Under Title I of the Americans with Disabilities Act, it is unlawful for an employer to make inquiries as to whether an applicant is an individual with a disability or as to the nature of such disability before making a conditional offer of employment. 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.13(a).
On Feb. 3, 2015, the United States Department of Justice posted four settlement agreements with cities that had asked questions that were illegal under the ADA. The DOJ alleged that each of the cities had “engaged in a pattern or practice of discrimination under the ADA by requiring applicants to disclose disabilities and/or medical information in their application prior to making a conditional offer of employment.” See www.justice.gov.
The questions that had been asked in those cases were the following:
“Do you have any physical or mental conditions, which may impair your ability to perform the duties of the position(s) for which you are applying? Yes ___ No ___. If yes, please state the condition and the nature of your work limitations: _____” Settlement Agreement Between the United States of America and the City of DeKalb, Illinois, DJ # 205-23-59.
“Are you now receiving or have you ever received any benefits or payments to you or your doctor for any job related injury? If yes, when and where did this occur?” Settlement Agreement Between the United States of America and the City of Fallon, Nevada, DJ # 205-46-12.
“Check if any of the following are applicable: ___ Disabled Veteran ___ Disabled Individual.” Settlement Agreement Between the United States of America and the City of Isle of Palms, South Carolina, DJ # 205-67-11.
Applicants were required to check box that applied to them: “[check box] “Disabled Veteran” [check box] “Disabled Person Not Entitled to Veteran’s Preferences.” Settlement Agreement Between the United States of America and the City of Vero Beach, Florida, DJ # 205-18-16.
Although an employer may not “conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability,” the employer “may make preemployment inquiries into the ability of an applicant to perform job-related functions.” 42 U.S.C. 12112((d).
More information regarding preemployment disability-related questions and medical examinations may be found at www1.eeoc.gov/eeoc/publications/ada18.cfm and at www.justice.gov/crt/about/drs/.
For more information or assistance with disability-related issues, contact Northern Marianas Protection & Advocacy Systems, Inc. (NMPASI) at (670) 235-7273 or 7274, (670) 235-7275 (fax), or online at www.nmpasi.org.
Legal counsel, NMPASI