Prohibited Psychological Inquiries

The fact that a psychological test is not considered a medical examination does not necessarily mean that all the individual inquiries on the test may be asked at the pre-offer stage. Where individual inquiries concern the existence, nature, or severity of a disability, the EEOC's Interim Enforcement Guidance took the position that these inquiries are prohibited at the pre-offer stage. The EEOC's Final Enforcement Guidance did not address this issue. Nonetheless, employers may be well advised not to include questions such as the following on a psychological examination which, otherwise, would not constitute a medical examination: - Inquiries about whether an individual has sought or is currently seeking mental health assistance. - Inquiries about the extent of prior illegal drug use. - Most inquiries about prior or current lawful drug use. - Inquiries reflecting the extent of prior or current alcohol use.