People with mental illness have often been victimized by questions on job applications or in job interviews about past treatment or hospitalization for mental illness. Guidelines recently published by the U.S Equal Employment Opportunities Commission (EEOC) establish that private employers with 15 or more employees who ask such questions prior to a formal job offer are violating Title I of the Americans with Disabilities Act (ADA).
Although the ADA statute expressly prohibits employers from inquiring about disabilities prior to an offer of employment, the specific legal parameters of what employers can and cannot ask and what types of tests can and cannot be administered before an employment offer have been unclear. Published on May 19, 1994, the EEOC guidelines are intended to provide technical assistance to EEOC investigators for these important ADA issues.
As a general rule, the guidelines establish that pre-job-offer questions or tests that are reasonably expected to elicit or reveal information about the existence of a disability cannot be asked; therefore, direct questions about current or past treatment for mental illness would clearly violate the ADA. Additionally, questions about prescription drugs would violate the ADA because responses would tend to reveal information about specific conditions or disorders.
The guidelines allow employers to ask questions about an applicant's general ability to perform the essential functions of the specific job for which he or she is applying. For example, an employer may ask if an applicant is able to meet the attendance requirements of a specific job. The employer may also inquire about the extent of leave taken in a previous job, although questions about why leave was taken are prohibited.
The guidelines further prohibit employers from asking a series of questions likely to elicit information about the presence of a disability, even if one of the questions--by itself--would be permitted. For example, an employer may ask pre-offer questions about ability to handle stress if coping with stress is essential to successful performance of the job being applied for.
However, if this question were followed by a question concerning the impact of stress on the applicant's health, this series of two questions would probably be viewed as violating the ADA because of the likelihood that certain responses would elicit information about the existence of a psychiatric disability.
The guidelines make an exception for questions about current or past use of illegal drugs. Such questions are expressly permitted in the ADA statute, and tests for illegal drugs prior to tendering employment offers are also permitted. However, questions about the extent of current or past illegal drug use are not permitted because they are viewed as eliciting information about disability.
If an applicant voluntarily discloses information about his or her disability, the employer is nevertheless precluded from asking for further information about the disability prior to a job offer. For example, an employer may not ask an applicant to provide details about his or her mental illness even if the applicant has voluntarily disclosed that he or she suffers from mental illness.
The EEOC guidelines also prohibit all pre-job-offer medical examinations. Medical examinations (as defined in EEOC guidelines) include all "procedures or tests that seek information about the existence, nature or severity of an individual's physical or mental health impairment." Therefore, psychiatric and psychological evaluations would appear to be prohibited because these elicit information about psychiatric disabilities.
Certain types of aptitude tests may be permissible as long as they are narrowly constructed to evaluate the ability to perform essential functions of the particular job applied for.
After an applicant receives a bona fide offer of employment, the employer is permitted to inquire into the candidate's medical and psychiatric history or to require the candidate to complete a test or medical examination as long as all candidates in the same job category are subjected to the same inquiries, tests, or examinations.
However, an employer who withdraws an offer of employment based on post-offer inquires or tests must prove that the decision to do so was based on evidence that the candidate would be unable to perform the essential functions of the job in question.
Although the guidelines are extensive (approximately 50 pages) and offer numerous examples intended to clarify their meaning, specific issues or controversies that are not clearly addressed are certain to arise and will have to be determined on a case-by-case basis.
Even though people with mental illnesses certainly continue to face discrimination in employment and in all areas of community life, these guidelines are a significant step toward protecting them from being victimized by the types of pre-employment questions and inquiries that have historically helped preclude them from appropriate employment opportunities.
The EEOC guidelines were published in the May 19, 1994, issue of the Federal Register. Copies can be obtained by writing to:
Office of Communications and Legislative Affairs
Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
by Ron Honberg
director, NAMI Legal Affairs
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