NEW RULES FOR JOB INTER VIEWS
BY THOM AS D. SCHNEID
The Equal Employ ment Opportunity Commission`s (EEOC) “Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act (ADA)” was recently issued for internal use by EEOC investigators, pending coordination with other agencies under Executive Order 12067. This new enforcement guidance document should be “must” reading for all fire service organization personnel departments and other departments that perform job interviews.
Fire service organizations should note that the ADA is unique among other federal civil rights laws in that it flat ly prohibits certain inquiries and examinations at the preoffer stage of the hiring process. The Enforcement Guidance Document provides detailed information and instructions for EEOC investigators to use in determining whether an inquiry is disability-related and whether the examination is medical in nature. This document also provides guidance with regard to the use of inquiries and examinations at the post-offer stage. As discussed in previous articles, simply asking the wrong question at the wrong time in the interview process may be discriminatory on its face. Fire service organizations should be very cognizant of the rules and regulations under the ADA and the interpretations being provided by the EEOC and other organizations.
SOME DISABILITY-RELATED QUESTIONS
The following questions were noted as being disability related in the enforcement document:
Do you have AIDS?
Do you have asthma?
Do you have a disability that would interfere with your ability to perform the job?
How many days were you sick last year?
Have you ever filed a workers` compensation claim?
Have you ever been injured on the job?
How much alcohol do you drink each week?
Have you ever been treated for alcohol problems?
Have you ever been treated for mental health problems?
What prescription drugs are you currently taking?
Ask ing these questions in the preoffer stage may constitute discrimination under the ADA in and of themselves.
SOME NON DIS ABIL ITY-RELAT ED QUES TIONS
Some of the questions noted in the enforcement guidance document inquiries that so far have appeared to be acceptable questions include the following:
Can you perform the functions of this job (essential or marginal) with or without reasonable accommodation?
Please describe/demonstrate how you would perform these functions (essential and/or marginal).
Do you have a cold?
Have you ever tried Tyle nol® for a fever?
How did you break your leg?
Can you meet the attendance requirements of this job?
How many days did you take leave last year?
Do you illegally use drugs?
Have you used illegal drugs in the last two years?
Do you have the required license to per form this job?
How much do you weigh?
How tall are you?
Do you regularly eat three meals a day?
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The Enforcement Guidance document is a must-read for all personnel, safety, and related departments in the fire service. In addition to the above inquiries regarding disability, careful note should also be made of the medical examination procedures and tests including those for physical agility, physical fitness, psychological well-being, and illegal drugs. Various other aspects of a job interview and selection process should be noted as well. A copy of the enforcement guidance document has been published in detail in several law publications, including Lawyers Weekly, USA (August 1, 1994, page 15) and other law publications. A copy of the enforcement guidance document also can be acquired from your local EEOC office or through local legal counsel. Knowing and following the rules with regard to job interviews and the selection process are essential in preventing an ADA claim. n
THOM AS D. SCHNEID is an associate 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 certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
