This issue is beginning to give me some heartburn. I’ve had dozens of inquiries this past year about the new “OFCCP’s New Regulation to Improve Job Opportunities for Individuals with Disabilities (see http://www.dol.gov/ofccp/regs/compliance/section503.htm). The specific regulation that’s causing the indigestion is a portion of the “Invitation to Self-Identify” as IWDs (individuals with disabilities) that require federal contractors to “invite” applicants for employment to self-identify at the pre-offer and post-offer stages, and to “invite” existing employees to self-identify every five years. It is true that a federal district court has legitimized the OFCCPs authority to write the regulations (see Associated Builders & Contractors v. Shiu [30 F.Supp.3d 25 (2014)]. However, the authority to write does not translate into ease of interpretation or enforcement.
As a starting point, let’s begin with what it means to be disabled within the meaning of the Rehabilitation Act of 1973 (Rehab-73) or the ADA. There are two parts. First, the individual must have a (1) physical or mental impairment that substantially limits a major life activity, (2) a record of impairment, or (3) is falsely regarded as having an impairment. Let’s focus on claims based on (1) current disabilities. Even if the individual satisfies the first part (current physical or mental impairment that substantially limits a major life activity), that individual must also satisfy a second requirement – to perform all essential functions of a job with or without reasonable accommodation.
The biggest problem I have with the self-invitation is that most losses by plaintiffs in federal court are due to their failure to prove they are disabled within the meaning of Rehab-73 or the ADA. These losses are primarily due to the failure to prove that the impairment substantially limits a major life activity.
Given that federal courts have struggled with the definition of disability, how is an individual supposed to know if they are disabled and qualified within the meaning of the law. So what does it mean, for example, if 75% of the applicant pool claim they are IWDs? What does it mean if 0% self-identify? My answer is zilch. There’s no way to know who is truly disabled or not disabled within the meaning of the law given such anonymous information. Given that pre-offer inquiries into physical or mental impairments are prohibited (unless an applicant has an obvious condition or the applicant requests reasonable accommodations), there’s no way to know that any of the 75% that self-identify truly are disabled within the meaning of the law or that any of the 0% who refuse to self-identify are not disabled within the meaning of the law.
One other thing … the OFCCP has promised not to use self-identification information for purposes of adverse impact analyses and some I have spoken with are skeptical. To them I say how can such data make for a valid adverse impact claim? Adverse impact refers to a test or other selection procedure that falls more harshly on one group than another. The whole point of Rehab-73 and the ADA is to treat individuals as separate cases. So, if individuals have the same impairment (e.g., hypertension, diabetes, dyslexia, etc.), each one must show how the impairment substantially limits a major life activity his or her life.
One inquiry I received relates to rules that prohibit individuals who take insulin from truck driving jobs. Obviously, this adversely impacts diabetics; in fact it regards them all as being disabled within the meaning of the law. True – the requirement must be job related. However, if it is, the next step is to determine if there are reasonable accommodations to overcome the barrier not whether there are alternatives with less or no adverse impact (as in Title VII).
In summary, I don’t know what the OFCCP is going to do with the data. Obviously, contractors will have to collect and report it. The only recommendation is to do what most, if not all contractors are doing anyway --- state they are equal opportunity employers who invite all individuals to apply for work, regardless of their race, religion, national origin, age, or disability.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
