MAY 6 1996

The Honorable J. Bennett Johnston United States Senator 1510 One American Place Baton Rouge, Louisiana 70825 Dear Senator Johnston: This letter responds to your inquiry on behalf of your constituent, Mr. XX , a restaurant owner, who expresses concern about what he regards as intrusions into private and commercial enterprises by the Americans with Disabilities Act of 1990 (ADA). In particular, Mr. XX appears to have concerns about questions that the ADA may not permit an employer to ask in pre-employment interviews. Please excuse our delay in responding. Mr. XX requests the constitutional basis for the ADA. The stated purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. Section 12101(b)(1) (Supp. II 1990). Congress invoked the full sweep of its authority under the Commerce Clause and the Fourteenth Amendment to accomplish this mandate. For a thorough discussion of the constitutional authority underlying the ADA, we are enclosing two legal briefs pertinent to your constituent's question. Pinnock v. International House of Pancakes Franchisee, et al. 844 F.Supp. 574 (S.D. Cal. 1993), and Abbott v. Bragdon, Civil No. 94-0273-B, 1995 WL 775019 (D. Me. Dec. 22, 1995). With respect to your constituent's question about preemployment inquiries, the ADA prohibits discrimination in employment against a qualified individual with a disability. The Equal Employment Opportunity Commission (EEOC) has the authority to enforce the ADA's employment provisions, including setting employment policies. A copy of the EEOC's guidance regarding preemployment questions is enclosed. cc: Records, Chrono, Wodatch, McDowney, O'Brien, FOIA n:\udd\obrien\congress.drs/XX .sen\sc. young-parran 01-04259

-2For further information, you or your constituent may contact EEOC's Information Line at 1-800-669-4000. We also are enclosing copies of EEOC's brochure, The Americans with Disabilities Act, Your Responsibilities as an Employer, for information on employment requirements under the ADA, including those pertaining to pre-employment inquiries. I hope this information will assist you in responding to your constituent. As you requested, we are returning your constituent's correspondence. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-04260 XX Bossier City, La XX Jan. 30, 1996 Dear Sir, As a restaurant owner, I have attached an article from the Restaurant Association monthly magazine. I was alarmed at the intrusions the national government has made with meddling into the business affairs of private enterprise and all commercial entities. Please quote me the Constitutional article, section and clause of our beloved CONSTITUTION that grants federal jurisdiction for this local interference and domination. What are your proposals to rectify this situation. Looking forward to your reply. Yours truly,

XX 01-04261 DAMAGES ASSESSED AGAINST EMPLOYER WHO ASKED THE WRONG QUESTIONS DURING INTERVIEW In a decision of first impression, a jury awarded a job applicant $45,000 this summer under the federal Americans with Disabilities Act (ADA) solely because the applicant was asked questions during a job interview that the ADA disallows. The case involved a company right here in Louisiana. Prior to this decision, awards under discrimination laws for simply asking the wrong question were tied to other substantiated harm to the applicant, such as denial of the job. Here, however, the jury found there was no discrimination in refusing to hire the applicant, but awarded damages anyway simply because the interviewer committed "technical violations" by asking the applicant about his facial scars and how other persons reacted to his appearance. This case emphasizes how important it is to carefully scrutinize the questions being asked during a job interview. The following outlines some questions that the ADA permits or does not permit. Questions that may be asked include: * An employer may ask whether an applicant can perform specific job functions. (question may be asked if it is not worded in terms of a disability, if it is asked of all applicants, and if a job description

is provided.) * If an applicant has a known disability that would appear to interfere with performance of a job function, the employer may ask the applicant to describe or demonstrate how these functions will be performed, with or without an accommodation.

Questions that may not be asked * * * * Have you ever been hospitalized? If so, for what condition? Have you ever been treated for a mental condition? Have you ever had a major illness in the last few years? How many days were you absent from work because of illness last year? Do you have any physical defects that would preclude you from performing certain work for which you are applying? Are you taking any prescribed drugs? Have you ever been treated for drug addiction or alcoholism? Have you ever filed for workers' compensation insurance? Will you need time off for medical treatment?

*

* * * *

Also, employers should keep in mind that other questions may create potential

legal problems under other federal and/or state anti-discrimination laws, including questions about: * * * * marital status or number of children education requirements beyond what may be essential for the job arrest and/or conviction records citizenship

* birthdate. 01-04262