Can They Ask Me That?

What prescription drugs are you currently taking? Have you ever been treated for mental health problems? How many days were you sick last year? Do you have a disability which may affect your ability to perform the job? Do you have AIDS?

Historically, many employers have felt free to request information concerning an applicant's physical or mental condition as part of the job application process. Questions such as those above often appeared on application forms or came up during interviews. However, with the passage of the Americans with Disabilities Act (ADA), these questions are now illegal and cannot be asked at the initial interview.

The ADA levels the playing field for job applicants with disabilities by prohibiting certain inquiries and examinations at the pre-offer stage of employment. Under the ADA, employers cannot ask about the existence, nature or severity of a disability or require a medical examination until after a conditional offer of employment has been made. At the pre-offer stage, the employer is entitled to ask only about an applicant's ability to perform the essential functions of the job.

Congress intended the ADA's restriction against pre-employment inquiries to prevent discrimination against individuals with "hidden" disabilities, like cancer, epilepsy, and HIV/AIDS. The ADA's prohibition against pre-employment questioning and examinations ensures that the applicant's hidden disability is not considered prior to the assessment of the applicant's non-medical qualifications.

After a conditional offer is made, employers may require medical examinations and may make disability-related inquiries, if they do so for all entering employees in that job category. If an examination or inquiry screens out an individual because of a disability, the exclusionary criterion must be job-related and consistent with business necessity. In addition, the employer must show that the criterion cannot be satisfied and the essential functions cannot be performed with a reasonable accommodation. Because of the irrational fear and ignorance surrounding the transmission of HIV, these protections under the ADA are essential for people with HIV disease.

Lambda's Midwest Regional Office currently is challenging the pre-employment inquiries of the Chicago Public Schools (CPS) for teacher applicants. CPS requires an applicant to disclose whether he or she is HIV-positive. Once this disclosure is made, the HIV-positive applicant is required to have his or her physician complete an HIV-specific questionnaire which asks about the treatments the applicant is undergoing, the applicant's t-cell count, and the applicant's history of opportunistic infections. The applicant is also required to undergo a psychiatric evaluation.

These inquiries clearly violate the ADA and are completely unwarranted at any stage of hiring or employment as there is no risk of HIV transmission in the normal course of a teacher's duties. Consequently, in January 1996, Lambda sent a letter to CPS demanding that these practices be eliminated immediately, and threatening litigation if they refuse to comply.

Unfortunately, many employers have been slow to voluntarily revise long-standing hiring practices which violate the ADA. Litigation remains an important option for those with HIV in light of the inequitable bargaining position a prospective employee faces when applying for a job. Lambda is committed to challenging unnecessary hurdles, such as pre-employment inquiries, which continue to constrict the opportunities for those with HIV disease to participate fully in the work force.

This article first appeared in the Winter 1996 edition of Lambda's tri-annual newsletter The Lambda Update.

Barry Taylor is the AIDS Project Staff Attorney in the Midwest Regional Office of Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.