The U.S. Equal Employment Opportunity Commission

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.


ADA: HIRING DISCRIMINATION: DISABILITY RELATED INQUIRIES AND MEDICAL EXAMINATION: WORK OPPORTUNITY TAX CREDIT

May 18, 2001

Re: Federal Work Opportunity Tax Credit and the ADA

Dear

This is in response to your March 19, 2001 letter to Christopher Kuczynski concerning the relationship between the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (ADA), and the Federal Work Opportunity Tax Credit (WOTC), set forth in section 51 of the Internal Revenue Code, 26 U.S.C. § 51. I am answering the letter because my Division worked with the Internal Revenue Service (IRS) and the Department of Labor (DOL) on the relationship between the ADA and WOTC.

Your letter states that IRS Form 8850, which employers must complete in order to obtain the WOTC, "requires disability-related inquiries" and you seek confirmation that this is a "permissible pre-employment inquiry at least under EEOC guidelines." You observe that some methods for obtaining job applications, either through an "application kiosk or a web-based electronic application program" may result in an employer's listing the Form 8850 WOTC items sequentially, which presumably could isolate the item on Form 8850 asking whether the applicant was referred by an approved state rehabilitation agency or the Department of Veterans Affairs. You ask whether an employer may directly ask a pre-offer applicant to state whether s/he "was referred here by a rehabilitation agency approved by the state or the Department of Veterans Administration." If using this item out of context would violate the ADA, you inquire whether the EEOC would allow a different form of the inquiry. Finally, you ask whether it would be permissible to make WOTC or disability-related inquiries if an employer did not provide responses from these inquiries to the hiring manager until after s/he made a hiring decision.

The Commission, IRS, and DOL recognized the potential for conflict between the purposes of the ADA and the WOTC when developing the forms for use in obtaining the information necessary to claim the tax credit. For this reason, the EEOC worked with both the IRS and DOL to ensure that employers would not have to risk violating the ADA, or other federal civil rights laws, in order to hire members of WOTC-targeted groups. Neither the IRS nor the Labor Department requires submission of disability-related information as a prerequisite to receipt of the WOTC.

To claim the WOTC, employers must submit completed IRS Form 8850 and DOL's Individual Characteristics Form (ICF) (copies attached). The IRS form is structured so that it makes a broadly-framed inquiry of applicants as to whether they are included in one or more of six different target groups. Only one of these six target groups is a "vocational rehabilitation referral." Thus, a "yes" answer to question 2 may mean that the applicant was referred from a vocational rehabilitation agency or that s/he is a member of one of the other target groups. As the Commission notes in its Enforcement Guidance: Preemployment Disability-Related Questions and Medical Inquiries (October 10, 1995) (Guidance), an inquiry is not disability-related "if there are many possible answers to a question and only some of those would contain disability-related information . . . ." Guidance at 4. Similarly, question 15 in DOL's ICF, asking whether the applicant "[i]s receiving or has received Rehabilitation Services through a State Rehabilitation Services program or the Veterans' Administration," is not disability-related for the purposes of the ADA. People with and without ADA disabilities will note their membership in this targeted group on the ICF. (1)

Your first specific question asks whether an employer may use the IRS form pre-offer without violating the ADA. As noted above, pre-offer use of Form 8850 does not violate the ADA because the form does not ask for "disability-related information." Moreover, there would be no need for an employer, applying for the WOTC, to make any further inquiries regarding the reasons an applicant may have been referred from either state or federal rehabilitation services; referral from a covered entity would be sufficient to enable the employer to complete the form.

Your second question asks whether an employer may list the Form 8850 items "sequentially." As explained above, the Commission and IRS worked together to develop the Form 8850 so that "rehabilitation agency referral" is one of several targeted groups within the same inquiry. To list the Form 8850 items sequentially and seek responses to each item individually would undermine the careful ADA/WOTC balance that the Commission and IRS sought to achieve through the design of the form. If the limitations of a "application kiosk or a web-based electronic application program" prevent presentation of the complete question 2 from Form 8850, we would suggest that a job offer not be made until such time as an applicant has the opportunity to complete the form. Alternatively, it may be possible to modify the software to keep the items listed in question 2 together on the screen.

Your last question asks whether it would be permissible to make WOTC or disability-related inquiries if an employer kept the responses from the hiring manager until a hiring decision was made. The ADA makes plain the absolute prohibition on pre-offer disability-related inquiries, see 42 U.S.C. § 12112(d)(2)(A), and there is no exception allowing such inquiries where an employer shields the hiring manager from the applicants' responses. However, as explained above, Form 8850 and the ICF do not seek submission of disability-related information as defined under the ADA. (2)

We hope this information is helpful to you. Please note that this is not an official opinion of the U.S. Equal Employment Opportunity Commission. If you have any questions, you may reach me at 202-663-4645, or Peter S. Gray, Senior Attorney Advisor, Coordination Division, at 202-663-4604.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel
Coordination Division


1. The WOTC recognizes only those individuals whose disability constitutes a "substantial handicap to employment," 26 U.S.C. § 51(d)(6)(A), and who are referred to the employer by a state rehabilitation agency or Department of Veterans Affairs vocational rehabilitation program. By contrast, the ADA protects persons whose impairments substantially limit any major life activity, not just employment, and there is no "referral" requirement. Furthermore, the ADA defines "substantially limited in working" differently from the WOTC and the related vocational rehabilitation programs.

2. Of course, if an applicant discloses disability-related information in response to properly posed pre- or post-offer inquiries, the information must be held confidentially under the ADA.


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