The Americans With Disabilities Act and Criminal Justice: Hiring New Employees.

MENU TITLE: ADA & Criminal Justice: Hiring Employees              
Series: NIJ Research in Action
Published: October 1994
17 pages
33,094 bytes

The Americans With Disabilities Act and Criminal
Justice: Hiring New Employees

by Paula N. Rubin

------------------
Highlights 

NIJ's initiative to examine the implications of the
Americans with Disabilities Act (ADA) for criminal
justice agencies at the State and local levels was
created to respond to the need for understanding of
the Act in the criminal justice field and the new
opportunities it offers persons with disabilities.
This Research in Action, the second in a series
designed to explain how the Americans with
Disabilities Act (ADA) will affect the criminal
justice system, focuses on the ADA's effect on
criminal justice hiring practices. Key highlights
include:

o Hiring decisions must be made on whether an
applicant meets the established prerequisites of
the position (e.g. education, experience) and
whether the applicant is able to perform the
essential functions of the job.

o A job function is considered essential when an
employee is required to perform it and when its
elimination would fundamentally alter the job.

o The ADA requires employers to provide applicants
with reasonable accommodations so they can apply
for jobs.

o A job applicant must be given a conditional offer
of employment before being required to provide
medical information or take a medical exam; the ADA
expressly prohibits preemployment medical
examinations and disability related inquiries. 

o Agility tests may be given at any point in the
hiring process if they are job-related, but the ADA
forbids disability-related inquiries or medical
exams to establish a person's fitness to take
agility tests.

o Tests for illegal use of drugs are not considered
a medical exam under the ADA; employers may make
hiring decisions based on these test results.

o Since some preliminary questions asked in
conjunction with polygraph tests are medical in
nature, these exams can only be administered prior
to making a job offer without making such
inquiries. One option is to administer a second
polygraph test, which includes medical inquiries,
after the job offer is made.

These issues and their implications are detailed in
this Research in Action.
_________________

The Americans with Disabilities Act (ADA) was
created to eliminate barriers to equal employment
opportunity and provide equal access to public
accommodations and the programs, services, and
activities delivered by government entities. Under
the ADA, employers must reevaluate their personnel
application and selection processes to ensure that
they do not adversely affect persons with
disabilities, either intentionally or
unintentionally. The requirements of the ADA have
significant consequences for the criminal justice
system. Many of the tests and screening devices
commonly used to hire public safety personnel, as
well as the order in which these tests may be
administered, must be scrutinized in light of the
law.

The ADA and hiring: Some general principles

Appreciating the impact of the ADA on hiring
requires an understanding of the law itself. Simply
put, the ADA prohibits discrimination against
qualified individuals with a disability.  Having a
disability, in and of itself, does not entitle a
person to protection under the law. A job applicant
also must be qualified, i.e., must meet established
prerequisites of the position such as education,
experience, and skills, and must be able to perform
the essential functions of the job. 

Whether an applicant with a disability is otherwise
qualified for the job is a central issue in making
legal hiring decisions under the ADA. Some
questions to be considered are: How are these
determinations made? What constitutes an essential
function of the job? Are performance standards
permitted?

Thus, hiring decisions should be made on a
case-by-case basis and not based on generalized
assumptions, stereotypes, or myths. Limiting,
segregating, or classifying applicants so that
persons with disabilities are adversely affected
should be avoided.

Under the ADA, blanket exclusions of individuals
with a particular disability are, in most cases,
not permissible.1 For example, to exclude "all
applicants with diabetes ignores the varying
degrees of severity of this disease and the ability
to control its symptoms"2 and would be forbidden.
On the other hand, the "ADA does not require
quotas, it...requires that employers not reject
applicants with disabilities because of their
disabilities."3  In addition, the ADA requires
employers to provide applicants with reasonable
accommodations so that they can apply for jobs.

Qualifications and standards

Under the ADA, standards and qualifications that
screen out, or tend to screen out, individuals or
groups of individuals on the basis of disability
must be related to the job to be performed.

An analysis of job qualifications begins with three
questions: 

o Do qualifications or standards that screen out
persons with disabilities relate to essential
functions of the job? 

o Are qualifications and standards that screen out
persons with disabilities job-related and 
consistent with business necessity?

o Is a reasonable accommodation available that
enables an applicant, who would not be qualified
because of a disability, to meet the qualification
standards?

Fundamental, not marginal, job functions are
considered essential for purposes of the ADA.
Functions are essential: a) when employees are
required to perform them and b) when their
elimination would fundamentally alter the job. Even
when a function is rarely performed, it may
nevertheless be essential. For example, most police
officers rarely make forcible arrests, but
departments that can demonstrate serious
consequences of an officer's inability to do so may
establish this ability as an essential function.

There is nothing to prevent employers in criminal
justice agencies from using qualifying standards.
Indeed, it is permissible to "establish physical or
mental qualifications that are necessary to perform
specific jobs (for example, jobs in the
transportation and construction industries; police
and fire fighters jobs; security guard jobs) or to
protect health and safety."4

What happens, however, if the qualifying standards
eliminate someone on the basis of disability or a
group of individuals with disabilities? Under the
ADA, standards must be shown to be job-related and
consistent with business necessity.5 This
requirement "underscores the need to examine all
selection criteria to ensure that they not only
provide an accurate measure of an applicant's
actual ability to perform the essential functions
of the job, but that even if they do provide such
measure, a disabled applicant is offered a
`reasonable accommodation' to meet the criteria
that relate to the functions of the job at issue."6

A qualification standard is job-related when it is
"a legitimate measure or qualification for the
specific job it is being used for."7 Section 4.3 of
the Equal Employment Opportunity Commission's
(EEOC) Technical Assistance Manual explains:

"A qualification standard for a secretarial job of
`ability to take shorthand dictation' is not
job-related if the person in the particular
secretarial job actually transcribes taped
dictation."

Business necessity means that the selection relates
to an essential function of the job. Thus, "if a
test or other selection criterion excludes an
individual with a disability and does not relate to
the essential function of the job, it is not
consistent with business necessity."8

However, even if a standard is job-related it may
nevertheless be inappropriate if it does not relate
to an essential job function. For example,
requiring a driver's license may be job-related for
both patrol officers and corrections officers.
However, the requirement relates to an essential
function of the job of a patrol officer. Typically,
a corrections officer is not required to drive in
the course of business. Therefore, if requiring a
driver's license screens out a person with a
disability it may be justified for the job of
patrol officer but not for that of corrections
officer if driving is not an essential function of
the job. 

Reasonable accommodations during the hiring process

Employers have a duty to reasonably accommodate
persons with disabilities during the application
process to give otherwise qualified applicants an
equal opportunity to be considered for the job.9
However, an employer is permitted to ask applicants
whether they need reasonable accommodation in order
to participate in the application process or take a
screening test.10

Reasonable accommodations during the hiring process
can include providing qualified interpreters or
readers. It can also mean revising or modifying
exams or tests. Section 3.3 of EEOC's Technical
Assistance Manual offers these examples:

"A person who uses a wheelchair may need an
accommodation if an employment office or interview
site is not accessible. A person with a visual
disability or a person who lacks manual dexterity
may need assistance in filling out an application
form. Without such accommodations, these
individuals may have no opportunity to be
considered for a job."

On the other hand, unlike the kinds of reasonable
accommodations afforded employees with disabilities
-- such as job restructuring or changing work
schedules -- employers do not have to find a job
for an applicant with a disability who is not
otherwise qualified, or consider an applicant for a
job for which he or she did not apply. Likewise,
while reassignment to another position might be a
reasonable accommodation for an employer to make
for an employee, this would not apply to applicants
for a position. In addition, there is no
requirement that employers lower performance
standards.

Medical examinations and disability-related
inquiries

Under the ADA, job applicants must be given a
conditional offer of employment before being
required to provide medical information or take a
medical exam11 even though law enforcement and
corrections agencies routinely administer medical
and psychological exams to applicants prior to
making a job offer. "As a result, this provision of
the ADA will significantly change hiring practices
in the country."12 This requirement is designed to
prevent medical information from being considered
before nonmedical qualifications.

The EEOC's Enforcement Guidelines define medical
examinations as "...procedures or tests that seek
information about the existence, nature, or
severity of an individual's physical or mental
impairment, or that seek information regarding an
individual's physical or psychological health."13
Sometimes it is easier to say what "medical" is not
rather than what it is. For instance, "tests for
illegal use of drugs are not medical examinations
under the ADA and are not subject to the
restrictions on such examinations."14 Similarly,
"physical agility tests are not medical
examinations and so may be given at any point in
the employment application process."15

A good rule of thumb is that questions that would
disclose information regarding a disability,
whether asked on an application or during an
interview, may be construed as a medical exam or
disability-related inquiry. This holds true for any
test, procedure, or performance exam that would
disclose information regarding a disability.
Therefore, criminal justice agencies that
customarily use psychological exams, polygraph
tests, background checks, and medical exams will
need to evaluate their hiring process in light of
the ADA.

Application procedures and requirements

The ADA expressly prohibits preemployment medical
examinations and disability-related inquiries.16
"...[A]n employer may not ask or require a job
applicant to take a medical examination before
making a job offer."17 Inquiry into the existence,
nature, or severity of a disability is also
forbidden at this stage in the hiring process.

However, employers may ask applicants questions
regarding their ability to perform specific job
functions "and may, with certain limitations, ask
an individual with a disability to describe or
demonstrate how he or she would perform these
functions."18 On the other hand, hiring practices
that focus on disabilities rather than abilities
will, in most instances, be considered
discriminatory. Section 6.3 of EEOC's Technical
Assistance Manual provides an example relevant to
criminal justice agencies:

"A policy that prohibits employment of any
individual who has epilepsy, diabetes, or a heart
condition from a certain type of job, and which
does not consider the ability of a particular
individual, in most cases would violate the ADA."

The ADA does take into consideration an employer's
need to ensure that job applicants can perform the
job effectively and safely, and specifies how this
can be done. Section 6.1 of EEOC's Technical
Assistance Manual provides guidance:

"An employer may condition a job offer on the
satisfactory result of a post-offer medical
examination or inquiry if this is required of all
entering employees in the same job category. A
post-offer examination or inquiry does not have to
be `job-related' or `consistent with business
necessity.' Questions also may be asked about
previous injuries and workers' compensation
claims."

Questions that are prohibited before a conditional
offer may be posed in the post-offer phase of the
hiring process. Such post-offer medical
examinations are legal only if the following
requirements are met:

o All entering employees in a particular category
are required to submit to the same examination
regardless of disability.

o Information concerning the offeree's medical
condition must be maintained on separate forms.

o The information must be maintained in separate
medical files.

o The information must be treated as a confidential
medical record.19

If a post-offer medical exam or disability-related
inquiry reveals a disability, the reason for
withdrawing a conditional offer of employment must
be job-related and consistent with business
necessity. The withdrawal of the offer may be
permissible where the medical inquiry discloses
facts pertinent to the applicant's qualifications.
That is to say, the employer must show that the
applicant cannot perform the essential functions of
the job, with or without a reasonable
accommodation, and must demonstrate that there is
no reasonable accommodation available to enable the
applicant to perform the essential functions of the
job.

In addition, "a post-offer medical examination may
disqualify an individual if the employer can
demonstrate that the individual would pose a
`direct threat' in the workplace (i.e., a
significant risk of substantial harm to the
individual or others) that cannot be eliminated or
reduced below the `direct threat' level through
reasonable accommodation."20 However, a "direct
threat" cannot be speculative or remote and must be
based on current medical knowledge.

Section 6.4 of EEOC's Technical Assistance Manual
offers this example:

"If a medical examination reveals that an
individual has epilepsy and is seizure-free or has
adequate warning of a seizure, it would be unlawful
to disqualify this person from a job operating a
machine because of fear or speculation that he
might pose a risk to himself or others. But if the
examination and other medical inquiries reveal that
an individual with epilepsy has seizures resulting
in loss of consciousness, there could be evidence
of significant risk in employing this person as a
machine operator. However, even where the person
might endanger himself by operating a machine, an
accommodation such as placing a shield over the
machine to protect him, should be considered."

Implications for criminal justice

The ADA unquestionably has had an enormous impact
on the hiring process in criminal justice. "The
development of selection procedures which are in
compliance with the ADA appear to be somewhat
reversed to current arrangements."21

Prior to the enactment of the ADA, most departments
required applicants to pass written exams, agility
tests, a polygraph exam, a background
investigation, a medical exam, and a psychological
exam before being offered a position of employment.
However, with the ADA prohibition against
disability-related inquiry prior to making a
conditional offer of employment, many of these
testing and screening devices must be postponed
until after an offer is made. 

Thus, a "department cannot even remotely
investigate an applicant's disability or potential
disability until the applicant's other
qualifications have been evaluated and a contingent
offer of employment has been made to the
candidate."22 "Under the ADA, bona fide job offers
do not always need to be limited to currently
available vacancies but also may, under certain 
circumstances, be given to fill reasonably
anticipated openings."23 

For example:

"A police department may be able to demonstrate
that it needs to make offers to 50 applicants for
25 available positions because: (1) for public
safety reasons it needs to have police officers who
are ready and able to begin work when a vacancy
occurs on the force; and (2) it is likely that
approximately half the offers will be revoked based
on post-offer medical tests and/or the results of
security checks, and because some applicants may
withdraw from consideration.24"

However, if more offers are made than positions
exist, individuals must be hired from the pool
based on pre-established objective standards.  An
example of such a standard includes using the date
of application.  Moreover, if applicants are
re-ranked based on post-offer inquiry or
procedures, the agency must inform persons in the
pool of their overall rankings before the
post-offer re-ranking and must notify all persons
in the pool of any changes made as a result of such
post-offer re-rankings.  The Enforcement Guidance
offers this example:

"A police department gives a post-offer
psychological examination, which is designed to
analyze an individual's mental stability and is,
therefore, a medical examination. The department
re-ranks the individuals in its pool based on
scores on this examination, placing those
individuals who score most favorably at the top of
the hiring priority list.  In this case, the
department must inform individuals in the hiring
pool of their initially-determined hiring rank
order; after the post-offer medical examination,
the department must inform the individuals in the
hiring pool whether their rank was changed based
(in whole or in part) on the post-offer medical
examination.25"

Can agencies have a qualified pool of candidates?
While some jurisdictions have used this method,
EEOC has not specifically addressed this issue yet.
Agencies planning this should consider exhausting
the number of candidates in the pool before adding
to it. In addition, agencies employing such a
method should ensure that all candidates advance
equally through the pool as hirings are made.

Screening devices

Agility tests. These may be "given at any point in
the application or employment process so long as
employers can demonstrate that they are job-related
and consistent with business necessity."26
However,departments may not measure an applicant's
physiological/biological responses to performance
because that would be considered medical.27

The ADA also forbids disability-related inquiries
or medical exams to establish a person's fitness to
take the agility test.  "Agencies will not be
permitted to screen applicants for medical
conditions, such as heart disease, prior to giving
them a physical agility test."28  One solution to
this problem is to provide applicants with a
detailed written description of the test and
require that they get a note or certification from
their doctor that they are able to take the agility
test.

Drug tests. Since a test for the illegal use of
drugs is not considered a medical examination under
the ADA, employers may conduct such testing of
applicants or employees and make employment
decisions based on the results. On the other hand,
if an applicant tests positive for illegal drug
use, the test may be validated by asking the
applicant about any lawful drug use that may have
resulted in the positive result.

However, certain drug tests may reveal the use of
prescription drugs. This could lead to problems for
employers. For example, what if the results of a
drug test reveal that the applicant is taking AZT,
a drug used in conjunction with treatment for HIV
infection and AIDS? Persons with HIV infection or
AIDS are protected under the ADA. Therefore, this
information, in and of itself, could not be used to
eliminate the applicant. 

In the event secondary medical information is
obtained, agencies should treat it in accordance
with ADA requirements relating to all medical
information. It should be treated as a confidential
medical record, maintained separately from the
individual's personnel file, and steps should be
taken to guarantee the security of the information.

Polygraph tests. Polygraph tests are not addressed
specifically by the ADA. However, preliminary
questions asked in conjunction with a polygraph
exam are often medical in nature. For instance,
asking a person "Are you currently on any
medication?" would be impermissible prior to
extending a conditional offer.

What does this mean for criminal justice agencies?
"Pre-offer, there will be no medical questions on
the polygraph examination allowed."29 Such
inquiries include:

o Whether the individual has sought or is currently
seeking mental health services.

o Inquiries about the extent of prior illegal drug
use.

o Most inquiries about prior or current lawful drug
use.

o Inquiries reflecting the extent of prior or
current alcohol use.30

In addition, the EEOC Enforcement Guidance offers
this example:

"R., a police department, may not ask as part of a
pre-offer polygraph examination such questions as: 
`Do you have any mental disorders which would
hamper your performance as a police officer?' or
`Have you ever been treated for drug addiction?'
"31

Thus, employers are faced with delaying the
polygraph exam until after an offer is made;
conducting the polygraph without the initial
medical inquiries often asked to ensure the
validity of the exam; or conducting one polygraph
test pre-offer, without the preliminary medical
questions, and a second exam, post-offer, which
includes medical exams. 

Background checks. To the extent that background
checks involve medical inquiry, they must be
delayed until after an offer is made. FBI checks,
national credit checks, and high school or college
transcripts can be procured at the pre-offer stage.
However, agencies cannot ask prior employers or
others any questions that the employer cannot ask
the applicant directly.

Medical exams.  The ADA permits medical exams once
a conditional offer of employment is made, and it
would be useful to give a list of essential job 
functions to the doctor who will conduct the
exam.32

What if the employer gets unsolicited medical
information before extending a conditional offer?
Can this information be used to exclude the
applicant? This depends on whether the information
is relevant to the applicant's qualifications. If
an applicant is otherwise qualified, the
information cannot be so used. If an applicant
volunteers information about a disability that
renders him or her unqualified for the job, then no
offer need be made.

No decision should be made on the basis of
speculation or assumptions. For example, if an
applicant discloses that he or she has epilepsy,
such information, in and of itself, would not
disqualify the applicant. Blanket exclusions of a
particular disability should be avoided. But should
an applicant reveal that he or she has epilepsy
that cannot be controlled by medication and
continues to have seizures on a regular basis, it
may be permissible to eliminate the candidate if
the reasons are job-related and consistent with
business necessity.

Psychological exams. Whether a psychological exam is
also a medical exam depends on the type of exam
administered.  Criminal justice agencies will need
to make this determination on a case-by-case basis.
"To the extent that a test is designed and used to
measure only such factors as an applicant's
honesty, tastes, and habits, it would not normally
be considered a medical examination."33 However,
exams or tests which provide evidence that a
candidate has a mental disorder or impairment would
be considered a medical examination.

In addition, for example, many departments have
historically used tests such as the Minnesota
Multiphasic Personality Inventory (MMPI), which
includes questions that might be considered
disability-related. For example: 

o I am bothered by an upset stomach several times a
week.

o I have a cough most of the time.

o During the past few years I have been well most
of the time. 

o I have never had a fit or convulsion.

o I have had attacks in which I could not control
my movements or speech but in which I knew what was
going on around me.34

Not all psychological tests include questions that
are disability-related. With careful screening they
might be utilized prior to extending a conditional
offer of employment.

Prior to making a conditional offer, employers may
assess personality traits, knowledge, skills, and
abilities as they apply to job qualifications. Once
an offer has been made, employers are free to
administer psychological exams which include
medical questions.

Notes

1. EEOC's Technical Assistance Manual ("TAM"),
Section 4.4.

2. Snyder, D., The American With Disabilities Act,
Labor Relations Information System (1991), p. 212.

3. Id. at 210.

4. "ADA Questions and Answers," Bureau of National
Affairs, Americans with Disabilities Manual (ADAM),
(Washington, D.C., monthly), Section 90:0233. TAM,
Section 4.4.

5. TAM, Section 4.4.

6. House Labor and Education Report to the ADA, p.
72.

7. TAM, Section 4.3(1).

8. TAM, Section 4.3(2).

9. TAM, Section 3.3.

10. Snyder, p. 218.

11. Americans With Disabilities Act, Section 12112
(d).

12. Snyder, p. 228.

13. "Enforcement Guidelines: Pre-employment
Disability-Related Inquiries and Medical
Examinations Under the 
Americans with Disabilities Act of 1990," the Equal
Employment Opportunity Commission, May 1994, Volume
II, Compliance Manual No. 915.002.

14. TAM, Section 6.1. 

15. EEOC Regulations Interpretive Guidance, Section
1630.14.

16. Americans with Disabilities Act, Section 12112.

17. "ADA Questions and Answers," Bureau of National
Affairs.

18. Id.

19. Snyder, p. 232-233.

20. "ADA Questions and Answers," Bureau of National
Affairs.

21. Schneid, T., and L. Gaines, "The Americans with
Disabilities Act: Implications for Police
Administrators," 
Police Liability Review, Winter 1991. p.4.

22. Id. at 4.

23. "Enforcement Guidance: Pre-employment
Disability-related Inquiries and Medical
Examinations Under the Americans with Disabilities
Act of 1990," the Equal Employment Opportunity
Commission. p. 38.

24. Id.

25. Id. at 40.

26. Vaughn, C. Roland III. "IACP's Response to the
Americans with Disabilities Act," The Police Chief,
December 16, 1991.

27. "Enforcement Guidance: Pre-employment
Disability-Related Inquiries and Medical
Examinations Under the Americans with Disabilities
Act of 1990," the Equal Employment Opportunity
Commission. p. 30.

28. Crime Control Digest, Vol 25. No. 50. December
16, 1991.

29. Id. at 7.

30. "Enforcement Guidance: Pre-employment
Disability-Related Inquiries and Medical
Examinations Under the Americans with Disabilities
Act of 1990," the Equal Employment Opportunity
Commission.  p.34.

31. Id. at 35.

32. Crime Control Digest, December 23, 1991. p.7.

33. "Enforcement Guidance: Pre-employment
Disability-Related Inquiries and Medical
Examinations Under the Americans with Disabilities
Act of 1990," the Equal Employment Opportunity
Commission. p. 32.

34. "Minnesota Multiphasic Personality Inventory -
2," The University of Minnesota Press, 1989, #28,
#36, #141, #143, and #182.

----------------

Quick Quiz

Now, under the ADA, it is unlawful to make medical
inquiries prior to extending a conditional offer of
employment to a job applicant. Yet, the law does
not define terms such as "medical examinations" or
"medical inquiry."

What kind of questions, then, are off-limits before
extending a job offer? Here are some common
questions asked on applications and during
interviews. Which questions should be asked only
after making a conditional offer of employment?

Place an "X" by those questions which could be
construed as a medical inquiry.

_____1. Have you ever filed a claim for workers'
compensation?

_____2. How did you become disabled?

_____3. How often were you absent from your last
job?

_____4. Have you ever been injured on-the-job?

_____5. Are you taking any medication at this time?

_____6. Please describe how you would perform the
following functions of the job...

_____7. Are you willing to submit to a drug test at
this time?

_____8. How many sick days did you use on your last
job?

_____9. How much time off will you need because of
your disability?

_____10.Do you need any reasonable accommodation to
participate in our agility test?

______________

Paula N. Rubin, a lawyer, is a visiting fellow at
the National Institute of Justice, coordinating
NIJ's initiative to research, develop, and deliver
publications and training for the criminal justice
system on the Americans With Disabilities Act as
well as other human-resources management issues. 

Supported under award number 92-IJ-CX-0009 from the
National Institute of Justice, Office of Justice
Programs, U.S. Department of Justice. Points of
view in this document are those of the author and
do not necessarily represent the official position
of the U.S. Department of Justice.

_______________

Answers to Quiz

  X  1. Questions about workers compensation
history are not permitted prior to making a
conditional offer of employment because it could
require an applicant to disclose a disability or a
record of a disability.

  X  2. The ADA prohibits questions about the
nature, origin, or severity of a disability at this
stage in the hiring process.

     3. Questions about attendance, in general, are
permitted so long as they do not relate to absences
due to illness. [See question 8.]

  X  4. Questions regarding on-the-job injuries are
another way of asking about workers compensation
claims and therefore are not permitted.

  X  5. This question is often asked prior to
administration of a polygraph and is considered a
medical inquiry. Since this question cannot be
asked prior to extending a conditional offer of
employment, polygraph exams should either be pushed
back until the post-offer phase or, alternatively,
conducted without these "pre-polygraph" inquiries.

     6. Questions about how a particular applicant
would perform specific job functions, and with what
accommodation(s), are allowed. Employers are
permitted to determine whether the applicant can
perform the essential functions of the job and
questions like this one focus on the applicant's
abilities, not his or her disabilities.

     7. Drug tests are not considered medical exams
under the ADA. Therefore, a drug test may be
administered at any time.

  X  8. Questions about absences due to illness
would be considered a medical inquiry. Likewise,
questions regarding conditions or illnesses for
which treatment was sought, or regarding treatment
by a psychiatrist or psychologist or for a mental
condition would also not be permitted at the
pre-offer stage of the hiring process.

  X  9. Even if an applicant voluntarily discloses
a disability which is not manifestly obvious,
employers may not then use this information to
inquire into otherwise impermissible areas.
Remember, exploration into what accommodation to
provide should focus on the applicant's abilities,
not disabilities.

     10. Employers have a duty to reasonably
accommodate participants in the application, the
interview and any performance exams to be
administered.