When Cheryl Behymer, an attorney at Fisher & Phillips in Columbia, S.C., heard Office of Federal Contract Compliance Programs (OFCCP) Director Patricia Shiu talk about a proposal to force federal contractors to extend a preoffer invitation to applicants to self-identify as having a disability for affirmative action purposes, she thought, “Shiu is new; surely this will not go through.”
But it did in an Aug. 27, 2013, OFCCP final rule implementing Section 503 of the Rehabilitation Act, which requires federal contractors to provide affirmative action to individuals with disabilities and not discriminate against them based on disability.
Preoffer self-identification among federal contractors now has the OFCCP’s imprimatur, but Behymer told SHRM Online it is “a horrible idea.” Federal contractors with this knowledge will now have to deal with applicants who were not hired but who self-identified as disabled and claim that’s why they weren’t hired, she said.
For years the Americans with Disabilities Act (ADA) has prohibited employers from asking candidates about disabilities before making a job offer. Why change course with federal contractors when the prohibition remains in place for other employers?
The OFCCP heard this concern from other federal contractors during the notice-and-comment period for the proposed rule. But it discounted it out of hand, saying: “OFCCP believes that concerns regarding the possibility of a conflict with the ADA or related guidance are based on an incorrect reading of the ADA and its regulations. As discussed in the NPRM [Notice of Proposed Rulemaking], the ADA and Section 503 regulations specifically permit the contractor to conduct a pre-offer inquiry about disability if it is made pursuant to a federal, state or local law requiring affirmative action for individuals with disabilities, such as Section 503. Furthermore, EEOC [Equal Employment Opportunity Commission] has clearly stated that collecting information and inviting individuals to identify themselves as individuals with disabilities as required to satisfy the affirmative action requirements of Section 503 of the Rehabilitation Act is not restricted by the ADA or EEOC’s implementing regulations. EEOC has reiterated this exception to the prohibition on pre-offer inquiries about disability in subregulatory technical assistance guidance.”
In addition, EEOC Legal Counsel Peggy Mastroianni wrote Shiu a letter on Aug. 8, 2013, stating that “for several independent reasons, compliance with a U.S. Department of Labor (DOL) regulation requiring contractors to invite applicants pre-offer to voluntarily self-identify as individuals with disabilities for affirmative action purposes cannot violate Title I of the ADA.”
Under the ADA, no employer is liable for a violation of the act when it takes an action that’s required by other federal law, Mastroanni explained. And the agency has stated in formal policy, “and repeated in numerous policy and technical-assistance materials ever since, 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.”
ADA regulations also allow organizations to comply with any laws that afford individuals with disabilities equal or greater rights. “Because complying with a DOL rule requiring contractors to invite voluntary preoffer identification would allow applicants to self-identify for the purposes of benefiting from potential affirmative action in a hiring decision, the contractors’ invitation for this purpose would not violate the ADA,” she said.
Even if federal contractors understand these distinctions, that doesn’t mean that applicants will, pointed out Angelique Lyons, an attorney at Constangy, Brooks & Smith in its Tampa and Port St. Lucie, Fla., offices. Asking an applicant whether he or she has disabilities before extending a job offer “flies in the face of what all employers have done in the past,” she remarked. The purpose of not asking for this information ahead of an offer is that if a company does not have information on disabilities before it hires, it can’t use it in a hiring decision.
“If the employer has that information, there is the risk that an unsuccessful applicant will mistakenly assume an employer used that information” in its hiring decision, Lyons continued. The EEOC letter that says inviting people with disabilities to self-identify preoffer doesn’t violate the ADA “does not eliminate the fundamental hesitation employers rightly have to gather protected information.”
The person gathering this information about an applicant may be in the same office as the HR -professional participating in the hiring decision, which makes medium-size federal contractors particularly vulnerable to ADA lawsuits, Lyons added. “My concern is about the perception by unsuccessful applicants. Perceptions often lead to lawsuits.”
Alissa Horvitz, an attorney at Littler in Washington, D.C., had similar concerns. “Many of our smaller to medium-sized employers do not segregate information away from anyone in the decision-making process,” she said. “The same HR person who collects, tracks and reports data is the same person who makes a decision.” The EEOC letter will “not reassure those compliance officers,” she predicted.
OFCCP officials announced in an Aug. 30, 2013, webcast that a self-identification form will soon be available on the OFCCP’s website, according to Horvitz. The supposedly simple form will be mandatory to use, she added.
The form will not ask people what kind of disability they have, how long they’ve had it or any other information beyond whether they have a disability.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
OFCCP Backs Away from Rigid Affirmative Action Requirements for People with Disabilities, SHRM Online, August 2013