This image includes members of the Equal Employment Opportunity Commission – Victoria Lipnic, Janet Dhillon, and Charlotte Burrows.
Today at approximately 2:00 PM Eastern, the U.S. Equal Employment Opportunity Commission (EEOC) voted to publish a new formal opinion letter clarifying that the proper use of IRS Form 8850 does not violate any of the anti-discrimination laws enforced by the EEOC.
IRS Form 8850, titled “Pre-Screening Notice and Certification Request for the Work Opportunity Credit” is a document employers must acquire from new employees “on or before” the day of their job offer, to qualify for the Work Opportunity Tax Credit. View the form here. Because this form inquires into an employee’s date of birth and disability, some employers express concern about potentially violating laws that prohibit such inquiry prior to making the hiring decision.
The bottom line is that proper use of IRS 8850 is not a violation of the Civil Rights Act or the Americans with Disabilities Act (ADA).
Going back at least to 2004, the EEOC has published multiple informal letters on this topic. Because it is a formal letter, this new document will carry greater weight than previous letters and will express the formal or official view of the Commission.
Commissioner Charlotte A. Burrows’ Amendments
In the course of the Commission’s debate, Commissioner Charlotte A. Burrows offered numerous amendments with language attempting to limit the letter’s potential use as a legal defense, citing concerns about discrimination based on race, color, religion, sex or national origin under Title 7 of the Civil Rights act. People familiar with the Work Opportunity Tax Credit or WOTC, however, know that the program does not inquire into the traits protected under Title 7. Nothing on Form IRS 8850 (or any other WOTC form) hints at these personal characteristics. For this reason, I’d like to know more about Commissioner Burrow’s concerns.
One after another, the Commission voted down all but one of Commissioner Burrows’ amendments. I look forward to reading the letter in its entirety, amendments and all.
Watch this blog for more information as soon as the EEOC publishes its letter.