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Chapter V: Nondiscrimination In The Hiring Process: Recruitment; Applications; Pre-Employment Inquiries; Testing

This chapter discusses nondiscrimination requirements that apply to recruitment and the job application process, including pre- employment inquiries. Chapter VI. discusses these requirements more specifically in relation to medical inquiries and examinations.

5.3 Employment Agencies

Employment agencies are "covered entities" under the ADA, and must comply with all ADA requirements that are applicable to their activities.

The definition of an "employment agency" under the ADA is the same as that under Title VII of the Civil Rights Act. It includes private and public employment agencies and other organizations, such as college placement services, that regularly procure employees for an employer.

When an employer uses an employment agency to recruit, screen, and refer potential employees, both the employer and the employment agency may be liable if there is any violation of ADA requirements.

For example: An employer uses an employment agency to recruit and the agency places a newspaper advertisement with a telephone number that all interested persons must call, because no address is given. However, there is no TDD number. If there is no telephone relay service, and a deaf person is unable to obtain information about a job for which she is qualified and files a discrimination charge, both the employer and the agency may be liable. An employer should inform an employment agency used to recruit or screen applicants of the mutual obligation to comply with ADA requirements. In particular, these agencies should be informed about requirements regarding qualification standards, pre-employment inquiries, and reasonable accommodation.

If an employer has a contract with an employment agency, the employer may wish to include a provision stating that the agency will conduct its activities in compliance with ADA and other legal nondiscrimination requirements.