Confidentiality code

A Defense Department employee alleged that his agency used wrongfully obtained information about his disability to discriminate against him.

The case in point involves David Ellis. Ellis, who has one paralyzed leg, was employed as an electronics mechanic at the naval aviation depot in Pensacola, Fla. In 1994, Ellis applied for a new position through DOD's Priority Placement Program (PPP), which gives preferential placement to DOD employees into positions for which they qualify.

Ellis' personnel office sent his personnel file over to the employing office for consideration. But it also sent along his confidential "disability code," which indicates whether an employee has any disability. Disability codes are not supposed to be furnished when DOD employees' personnel records are sent to another DOD office.

Although DOD officials acknowledged that the PPP coordinator made a uni.lateral determination about sending Ellis' disability code to the employing office, they said that an employee's physical limitations should be disclosed to an employing office so the office can determine if the employee is physically capable of performing the duties of the job.

Ellis didn't get the job he applied for and contended that this occurred because the employing office knew he had a physical disability. DOD officials disagreed, saying there was no proof. Ellis filed an appeal with the Equal Employment Opportunity Commission.

The EEOC, in reviewing the case, quickly determined that the crux of the issue was whether or not there was a discriminatory selection process in place within the DOD PPP. EEOC regulations — just like the Rehabilitation Act of 1973, which applies to all job applicants — state that an agency cannot inquire as to whether an individual has a disability when the individual has yet to be selected for a job.

An agency can only make pre-employment inquiries into an applicant's ability to perform functions of the job for which the applicant is applying. Such inquiries must be narrowly tailored; an employer can describe or demonstrate the job function and inquire whether the applicant can perform that function without any accommodation.

In addition, EEOC regulations require agencies to treat as confidential any information regarding the medical condition and history of individuals with disabilities and to keep such information in separate medical files. There are certain exceptions, but providing information to prospective employers is not one of them.

The EEOC ruled for Ellis. The impermissible use of information regarding Ellis' medical condition subjected him to "disability discrimination." The EEOC ordered DOD to give Ellis the job he applied for along with back pay and interest. Hopefully, DOD personnel offices have learned from this mistake.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at miltzall@starpower.net.

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