6E06 Allegations Specific to Disability Complaints

Section 503 prohibits employment discrimination on the basis of disability. Complaints may include a variety of allegations that require determination of the legal and analytical approaches to be used in conducting the complaint investigation. Allegations may include individual disparate treatment claims (e.g., a claim that an individual was unlawfully terminated, demoted, not hired, not promoted, harassed); issues of systemic discrimination; denial of reasonable accommodation; and/or the use of medical inquiries, examinations, and mental and physical job qualification standards. In examining complaint allegations filed by a disabled veteran, the CO should determine if the complaint also raises issues under VEVRAA.328 Complainants filing under Section 503 or VEVRAA based on disability may also allege any violation of the law or its implementing regulation unrelated to discrimination.329 Disability complaints may be “dual filed” under both Section 503 and the ADA.330

a. Not Making Reasonable Accommodation. An issue unique to disability complaints (and complaints from disabled veterans) relates to the provision of reasonable accommodation. Section 503 requires that a contractor provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless the contractor can demonstrate that doing so would impose an undue hardship on the operation of the business. As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job, and it is reasonable to conclude that the performance problem may be related to the disability, the contractor must confidentially notify the employee of the problem, and inquire whether the problem is related to the disability and, if so, whether the employee needs a reasonable accommodation. A reasonable accommodation can include changes in the work environment, work processes or procedures so that a qualified individual with a disability or disabled veteran can apply for a job, perform the essential functions of a job or enjoy the benefits and privileges of employment. Reasonable accommodation may include a variety of modifications, including making the workplace accessible for an individual with mobility impairment and providing a reader or interpreter for someone who is blind or hearing impaired.

During the course of an investigation of a failure to accommodate claim, a contractor may assert that it did not provide a reasonable accommodation because significant difficulty or expense would have been incurred if it did so. When determining whether the contractor has proved that providing an accommodation would have caused it undue hardship, the CO will consider several factors:

1. The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding.

2. The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at such facility, and the effect on expenses and resources.

3. The overall financial resources of the contractor, the overall size of the contractor’s business with respect to the number of its employees, and the number, type and location of its facilities.

4. The type of operation or operations of the contractor, including the composition, structure and functions of the work force of the contractor; and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor.

5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

If the CO concludes that the contractor has proved that a specific accommodation would impose an undue hardship, the CO must examine whether there are other potential accommodations available that would not have caused undue hardship.

b. Medical Examinations and Inquiries. Aside from offering applicants the opportunity to voluntarily self-disclose as a person with a disability, Section 503 generally prohibits contractors from asking applicants disability-related questions or questions that are likely to elicit information about a disability prior to a conditional offer of employment. The law also prohibits contractors from conducting or requiring medical examinations of applicants until after a conditional offer of employment is made. For example, job applications may not contain medical inquiries or questions about disability, including whether an applicant will need a reasonable accommodation if hired. Disability-related inquiries and medical examinations of employees, such as return-to-work exams and periodic physicals, are prohibited unless they are job-related and consistent with business necessity. A complainant may allege that a contractor asked an unlawful disability-related question or conducted an unlawful medical exam whether or not he or she has a disability. Exceptions to these general prohibitions are listed below.

1. Invitation to self-identify. Contractors are required to invite applicants and employees to self-identify as an individual with a disability for affirmative action purposes, following the regulatory procedures specified in 41 CFR 60-741.42.

2. Acceptable pre-employment inquiry. Contractors may make pre-employment inquiries into the ability of all applicants to perform job-related functions. They may also ask all applicants to describe or demonstrate how – with or without reasonable accommodation – they will be able to perform job-related functions. Other inquiries could also be made if they are for the purpose of taking affirmative action to recruit and hire individuals with disabilities.

3. Employment entrance examination. Contractors may require a medical examination and/or ask disability-related questions after making a conditional offer of employment to a job applicant and before the applicant begins his or her employment duties, as long as this is done for all entering employees in the same job.

Such entrance examinations or inquiries do not have to be job-related and consistent with business necessity. However, if a contractor uses the results of the exam or inquiries to screen out applicants on the basis of disability, the contractor must demonstrate:

• That the exclusionary criteria used are job-related and consistent with business necessity; and
• That the standard cannot be met nor performance of the essential job functions accomplished, even with reasonable accommodation.331

4. Examination of employees. Contractors may require medical examinations and/or disability-related inquiries of employees only if they are job-related and consistent with business necessity.

5. Voluntary medical examinations and inquiries. Contractors may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site. These voluntary exams and activities do not have to be job-related and consistent with business necessity.

c. Confidentiality of Medical Information. A complainant may allege that the contractor breached confidentiality of medical information. Whenever a contractor inquires about an applicant’s or employee’s medical condition, or conducts a medical examination, the contractor must keep all resulting information in a separate, confidential medical file. The confidential medical records must be maintained separately from information on self-identification, which is kept in a data analysis file. For instance, if an employee voluntarily informs a contractor that he or she has a disability and requires a reasonable accommodation, this information must be kept confidential in the employee’s medical file, whereas the employee’s response to the invitation to self-identify (i.e., Form CC-305) would be maintained in the contractor’s data analysis file.

The contractor must keep the medical information confidential with three exceptions:

• Supervisors and managers may be informed regarding necessary restrictions on the work or duties of applicants and employees and necessary accommodations.
• First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.
• Government officials engaged in enforcing OFCCP’s laws or the ADA shall be provided information relevant to an investigation or compliance evaluation on request.

d. Mental and Physical Job Qualification Standards. Contractors subject to Section 503 or VEVRAA may not use qualification standards, employment tests or other selection criteria that exclude an individual with a disability or class, or individuals with disabilities on the basis of disability, or individuals on the basis of their status as protected veterans, unless the selection criteria are job-related and consistent with business necessity. Selection criteria that concern only the performance of a marginal function would not be consistent with business necessity, and the contractor may not exclude a qualified individual with a disability simply because a disability prevents him or her from performing a marginal function. A selection criterion that concerns an essential function may not be used to exclude an individual with a disability if the individual could satisfy the criterion with a reasonable accommodation.332 In such a situation, the contractor should provide the reasonable accommodation needed unless it can show that doing so would impose an undue hardship.

It is also unlawful for contractors to use a qualification standard, employment test or other selection criterion based on an individual’s uncorrected vision unless the standard, test or criterion is shown to be job-related and consistent with business necessity. Individuals wishing to challenge a contractor’s use of a standard, test or criterion based on uncorrected vision do not need to have a disability. These individuals only need to show that they were adversely affected by the application of the standard, test or other criterion.333

e. Relationship or Association with an Individual with a Disability. A complainant may allege that the contractor discriminated against him or her because of the known disability of an individual with whom the complainant has a relationship or association. Anyone can raise this claim; a complainant making such an allegation need not have a disability or allege that the contractor regarded him or her as having a disability. Rather, the complainant need only allege that he or she was denied an EEO or benefit because of his or her relationship with one or more persons who have a disability. Most often, the individual with whom the complainant has a relationship will be a family member, such as a child, spouse or parent, but the law applies equally to business, social and other types of relationships.