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 & Rehabilitation Act: The Use of Criminal and Credit History; Disability-Related Inquiries

April 19, 2013

Desk Officer for USAID
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington D.C., 20503

Re: 78 FR 17181, Inquiry for Employment, Residence, Personal, Education and Law

To Whom It May Concern:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the U.S. Agency for International Development's (USAID) notice for request for comments on AID Form 566-01, Employment Inquiry,and AID Form 566-05, Law Enforcement Inquiry, published in the Federal Register on March 20, 2013.⁽¹⁾ These information collections are used for "[b]ackground investigations . . . on all persons entering Federal Service."⁽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 USAID review and revise the above-referenced information collections to ensure that they are 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).

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 applicants or employees 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 AID Form 566-01 (Employment Inquiry) and AID Form 566-05 (Law Enforcement Inquiry)

USAID uses AID Form 566-01 to obtain employment-related background information about USAID applicants and employees.⁽⁸⁾ The Form asks the applicants' or employees' current or former employers, supervisors, coworkers, or friends to disclose whether they "have any adverse information about [the individual's] employment, residence, or activities concerning criminal conduct/violations of the law" and/or "financial integrity/bankruptcy/tax liens/legal judgments."

USAID also uses AID Form 566-05 to obtain criminal history information about USAID applicants and employees. But this Form asks the individual's local criminal justice agency to disclose whether he "has ever been arrested or convicted of an offense against the law, or forfeited collateral, or is now under charges for any offense against the law," subject to limited exclusions (e.g., certain traffic violations, offenses committed before age 18, or convictions that have been expunged or set aside under applicable federal or state laws). The Form also asks the local criminal justice agency to provide information about any such criminal record in its files (e.g., the date of the offense, the age given, the type of offense, disposition/comments, and whether the report or any related information about the offense is attached).

Criminal History

As noted above, Title VII does not prohibit USAID from requesting and/or obtaining criminal history information about its applicants or employees. We note, however, that USAID's inquiries in AID Form 566-01 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 persons covered by Title VII, it would run afoul of the statute if the exclusion was not "job related for the position[s] in question and consistent with business necessity."⁽⁹⁾ All criminal history information is not relevant to all positions. Therefore, to reduce USAID's risk of violating Title VII, instead of requesting that current or former employers or supervisors disclose all "criminal conduct/violations of the law," we recommend USAID limit its request for criminal history information to offenses that are most relevant to the duties and/or responsibilities of the positions in the USAID program.

As with AID Form 566-01, we also recommend that USAID limit the scope of the criminal history inquiry in AID Form 566-05. We also note that while AID Form 566-01 focused on criminal conduct, AID Form 566-05 refers to "arrests" and "charges" in addition to convictions. Because arrests and charges are not proof of criminal conduct, exclusions of applicants or employees based on arrests or charges, standing alone, would not be job related and consistent with business necessity.⁽¹⁰⁾ The conduct, not the arrest or charge itself, is relevant for employment purposes..⁽¹¹⁾ Therefore, we recommend that USAID narrow the scope of its criminal history inquiry so that it focuses on convictions and conduct underlying an arrest or charge most related to specific positions with the agency.

Financial History

Additionally, as with the criminal history inquiry in AID Form 566-01, the financial history inquiry in AID Form 566-01 does not in itself violate Title VII, but could result in the discriminatory use of the requested information. Because excluding individuals on the basis of adverse financial information may disproportionately affect persons covered under Title VII and thereby create a disparate impact, an employer should ensure that its practices are job related and consistent with business necessity. Therefore, we recommend limiting the scope of the inquiry and adopting 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

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)..⁽¹²⁾ The ADA strictly limits when an employer may obtain medical information about applicants or 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, even if they are related to the job in question..⁽¹³⁾ 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..⁽¹⁴⁾

The ADA's requirement that disability-related questions and medical examinations be made in the post-offer stage 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. Accordingly, for an offer to be considered a "real" offer, the employer must have evaluated all non-medical information which it could have reasonably obtained and evaluated prior to extending the offer..⁽¹⁵⁾ That is, all non-medical information about a job applicant generally must be obtained and evaluated pre-offer, unless an employer can demonstrate that it could not reasonably have done so.⁽¹⁶⁾

Once someone has begun working, actual performance is the best indication of the employee's ability to do the job. After employment begins, an employer generally may ask disability-related questions and require medical examinations only if they are job related and consistent with business necessity.⁽¹⁷⁾ 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 due to a medical condition.⁽¹⁸⁾

Rehabilitation Act Implications of AID Form 566-01

AID Form 566-01 requests an applicant's or employee's current or former employer, supervisor, coworker, or friend to disclose adverse information about the individual's "abuse of alcohol and/or drugs" and/or "mental or emotional stability."

USAID's requests for adverse information about an individual's "abuse of alcohol and/or drugs" and/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.⁽¹⁹⁾ Therefore, to comply with the Rehabilitation Act, we recommend that USAID limit the requests for disability-related information to the post-offer stage, and that these inquiries be made after an individual has started working only to the extent they are job related and consistent with business necessity. ⁽²⁰⁾

Additionally, if the agency obtains the requested information it must be cautious in how it uses the information to make its employment decisions. For example, if the agency withdraws an offer or terminates an employee based on the responses to the Form's disability-related questions, this will almost certainly mean that the agency regarded the individual as having a disability.⁽²¹⁾ That does not mean necessarily that there has been a violation of the law. USAID may be able to demonstrate that its decision satisfies the business necessity standard.⁽²²⁾ To do this, the agency might be able 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.⁽²³⁾

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,

Peggy R. Mastroianni
Legal Counsel

FOOTNOTES

(1) 78 Fed. Reg. 17,181.

(2) Id.

(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, 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 et seq.

(4) 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 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. 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. at § 2000e-2(k)(1)(A)(i).

(8) In the instructions to complete the Form, it states that "the person identified below has provided [USAID] with [the current or former employer's] information to assist in completing a background investigation for a position they have been appointed to, or currently an applicant for, with the Agency for International Development."

(9) See Arrest/Conviction Records Guidance, supra note 5, at § V.B.

(10) Id. at § V.B.2.

(11) Id. (stating that "[a]lthough an arrest record [or charge] standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest [or charge] if the conduct makes the individual unfit for the position in question").

(12) 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).

(13) 42 U.S.C. § 12112(d)(2)(A); 29 C.F.R. § 1630.13(a).

(14) 42 U.S.C. § 12112(d)(3)(A); 29 C.F.R. § 1630.14(b).

(15) 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.

(16) Id. In certain instances, a job offer may be considered "real," even if an employer has not obtained and evaluated all non-medical information prior to extending the offer. See, e.g., U.S. Dep't of Justice, Questions and Answers: The Americans with Disabilities Act and Hiring Police Officers, at Question 14 (1997), http://www.ada.gov/copsq7a.htm (stating 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"). An employer may also be able to defend an otherwise unlawful pre-employment inquiry if another federal law or regulation that has the force of law requires or necessitates it. See 29 C.F.R. § 1630.15(e).

(17) 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

(18) See 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), at Question 5 (2000), http://eeoc.gov/policy/docs/guidance-inquiries.html.

(19) See generally Preemployment Disability-Related Questions and Medical Examinations, supra note 15.

(20) There are exceptions that could apply, as stated in footnote 16, supra. However, we cannot determine whether USAID's background investigation for its applicants is the type of investigation that would allow an agency to ask disability-related questions as part of this form (i.e., during the pre-offer stage), or whether the current form can be justified as required or necessitated by another federal law or regulation.

(21) 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).

(22) See 29 C.F.R. § 1630.14(b)(3).

(23) See id. at § 1630.2(r).

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