The U.S. Equal Employment Opportunity Commission

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: Direct Threat - Confidentiality of Medical Information - Lying on an EEOC Document

August 23, 2007

Dear:

We received your inquiry of July 29, 2007, in which you state that you are a covered employee under the Americans with Disabilities Act (“ADA”) of 1990, and you ask five questions. Two of the questions concern the type of evidence an employer must have to remove an employee from a job because of a threat to health or safety and the type of evidence an employer would need to provide the Equal Employment Opportunity Commission (“EEOC” or “Commission”) in response to a charge that such a removal constituted employment discrimination. Two other questions ask whether, and to what extent, an Employee Assistance Program (EAP) manager may disclose an employee’s medical information to an employer when the EAP manager concludes that the employee may pose a threat in the workplace. Finally, you ask what the EEOC does if it finds that an employer has lied during the course of a charge investigation.

As you know, the EEOC enforces the federal laws that prohibit employment discrimination, including Title I of the ADA, 42 U.S.C. § 12101 et seq. Title I prohibits discrimination on the basis of disability by employers with fifteen or more employees.

Direct Threat

The ADA would not prohibit an employer from refusing to hire or from removing an employee with a disability from a job if the employer can demonstrate that the individual would pose a “direct threat.” See 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r). The EEOC defines a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Id. The regulations further state that the “determination that an individual poses a ‘direct threat’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job . . . that relies on the most current medical knowledge and/or on the best available objective evidence.” Id. An employer, and the EEOC when investigating a charge in which “direct threat” is an issue, must consider four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Any reasonable accommodations that would eliminate the risk of harm or reduce it to an acceptable level must also be considered. Id. Reasonable accommodations are any changes in the workplace or in the way things are done that enable applicants and employees with disabilities to enjoy equal employment opportunities. See 29 C.F.R. App. § 1630.2(o).

The determination that a direct threat exists must be based on objective, factual evidence - not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes - about the nature or effect of a particular disability, or of disability generally. Relevant evidence may include input from the individual with a disability, the experience of the individual with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability.

Thus, an employer that removes an employee from a job because of safety concerns related to the employee’s disability will violate the ADA, and the EEOC will find discrimination, if the employer cannot establish that the employee poses a direct threat. Your questions suggest that you may believe an employer will violate the ADA if its conclusion is not supported with medical documentation. This is not necessarily the case. In some instances, the limitations related to a particular employee’s disability and their impact on the workplace may be obvious through observation. However, in cases where the disability, its limitations, and the risks it imposes are not obvious, documentation (e.g., medical reports or a statement from a doctor or other medical professional) will be critical.

Confidentiality of Medical Information Held by an EAP Manager

EEOC has said that an Employee Assistance Program counselor may ask employees about their medical conditions if the counselor (1) does not act for or on behalf of the employer; (2) is obligated to shield any information the employee reveals from decision makers; and, (3) has no power to affect employment decisions.” See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html at Q&A 20. Because the EAP does not act “for or on behalf of the employer” and has no ability to affect employment decisions, Title I of the ADA would likely not govern its activities. Any disclosure that an EAP manager or counselor makes to an employer would be subject to whatever legal, medical, and/or ethical standards regulate the manager’s or counselor’s work.

Lying on an EEOC Document

If the EEOC discovers that an employer or a charging party has lied during the course of an investigation, that fact may influence the investigation’s outcome. It may also affect the outcome of litigation or may be used at trial to discredit a witness.

Additionally, making a material misrepresentation during the course of an EEOC investigation could be considered a punishable crime under 18 U.S.C. Section 1001. The requirement that the misrepresentation be “material” is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” U. S. v. Gaudin, 515 U.S. 506, 510 (1995). (A lie can still be “material” even if it fails to persuade the decisionmaker to reach a different conclusion in the case.)

If you believe that you have been discriminated against in violation of Title I of the ADA, you have the right to file a charge with the EEOC. A charge of employment discrimination with the EEOC must be filed within the time limits imposed by law, generally 300 days from the alleged violation (180 days in some jurisdictions). If you choose to file a charge or want more information on our procedures, please contact the Indianapolis District Office at:

101 West Ohio St., Ste. 1900
Indianapolis, IN 46204
1-800-669-4000
1-800-669-6820 (TTY)

We hope this information is helpful. Please be aware, however, that this letter is an informal discussion of the issues you raised and does not constitute an opinion of the Commission or an opinion concerning the merits of any charge of discrimination you have or may file with the EEOC.

Sincerely,

Yamil Jaskille
Attorney Advisor
ADA Policy Division


This page was last modified on November 26, 2007.

Home Return to Home Page