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Can an Employer Inquire About Mental Illness on an Employment Application?

Can an Employer Inquire About Mental Illness on an Employment Application?

Full question:

We would like to ask the following questions on an employment application and would like to know if we can do so legally: 'This position is targeted for adults who are recovering from severe mental illness. Do you wish to declare that you are a member of this target population?' 'Our company is committed to accommodating limitations due to mental health disabilities. You may describe accommodations here or discuss them if you are interviewed.' and 'Have you ever had an episode of violence or threatening violence against another? If so, describe and summarize treatment and recovery process. (This does not necessarily disqualify you from employment.)

Category: Employment
Date: 04/07/2025
State: Montana

Answer:

Generally, it is not the asking of a question that is a violation of federal or state anti-discrimination laws; it is the practice of disqualifying applicants based on their answers to those questions that can be an unlawful employment practice.

Human resource personnel are cautioned about asking the potential employee if he has a disability that will interfere with his ability to do the job, if he has a specific illness, or how many days he was sick in the past year. All of these questions could indicate that an employer is discriminating against a qualified individual with a disability in violation of the Americans with Disabilities Act (ADA) of 1990.

The ADA allows you to ask the applicant to describe or demonstrate how they would perform an essential function(s) when certain specific conditions are met. An employer is prohibited from asking disability-related questions or requiring a medical examination before making an individual a conditional job offer. After the employer extends an offer for a position, it may ask the individual disability-related questions or require a medical examination as long as it does so for all entering employees in the same job category. Thus, while many of the referenced questions are impermissible pre-offer, they may be asked after a conditional offer of employment has been made. An employer that uses the results of such questions to screen out an individual because of a disability must show that the exclusionary criterion is job-related and consistent with business necessity.

For further discussion, please see:

http://www.eeoc.gov/foia/letters/2002/ada_inquiries_examinations_3.html

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What are the legal limitations on asking about mental health in job applications?

Employers can ask about mental health on job applications as long as the questions do not violate the Americans with Disabilities Act (ADA). They should avoid questions that directly inquire about an applicant's disabilities or specific health conditions before a job offer is made. Instead, focus on how an applicant can perform essential job functions. After a conditional offer, employers may ask disability-related questions, but any exclusion based on these answers must be job-related and consistent with business necessity.

Can employers ask about a history of violence during the hiring process?

Employers can ask about a history of violence, but they must be careful not to discriminate against applicants based on their responses. Questions should be relevant to the job and not imply bias against individuals with past issues. If an employer uses this information to disqualify a candidate, they must demonstrate that the exclusion is necessary for the job. It's essential to approach this topic sensitively and in compliance with applicable laws.

What accommodations must employers provide for mental health disabilities?

Under the ADA, employers are required to provide reasonable accommodations for employees with mental health disabilities, as long as these accommodations do not impose an undue hardship on the employer. This can include flexible work hours, modified job duties, or providing a quiet workspace. Employers should engage in an interactive process with the employee to determine appropriate accommodations that enable them to perform their job effectively.

Is it legal to ask if someone is recovering from a mental illness?

Asking if someone is recovering from a mental illness can be legally sensitive. While employers can target specific populations for certain positions, they should frame questions carefully to avoid discrimination. It's important to ensure that such questions do not violate the ADA by implying that recovery status could affect employment eligibility. Instead, focus on the applicant's ability to perform job functions.