EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEEOC 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: Confidentiality; Pre-Offer Inquiries; Reasonable Accommodation

March 31, 2014

[Address]

Dear ____:

This is in response to your inquiry requesting guidance on possible ADA issues connected with a new program being created by two firms specializing in education, assessments, and job training for individuals with autism spectrum disorder (ASD).  According to your letter, the two firms will assess and train individuals with ASD for jobs, specifically those involving software testing and repetitive dexterity manufacturing positions.  The firms will then assist in placing them in jobs where they can use their newly-acquired skills.  You request guidance regarding several issues (described below) to ensure that the two firms are in compliance with the Americans with Disabilities Act, as amended.

As an initial matter, the EEOC enforces Title I of the ADA, which prohibits discrimination on the basis of disability by private and state and local government employers with 15 or more employees and by certain other "covered entities," which include employment agencies.  42 U.S.C. § 12111(2).  The description of the two training firms suggests that they could be covered by Title I of the ADA if they are acting as employment agencies that locate specific jobs for their clients and assist in their placement with employers.¹  The firms might also qualify as "joint employers" along with the entities with whom their clients are placed.²  Finally, since the firms will provide education and training for individuals with ASD, it appears that they will likely be covered under Title III of the ADA, which prohibits discrimination by places of public accommodation and is enforced by the U.S. Department of Justice.  42 U.S.C. § 12181(7)(J).³
This letter only addresses your questions as they relate to the employment aspects of the work undertaken by the training firms.

LIMITING JOB TRAINING AND PLACEMENT TO INDIVIDUALS WITH ASD

The first question you raise is whether the training firms would run afoul of the employment provisions of the ADA by serving only persons with ASD and not persons with other types of disabilities.  The job placement part of the program is an extension of the firms' general mission to prepare individuals with ASD for placement in gainful employment.  You explain that the program recognizes unique challenges posed by ASD and wishes to focus on specific needs associated with individuals with ASD in training for employment as well as in navigating the hiring process and obtaining a job.  We do not find anything in the language of Title I that would prohibit a job placement program such as you describe from focusing its efforts on the needs of people with a particular disability.  While Congress did not address in Title I the issue of employment agencies that might provide services only to individuals with one particular disability, it did address a similar issue when discussing public accommodations covered under Title III.  Congress acknowledged the existence of public accommodations that provide services only to people with certain disabilities – including private schools, special recreational programs, and "similar programs" – and stated that it did not intend the provisions of Title III "to jeopardize in any way the continued viability" of these types of separate programs.⁴  Congress drew a distinction between programs that discriminatorily exclude individuals with disabilities and programs established to meet unique needs of individuals with certain disabilities.  We believe the same principle would likely apply to the training firms under Title I of the ADA.

FOCUSING JOB TRAINING ON CERTAIN POSITIONS

Next, you inquire whether there could be a violation of the ADA if the training firms work with prospective employers to identify positions for which they will provide job training to clients in the event that such positions become available.  Nothing in Title I would prohibit this effort.  However, if the firms have a client who is qualified for other jobs, they cannot force their clients into the jobs identified by the employer.  See 42 U.S.C. § 12112(b)(1) (prohibiting covered entities from "limiting, segregating, or classifying" individuals in a way that discriminates because of a disability).  Nor can they acquiesce if an employer says it will consider a client only for one type of position where the client is qualified for other jobs.  If a specific client with ASD is qualified for other jobs with an employer, then the firm should assist the client in applying for those jobs.  If an employer asks the firms to send them individuals with ASD only for certain jobs, regardless of their qualifications for other jobs, then the firms must refuse this request and refer individuals for all jobs for which the firms believe their clients are qualified, with or without reasonable accommodation.⁵

DISCLOSURE OF ASD, CONFIDENTIALITY, AND REQUESTS FOR REASONABLE ACCOMMODATION

You pose a series of questions concerning Title I's confidentiality provisions.  Training firms like the ones you describe are covered by these confidentiality provisions when they act as either employment agencies or as staffing firms that are joint employers.  See 42 U.S.C.
§ 12112(d)(3)(B); 29 C.F.R. § 1630.14(b)(1), (c)(1), (d)(1) (confidentiality provisions apply to any "covered entity").

Implicit Disclosure of ASD When Providing General Information to Prospective Employers

You first ask whether the training firms would violate the confidentiality provisions by: (1) contacting potential employers to educate them about the firms' programs and (2) notifying employers when the firms have individuals who have completed the training and are ready to be hired.  The confidentiality provisions would not prevent either of these efforts.  In the first situation, the firms would be providing general information to prospective employers about their programs, who they serve, and their objectives in providing job training.  These educational efforts would not include disclosure of medical information about any particular client with ASD.

In the second situation, it appears that the firms would be contacting prospective employers who are already familiar with the clients served by the firms' programs and therefore aware that the clients have ASD.  This type of implicit disclosure occurs in job training programs conducted by disability organizations or vocational rehabilitation agencies, many of which serve specific disabilities, and is not prohibited under Title I of the ADA.

Disclosure of Disability-Related Information Concerning Specific Clients During the Application Process

Next, you raise confidentiality concerns when the firms engage in job placement for specific individuals.  First, you note that due to the nature of ASD, it is likely that a firm representative will be required to make initial contact with a prospective employer and to assist in setting up a job interview.  Furthermore, it is expected that this representative will accompany the applicant to the interview.  You note that ASD can affect interpersonal skills and that, without the assistance of a firm representative, problems with interpersonal skills might negatively affect the individual's ability to explain and demonstrate qualifications for the job opening.

Although you assume that all of the firms' clients will need someone to assist them at a job interview, the firms should determine on a case-by-case basis whether clients actually need this assistance.  As you acknowledge, ASD encompasses individuals with varying degrees of disability.  While some or even most individuals may lack interpersonal skills and therefore need the assistance of a firm representative to make contact with an employer and to handle a job interview effectively, other individuals may not.  There would be no need for a firm representative to attend a job interview with a client who is able to do so on her own, and doing so could be viewed as requiring the individual to accept a reasonable accommodation that she does not want, something the ADA does not permit.  See  29 C.F.R. § 1630.9(d).

Where an individual needs to have a firm representative take a more active role and accompany her to a job interview, the firm should discuss this first with the individual (and the individual's legal guardian, if there is one and if appropriate) and should explain that the firm will ask the prospective employer to let a firm representative accompany the individual on her interview.  The training firm should explain to the individual with ASD the role of the firm representative and the disability-related information that the representative will disclose to the potential employer, and should seek the individual's (or a guardian's) permission.  These steps ensure that the individual or her guardian is in agreement about the representative's role, the need for reasonable accommodation, and disability-related disclosures that the firm representative will make to the prospective employer.

If a client needs a firm representative to be present at a job interview, the representative's disclosure of the client's ASD would occur as part of a request for a reasonable accommodation – specifically, a request that a third party be permitted to attend the interview when the employer generally does not permit this practice.⁶  Disclosure of the individual's ASD that occurs as part of a third party's request for reasonable accommodation on the client's behalf would not violate Title I's confidentiality provisions because the firm representative is acting as the agent of the client and, in that capacity, may make disclosures that the client could otherwise make.  The extent of the disclosure should be no greater than is necessary for the purpose of requesting the accommodation.  Firm representatives should be trained that the disclosures they make to potential employers about a client's disability are only to explain the representative's role in making contact; assisting, as necessary, in the job interview; and requesting, on behalf of the client, reasonable accommodations to perform the job.

The amount of information a prospective employer already has about the two firms and their clientele will determine the amount of information a firm representative will need to disclose when inquiring about a vacancy for a specific individual.  As a general matter, the focus of the initial contact with the employer should be on an individual's qualifications for the job, not the ASD.  However, if the prospective employer has no information about the firms and their mission, then the firm representative, without violating the ADA, may (1) describe the firms and their mission, (2) state that she is making an inquiry on behalf of an individual with ASD, and (3) explain what ASD is and why it necessitates the representative's assistance in contacting the employer.

Providing Information About a Client's Need for Reasonable Accommodation on the Job

Finally, you ask whether a training firm representative may tell a prospective employer about reasonable accommodations that a client will need to perform the job.  Applying the analysis above, it appears that the ADA permits such a disclosure without violating Title I's confidentiality provisions if a client requires or requests such assistance.  That is, if the client's ASD is such that she needs the firm representative to make requests on her behalf for reasonable accommodations to perform the job, or would prefer that the representative make the request, then doing so will not violate the ADA.  The representative should inform the applicant (and a guardian, if necessary) beforehand about making this request, should ensure that the applicant agrees with the request, and, if appropriate, should determine whether the applicant would like to make the request herself.

I hope this information is helpful.  Please note that this letter is not an official opinion of the EEOC but instead offers informal guidance on the issues raised in your letter.

Sincerely,

/s/

Sharon Rennert
Senior Attorney Advisor
ADA/GINA Division

Footnote

¹ You may wish to consult EEOC's Compliance Manual on "Threshold Issues," section 2-III.B.1.b., www.eeoc.gov/policy/docs/threshold.html, which addresses coverage of employment agencies.  An employment agency may also be considered a "staffing firm" and the EEOC has published two Enforcement Guidances discussing the legal obligations of such firms.  The first addresses "The Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, www.eeoc.gov/policy/docs/conting.html ("Contingent Workers Guidance").  The second Guidance, "The Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms," https://www.eeoc.gov/laws/guidance/enforcement-guidance-application-ada-contingent-workers-placed-temporary-agencies-and, focuses on issues unique to the ADA.

² If both a staffing firm and its client (where it places a worker) have the right to control the worker, and each has the statutory minimum number of employees, they are both covered under the federal employment discrimination laws as "joint employers."  See Question 2 in "Contingent Workers Guidance," mentioned in footnote 1.  Thus, if the training firms are "staffing firms", and if they are acting as "joint employers" with the entity where an individual with ASD is placed, then these firms will have certain legal obligations under the ADA's employment provisions.

³ The firms may wish to contact the ADA Information Line (1-800-514-0301) at DOJ and/or to visit DOJ's website, www.ada.gov, to seek guidance on how Title III of the ADA will apply to the firms' provision of assessments, education, and training to individuals with ASD.

⁴ See H.R. Rep. No. 101-485, pt. 2, at 102; S. Rep. No. 101-116, at 61.

⁵ See Question 7 in the "Contingent Workers Guidance" mentioned in footnote 1.

⁶ The ADA permits a third party – in this case, the firm representative – to request a reasonable accommodation on behalf of an individual with a disability.  See Question 2 in EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/accommodation.html. 

This page was last modified on May 8, 2014.