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
November 7, 2000
This letter responds to your inquiry concerning whether a proposed regulation from the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) conflicts with guidance from the Equal Employment Opportunity Commission (EEOC) regarding application of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq. Specifically, you have asked whether the OFCCP's proposed regulation under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), requiring federal contractors and subcontractors to request information from applicants as to their status as "special disabled veterans," set forth at 65 Fed. Reg. 59,684, 59,690-91 (proposed October 5, 2000), conflicts with the ADA's ban on seeking disability-related information from applicants before a job offer has been made.
As you are aware, the ADA prohibits employers from making disability-related inquiries of applicants prior to a conditional offer of employment. See 42 U.S.C. § 12112(d)(2); 29 C.F.R § 1630.13(a), 1630.14(b). The EEOC has stated, however, that an employer may collect disability-related information for affirmative action purposes, where the employer meets the following requirements:
• the employer is undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities (that is, the law requires some action to be taken on behalf of such individuals); or
• the employer is voluntarily using the information to benefit individuals with disabilities.
EEOC's ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations.
The VEVRAA is a law that requires covered contractors and subcontractors to take "affirmative action to employ and advance in employment qualified special disabled veterans . . . ." 38 U.S.C § 4212(a). Therefore, OFCCP's proposed regulation, which implements the VEVRAA affirmative action mandate, meets the first requirement noted in the Commission's ADA Enforcement Guidance.
Moreover, the proposed OFCCP regulation also meets the second requirement set forth in EEOC's Guidance, that where an employer seeks applicant self-identification of disability status, it must do the following:
• state clearly on any written questionnaire, or state clearly orally (if no written questionnaire is used), that the information requested is used solely in connection with its affirmative action obligations or efforts; and
• state clearly that the information is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA.
The OFCCP proposed regulation requires federal contractors and subcontractors to make clear that the collection of information from special disabled veterans is both voluntary and for affirmative action purposes:
The invitation must state that the information is voluntarily provided, that the information will be kept confidential, that disclosure or refusal to provide the information will not subject the applicant to any adverse treatment, and that the information will be used only in accordance with the regulations implemented under 38 U.S.C. 4212 [requiring affirmative action].
Annual Report from Federal Contractors, 65 Fed. Reg. 59,684, 59,690-91 (proposed October 5, 2000) (to be codified at 42 C.F.R. § 61-250.12).
Based on the foregoing, we find no conflict between the ADA and OFCCP's proposed regulatory requirement for self-identification of special disabled veterans during the application process.
Peggy R. Mastroianni
Associate Legal Counsel
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