EEOC finds per se disability discrimination due to improper questions. Complainant filed an Equal Employment Opportunity (“EEO”) complaint alleging discrimination on the basis of sex (male) when he was not selected for the position of Temporary File Clerk. He further alleged discrimination on the bases of race (Black), age, and disability when he was not selected for a second Temporary File Clerk position. Following the initial investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission (“EEOC”) Administrative Judge (“AJ”). The AJ issued a decision finding no discrimination, reasoning that Complainant failed to establish a prima facie case of discrimination based on age and race because other selectees were similarly situated. The AJ, however, was able to find a prima facie case of sex discrimination and disability discrimination, but noted that the Complainant did not provide any evidence that would support a conclusion that he was a qualified individual with a disability because he does not have any limitations due to his disability. However, even assuming the Complainant had presented a case, the AJ further found that the Agency articulated legitimate, non-discriminatory reasons for its actions because alleged Complainant was not selected simply because other candidates had more impressive resumes. The AJ noted that some of the interview questions regarding the Complainant’s disability that were asked by the Agency were improper, but found that the violation did not taint the selection process and there was no evidence of discriminatory intent. Complainant appealed to the EEOC’s Office of Federal Operations (“OFO”).

On appeal, the OFO agreed with the AJ’s findings that the Complainant failed to prove that the agency discriminated against him with regard to his non-selection, and failed to establish pretext. The OFO, however, noted that the OFO has held that an employer’s improper pre-employment questions constitute disability discrimination per se. The OFO held that the Agency’s questions were impermissible disability-related questions that violated the Rehabilitation Act, holding that the Agency must correct its pre-employment process to comply with the EEOC’s regulations, and instructed the Agency to conduct an investigation to determine Complainant’s entitlement to compensatory damages.

Edwards v. Dept. of Veterans Affairs, EEOC Appeal No. 01A30010 (February 11, 2004)