- By Milt x_Zall
- Jun 11, 2001
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
Zall is a retired federal employee who since 1987 has written the Bureaucratus
column for Federal Computer Week. He can be reached at [email protected].