Elimination of Section 503 self-ID creates confusion

On September 21, the requirement that federal contractors voluntarily offer applicants and employees the opportunity to identify as an individual with a disability is eliminated. Although the Department of Labor (DOL) argued the self-ID requirements violate the Americans with Disabilities Act (ADA), it specifically did not prohibit contractors from offering voluntary self-ID. This position has confused federal contractors about whether they can or should collect such data. 

Background 

Before the ADA, Section 503 of the Rehabilitation Act of 1973 required federal contractors to collect disability data. After the ADA was passed, the OFCCP revised its position to require contractors to offer voluntary self-ID only to individuals post-offer, pre-employment. In 2011, the OFCCP proposed adding additional self-ID requirements. 

In response to concerns raised by contractors, then OFCCP Director Pat Shiu asked for a legal opinion from the EEOC on whether the ADA allowed contractors to offer voluntary self-ID. In an August 8, 2013, opinion, EEOC Legal Counsel Peggy Mastroianni said federal contractors could invite applicants to self-ID without violating the ADA’s disability inquiry provision because they are required to do so under Section 503 regulations. In fact, Mastroianni further stated private employers may invite applicants and employees to voluntarily self-ID if the employer is undertaking affirmative action based on state or local laws to benefit individuals with disabilities.