EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Disability-Related Inquiries and Medical Examinations; Hiring Discrimination
August 4, 2000
This is in response to your letter dated May 2, 2000, requesting a review of your employment policy that allows blind and visually impaired applicants to submit a record of unpaid experience in place of paid work experience when applying for entry level positions. You state that the Texas Commission for the Blind is a vocational rehabilitation agency, and that its mission is to prepare blind and visually impaired people to enter or renter the workforce and to live independently. You also state that the hiring supervisor is required to select the best qualified applicant, but that the policy allows some blind or visually impaired applicants to gain valuable job interviewing experience and additional confidence.
You ask whether this policy has an adverse impact on other protected classes. (1) Adverse impact theory does not apply to this situation. Adverse impact is based upon a facially neutral employment policy that applies to every applicant, but which disproportionately excludes members of protected groups. In this case, the employment policy, on its face, treats blind and visually impaired applicants differently by allowing them to submit a record of unpaid experience in place of paid work experience when applying for entry level positions. Therefore, this policy should be analyzed under a disparate treatment theory of discrimination.
The policy would not constitute disparate treatment under either Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act, since it does not disadvantage individuals on the basis of race, color, sex, national origin, religion, or age. Furthermore, a person without a disability would not be able to challenge the policy under title I of the ADA, since the ADA protects only qualified individuals with disabilities.
Assuming an individual with a disability other than blindness could challenge this policy under the ADA, you would have to articulate a legitimate, non-discriminatory reason for the policy. A legitimate non-discriminatory reason would include a valid affirmative action program.
We hope that this information is helpful to you. Please note, however, that this letter is an informal discussion of the issue that you raised and does not constitute an official opinion or interpretation of the Commission.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
1. You should also note that your policy implicates those provisions of the Americans with Disabilities Act ("ADA") that prohibit pre-employment disability-related inquiries. Generally, an employer may not ask disability related questions (i.e., questions likely to elicit information about a disability), until after it makes a conditional job offer to the applicant. 42 U.S.C. 12112(d)(2); 29 C.F.R. 1630.13(a), 1630.14(b). Inviting blind or visually impaired applicants to submit a record of non-paid experience when you do not invite other applicants to do so constitutes a disability-related inquiry. However, an employer may ask applicants to self-identify as an individual with a disability for a affirmative action program if it is undertaking affirmative action because of a federal, state, or local law that requires affirmative action for individuals with disabilities or if the employer is voluntarily using the information to benefit individuals with disabilities. If an employer asks applicants to self-identify for affirmative action purposes, it should state clearly on the application form that the information is: 1) used solely for affirmative action purposes; 2) voluntary and that refusal to provide it will not subject the applicant to any adverse treatment; 3) confidential; and 4) used only in accordance with the ADA. To insure confidentiality, the information must be on a separate form from the application. See EEOC Enforcement Guidance, " Pre-Employment Disability-Related Questions and Medical Examinations," pp-12-13, October 10, 1995. This guidance is available on the Commission's website, www.eeoc.gov.
This page was last modified on April 27, 2007.
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