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EEOC Issues Revised Guide for Employers on the Employment of Veterans with Disabilities

12/9/20

By: Andrew Kim

On November 27, 2020, the EEOC issued three revised publications discussing the employment of veterans with disabilities. One of those publications is a revised guide for employers on how the ADA applies to the recruiting, hiring, and accommodation of veterans with disabilities.[1]  One topic of note is the EEOC’s guidance to employers on applicants who are disabled veterans.

Employers generally may not ask for medical information from applicants before making a job offer. However, according to the Revised Guide, employers may ask applicants to voluntarily self-identify as individuals with disabilities or a disabled veteran if the employer is:

  • Undertaking affirmative action because of federal, state, or local law (which includes a veterans’ preference laws) that requires affirmative action for individuals with disabilities; or
  • Voluntarily using the information to benefit individuals with disabilities, which includes veterans with disabilities.

Employers also can ask organizations who assist disabled veterans find employment whether it has suitable applicants for a particular job. It is important for employers to know that, if a written questionnaire is used for the purpose of having applicants voluntarily self-identify as disabled veterans, the written questionnaire must “indicate clearly and conspicuously” or “clearly state:”

  1. The information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and
  2. The specific information is being requested on a voluntary basis, the information will be kept confidential in accordance with the ADA, refusal to provide this information will not subject the applicant to any adverse treatment, and the information will be used only in accordance with the ADA.

The information collected for affirmative action purposes must be kept separate from the application itself in order to maintain confidentiality.

The EEOC’s Guidance states that, while the ADA prohibits discrimination on the basis of disability, it does not prevent affirmative action on behalf of disabled individuals. Therefore, per the guide, an employer can hire disabled individuals, which includes disabled veterans, over a qualified individual without a disability.

If you have any questions or would like more information, please contact Andrew Kim at akim@fmglaw.com

[1] https://www.eeoc.gov/laws/guidance/veterans-and-americans-disabilities-act-guide-employers

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