Affirmative Action for Disabilities? New Federal Regulation Creates Catch-22 for Employers Print
By Timothy H. Lee
Thursday, March 20 2014
All of this creates yet another minefield for employers across the nation, already intimidated by ObamaCare, higher taxes, endless new regulation and even rogue federal officials.

Here’s a new bureaucratic dilemma worthy of “Catch-22.” 

Tragically, it captures perfectly the way in which over-regulation and Obama Administration policy impede employment growth. 

On one hand, federal law generally prohibits employers from asking employees or job applicants if they are disabled.  This is what an employer visiting the U.S. Equal Employment Opportunity Commission’s current homepage will read: 

“The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.  For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer.  An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability).” 

That appears clear enough. 

On the other hand, however, new federal regulations taking effect next week require employers with federal contracts – accounting for approximately one-quarter of the entire national workforce – to ask employees or job applicants if they’re disabled.  Those employers must also certify that at least 7% of their workforce is disabled.  Employers failing to establish at least a 7% disabled workforce, or prove to the satisfaction of bureaucrats that they’re engaging in affirmative action to achieve that threshold, will suddenly be subject to penalties and loss of contracts. 

Exacerbating that dilemma, the Labor Department has drafted a self-identification questionnaire for employees, but it offers “Yes,” “No” and “I don’t wish to answer” as its three options.  Consequently, even those employees who are disabled can refuse to acknowledge that fact according the government’s own checklist, complicating employers’ task even more.  Specifically, even employers that do maintain a workforce with a sufficient number of disabled employees may be unable to demonstrate that because employees with disabilities refuse to publicize them. 

Moreover, determining what constitutes a “disability” under ever-evolving federal law is no simple task for employers or employees.  For instance, recent changes to the Americans with Disabilities Act (ADA) expanded the definition to include such things as depression, mental conditions such as obsessive/compulsive disorder, diabetes, cancer and more.  Accordingly, not only may employers and employees alike be unaware of what conditions qualify as “disabilities” under evolving law, it’s easy to understand why some who suffer such conditions would remain reluctant to make them public even if they are familiar with the latest legal niceties. 

As noted by Joe Gavigan, who was paralyzed as a student at the Air Force Academy and established a group to assist the disabled, “The word ‘disability’ means you’re not able to do something.  People don’t want to be perceived that way.”  He continued, “You don’t want your boss to see you as being limited in your capability.” 

All of this creates yet another minefield for employers across the nation, already intimidated by ObamaCare, higher taxes, endless new regulation and even rogue federal officials. 

Just this week, a new survey from the Business Roundtable reveals employers’ reluctance to hire in the current atmosphere.  Although 72% of surveyed CEOs expect to enjoy sales increases in the next six months, and approximately half of them expect to increase their capital spending, just 37% expect to increase hiring.  Meanwhile, the total number of U.S. jobs remains below its pre-recession level.  And even the left-leaning NBC News/Wall Street Journal survey showed that more than twice as many Americans believe that the U.S. remains in recession than believe that economic conditions will improve in the coming year.  Additionally, median household income in America is almost 5% lower today than when the current recovery began all the way back in June 2009. 

It used to be the case that post-recession recoveries witnessed vigorous “bounceback” employment improvement.  Under Obama’s presidency, however, the nation’s employment situation has suffered record levels of stagnation even though the last recession officially ended almost five years ago. 

When Obama or American voters puzzle over our ongoing employment malaise, they need look no further than his own administration and policies to locate the source of that state.