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State Personnel Management Manual
Advisory Memorandum # 93-04

0400 Affirmative Action
May 1993

TO: Department and Agency Personnel and Affirmative Action Officers

FROM: Candice T. Carter, Executive Deputy Commissioner

Americans with Disabilities Act: Collection of Information Concerning Disabilities from Applicants

Title I of the Americans with Disabilities Act (ADA) prohibits employers from making inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature and severity of such disability. (42 U.S.C. §12112(d)(2)(A)). The Interpretive Guidance on Title I of the Americans with Disabilities Act published by the Equal Employment Opportunity Commission, notes that collecting information and inviting individuals to identify themselves as individuals with disabilities as required to satisfy the affirmative action requirements of section 503 of the Rehabilitation Act is not restricted. (Appendix to 29 CFR Part 1630, §1630.14(b)). Section 503 of the Rehabilitation Act mandates that an affirmative action provision be included in federal contracts in excess of $10,000.00.

We have been advised that many agencies continue to request applicants to provide information as to whether they are disabled and as to the nature of their disability on a survey of applicants form. It appears from the language of the ADA and the Interpretive Guidance of the EEOC, that such data collection may be unlawful.

Until further guidance is provided by the EEOC regarding this issue, this Department, together with the Office of Advocate for the Disabled, is recommending that you discontinue collection of information from applicants regarding the existence and/or nature of a disability, even if applicants are requested to self-identify on a voluntary basis, unless you are otherwise required to do so under section 503.

Agencies' affirmative action obligations under Executive Order No. 6 remain unchanged and, in furtherance thereof, agencies are expected to aggressively pursue their efforts to hire and promote persons with disabilities through community outreach and recruitment.

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