ADA and post-offer sorting of candidates

Via CCH workweek, the EEOC has issued an informal discussion letter, discussing whether an employer can use information about a person's physical conditions (including, for example, high blood pressure and diabetes) gained after post-offer medical examinations to sort and rank applicants for certain jobs.

The EEOC responded that essentially, this would violate the ADA if it would eliminate qualified individuals or assign them to lower ranking or lower paid jobs unless the employer  could

demonstrate that the reason(s) for the rejection is/are job-related and consistent with business necessity. 42 U.S.C. §12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3). This means that the applicant is unable to perform the essential functions of the job, with or without a reasonable accommodation, or, where the employer rejects the applicant for safety reasons, that the individual poses a “direct threat” (i.e. a significant risk of substantial harm to self or others that cannot be reduced or eliminated through reasonable accommodation). 29 C.F.R. §§ 1630.2(r), 1630.15(b).

The EEOC added, that normal physical characteristics that are not considered disabilities, such as weight up to the point of morbid obesity, could be used for such distinctions. Ultimately, the advice in the letter comes down to recommending that employers determine what the essential functions or the safety limitations of a job are, evaluate whether tests or criteria that would be used really measure those essential functions and safety limitations, and give applicants individualized consideration to determine whether they can perform those essential functions safely with or without a reasonable accommodation. While the resources that go into these individualized evaluations may vex employers, the main point of the ADA was to prevent employers from acting on their preconceived notions of ability or unreflecting views of what it takes to do particular jobs because that  instinct had kept many qualified people un- or underemployed and isolated from mainstream society.

MM