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: Pre-employment Inquiries --- Workers’ Compensation --- Alcohol Use
Title VII: Pre-employment Inquiries --- Job Relatedness

July 23, 2007

Lt. Dennis Maroney
Assistant Commander
Human Resources Office
United States Park Police
1100 Ohio Dr., SW
Washington, D.C. 20242

Re: U.S. Park Police Personal History Statement Questionnaire

Dear Lt. Maroney:

The Equal Employment Opportunity Commission (Commission or EEOC) submits these comments to the United States Park Police (USPP) in response to the USPP 30-day notice of submission of USPP Form 1 to the Office of Management and Budget, published in the June 25, 2007 Federal register, 72 Fed. Reg. 34,720. USPP Form 1 is the Personal History Statement that the USPP uses to obtain information from applicants for Park Police positions. The Commission has some concerns regarding several of the questions that the USPP proposes to ask of these applicants.

The EEOC enforces the federal laws that prohibit employment discrimination on the basis of an individual’s race, color, religion, sex, national origin, age, or disability. These include the laws prohibiting discrimination in federal employment. See Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; Section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d); and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. Moreover, the EEOC has responsibility under Executive Order 12067 to coordinate the federal government’s enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age, or disability. 43 Fed. Reg. 28,967 (July 5, 1978).

Rehabilitation Act

The Rehabilitation Act restricts the type of medical documentation an employer may request, and the circumstances under which a medical examination may be required. Prior to an offer of employment, the Rehabilitation Act prohibits all disability-related inquiries and medical examinations.¹ See 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13. As the Commission has noted in an ADA Enforcement Guidance document, “[t]his helps ensure that an applicant’s possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant’s non-medical qualifications.” ADA Enforcement Guidance: Preemployment Questions and Medical Examinations (Preemployment Questions).²

The USPP application includes two questions that are unlawful preemployment inquiries under the Rehabilitation Act. First, on page 45, it asks whether the applicant has ever requested or received workers’ compensation. Under the Rehabilitation Act, however, a question concerning an applicant’s request for or receipt of workers’ compensation is a disability-related inquiry that is prohibited before an offer of employment. In its Guidance on Preemployment Questions, the Commission noted that “[a]n employer may not ask applicants about job-related injuries or workers’ compensation history. These questions relate directly to the severity of an applicant’s impairments. Therefore, these questions are likely to elicit information about disability.” See also EEOC Enforcement Guidance: Workers’ Compensation and the ADA, Question 4 (Sept. 1996) (available at http://www.eeoc.gov/policy/docs/workcomp.html), where the EEOC states that “[a]n employer may ask questions about an applicant’s prior workers’ compensation claims or occupational injuries after it has made a conditional offer of employment, but before employment has begun, as long as it asks the same questions of all entering employees in the same job category.” (Emphasis added.)

Additional questions that violate the Rehabilitation Act appear on page 53, where the application inquires about the number of drinks the applicant consumes daily and weekly and also asks about alcohol-related treatment or counseling. Under the Rehabilitation Act, questions concerning the quantity or frequency of drinking or participation in alcohol rehabilitation programs may be deemed disability-related. That is, they often are found to be questions designed to elicit disability-related information. As the Commission notes in its Guidance on Preemployment Questions:

Q: May an employer ask applicants about their drinking habits?

A: Yes, unless the particular question is likely to elicit information about alcoholism, which is a disability. An employer may ask an applicant whether s/he drinks alcohol, or whether s/he has been arrested for driving under the influence because these questions do not reveal whether someone has alcoholism. However, questions asking how much alcohol an applicant drinks or whether s/he has participated in an alcohol rehabilitation program are likely to elicit information about whether the applicant has alcoholism.

(Emphasis added.) These questions, like those seeking workers’ compensation history information, are permissible only after the applicant has received a conditional job offer.

Title VII

Unlike the Rehabilitation Act, Title VII does not bar the use of particular questions. Nevertheless, the USPP should be mindful that certain questions may create potential exposure under Title VII; that is, an applicant challenging a failure to hire might allege that the decision not to hire him or her was based on information that the agency obtained through these questions and used in a discriminatory fashion. The agency should assess the job-relatedness of such information before collecting it from applicants. These questions include the following:

• Questions on pages 9-10 concerning naturalization and foreign connections (information could be misused as a basis for national origin or race discrimination);
• Questions on pages 23, 37-38, 51, and 53 concerning other than honorable discharge, military discipline; high school/college discipline; arrest/conviction information (information could be misused as a basis for race and national origin discrimination³); and
• Questions on page 57 concerning whether the applicant belongs to “any Organization and/or adhere to any belief that would in any way” limit use of weapons, restrict or prohibit working on particular days, or limit or restrict compliance with “Departmental Standards of appearance and/or grooming” (information could be misused as a basis for discrimination on the bases of religion,⁴ national origin and, potentially, race⁵).

While Title VII does not bar use of these questions, discriminatory use of information about a job applicant may expose an employer to Title VII liability.

Thank you for the opportunity to provide these comments in response to the 30-day notice of submission. If you have any questions or would like to discuss these comments, please feel free to contact Assistant Legal Counsel Carol R. Miaskoff at 202-663- , or Senior Attorney Advisor Peter S. Gray at 202-663- .

  							Sincerely,    							Peggy R. Mastroianni 							Associate Legal Counsel  

¹ In 1992, the Rehabilitation Act was amended to apply the standards applied under Title I and Title V (sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101, 12111, 12201) (ADA), as those sections relate to employment, to complaints alleging non-affirmative action employment discrimination under part 1614. These standards are found at 29 CFR part 1630.

² The Enforcement Guidance is available at http://www.eeoc.gov/policy/docs/preemp.html.

³Use of arrest and conviction information may have a disparate impact on the basis of race or national origin, and an employer using it to make an employment decision may have to defend its use on the grounds that such information is job-related and consistent with business necessity. See EEOC Compliance Manual, Sec. 15, Race & Color Discrimination, text at notes 96-102 (Apr. 2006) (hereinafter “Race & Color Discrimination”) (available at http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction).

⁴ Rather than ask whether the applicant belongs to an organization that would limit his or her ability to use firearms or availability, the agency might consider informing the applicant that the job of Park Police officer requires training on and use of firearms and explaining the work hours and appearance standards. The follow-up question would be whether the applicant can meet these requirements.

⁵The condition “pseudofolliculitis barbae” (“PFB”) is an inflammatory skin condition that occurs primarily in Black men and is caused by shaving. The severity of the condition varies, but many of those who suffer from PFB effectively cannot shave at all. A no-beard policy thus may have an adverse impact on the basis if race. See Race & Color Discrimination, Example 9.

This page was last modified on October 1, 2007.

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