THE ADA: QUESTIONS THAT CAN AND CANNOT BE ASKED DURING AN EMPLOYMENT
INTERVIEW BY THOMAS D. SCHNEID
One of the most frequently asked questions by fire service personnel conducting interviews as part of the selection process is, “What questions are prohibited from being asked under the Americans with Disabilities Act (ADA)?” The Equal Employment Opportunity Commission (EEOC), the governing agency for the ADA, recently revised its directions, which provides substantial guidance as to the Dos and Don`ts in asking questions regarding the ADA, specifically regarding requests for reasonable accommodation. A guidance document, published in an easy-to-read, question-and-answer format, is available at your local EEOC office. Some of the new preemployment regulatory provisions and interpretations important to fire service organizations are excerpted below.
Q. May an employer ask a particular applicant to describe or demonstrate how he/she would perform the job if other applicants are not asked to do this?
A. When the employer could reasonably believe that an applicant will not be able to perform a job function because of a known disability, the employer may ask that particular job applicant to describe or demonstrate how he/she would perform the particular function. An applicant`s disability would be a “known disability” either because it is obvious (for example, the applicant uses a wheelchair) or because the applicant has voluntarily disclosed that he/she has a hidden disability.
Q. May an employer ask applicants about their arrest or conviction records?
A. Yes. Questions about an applicant`s arrest or conviction records are not likely to elicit information about disability because someone may have an arrest/conviction record for many reasons unrelated to disability.
Q. May an employer ask applicants about their certifications and licenses?
A. Yes. An employer may ask an applicant at the preoffer stage whether he/she has certifications or licenses required for any job duties. An employer also may ask an applicant whether he/she intends to get a particular job-related certification or license or why he/she does not have the certification or license. These questions are not likely to elicit information about the applicant`s disability because there may be a number of reasons unrelated to disability for someone`s not having or intending to get a certification or license.
Q. May an employer ask whether an applicant can meet the employer`s attendance requirements?
A. Yes. An employer may state its attendance requirements and ask whether an applicant can meet them. An employer also may ask about an applicant`s prior attendance record–for example, how many days the applicant was absent from his/her last job. An employer may also ask questions designed to detect whether an applicant abused his/her leave because these questions are not likely to elicit information about the disability (for example, “How many Mondays or Fridays were you absent last year on leave other than for your approved vacation leave?”).
However, at the preoffer stage, an employer may not ask how many days an applicant was sick, because these questions relate directly to the severity of the individual`s impairment. Therefore, these questions are likely to elicit information about a disability.
Q. May an employer ask applicants about their workers` compensation history?
A. No. An employer may not ask applicants about their job-related injuries or workers` compensation history. These questions relate directly to the severity of the applicant`s impairment. Therefore, these questions are likely to elicit information about the disability.
Q. May an employer ask applicants about their current illegal use of drugs?
A. Yes. An employer may ask applicants about current illegal use of drugs because an individual who is currently illegally using drugs is not protected under the ADA (when the employer acts on the basis of the drug use).
Q. May an employer ask applicants about their lawful drug use?
A. No, if the question is likely to elicit information about the disability. Employers should know that many questions about current or prior lawful drug use are likely to elicit information about the disability and are therefore not permissible at the preoffer stage. (For example, questions such as “What medications are you currently taking?” and “Have you ever taken AZT?” certainly elicit information about whether an applicant has a disability.)
Q. May an employer require applicants to take physical agility tests?
A. Yes. A physical agility test in which an applicant demonstrates the ability to perform actual or simulated job tasks is not a medical examination under the ADA.
Q. May an employer require applicants to take physical fitness tests?
A. Yes. A physical fitness test in which an applicant`s performance of physical tasks–such as running or lifting–is measured is not a medical examination.
Q. May an employer give psychological examinations to applicants?
A. Yes, unless the particular examination is medical. This determination would be based on some of the factors listed above, such as the purpose of the test and the intent of the employer in giving the test. Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment–for example, those listed in the American Psychiatric Association`s most recent Diagnostic and Statistical Manual of Mental Disorders.1
Your department should acquire this EEOC document and all other information regarding this important aspect of the hiring and selection processes and ensure that your procedures comply with this guidance. Also, update at least annually department hiring and selection processes and procedures to comply with this changing area of the law. Remember: Ignorance of the law is never a good defense.
Endnote
1. “EEOC Revised Guidance on Employment Questions Related to the ADA,” 10-10-95 (emphasis added).
THOMAS D. SCHNEID is a professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D. in environmental engineering. He has 15 years of experience as a consultant and attorney for general industry.
