Is it legal for an employer to ask if you have Asperger's syndrome?

No. That would be a breach of privacy here in Australia. Here is a web page from the Australian government that talks about the requirement to disclose disabilities. This is another page from one of our leading universities.

I am not sure where you are but I would be surprised if an employer is allowed to ask this sort of question during an interview. What your brother can or might want to do about it is another thing. I am sure he could contact a department that deals with Equal Opportunities in your country. They would be able to advise him of his rights.

Not even a little bit.

Not in the US, people with Autism are considered “protected” under the the Americans with Disabilities Act if their condition is “substantial”.

A few things that would seem to apply, from The ADA: Your Employment Rights as an Individual With a Disability

Can an Employer Require Medical Examinations or Ask Questions About a Disability?

If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.

Promotions are mentioned specifically in the section labeled “What Employment Practices are Covered” as well.

The ADA doesn’t list specific conditions that are covered, but gives some guidelines at that top link. Copied here partially.

To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

Autism is also mentioned in one of the examples given here.

I would think regardless of whether or not your brother is covered, the question is legally out of bounds when asked in an official capacity.

Incredibly unprofessional. If it were me and I didn’t get the promotion, I’d consider contacting a lawyer.

The site that @Bellatrix links to deals more with whether your brother has an obligation to disclose his disability rather than if it is legal for the employer to ask. But the page does say “There is no legal obligation for you to disclose a disability, unless it is likely to affect your performance or ability to meet the inherent requirements of the job that you have applied for, including your ability to work safely and ensure the safety of co-workers.” Which I think is very relevant. You don’t mention what sort of job your brother has so it is difficult for me to decide which side of the fence I am on. You say a couple of things that would be a red flag for me as an employer. You say he is “normally” high functioning, that could be problematic if the job requires 100% high functioning 100% of the time. The other is that he had a “mini-meltdown” because he was being questioned, again a problem if the job requires stability. So if he wants to drive a train or any other stressful occupation, I would think the employer would not only have the right to ask, if he didn’t ask and your brother or a co worker was injured because of your brother’s inability to cope, then the employer would be negligent. I thought all employers had the right to request medical clearance and urine tests.

I am sorry for your brother but I am also sorry for the employer to be in that position, again depending on the type of job.

Not in America. The boss can ask questions to ascertain if he is able to do the job, and if his personality, physical capabilities, or mental status makes him unable then he can be denied being hired/promoted. A simple diagnosis does not really tell us that. People have varying degrees of asperger’s and each individual is different in what is difficult for them, although of course there are some common threads. The manager should have asked him specific questions to the job. He can go to HR and complain, or simply notify them if he is not feeling like he wants to make a big complaint about it. The company needs to address it with the manager. Of course your brother would need to evaluate whether or not he wants to bother, and how the ramifications would affect him.

I guess it goes without saying he might want to get evaluated at minimum for his anxiety.

It’s illegal, but so is asking women if they plan to get pregnant in the near future—yet I’ve been asked that many many times in job interviews. I think employers know that 99% of people won’t bother reporting or suing – so they go ahead and ask.

What’s worse is this – I would get people ask the illegal questions and then say “It’s OK if you don’t answer. I’m not even supposed to be asking this.. so if you don’t want to answer..” But you’re doomed if you refuse or give anything other than the “right” answer.

@keobooks I think an additional reason is a whole bunch of managers are ignorant to the laws on what can be asked. HR might know, but the managers are not always trained very well. I also agree with you that if they do know they don’t think people will actually do anything about it, and I also have heard what you describe in your last paragraph.

@keobooks I think it’s because you have to be able to prove that this question is why you didn’t get the job, which almost no one can.

It is interesting that people feel this is an inappropriate question, without knowing what the promotion would involve. If the job involved a lot of social interaction, having Aspergers might make a difference. Imagine if he blew up like that on a customer.

On the other hand…. would he be able to perform the job if he has a “mini-meltdown” and “lashes out” at people all day when someone asks him a question he does not like?
Maybe this is a good indication he might not be the best person for the position.

@filmfann Not inappropriate, illegal. As in, illegal regardless of if any of us disagree with the law.

@Aethelflaed No, the question is illegal in the first place. I guess we could say we can’t prove it was asked. He said she said. People are in trouble for just asking whether they hire or not.

@LuckyGuy That is why they can assess if he is right for the job, but they can’t ask him a diagnosis.

@JLeslie True. Sure they can’t ask directly but it is clear they had suspicions already. They can ask other questions. The end result is the same.
If he feel he wants a job like that he has to practice so a similar question rolls off his back.

@LuckyGuy I agree. This was his practice. We all go through it to some extent. We screw up an interview, and then are more prepared the next time.

As others have said, it is illegal. It sounds like they may have been testing his ability to work under pressure, but there are more appropriate (and legal) means of making that determination.

I don’t think they were testing him under pressure. If an employee has been in a company for a while, usually there is some rapport, and people have told some personal things to each other, so conversation is sometimes less formal than say an initial interview.

@JLeslie True, maybe they just wanted to know if anything would hinder his ability to do the job. Either way, they could’ve gotten the information they needed in a more appropriate manner.

@lonelydragon I am not defending the manager, what he did was illegal, but I think he was completely clueless of the reaction it would incite. We would need to know the whole comversation to know how it came up. The manager might not have held the diagnosis against him, but rather been willing to be accomodating. We have no idea by the information provided.

@JLeslie I didn’t mean to imply that they had cruel intentions or anything like that, just that asking him outright was illegal and that if they wanted information from him, they couldn’t found it out another awy besides directly asking.

@Aethelflaed I think it’s because you have to be able to prove that this question is why you didn’t get the job, which almost no one can.

If this means that the potential employee is responsible for proving that the employer asked this question, I’m pretty sure that isn’t true, at least in the US. With EEOC claims, the burden of proof falls on the shoulders of the defendant (employer) and not on the plaintiff (the potential employee).

This is why it is so important for anyone in a supervisory position to really know the EEOC laws. Lawsuits are costly and time-consuming, even if the defendant (employer) wins the case. If a specific disability would prevent the person from doing the job effectively, it needs to be proven in advance of the application process. It would have to hinder an employee from carrying out the specific job responsibilities.

So, in this case, unless Asperger’s Syndrome can be proven to be a problem for a person to successfully complete the job tasks, and the question is asked to everyone being interviewed, the hiring manager/company could find themselves knee-deep in a lawsuit.

@lonelydragon I understand. I was not trying to say you thought he had cruel intentions.

@filmfann True, but I know of few Aspies that would willingly take a position that required social skills in the first place. Furthermore, if he was already an employee, they should already have an idea of his strengths/weaknesses, in thus case from seeing how he relates to coworkers.

Most importantly, lack of good social skills is not limited to Aspies, and there are ways to figure out how well-suited one is for such a position that don’t involve asking about protected medical information, like a simple, “How good are your customer service skills?”.

Better examples would be, “Tell me about a time where you had to deal with a customer/fellow employee (whatever is applicable to the job) where you felt that they were wrong.” Or, “Tell me about a time where you became frustrated in a work situation.” Often, the answer is quite insightful.

Asking, “How good are your customer service skills?” leaves it open for the response to be a simple answer, like “Very good.” While it might be the truth, that could also be their perception. It could also be a lie.

I’m with @jerv. I worked with a woman who was an Aspie and she’d left Academia (too much social interaction) for an IT / DBA job that meant very little social interaction. She was brilliant (far smarter than the rest of us) and yet was keenly aware of her limitations – so she certainly avoided becoming a people manager or moving out of the tech team.
Also, when she had minor meltdowns that involved shouting expletives at her computer screen we all gave her a lot of grace. We knew she was frustrated (and probably rightly so by some stupid or illogical request missing critical details) and that after the meltdown she’d pull it together and write a professional response.

Over time (we worked together for several years) she astounded me with how much she grew and adapted. Perhaps getting married and having kids was a growth experience for her.. I’m not sure, but I do know her social skills became noticeably improved.
I don’t think it’s fair to pigeonhole anyone..You never know how far they’ll be able to stretch and improve their social skills.
And if it isn’t illegal for employers to ask, it should be. Especially with things like this that involve a spectrum. If they can ask wouldn’t it be important to pinpoint where you are? I’m Aspie but high-functioning? I have depression but it’s well controlled on meds? I just don’t think HR or employers should go there.

@geeky_mama There is a reason I am a CNC Machinist and not an engineer; take a guess what that reason is ;)