• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Are they correct - illegal application?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

jd123

Junior Member
What is the name of your state (only U.S. law)? Texas

I work at a small police department, and we just got this letter from some attorney... was wondering if anyone knows the law concerning this and if we are really violating them. Thanks!
-----------------
This letter is a formal protest against your hiring practices, which we believe are unethical and illegal.

On February 18, 2009 our client possessed an employment application for a position as a police officer with your department. While our client was filling out his application, he discovered the following questions, which are illegal under 42 U.S.C. Section 12112(d)(2)(A) of the Americans with Disabilities Act:

1) Describe in your own words the frequency and extent of your use of alcoholic beverages.
2) Describe the level, frequency and circumstances surrounding any use of marijuana or use of drugs not prescribed by a physician.

Our client had a good faith belief that such questions were improper and he refused to answer them. As a result, our client was unable to provide his signature to certify that there were no omissions, as required on your application. The application also requires that “ALL blanks must be filled in,” and that questions are to be filled out “completely and [to] check your answers before submitting.” Thus, your requirements prevented our client the ability to submit his employment application, on the basis that it was incomplete.

As a result of our client’s refusal to answer the unlawful questions, he was unfairly denied an equal opportunity to apply for said job and participate any further into the hiring process. Based on this, we believe our client has been victimized by discrimination, since our client is highly qualified for the police officer position and was never given an adequate opportunity to display his qualifications.

Under the Americans with Disability Act (ADA), it is unlawful to ask such disability-related questions on employment applications. A law enforcement agency may not ask at the pre-offer stage about the frequency of past illegal drug use; whether the applicant has ever been addicted to drugs; or undergone treatment for addiction. Additionally, a law enforcement agency may not ask at the pre-offer stage about the frequency of past or present alcohol use; whether the applicant has ever had an alcohol addiction; or undergone treatment for addiction.

You may argue that the use of alcohol or illegal drugs may be a “disqualifer” for police applicants, on the basis of integrity. We believe that a “disqualifer” of this nature possibly could generally be appropriate, as it may be job-related and consistent with business necessity (though it may not be appropriate for an applicant who has been a successful police officer for several years). You may argue that your questions regarding the frequency and extent of alcohol/illegal drug use are solely to determine the integrity of an applicant, not to determine an addiction [disability]. We disagree, because if that was your true intent, then you would have followed the same context for these questions located on your pre-employment personal history application:

-Were you EVER accused of dishonesty by ANY of your Employers?
-Have you EVER sold or bought ANY stolen property?
-While employed with any law enforcement agency, did you commit any felony or major misdemeanor offense(s)?
-Have you physically abused any prisoner?
-Have you ever resigned while under any internal affairs investigation(s)?
-Since you went to work for any law enforcement agency have you used any illegal drugs? (narcotics, marijuana, controlled substance)
-Have you ever confiscated any prisoner’s property and make personal use of it?
-Did you or have you ever used you office or position for personal gain, revenge or illegal matter?
-Have you ever taken a bribe?
-Did you ever sleep while on duty?
-Did you ever do anything for which, should a supervisor have found out, you could have been fired?

In those questions, you never ask how many times the applicant performed the actions. A simple answer of “yes” to any of those questions would indicate an applicant lacking integrity. Any illegal drug use would indicate an applicant lacking integrity; therefore, we feel that your drug/alcohol questions are being used to cause an applicant to divulge an addiction or perceived addiction. You can’t ask pre-offer questions regarding frequency or extent of alcohol/illegal drug use because these inquiries are likely to cause an applicant to divulge a disability or perceived disability, and therefore, such questions are disability-related questions and should not be asked until after a conditional job offer.

The Americans with Disabilities Act allows law enforcement agencies to conduct post-offer medical examinations and ask post-offer disability-related inquires. Disability-related inquiries and medical examinations legally go hand-in-hand since they are governed by the same ADA provisions. You would not ask an applicant to do a medical examination before a conditional offer, so why would you ask disability-related questions before a conditional job offer?
 



Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top