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, & GINA: Use of Criminal History; Medical Inquiries
February 11, 2013
TRANSMITTED VIA E-MAIL
Volunteers & Service Program Manager
USDA Forest Service
Recreation, Heritage, and Volunteer Resources (RHVR)
201 14th Street NW
Washington, DC 20024
Re: 77 FR 74168, Information Collection: Youth Conservation Corps Application and Medical History
To Whom It May Concern:
The U.S. Equal Employment Opportunity Commission (“EEOC”) submits this comment in response to the USDA Forest Service’s notice and request for comment regarding the revision of OMB 0596-0084, Youth Conservation Corps Application and Medical History.(1) The EEOC offers these comments as the federal 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.(2) The laws enforced by EEOC also prohibit retaliation for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.(3) As indicated below, we recommend that USDA review and revise the Application and Medical History forms to avoid potential conflict with the requirements of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), Section 501 of the Rehabilitation Act, as amended (“Rehabilitation Act”), and Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”).
Potential Conflicts with Title VII
Title VII’s Requirements Regarding the Use of Criminal History Information in Employment Decisions
Title VII of the Civil Rights Act of 1964 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 history information from job applicants. However, there are two ways in which an employer’s use of criminal history information may violate Title VII. (5) First, Title VII prohibits employers from treating applicants with the same criminal records differently because of their race, national origin, or another protected characteristic (“disparate treatment discrimination”).(6) Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”).(7) If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
The Youth Conservation Corps Application and Medical History forms are used to “evaluate the employment eligibility of youth 15 to 18 years old through the Youth Conservation Corps Program.”(8) The Application form asks applicants to disclose whether they have “ever been convicted of a crime,” and if so, to explain the circumstances of the conviction. The form also states, however, that the existence of a conviction record “will not necessarily bar an applicant from enrollment” in the program. The form asks applicants to certify that they “do not have a history of serious criminal . . . behavior that might jeopardize [their] safety or that of others.” (emphasis added).
Medical History Form
The Medical History form is used to “certify the youth’s physical fitness to work in the seasonal employment program.”(9) Part II, Section G of the form asks applicants to disclose whether they have experienced any “significant events” within the past year, including incarceration. Section G also asks applicants to disclose whether they have “been on probation or had any involvement with the Justice System,” and if so, to provide the date(s) and reason for these experiences.
Recommended Changes Consistent with Title VII Requirements
As noted above, Title VII does not prohibit the USDA from requesting criminal history information from job applicants. We recommend, however, that the USDA limit such inquiries to those “convictions for which exclusion would be job related for the position in question and consistent with business necessity.”(10) Because all convictions are not relevant to all positions, employers should focus on the convictions that establish a link between specific criminal conduct and its dangers, and the risks inherent in the duties and/or responsibilities of a particular position. Therefore, we recommend that instead of requesting that applicants disclose all past convictions, the USDA limit the request to convictions that are most relevant to the duties and responsibilities of positions in the Youth Conservation Corps Program.
We also recommend that the USDA remove the “serious criminal behavior” language from the Application form’s Certification section. If the Agency has concerns about the nature and gravity of an applicant’s past criminal conduct, those concerns can best be addressed in the section of the form requesting the applicant’s conviction history, subject to the revisions described above.
Medical History Form
We also recommend that the USDA remove all of the criminal history questions from the Medical History form. First, the broad scope of the criminal history request in the Medical History form, which requests information about “any involvement with the Justice System,” will likely result in the acquisition of information about applicants’ past arrests or charges that did not result in a conviction or that were expunged from applicants’ records. Arrests are not proof of criminal conduct. Therefore, an exclusion of an applicant based on an arrest, in itself, is not job related or consistent with business necessity.(11) Furthermore, it is unclear how applicants’ criminal history is relevant to their “physical fitness to work in the seasonal employment program.”(12) Finally, assuming the criminal history questions are relevant, including these questions on the Medical History form is unnecessary, as the USDA may obtain information about applicants’ past probation or incarceration from the conviction history request in the Application form. Accordingly, we recommend that the USDA remove the criminal history questions from the Medical History form.
Conflicts with the Rehabilitation Act
The Rehabilitation Act’s Requirements Regarding 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).(13) 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.(14)
Medical History Form
The Medical History form requests information about applicants’ past and present medical conditions and current medication. It is unclear when in the employment process applicants are asked to complete this form. The Forest Service website indicates that both the Application form and the Medical History form must be completed and submitted as part of the application process.(15) However, it appears from the National Parks Service website and the Fish and Wildlife Service website that applicants must submit only the Application form, and not the Medical History form.(16)
Changes Needed to Comply with the Rehabilitation Act
To comply with the Rehabilitation Act, we recommend that USDA require applicants to complete the Medical History form only after they have received an offer to participate in the Youth Conservation Corps Program. To the extent the application process currently operates in this fashion, we recommend that participating agencies review and revise Youth Conservation Corps Program material as necessary to clarify that applicants are required to submit only the Application form, and not the Medical History form, as part of the initial application.
We further note that, as a result of the ADA Amendments Act, withdrawing an offer based on information provided in the Medical History form will almost certainly result in regarding an applicant as having a disability.(17) Consequently, the agency responsible for the offer withdrawal would have to establish that the impairment renders the individual unqualified to perform the essential functions of the Youth Conservation Corps Program position, or, where the agency’s reason for excluding the applicant is based on safety concerns, that she poses a direct threat due to the impairment.(18) 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 Youth Conservation Corps Program position must include consideration of a reasonable accommodation that would enable performance of the functions or that would eliminate or reduce the risk below the level of a direct threat.(19)
Potential Conflicts with Title II of the Genetic Information Nondiscrimination Act
GINA’s Requirements Regarding Acquisition of Genetic Information
Title II of the Genetic Information Nondiscrimination Act of 2009 (GINA) prohibits employment discrimination based on genetic information. Among other things, GINA prohibits employers from requesting, requiring, or purchasing genetic information (which includes family medical history) from applicants and employees, with very limited exceptions.(20)
Medical History Form
Part II, Section A of the Medical History form asks applicants whether they have a family history of heart attack. Part II, Section G of the Medical History form asks applicants whether they have experienced the death of a family member in the past year. If the answer to either question is yes, applicants are asked to explain.
Recommended Changes Consistent with GINA Requirements
The request for information about a family history of heart attack is a request for genetic information, and the request for an explanation for a family member’s cause of death would likely elicit genetic information, as well. These requests for genetic information do not fall within any of the exceptions to the general prohibition on acquisition of genetic information. As a result, we recommend that the USDA remove the questions about family history of heart attack and death of a family member (and the related request for an explanation) from the Medical History form.
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, Senior Attorney Advisor Lisa Schnall at (202) 663-4845, or Senior Attorney Advisor Tanisha Wilburn at (202) 663-4909.
Peggy R. Mastroianni
(1) Information Collection: Youth Conservation Corps Application and Medical History, 77 Fed. Reg. 74,168 (Dec. 13, 2012).
(2) 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.
(3) See generally EEOC, Retaliation, http://www.eeoc.gov/laws/types/retaliation.cfm (last visited Jan. 25, 2013).
(4) 42 U.S.C. §2000e et seq.
(5) See generally EEOC, 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 (hereinafter “Arrest/Conviction Records Guidance”).
(6) 42 U.S.C. § 2000e-2(a).
(7) See id. at § 2000e-2(k)(1)(A)(i).
(8) 77 Fed. Reg. at 74,168.
(9) Id. at 74,169.
(10) See Arrest/Conviction Records Guidance, supra note 5, at § V.B.
(11) See Arrest/Conviction Records Guidance, supra note 5, at § V.B.2.
(12) 77 Fed. Reg. at 74,169.
(13) See 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(b).
(14) 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 Americans with Disabilities Act (ADA) (2000), http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
(15) See U.S. Forest Serv., Youth Conservation Corps Program, http://www.fs.fed.us/recreation/programs/ycc/ (last visited Jan. 22, 2013) (“How do I apply? Complete and mail in two forms (application & medical)”) (emphasis in original).
(16) See U.S. Dep’t of the Interior, Nat’l Parks Serv., How to Apply, http://www.nps.gov/gettinginvolved/youthprograms/yccapply.htm (last visited Jan. 24, 2013) (requiring applicants to submit a completed application to the parks of their choice); U.S. Fish & Wildlife Serv., Nat’l Conservation Training Ctr., Youth Conservation Corps Program, http://nctc.fws.gov/ycc.html (last visited Jan. 24, 2013) (requiring applicants to complete an application).
(17) See 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).
(18) See 29 CFR § 1630.2(r).
(20) 42 U.S.C. § 2000ff-1(b); 29 C.F.R. § 1635.8.
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