Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 3/27/1997
Status: Precedential
Modified Date: 7/5/2016
Carol G. Green, Clerk Kansas Supreme Court Kansas Judicial Center, 3rd Floor Topeka, Kansas 66612
Dear Ms. Green:
You request an opinion on behalf of the Chairman of the Supreme Court Nominating Commission (Commission) concerning the propriety of certain questions that appear on the application form for appellate court candidates. The questions address the age, marital/family status, religious affiliation and health of the applicant. We review each question in light of the Kansas Acts Against Discrimination (KAAD), the Kansas Age Discrimination in Employment Act (KADEA) and the Americans With Disabilities Act (ADA).
"1. Given minimum age qualifications and a mandatoryretirement age, may the Commission ask on its nominationform the date of birth and age of potential nominees?"
The Kansas Age Discrimination in Employment Act (KADEA), K.S.A.
The Commission is established by the Kansas Constitution and its purpose is to nominate and submit to the Governor the names of persons for appointment to the Kansas Supreme Court and the Kansas Court of Appeals. Kan. Const., Art.
While the Commission does not itself employ the candidate, it plays an integral part in the process by which appellate court judges are employed. State exrel. Stephan v. Adam,
Having determined that the Commission is subject to the KADEA, we review the question at issue.
"A request on the part of the employer for information such as `date of birth' or `state age' on an application form is not in itself a violation of the ADEA but it will be closely scrutinized to assure that the request is for a permissible purpose and not for the purpose of discriminating against applicants on the basis of their age."
By law, appellate court judges must be at least 30 years old and must retire at age 70. Kan. Const., Art.
"2. May the Commission ask on the nomination formwhether the potential nominee is married, the spouse'sname, the number of children, and the children's namesand ages?"
In Attorney General Opinion No.
Our concern lies with the relevance of this information to the Commission's mission of selecting the most qualified candidates for the appellate bench. Is a married candidate better qualified to review a decision of a lower court than an unmarried candidate? Is a married man more qualified to affirm a murder conviction than a single or married woman with minor children? While the question concerning marital and family status is posed to all applicants, we believe that requesting this information increases the potential for liability under an Equal Protection challenge or an employment discrimination/disparate impact theory. A disgruntled applicant could allege that this seemingly neutral question creates "an artificial, arbitrary and unnecessary barrier to employment" because it has a significant disparate impact on a protected group.Murphy v. Derwinski,
The Commission has not provided us with a reason why this information is necessary in securing the best qualified candidates and, therefore, we urge the Commission to reexamine whether the information sought is justified in light of the potential for liability and the perception it creates among the applicants. If there is no non-discriminatory reason for asking these questions, they should be stricken.
"3. May the Commission ask on the nomination form thereligious affiliation of a potential nominee?"
A question propounded by the Commission that inquires into one's religious affiliation implies that one's religious beliefs or lack of religious beliefs is relevant to serving on the appellate bench. Such implication is odious to the concept of separation of church and state. Both the Kansas and United States Constitutions forbid religious tests as a qualification for holding public office. Kan. Const.,
"4. May the Commission ask on the nomination form aseries of health-related questions. Specifically:
"(a) Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? If `yes,' explain.
"(b) Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to serve as a judge of the appellate courts in a competent and professional manner? If `yes,' explain.
"(c) Have you been treated for alcohol or drug abuse in the past five years? If `yes,' please describe the treatment and explain how you have dealt with the condition."
Attorney General Opinion No.
In Doe, supra, the Court never addressed a Title I application; rather, the court reviewed Title II of the ADA, which prohibits a public entity from imposing eligibility criteria that screens out or tends to screen out disabled individuals from enjoying a program or activity offered by the public entity and concluded that the Florida Judicial Nominating Commission is a public entity subject to Title II. The Court then proceeded to evaluate six health-related questions, three of which addressed mental health and substance abuse.
"Judges in our society are vested with extraordinary power. Decisions of life and death, liberty or imprisonment, custody of children, and a host of weighty issues constitute the daily diet of those who serve on the bench. It is absolutely imperative that applicants for these positions be thoroughly vetted to assure their physical and mental fitness. The Florida Constitution places a large part of this responsibility in the hands of the nominating commission. As the gatekeepers of the appointive route to the bench, the Commission's task is to invite the best to apply, to scrutinize the applicants, and then to nominate only the most qualified for the Governor's consideration. Protecting the public is a paramount goal and, therefore, the Court agrees with the Judicial Nominating Commission's contention that the necessity exception is applicable to the judicial selection process."
The Court concluded that Title II of the ADA does not prevent inquiry into the area of diagnosis and treatment for severe mental illness. However, the Court then had to address the issue of whether the mental health related questions were over-inclusive because they required disclosure of information about past treatment or counseling that had no bearing on the applicant's present ability to perform the job.
"All of these cases reinforce the principle that, under the ADA, the forced disclosure of information relating to disabilities without a necessary basis for the information is a form of discrimination because it screens out, or tends to screen out the disabled by imposing disproportionate burdens on them. . . . Therefore, where the inquiry has no reasonable relationship to job performance, but imposes a burden on individuals with disabilities by requiring them to make public disclosure of irrelevant present, past or perceived disabilities, the inquiry violates the ADA."
Citing case law from other jurisdictions that considered mental health related questions propounded to candidates for bar admission the Court concluded that wide-open inquiries into "any form of mental illness" or "any form of emotional disorders or disturbances" were over-inclusive and violated Title II of the ADA. Clarkv. Virginia Board of Bar Examiners,
Applying the Doe analysis to the questions at issue, it is our opinion that the Commission's questions pass muster under Title II because they are reasonably related to job performance and are subject to reasonable time limitations. Questions similar to questions (a) and (b) have been upheld in other jurisdictions when challenged by bar applicants and the National Conference of Bar Examiners has approved such questions for use on bar admission forms. See Clark, supra, footnote 22, 18; Applicants v. Texas State Board of Bar Examiners, 1994 W.L. 776693 (W.D. Texas 1994) and Memorandum from the National Conference of Bar Examiners (February 24, 1995).
However, under a Title I analysis, the questions constitute impermissible pre-employment medical inquiries and the Commission may subject itself to liability under Title I as well as the KAAD.
Both the ADA and the KAAD restrict an employer's ability to make inquiry of job applicants in an effort to discover disabilities or perceived disabilities on the basis that such information has been traditionally used to exclude applicants with disabilities before their ability to perform the job was evaluated. In short, an employer may not ask disability-related questions until it makes a conditional job offer to the applicant.
At the pre-offer stage, which is the point at which the Commission participates, it may not ask questions that are likely to elicit information about a disability. EEOC Guidance Manual, Appendix III, pg. 530. Moreover, the Commission may not list a number of potentially disabling impairments and ask the applicant to indicate any of the impairments that he or she may have. 29 C.F.R. Appendix to Part 1630 — Interpretive Guidance on Title I. All three questions at issue inquire into possible impairments and, therefore, they are impermissible under Title I of the ADA. [The EEOC Guidance Manual specifically prohibits questions relating to treatment for drug or alcohol abuse.]
We realize that the area of disability law is evolving and that much remains to be litigated in the employment arena including whether entities such as the Commission are covered by Title I. However, at this point it is our opinion that while the questions at issue here are sufficiently narrow to withstand Title II scrutiny they are not permissible under Title I.
Summarizing our opinion, the Supreme Court Nominating Commission is subject to the Kansas Acts Against Discrimination, the Kansas Age Discrimination in Employment Act and the Americans With Disabilities Act. Question number 1 regarding the age of the judicial applicant invites scrutiny on the basis that the inquiry is broader than it has to be in order to ensure that a judicial candidate is legally qualified to apply. Question number 2 regarding the candidate's marital status and family situation is inappropriate in the absence of a legally justifiable basis for the inquiry. Question number 3 which requests the religious affiliation of the candidate violates the
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Mary Feighny Assistant Attorney General
CJS:JLM:MF:jm
martha-ortega-dolores-rojo-cora-charboneau-mary-h-martinez-ray-ann-lobato , 943 F.2d 1230 ( 1991 )
patricia-mabry-v-the-state-board-of-community-colleges-and-occupational , 813 F.2d 311 ( 1987 )
Mary Wilson Murphy v. Edward J. Derwinski, Secretary of ... , 990 F.2d 540 ( 1993 )
Davis v. Wesley Retirement Communities, Inc. , 913 F. Supp. 1437 ( 1995 )
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Rivas v. STATE BD. FOR COMMUNITY COLLEGES, ETC. , 517 F. Supp. 467 ( 1981 )
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Lemon v. Kurtzman , 91 S. Ct. 2105 ( 1971 )
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Clark v. Virginia Board of Bar Examiners , 880 F. Supp. 430 ( 1995 )
Puntolillo v. New Hampshire Racing Commission , 375 F. Supp. 1089 ( 1974 )