ADA AND THE HIRING PROCESS
April 28, 2009
In the document entitled, “ADA Enforcement Guidance: Pre-employment Disability Related Questions and Medical Examinations, the United States Equal Employment Opportunity Commission (EEOC) states that “under the Americans with Disabilities Act of 1990 (ADA), a job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.” (Emphasis added.)
Despite the general principle that all non-medical information should be gathered before the conditional job offer is made, and based upon information received from the Legal Counsel for EEOC, the California Commission on Peace Officer Standards and Training (POST) recently advised law enforcement agencies that they have a “right to conduct a sizeable part of the peace officer background investigation, which would include non-medical inquiries, after a conditional offer of employment has been extended to the candidate.” (Emphasis added.)
Following the receipt of the EEOC opinion, the California legislature passed AB 2028, adding section 1031.2 to the Government Code, which states, in part, that “the collection of non-medical or non-psychological information of peace officers, in accordance with a thorough background investigation, … may be deferred until after a conditional offer of employment is issued ….”
POST generated another document, regarding AB 2028 and background investigations, which states that the passage of this “law will permit law enforcement agencies to extend conditional offers of employment prior to any portion of the peace officer background investigation that may involve medical or psychological inquiries ….” (Emphasis in original.)
We believe that following such advice could result in potential litigation and possible liability and, therefore, we urge that you secure a formal opinion from your agency’s legal counsel before conducting the background after the conditional job offer is made.
ADA Purpose and Requirements
The ADA was established in 1990 and was designed to prevent discrimination against “qualified individuals with disabilities.” Those individuals included applicants for employment, as well as current employees, who have disabilities or are perceived as having disabilities but are, otherwise, able to perform all the essential functions of a job, with or without a reasonable accommodation.
A person is considered to be a “qualified individual” with a disability if he or she has all of the legitimate skill, experience, education, or other requirements of a job, and who can perform all of the “essential functions” of that job, with or without a reasonable accommodation.
A reasonable accommodation is any modification or adjustment to a job or the work environment which will then enable the applicant or employee to perform all of the essential job functions; it does not mean that the essential job functions must be changed.
Once the accommodation has been made, the employer can hold the applicant or employee with a disability to the same standards of production or performance as any other similarly situated employee without a disability.
EEOC and the Hiring Process
As noted above, the EEOC “Employment Guidance” sets forth “the EEOC’s position” under the ADA, on what pre-employment disability related questions and medical examinations are permitted.
The Guidance states further that, “in the past, some employment applications and interviews requested information about an applicant’s physical and/or mental condition” which “was often used to exclude applicants with disabilities before their ability to perform the job was even evaluated.” The Guidelines continue that, “as a result, Congress established a process within the ADA to isolate an employer’s consideration of an applicant’s non-medical qualifications from any consideration of the applicant’s medical condition.”
In other words, the process was designed for the prospective employer to first evaluate all non-medical aspects of the applicant in order to determine whether or not this was a person the employer wanted to hire. After evaluating the applicant, and once the employer decides “this is a person I want to hire,” a conditional offer of employment is made; the condition being that the applicant is physically and mentally capable of performing the essential job functions.
Then, at that time, and only at that time, would the employer be permitted to make medically related inquires. Additionally, those questions and/or medical evaluations must be relevant to one being able to perform the essential functions of that particular job, and must be required of all applicants applying for that job category, not just those with disabilities.
According to the EEOC Enforcement Guidance, the conditional offer of employment is considered “real” or “bona fide” if “the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.” (Emphasis added.)
The Guidance notes that there may be information which could not be reasonably obtained and evaluated at the pre-offer stage but, in that case, the employer has the burden of proving that to be true. There are several examples set forth in the EEOC Guidance which would justify delaying questions until after the offer has been made but, once again, the burden is on the employer to prove the need to postpone securing or analyzing that material until after making the conditional job offer.
POST, EEOC, and the Hiring Process
In January of 2008, the POST Executive Director wrote to Reed Russell, who was and is Legal Counsel for the EEOC, in an effort to determine whether “a conditional offer of employment extended prior to the conduct of a peace officer background investigation [would] be considered ‘bona fide’?”
The letter explained that, due to California requirements that a thorough background investigation be conducted on peace officer applicants, the investigation “commonly requires inquiries that are arguably if not unquestionably prohibited prior to a conditional offer.”
As an example, the POST letter states that the background investigation is designed to “screen out” unsuitable candidates. “[I]t is not at all surprising that background investigation inquiries designed to reveal unsuitability would also yield indications of behavior that suggest psychological or other disorders.”
EEOC’s Legal Counsel responded in May, 2008 and stated, initially, that the term “background investigation … is too broad for us to state that the entire background investigation may or may not be conducted at the post-offer stage consistent with the ADA. Nevertheless, based on the information in your letter, … we conclude that a law enforcement agency complying with your state’s regulations and your agency’s selection standards may properly perform the following at the post-offer stage: (1) evaluate certain “official documents” that cannot be obtained in a timely manner during the pre-offer period and (2) contact references.”
The EEOC Counsel then states that “…this response does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission (EEOC), but is intended to provide informal guidance on the questions you raise.” (Emphasis added.)
This disclaimer by EEOC is of monumental importance since no one can follow the “informal guidance” of EEOC, nor the information generated by POST, which is based on this “informal guidance,” and then, if sued, raise a defense that they were relying on this as advice.
Exceptions to the Rule
One of the basic purposes of the ADA is prevent discrimination against an applicant who is capable of performing the essential functions of the job even though he or she has a disability. As is set forth in the EEOC Guidance, which is referenced by EEOC’s Counsel, “the ADA seeks to prohibit discrimination by limiting an employer’s knowledge of an applicant’s disability to a later stage of the job application process. Under the ADA an employer may only ask about an applicant’s disability or give a medical examination after the employer has made a job offer.”
However, the “informal guidance” from EEOC’s Legal Counsel notes that the EEOC Guidance acknowledges “that employers in general, and law enforcement agencies in particular, may sometimes justify obtaining and analyzing non-medical information at the post-offer stage.” He then refers to the cost of certain parts of the hiring process as justification for deviating from the general policy of putting off all medical inquiries until after the job offer has been made.
In the U. S. Department of Justice publication, “Questions and Answers: the Americans with Disabilities Act and Hiring Police Officers, it is stated that, “in general,
a job offer is not viewed as “bona fide” under the ADA, unless an employer has evaluated all relevant non-medical information which, from a practical and legal perspective, could reasonably have been analyzed prior to extending the offer. However, a law enforcement employer may be able to demonstrate that a proper background check for law enforcement personnel could not, from a practical perspective, be performed pre-offer because of the need to consult medical records and personnel as part of the security clearance process. Where the police department uses the information from the medical exam during the background check, doing the background check at the post-offer stage saves the police department the cost of doing a second background check.” (Emphasis added.)
From the perspective of one who defends law enforcement agencies in suits alleging violations of ADA, this creates a significant quandary. Since the law is clear that a decision must first be made based on non-medical factors, how can one justify using “information from the medical exam during the background check?”
The burden is always on the employer to prove that it did not misuse the medical information it obtained in arriving at a hiring decision. Most of a background investigation has nothing to do with medical information – checking educational records, employment history, criminal record checks, etc. are all part of the background and medical information is irrelevant.
It is also important to note that the employer will have the burden of showing that the cost of conducting the background investigation, before inquiring about medical information, is so significant it outweighs the purpose behind the ADA’s protections of the applicants’ medical histories.
Delays in the Process
One other area of concern raised by POST, and addressed by the EEOC Legal Counsel, deals with “significantly increasing the length of the entire hiring process” by not making the offer of employment early on in the process. POST stated that securing official documents, such as records from the FBI, DOJ, other law enforcement agencies and military records may take “weeks or months.”
In its letter to EEOC, POST stated that the entire hiring process can take over one year, yet it argues that a period of “weeks or months” to secure documents will, according to EEOC’s Legal Counsel, “significantly increase the length of the entire hiring process.” That is hard to rationalize – if documents are secured, even within “months,” let alone weeks, of the request, but the entire hiring process takes over one year, how does that “significantly increase the length of the entire hiring process?”
Contacting References
One of the most difficult points to reconcile with the ADA itself, and addressed by the EEOC Legal Counsel, has to do with contacting references after the conditional
offer of employment has been made.
Remember that the primary purpose of the ADA is to ensure that employment decisions will be made based, first, on non-medical information. With that in mind, the EEOC Counsel states that it is acceptable for the background investigator to ask references, such as past employers, family members, friends, etc. “both disability-related and non disability-related questions.”
He states, in a footnote, that “we believe significant cost increases incurred for any
reason (such as the need to re-contact most or all references or close coordination is required between a background investigator and medical personnel) would suffice to justify making all of the contacts post-offer.”
However, in his conclusion, the EEOC Counsel states that “it would be insufficient for a law enforcement agency to justify seeking non-medical information at the post-offer stage merely by claiming that it would save money and time and avoid inefficiency. A law enforcement agency would need to offer evidence … that details a significant increase in costs and/or significant delays in carrying out the hiring process.”
To further confuse the situation, the EEOC Counsel states that, “… the delay inherent in conducting a bifurcated contact process depends significantly on the number of references that must be contacted and the number of questions to be asked.”
Therefore, when an agency is defending itself against a lawsuit for interviewing references and asking questions of a medical nature, after the offer of employment has been made, it will be necessary to justify that action based on the fact that “x” number of references were involved and “y” number of questions had to be posed. That is a legal nightmare!
Leonel v. American Airlines, Inc.
When POST wrote to the EEOC, it cited to a decision from the Ninth Circuit U.S. Court of Appeals, Leonel v. American Airlines, Inc. (2005) 400 F.3d 702, which appeared to hold that background investigations must be conducted prior to the conditional offer of employment. In his reply, the EEOC Legal Counsel stated that Leonel was not inconsistent with the position taken by EEOC.
However, the Leonel court stated that “other courts have found offers not real, and medical examinations thus unlawfully premature, when an offer remained contingent upon a polygraph test, personal interview and background investigation, see Buchanan v. City of San Antonio, 85 F.3d 196, 199 (5th Cir.1996), or upon completion of an application form, criminal background check and driver’s test….”
These are exactly the types of background investigation issues discussed by the EEOC Counsel in his letter to POST.
The employer in Leonel also stated a desire to reduce the delay in processing applicants; one of the same issues raised by POST. The court noted that, “as justification for accelerating the medical examinations, American’s Manager of Flight Service Procedures… explained that the company found it important to minimize the length of time that elapsed during the hiring process in order to compete for applicants. But competition in hiring is not in itself a reason to contravene the ADA’s and FEHA’s mandates to defer the medical component of the hiring process until the non-medical component is completed.”
The court ruled that American Airlines had to justify why it needed to make non-medical inquiries at the post-offer stage, and that it had failed to do so adequately for a summary judgment motion.
Conclusion
As we pointed out earlier, the burden will be on the employer to justify deviating from the established practice of making all non-medical inquiries prior to making the conditional offer of employment. In our opinion, the risk is significant any time such a deviation occurs, and the employer faces the burden of litigation to prove it didn’t violate the ADA.
Therefore, we urge that, prior to following such a practice, a written legal opinion be secured from the law enforcement agency’s attorney. Remember, the Legal Counsel of EEOC stated that his letter “does not constitute an official opinion” of EEOC, and “is intended to provide informal guidance” only.
As always, we urge that you receive advice and guidance from your agency’s legal counsel – especially on a matter of such significance as this. If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.