From the desk of Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
Many employers are required by law to have affirmative action programs to hire people with disabilities, for example federal agencies and federal contractors. Other employers voluntarily have affirmative action programs. For these latter employers, one of the questions that comes up is whether they can give preference to applicants with disabilities without violating the Americans with Disabilities Act (ADA).
There are two main ADA issues related to this question. The first issue is whether giving preference to people with disabilities is discrimination against people without disabilities under the ADA. The answer is no; there is no reverse discrimination under the ADA, meaning people without disabilities cannot claim discrimination under the ADA if an employer gives preference to a person with a disability. The following is an excerpt from a guidance letter from the Equal Employment Opportunity Commission (EEOC):
Favoring an individual with a disability over a non-disabled individual for purposes of affirmative action in hiring or advancement is not unlawful disparate treatment based on disability, and therefore does not violate Title I of the ADA.(1) Both the text of the ADA itself, as clarified by the ADA Amendments Act of 2008, and the EEOC’s implementing regulations explicitly state that an individual without a disability cannot bring a claim of discrimination under the ADA. See 42 U.S.C. Section 12201(g).
The second main issue related to giving preference to applicants with disabilities is whether employers can ask applicants to disclose a disability; if employers are going to give preference to applicants with disabilities, they will need to know that an applicant has a disability. However, the general rule under the ADA is that employers cannot ask job applicants whether they have a disability. There is an exception for affirmative action hiring, but employers must adhere to certain rules. The following information is from formal EEOC guidance:
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.
In some cases, having a disability is a qualification standard for the job, for example when an employer wants to hire someone with a specific disability to be a peer counselor for others with the same disability. The following is an excerpt from an informal EEOC guidance letter about an employer wanting to only hire someone with a mental health condition to work as a peer counselor for others with mental health conditions:
Questions about whether a job applicant has received mental health services are “disability-related inquiries” under the ADA because they are likely to elicit information about a disability, and as such are ordinarily prohibited prior to a conditional offer of employment. However, a covered employer “may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.” It would appear that in the narrow and unique instance of a peer self-advocate program specifically designed for mental health services consumers to assist one another, the job functions actually entail using one’s own background as an individual with a disability who shares the client’s mental health services experience and can thus provide peer-to-peer training on self-advocacy skills. For a peer self-advocate position, inquiring about the nature of the applicant’s experience as a consumer of mental health services would thus be necessary in order to know if the applicant is qualified to provide peer counseling to individuals with disabilities in like circumstances. Therefore, pre-offer inquiries about prospective advocates’ mental health services experience could be permissible, because the questions are about the ability to perform job-related functions.
And finally, for federal contractors who have an obligation to practice affirmative action under section 503 of the Rehabilitation Act, but who are concerned about asking applicants to disclose, the EEOC has a guidance letter that discusses self-identification requirements under section 503 and medical inquiry rules under the ADA.