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:
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.]
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