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State Personnel Management Manual
Advisory Memorandum # 94-04

0400 Affirmative Action
June 29, 1994

TO: Department and Agency Personnel/Affirmative Action Officers

FROM: Candice T. Carter, Executive Deputy Commissioner

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

This is an update to Advisory Memorandum #93-04 issued in May 1993, in which this department, together with the Office of Advocate for the Disabled, recommended that you discontinue collection of information from applicants regarding the existence and/or nature of a disability pending further guidance by the Equal Employment Opportunity Commission (EEOC) regarding their position on the lawfulness of the collection of such information under the Americans with Disabilities Act (ADA).

The EEOC recently issued Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act of 1990, for interim use by EEOC investigators. The Guidance notes that the ADA does not prohibit affirmative action for persons with disabilities and that Congress, in enacting the ADA, indicated that an employer should be allowed to ask applicants to voluntarily self-identify if the employer actually provides affirmative action for such individuals with disabilities. In the Guidance, the EEOC states its position that an employer may invite applicants at the pre-offer stage to voluntarily supply disability-related information needed by the employer to provide affirmative action if the employer is actually undertaking voluntary affirmative action for individuals with disabilities.

The EEOC advises that their investigators will examine whether the employer is using the information to actually benefit individuals with disabilities with respect to employment opportunities (e.g., job offers, promotion, etc.). Additionally, the Guidance provides that if the employer invites applicants to voluntarily self-identify, the employer must take the following steps:

  1. state clearly and conspicuously on any written questionnaire used for this purpose, or state clearly orally (if no written questionnaire is used), that the specific information requested is intended for use solely in connection with its affirmative action efforts; and
  2. state clearly and conspicuously that the specific 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 applicant to any adverse treatment, and that it will be used only in accordance with the ADA.
  3. While we reevaluate our earlier recommendation in light of the clarification by the EEOC of its position, this department and the Office of Advocate for the Disabled request that you not resume collection of such information until we provide you with further guidance. We would caution that the position of the EEOC was set forth in an internal notice which is subject to challenge. While the courts give deference to the administrative interpretation of agencies with the responsibility for enforcement of a federal statute, the courts are not bound by such interpretation.

One copy of EEOC Notice No. 915.002, Enforcement Guidance: Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act of 1990, dated May 19, 1994, is enclosed. [Only for Personnel offices and Affirmative Action offices.]

[Note: Not available here]

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