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:
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: