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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 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, GINA, Title VII, and the ADEA: Peace Corps - Medical Inquiries on Application for Volunteers

April 26, 2012

TRANSMITTED VIA EMAIL

Peace Corps Desk Officer
Office of Information and Regulatory Affairs
Office of Management and Budget

Re: Peace Corps Application Process for Volunteers - Medical Inquiries

To Whom It May Concern:

The Equal Employment Opportunity Commission (EEOC) submits these comments to the Office of Information and Regulatory Affairs at the Office of Management and Budget in response to the Peace Corps' request for comments on the proposed information collection cited above and published in the Federal Register on March 27, 2012 (77 FR 18273). The proposed collection focuses on changes to the application process for Peace Corps Volunteers and, in particular, the process for reviewing the past medical history of applicants.

The EEOC offers these comments as the federal agency enforcing the equal employment opportunity laws for the federal and private sectors that prohibit discrimination on the basis of an individual's race, color, religion, sex, national origin, age, disability, and genetic information. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff. Although Peace Corps Volunteers are not generally considered employees, the Peace Corps prohibits discrimination against them and has established a complaint procedure for addressing discrimination complaints.[1] The Peace Corps cites to Title VII, the Rehabilitation Act, and EEOC regulations interpreting what "illegal discrimination" is under its procedures.[2] Therefore, we call your attention to a number of potential conflicts between the proposed information collection and federal EEO laws.[3]

Conflicts with the Rehabilitation Act

The Rehabilitation Act's Rules on Disability-Related Inquiries and Medical Exams

Section 501 of the Rehabilitation Act adopts the standards set forth in titles I and V of the Americans with Disabilities Act (ADA). See 29 U.S.C. §791(g); 29 C.F.R. §1614.203(b). The ADA strictly limits when an employer may obtain medical information from applicants and employees. Before a job offer is made, the ADA prohibits all disability-related inquiries (i.e., questions likely to elicit information about a disability) and medical examinations, even if they are related to the job.After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category. Once employment begins, an employer generally may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. See 42 U.S.C. § 12112(d); 29 C.F.R. §§1630.13, 1630.14; EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA ("Enforcement Guidance"), available on our website at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

Health History Form

The Federal Register Notice (the Notice) states that under the newly proposed application system, applicants will begin the medical part of the application process by completing a comprehensive health history form called the "Health History Form." The Notice indicates that applicants will be required to fill out this form prior to being "nominated" to a program. A "nomination" does not guarantee an "invitation to serve" as a Peace Corps Volunteer but, instead, merely allows one to proceed with the application process. See 77 FR 18273, 18274.[4] This type of pre-offer disability-related inquiry violates the Rehabilitation Act, even if, as the Notice suggests, the goal of this early collection of medical information is to reduce the time and expense for applicants who, due to particular health conditions, are not likely to be able to perform the essential functions of a Peace Corps Volunteer even with a reasonable accommodation. There is no exception to the straight-forward rule that disability-related inquiries or medical examinations are prohibited in the pre-offer stage of the application process.

The First Nine Follow-Up Medical Questionnaires

The Notice also explains that based on an applicant's responses on the Health History Form, certain applicants will be asked to fill out one or more of sixteen additional medical questionnaires. Although seven[5] of these forms are only used after an invitation to serve as a Peace Corps Volunteer has been extended, it is not clear from the information provided in the Notice or from the forms themselves at what point in the process the other nine forms are used.[6] If applicants must fill out any of these medical questionnaires prior to the receipt of a conditional job offer, use of the forms violates the Rehabilitation Act.

Changes Needed to Comply with the Rehabilitation Act

In order to comply with the Rehabilitation Act, the proposed application process should be revised so that the Health History Form is used only after an invitation to serve as a Volunteer conditioned on the successful completion of a medical screening, has been extended. Assuming that the current proposal envisions use of the additional nine medical questionnaires discussed above in the pre-offer stage, this too must be altered so that no medical questions are asked prior to a conditional invitation to serve. We suggest that the Health History Form be used for all applicants who have received a conditional invitation to serve and that, based on the information provided by each applicant, follow-up questionnaires be used when relevant. This process would comply with the Rehabilitation Act's requirements because in the post-offer stage of the application process individual applicants may be asked questions not asked of other applicants if those questions are "medically-related" to medical information previously received. See EEOC Guidance on Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995), available here: http://www.eeoc.gov/policy/docs/preemp.html. The Notice indicates that only applicants who have reported related information on the Health History Form will be asked to fill out particular follow-up forms, a process that complies with the Rehabilitation Act if it takes place post-offer.

We further note that, as a result of the ADA Amendments Act, withdrawing an offer based on the Health History Form or follow-up medical questionnaires will almost certainly result in regarding an applicant as having a disability. See 42 U.S.C. § 12102(3) and 29 C.F.R. 1630.2(l). Consequently, the Peace Corps would have to establish that the impairment renders the individual unqualified to perform the essential functions of the position or, where the employer's reason for excluding the applicant is based on safety concerns, that she poses a direct threat due to the impairment. See 29 CFR § 1630.2(r). Where the impairment substantially limits a major life activity or constitutes a record of a substantially limiting impairment, the determination of whether the applicant can perform the essential functions of the Peace Corps volunteer position must include consideration of a reasonable accommodation that would enable performance of the functions or that would reduce any direct threat to an acceptable level.

Conflicts with Title II of the Genetic Information Nondiscrimination Act of 2008

As of November 21, 2009, Title II of GINA prohibits employers from requesting, requiring, or purchasing genetic information (including family medical history) from applicants or employees, except under certain very limited circumstances. To the extent the Health History Form includes questions about family medical history or other genetic information, those questions do not comply with the requirements of Title II of GINA.[7] There is no exception to the general rule prohibiting employers from requesting genetic information of an applicant in a medical questionnaire. Four of the sixteen follow-up medical questionnaires proposed in this collection include questions about family medical history and therefore do not comply with the requirements of Title II of GINA.[8] All medical questionnaires used by the Peace Corps should be revised to eliminate questions about family medical history and other genetic information.

Conflicts with Title VII and the ADEA

Four of the post-offer medical questionnaires are required only of applicants in certain protected groups: the Mammogram Form is required only of women age 50 and over; the Pap Screening Form is required only of women; and the Colon Cancer Screening Form and ECG Form are required only of applicants age 50 or over. Although there is not enough information in the Notice or the forms themselves to gain a complete understanding of the application process, it appears that this portion of the process requires women or individuals in a protected age group to undergo medical tests not required of applicants outside of these protected groups.[9] This raises significant difficulties under Title VII, which prohibits, among other things, discrimination against individuals because of sex, and the Age Discrimination in Employment Act (ADEA), which prohibits discrimination against persons age 40 and over. Indeed, an application process with requirements of this nature is facially discriminatory.

If the intention behind the use of these forms is simply to ensure that people at a greater risk for certain conditions are aware of the limited treatment and/or screening options they will have if assigned to certain areas of the world, this goal can be reached without raising concerns under any of the EEO laws we enforce. We suggest that applicants be informed at the beginning of the application process that many of the areas served by Peace Corps Volunteers have limited access to medical care and that those who have or are at risk for certain conditions (e.g., breast cancer, cervical cancer, colon cancer, heart disease) should contact the Peace Corps and learn more about what areas might best suit their medical needs. Given that any applicant, not just those in particular protected group, may become ill with any number of conditions, providing this information to all applicants would be beneficial.

Thank you for the opportunity to provide these comments. We would be happy to discuss any of the issues raised in this letter in further detail at your convenience. If you would like to do so, please contact me at (202) 663-4609, Christopher Kuczynski, Acting Associate Legal Counsel, at (202) 663-4665, or Kerry Leibig, Senior Attorney Advisor, at (202) 663-4516.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel


[1] Peace Corps' Volunteer Discrimination Complaint Procedure, 45 C.F.R. § 1225.2 (Policy) provides:

It is the policy of Peace Corps and ACTION to provide equal opportunity in all its programs for all persons and to prohibit discrimination based on race, color, national origin, religion, age, sex, handicap or political affiliation, in the recruitment, selection, placement, service, and termination of Peace Corps and ACTION Volunteers.

[2] 45 C.F.R. § 1225.3(c).

[3] As of November 21, 2009, Title II of GINA prohibits employers from discriminating against applicants and employees on the basis of genetic information. Although the Peace Corps' policy against illegal discrimination has not yet been revised to include genetic information as a protected basis, given the Peace Corps' stated dedication to providing equal employment opportunity and its history of adherence to federal EEO laws, we take this opportunity to offer guidance on potential conflicts between Title II of GINA and the proposed information collection.

[4] The Health History Form itself does not appear to be part of this information collection. We requested a copy of the form from the Peace Corps, but did not receive one prior to the due date of this comment letter.

[5] The seven forms that are to be completed after receipt of an invitation to serve as a Peace Corps Volunteer are: Mammogram Form; Pap Screening Form; Colon Cancer Screening Form; ECG Form; Reactive Tuberculin Test Evaluation Form; Insulin Dependent Supplemental Documentation Form; and, Prescription for Eyeglasses Form.

The other nine forms are: Allergy Treatment Form; Asthma Evaluation Form; Diabetes Diagnosis Form; Disease Diagnosis Form; Low Body Mass Index Evaluation Form; Mental Health Treatment Summary Form; Eating Disorder Treatment Summary Form; Mental Health Current Evaluation form; and Alcohol/Substance Abuse Evaluation Form.

[6] The Notice indicates that the forms are to be filled out after an applicant has been "nominated" to a program and that a nomination does not guarantee an invitation to serve. It is not clear, however, whether a nomination meets the definition of a real job offer under the Rehabilitation Act. Neither the forms nor the Notice indicate whether, prior to nominating an applicant, the Peace Corps has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed, as necessary for a job offer to be considered real under the Rehabilitation Act. See EEOC Guidance on Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995), available here: http://www.eeoc.gov/policy/docs/preemp.html. Although we contacted the Peace Corps to obtain more information about the proposed application process, we did not receive a substantive response prior to the due date of this comment letter.

[7] See n. 4, above.

[8] The four medical questionnaires that include questions about genetic information are: Mental Health Treatment Summary Form, Question 7 (family medical history); Eating Disorder Treatment Summary Form, Questions 6 and 9 (family medical history); Alcohol/Substance Abuse Current Evaluation Form, parts of Section D (family medical history); and Mammogram Form (5th question in assessment chart).

[9] The Pap Screening Form and the ECG Screening Form state: "Please obtain the following screening test." The Mammogram Screening Form indicates that the applicant must discuss mammogram screenings with her physician, although one portion of the form indicates that additional medical tests are not required. The Colon Cancer Screening Form does not state that a screening test is required, but does ask a number of questions that can only be answered if one has had some type of colon cancer screening test within the last 10 years.

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