Allowable Questions to Job Applicants
On December 11, 2007, the Merit Systems Protection Board (MSPB) issued a split decision reversing the removal of a federal air marshal in Evans v. Department of Homeland Security, 2007 M.S.P.B. 297. In doing so, the Board’s majority adopted the Equal Employment Opportunity Commission’s (EEOC) regulations and guidance implementing the Americans with Disabilities Act (ADA), barring federal agencies from asking job applicants questions about their medical prescription histories prior to making an offer of employment to the applicant.
When applying for the position of federal air marshal in February 2002, Mr. Evans was asked to fill out a Standard Form 93 (SF-93). Among the questions asked was what medications Mr. Evans was currently taking. Mr. Evans listed one medication, but omitted a second medication (a prescription amphetamine used for treating attention deficit disorder) which he was not taking during a six-week period around when he filled out the form – but had been taking prior thereto filling out the form and resumed thereafter. Agency regulations prohibit federal air marshals from taking amphetamine medications while on duty. Mr. Evans was subsequently offered employment and was appointed in March 2002. A routine drug test in May 2004 showed the presence of amphetamines, and Mr. Evans disclosed the medication use. The agency removed Mr. Evans for falsification of the SF-93 in his application.
Mr. Evans appealed the removal to the MSPB. The AJ sustained the removal at hearing, finding that despite the nonuse of prescribed amphetamine at the time of application, Mr. Evans’s general continuing use of the medication required him to list it on the SF-93, rendering its omission a falsification. Mr. Evans then petitioned the full Board for review.
The Board’s majority, on review, reversed the removal as contrary to law. The majority ruled that the SF-93 question, while potentially legitimate if the applicant has already received a conditional offer of employment, violated a provision of the Americans with Disabilities Act. Under implementing regulations (29 C.F.R. §§ 1630.13, 1630.14) and Enforcement Guidance promulgated by the EEOC, questions concerning medical background (and possible disability) issued prior to a conditional offer of employment constituted an illegal disability-related question. While such questions may potentially be permissible after an offer of employment is made, the EEOC does not permit such questions to be asked prior to offer of employment. The majority deferred to the EEOC’s interpretive guidance in this topic, joining the EEOC, the 9th Circuit and the District of Massachusetts in holding such pre-offer of employment medical questions unlawful.
Because the SF-93 was to be submitted prior to the offer of employment, the majority found that the agency could not lawfully ask the medical question contained therein. The agency therefore could not remove Mr. Evans on the basis of falsifying his answer to this illegal question. Accordingly, the majority reversed the removal and retroactively reinstated Mr. Evans to federal service.
In dissent, Chairman McPhie argued that the removal should be sustained, first on the ground that the SF-93 question regarding medications was not asking about disabilities per se, and then on the ground that the ADA’s prohibition on the agency asking questions regarding medications did not authorize Mr. Evans to lie in response. Under Chairman McPhie’s analysis, Mr. Evans should have answered the question honestly or refused to answer at all, and then if not selected, sought redress for the agency’s ADA violation through the conventional EEO process.