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EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
September 17, 2015
Dear ___:
This responds to your e-mail inquiry dated August 12, 2015, about whether it would violate the Rehabilitation Act for vocational rehabilitation (VR) agencies to comply with requests from contractors under the Javits-Wagner-O'Day Act (JWOD) to provide in-depth information on the candidates that the VR agencies refer, including all diagnoses of the candidates and the extent of their limitations and/or restrictions.
Background
The rules governing whether and how an employer may invite applicants to voluntarily self-identify as individuals with disabilities are set forth in the EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations (1995), www.eeoc.gov/policy/docs/preemp.html, which explains that an employer may invite applicants to voluntarily self-identify for purposes of the employer's affirmative action program if: (1) the employer is undertaking affirmative action because of a federal, state, or local law, including a veterans' preference law, that requires (as opposed to merely permits or encourages) affirmative action for individuals with disabilities, meaning the law requires some action to be taken on behalf of such individuals; or (2) the employer is voluntarily using the information to benefit individuals with disabilities. (1) In general, an employment agency, such as a temporary staffing agency or a recruitment company or organization, is covered by the laws we enforce if the agency regularly refers employees to employers. This is true even if the employment agency does not receive payment for this service. Furthermore, the agency is covered no matter how many employees it has. (2)
Application of These Principles to Your Specific Inquiry
Applying these principles to the scenario you pose, JWOD entities generally do not violate the ADA by inviting applicants to voluntarily self-identify with respect to their diagnoses and limitations, assuming the information is being used (as it would appear) for purposes of engaging in affirmative hiring/placement of individuals with disabilities. Additionally, VR agencies that are acting as employment agencies subject to title I of the ADA do not violate the ADA's confidentiality obligations by disclosing to a JWOD entity during the hiring process that an applicant has a particular disability for which affirmative employment or related assistance and training is being provided. VR agencies and firms that provide training for individuals with disabilities routinely communicate with potential employers about their programs and notify them when they have individuals who have completed the training and are ready to be hired. The confidentiality provisions would not prevent either of these efforts. In the first situation, the VR agencies or firms are providing general information to prospective employers about their programs, who they serve, and their objectives in providing job training. These educational efforts would not include disclosure of medical information about any particular client with a disability. In the second situation, the VR agencies or firms would be contacting prospective employers who are already familiar with the clients served by their programs and therefore aware that the clients have a particular disability. For a more detailed discussion of the way such entities may handle their advocacy on behalf of applicants with disabilities, see Office of Legal Counsel Informal Discussion Letter on Training Programs Serving Individuals with Autism Spectrum Disorder, http://eeoc.gov/eeoc/foia/letters/2014/ada_confidentiality_3_31.html (March 31, 2014).
However, the specific request for information you describe appears to be overbroad. According to your letter, the information being requested relates to all diagnoses, not just the disability for which employment assistance is being provided. This broad request could result in the disclosure of information about impairments other than the disability for which a VR agency provided services or for which a VR client is seeking placement with a JWOD contractor. Therefore, if VR agencies functioning as employment agencies were to ask clients for that kind of information, the request would likely violate the ADA's rules on disability-related inquiries and medical examinations. Disclosing the information to clients would also likely violate ADA's confidentiality rules to the extent that it exceeds what is necessary in connection with the client's affirmative hiring efforts.
Furthermore, the JWOD entities could violate the ADA's rules on disability-related inquiries and medical examinations by asking for more information than is necessary to determine the applicant's eligibility for the JWOD program. Even if the JWOD entity does not qualify as an employer or potential employer under the EEO laws because the person with the disability is a trainee and not a job applicant, it would still likely violate the ADA's provision prohibiting interference with ADA rights by asking the vocational rehabilitation agency to obtain and disclose confidential medical information that is not necessary to establish eligibility to participate in the JWOD program. See 42 U.S.C. §12203(b) (making it unlawful to "interfere with any individual in the exercise or enjoyment of … any right granted or protected by [the ADA]."
Conclusion
In summary, a JWOD entity will likely not violate the ADA by asking a vocational rehabilitation agency for information concerning the disability for which the agency provided services to a client and the limitations related to that disability, if either or both are necessary to establish the client's eligibility to participate in the JWOD program. However, inquiries regarding all medical conditions could arguably pose a number of potential ADA violations.
This has been an informal discussion of the issues raised, and does not constitute an official opinion. I hope this discussion of the issues you have raised is helpful. If you would like to discuss any of these matters further, please feel free to contact me at 202-663-4665.
Sincerely,
Christopher J. Kuczynski
Acting Associate Legal Counsel
FOOTNOTES:
1 The guidance further provides that if the employer invites applicants to voluntarily self-identify in connection with providing affirmative action, the employer must do the following: (1) state clearly on any written questionnaire, or state clearly orally (if no written questionnaire is used), that the information requested is used solely in connection with its affirmative action obligations or efforts; and (2) state clearly that the 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. In order to ensure that the self-identification information is kept confidential, the information must be on a form that is kept separate from the application.
2 You may wish to consult EEOC's Compliance Manual on "Threshold Issues," section 2-III.B.1.b., www.eeoc.gov/policy/docs/threshold.html, which addresses coverage of employment agencies.