An employer practice of requiring applicants to undergo "integrity testing" may not violate the EEOC's Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act, according to a discussion letter issued by the Equal Employment Opportunity Commission this fall.

Responding to an inquiry by an employer that asks "applicants to answer hypothetical questions about what they would do in situations that may involve criminal/illegal activity as well as questions regarding their current use of illegal, non-prescription drugs, including marijuana," the EEOC concluded that such questions do not run afoul of its Enforcement Guidance where they do not require applicants to disclose their arrest or conviction records in order to answer the questions. The agency also noted that to the extent that the questions are limited to an applicant's current use of illegal drugs, such inquiry does not constitute an impermissible disability-related inquiry. While the Americans with Disabilities Act prohibits questions about an applicant's past addiction to drugs, no such prohibitions apply to questions involving an applicant's current use of illegal drugs. Read more.