June 18, 2012 / Law Alert

Employment law perspectives: EEOC releases informal letter on medical inquiries under The Rehabilitation Act, ADA, GINA, Title VII and ADEA

On June 7, 2012, the Equal Employment Opportunity Commission released an informal discussion letter, dated April 26, 2012, responding to the Peace Corps’ request for comments on its proposed application process for Peace Corp Volunteers, particularly its process for reviewing the past medical history of applicants. The EEOC identified problems with the health History Forms stating that there are no exceptions to the “straight-forward rule” that disability related inquiries or medical exams are prohibited at the pre-offer stage of the employment process. It also noted that in order to comply with the Rehabilitation Act, the Health History Form should only be used after an invitation to serve as a Volunteer, subject to successful medial screening, had been extended. The EEOC also noted four of the sixteen follow-up medical questionnaires proposed included questions about family medical history and therefore did not comply with the requirements of Title II of GINA. The EEOC added that all medical questionnaires used should be revised to eliminate questions about family medical history and other genetic information. Further, the EEOC identified conflicts with Title VII and ADEA because four of the post-offer medical questionnaires were required only from applicants in certain protected groups: the Mammogram Form was required only from women age 50 and over; the Pap Screening Form was required only from women; and the Colon Cancer Screening Form and ECG Form were required only from applicants age 50 or over. The EEOC concluded that “Indeed, an application process with requirements of this nature is facially discriminatory.”

Because Section 501 of the Rehabilitation Act, which applies to federal employees, incorporates the standards of Titles I and V of the ADA, the letter serves as a reminder to private employers as to when and what sort of medial inquiries may be made during the hiring process without running afoul of the ADA and other federal antidiscrimination laws.

The EEOC’s letter is only an informal discussion of the issues and is not considered a formal agency opinion.