EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Rehabilitation Act and Title VII: Applicant Screening using Disability-related Inquiries, Criminal History Inquiries, and Financial History Inquiries in SF 85P and SF 85P-S

March 8, 2011

Federal Investigative Services
U.S. Office of Personnel Management
1900 E Street, N.W.
Washington, D.C. 20415
Attention: Lisa Loss

Also sent via electronic mail
to FISFormsComments@opm.gov

Re: PRA Notice for Questionnaire for Public Trust Positions, SF 85P and Supplemental Questionnaire for Selected Positions, SF 85P-S

Dear Ms. Loss:

The Equal Employment Opportunity Commission (EEOC) offers the following comments in response to the Office of Personnel Management’s (OPM) Paperwork Reduction Act notice, published at 75 FR 82095 – 82097, proposing alterations to the Questionnaire for Public Trust Positions, SF 85P, and also to the Supplemental Questionnaire for Selected Positions, SF 85P-S. Taken together, these questionnaires are used by federal agencies to “develop information to show whether [applicants or employees] are reliable, trustworthy, of good conduct and character, and loyal to the United States.” See SF 85P.

The EEOC offers these comments from the perspective of the federal agency enforcing the equal employment opportunity (EEO) laws for the federal and private sectors, with a particular focus, in this instance, on Section 501 of the Rehabilitation Act, as amended (Section 501), and Title VII of the Civil Rights Act, as amended (Title VII). See generally E.O. 12067 (requiring EEO coordination and making EEOC the lead agency). OPM’s and other agencies’ use of the information obtained with these questionnaires directly impacts hiring and retention, and it is one basis by which to judge the federal government’s role as a model EEO employer. Therefore, we call your attention to three specific sections, as set forth below.

I. Section 501 of the Rehabilitation Act: SF 85P (Revised Section 21 and New Section 22)

Under Section 501 of the Rehabilitation Act, federal employers are restricted as to the circumstances under which they may make “disability-related inquiries” of applicants and employees. Because disability-related and non-disability-related inquiries are intertwined in sections 21 and 22 of the SF 85P, we believe that both sections are subject to Section 501’s restrictions. OPM should direct agencies to ask these questions only when Section 501 permits.

Section 21 of the SF 85P, “Illegal Drugs,” includes inquiries about illegal drug use, the frequency of such use, and treatment or counseling received.¹ Because the current illegal use of drugs is never a “disability” under Section 501 of the Rehabilitation Act, section 21’s initial question about whether an individual ever illegally used drugs is not “disability-related.” However, under Section 501, a recovering or recovered drug addict may be considered to have a “disability” when he is no longer currently engaging in the illegal use of drugs and has successfully completed, or is participating in, a drug rehabilitation program. Thus, section 21’s follow-up questions about treatment or counseling received for the illegal use of drugs, as well as the inquiry about the number of times and the dates illegal drugs were used, are “disability-related” because they are likely to elicit information about drug addiction. In sum, section 21 is structured so that a positive response to a non-disability-related inquiry requires the respondent to answer follow-up questions that are disability-related. Because the questions are intertwined, the entire section is subject to Section 501’s restrictions.

Similarly, new section 22, which will contain the questions now on the 85P-S about alcohol use and treatment in the last 7 years, is likely to result in the identification of individuals who have an ongoing addiction (alcoholism) for which they have received treatment or counseling. OPM proposes to add follow-up, disability-related questions to inquire further about alcohol treatment, and elicit information about the “negative impacts of alcohol on the respondent's work performance and professional relationships during the last 7 years.”²

OPM, however, does not caution agencies only to ask the questions in sections 21 and 22 when Section 501 permits, even though it included such a warning on the SF 85P-S, the source of the alcohol questions now in section 22.³ While OPM should retain this language for the SF 85P-S because it will continue to include disability-related inquiries about treatment, OPM should add similar language to the instructions for the SF 85P, stating that Federal departments and agencies may only ask disability-related inquiries to applicants post-offer,⁴ and to employees under circumstances that are job related and consistent with business necessity.⁵ OPM should insert specific instructions about Section 501 at the beginning of the SF 85P, cross-referencing sections 21 and 22.

II. Title VII: SF 85P, Section 20, “Your Police Record”

As currently drafted, section 20 asks:

In the last 7 years, have you been arrested for, charged with, or convicted of any offense(s)? (Leave out traffic fines of less than $150). If you answered “Yes,” explain your answer(s) in the space provided.

OPM now proposes to revise this section to add questions about the disposition of “criminal proceedings,” and to inquire specifically about offenses related to firearms, explosives, alcohol and drugs.⁶

Because Title VII does not directly regulate applicant or employee inquiries, an applicant or employee inquiry does not in itself violate Title VII. However, the employer’s use of the requested information may amount to unlawful employment discrimination under Title VII. Thus, a covered employer must not treat applicants or employees differently on a Title VII basis (disparate treatment), or screen out applicants or employees in a way that has a disparate impact on a Title VII-protected group and is not justified as job related and consistent with business necessity (disparate impact).

Excluding individuals from employment because they have conviction or arrest records may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact. Accordingly, federal agency employers need to show that these policies or practices are “job related and consistent with business necessity.”⁷ For exclusions based on convictions, employers must show that that the criminal conduct is recent enough and sufficiently job related to be predictive of performance in the position sought, given its duties and responsibilities.⁸ By contrast, for exclusions based on arrests or criminal charges alone, the employer must not only consider the relationship of the arrest or charge to the position sought, but also address the likelihood that the applicant actually committed the conduct for which he or she was arrested or charged.⁹ This necessitates an extra inquiry by the employer.¹⁰

Federal agency employers need tools, such as the SF 85P, that allow them to collect complete information about the disposition of all arrests, charges, and other criminal proceedings in an applicant's background. The disposition of an arrest or charge is highly relevant to whether excluding the person from federal or contract employment is job related and consistent with business necessity under Title VII. It is unclear to us whether OPM intends its inquiry about "the disposition of criminal proceedings" to encompass the disposition of all arrests (dismissed and charges filed); of all charges (dismissed, plead, and gone to trial); and of all trials (resulting in conviction, acquittal, or ultimately being expunged). OPM should expressly define "disposition of criminal proceedings" to encompass all of these. Additionally, OPM should educate federal agency employers about how to assess suitability for federal or contract employment when evaluating an applicant's police record.¹¹ This assessment should not result in excluding everyone with a police record from employment. Such a “blanket” exclusion would almost always fall short of satisfying Title VII.

III. Title VII: SF 85P, Section 24, “Your Financial Record”

As currently drafted, section 24 asks:

(a) In the last 7 years, have you, or a company over which you exercised some control, filed for bankruptcy, been declared bankrupt, been subject to a tax lien, or had legal judgment rendered against you for a debt? If you answered “Yes,” provide date of initial action and other information requested.

(b) Are you now over 180 days delinquent on any loan or financial obligation? Include loans or obligations funded or guaranteed by the Federal Government. If you answered “Yes,” provide the information requested below: . . . .”

OPM now proposes to revise this section to add questions to elicit detailed information pertaining to each financial area instead of an open text field for respondents to provide an explanation. OPM also proposes adding a question regarding involvement with a credit counseling service to capture mitigating information from respondents who seek assistance to resolve an inability to meet financial obligations.¹²

As with the “Police Record” inquiries, the “Financial Record” inquiries do not in themselves violate Title VII, but could result in discriminatory uses of the requested information. Because excluding individuals on the basis of negative financial information may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact, a Title VII-covered employer should ensure that its practices are job related and consistent with business necessity. The EEOC is skeptical that this can be achieved with respect to the requested financial information; we are unaware of any reliable evidence that there is a relationship between such information and the character traits that the SF 85P is designed to investigate, such as reliability, trustworthiness, good conduct or character, and loyalty to the United States. Moreover, any relationship, if there is one, is likely to be weak, because financial difficulties often are caused by circumstances outside the individual’s control, such as illness and identity theft. The EEOC therefore recommends eliminating or significantly restricting the scope of section 24.

If OPM decides to retain section 24, or portions thereof, it should adopt explicit, objective guidelines for using the requested information in a manner that is likely to be job related and consistent with business necessity. At minimum, such guidelines should require the decisionmaker to determine and consider the background circumstances that led to the reported financial problems when deciding whether to hold them against the applicant. It is doubtful, however, that OPM’s proposed changes to SF 85P will achieve this goal, because it would be difficult to account for all potentially relevant background circumstances using a branching question format. In particular, it would be difficult to obtain all potentially mitigating information in this manner, which may include information about a broad range of topics such as personal illness, illness or death in the family, identity theft, divorce, and employer downsizing. Therefore, open text fields accompanied by specific, objective guidelines as to when financial information is relevant to selection are preferable.

We hope that these comments are helpful. Please feel free to contact Assistant Legal Counsel Carol Miaskoff at 202.663.4645 if you wish to discuss them further.

Sincerely,

/s/

Peggy R. Mastroianni
Associate Legal Counsel

Footnotes

¹ OPM proposes to expand section 21 to add questions about drug involvement while employed as a law enforcement officer, prosecutor or courtroom official, misuse of prescription drugs, and involvement in counseling or treatment as a result of illegal use of drugs. 75 FR 82095, 82097.

² 75 FR at 82097.

³ Existing language in the SF 85-PS cautions agencies to use the questionnaire only “after an offer of employment has been made and when the information it requests is job-related and justified by business necessity.”

⁴ The employer also must ask the same questions to all applicants for the same job category. 29 CFR 1613.203 (b) (ADA nondiscrimination standards apply under Section 501); 29 CFR § 1630.14 (b) (ADA standards for disability-related applicant inquiries).

⁵ 29 CFR § 1630.14 (c) (ADA standards for disability-related employee inquiries).

⁶ 75 FR at 82097. OPM also proposes questions to identify respondents who may be impacted by the restrictions in the Lautenberg Amendment, and to increase the exclusion for traffic fines to $300 (unless related to alcohol or drugs). Id.

⁷ EEOC Compl. Man. No. N-915, Section 15: “Race & Color Discrimination” (Apr. 19, 2006); EEOC Policy Guidance No. N-915-061, “Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII” [hereinafter “Arrest Records”] (Sept. 7, 1990); EEOC Policy Guidance No. N-915, “Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964” [hereinafter “Conviction Records”] (Feb. 4, 1987).

⁸See Conviction Records, supra note 7.

⁹See Arrest Records, supra note 7.

¹⁰Id.

¹¹See 5 C.F.R. § 731.202 (b)(2) (citing criminal conduct as a factor in determining whether an individual is suitable for Federal employment).

¹² 75 FR at 82097.