EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA/Rehabilitation Act: Confidentiality/EEO Process
September 27, 2006
This responds to your letter requesting guidance on the interplay between the confidentiality provisions of the Americans with Disabilities Act (ADA) and the Rehabilitation Act and the federal sector EEO process. We apologize for the delay in responding.
You are concerned that compliance with the regulation governing federal sector EEO investigations, 29 C.F.R. §1614.108, which requires that agency personnel provide all “necessary” information to an EEO investigator and that a copy of the Investigative File be disclosed to the complainant, could result in a violation of the Rehabilitation Act’s confidentiality provisions.1
The Rehabilitation Act’s Confidentiality Provisions
The Rehabilitation Act requires federal agencies that obtain medical information about applicants and employees to put this information on separate forms and in separate medical files, and treat it as a “confidential medical record.” 29 C.F.R. §1630.14(b)(1), (c )(1), and (d)(1). However, the Rehabilitation Act does permit disclosure of this confidential medical information in certain specified situations:
The confidentiality provisions apply to “any medical information obtained from a disability-related inquiry or medical examination . . . as well as any medical information voluntarily disclosed by an employee” or applicant.3 Confidential medical information is not limited to a diagnosis or prognosis. For example, it may include information about medical tests that does not include a specific diagnosis, or information about a form of reasonable accommodation provided to an employee.
Federal Sector EEO Process
Section 717(b) of the Civil Rights Act of 1964 (42 U.S.C. §2000e-16) authorizes the EEOC to enforce Title VII and to develop “rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities . . .” Pursuant to §717, the EEOC enacted 29 C.F.R. part 1614, Federal Sector Equal Employment Opportunity. Section 1614.108(b), Investigation of complaints, states that agency investigators “shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” The regulation authorizes investigators to use a number of methods “that efficiently and thoroughly address the matters at issue . . .”
Section 1614.108(c)(1) states that the agency and “any employee of a Federal agency shall produce such documentary and testimonial evidence as the investigator deems necessary.” Witnesses may be placed under oath and may face the penalty of perjury for failing to answer questions truthfully. §1614.108(c)(2). Evidence of a failure by the agency or its employees to respond fully and in good faith to requests for documents and records, including comparative data, may result in the EEO investigator drawing an adverse inference about withheld information. Section 1614.108(f) requires agencies to provide a complainant with a copy of the Investigative File.
“Other Federal Laws” Defense Under the Rehabilitation Act
While the Rehabilitation Act regulations cited above specifically authorize disclosure of confidential medical information as part of an EEO investigation into a Rehabilitation Act complaint, these regulations do not authorize release of medical information as part of an EEO investigation involving complaints under Title VII or the ADEA. Yet, as your letter indicates, there will be situations in which such medical information is relevant to an EEO investigation under Title VII or the ADEA.
The Rehabilitation Act specifically authorizes a defense to permit an employer to engage in an otherwise discriminatory action in order to avoid violating the requirements of another Federal law. 29 C.F.R. §1630.15(e). “If [an] alleged discriminatory action [under the ADA or the Rehabilitation Act] was taken in compliance with another Federal law or regulation, the employer may offer its obligation to comply with the conflicting standard as a defense” (emphasis added). 4 However, this “other Federal laws” defense is inapplicable where a Federal law permits, but does not require, the alleged discriminatory action or where the agency could have complied with the Federal law without violating the Rehabilitation Act.
Section 1614.108(c)(1) says that agencies “shall produce such documentary and testimonial evidence as the investigator deems necessary.” (emphasis added) The regulations also require that agencies provide complainants with a copy of the Investigative File. Therefore, a Federal agency may assert the “other Federal laws” defense if its disclosure of otherwise confidential medical information to an EEO investigator pursuant to the requirements of §1614.108 is challenged. An agency may use this Rehabilitation Act defense to justify its disclosure of otherwise confidential medical information in an EEO investigation involving a Title VII or ADEA complaint. Disclosure covers both documentary and testimonial evidence. Similarly, an agency may assert this defense with respect to disclosure to a complainant or a complainant’s representative of confidential medical information in an Investigative File. As noted above, however, this defense will not justify disclosures that were not required by §1614.108.
Application of the “Other Federal Laws” Defense to Disclosures to an EEO Investigator
Since the disclosures to which the defense will apply are limited to those necessary to comply with §1614.108, an agency must carefully evaluate what information, and how much information, it needs to provide to an EEO investigator. In certain cases, an agency may be able to comply with the investigator’s request without releasing all the medical information it possesses.
For example, suppose a complainant alleges a violation of Title VII, arguing that her discipline for tardiness is discriminatory because another employee routinely arrives late and is not disciplined. The complainant does not know that the other employee has a disability and the supervisor is providing a modified schedule as a reasonable accommodation. Based on the “other Federal laws” defense, the supervisor may disclose certain otherwise confidential medical information because disclosure is required in order to establish a legitimate, non-discriminatory reason for the different treatment of the two employees. The supervisor may tell the investigator that the employee is receiving a reasonable accommodation for a disability and may provide documents that show that a reasonable accommodation was granted (e.g., a letter or form directed to the employee who requested the accommodation).
However, it is unclear whether the “other Federal laws” defense could be successfully asserted as to a disclosure by the supervisor of the medical information she obtained to support the request for reasonable accommodation. The medical information may establish that the employee has a “disability” as defined by the Rehabilitation Act and is thus eligible to receive reasonable accommodation. But, that information would not appear to be necessary for the investigator to determine if the agency violated Title VII because the issue is not whether a reasonable accommodation was correctly provided but whether the agency had a legitimate, non-discriminatory reason for treating two employees differently.
By contrast, agencies may need to release more extensive medical records to an EEO investigator where this is necessary to resolve the complaint. For example, suppose a complainant alleges that due to his race he was denied a reasonable accommodation provided to another employee. The supervisor denied complainant’s request for reasonable accommodation because he failed to provide sufficient documentation showing he has a Rehabilitation Act “disability,” unlike the employee who received an accommodation. Here, the agency would need to disclose the underlying medical information that led it to find that the employee has a “disability” but the complainant does not because this information is “necessary” to establish a legitimate, non-discriminatory reason and to comply with the requirements of §1614.108.
While an agency may determine that it should withhold certain medical information as unnecessary to resolving a complaint, the investigator makes the final determination as to what is “necessary.” §1614.108(c)(1). Thus, if the investigator requires the agency to disclose additional medical information she “deems necessary,” an agency may comply and assert the “other Federal laws” defense if its disclosure is challenged under the Rehabilitation Act.
Application of the “Other Federal Laws” Defense to Disclosure of the Investigative File
The “other Federal laws” defense also may apply when the disclosure of otherwise confidential medical information in the Investigative File provided to the complainant is challenged. Section 1614.108(f) requires an agency to provide the complainant with a copy of the Investigative File because the complainant has the right to see information that supports the EEO investigator’s determination. But, the investigator must assess what medical information needs to go into the Investigative File. To the greatest extent possible, an investigator must comply with both the requirements of the Rehabilitation Act’s confidentiality provisions and §1614.108. In some instances, the investigator may have received medical information that ultimately was not relevant to making a determination. In such situations, the investigator should not include the irrelevant medical information in the Investigative File. However, any medical information relevant to making a determination should be included in the Investigative File.
To illustrate, in the example above involving a complaint that a request for reasonable accommodation was denied based on race, the comparison employee’s medical information shows that he has a Rehabilitation Act “disability,” but the complainant’s medical information does not. Thus, there was a legitimate, non-discriminatory reason for denying the complainant an accommodation. The Investigative File must contain the medical information that supported the agency’s determination that the employee, unlike the complainant, has a “disability.” But, any information the investigator received about the employee having medical conditions unrelated to the “disability” should not be put in the Investigative File.
You ask whether the medical documentation should be sanitized so that the name of a comparison employee is eliminated and instead there is only a reference to “Comparison 1” and “Comparison 2.” In certain situations, this may be an appropriate measure to comply with both the Rehabilitation Act and §1614.108. However, it would probably not be necessary to mask the identify of a comparison employee if it is clear that the complainant knows who the employee is, e.g., there is only one comparison employee and the complainant provided the name of that individual.
Finally, you ask whether medical documents should be put in a sealed envelope for review only by an EEOC Administrative Judge. This approach would not seem to comply with §1614.108 if the medical information was relevant to the investigator’s determination. It would also seem to be unnecessary if the investigator has not included irrelevant medical information in the Investigative File.
Gonzales v. United States Postal Service
You ask about the relevance of Gonzales v. United States Postal Service, EEOC Appeal No. 01922480 (Oct. 1, 1992), which found that the agency’s investigation was deficient in part because it did not include the medical records of comparison employees. The EEOC ordered the Postal Service to supplement the evidentiary record with these medical records.
This case was issued on Oct. 1, 1992, several weeks before the Oct. 29, 1992 enactment of the Rehabilitation Act Amendments of 1992 (1992 Rehabilitation Amendments), which applied the anti-discrimination standards of Title I of the ADA to Federal agencies. Prior to the 1992 Rehabilitation Amendments, the statute contained no confidentiality provisions. Thus, Gonzales relied only on a reading of the requirements of an EEO investigation. The Commission did not address the potential conflict between the ADA/Rehabilitation Act confidentiality provisions and the requirements of a full EEO investigation because no such conflict existed when Gonzales was issued. The Commission has not revisited the Gonzales decision since the enactment of the 1992 Rehabilitation Amendments.
I hope this information is helpful. This letter does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission. If you wish to discuss these issues further, please feel free to call me at (202) 663-4676.
1 is not covered under the ADA. However, the anti-discrimination standards of the ADA, including the confidentiality provisions, are applicable to under 29 U.S.C. §791(g). This letter shall refer to the Rehabilitation Act rather than the ADA in discussing the issues you raise.
2 In addition, the EEOC has recognized that agencies may share otherwise confidential medical information, as appropriate, with workers’ compensation offices or second injury funds, or they may provide such information for the purposes of obtaining insurance coverage for employees and their dependents. 29 C.F.R. pt. 1630 app. §1630.14(b).
3 See “Background” section in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), www.eeoc.gov/policy/docs/guidance-inquiries.html.
4 29 C.F.R. pt. 1630 app. §1630.15(e).
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