The EEOC’s Office of Federal Operations (OFO) recently ruled in Appeal No. 0120102597, that the agency did not commit a per se violation of the Rehabilitation Act when EEO investigators revealed the nature of the complainant’s disability in interrogatories presented to witnesses to the alleged discrimination. The OFO ruled that EEO investigators were acting "within their duty to fully investigate the complainant’s claims of discrimination" when their draft interrogatories to several witnesses disclosed the specific words the complainant used in identifying the disability.

The Rehabilitation Act protects federal employees from disclosure of information "regarding the medical condition or history of any employee," and "information concerning an individual’s diagnosis is . . . treated as confidential." However, OFO guidance known as MD-110 directs EEO investigators to gather information from witnesses that is "material to the complaint, relevant to the issue(s) raised in the complaint, and as reliable as possible" and allows agencies to disclose information necessary to obtain information from the witness.

The Commission noted that its Enforcement Guidance carves out an exception to the Rehabilitation Act for EEO investigators, and noted that in this case the EEO investigators "acted within their duty to fully investigate Complainant’s claims of discrimination" when they specifically described the disability.

The Commission also noted that the EEO investigators did not disclose any further medical information concerning the disability, such as the duration, severity, or precise nature of the condition, and that therefore the disclosure was on a "need to know" basis and did not violate the Rehabilitation Act.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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