Principles for Public Safety Employment

often contain disability-related questions, such as questions about what lawful medications the applicant is taking. Employers cannot ask disability-related questions as part of a pre-offer examination, even if the examination is not itself “medical.” At the same time, the EEOC has indicated that a polygraph examination for a peace officer applicant may be an example of a procedure that is too costly to perform before a conditional offer is made. 64 Law enforcement employers should be cautious and either conduct the polygraph examination before making a conditional offer or refrain from asking disability-related questions during it. 4. P OST C ONDITIONAL O FFER I NQUIRIES AND E XAMINATIONS After making a conditional offer of employment, an employer may, with certain limitations, require an applicant to undergo a medical examination and/or inquire into an applicant’s medical background. Employers may ask applicants health-related questions provided that all individuals in the same job category who receive a conditional job offer are asked the same questions, and the employer can demonstrate a job-related business necessity for the inquiry. 65 A fire department, like most employers, may inquire into an applicant’s criminal history only after it makes a conditional offer of employment. 66 “Criminal justice agencies” such as police departments are excepted from the below statutory requirements, and may conduct a criminal background check before extending a conditional offer. 67 If the employer intends to deny employment solely or in part because of the applicant’s conviction, it must make an “individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” This assessment must consider the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and completion of the sentence, and the nature of the job sought. The employer may, but is not required to, commit the results of this individualized assessment to writing. 68 If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant, the employer is required to notify the applicant of this preliminary decision in writing. That notification must contain notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer, a copy of the conviction history report, if any, and an explanation of the applicant’s right to respond. 69 The applicant must be afforded at least five business days to respond to the notice of the preliminary decision to rescind his or her offer. If, within those five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the criminal history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that decision, the applicant is entitled to five additional business days to respond to the notice. 70 The employer is required to consider any information submitted by the applicant in response to the preliminary determination before making a final decision. 71 If it makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer is required to notify the applicant of the final denial or disqualification, any existing procedure

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