Privacy Issues in the Workplace

LCW Practice Advisor

 Tests that measure the applicant’s physiological or biological responses would constitute a prohibited medical examination because they measure the body’s physiological response as opposed to measuring the applicant’s ability to perform certain tasks  Since an employer cannot inquire about an applicant’s medical background prior to making a conditional offer of employment, an employer who is administering a physical agility/fitness exam should strongly consider advising participants of the components of the exam and the physical stresses involved before the exam is administered. By doing so, an employer may avoid or reduce liability where an applicant injures himself or herself in the course of physical fitness/agility testing.

7. D RUG AND A LCOHOL T ESTING OF A PPLICANTS The Ninth Circuit Court of Appeals held in Lanier v. City of Woodburn 158 that employers must have a “special need” to require pre-employment drug testing. Please refer to Section 4 of this workbook for a detailed discussion of drug and alcohol testing. 8. P SYCHOLOGICAL T ESTING Under California law, employers are also prohibited from requiring a psychological examination prior to making a conditional offer of employment. 159 Under the ADA, if the psychological test is “medical,” i.e., if it provides evidence that would lead to identifying a mental disorder or impairment, the test is prohibited. However, under the ADA, a test that measures personality traits such as honesty, preferences, and habits would not be considered a medical examination. 160 C. H OW TO H ANDLE THE O BVIOUSLY D ISABLED A PPLICANT Sometimes an applicant’s disability will be obvious to an employer (e.g., the applicant is missing a limb). In such circumstances, the employer may still inquire about the applicant’s ability to perform the essential functions of the job. The employer may also ask an applicant with a known disability to demonstrate how he or she would perform an essential function of the job. The employer may also ask the applicant whether he or she requires a reasonable accommodation to perform the job and what type of accommodation is required. 161

However, the EEOC has indicated that where an applicant discloses a disability or the disability is otherwise obvious, the employer should not inquire further into the nature or severity of the disability (e.g., “How did you lose your leg?”) 162

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