EEOC to Issue First Opinion Letter on Job Bias in Over 30 Years

The Equal Employment Opportunity Commission will issue its first opinion letter in over three decades, clarifying that opting in to a tax credit for hiring individuals with disabilities, veterans, and other underrepresented workers doesn’t violate anti-discrimination laws.

The federal civil rights agency voted to approve the opinion letter in a public meeting Wednesday, with the two Republican members of the commission, Janet Dhillon and Victoria Lipnic, voting in favor, and Democrat Charlotte Burrows voting against the motion. Two seats on the five-member commission are vacant.

Unlike other federal agencies, the EEOC rarely issues opinion letters. Dhillon said the letter will help employers understand how they can take advantage of the “underutilized” Workforce Opportunity Tax Credit program.

Burrows said that publishing the letter would open the agency up to “a cottage industry” of parties wanting the EEOC to weigh in on disputes. She also noted that the last time the agency sought to issue an opinion letter was under the direction of now-U.S. Supreme Court Justice Clarence Thomas, who chaired the commission from 1982 to 1990.

An employer that requests and receives an opinion letter from the agency can use it as a defense against a discrimination lawsuit, if it can prove it acted in good faith in accordance to the document.

The upcoming letter will clarify that an employer seeking the tax credit can ask a worker to check a box verifying that he or she has a disability, is a qualified veteran, is an ex-felon, or falls into another targeted category. Federal disability laws and other anti-bias statutes typically prohibit employers from asking whether a worker falls into one of those protected categories. The format of the Internal Revenue Service’s tax credit form permits the question in this circumstance because it doesn’t single out a particular category, the agency has said.

The agency previously has issued non-legally-binding “informal discussion letters” on the topic in the past, assuring employers that they can utilize the credit without violating EEOC-enforced laws. The informal discussion letters don’t require a vote by the full commission, and don’t express the opinion of the agency.