Confusion Reigns with New Requirement that Federal Contractors Invite Individuals with Disabilities to Self-Identify

Many federal contractors know that the Final Rules amending regulations that implement Section 503 of the Rehabilitation Act require them to invite Individuals with Disabilities (IWDs) to self-identify during the application process. This solicitation may take place at the same time a contractor asks for information relating to race, ethnicity and gender. For applicants who opt not to self-identify, contractors should make a visual identification based on clearly visible conditions (e.g. applicant uses a cane, is hearing impaired) or disclosure (e.g. applicant asks for a reasonable accommodation prior to or during an interview). This is not all, however. Contractors must also invite IWDs to self-identify: a) post-offer and prior to the first day of work; b) during the first plan year following implementation of the new regulations; c) every five years thereafter; and d) annually remind employees that they can update their disability status at any time.

The OFCCP’s stated purpose for these new requirements is to enable contractors to track the number of IWDs who apply for jobs and to use this information to assess the effectiveness of their outreach and recruitment efforts. To that end, contractors must also collect and retain data regarding recruiting and hiring of IWDs and use the information to document and annually update several quantitative comparisons regarding the number of IWDs who apply and are hired by the contractor. The OFCCP will be providing a form for contractors to use to gather and compile this information, and has already created a proposed form.

The federal contractor community has been in a state of uproar since this new requirement became a possibility. First and foremost, contractors have been concerned that inviting IWDs to self-identify could trigger lawsuits alleging ADA violations. Previously, contractors did not solicit such information for this very reason. The OFCCP has obtained an opinion letter from the EEOC, stating that adhering to another federal law, particularly in light of the ADA’s exceptions, which include adherence to affirmative action obligations, even though it may prompt a disclosure of one’s disabled status cannot violate Title I of the ADA. (Oddly enough, this letter flies in the face of comments by EEOC Commissioner Victoria Lipnic at the National Industry Liaison Group annual conference earlier, in July, in which she opined that she “couldn’t imagine” the EEOC authorizing such a requirement.) A copy of that letter is available here. To many contractors, however, such a letter is small consolation, if any. The EEOC position does not stop rejected applicants or disgruntled employees from claiming that the contractor used information about his/her disability to discriminate against him or her. Even if a contractor were ultimately to achieve a dismissal of any such claim, the contractor would still be compelled to expend potentially exorbitant amounts of time, money and other resources defending the claim and obtaining a dismissal.

As if these concerns were not enough, the language in the proposed form, available here, is inconsistent with that of the federal regulations, setting the stage for even more confusion, if not turmoil. The National Industry Liaison Group (NILG) has reviewed the proposed form and in a letter dated October 24, 2013 conveyed its concerns to the OFCCP. Here are just three items the NILG pointed out in its letter to the OFCCP:

1. In the first two sections of the Proposed Form, the definition of “disability” differs from the statutory definition. The difference, while subtle, is important. The NILG in its letter to the OFCCP suggested that the language on the form mirror that in the statute. Similarly, while the new regulation says contractors must invite applicants/employees to self-identify as an IWD in accordance with 41 CFR 60-741.42(a)(1) and (b)(1) as well as 41 CFR 60-741.42c, the form uses language different from that contained in these regulations. This difference can lead to an unnecessary and unintentional expansion and/or limitation on the definition of disability, creating unnecessary confusion in the process. NILG has therefore requested that the language defining “disability” mirror the regulatory language.
2. The form requires contractors to invite employees to self-identify every year. This is significant because it requires more than the regulation now requires. Contractors under the new Final Rule need only invite self-identification in the first year the contractor becomes subject to this requirement, and then in five-year intervals thereafter. The NILG has requested modification of this part of the form to conform to actual regulatory requirements.
3. The form states that “Federal law requires us to provide reasonable accommodations to qualified individuals with disabilities to ensure equal employment opportunity for all.” The form does not mention that the law specifically does not require accommodations that impose undue hardship. To that extent, the language is incorrect, and implies requirements that do not exist.

The totality of this situation appears to put federal contractors between a rock and a hard place. Contractors can either comply with the new requirements, risking disability discrimination allegations, or refrain from inquiring about disability status in the pre-offer stage and face further enforcement ramifications or even debarment by the OFCCP. Contractors may also have to use a form whose language is inconsistent with the language of the very regulations it is supposed to help enforce. Are there any alternatives for contractors not happy with these options? Here are some steps contractors can take to better protect themselves:

1. If at all possible designate one person for collecting and ensuring completion of the self-identification form who does not play any part in the decision-making process.
2. Keep the form separate from all other documents relating to the applicant, and do not give access to anyone with authority to hire or make other employment-related decisions.
3. Include with the form a statement informing the applicant/employee that you are a federal contractor and, as such, are required to invite IWDs to self-identify, and that such information is kept separate from that used to make employment decisions and will not be used to make any such decisions. Consider including language that per the EEOC and OFCCP such a practice has been held not to violate Title I of the ADA.
4. When in doubt, consult with a competent counsel!

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