On June 7, the EEOC released an informal discussion letter regarding the difference between lawful and unlawful medical inquiries under the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA). Because Section 501 of the Rehabilitation Act (which covers federal employees) incorporates ADA standards, the letter serves as a reminder to private employers about when and what sort of medical inquiries are permissible during hiring without violating the ADA or other anti-discrimination laws.

ADA - EEOC Legal Counsel underscored several ADA restrictions on medical inquiries of applicants: There is no exception to the rule that disability-related inquiries or medical examinations are prohibited pre-job offer; requiring applicants to complete a medical questionnaire prior to a conditional job offer violates the ADA; after a conditional offer is made, employers may ask disability-related questions and require medical examinations only if it does so for all incoming employees in the same job category; once employment begins, an employer typically can only make disability-related inquiries or require medical examinations if they are job-related and consistent with business necessity; and, in the post-offer stage of the hiring process, individual applicants may be asked questions not asked of others if the questions are “medically-related” to medical information previously received.

GINA - Title II of GINA prohibits employers from seeking, requiring, or purchasing genetic information from applicants or employees, except under very limited circumstances. So, questions about an applicant’s family medical history or genetic information run afoul of GINA.

Title VII, ADEA - Beware of requiring post-offer medical questionnaires only from applicants in certain protected groups such as a “Mammogram Form” required only of women over 50 years old. Such a requirement will likely violate Title VII, which prohibits sex discrimination, and the ADEA, which prohibits discrimination against employees age 40 and over. Counsel for the EEOC characterized an application process with such a requirement as“ facially discriminatory.”