Office of Legal Counsel staff members at the Equal Employment Opportunity Commission (EEOC) wrote the following informal discussion letters in response to inquiries from members of the public. The selected letters discuss topics regarding workplace technology and employer obligations related to selection, pre-employment, and confidentiality.
For more information about workplace technology and employer obligations, see the article Nondiscrimination, Technology and the Americans with Disabilities Act (ADA).
Applicants and Reasonable Accommodation [August 15, 2018]
Concerns were raised in a letter that digital interviews could negatively affect applicants who are deaf or hard of hearing in violation of the ADA. EEOC explained that:
- “Using digital interviews does not itself necessarily violate the ADA.”
- “A company must provide reasonable accommodation, if requested, to enable an applicant to use the digital interview format effectively or must provide another method for conducting an interview.”
- A company will violate the ADA “if it does not provide a way for an applicant to request a reasonable accommodation in a timely manner, thus hindering the applicant’s opportunity to compete for the position.”
- A company could violate the ADA if it warns applicants that they will be disqualified if they try calling the company, with no exception for reasonable accommodation requests. Some applicants may need to contact the company “in person, by phone, or online to request an accommodation for the application process.”
Video Resumes [September 21, 2010]
A letter requested clarification about the legality of screening job applicants based on video resumes and online professional and personal interviews. EEOC explained that:
- “EEO laws do not expressly prohibit the use of specific technologies or methods for selecting employees, and therefore do not prohibit the use of video resumes. The key question under the EEO laws is how the selection tool is used.”
- “Under the ADA, covered entities are prohibited from asking job applicants to disclose their disabilities before the employment offer. This would include prompting applicants to disclose their disabilities in video resumes that are used pre-offer.”
- “A covered entity, however, does not violate the ADA if it observes from video images that an applicant has a disability.”
- “Because viewing a video may trigger unconscious bias, especially if opportunities for face-to-face conversation are absent, covered entities should implement proactive measures, or best practices, to minimize this risk. For example, before using video resumes and other video screening devices, a covered entity could proactively formulate and communicate to selection officials how the video resumes can help assess specific qualifications and skills that are necessary for success in the position. Additionally, a covered entity could require that several people assess each video resume in relation to the stated job requirements.”
Pre-Offer Medical Exams [July 1, 2003]
A letter requested clarification concerning the circumstances under which a pre-offer use of handwriting analysis by employers may be prohibited under the ADA. The letter asked whether an employer could use a handwriting sample or psychological test to screen for “personality traits/characteristics such as a tendency towards a quick temper, inability to concentrate on projects, or slow vs. quick thinking processes.” EEOC explained that:
- “Our preemployment guidance states that psychological tests are medical if they provided evidence that would lead to identifying a mental disorder or impairment…For example, a test designed to reveal whether a characteristic such as ‘slow’ thinking or ‘inability to concentrate’ is the result of a mental or psychological impairment is a medical examination.”
- “By contrast, tests that are designed and used to measure traits such as poor judgment, chronic lateness, poor impulse control, and quick temper are not medical examinations.”
Disability-Related Inquiries and Medical Examinations [May 4, 2001]
A letter inquired whether the involvement of a mental health professional in evaluating an applicant’s non-medical information constitutes a medical exam under the ADA. In addition, the letter raises questions about what may be considered a medical examination. EEOC explained that:
- “The involvement of a mental health professional in administering or interpreting a test will always necessitate looking at other factors to determine if the test is ‘medical.’”
- “Tests would not become ‘medical’ exams solely because a psychologist administers or interprets them.”
- The EEOC Preemployment Guidance “states that psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment…In contrast, psychological tests that are only designed and used to measure such things as honesty, tastes, and habits would not be ‘medical.’” Further, “traits and behaviors are not, in themselves, mental impairments, although they may be linked to mental impairments. Such traits include stress, irritability and anger management, chronic lateness, poor judgment, integrity, teamwork, and prejudice.”
Disability-Related Inquiries and Medical Examinations [February 11, 2000]
A letter inquired whether handwriting analysis may be administered before a job offer had been made. EEOC explained that:
- “Whether the handwriting analysis may be administered pre-offer depends on whether it involves disability-related questions or constitutes a medical exam. For example, asking an applicant to provide a hand-written response to a question such as ‘what impairments do you have?’ is a disability-related questions that may not be asked pre-offer. On the other hand, asking an applicant to copy certain text does not involve a disability-related question.”
- “Even if the handwriting analysis does not involve a disability-related question, however, it still may not be administered pre-offer if it is a medical exam. The evaluation would constitute a medical exam if it were trying to determine whether the applicant has a mental impairment or if the procedure is designed to determine the existence of such an impairment. Thus, for example, an evaluation that reflects whether an applicant has characteristics that are used to identify whether the individual has excessive anxiety, depression, and certain compulsive disorders is a medical exam. Alternatively, a handwriting evaluation that is designed and used to reflect only whether an applicant is likely to lie is not a medical exam.”
Hiring Discrimination; Disability-Related Inquiries and Medical Examinations [February 29, 2000]
A letter inquired about whether an employer can view streaming videos containing applicants’ remarks before making decisions about whom to interview, without contravening EEOC regulations. EEOC explained that:
- “If a potential employer obtains information about an individual’s disability from the ‘streamsume’ it cannot use this information to determine whether the individual will proceed in the hiring process. For example, if a potential employer learns from the ‘streamsume’ that an individual has a disability, it cannot refuse to interview that individual because of his/her disability.”
- “If the employer decides to interview an applicant with a disability, it cannot make disability-related inquiries (other than inquiries that might be related to the applicant’s need for reasonable accommodation).”
