**U.S. DEPARTMENT OF EDUCATION**

**OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES**

**REHABILITATION SERVICES ADMINISTRATION**

**WASHINGTON, D.C. 20202**

> **TECHNICAL ASSISTANCE CIRCULAR**
>
> **RSA-TAC-FY-93-01**
>
> **RSM-2035**
>
> **DATE: October 2, 1992**

**ADDRESSEES:** STATE VOCATIONAL REHABILITATION AGENCIES (GENERAL)

> STATE VOCATIONAL REHABILITATION AGENCIES (BLIND)
>
> CLIENT ASSISTANCE PROGRAMS
>
> RSA DISCRETIONARY GRANTEES
>
> RSA SENIOR MANAGEMENT TEAM
>
> REGIONAL REHABILITATION CONTINUING EDUCATION PROGRAMS

**SUBJECT:** The Implications of §504 and the ADA Regarding Client
Placement Services and Pre-employment Inquiries by Employers

**CITATIONS IN LAW, REGULATION, AND POLICY:**

> Section 504 of the Rehabilitation Act of 1973 as amended through 1988
>
> Section 102(c)(2) of the Americans with Disabilities Act of 1990
>
> 34 CFR 104.14; 29 CFR 1630.2(n)(3), 1630.13(a) and 1630.14(a)
>
> 34 CFR 361.49

**BACKGROUND:** Since 1980, recipients of Federal financial assistance
from the U.S. Department of Education (ED) have had to comply with the
regulations enforcing Section 504 of the Rehabilitation Act (§504) found
at 34 CFR Part 104. Recipients of Federal financial assistance from
other Federal agencies have had to comply with similar, if not
identical, regulations promulgated by these agencies to enforce
§504.[^1] Each of the agencies\' regulations has a subpart (Subpart B
under ED\'s regulation, 34 CFR Part 104) focusing on employment issues
including the prohibition on pre-employment inquiries.

> In its development of Title I of the Americans with Disabilities Act
> (ADA), Congress borrowed heavily from the regulatory language of §504,
> including the prohibition on pre-employment inquiries. It went further
> than ED\'s §504 regulations, however, by explicitly stating what is an
> acceptable pre-employment inquiry. (Section 102(d)(2)(B) of the ADA
> states, \"Acceptable inquiry \-- A covered entity may make
> preemployment inquiries into the ability of an applicant to perform
> job-related functions.\") The Equal Employment Opportunity Commission
> (EEOC), the enforcement agency for Title I of the ADA, has promulgated
> regulations, interpretive guidance, and a technical assistance manual
> which provide guidelines and guidance concerning compliance with this
> issue.
>
> Although §504 and Title I of the ADA are distinct laws with separate
> regulations and different enforcement agencies, the language
> concerning pre-employment inquiries is similar enough as to be
> indistinguishable between the laws.[^2] At least, for the purposes of
> this discussion, the impact on counselor actions is identical whether
> the employer is a recipient of Federal financial assistance or not.
>
> The fundamental approach taken by the regulations for each law[^3] is
> that an employer cannot ask whether the applicant is a person with a
> disability nor ask about the nature or severity of the disability.[^4]
> However, the employer may make preemployment inquiry into an
> applicant\'s ability to perform job-related tasks or functions[^5] or,
> if there is a known disability, ask the applicant to demonstrate or
> explain how, with or without reasonable accommodation, he or she would
> perform job-related functions.[^6]
>
> In placement efforts, a rehabilitation counselor should present a
> functional limitation model of disability. As the employer only needs
> to know whether the client has any functional limitations which will
> impact on job tasks, the counselor must limit the discussion to any
> potential functional limitations that will impact on the client\'s
> ability to perform the job tasks or functions identified by the
> employer. This discussion may also include identifying reasonable
> accommodations that have been provided or could be provided. Using an
> example provided by EEOC in its Interpretive Guidance[^7] concerning
> an individual with one leg, a counselor may call a small appliance
> repair company and tell them that he or she has a qualified client for
> their home washing machine repair position. The counselor might
> explain that the client could only drive a vehicle with automatic
> transmission and may need a specially-built tool box. If the client
> does not wear a prosthesis or self-identifies to the employer about
> having only one leg, the employer may ask the applicant to demonstrate
> or explain how he or she would go up and down basement stairs with a
> toolbox. The employer cannot ask, nor should the counselor state,
> whether asked or not, how or when the client lost his/her leg, or
> whether the loss of the leg is indicative of an underlying disease or
> impairment.
>
> Regulatory requirements at 34 CFR 361.49 safeguard the confidentiality
> of all personal information concerning the individuals served by the
> State vocational rehabilitation agency. A counselor must be cognizant
> of these requirements in discussions with employers or potential
> employers of persons served by the State agency.

**INQUIRIES:** RSA Regional Commissioners

> Nell C. Carney, CRC
>
> Commissioner
>
> Rehabilitation Services Administration

[^1]: ?.. [See also]{.underline} the Department of Justice
    Government-wide guidelines for regulations enforcing § 504.

[^2]: .. [See]{.underline} 34 CFR 104.14(a) and §102.2(c)(2) of the ADA.

[^3]: .. [See]{.underline} Section-by-section Analysis for 34 CFR 104.14
    at 45 FR 30,949 (May 9, 1980) and Interpretive Guidance for 29 CFR
    1630.13 and 1630.14(a) at pp. I-70, 71 of the ADA Handbook.

[^4]: .. 504 regulations use the terminology: [handicapped
    person]{.underline}, [qualified handicapped person]{.underline} and
    [handicap]{.underline} to refer to the ADA concepts of [person with
    disability]{.underline}, [qualified individual with a
    disability]{.underline} and [disability]{.underline}. See 34 CFR
    104.3(j), (k) and (l) and §§3(2) and 102(8) of the ADA.

[^5]: .. [See]{.underline} 34 CFR 104.14(a).

[^6]: .. [See]{.underline} The Section-by-section analysis of the
    Department of Education §504 regulation for 34 CFR 104.14 found at
    45 Federal Register p. 30949. [See also]{.underline} the
    Interpretive Guidance for 29 CFR 1630.13 and 1630.14(a) found on pp.
    I-70 through I-73 of the ADA Handbook and Sections 5.5 and 5.5(a) of
    the Technical Assistance Manual for Title I of the ADA.

[^7]: .. [See]{.underline} Interpretive Guidance of 29 CFR 1630.14(a) at
    I-71 of the ADA Handbook.