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Affirmative Action and Disability: What Can Employers Ask?

Consultants' Corner: Volume 5, Issue 5

From the desk of Linda Carter Batiste, J.D., Principal Consultant

The Americans with Disabilities Act (ADA) places restrictions on what disability-related questions employers can ask applicants as well as current employees. Employers who recognize the value of having employees with disabilities and want to actively recruit and retain people with disabilities are confused about how these restrictions affect their affirmative action efforts – if they are going to give preference to someone with a disability, they have to know who actually has a disability. So the question becomes: can employers ask applicants and employees to disclose their disability status without violating the ADA's restrictions on medical inquiries?

The good news is that there is a way that employers can practice affirmative action without violating the ADA. According to guidance from the Equal Employment Opportunity Commission (EEOC), an employer may invite applicants and employees to voluntarily self-identify for purposes of the employer's affirmative action program if:

  • 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.

Employers should remember that state or local laws sometimes permit or encourage affirmative action. In those cases, or if an employer is voluntarily adopting an affirmative action program independent of any law, an employer may invite voluntary self-identification only if the employer uses the information to benefit individuals with disabilities. Also, the invitation to self-identify must be necessary in order to provide the benefit.

Where an employer seeks self-identification of disability status, it must do the following:

  • State clearly and conspicuously 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 (or how disclosing will benefit the person with the disability); 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 person to any adverse treatment, and that it will be used only in accordance with the ADA.

If an employer seeks voluntary self-identification from applicants, it must be on a form that is kept separate from the application.

So for any employers who want to practice affirmative action, go ahead and ask about disability, but remember to follow these simple guidelines and then reap the benefits of having more employees with disabilities in your workplaces!

For more information, download: EEOC's