PREFERENTIAL HIRING BASED ON DISABILITY STATUS MAY BE A RISKY MOVE

On June 18, OFCCP updated the FAQs for Section 503 of the Rehabilitation Act (Section 503). One notable addition pertains to preferential hiring of individuals with disabilities:

Under the new regulations, must a contractor hire an individual with a disability who is not the best qualified but who meets the minimum requirements of the job for the purposes of affirmative action?

No. The Section 503 regulations do not require contractors to hire an individual who is not qualified for the position being sought. Nor do they require contractors to hire a less qualified candidate instead of the best qualified candidate for the purposes of affirmative action. However, it would not violate Section 503 for a contractor to select a person with a disability over a candidate without a disability who was equally or better qualified, so long as that selection was not based on a prohibited factor such as race, gender or ethnicity.

It is true that the updated regulations permit voluntary affirmative action including a disability-related hiring preference, as found in § 60-741.46:

(2) Disability-related information from the applicant and/or employee self-identification request required by § 60-741.42 may be used to identify individuals with disabilities who are eligible to benefit from a voluntary affirmative action program for employees with disabilities.

For a contractor wanting to “do the right thing,” it may be tempting to preferentially hire individuals with disabilities, both to provide increased opportunities and also to reach utilization targets. However, we have concerns with allowing hiring decision makers to have access to this information during the selection process, because it may unfortunately be exposing these well-intentioned contractors to risk.

We suggest that contractors treat data about protected class status as confidential, and avoid making any personnel decisions based on this information. Race and sex information is typically obtained using an application “tear-off sheet” that does not accompany the application when it is reviewed by hiring managers. The updated regulation suggests that this is the best way to handle disability data as well, as seen in § 60-741.42:

(a) Pre-offer. (1) As part of the contractor's affirmative action obligation, the contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability as defined in § 60-741.2(g)(1)(i) or (ii). This invitation shall be provided to each applicant when the applicant applies or is considered for employment. The invitation may be included with the application materials for a position, but must be separate from the application.

Additionally, in § 60-741.23:

 (d) Confidentiality and use of medical information.
(1) Information obtained under this section regarding the medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, as amended, shall be provided relevant information on request.
(2) Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part. 

And in the Preamble:

Requiring contractors to invite pre-offer self-identification will help fill this void. Lastly, OFCCP points out that, generally, self-identification information will be obtained by, and reside with, Human Resources (HR) offices and will not be provided to interviewing, testing, or hiring officials, as it is confidential information that must be kept separate from regular personnel records. This will help ensure that these officials do not, in fact, have knowledge of which applicants have chosen to self-identify as having a disability.

Contractors using disability information to make selection decisions may have to defend themselves against allegations of discrimination when they fail to hire individuals with a disability, and additionally may run afoul of the Americans with Disabilities Act. These contractors should also be aware that a description of the voluntary affirmative action program must be included in the AAP along with an annual report evaluating the effectiveness of the program.

Our recommendation for contractors wanting to provide additional opportunities for individuals with disability is to engage in outreach and recruitment activities and to have a reasonable accommodation policy in place to try to eliminate barriers. However, once people have gone through the application process, you should hire the most qualified candidate without reference to protected class membership.

By Dave Sharrer, M.S., Associate Consultant, and Mike Aamodt, Ph.D., Principal Consultant, DCI Consulting Group

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