Title I Technical Assistance Manual

5.5 Pre-Employment Inquiries

The ADA Prohibits Any Pre-Employment Inquiries About a Disability.

This prohibition is necessary to assure that qualified candidates are not screened out because of their disability before their actual ability to do a job is evaluated. Such protection is particularly important for people with hidden disabilities who frequently are excluded, with no real opportunity to present their qualifications, because of information requested in application forms, medical history forms, job interviews, and pre-employment medical examinations.

The prohibition on pre-employment inquiries about disability does not prevent an employer from obtaining necessary information regarding an applicant's qualifications, including medical information necessary to assess qualifications and assure health and safety on the job.

The ADA requires only that such inquiries be made in two separate stages of the hiring process.

1. Before making a job offer.

At this stage, an employer:

• may ask questions about an applicant's ability to perform specific job functions;

• may not make an inquiry about a disability;

• may make a job offer that is conditioned on satisfactory results of a post-offer medical examination or inquiry.

2. After making a conditional job offer and before an individual starts work

At this stage, an employer may conduct a medical examination or ask health-related questions, providing that all candidates who receive a conditional job offer in the same job category are required to take the same examination and/or respond to the same inquiries.

Inquiries that may and may not be made at the pre-offer stage are discussed in the section that follows. Guidance on obtaining and using information from post-offer medical and inquiries and examinations is provided in Chapter VI.

5.5(a) Basic Requirements Regarding Pre-Offer Inquiries

• An employer may not make any pre-employment inquiry about a disability, or about the nature or severity of a disability:

  • on application forms

  • in job interviews

  • in background or reference checks.

• An employer may not make any medical inquiry or conduct any medical examination prior to making a conditional offer of employment.

• An employer may ask a job applicant questions about ability to perform specific job functions, tasks, or duties, as long as these questions are not phrased in terms of a disability. Questions need not be limited to the "essential" functions of the job.

• An employer may ask all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.

• If an individual has a known disability that might interfere with or prevent performance of job functions, s/he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however,

• If a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how s/he will perform a job if this is required of all applicants for the position.

• An employer may condition a job offer on the results of a medical examination or on the responses to medical inquiries if such an examination or inquiry is required of all entering employees in the same job category, regardless of disability; information obtained from such inquiries or examinations must be handled according to the strict confidentiality requirements of the ADA. (See Chapter VI.)

5.5(b) The Job Application Form

A review of job application forms should be a priority before the ADA's effective date, to eliminate any questions related to disability.

Some Examples of Questions that May Not be Asked on Application Forms or in Job Interviews:

• Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various conditions and diseases.)

• Please list any conditions or diseases for which you have been treated in the past 3 years.

• Have you ever been hospitalized? If so, for what condition?

• Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?

• Have you ever been treated for any mental condition?

• Is there any health-related reason you may not be able to perform the job for which you are applying?

• Have you had a major illness in the last 5 years?

• How many days were you absent from work because of illness last year?

(Pre-employment questions about illness may not be asked, because they may reveal the existence of a disability. However, an employer may provide information on its attendance requirements and ask if an applicant will be able to meet these requirements. [See also The Job Interview below.])

• Do you have any physical defects which preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations.

• Do you have any disabilities or impairments which may affect your performance in the position for which you are applying?

(This question should not be asked even if the applicant is requested in a follow-up question to identify accommodations that would enable job performance. Inquiries should not focus on an applicant's disabilities. The applicant may be asked about ability to perform specific job functions, with or without a reasonable accommodation. [See Information That May be Asked, below.])

• Are you taking any prescribed drugs?

(Questions about use of prescription drugs are not permitted before a conditional job offer, because the answers to such questions might reveal the existence of certain disabilities which require prescribed medication.)

• Have you ever been treated for drug addiction or alcoholism?

(Information may not be requested regarding treatment for drug or alcohol addiction, because the ADA protects people addicted to drugs who have been successfully rehabilitated, or who are undergoing rehabilitation, from discrimination based on drug addiction. [See Chapter VI. for discussion of post-offer inquiries and Chapter VIII. for drug and alcohol issues.])

• Have you ever filed for workers' compensation insurance?

(An employer may not ask about an applicant's workers' compensation history at the pre-offer stage, but may obtain such information after making a conditional job offer. Such questions are prohibited because they are likely to reveal the existence of a disability. In addition, it is discriminatory under the ADA not to hire an individual with a disability because of speculation that the individual will cause increased workers' compensation costs. (See Chapter IV, 4.5(3), and Chapter IX.)

Information about an applicant's ability to perform job tasks, with or without accommodation, can be obtained through the application form and job interview, as explained below. Other needed information may be obtained through medical inquiries or examinations conducted after a conditional offer of employment, as described in Chapter VI.

5.5(c) Exception for Federal Contractors Covered by Section 503 of the Rehabilitation Act and Other Federal Programs Requiring Identification of Disability.

Federal contractors and subcontractors who are covered by the affirmative action requirements of Section 503 of the Rehabilitation Act may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the affirmative action requirements of Section 503 of the Rehabilitation Act. Employers who request such information must observe Section 503 requirements regarding the manner in which such information is requested and used, and the procedures for maintaining such information as a separate, confidential record, apart from regular personnel records. (For further information, see Office of Federal Contract Compliance Programs listing in Resource Directory.)

A pre-employment inquiry about a disability also is permissible if it is required or necessitated by another Federal law or regulation. For example, a number of programs administered or funded by the U.S. Department of Labor target benefits to individuals with disabilities, such as, disabled veterans, veterans of the Vietnam era, individuals eligible for Targeted Job Tax Credits, and individuals eligible for Job Training Partnership Act assistance. Pre-employment inquiries about disabilities may be necessary under these laws to identify disabled applicants or clients in order to provide the required special services for such persons. These inquiries would not violate the ADA.

5.5(d) Information that May Be Requested on Application Forms or in Interviews.

An employer may ask questions to determine whether an applicant can perform specific job functions. The questions should focus on the applicant's ability to perform the job, not on a disability.

For example: An employer could attach a job description to the application form with information about specific job functions. Or the employer may describe the functions. This will make it possible to ask whether the applicant can perform these functions. It also will give an applicant with a disability needed information to request any accommodation required to perform a task. The applicant could be asked:

• Are you able to perform these tasks with or without an accommodation?

If the applicant indicates that s/he can perform the tasks with an accommodation, s/he may be asked:

• How would you perform the tasks, and with what accommodation(s)?

However, the employer must keep in mind that it cannot refuse to hire a qualified individual with a disability because of this person's need for an accommodation that would be required by the ADA.

An employer may inform applicants on an application form that they may request any needed accommodation to participate in the application process.

For example: accommodation for a test, a job interview, or a job demonstration.

The employer may wish to provide information on the application form and in the employment office about specific aspects of the job application process, so that applicants may request any needed accommodation. The employer is not required to provide such information, but without it the applicant may have no advance notice of the need to request an accommodation. Since the individual with a disability has the responsibility to request an accommodation and the employer has the responsibility to provide the accommodation (unless it would cause an undue hardship), providing advance information on various application procedures may help avoid last minute problems in making necessary accommodations. This information can be communicated orally or on tape for people who are visually impaired. (See also Testing, 5.6 below)

5.5(e) Making Job Applications Accessible

Employers have an obligation to make reasonable accommodations to enable an applicant with a disability to apply for a job. Some of the kinds of accommodations that may be needed have been suggested in the section on Accessibility of Job Information, 5.2 above. Individuals with visual or learning disabilities or other mental disabilities also may require assistance in filling out application forms.

5.5(f) The Job Interview

The basic requirements regarding pre-employment inquiries and the types of questions that are prohibited on job application forms apply to the job interview as well. (See 5.5(a) and (b) above.) An interviewer may not ask questions about a disability, but may obtain more specific information about the ability to perform job tasks and about any needed accommodation, as set out below.

To assure that an interview is conducted in a nondiscriminatory manner, interviewers should be well-informed about the ADA's requirements. The employer may wish to provide written guidelines to people who conduct job interviews.

Most employment discrimination against people with disabilities is not intentional. Discrimination most frequently occurs because interviewers and others involved in hiring lack knowledge about the differing capabilities of individuals with disabilities and make decisions based on stereotypes, misconceptions, or unfounded fears. To avoid discrimination in the hiring process, employers may wish to provide "awareness" training for interviewers and others involved in the hiring process. Such training provides factual information about disability and the qualifications of people with disabilities, emphasizes the importance of individualized assessments, and helps interviewers feel more at ease in talking with people who have different disabilities.

Sources that provide "awareness training," some at little or no cost, may be found under this heading in the Resource Directory Index.

The job interview should focus on the ability of an applicant to perform the job, not on disability.

For example: If a person has only one arm and an essential function of a job is to drive a car, the interviewer should not ask if or how the disability would affect this person's driving. The person may be asked if s/he has a valid driver's license, and whether s/he can perform any special aspect of driving that is required, such as frequent long-distance trips, with or without an accommodation.

The interviewer also could obtain needed information about an applicant's ability and experience in relation to specific job requirements through statements and questions such as: "Eighty-percent of the time of this sales job must be spent on the road covering a three-state territory. What is your outside selling experience? Do you have a valid driver's license? What is your accident record?"

Where an applicant has a visible disability (for example, uses a wheelchair or a guide dog, or has a missing limb) or has volunteered information about a disability, the interviewer may not ask questions about:

• the nature of the disability;

• the severity of the disability;

• the condition causing the disability;

• any prognosis or expectation regarding the condition or disability; or

• whether the individual will need treatment or special leave because of the disability.

The interviewer may describe or demonstrate the specific functions and tasks of the job and ask whether an applicant can perform these functions with or without a reasonable accommodation.

For example: An interviewer could say: "The person in this mailroom clerk position is responsible for receiving incoming mail and packages, sorting the mail, and taking it in a cart to many offices in two buildings, one block apart. The mail clerk also must receive incoming boxes of supplies up to 50 pounds in weight, and place them on storage shelves up to 6 feet in height. Can you perform these tasks? Can you perform them with or without a reasonable accommodation?"

As suggested above, (see 5.5(d)), the interviewer also may give the applicant a copy of a detailed position description and ask whether s/he can perform the functions described in the position, with or without a reasonable accommodation.

Questions may be asked regarding ability to perform all job functions, not merely those that are essential to the job.

For example: A secretarial job may involve the following functions:

• transcribing dictation and written drafts from the supervisor and other staff into final written documents;

• proof-reading documents for accuracy;

• developing and maintaining files;

• scheduling and making arrangements for meetings and conferences;

• logging documents and correspondence in and out;

• placing, answering, and referring telephone calls;

• distributing documents to appropriate staff members;

• reproducing documents on copying machines; and

• occasional travel to perform clerical tasks at out of town conferences.

Taking into account the specific activities of the particular office in which this secretary will work, and availability of other staff, the employer has identified functions 1-6 as essential, and functions 7-9 as marginal to this secretary's job. The interviewer may ask questions related to all 9 functions; however, an applicant with limited mobility should not be screened out because of inability to perform the last 3 functions due to her disability. S/he should be evaluated on ability to perform the first 6 functions, with or without accommodation.

Inquiries Related to Ability to Perform Job Functions and Accommodations

An interviewer may obtain information about an applicant's ability to perform essential job functions and about any need for accommodation in several ways, depending on the particular job applicant and the requirements of a particular job:

• The applicant may be asked to describe or demonstrate how s/he will perform specific job functions, if this is required of everyone applying for a job in this job category, regardless of disability.

For example: An employer might require all applicants for a telemarketing job to demonstrate selling ability by taking a simulated telephone sales test, but could not require that a person using a wheelchair take this test if other applicants are not required to take it.

• If an applicant has a known disability that would appear to interfere with or prevent performance of a job-related function, s/he may be asked to describe or demonstrate how this function would be performed, even if other applicants do not have to do so.

For example: If an applicant has one arm and the job requires placing bulky items on shelves up to six feet high, the interviewer could ask the applicant to demonstrate how s/he would perform this function, with or without an accommodation. If the applicant states that s/he can perform this function with a reasonable accommodation, for example, with a step stool fitted with a device to assist lifting, the employer either must provide this accommodation so that the applicant can show that s/he can shelve the items, or let the applicant describe how s/he would do this task.

• However, if an applicant has a known disability that would not interfere with or prevent performance of a job related function, the employer can only ask the applicant to demonstrate how s/he would perform the function if all applicants in the job category are required to do so, regardless of disability.

For example: If an applicant with one leg applies for a job that involves sorting small parts while seated, s/he may not be required to demonstrate the ability to do this job unless all applicants are required to do so.

If an applicant indicates that s/he cannot perform an essential job function even with an accommodation, the applicant would not be qualified for the job in question.

Inquiries About Attendance

An interviewer may not ask whether an applicant will need or request leave for medical treatment or for other reasons related to a disability.

The interviewer may provide information on the employer's regular work hours, leave policies, and any special attendance needs of the job, and ask if the applicant can meet these requirements (provided that the requirements actually are applied to employees in a particular job).

For example: "Our regular work hours are 9 to 5, five days weekly, but we expect employees in this job to work overtime, evenings, and weekends for 6 weeks during the Christmas season and on certain other holidays. New employees get 1 week of vacation, 7 sick leave days and may take no more than 5 days of unpaid leave per year. Can you meet these requirements?"

Information about previous work attendance records may be obtained on the application form, in the interview or in reference checks, but the questions should not refer to illness or disability.

If an applicant has had a poor attendance record on a previous job, s/he may wish to provide an explanation that includes information related to a disability, but the employer should not ask whether a poor attendance record was due to illness, accident or disability. For example, an applicant might wish to disclose voluntarily that the previous absence record was due to surgery for a medical condition that is now corrected, treatment for cancer that is now in remission or to adjust medication for epilepsy, but that s/he is now fully able to meet all job requirements.

Accommodations for Interviews

The employer must provide an accommodation, if needed, to enable an applicant to have equal opportunity in the interview process. As suggested earlier, the employer may find it helpful to state in an initial job notice, and/or on the job application form, that applicants who need accommodation for an interview should request this in advance.

Needed accommodations for interviews may include:

• an accessible location for people with mobility impairments;

• a sign interpreter for a deaf person;

• a reader for a blind person.

Conducting an Interview

The purpose of a job interview is to obtain appropriate information about the background qualifications and other personal qualities of an applicant in relation to the requirements of a specific job.

This chapter has discussed ways to obtain this information by focusing on the abilities rather than the disability of a disabled applicant. However, there are other aspects of an interview that may create barriers to an accurate and objective assessment of an applicant's job qualifications. The interviewer may not know how to communicate effectively with people who have particular disabilities, or may make negative, incorrect assumptions about the abilities of a person with a disability because s/he misinterprets some external manifestation of the disability.

For example: An interviewer may assume that a person who displays certain characteristics of cerebral palsy, such as indistinct speech, lisping, and involuntary or halting movements, is limited in intelligence. In fact, cerebral palsy does not affect intelligence at all.

If an applicant who is known to have a disability was referred by a rehabilitation agency or other source familiar with the person, it may be helpful to contact the agency to learn more about this individual's ability to perform specific job functions; however, questions should not be asked about the nature or extent of the person's disability. General information on different disabilities may be obtained from many organizations listed in the Resource Directory. See Index under the specific disability.

5.5(g) Background and Reference Checks

Before making a conditional job offer, an employer may not request any information about a job applicant from a previous employer, family member, or other source that it may not itself request of the job applicant.

If an employer uses an outside firm to conduct background checks, the employer should assure that this firm complies with the ADA's prohibitions on pre-employment inquiries. Such a firm is an agent of the employer. The employer is responsible for actions of its agents and may not do anything through a contractual relationship that it may not itself do directly.

Before making a conditional offer of employment, an employer may not ask previous employers or other sources about an applicant's:

• disability;

• illness;

• workers' compensation history;

• or any other questions that the employer itself may not ask of the applicant.

A previous employer may be asked about:

• job functions and tasks performed by the applicant;

• the quality and quantity of work performed;

• how job functions were performed;

• attendance record;

• other job-related issues that do not relate to disability.

If an applicant has a known disability and has indicated that s/he could perform a job with a reasonable accommodation, a previous employer may be asked about accommodations made by that employer.