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: Arrest and Conviction Records; Rehabilitation Act: Alcoholism ---- Illegal Drug Use

March 19, 2007

Ana A. Mazzi
Deputy Associate Director
Workplace Relations and Accountability Policy
Office of Personnel Management
1900 E Street, N.W., Rm. 7H28
Washington, D.C. 20415

Re: Proposed Rule on Suitability, RIN 3206-AL08

Dear Ms. Mazzi:

The Equal Employment Opportunity Commission (Commission or EEOC) submits this letter in response to the Office of Personnel Management's (OPM) proposal to amend its regulations governing Federal employment suitability. See 72 Fed. Reg. 2203 (January 18, 2007). In order to avoid inconsistencies with laws enforced by the EEOC, we request that OPM make certain revisions to the proposed rule.

Background

The EEOC enforces the federal laws that prohibit employment discrimination on the basis of an individual's race, color, religion, sex, national origin, age, or disability. These include the laws prohibiting discrimination in federal employment. See Section717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-16; Section15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §633a; the Equal Pay Act of 1963, as amended, 29 U.S.C. §206(d); and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 (the "EEO laws"). The EEOC has responsibility under Executive Order 12067 to coordinate the federal government's enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age, or disability. 43 Fed. Reg. 28967 (July 5, 1978). With respect to federal employment especially, "the policy of the Government of the United States [is] to provide equal employment opportunity . . . for all persons . . . and to promote the full realization of equal employment opportunity. . . ." 29 C.F.R. § 1614.101(a). For individuals with disabilities in particular, the federal government is charged with being "a model employer." 29 C.F.R. § 1614.203(a).

Overview

Some of OPM's proposed changes to the suitability determination process may have the effect of creating conflict with the EEO laws and undermining the goal of "full realization of equal employment opportunity" in the federal government. See supra. While the EEOC certainly does not dispute the potential relevance of the offenses cited in this rule to suitability for federal employment – specifically, criminal conduct, alcohol abuse, and illegal use of drugs – the EEOC is concerned that OPM's current proposal deletes important regulatory restrictions that direct agencies to assess the factors in ways that comply with the EEO laws.

Specifically, OPM proposes that in making suitability determinations, agency decision makers will have sole discretion over whether to consider an individual's misconduct in light of the nature of the position held or sought, the nature and seriousness of the offensive conduct, and other relevant considerations.⁽¹⁾ The enhanced discretion provided by the proposed regulation will have the effect – perhaps inadvertent – of creating conflict with Title VII of the Civil Rights Act of 1964.⁽²⁾ We also are concerned that when agencies have the power to debar people for three years at a time, conflicts with Section 501 of the Rehabilitation Act may arise with respect to individuals with alcoholism and drug addiction. We address each of these concerns in turn.

Criminal or Dishonest Conduct as a Factor

"Criminal or dishonest conduct" is one of the "specific factors" that may be used as a basis for finding a person unsuitable for federal employment. See 5 C.F.R. § 731.202(b)(2); 72 Fed. Reg. at 2207. To the extent that this allows suitability determinations to be based on an individual's conviction or arrest record, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-16, comes into play. Under Title VII, the law is settled that a categorical bar from employment for all individuals with arrest or conviction records has a disparate impact on African Americans and Hispanics/Latinos. Individualized decisions to exclude a particular applicant based on a conviction or arrest record must be justified with respect to the responsibilities of the specific position. See EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII (Policy Guidance on Arrest Records) (September 7, 1990) and EEOC Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964 (Policy Statement on Conviction Records) (February 4, 1987), available at www.eeoc.gov .

Under Title VII, the employer must show that such an exclusion is job-related and consistent with business necessity for the position in question. See EEOC Compliance Manual, Section 15, Race and Color Discrimination, (Race and Color Compliance Manual) (April 19, 2006), p. 15-30 (available at www.eeoc.gov); Policy Guidance on Arrest Records; Policy Statement on Conviction Records (available at www.eeoc.gov). To meet this standard, employers must make an individualized determination about whether an offense demonstrates unfitness for a particular position held or sought by the individual in question. With respect to conviction records, the relevant considerations to determine whether the offense demonstrates unfitness for the position are: (1) the nature and gravity of the offense or offenses; (2) the amount of time that has passed since the arrest or conviction and/or completion of the sentence, where applicable; and (3) the nature of the job held or sought. See Race and Color Compliance Manual, pp. 15-30 and 15-31. When exclusion is based upon an arrest record, the employer also must evaluate whether the individual actually engaged in the misconduct. Id.

OPM's current proposal, however, deletes the only language remaining in the suitability rule that directs agencies to establish a connection between a conviction or arrest record and the job requirements before finding a person unsuitable for federal employment.⁽³⁾ OPM proposes to revise the "General" language at 5 C.F.R. § 731.202(a) and the "Additional considerations" at 5 C.F.R. § 731.202(c). The following quote compares OPM's proposed revisions with its current rule in order to demonstrate the importance of the language OPM proposes to delete and add (OPM proposed deletions are in italics and OPM proposed additions are highlighted):

(a) General. . . . . OPM, or an agency to which OPM has delegated authority, shall make its determination on the basis of the specific factors in paragraph (b) of this section, with appropriate consideration given to the additional considerations outlined in paragraph (c) of this section.
. . . .
(c) Additional considerations. In making a determination under paragraphs (a) and (b) of this section, OPM and agencies shall may consider the following additional considerations to the extent they OPM or the relevant agency, in their sole discretion, deem them pertinent to the individual case:

(1) The nature of the position for which the person is applying or in which the person is employed; . . . .

Clearly, sections 731.202(a) and (c) as revised do not require an assessment of the nature and gravity of the offense, although they allow federal decision makers at OPM and the agencies to include "additional considerations" such as the nature and seriousness of the conduct (i.e., the conviction or arrest), the recency of the conduct, and the nature of the position at their sole discretion. See 5 C.F.R. §731.202(c). Although OPM apparently intends this language only to prevent the MSPB from considering factors that the agencies or OPM did not actually consider in reaching a suitability determination, OPM's proposed language creates a conflict with Title VII's requirement that the employer assess these considerations before excluding someone for a conviction or arrest. We urge OPM to state in its final regulation that, pursuant to Title VII, unsuitability determinations based on individuals' arrest or conviction records can be made only after an individualized assessment of whether the offense demonstrates unfitness for the particular position held or sought. Adding such a requirement is especially important in light of the limited MSPB review of suitability determinations under this proposed rule.

Alcohol Abuse as a Factor

Under § 731.202(b)(5), alcohol abuse also is a factor that can be considered in making suitability determinations for federal employment. To the extent that the proposed rule applies to individuals who abuse alcohol, but who do not have the disability of alcoholism under Section 501 of the Rehabilitation Act, the rule does not raise any EEO concerns. However, in order to allow application of this provision to individuals with the disability of alcoholism without violating Section 501⁽⁴⁾, we urge OPM to make the following modifications (EEOC proposed revisions are in bold text and EEOC proposed deletions are struck out):

Alcohol abuse of a nature and duration that suggests demonstrates that the applicant or appointee, even with reasonable accommodation, would be prevented from performing the duties essential functions of the position in question held or desired, or would constitute a direct threat to the property or health or safety of the applicant or appointee or others, or would be unable to comply with employer performance or conduct standards.

Under Section 501 of the Rehabilitation Act and Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., an individual may be disqualified from employment based only on direct threat to health or safety of himself or others that cannot be eliminated or reduced by reasonable accommodation. See 29 C.F.R. § 1630.2(r) (defining "direct threat") and 29 CFR § 1630.15(b)(2). While threats to property may be relevant to suitability for federal employment, the EEOC urges OPM to address this concern by referring to conduct, performance and qualification standards rather than improperly extending the "direct threat" principle to property.⁽⁵⁾ Additionally, the EEOC urges OPM to make the other suggested language modifications so that the rule accurately mirrors the reasonable accommodation requirement of Section 501.

Illegal Use of Narcotics as a Factor

Section 731.202(b)(5) of both the current and proposed rules, which lists "[i]llegal use of narcotics, drugs or other controlled substances, without evidence of substantial rehabilitation," also poses a potential conflict with Section 501 of the Rehabilitation Act. Although Section 501 exempts from its protections an individual currently engaged in the illegal use of drugs, it covers certain individuals who are recovering from the illegal use of drugs. See 29 CFR § 1630.3(b). Specifically, if an individual has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs, or is participating in a supervised rehabilitation program and is no longer engaging in such use, he is protected by Section 501 of the Rehabilitation Act. OPM's reference in the current and proposed rule to "substantial rehabilitation" does not accurately reflect the meaning of Section 501. We urge OPM to modify § 731.202(b)(5) by adding a reference to the "current" illegal use of narcotics, drugs, or other controlled substances, and by deleting the phrase "without evidence of substantial rehabilitation," as follows (EEOC proposed revisions are in bold text and EEOC proposed deletions are struck out):

Current illegal use of narcotics, drugs, or other controlled substances, without evidence of substantial rehabilitation.

Three Year Debarment

As a general proposition, the EEOC is concerned about the proposal to permit agencies -- not just OPM -- to debar any person they find unsuitable for up to three years as opposed to just one year. OPM's proposal to delegate discretion to impose three-year debarments to individual agencies, taken in conjunction with limited MSPB review and agency discretion to impose subsequent debarments for the same conduct, may have the cumulative effect of perpetuating some faulty debarment decisions and unfairly excluding individuals from federal employment based on race, national origin, and disability. See 72 Fed. Reg. 2204.

The three-year debarment period also raises specific concerns under Section 501 of the Rehabilitation Act. If an individual is debarred from federal employment for three years based on alcohol abuse or illegal use of drugs, but recovers to the extent that he or she is no longer unsuitable for federal employment prior to the expiration of those three years, continuing the debarment period raises a question of discrimination under Rehabilitation Act. By contrast, an individual debarred for just one year for these reasons typically would not be able to demonstrate suitability prior to the expiration of the year.

In the event OPM or an agency nonetheless imposes a full three-year debarment based on alcohol abuse or the illegal use of drugs, OPM should permit such individuals to seek a new suitability determination prior to the expiration of a three-year debarment if: (1) in the case of a person with alcoholism, she can demonstrate that she is now able to perform the essential functions of the position, work without posing a direct threat, and comply with employer performance and conduct standards with or without a reasonable accommodation and; (2) in the case of someone who is a past drug addict, that she has completed a rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in the illegal use of drugs, or that she is participating in a rehabilitation program and is no longer engaging in the illegal use of drugs.

We hope these comments will be helpful. Please feel free to contact me at 202-663- or Carol Miaskoff, Assistant Legal Counsel for Coordination, at 202-663- .

Sincerely,

/s/

Peggy R. Mastroianni
Associate Legal Counsel

(1) In 1991, OPM promulgated an interim rule on suitability, along with a request for comments. In its request for comments, OPM noted that the section dealing with the criteria for suitability determinations, § 731.202, was being changed "in significant parts to focus on job-relatedness of specific factors and to otherwise narrow the scope of certain of the criteria." See 56 Fed. Reg. 18650 (April 23, 1991). Although this interim rule included "specific factors" similar to those currently proposed, there were important differences. Both § 731.202(b)(1) (misconduct in prior employment) and § 731.202(b)(2) (criminal or dishonest conduct) included requirements that the conduct be related to the job in question. In particular, § 731.202(b)(2) provided that the criminal or dishonest conduct be "related to the duties to be assigned to the applicant or appointee, or to that person's service in the position or the service of other employees." This language continued as part of § 731.202(b)(2) through 2000, when OPM adopted as final a rule that deleted this language. See 64 Fed. Reg. 4338 (January 28, 1999) (proposed rule) and 65 Fed. Reg. 82239 (December 28, 2000) (final rule); see also note 3, infra. However, the rule continued to include language requiring that appropriate consideration be given to the additional considerations of § 731.202(c), such as the nature of the position and the nature and seriousness of the conduct, until the proposal at issue.

(2) OPM's purpose in emphasizing that OPM and agencies have "sole discretion" about whether to assess any "additional considerations" appears to be precluding the MSPB from considering factors listed in the rule on which OPM or the agency did not rely, even, presumably, if such factors are relevant to the situation at issue. See 72 Fed. Reg. 2204.

(3) As noted above, earlier versions of § 731.202(b)(2) included language requiring that criminal or dishonest conduct considered in making a suitability determination be related to the job in question. See note 1, supra. OPM proposed deleting this language in 1999 and did so in the final rule published in December 2000. See 65 Fed. Reg. 82239 (December 28, 2000). In doing so, OPM rejected a comment arguing that deleting this language would mean that there was no limitation on criminal misconduct deemed to be unsuitable. OPM responded that the additional considerations set forth at § 731.202(c) made clear that a suitability determination may be made after considering the nature of the position, the nature and seriousness of the conduct and the circumstances surrounding the conduct, among other things. See 65 Fed. Reg. 82241 (December 28, 2000). As stated above, the current proposal serves to make § 731.202(c) optional, with emphasis on the sole discretion of the agency.

(4) If an applicant or appointee is an individual with a disability due to alcoholism, and is able to perform the essential functions of the desired position with or without a reasonable accommodation and does not pose a direct threat to the health or safety of him/herself or others, an adverse action due to the alcoholism would violate Section 501 of the Rehabilitation Act. See 29 C.F.R. § 1630.4.

(5) Employers may, for example, prohibit the use of alcohol at the workplace, require that employees not be under the influence of alcohol at the workplace, and hold an employee with alcoholism to the same qualification standards for employment or job performance to which other employees are held. See 29 C.F.R. § 1630.16(b).

This page was last modified on May 2, 2007.