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 Examinations – Pre-Offer

November 8, 2005

Dear :

I am responding to your October 26, 2005 e-mail to Laurie Vasichek of our Minneapolis Area Office. You have asked about a reference in EEOC's Interim Report on Best Practices for the Employment of People with Disabilities in State Government (October 29, 2004) (Interim Report) to Vermont's practice of granting a mandatory interview for any state job to anyone who meets the ADA's definition of an "individual with a disability" and who is at least minimally qualified for the job. Specifically, you have asked whether a supervisor or manager involved in the interview process is entitled to know whether an applicant who has requested a mandatory interview has a disability.

The ADA prohibits inquiries about whether a job applicant has a disability or as to the nature or extent of an applicant's disability until after a job offer is made. However, EEOC has recognized an exception to this rule when an employer is seeking disability-related information as part of an affirmative action program that is either mandated by law or voluntarily undertaken by the employer and provides some benefit to individuals with disabilities. See "Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations" (October 10, 1995), at http://www.eeoc.gov/policy/docs/preemp.html.

While Vermont offers only an opportunity to be interviewed, not a hiring preference, the practice would still fit within the exception to the ban on pre-employment disability-related inquiries that we have recognized for affirmative action purposes, if the interview offers a person with a disability a real opportunity to compete for a job, the information sought from the applicant is no more than necessary to determine the applicant's eligibility for a mandatory interview, and all information from the applicant is provided voluntarily. Your questions seem to envision a scenario in which the determination of whether an applicant has a qualifying disability is made by someone other than the interviewing supervisor or manager. When this is the case, the supervisor or manager would only be entitled to know that the applicant has a disability that qualifies him or her for an interview, since any other information (e.g., concerning the nature of the disability) would be unnecessary to implement the mandatory interview process. During the interview, the supervisor or manager may not inquire into the nature and extent of the disability, but may ask about the need for a reasonable accommodation if the disability is obvious or the applicant discloses it, and if the interviewer reasonably believes that an accommodation would be necessary to do the job.

On October 31, 2005, EEOC issued its Final Report on Best Practices for the Employment of People with Disabilities in State Government.[1] That report includes the same information about Vermont's mandatory interview that was included in last year's Interim Report, as well as contact information for someone in Vermont who may be able to tell you more about how that state puts the mandatory interview process into practice.

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

Sincerely,

Christopher J. Kuczynski
Assistant Legal counsel
ADA Policy Division

[1] See http://www.eeoc.gov/initiatives/nfi/final_states_best_practices_report.html.

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