by Mark I. Schickman
True or false: You cannot ask a job applicant if she has a disability and consider her answer during the hiring process. I would have said true―you can’t inquire about a disability. Rather, the question for every job applicant is the same: Can you perform the job’s essential tasks with or without reasonable accommodation? If an applicant appears physically unable to do the job, you can ask her to show you how she will perform the essential job duties. But any disability itself is not a topic of conversation. 
Now, though, some employers not only can ask about and consider an applicant’s disability but must do so. That’s because, for the first time, there’s an affirmative action goal involving disabilities.
If you have more than $10,000 per year in government contracts, you likely are obligated to engage in affirmative action in employment under the watchful eye of the Office of Federal Contract Compliance Programs (OFCCP). If your government contracts exceed $50,000 a year, you need to draft and file a written affirmative action plan as well. It’s one obligation that’s still standing even after California passed the anti-affirmative action Proposition 209 in 1996. Despite several attacks in the U.S. Supreme Court, the concept of affirmative action is still breathing.
The 7% solution
New OFCCP regulations have created the goal that 7% of the workforce should be individuals with disabilities (IWDs). If a federal contractor has more than 100 employees, that goal applies separately to each “job group.” As part of the process, among other obligations, such employers must ask job applicants to optionally “self-identify” as a person with a disability―a prehire request that seems to violate the Americans with Disabilities Act (ADA) but has now been blessed in an opinion letter from the Equal Employment Opportunity Commission (EEOC).
According to the new regulations, IWDs (get used to that term) now make up about 4.8% of the national workforce, and the 7% goal would increase IWD employment by about 600,000. The OFCCP notes that most reasonable accommodations cost nothing, almost all of them cost $1,000 or less, and $500 per employee is a good estimate of what a reasonable accommodation will cost.
Like much of modern disability law, the new OFCCP plan is a unique wrinkle. Legally, it is probably on safer ground than other affirmative action programs. While constitutional scholars are very skeptical of racial or gender engineering, disability rights don’t hold the same sacred status as a “suspect classification,” so that issue is less subject to constitutional attack. Second, as a practical matter, not all disabilities are the same, and some do in fact affect a person’s ability to perform certain jobs―constituting another difference from race or gender. And while we strive to be a colorblind society, is it wiser policy to ignore disabilities or to recognize and accommodate them?
No concept of “reasonably accommodating” race, gender, or national origin exists, which makes this new affirmative action obligation trickier. The 300+ pages of text embedded on the OFCCP website (www.dol.gov/ofccp/regs/compliance/section503.htm) repeatedly suggest that the obligation is modest and doable, but the sheer weight of the regulations suggests the contrary.
The cynic in me notes that the government has a self-interest in increasing the employment of disabled individuals, moving the costs of supporting them from the public to the private sector. The OFCCP reports that IWDs’ average earnings are lower than $26,000 per year―less than half of the national average and an amount that approximates the federal poverty level. If 600,000 IWDs can be moved from the benefits rolls to full employment status, the savings to our government programs would be significant.
Affirmative action obligations affect only government contractors, but they are often a harbinger of things to come. So the mechanics of finding, recruiting, onboarding, and retaining IWDs is apt to become a new art in the broader employment community. Employers have faced new obligations before and have adapted to them. 
Expect “accommodation specialist” to become a growth industry. In a decade, affirmative action for IWDs may be old hat, but today it’s a new frontier whose guideposts we are creating on the fly.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. You may contact him at schickman@freelandlaw.com.