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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: “Bona Fide” Job Offer

May 5, 2008

Dear____:

Thank you for your letter of January 16, 2008, in which you asked whether a conditional offer of employment extended prior to conducting a peace officer background investigation could be considered a "bona fide" job offer. Specifically, your letter asks whether the state-mandated background investigation conducted by law enforcement agencies for peace officers – which includes inquiries that are medical and non-medical in nature – may be conducted post-offer consistent with the ADA.

The term "background investigation" encompasses a number of specific tasks that can vary among law enforcement agencies, and thus it is too broad for us to state that the entire background investigation may or may not be conducted at the post-offer stage consistent with the ADA. Nevertheless, based on the information in your letter, discussions with our staff, and the applicable legal standards, we conclude that a law enforcement agency complying with your state's regulations and your agency's selection standards may properly perform the following at the post-offer stage: (1) evaluate certain "official documents" that cannot be obtained in a timely manner during the pre-offer period and (2) contact references.

The conclusions reached in this letter are based on information you provided concerning the peace officer hiring process in your state; thus any changes in this information or additional facts could alter our views. Furthermore, this response does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission (EEOC), but is intended to provide informal guidance on the questions you raise.

I. Relevant Regulatory Provisions and Federal Guidance

Your letter raises issues under Title I of the Americans with Disabilities Act (ADA), specifically 42 U.S.C. § 12112(d), and EEOC's implementing regulations, 29 C.F.R. §§1630.13(a) and 1630.14(a) and (b). As you know, an employer may not conduct a medical examination or inquire whether an applicant is an individual with a disability prior to making a job offer. Section 1630.14(b) states that an employer may require a medical examination and/or make disability-related inquiries only after extending a conditional offer of employment. If the results of the medical examination or inquiries demonstrate that the candidate (1) cannot perform the essential functions of the position with or without reasonable accommodation, or (2) poses a direct threat that cannot be reduced or eliminated with reasonable accommodation, the employer may withdraw the job offer. See "EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act" (October 1995), available at www.eeoc.gov/policy/docs/preemp.html [hereinafter "EEOC Guidance"].

The ADA's requirement that disability-related questions and medical examinations be made in the post-offer period prevents employers from focusing prematurely on an applicant's disability rather than his qualifications, and ensures that an applicant will know whether he is being rejected for reasons related to his disability.

The post-offer stage begins after a "real" job offer is made. The EEOC Guidance states that a "job offer is real if the employer has evaluated all relevant non-medical information it reasonably could have obtained and analyzed prior to giving the offer." However, the EEOC Guidance recognizes that there are limited circumstances where non-medical information must be obtained and/or evaluated after a conditional offer of employment.

Both the EEOC Guidance and a U.S. Department of Justice (DOJ) publication, Questions and Answers: the Americans with Disabilities Act and Hiring Police Officers,1 acknowledge that employers in general, and law enforcement agencies in particular, may sometimes justify obtaining and analyzing non-medical information at the post-offer stage. EEOC's Guidance recognizes that it may be too costly for a law enforcement agency to administer a polygraph test twice – once at the pre-offer stage to ask questions that are not disability-related, and again post-offer to ask disability-related questions. Additionally, we agree with your observation that language in the EEOC Guidance explaining why a law enforcement employer may need to extend more job offers than available positions implies that a background investigation (or portions of it) may be conducted post-offer. The EEOC Guidance acknowledges that the employer may be able to demonstrate that a significant number of offers "will likely be revoked based on post-offer medical tests and/or security checks." (emphasis added).

Similarly, the DOJ publication explains that "in certain circumstances" a police department may conduct a background check on applicants after the information from the medical examination has been reviewed. DOJ notes that "a law enforcement employer may be able to demonstrate that a proper background check for law enforcement personnel could not, from a practical perspective, be performed pre-offer because of the need to consult medical records and personnel as part of the security clearance process. Where the police department uses the information from the medical exam during the background check, doing the background check at the post-offer stage saves the police department the cost of doing a second background check."

II. The Peace Officer Hiring Process in Your State

Your letter explains that state law establishes minimum peace officer standards related to age, citizenship, and education, and mandates a background investigation and a medical and psychological evaluation. Peace officer candidates must also undergo reading and writing skill assessments and an oral interview.2

We agree with the observations in your letter that the reading and writing skill assessments and oral interview are pre-offer assessments, and that the psychological evaluation3 and medical examination are post-offer assessments.

Your letter indicates that state law and agency requirements regulate the background investigation for peace officers, and that its purpose is to verify "the absence of past behavior indicative of unsuitability to perform the duties of a peace officer." Investigators must evaluate 10 character attributes that your agency has deemed essential to successful peace officer performance. These include stress tolerance, impulse control, decision-making/judgment, and substance abuse and other risk-taking behavior. Investigators review these attributes in the context of examining several areas of a candidate's life: Relatives and Other Personal References; Educational History; Residential History; Military Experience; Financial History; Employment History; Records from the FBI, DOJ, and Local Law Enforcement Agencies; and Driving History. Review of these attributes requires the investigator to request and examine a range of official documents, such as records regarding citizenship, education, financial history, and military experience. The background investigation also requires "contacts with numerous references," which may include but are not limited to "past and current employers, family members, friends, roommates, neighbors, etc."

III. Application of Legal Principles to Your State's Background Investigations for Peace Officers

Your letter states that the background investigation generally begins with verification of statutory minimums related to age, citizenship, and education. We agree with your conclusion that this verification process must be done pre-offer because it concerns non-medical information and involves a "straightforward check of the appropriate official documents." Nevertheless, for the reasons set forth in the following sections, we conclude that at the post-offer stage certain "official documents" containing non-medical information may be evaluated, and reference checks potentially involving both disability-related and non-disability-related questions may be conducted.

A. Requesting and Evaluating "Official Documents"

It is our understanding that law enforcement agencies in compliance with your standards are expected to request all official documents at the pre-offer stage, including documents from the FBI and DOJ, other law enforcement agencies, and military records. You point out, however, that some requests for documents may go unanswered for weeks or months, making their evaluation at the pre-offer stage difficult.

The ADA would require law enforcement agencies to request all official documents at the pre-offer stage because these are not requests for disability-related information. Any documents received in a timely manner must also be evaluated during the pre-offer stage. However, a law enforcement agency may proceed to the post-offer period, assuming all other pre-offer hiring components have been completed, if it can show that waiting for the remaining official documents will cause an unreasonable delay in completing the entire hiring process.

An unreasonable delay may exist where a responding agency routinely takes several weeks or months to provide documents and waiting for these official documents will significantly increase the length of the entire hiring process. Your letter notes that the background investigation alone takes "an average of over 33 days to complete" and the entire hiring process can take over one year. You also explain that delays in completing the hiring process affect how quickly vacant peace officer positions can be filled. You state that, currently, there are over 15,000 vacancies statewide and that any further delays in completing the entire hiring process (pre- and post-offer phases) will exacerbate the ability of law enforcement agencies to fill these positions and provide sufficient protection for the public.

This information supports a conclusion that there would be an unreasonable delay in the hiring process if a law enforcement agency had to wait for all official documents before extending a conditional job offer.

B. Contacting References

Law enforcement background investigations in your state require contacting "numerous references, including past and current employers, family members, friends, roommates, neighbors, etc." Other individuals who may be contacted include landlords and property managers, coworkers, creditors, commanding officers, high school counselors and teachers, and arresting officers and probation officers. This part of the investigation requires investigators to query relevant individuals who have observed the candidate in various settings – e.g., school, military, employment, residential – and thus can provide specific information about whether a candidate has the character attributes essential to successful performance as a peace officer.

To this end, contacts are asked both disability-related and non-disability-related questions. For example, questions about "substance abuse" would be disability-related if they involved inquiries about alcoholism and past drug addiction,4 or the extent of alcohol use or past drug use.5 You explain that the need to ask disability-related questions regarding alcoholism or drug addiction also arises in assessing another character attribute, "integrity."

Questions about other character attributes may also lead to disability-related questions. For example, you say that assessing a candidate's "stress tolerance" can require questions related to psychological stability that would be likely to elicit information regarding mental illness (i.e., disability-related questions). Similarly, assessing a candidate's "learning ability" can involve questions that are likely to reveal whether the candidate has a learning disability. Disability-related questions may also be necessary when assessing impulse control and communication skills. In some instances, you note that disability-related inquiries may follow up on information learned from answers to questions that are not disability-related.

You reference several factors from the EEOC Guidance and the DOJ publication that may support contacting references post-offer for the purpose of asking both disability-related and non-disability-related questions. We consider each of those factors below.

1. Cost

One factor that you argue may justify contacting references post-offer is cost. The EEOC Guidance's polygraph example focuses on the extra cost involved in conducting separate pre- and post-offer polygraph examinations as justification for a law enforcement agency's decision to conduct the entire examination post-offer. Similarly, the DOJ publication notes that when a background investigator must use information from a medical examination during the background check, including consultation with medical records and personnel, doing the "background check" at the post-offer stage "saves the police department the cost of doing a second background check."

Your letter notes that the cost of a non-bifurcated background investigation averages over $1,700 per applicant, and that a bifurcated investigation (pre- and post-offer) would "substantially increase the cost" because the investigator would have to re-interview the same witnesses in order to ask disability-related questions.6 You explain that your standards require law enforcement agencies to seek extensive information from a wide variety of sources. If a large number of these references would need to be re-interviewed using a bifurcated process, the costs would increase significantly, thus justifying a single comprehensive post-offer interview.

The DOJ publication links the increase in cost to the need for a background investigator to consult medical records and personnel and to use the information from a medical examination during the background check. Your letter addresses these points, emphasizing the need for the background investigator, the psychologist, and the physician to assist each other in collecting, sharing, and analyzing critical information. You emphasize that six of the ten character attributes that investigators must evaluate are also the focus of the psychological examination, and that this overlap requires "the background investigation to be coordinated and conducted in concert with the psychological evaluation." If the cooperative working arrangement means the investigator needs to (a) obtain the results of the medical or psychological examination, (b) potentially consult with the physician or psychologist about those results, and (c) then contact references based on information from the examination, it would provide additional support for a conclusion that the reference contacts may be conducted post-offer.7

2. Additional Time Required

A significant increase in cost may not be the only justification for obtaining non-medical information at the post-offer stage. Other considerations, especially when combined with cost, may be relevant. Both the EEOC Guidance and the DOJ publication implicitly acknowledge the additional time involved in conducting a second polygraph examination or second background check. As with the increase in cost, the delay inherent in conducting a bifurcated contact process depends significantly on the number of references that must be contacted and the number of questions to be asked.

The timing considerations discussed in Section III.A. in connection with an unreasonable delay in waiting to receive certain official documents also apply to a bifurcated contact process. Thus, if the background investigation alone takes "an average of over 33 days to complete" and the entire hiring process can take over one year, any significant increase in length of time required for a bifurcated process would be unreasonable. In support of this conclusion, you note that an investigator generally spends "well over 40 hours" completing all elements of the background investigation, with most of this time being spent contacting references. A "bifurcated process can protract the background process by an estimated 50%."

Given that the entire hiring process can take more than a year, anything that increases the time required to complete the process will result in additional delays in filling over 15,000 vacancies for peace officers. You emphasize that the number of vacancies is expected to rise in the coming years as 14% of the current peace officers become eligible for retirement, prompting concerns that a bifurcated process will exacerbate problems connected with such a large and growing number of vacancies. Furthermore, delays in completing the hiring process have an especially significant impact on filling vacancies given that only one out of every 100 applicants actually completes the hiring process and graduates from the academy. Thus, the additional time required for a bifurcated process further supports the position that it would be permissible to contact references at the post-offer stage to seek both disability-related and non-disability-related information.

3. Efficiency and Effectiveness

Your letter notes that a bifurcated contact process adds a high level of inefficiency and may undermine the effectiveness of the background investigation. This inefficiency appears to be closely related to the added cost and delay in completing the background investigation.

Reference contacts, like polygraph examinations, may involve a set of predetermined questions. It is inefficient for a background investigator -- like a polygraph examiner -- to divide questions into those that are disability-related and those that are not, and then seek out a reference twice. Adding to the inefficiency is that investigators often do not know in advance when disability-related questions may be relevant for particular references. "Unlike a polygraph examination where questions are developed in advance, a background investigator may have to add questions depending on what information is initially obtained." For example, the medical or psychological examination may reveal information that would require contacting certain references. (This is the scenario mentioned in the DOJ publication.) Or, a reference may unexpectedly reveal medical information, thus requiring an investigator to ask follow-up questions. If the background reference contacts are conducted in their entirety at the post-offer stage, then an immediate follow-up inquiry might make clear that disability is not an issue. The applicant also could be questioned further which would permit an investigator more efficiently to determine that the matter needs to be referred to the physician or psychologist, that other references need to be questioned, or that the issue does not need to be pursued further.

You also express concern that a bifurcated process may result in investigators neglecting to follow up on important information that a reference discloses, either by failing to re-interview the reference or failing to provide critical information to the physician or psychologist. This failure could seriously undermine the effectiveness of the background investigation and the reliability of the hiring decision. Thus, conducting reference checks pre-offer would appear to diminish the efficiency of the background investigation and undermine the important purposes to be achieved through extensive reference checks. Accordingly, the efficiency and effectiveness concerns identified here also support contacting references in the post-offer period.

Conclusion

Based on information you provided regarding background investigations for peace officers, and consistent with the ADA and the principles articulated in the EEOC Guidance and DOJ's publication, we conclude that law enforcement agencies complying with your state regulations and your agency's selection standards may evaluate certain official documents and contact references at the post-offer stage. Accordingly, a law enforcement agency's offer of employment would be considered a "real" offer despite the fact that certain non-medical information would be obtained and evaluated at the post-offer stage.8

Please note, however, that it would be insufficient for a law enforcement agency to justify seeking non-medical information at the post-offer stage merely by claiming that it would save money and time and avoid inefficiency. A law enforcement agency would need to offer evidence similar to that provided in your letter that details a significant increase in costs and/or significant delays in carrying out the hiring process. Similarly, the designation "background investigation" should not prompt a law enforcement agency to assume that it automatically may be done post-offer. Rather, it is important to break down the components of the background investigation and focus on circumstances that might allow a law enforcement agency to conduct specific non-medical components of the background investigation post-offer.

Finally, we note that EEOC investigators would carefully scrutinize a charge filed against a law enforcement agency that revoked a conditional offer of employment to determine whether the revocation was based on non-medical information obtained during the post-offer portions of the background investigation or on information obtained from the medical or psychological examinations. If it is determined that a law enforcement agency withdrew a job offer because of an applicant's disability, the agency would need to show that the reasons for the withdrawal are job-related and consistent with business necessity.

We hope that this information is helpful. For further information, you may contact Christopher Kuczynski, Assistant Legal Counsel, or Sharon Rennert, Senior Attorney Advisor, at 202-663-4638.

Sincerely,

/s/
Reed L. Russell
Legal Counsel

1 Available at www.usdoj.gov/crt/ada/copsq7a.htm

2 Your letter notes that law enforcement agencies in your state may impose additional hiring requirements.

3 You indicated that the psychological examination is a medical examination as defined in the EEOC Guidance and must be administered post-offer.

4 The ADA does not cover a person who currently engages in the illegal use of drugs. Hence, pre-offer questions aimed at determining such use would be permissible. Questions about past use of illegal drugs also would be permissible pre-offer because mere use does not signal addiction, an impairment which might be a disability. But, asking whether an applicant was ever a drug addict would be a disability-related question because a recovered addict may be a person with a disability.

5 Unlike questions that focus on the extent of use, and thereby could elicit information as to whether the applicant has a disability, questions that focus only on current or past use of alcohol or drugs would not be considered disability-related.

6 In comparison, polygraph examinations generally cost less than $300.

7 We are not suggesting that law enforcement agencies must show that a bifurcated contact process is both "too costly" and that the increased cost is associated with the need to consult medical records and personnel as part of the background investigation. We believe significant cost increases incurred for any reason (such as the need to re-contact most or all references or close coordination is required between a background investigator and medical personnel) would suffice to justify making all of the contacts post-offer.

8 Your letter expresses concern that the decision in Leonel v. American Airlines, Inc., 400 F.3d 702, 709-10 (9th Cir. 2005) may be inconsistent with the EEOC Guidance and DOJ's publication. We do not think Leonel is inconsistent with the positions taken by EEOC and DOJ. In Leonel, American Airlines made a conditional job offer to several applicants for flight attendant positions, but at the post-offer stage it conducted a "background check" that appears to have consisted of an employment history verification and a criminal history records check. Reversing summary judgment, the court found that American Airlines failed to establish that "it could not reasonably have completed the background checks before subjecting the appellants to medical examinations and questioning." Our position is also that the employer must demonstrate the need to conduct post-offer components of a background investigation that seek non-disability-related information. The court, which followed EEOC's guidance, required American Airlines to justify why it needed to make a non-medical inquiry at the post-offer stage, and found the company's reasons insufficient. The court noted that American Airlines might well be able to justify seeking non-medical information at the post-offer stage, but it had not done so for the purpose of its motion for summary judgment.

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