the ADA prohibits employers from asking disability-related questions and requiring medical examinations of job applicants prior to giving an applicant a conditional job offer. After an offer of employment is made, an employer may make disability-related inquiries and require medical examinations, as long as it does so for all entering employees in the same job category. In order for a conditional job offer to be considered a real offer, the employer must have evaluated all non-medical information which it could have reasonably obtained and evaluated prior to extending the offer (e.g., any written or oral exams or a physical agility test).
In other words, all non-medical information about a job applicant generally must be obtained and evaluated pre-offer, unless an employer can demonstrate that it could not reasonably have done so.
A disability-related inquiry is a question or series of questions likely to elicit information about a disability. A medical examination is a test or procedure designed to measure an individual's physical or mental impairments or health. The EEOC has enumerated a list of factors, none of which is exhaustive, for determining whether a test or procedure is a "medical examination." These factors, along with the other principles discussed in this letter, can be found in the enclosed Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995).
Polygraph Examinations and Background Investigations
Under the ADA, polygraph tests are not medical examinations. This means that generally they must be administered prior to a real job offer, unless an employer can demonstrate that it could not reasonably have done so. For example, if a polygraph examination includes some questions that are disability-related and others that are not, the employer may be able to demonstrate that it would be too costly to ask the non-medical questions pre-offer and then administer the test a second time at the post-offer stage to ask the disability-related questions. The number of applicants to whom a polygraph examination or a background check would need to be given may also be a factor in determining whether it would be too costly to conduct it pre-offer. In addition, the complexity of the investigation, and the length of time needed to complete it may be considered in determining whether it would be too costly to conduct a polygraph examination or background investigation pre-offer. For example, where a police department has a large number of applicants for relatively few positions, it is more likely that it could demonstrate the need to do a polygraph examination or background check post-offer.
Your letter mentions psychological evaluations, but does not describe their content or purpose. Assuming that the test is medical (e.g., because it measures whether someone has one of the conditions listed in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders) it must be administered post-offer.
Extending Offers That Exceed the Number of Vacancies
An employer need not limit the number of conditional offers to the number of vacant positions, but may take into account reasonably anticipated vacancies. Additionally, if an employer can demonstrate that a number of individuals will be disqualified based on information obtained post-offer, it may extend more offers than spaces available or anticipated vacancies. Accordingly, a police or fire department may extend more conditional offers of employment than spots vacant if it can demonstrate that it needs to give more offers to actually fill vacancies or reasonably anticipated openings (e.g., if it could be demonstrated that a certain number of offerees will be disqualified based on information learned post-offer or will voluntarily withdraw from consideration).
Withdrawing an Offer of Employment
If an employer withdraws a job offer from an individual with a disability based on medical information learned during the post-offer stage, the employer must show that the decision to reject the individual was job-related and consistent with business necessity in accordance with the ADA. This means that the employer must be able to show that the individual is unable to perform the essential functions of the position in question, with or without reasonable accommodation, or, where the reason for withdrawing the offer is related to safety, that the individual will pose a "direct threat." If an employer permissibly extends more offers than there are positions available and removes an applicant from the pool, it must notify the individual (orally or in writing) if the decision to do so was based on post-offer examination results or answers to disability-related questions.
I hope that this information has been helpful to you. Please note that this letter is an informal discussion of the issues raised by you and is not an official opinion of the EEOC. In addition, our failure to address other matters that may have been presented should not be construed as agreement with statements or analysis related to those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
This page was last modified on April 27, 2007.
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