REVISITING YOUR EMPLOYMENT APPLICATIONS:
ARE YOU ASKING $6.8 MILLION QUESTIONS?

By Shymeka L. Hunter, Esq.

Wal-Mart recently agreed to pay $6.8 million to settle a dispute alleging that it violated the Americans with Disabilities Act of 1990 by making improper inquiries into the medical history of job applicants. EEOC v. Wal-Mart Stores, Inc., No. Civ. S99-0414 (E.D. Cal. Dec. 127, 2001) (consent decree approved). The EEOC brought the suit on behalf of three named individuals plus those "eligible claimants" who applied for, but did not receive, jobs from Wal-Mart despite meeting all non-discriminatory job qualifications during the specified time period. While Wal-Mart certainly is noteworthy because of the settlement amount, it also is noteworthy because the inquiries at issue arguably are legitimate on their face.

The controversial inquiries in Wal-Mart surrounded Wal-Mart's "Matrix of Essential Job Functions" and the inquiries that followed. Essentially, the Matrix listed several positions and the functions necessary to perform those positions. It then asked the applicants to indicate whether they had to ability to perform the essential functions of the desired job, a clearly permissible question under the ADA. Specifically, the application read:

We are glad you are interested in the Wal-Mart family and thank you for the time you have taken to submit your application . . . . After receiving any needed explanation, please indicate below whether you have the ability to perform the essential functions highlighted above of the job for which you are applying.

The application provided the following three answer choices for this question:

1) Yes, I have the ability to perform all of the functions highlighted above
2) No, I do not have the ability to perform all of the functions highlighted above
3) Yes, I can perform all of the functions highlighted above with an accommodation

Applicants who selected the third answer choice only were asked to complete the following section:

Essential Function Limitation Suggested Accommodation
________________ _____________ _______________________
________________ _____________ _______________________

Applicants filling out this second part of the application were informed that consideration would be given to all "suggested reasonable accommodations."

The EEOC's main contention with the application was that the application appeared to make an improper inquiry into the applicants' disability. The EEOC Guidelines prevent an employer from asking disability-related questions and conducting medical examinations prior to extending a conditional job offer to the applicant. Disability-related questions are questions that are likely to elicit medical information about the applicant's disability. Disability-related questions include both questions that ask whether an applicant has a particular disability and questions that are closely related to a disability. Medical exams include any procedures that seek information about an individual's physical or mental impairments or health.

The EEOC apparently believed that the application elicited or was likely to elicit improper information. By asking applicants to describe their limitations and list suggested accommodations, the application apparently crossed the fine line between determining whether an applicant is qualified for a position with an accommodation (the interactive process contemplated by the ADA) and inquiring into an applicant's limitations. While it is permissible to engage in the interactive process to determine what accommodations an applicant might need, it is not permissible to inquire about the applicant's disability.

The $6.8 Million settlement seems like a costly price for an arguably improper inquiry. However, this is not the first time that an EEOC violation resulted in a substantial award against Wal-Mart. EEOC v. Wal-Mart Stores, Inc., 11 F. Supp.2d 1313 (D.N.M. 1998) aff'd, 202 F.3d 281, 1999 WL 1244485 (10th Cir. 1999). In 1999, the Court of Appeals for the Tenth Circuit upheld a $100,000 verdict in punitive damages against Wal-Mart for asking an applicant a similar question. The question in that case was "what current or past medical problems might limit your ability to do a job?" Id. (emphasis added). This question certainly is more questionable than the Matrix questions, which likely were drafted in response to the Tenth Circuit's affirmance.

Combined, these cases demonstrate the importance of understanding what is sometimes a fine line between EEOC compliance and non-compliance, a line that is easily approached because any discussion of or accommodation involves some discussion of the condition in question. This is especially true for any employer with past EEOC violations. While Wal-Mart demands careful thought to the application process, the case should not prevent employers from making legitimate and permissible inquires into an applicant's qualifications.

There are ways for an employer to determine whether an applicant is qualified to perform a job without contravening the EEOC's Guidelines. For example, although an employer may not ask an applicant to describe specific limitations, an employer may state the requirements of the job and ask if the applicant can perform those requirements. Therefore, the lesson to be learned from Wal-Mart is not that employers cannot ask questions about an applicant's qualifications, but that employers must structure their questions in a way that facially does not elicit information about an applicant's disability.

In addition to retaining counsel to review the application process, cautious employers should also consult the EEOC's web site (www.eeoc.gov.) for the latest developments and instructions on how to comply with the EEOC's Guidelines.

Shymeka L. Hunter is an associate with AGG and is a member of the firm's Litigation and Employment Law Practice Groups. If you have any questions concerning the issues presented in this article or any other employment related need, please contact Ms. Hunter at 404.873.8786 or by e-mail at Shymeka.Hunter@agg.com, or any other member of AGG's Employment Law Practice Group.

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