The U.S. Equal Employment Opportunity Commission

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.


October 15, 2001

ADA: WORK OPPORTUNITY TAX CREDIT

Re: Federal Work Opportunity Tax Credit

Dear :

This is in response to your July 31, 2001 letter concerning the relationship between the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (ADA), and the Federal Work Opportunity Tax Credit (WOTC), set forth in section 51 of the Internal Revenue Code, 26 U.S.C. § 51. Specifically, you ask whether your organization may prepare and use an on-line version of IRS Form 8850 that would require applicants to answer whether they met the requirements of each separate WOTC qualification category.

The WOTC identifies eight target groups for whom an employer receives a tax credit, including one that may result in an employer's receipt of disability-related information. Specifically, an employer may be entitled to a WOTC benefit if it hires an applicant who meets the definition of "vocational rehabilitation referral." A vocational rehabilitation referral is an

individual who is certified by the designated local agency as -

(A) having a physical or mental disability which, for such individual, constitutes or results in a substantial handicap to employment, and

(B) having been referred to the employer upon completion of (or while receiving) rehabilitative services pursuant to - (i) an individualized written plan for employment under a State plan for vocational rehabilitation services approved under the Rehabilitation Act of 1973, or (ii) a program of vocational rehabilitation carried out under chapter 31 of title 38, United States Code.

26 U.S.C. § 51(d)(6).

To apply for the WOTC, an employer must complete IRS Form 8850 and the Department of Labor (DOL) Individual Characteristics Form (Form 9061) (copies attached). The law further requires that an employer obtain information about an applicant's WOTC-status before making an offer of employment in order to qualify for the tax credit. See id. § 51(d)(12). The IRS Form 8850 is structured to ask a broadly-framed question that includes reference to "vocational rehabilitation referral" as one of several target groups; a "yes" or "no" answer to this question does not indicate to which of the groups the applicant belongs. By contrast, DOL Form 9061 includes separate questions regarding the applicant's membership in the different WOTC categories and asks applicants to state "yes" or "no" in response to each. One question asked on DOL Form 9061 is whether the applicant "is receiving or has received Rehabilitation Services through a State Rehabilitation Services program or the Veterans Administration" (the rehabilitation services inquiry). IRS Form 8850 requires the applicant to affirm that s/he "completed this form on or before the day a job was offered . . . ." The DOL Form 9061 states that it is to be "used in conjunction with the IRS Form 8850."

Under the ADA, employers are barred from making pre-offer disability-related inquiries. 29 U.S.C. § 12112(d)(2)(A). As the EEOC has explained in its ADA Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations, a disability-related inquiry is a question that is "likely to elicit information about a disability." Enforcement Guidance at 4 (emphasis in original). The Guidance further states, however, that "if there are many possible answers to a question and only some of those answers would contain disability-related information, that question is not 'disability-related.'" Id.

Assuming the rehabilitation services inquiry poses a disability-related inquiry, EEOC's ADA regulation provides for an "other Federal laws defense." Specifically, the regulation states, in pertinent part, that "[i]t may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, . . . ." 29 C.F.R. § 1630.15(e). In its 1992 Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act, the EEOC noted that predecessor statutes to the WOTC, which DOL administered, necessitated pre-offer disability-related inquiries about job applicant eligibility status for the benefits that these statutes offered and that "[t]hese inquiries would not violate the ADA." Technical Assistance Manual at V-9. Under the WOTC, employers similarly must know whether an applicant falls into a WOTC eligibility category before making an offer of employment in order to receive the tax credit. DOL has made the apparent determination that for purposes of administering this law, employers should ascertain into which of the eligibility categories each applicant fits before extending a job offer. The other Federal laws defense thus would apply to an employer's use of DOL Form 9061 that includes the rehabilitation services inquiry. Similarly, the defense would be available to an employer using a non-Federal form that posed the rehabilitation services inquiry for the purpose of determining applicant eligibility for the WOTC.

Recognition that the rehabilitation services inquiry on DOL Form 9061 or similar private sector form falls within the other Federal laws defense does not, however, extend ADA protection to employers who misuse the information that these forms provide. An employer using a form that includes, among other things, a rehabilitation services inquiry must understand that it may be obtaining disability-related information along with the WOTC information. Such information may not be used in a manner that is adverse to the applicant.

We hope this information is helpful to you. Please note that this is not an official opinion of the Equal Employment Opportunity Commission. If you have any questions or would like to discuss this or any related matter in more detail, you may reach me at 202-663-4638, or Carol R. Miaskoff, Assistant Legal Counsel, at 202-663-4645.

Sincerely,

Peggy R. Mastroianni
Associate Legal Counsel


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