Pitfalls for Affirmative Action for Individuals with Disabilities - American Society of Employers - Anthony Kaylin

Pitfalls for Affirmative Action for Individuals with Disabilities

Should employers ask applicants to self-identify for disability?  The Office of Federal Contract Compliance Programs (OFCCP) definitely says yes for federal contractors.  More specifically, the new disability regulations which were effective March 24, 2014 require under §60-741.42 that all contractors shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability.  The OFCCP then established a workforce utilization goal of 7% for individuals with disabilities for federal contractors.

The OFCCP referred to the EEOC for an opinion letter of whether the request will violate the Americans with Disability Act (ADA) and /or Section 503 of the Rehabilitation Act.  The EEOC stated that it would not, first because there is a safe harbor provision in the ADA that in part states that a company will not be liable if an action (self-ID) is “required or necessitated by another Federal law or regulation.”  Second, the opinion letter stated that “[b]ecause complying with a DOL rule requiring contractors to invite voluntary pre-offer identification would allow applicants to self-identify for the purpose of benefitting from potential affirmative action in a hiring decision, the contractors' invitation for this purpose would not violate the ADA.” In other words, asking for this information would obviously benefit disabled applicants as they would enjoy the fruits of affirmative action.

Further, the EEOC also stated in the letter that “any employer may invite applicants or employees to voluntarily self-identify as individuals with disabilities for affirmative action purposes, whether pursuant to a federally-mandated affirmative action requirement such as Section 503 or a voluntarily adopted program.”  There is no law prohibiting discrimination against non-disabled.  Therefore, any employer could establish a voluntary affirmative program to increase the hiring of individuals with disabilities. 

President Obama issued Executive Order (EO) 13548 Increasing Federal Employment of Individuals with Disabilities in 2010.  In 2016 the federal government reported that 14.41% of the overall workforce, or 264,844 employees, are reported as individuals with disabilities.  More specifically, the federal government hired 109,575 part-time and full-time career employees with disabilities.  The EEOC then issued a rule on January 3, 2017 that agencies of the federal government must adopt employment goals for individuals with disabilities, with sub-goals for individuals with targeted disabilities.  The goals are 12% for each agency and 2% for the sub-goal.

But just because it is allowed, affirmatively pushed, and enthusiastically embraced by the federal government does not mean that employers should ask an applicant to self-identify prior to a hiring decision.  It is a dual edged sword.

The EEOC has been very aggressive pursuing discrimination claims for failure to hire individuals with disabilities.  In a recent case, EEOC settled with Covenant Transport when it failed to hire an applicant who, post offer, could not provide a urine sample for drug screening due to a medical condition.  He did offer to provide a blood test, but that was rejected by the company.  In another case, Graceworks Lutheran Services refused to hire an applicant who applied for a site manager position at an apartment complex that gives preference to deaf residents because she is deaf and cannot speak. 

Therefore, if employers wish to pursue voluntary affirmative action with respect to individuals with disabilities, they should first analyze their application processes for requirements that indirectly hinder disabled applicants from applying.  This includes reviewing the career website and ensuring that applicants with disabilities have an ability to request an accommodation for doing the initial application (not just email/online).  Second, employers need to control the flow and access of self-identification data.  Unless there is a reason to know, the data should be restricted and encrypted. Decisions should be made on the qualifications to perform the job functions.  Finally, employers should ensure all hiring personnel, from recruiters to hiring managers, are trained on the ADA.  

Source: opm.gov 10/27/17, Kissinger & Fellman, P.C. 9/14/16, HR Morning 1/24/13

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