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.

Title VII & the Rehabilitation Act: Request for, and Use of, Criminal, Financial, and Health-Related Information

December 16, 2013

Bruce A. Sharp
Department of Treasury
Bureau of the Fiscal Service
200 Third Street A4-A
Parkersburg, WV 26106-1328

Re:  78 FR 63309, Investigative Inquiry Forms

Dear Mr. Sharp:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the Bureau of the Fiscal Service's (Bureau or agency) notice for request for comments on Investigative Inquiry Forms PD F 5518—Investigative Request for Personal Information; PD F 5519—Investigative Request for Law Enforcement Data; and PD F 5521—Investigative Request for Employment Data and Supervisor Information, published in the Federal Register on October 23, 2013.⁽¹⁾   These information collections are used "while [the Bureau] conduct[s] background investigations to provide a general overview of the character and reputation of employees and contractors."⁽²⁾

The EEOC offers these comments as the agency responsible for enforcing the federal equal employment opportunity laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information.  The laws enforced by the EEOC also prohibit retaliation for filing a discrimination complaint, participating in a discrimination proceeding, or otherwise opposing discrimination.⁽³⁾  

As discussed below, the Commission recommends that the Bureau review and revise the above-referenced information collections to ensure that their use is consistent with the requirements of Title VII of the Civil Rights Act of 1964, as amended (Title VII), and Section 501 of the Rehabilitation Act of 1973, as amended (the Rehabilitation Act).  However, as the laws enforced by the EEOC prohibit only employment discrimination – not discrimination against "contractors" – our recommendations extend only to the Bureau's use of the above-referenced information collections with respect to "employees."  These recommendations also apply to the extent that the forms are used to screen applicants.

Title VII and the Use of Criminal History and Financial History Information to Make Employment Decisions

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.⁽⁴⁾   Title VII does not prohibit employers from requesting and/or obtaining criminal or financial history information about its applicants or employees.  However, there are two ways in which an employer's use of an applicant's or employee's criminal or financial history information may violate Title VII. ⁽⁵⁾ First, Title VII prohibits employers from treating individuals with the same criminal records or the same financial histories differently because of their race, national origin, or another protected characteristic ("disparate treatment discrimination").⁽⁶⁾   Second, even where employers apply criminal record or financial history exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin, such as Blacks or Hispanics ("disparate impact discrimination").⁽⁷⁾   If the employer does not show that such exclusions are "job related and consistent with business necessity" for the positions in question, the exclusions are unlawful under Title VII.

Title VII Implications of Forms PD F 5518—Investigative Request for Personal Information; PD F 5521—Investigative Request for Employment Data and Supervisor Information and PD F 5519—Investigative Request for Law Enforcement Data

The Bureau uses Form PD F 5518 to obtain personal information about the Bureau's employees.  The Form asks the employees' current or former coworkers, neighbors, friends, spouses, instructors, or relatives whether they "have any adverse information about th[e] person's employment, residence, or activities concerning: violations of the law, [or] financial integrity. . . ."

The Bureau uses Form PD F 5521 to obtain employment-related background information about the Bureau's employees.  The Form asks the employees' current or former supervisors whether they "have any adverse information about th[e] person's employment, residence, or activities concerning: violations of the law, [or] financial integrity. . . ."

The Bureau also uses Form PD F 5519 to obtain criminal history information about the Bureau's employees.  The Form states that "[t]he U.S. Department of Treasury's Federal Investigations Program is an authorized law enforcement activity required by statute, presidential executive order and federal regulations to make this investigative inquiry."  The Form asks the individual's local law enforcement agency to confirm the criminal history record(s) previously disclosed by the individual.   It then asks the agency to provide "details concerning [the individual's] criminal history record and/or outstanding warrants."  It is unclear whether the Bureau is asking the law enforcement agency to just provide details about the individual's previously disclosed criminal history record(s) or to provide details about any criminal history record(s) associated with the individual.   

            Criminal History

As noted above, Title VII does not prohibit the Bureau from requesting and/or obtaining criminal history information.  We note, however, that the Bureau's inquiries in Forms PD F 5518 and 5521 are quite broad.  This breadth implies that the agency would use any information received to make its employment decisions.  If that use were shown to have a disparate impact on a Title VII protected group, it would run afoul of the statute if the use were not "job related for the position[s] in question and consistent with business necessity."⁽⁸⁾   It would be difficult, if not impossible, to demonstrate that all criminal history information is job related and consistent with business necessity for all positions.  Therefore, to reduce the Bureau's risk of violating Title VII, instead of requesting that the respondents to Forms PD F 5518 and 5521 disclose any adverse information they have about the employee's "violations of the law," we recommend that the Bureau determine whether it can be more specific as to the "violations of the law" that are job related and consistent with business necessity for the positions in question.

Regarding Form PD F 5519, it is unclear to us whether the Bureau is asking the law enforcement agency to confirm and provide more details about the employee's previously disclosed criminal history record(s), or whether it is also asking the agency to disclose any criminal history record(s) associated with the employee.  Regardless, as with Forms PD F 5518 and 5521, we recommend that the Bureau determine whether it can narrow the scope of its criminal history inquiry in Form PD F 5519 to focus on criminal history records most related to specific positions with the agency to the extent that limiting such inquiry does not conflict with another federal statute, presidential executive order, or federal regulation. ⁽⁹⁾ 

Financial History

Additionally, as with the criminal history inquiry in Forms PD F 5518 and 5521, the financial integrity inquiry in these forms is not a per se violation of Title VII, but could result in the discriminatory use of the requested information.  Excluding individuals on the basis of adverse financial history information may disproportionately affect persons covered under Title VII and thereby create a disparate impact, so an employer should ensure that its exclusion policies or practices are job related and consistent with business necessity.  Therefore, we recommend that the Bureau determine whether it can limit the scope of the inquiry to information that is most relevant to the positions in question.  We also recommend that the Bureau adopt explicit, objective guidelines for using the requested information in a manner that is likely to be consistent with the business necessity standard.

The Rehabilitation Act's Requirements Regarding Disability-Related Inquiries

Section 501 of the Rehabilitation Act prohibits federal agencies from discriminating against applicants or employees on the basis of disability.  It adopts the standards set forth in titles I and V of the Americans with Disabilities Act, as amended (ADA).⁽¹⁰⁾   The ADA strictly limits when an employer may obtain medical information about applicants and employees.  Prior to an offer of employment, the ADA prohibits all disability-related inquiries (i.e., questions likely to elicit information about a disability) and medical examinations except when in compliance with an affirmative action requirement.⁽¹¹⁾ After the employer makes an offer to the applicant, but before the individual starts to work, the 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.⁽¹²⁾ After employment begins, an individual's actual performance is the best indication of his or her ability to do the job.  However, an employer may ask employees disability-related questions and require medical examinations if they are job related and consistent with business necessity.⁽¹³⁾ This requirement may be satisfied when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition, or (2) an employee will pose a direct threat (i.e., a significant risk of substantial harm to the individual or others) due to a medical condition.⁽¹⁴⁾ 

Rehabilitation Act Implications of Forms PD F 5518 and 5521

Forms PD F 5518 and 5521 ask the respondents whether they "have any adverse information about th[e] person's employment, residence or activities concerning: abuse of alcohol and/or drugs [or] mental or emotional stability. . . ." 

The Bureau's requests for adverse information about an individual's "abuse of alcohol and/or drugs" or "mental or emotional stability" may be considered disability-related inquiries because they are likely to elicit information about disabilities such as alcoholism, past drug addiction, and/or depression, among other disabilities.⁽¹⁵⁾ Therefore, to comply with the Rehabilitation Act, to the extent these inquiries are made with respect to applicants, they should not be asked until after an offer of employment has been made.  The Bureau should make such inquiries with respect to employees, moreover, only to the extent that the inquiries are job related and consistent with business necessity. 

Additionally, if the Bureau obtains the requested information, it must be cautious in how it uses the information to make its employment decisions.  For example, if the Bureau refuses to hire or terminates an employee based on the responses to the Forms' disability-related questions, this will almost certainly mean that the agency regarded the individual as having a disability.⁽¹⁶⁾ That does not mean necessarily that there has been a violation of the law.  The Bureau may be able to demonstrate that its decision satisfies the business necessity standard.⁽¹⁷⁾ To do this, the agency would have to establish that a particular impairment renders the individual unqualified to perform the essential functions of the job in question, or, where the agency's reason for excluding the applicant or employee is based on safety concerns, that he poses a direct threat due to the impairment.⁽¹⁸⁾ 

Thank you for the opportunity to provide these comments. Should you wish to discuss any of the issues raised in this letter in further detail, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Tanisha Wilburn at (202) 663-4909.

Sincerely,

/s/

Peggy R. Mastroianni 
Legal Counsel

FOOTNOTES:

1 78 Fed. Reg. 63309.

2 Id. at 63310. 

3 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, as amended, 29 U.S.C. § 791 et seq.; 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 et seq. 

4 42 U.S.C. § 2000e et seq.

5 For more information about Title VII and an employer's use of criminal records to make employment decisions, refer to U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

6 42 U.S.C. § 2000e-2(a).

7 Id. § 2000e-2(k).

8 See Arrest/Conviction Records Guidance, supra note 5, § V.B.

9 See id. § VI (stating that "[c]ompliance with federal laws and/or regulations is a defense to a charge of discrimination" under Title VII).  We are unaware of any federal law or regulation that would warrant employment exclusions for reasons as broad as the information obtained with this investigative form.  "[E]exclusions that go[] beyond the scope of a federally imposed restriction . . . would be subject to Title VII analysis."  Id.

10 29 U.S.C. § 791 et seq.  See also 29 U.S.C. § 791(g) (applying the standards under Title I of the Americans with Disabilities Act of 1990 to the Rehabilitation Act).

11 42 U.S.C. § 12112(d)(2)(A); 29 C.F.R. § 1630.13(a).  For a discussion of invitations to persons with disabilities to self-identify for affirmative action purposes, see U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), http://www.eeoc.gov/policy/docs/preemp.html#self-identify.

12 42 U.S.C. § 12112(d)(3)(A); 29 C.F.R. § 1630.14(b).

13 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

14 See 29 C.F.R. § 1630.2(r); see also U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), Question 5 (2000), http://eeoc.gov/policy/docs/guidance-inquiries.html. 

15 See generally Preemployment Disability-Related Questions Guidance, supra note 11.

16 Under the ADAAA, an employer "regards" an individual as having a disability if it takes a prohibited action (e.g., failure to hire, termination, or demotion) based on an individual's actual or perceived impairment, whether or not the impairment substantially limits, or is perceived to substantially limit, a major life activity.  See 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).  The one exception, however, is when an employer refuses to hire or terminates an employee because the employee is currently engaging in the illegal use of drugs.  Individuals who are currently engaging in the illegal use of drugs are not considered qualified individuals with disabilities under the Rehabilitation Act.  See 42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a).

17 See 29 C.F.R. § 1630.14(b)(3).

18 See id. § 1630.2(r).

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