In 2012, the Equal Employment Opportunity Commission issued an enforcement guidance with regard to employer use of arrest and conviction records in making hiring and other employment decisions. The EEOC cautioned employers that such use could have an illegal disparate impact on certain protected groups.
Earlier this fall, the EEOC provided an opinion letter in response to an inquiry from an employer about the effect of this guidance on “Integrity Tests” it performs for third-party employers. Apparently, these tests ask applicants about their responses to certain hypothetical situations, and about their current illegal use of drugs. The EEOC distinguished these questions from the criminal background searches covered in the enforcement guidance. The Integrity Test does not ask about arrest or conviction history, and Title VII does not prohibit employers from asking applicants about current illegal drug use or hypothetical questions about what they would do in situations that may involve criminal activity.
The EEOC also stated that the ADA does not prohibit employers from asking applicants about current illegal drug use. In general, employers should exercise caution with regard to use of diagnostic or other pre-employment tests. Unless they have been statistically verified for use in the hiring process, such tests can have a variety of disparate impacts against protected minority groups. If such impacts arise, the employer has the burden of demonstrating the business need for the inquiry, and that there are no less discriminatory ways of accomplishing those business goals. However, according to the EEOC, simply asking about current or hypothetical illegal activities does not violate federal civil rights laws.