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
August 11, 2000
This responds to your May 26, 2000, letter concerning the Americans with Disabilities Act of 1990 (ADA).
In your letter, you state that your law firm represents a private business that provides rehabilitative services for people with drug, alcohol, and other addictions. You also state that your client's most successful rehabilitation counselors are people who have histories of past addiction and have been successfully rehabilitated. In light of this, you ask whether your client may ask applicants for rehabilitation counselor positions about their experiences with addiction or dependency and rehabilitation. You also ask whether your client may give a hiring preference to applicants who disclose that they have had addictions or dependencies and have successfully participated in rehabilitation programs.
As you know, under the ADA, an employer may not ask disability-related questions until after it makes a conditional job offer to the applicant. 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13(a). Once a conditional job offer is made, the employer may ask disability-related questions if this is done for all entering employees in that job category. 42 U.S.C. § 12112(d)(3); 42 U.S.C. § 1630.14(b). Questions about an applicant's past addictions to drugs or alcohol, including questions whether a person has participated in a rehabilitation program, are disability-related and may not be asked before an offer of employment is made. See EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995).
As you noted in your letter, however, an employer may ask applicants voluntarily to self-identify as individuals with disabilities for purposes of the employer's affirmative action program. The employer may invite self-identification only if it uses the information to benefit individuals with disabilities, and it must meet the criteria outlined in the EEOC Enforcement Guidance (which you quoted in your letter).
Although not clear, it appears from you letter that your client prefers counselors with histories of drug or alcohol addiction but has not established an affirmative action program that benefits people with those disabilities. You may wish to determine whether your client in fact has such a program or wants to establish one. If your client has or establishes a program that meets the criteria outlined in the EEOC Enforcement Guidance, then your client may invite applicants voluntarily to self-identify as individuals with disabilities. The invitation to self-identify, however, should be limited to whether the applicant is an individual with the targeted disabilities (such as a history of alcoholism or drug addiction) and should not inquire further about disability or rehabilitation. For example, your client should not ask pre-offer about specific rehabilitation programs or the applicants' experiences with addiction.
Your client, of course, may ask disability-related questions, including questions about addictions and rehabilitation, at the post-offer stage if it does so for all entering rehabilitation counselors. Accordingly, your client might want to inform applicants of its preference for counselors with histories of addiction but wait until the post-offer stage to ask questions about that. The ADA does not prohibit employers from giving a hiring preference to people with disabilities.
This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
This page was last modified on April 27, 2007.
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