Hiring Disabled Vets: The EEOC Enters the Fray
It appears that the employment of disabled veterans has become the top priority of both the Department of Labor and the EEOC. It seems there is a competition among the federal agencies to show which is more supportive of disabled vets. DOL, through the offices of the OFCCP, has issued controversial Proposed Regulations for significantly enhanced affirmative action entitlements for individuals with disabilities. Now the EEOC has issued a new Guidance: Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers.
For the “policy wonks” among us, no one knows just what legal status a Guidance has. It is nothing more than a statement by an agency explaining its own policy and views. No court is required to honor it (give it “deference”) but employers are forewarned that if sued on this issue, they will be forced to take the matter to court to fight it out; a very expensive proposition.)
In its Guidance, the EEOC makes clear that all the expanded provisions of the expanded ADAAA apply to disabled veterans, first to qualify them as “disabled” and then establish them as deserving of a reasonable accommodation. Then, the EEOC “pushes the envelope” about as far as possible.
First, the EEOC re-states its controversial assertion that employers can ask disabled veterans (and all individuals with disabilities) to voluntarily self-identify in the pre-offer context for affirmative actions purposes. The basis for this is nothing more than another EEOC Guidance which states that this pre-offer inquiry is licit if an employer:
- is undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities (that is, the law requires some action to be taken on behalf of such individuals); or
- the employer is voluntarily using the information to benefit individuals with disabilities.
As you surely noticed, that second proviso includes just about everyone, whether under an affirmative action law or Executive Order or not.
Then, the EEOC advises that private sector employers can prefer disabled veterans over other qualified candidates because the ADA both prevents discrimination against individuals with disabilities and permits affirmative action on their behalf. For the EEOC, “affirmative action” becomes an active preference.
Many questions remain despite the casual manner in which these positions are offered. Pre-offer inquiries about disability status have been denounced even and especially by the EEOC for decades. This latest position about-face is sudden and by no means welcomed by all in the disability community and is questioned by many human resources and employer groups. And although the EEOC may think affirmative action means a preference, the qualified candidates not preferred, many of whom may be in other protected groups, are sure to have a different opinion.
When OFCCP issued is Proposed Regulations on disabled applicants, it was self-described as a “sea change” in affirmative action. It looks like the EEOC has jumped in the same ocean.