QUESTIONS AND ANSWERS: THE AMERICANS WITH DISABILITIES ACT AND HIRING POLICE OFFICERS

14. Q: May a police department wait to conduct a background check on applicants until after the information from the medical exam has been reviewed -- which is after a conditional offer of employment has been made?

A: Yes, in certain circumstances. In general, a job offer is not viewed as "bona fide" under the ADA, unless an employer has evaluated all relevant non-medical information which, from a practical and legal perspective, could reasonably have been analyzed prior to extending the offer. However, a law enforcement employer may be able to demonstrate that a proper background check for law enforcement personnel could not, from a practical perspective, be performed pre-offer because of the need to consult medical records and personnel as part of the security clearance process. Where the police department uses the information from the medical exam during the background check, doing the background check at the post-offer stage saves the police department the cost of doing a second background check.

Federal investigators will carefully scrutinize situations in which a police department withdraws an offer after a post-offer background examination to determine whether the withdrawal was based on non-medical information in the background check or on information obtained through post-offer medical examinations and disability-related inquiries. If it is determined that the offer was withdrawn because of the applicant's disability, then the police department must demonstrate that the reasons for the withdrawal are job-related and consistent with business necessity.